Principles and practice

of forensic psychiatry
This page intentionally left blank
Principles and practice
of forensic psychiatry
Second Edition

Edited by

RICHARD ROSNER MD
Clinical Professor, Department of Psychiatry,
New York University School of Medicine

Director, Forensic Psychiatry Residency,

New York University Medical Center

Medical Director, Forensic Psychiatry Clinic,

Bellevue Hospital Center, New York,
New York

Hodder Arnold
A MEMBER OF THE HODDER HEADLINE GROUP
First published in Great Britain in 1994
Reprinted in 1998 by Hodder Education, a member of the Hachette Livre UK Group
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This book is dedicated to the memory of
M. Bernice Horner Rosner
This page intentionally left blank
Contents

Preface to the first edition xiii

Preface to the second edition xv

List of contributors xvii

PART 1 HISTORY AND PRACTICE OF FORENSIC PSYCHIATRY: ROBERT WEINSTOCK 1

1 A conceptual framework for forensic psychiatry 3

Richard Rosner

2 Defining forensic psychiatry: roles and responsibilities 7

Robert Weinstock, Gregory B. Leong and J. Arturo Silva

3 History of forensic psychiatry 14

Marvin Prosono

4 Forensic psychiatric report writing 31

J. Arturo Silva, Robert Weinstock and Gregory B. Leong

5 Guidelines for courtroom testimony 37

Phillip J. Resnick

6 Practical issues in forensic psychiatric practice 45

Robert L. Sadoff

7 Education and training in forensic psychiatry 52

Rusty Reeves and Richard Rosner

8 Ethical guidelines 56
Robert Weinstock, Gregory B. Leong and J. Arturo Silva

9 Liability of the forensic psychiatrist 73

Daniel Willick, Robert Weinstock and Thomas Garrick

10 The death penalty 79

Gregory B. Leong, J. Arturo Silva and Robert Weinstock

11 Competence assessments 85
Robert Weinstock, Gregory B. Leong and J. Arturo Silva

12 Psychological autopsy 89
Tim E. Botello, Linda E. Weinberger and Bruce H. Gross

PART 2 LEGAL REGULATION OF PSYCHIATRIC PRACTICE: HAROLD I. SCHWARTZ 95

13 Informed consent and competency 97

Harold I. Schwartz and David M. Mack
viii Contents

14 Hospitalization: voluntary and involuntary 107

Harold I. Schwartz, David M. Mack and Peter M. Zeman

15 Involuntary civil commitment to outpatient treatment 116

Robert D. Miller

16 The right to treatment 121

Jeffrey L. Geller

17 Treatment refusal in psychiatric practice 129

Debra A. Pinals and Steven K. Hoge

18 Confidentiality and testimonial privilege 137

Ralph Slovenko

19 The duty to protect 147

Alan R. Felthous and Claudia Kachigian

20 Treatment boundaries in psychiatric practice 156

Robert I. Simon

21 Sexual misconduct in the therapist–patient relationship 165

Robert I. Simon

22 The law and physician illness 173

Stephen Dilts and Douglas A. Sargent

PART 3 FORENSIC EVALUATION AND TREATMENT IN THE CRIMINAL JUSTICE SYSTEM: ROBERT D. MILLER 181

23 Introduction 183
Robert D. Miller

24 Criminal competence 186

Robert D. Miller

25 Criminal responsibility 213

Robert D. Miller

26 Novel mental disorders 233

Robert D. Miller

27 Post-conviction dispositional evaluations 239

Robert D. Miller

PART 4 CIVIL LAW: STEPHEN RACHLIN 247

28 Specific issues in psychiatric malpractice 249

Robert M. Wettstein

29 Psychiatric disability determinations and personal injury litigation 260

Jeffrey L. Metzner and James B. Buck

30 Americans with Disabilities Act evaluations 273

A. Jocelyn Ritchie and Howard V. Zonana

31 Sexual harassment 282

Liza H. Gold

32 Trauma-induced psychiatric disorders and civil law 290

Stuart B. Kleinman and Susan B. Egan

33 Neuropsychiatric assessments in toxic exposure litigation 301

Daniel A. Martell
 Contents ix

34 Civil competencies 308

J. Richard Ciccone

35 Death, dying, and the law 316

Norman L. Cantor

PART 5 FAMILY LAW AND DOMESTIC RELATIONS: STEPHEN B. BILLICK 329

36 Role of the psychiatric evaluator in child custody disputes 331

Stephen B. Billick and Steven J. Ciric

37 Termination of parental rights and adoption 348

Shashi Elangovan and Stephen B. Billick

38 Childhood attachment, foster care and placement 366

Lisa R. Fortuna and Stephen B. Billick

39 Forensic evaluation of physically and sexually abused children 377

Rodrigo Pizarro and Stephen B. Billick

40 Juvenile delinquency 389

Roy H. Lubit and Stephen B. Billick

41 Posttraumatic stress disorder in children and adolescents: clinical and legal issues 396
James E. Rosenberg and Spencer Eth

42 Forensic aspects of suicide and homicide in children and adolescents 407

Peter Ash, Richard J. Gersh and Stephen B. Billick

43 The child as a witness 419

Robert Suddath

44 Violent adolescent offenders 441

Roy J. O’Shaughnessy

45 Adolescent sexual offenders 455

Meg S. Kaplan and Richard B. Krueger

46 Neuroimaging in child and adolescent psychiatry 463

Stephen B. Billick and Stephen P. Sullivan

PART 6 CORRECTIONAL PSYCHIATRY: ABRAHAM L. HALPERN AND RONNIE B. HARMON 473

47 The history of correctional psychiatry 475

Peter N. Barboriak

48 Standards for the delivery of mental health services in a correctional setting 484
B. Jaye Anno

49 The structure of correctional mental health services 489

Joel A. Dvoskin, Erin M. Spiers, Jeffrey L. Metzner and Steven E. Pitt

50 Administrative and staffing problems for psychiatric services in correctional and forensic settings 505
Robert T.M. Phillips and Carol Caplan

51 Issues in the prevention and detection of suicide potential in correctional facilities 513
Gerald Landsberg and Pamela Morschauer

52 The psychosocial basis of prison riots 519

Phyllis Harrison-Ross and James E. Lawrence

53 The right to refuse treatment in a criminal law setting 526

Michael L. Perlin
x Contents

54 Psychiatric ethics in the correctional setting 533

Jay E. Kantor

PART 7 SPECIAL CLINICAL ISSUES IN FORENSIC PSYCHIATRY: ROBERT WEINSTOCK 541

55 Malingering 543
Phillip J. Resnick

56 Antisocial personality, psychopathy and forensic psychiatry 555

William H. Reid and Maria S. Ruiz-Sweeney

57 Dangerousness 564
Gregory B. Leong, J. Arturo Silva and Robert Weinstock

58 Violence: causes and non-psychopharmacological treatment 572

Kenneth Tardiff

59 Pharmacological treatment of violent behaviors 579

Robert H. Gerner

60 Violence and epilepsy: an approach to expert testimony 589

David M. Treiman

61 Brain disease: forensic neuropsychiatric issues 603

Mace Beckson and George Bartzokis

62 Forensic neuropsychology 612

Charles H. Hinkin, Delany Thrasher and Wilfred G. van Gorp

63 Psychological and psychiatric measures in forensic practice 621

Richard Rogers and Diane Graves-Oliver

64 Culture and ethnicity 631

J. Arturo Silva, Gregory B. Leong and Robert Weinstock

65 Hypnosis and dissociation 638

David Spiegel

66 Amnesia, amytal interviews and polygraphy 643

John Bradford and Victoria L. Harris

67 Geriatric psychiatry and the law 651

Daniel J. Sprehe

68 Terrorism and forensic psychiatry 661

William H. Reid and Chris E. Stout

69 Torture and brainwashing 669

Rahn Kennedy Bailey

70 Substance abuse and addiction 672

Mace Beckson, George Bartzokis and Robert Weinstock

71 Psychopharmacological treatment of sex offenders 685

John Bradford and Victoria L. Harris

72 Prosecution of assaultive patients 699

Gary J. Maier and Stephen Rachlin

73 Treatment of sex offenders 705

Gene G. Abel and Candice A. Osborn

74 Sexually violent predator laws 717

Douglas E. Tucker and Samuel Jan Brakel
 Contents xi

75 Brain imaging 724

Rusty Reeves and Stephen B. Billick
76 Stalking 728
Mohan Nair
77 Head trauma: a practical approach to the evaluation of symptom exaggeration 736
Shoba Sreenivasan, Spencer Eth, Patricia Kirkish and Thomas Garrick
78 Psychiatric abuse in North America 741
Alfred M. Freedman and Abraham L. Halpern
79 Actuarial methods for violence and sex-offender risk assessments 750
Shoba Sreenivasan, Patricia Kirkish, Thomas Garrick and Linda E. Weinberger
80 ERISA, healthcare and the courts 756
J. Richard Ciccone

PART 8 BASIC ISSUES IN LAW: ROBERT LLOYD GOLDSTEIN 761

81 The philosophy of law and the foundations (sources) of law 763

Laurence R. Tancredi and Robert Lloyd Goldstein
82 The court system and the legislative process 769
Robert Lloyd Goldstein
83 A model of constitutional adjudication: the equal protection doctrine 774
Robert Lloyd Goldstein
84 An introduction to tort law 780
Daniel W. Shuman and Michael Heinlen
85 An introduction to civil procedure 789
Robert Lloyd Goldstein
86 An introduction to criminal procedure 796
Harvey M. Stone, Katherine Oberlies O’Leary and Robert Lloyd Goldstein
87 Punishment 804
Russell Stetler and Robert Lloyd Goldstein
88 Legal research on the Web 811
Peter Ash

PART 9 LANDMARK CASES IN FORENSIC PSYCHIATRY: HOWARD OWENS 817

89 Introduction 819
Howard Owens
90 Civil law and family law cases in forensic psychiatry 820
Meryl B. Rome and Andrew J. Rader
91 Criminal law and forensic psychiatry 831
Howard Owens
92 Legal regulation of psychiatry 850
James W. Hicks

Index 877
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Preface to the first edition
Principles and Practice of Forensic Psychiatry is the most
ambitious publication to date of the volumes edited for
the Tri-State Chapter of the American Academy of
Psychiatry and the Law (AAPL). The Tri-State Chapter is
the first and largest of the AAPL chapters. It draws upon
the academy’s resources in Connecticut, New Jersey, and
New York. The Chapter provides more than fifty hours of
formal training in forensic psychiatry each year through
its two-semester course on forensic psychiatry and its
January weekend program devoted to a specific single
theme in the field. Having produced seven prior books,
all in the series Critical Issues in American Psychiatry and
the Law, the current volume is a natural extension of the
Tri-State Chapter’s educational work.
The literature in forensic psychiatry in the United
States has grown, especially since the creation of AAPL
in 1969. There are books to serve as introductions to
forensic psychiatry for general psychiatrists, as research
reports and monographs on specialized single topics, as
compendia of legal cases and materials, and as advanced
surveys of one or several major themes in psychiatry and
the law. However, until the present volume, none of the
existing books has been specifically designed to review
the entire field of forensic psychiatry at a level consistent
with the needs of subspecialists.
The American Psychiatric Association (APA) recently
decided to recognize forensic psychiatry as a subspecialty
and to petition the American Board of Psychiatry and
Neurology (ABPN) to offer an examination for certifica-
tion in ‘added qualifications in forensic psychiatry’. The
ABPN requested, and was granted, authorization from
the American Board of Medical Specialties (ABMS) to
proceed with the development and implementation of
such a subspecialty examination. The increased profes-
sional recognition of forensic psychiatry makes greater
the need for the present volume.
Principles and Practice of Forensic Psychiatry is designed
as a foundation work in the field. Among the intended
audience are (1) fellows in a fifth-postgraduate-year fel-
lowship program in forensic psychiatry, (2) forensic psy-
chiatrists preparing for the subspecialty examinations
of the American Board of Forensic Psychiatry or the
forthcoming ‘added qualifications in forensic psychiatry’
examination of the American Board of Psychiatry and
Neurology, and (3) forensic psychiatric practitioners
who want a convenient, one-volume reference book to
assist them in their work. Forensic psychologists, forensic
clinical psychiatric social workers, mental health admin-
istrators, and attorneys will also find the current volume
to be valuable. The editors and authors have sought to set
forth areas of general agreement (wherever possible) and
to describe as fairly as is feasible the major contending
views on those topics that lack consensus.
The current book attempts to be encyclopedic in
scope. The American Academy of Psychiatry and the Law
and the American Academy of Forensic Sciences (AAFS)
have endorsed the Accreditation Council on Fellowships
in Forensic Psychiatry (ACFFP) and its standards for
education and training in psychiatry and the law. The
ACFFP Standards (AAPL 1982) set forth the main areas
in the didactic core curriculum of forensic psychiatry as:
1 Legal Regulation of Psychiatry
2 Criminal Forensic Psychiatry
3 Civil Forensic Psychiatry, including Family Law and
Domestic Relations
4 Correctional Psychiatry
5 Special Issues in Forensic Psychiatry
6 Basic Issues in Law
7 Landmark Cases in Mental Health Law
It is in the sense of addresssing all of these main topics
identified by the ACFFP that this book is meant to be
comprehensive.
Each author was asked to employ the uniform con-
ceptual framework for the analysis of problems in foren-
sic psychiatry that was introduced in the Tri-State
Chapter’s first book (Rosner 1982):
1 Identify the specific psychiatric-legal issue(s).
2 Identify the specific psychiatric-legal criteria that are
used to decide the issue(s).
3 Identify the specific clinical data that are directly rele-
vant to the psychiatric-legal criteria.
4 Set forth and explain the specific reasoning processes
to be used to apply the data to the criteria to decide
the issue(s).
Individual authors have adhered to this framework in
their chapters to a greater or lesser degree, depending on
xiv Preface to the first edition
their subject matter. It provides a uniform reference for
approaching the otherwise almost dauntingly diverse
contents of the field of forensic psychiatry.
Section One, History and Practice of Forensic
Psychiatry, introduces the reader to the conceptual
framework of the field, the definition of forensic psychi-
atry, such practicalities as report writing and courtroom
testimony, current educational and ethical standards,
issues in administration, potential abuse of psychiatry,
the death penalty, psychological autopsies, criminal pro-
filing, competence assessments, and the history of foren-
sic psychiatry.
Section Two, Legal Regulation of Psychiatric Practice,
addresses informed consent, psychiatric hospitalization,
outpatient civil commitment, the right to treatment, the
right to refuse treatment, confidentiality and testimonial
privilege, the duty to protect third parties, treatment
boundaries, sexual misconduct by therapists, and the
impaired physician.
Section Three, Forensic Evaluation and Treatment in
the Criminal Justice System, considers criminal competen-
cies, criminal responsibility, trauma-induced psychiatric
disorders, and postconviction dispositional evaluations.
Section Four, Civil Law, examines psychiatric mal-
practice, psychiatric disability determinations, personal
injury litigation, trauma-induced psychiatric disorders,
evaluation of neurotoxicity, testamentary capacity,
guardianships, and issues at the end of life.
Section Five, Family Law and Domestic Relations,
reviews child custody, abused children, abused elders,
juvenile delinquency, children in need of supervision,
confidentiality, trauma-induced psychiatric disorders,
fetal and infant issues, juvenile suicide, psychiatric hospi-
talization of minors, and adolescent violence.
Section Six, Correctional Psychiatry, focuses on the
history of correctional psychiatry, standards for correc-
tional mental health services, the structure of correctional
Principles and Practice of Forensic Psychiatry was edited for the American Academy of Psychiatry and the Law Tri-State
Chapter.
Harold I Schwartz MD President
Howard Owens MD Vice President
Stuart B Kleinman MD Secretary
Robert L Goldstein MD JD Treasurer
Stanley R Kern MD Immediate Past President
Stephen Rachlin MD Past President
Henry C Weinstein MD LLB LLM Past President
Richard Rosner MD Founding President
mental health services, administrative issues, suicide
prevention, inmate riots, and the ethics of correctional
psychiatry.
Section Seven, Special Clinical Issues in Forensic
Psychiatry, explores malingering, antisocial personality dis-
order, dangerousness, causes and treatments of violent
behaviors, epilepsy and brain disease, neuropsychiatric
aspects of forensic psychiatry, psychological assessment,
cultural and ethnic minorities, hypnosis, multiple per-
sonality disorder, amnesia, amytal, polygraphy, geriatric
forensic psychiatry, torture, brainwashing, terrorism,
AIDS (acquired immunodeficiency syndrome), and sexual
offenders.
The Tri-State Chapter of the American Academy of
Psychiatry and the Law offers Principles and Practice of
Forensic Psychiatry as its latest educational contribution
for students and practitioners.
ACKNOWLEDGMENT
The idea for this book originated with Robert Weinstock
MD, who presumed on thirty years of friendship with the
editor to urge that a comprehensive textbook of forensic
psychiatry be planned and implemented as a project of
the Tri-State Chapter of the American Academy of
Psychiatry and the Law.
REFERENCES
AAPL (American Academy of Psychiatry and the Law).
1982. The Bulletin of AAPL 10(4).
Rosner, R. 1982: Critical Issues in American Psychiatry and
the Law. Springfield, IL: Charles C Thomas Company,
5–11.
Stephen B Billick MD Councillor
Daniel Greenwald MD Councillor
Robert TM Phillips MD PhD Councillor
Michael Scimeca MD Councillor
Sheldon Travin MD Councillor
John Young MD Councillor
Preface to the second edition
Principles and Practice of Forensic Psychiatry, second
edition, was authorized by, and edited for, the Tri-State
Chapter of the American Academy of Psychiatry and the
Law (Tri-State AAPL). With one exception, every chapter
in the book is either an updated, revised and expanded
version of what appeared in the original edition, or is
completely new. The one exception is the first chapter,
which has been described as a ‘classic’ statement of the
Tri-State Chapter’s approach to forensic psychiatry.
The Tri-State Chapter of the American Academy of
Psychiatry and the Law was conceived at the 1975
Boston, Massachusetts meeting of the national organiza-
tion. There was initial skepticism among senior practi-
tioners about the prospects for a local chapter of AAPL
because a prior New York forensic psychiatry educational
group, the Isaac Ray Society, had failed to thrive. There
was initial opposition from national AAPL because of
concern that local chapters might become competitors
for members and dues. It was decided to poll by mail all
of the AAPL members in New York State to determine
if there was interest in the formation of a local forensic
psychiatry society; the results of the poll indicated strong
support. An organizational meeting was held, to which
all New York State members of AAPL were invited. At
that meeting, it was determined to call the new society
the New York State Membership Group of AAPL because
national AAPL had indicated that the then-Bylaws of
AAPL did not permit the creation of official chapters.
The initial organizational meeting also generated a slate
of candidates for elective office in the new society, and a
mail ballot was sent to all New York State AAPL mem-
bers; the election yielded the first officers of the new soci-
ety. It was decided that there would be no membership
dues, and that all AAPL members residing or working in
New York State would automatically be members of the
New York State Membership Group of AAPL.
The interest of AAPL members in New Jersey and
Connecticut in participating in the educational pro-
grams of the New York State Membership Group led to a
motion to expand the society. A mail ballot was sent to all
AAPL members in New Jersey and Connecticut, inquir-
ing if they wished to join a Tri-State Membership Group
of AAPL; the results of the poll indicated firm support
and the society was expanded accordingly. In subsequent
elections, care was taken to insure that at least one repre-
sentative from New Jersey and one representative from
Connecticut were officers of the society.
The success of the Tri-State Membership Group led to
a request that national AAPL authorize the creation of
local chapters. An AAPL Task Force on Chapters was
appointed and recommended that an appropriate Bylaws
modification be developed and submitted for ratification
to the AAPL membership. On May 4, 1980, following
approval of the new Bylaw authorizing local chapters,
AAPL authorized the Tri-State Membership Group to be
re-named and recognized as AAPL’s first official chapter:
the Tri-State Chapter of AAPL.
The educational core of Tri-State AAPL has been its
annual one-day educational program each January and
its annual two-semester course on forensic psychiatry. As
an out-growth of those training programs, Tri-State
authorized the publication of a number of books, all in
the series Critical Issues in American Psychiatry and the
Law. It is a source of great satisfaction to present the
latest book authorized by Tri-State AAPL, the second
edition of Principles and Practice of Forensic Psychiatry.
ACKNOWLEDGEMENTS
Once again, Robert Weinstock MD has been the driving
force behind this publication project. It was he who pre-
sumed on 40 years of friendship to oblige the editor to
plan and implement this book.
Abraham Halpern MD has earned special citation for
generously volunteering to read and edit the entire text
for spelling, grammar and legal citations.
FURTHER READING
Rosner, R. (ed.). 1982: Critical Issues in American Psychiatry
and the Law. Springfield, IL: Charles Thomas Co.
Rosner, R. (ed.). 1985: Critical Issues in American Psychiatry
and the Law. Volume Two. New York: Plenum.
Rosner, R. and Schwartz, H. (eds). 1987: Geriatric
Psychiatry and the Law. New York: Plenum.
xvi Preface to the second edition

Rosner, R. and Schwartz, H. (eds). 1989: Juvenile Psychiatry
and the Law. New York: Plenum.
Rosner, R. and Harmon, R. 1989: Criminal Court
Consultation. New York: Plenum.
Rosner, R. and Harmon, R. 1989: Correctional Psychiatry.
New York: Plenum.
Rosner, R. and Weinstock, R. (eds). 1990: Ethical Practice
in Psychiatry and the Law. New York: Plenum.
Rosner, R. (ed.). 1994: Principles and Practice of Forensic
Psychiatry. London, England: Chapman and Hall;
republished by Edward Arnold, London, 1998.

The second edition of Principles and Practice of Forensic Psychiatry was edited for the Tri-State Chapter of the American
Academy of Psychiatry and the Law.

President Ilene Zwirn MD Past Presidents

Vice President Norma Saunders MD Brian Ladds MD (2000–2001)
Secretary Bruce David DO JD Stephen Billick MD (1998–2000)
Treasurer Robert Goldstein MD JD Stuart Kleinman MD (1996–1998)
Howard Owens MD (1994–1996)
Councillors
Harold Schwartz MD (1992–1994)
Donald Reeves MD
Stanley Kern MD (1990–1992)
Catherine Lewis MD
Stephen Rachlin MD (1988–1990)
Rodrigo Pizarro MD
Henry Weinstein MD LLB LLM (1987–1988)
Kenneth Tardiff MD
Richard Rosner MD, Founding President (1976–1987)
Richard Kassner MD
Alan Tuckman MD
List of contributors

Gene G. Abel MD Department of Veterans Affairs, Greater Los Angeles

Clinical Director Healthcare System
Behavioral Medicine Institute of Atlanta Los Angeles, CA
Atlanta, GA
Stephen B. Billick MD
B. Jaye Anno PhD Clinical Professor of Psychiatry
Senior Partner New York Medical College
Consultants in Correctional Care Valhalla, NY
Santa Fe, NM
Tim E. Botello MD MPH
Peter Ash MD Professor of Clinical Psychiatry and the Behavioral
Associate Professor Sciences
Department of Psychiatry and Behavioral Sciences Institute of Psychiatry, Law and Behavioral Science
Emory University Keck School of Medicine
Atlanta, GA University of Southern California
Los Angeles, CA
Rahn Kennedy Bailey
Department of Psychiatry John Bradford MB MbChB DPM FFPsych MRCPsych FRCPC
University of Texas Health Science Center Professor and Head of the Division of Forensic Psychiatry
Houston, TX The University of Ottawa
Peter N. Barboriak MD PhD Deputy Head (Forensic Psychiatry)
Adjunct Assistant Professor of Psychiatry The Royal Ottawa Healthcare Group
University of North Carolina at Chapel Hill School of Ottawa, ONT, Canada
Medicine Samuel Jan Brakel JD
Clinical Associate in Psychiatry Partner/Manager
Duke University School of Medicine Isaac Ray Forensic Group
Assistant Chief Chicago, IL
Forensic Psychiatry Service James B. Buck JD
Dorothea Dix Hospital Partner
Raleigh, NC McCrea & Buck LLC
George Bartzokis MD Denver, CO
Visiting Professor of Neurology Norman L. Cantor JD
University of California, Los Angeles Professor of Law
Psychiatry Service Rutgers University School of Law
Department of Veterans Affairs, Greater Los Angeles Newark, NJ
Healthcare System
Carol Caplan MS RN CS
Los Angeles, CA
Whiting Forensic Institute
Mace Beckson MD Middletown, CT
Associate Clinical Professor J. Richard Ciccone MD
Department of Psychiatry and Biobehavioral Sciences Professor of Psychiatry
University of California, Los Angeles Director, Psychiatry and Law Program
Medical Director University of Rochester School of Medicine and Dentistry
Psychiatric Intensive Care Unit Rochester, NY
xviii List of contributors

Steven J. Ciric MD Thomas Garrick MD

Clinical Instructor Chief of General Hospital Psychiatry
Department of Psychiatry VA Greater Los Angeles Healthcare System
New York University School of Medicine Professor of Psychiatry
New York, NY University of California, Los Angeles
Los Angeles, CA
Stephen Dilts MD PhD
Medical Director Emeritus Jeffrey L. Geller MD MPH
Colorado Physician Health Program Professor of Psychiatry and Director of Public Sector
Clinical Professor of Psychiatry Psychiatry
University of Colorado Medical School University of Massachusetts Medical School
Morrison, CO Worcester, MA

Joel A. Dvoskin PhD Robert H. Gerner MD

Clinical Assistant Professor Department of Psychiatry
Department of Psychiatry Greater Los Angeles VA
The University of Arizona Health Sciences Center Associate Research Psychiatrist
Tucson, AZ University of California, Los Angeles
Los Angeles, CA
Susan B. Egan JD
Egan Law Firm Richard J. Gersh MD
New York, NY Saint Vincent Catholic Medical Center
Harrison, NY
Shashi Elangovan MD
Clinical Assistant Professor of Psychiatry Liza H. Gold MD
New York Medical College Clinical Assistant Professor
Valhalla, NY Department of Psychiatry
Georgetown University School of Medicine
Medical Director, Children Services
Washington, DC
South Beach Psychiatric Center
Staten Island, NY Robert Lloyd Goldstein MD JD
Clinical Professor of Psychiatry
Spencer Eth MD
Department of Psychiatry
Professor of Psychiatry College of Physicians and Surgeons of Columbia University
Saint Vincent Catholic Medical Center New York, NY
New York Medical College
Valhalla, NY Diane Graves-Oliver PhD
Assistant Professor of Psychology
Alan R. Felthous MD University of North Texas
Professor of Clinical Psychiatry Denton, TX
Southern Illinois University School of Medicine
Bruce H. Gross JD PhD
Professor of Law Associate Professor of Psychiatry, Medicine, and Pathology
Southern Illinois University School of Law Institute of Psychiatry, Law and Behavioral Science
Medical Director Keck School of Medicine
Chester Mental Health Center University of Southern California
Chester, IL Los Angeles, CA

Lisa R. Fortuna MD MPH Abraham L. Halpern MD

Research and Clinical Fellow Professor Emeritus of Psychiatry
Harvard Medical School New York Medical College
Department of Pediatrics and Psychiatry Valhalla, NY
Massachusetts General Hospital for Children Ronnie B. Harmon MA MPhil
Center for Child and Adolescent Health Policy Associate Director
Boston, MA Forensic Psychiatry Clinic
Bellevue Hospital Center
Alfred M. Freedman MD
New York, NY
Professor and Chairman Emeritus
Department of Psychiatry Victoria L. Harris MD MPH
New York Medical College Assistant Professor
Valhalla, NY Department of Psychiatry
 List of contributors xix

University of Washington Patricia Kirkish PhD

Seattle, WA Clinical Assistant Professor
Keck School of Medicine
Phyllis Harrison-Ross MD
University of Southern California
Emerita Professor of Psychiatry and Behavioral Health
Los Angeles, CA
Sciences
New York Medical College Stuart B. Kleinman MD
Valhalla, NY Assistant Clinical Professor
Member, Medical Review Board Department of Psychiatry
New York State Commission of Correction Columbia University College of Physicians and Surgeons
Albany, NY New York, NY

Michael Heinlen JD Richard B. Krueger MD

Thompson & Knight Medical Director
Dallas, TX Sexual Behavior Clinic
New York State Psychiatric Institute
James W. Hicks MD
Clinical Assistant Professor Associate Clinical Professor of Psychology in Psychiatry
Department of Psychiatry Department of Psychiatry
New York University School of Medicine Columbia University College of Physicians and
Surgeons
Director of Psychiatry
New York, NY
Kirby Forensic Psychiatric Center
New York, NY Gerald Landsberg DSW MPA
New York University
Charles H. Hinkin PhD ABPP
Shirley M. Ehrenkranz School of Social Work
Associate Professor
Director of the Institute Against Violence
Department of Psychiatry and Biobehavioral Sciences
New York, NY
University of California, Los Angeles School of Medicine
Director James E. Lawrence MA
Neuropsychology Assessment Laboratory Director of Operations
VA Greater Los Angeles Healthcare System New York State Commission of Correction
Los Angeles, CA Albany, NY

Steven K. Hoge MD Gregory B. Leong MD

Manakin, VA Clinical Professor
Department of Psychiatry and Behavioral Sciences
Claudia Kachigian MD JD
University of Washington School of Medicine
Assistant Professor of Clinical Psychiatry
Seattle, WA
Southern Illinois University School of Medicine
Staff Psychiatrist
Medical Director
Center for Forensic Services
Alton Mental Health Center
Western State Hospital
Alton, IL
Tacoma, WA
Jay E. Kantor PhD
Roy H. Lubit MD PhD
Adjunct Associate Professor
Assistant Attending Psychiatrist
Department of Psychiatry
Saint Vincent Catholic Medical Center
New York University School of Medicine
New York Medical College
Adjunct Associate Professor Valhalla, NY
Philosophy
Long Island University David M. Mack JD MPH
New York, NY Attorney at Law
Cummings & Lockwood LLC
Meg S. Kaplan PhD
Health Law Group
Director
Hartford, CT
Sexual Behavior Clinic
New York State Psychiatric Institute Gary J. Maier MD FRCP(C)
Associate Clinical Professor of Psychology in Psychiatry Staff Psychiatrist
Department of Psychiatry Mendota Mental Health Institute
Columbia University College of Physicians and Surgeons Clinical Assistant Professor
New York, NY Department of Psychiatry
xx List of contributors

University of Wisconsin Howard Owens MD

Madison, WI Assistant Medical Director
Associate Clinical Professor The Forensic Psychiatry Clinic
Medical College of Wisconsin Bellevue Hospital Center
Milwaukee, WI Clinical Associate Professor
Department of Psychiatry
Daniel A. Martell PhD
New York University School of Medicine
Clinical Assistant Professor
New York, NY
Department of Psychiatry and Biobehavioral Sciences
Neuropsychiatric Institute Michael L. Perlin JD
University of California, Los Angeles School of Professor of Law
Medicine New York Law School
Los Angeles, CA New York, NY
Park Dietz & Associates, Inc. Robert T.M. Phillips MD PhD
Newport Beach, CA Adjunct Associate Professor of Psychiatry
Jeffrey L. Metzner MD University of Maryland Schools of Medicine and Law
Clinical Professor Baltimore, MD
Department of Psychiatry Psychiatric Consultant
University of Colorado Health Sciences Center Protective Intelligence Division
Denver, CO United States Secret Service
Washington, DC
Robert D. Miller MD PhD
Professor of Psychiatry Debra A. Pinals MD
Director, Program for Forensic Psychiatry Director, Forensic Psychiatry Fellowship and Forensic
Colorado Health Sciences Center Evaluation Services
Denver, CO Assistant Professor of Psychiatry
Director of Research and Education Department of Psychiatry
Institute for Forensic Psychiatry University of Massachusetts Medical School
Colorado Mental Health Institute at Pueblo Worcester, MA
Pueblo, CO Steven E. Pitt DO
Adjunct Professor of Law Clinical Associate Professor of Psychiatry
University of Denver College of Law University of Arizona Health Sciences Center
Denver, CO Tucson, AZ
Pamela Morschauser MSW CSW Rodrigo Pizarro MD
Local Forensic Projects Coordinator for the NYSOMH Assistant Clinical Professor of Psychiatry
Ulster County Mental Health Services Columbia University
Kingston, NY New York, NY
Mohan Nair MD Marvin Prosono PhD
Assistant Clinical Professor Professor
Department of Psychiatry Department of Sociology and Anthropology
University of California, Los Angeles Southwest Missouri State University
Los Alamitos, CA Springfield, MO
Katherine Oberlies O’Leary JD Stephen Rachlin MD
Attorney at Law Attending Psychiatrist
Fairfield, CT The Stamford Hospital
Stamford, CT
Candice A. Osborn MA LPC
Director Andrew J. Rader Esq
Sex Offender Service Bunnell, Woulfe, Kirschbaum, Keller, McIntyre &
Behavioral Medicine Institute of Atlanta Gregoire, PA
Atlanta, GA Boca Raton, FL
Roy J. O’Shaughnessy MD FRCP Rusty Reeves MD
Clinical Director Assistant Professor of Psychiatry
Youth Forensic Psychiatric Services New Jersey Medical School
Province of British Columbia University of Medicine and Dentistry of New Jersey
Vancouver, BC, Canada Newark, NJ
 List of contributors xxi

William H. Reid MD MPH Robert L. Sadoff MD

Clinical Professor of Psychiatry Clinical Professor of Psychiatry
University of Texas Health Science Center University of Pennsylvania
San Antonio, TX Philadelphia, PA
Adjunct Professor of Psychiatry
Douglas A. Sargent MD JD
Texas A&M College of Medicine
Birmingham, AL
Temple, TX
Adjunct Professor of Psychiatry Harold I. Schwartz MD
Texas Tech Medical School Psychiatrist-in-Chief and Vice President
Lubbock, TX Institute of Living/Hartford Hospital
Hartford, CT
Phillip J. Resnick MD
Professor of Psychiatry Associate Professor of Psychiatry
Case Western Reserve University University of Connecticut School of Medicine
Cleveland, OH Farmington, CT

A. Jocelyn Ritchie JD PhD Daniel W. Shuman JD

Research Assistant Professor Professor of Law
Department of Psychology Dedman School of Law
University of Nebraska, Lincoln Southern Methodist University
Lincoln, NE Dallas, TX
Clinical Instructor
J. Arturo Silva MD
Department of Psychiatry
Staff Psychiatrist
Yale University School of Medicine
National Center for Posttraumatic Stress Disorder
New Haven, CT
Palo Alto Veterans Health Care System
Richard Rogers PhD ABPP Palo Alto, CA
Professor of Psychology
University of North Texas Robert I. Simon MD
Denton, TX Clinical Professor of Psychiatry
Director, Program in Psychiatry and Law
Meryl B. Rome MD Georgetown University School of Medicine
Private Practice Bethesda, MD
Boca Raton, FL
Ralph Slovenko JD PhD
James E. Rosenberg MD
Professor of Law and Psychiatry
Assistant Clinical Professor of Psychiatry
Wayne State University Law School
University of California, Los Angeles School of Medicine
Detroit, MI
Los Angeles, CA
President David Spiegel MD
Forensic Neuropsychiatry Medical Group, Inc. Jack, Lulu and Sam Willson Professor
Encino, CA Associate Chair of Psychiatry and Behavioral Sciences
Stanford University School of Medicine
Richard Rosner MD
Stanford, CA
Director, Residency in Forensic Psychiatry
New York University Medical Center Erin M. Spiers MA
Clinical Professor Argosy University
Department of Psychiatry Phoenix, AZ
New York University School of Medicine
Daniel J. Sprehe MD
Medical Director
Tampa, FL
Forensic Psychiatry Clinic
Bellevue Hospital Center Shoba Sreenivasan PhD
New York, NY Clinical Professor
Maria S. Ruiz-Sweeney MD Keck School of Medicine
Forensic Psychiatric Fellow University of Southern California
Isaac Ray Center Director of Forensic Outreach Services
Rush Medical College VA Greater Los Angeles Healthcare System
Chicago, IL Los Angeles, CA
xxii List of contributors

Russell Stetler Douglas E. Tucker MD

Director of Investigation and Mitigation Associate Clinical Professor
Capital Defender Office Department of Psychiatry
New York, NY University of California, San Francisco School of Medicine
San Francisco, CA
Harvey M. Stone LLB
Partner Wilfred G. van Gorp PhD ABPP
Schlam Stone & Dolan Professor of Clinical Psychology
New York, NY Department of Psychiatry
College of Physicians and Surgeons
Chris E. Stout PsyD MBA
Columbia University
Chief of Psychological Services
New York, NY
Office of Mental Health
Illinois Department of Human Services Linda E. Weinberger PhD
Adjunct Associate Professor Professor of Clinical Psychiatry and the Behavioral
Department of Psychiatry and Behavioral Sciences Sciences
Northwestern University Medical School Institute of Psychiatry, Law and Behavioral Science
Chicago, IL Keck School of Medicine
University of Southern California
Robert Suddath MD Los Angeles, CA
Assistant Professor
Department of Psychiatry Robert Weinstock MD
University of California, Davis Clinical Professor of Psychiatry
Sacramento, CA Director, Forensic Psychiatry Fellowship Program
University of California, Los Angeles
Stephen P. Sullivan MD Los Angeles, CA
Clinical Assistant Professor
Department of Psychiatry Robert M. Wettstein MD
New York Medical College Clinical Professor
New York, NY Department of Psychiatry
University of Pittsburgh School of Medicine
Laurence R. Tancredi MD JD Pittsburgh, PA
Clinical Professor of Psychiatry
New York University School of Medicine Daniel Willick JD PhD
New York, NY Partner
Nossaman, Guthner, Knox & Elliot LLP
Kenneth Tardiff MD MPH Los Angeles, CA
Professor of Psychiatry and Professor of Public Health
Weill Medical College of Cornell University Peter M. Zeman MD
New York, NY President
Institute of Living Medical Group PC
Delany Thrasher PhD Hartford, CT
Postdoctoral Fellow, Neuropsychology
Department of Psychiatry and Biobehavioral Sciences Howard V. Zonana MD
University of California, Los Angeles School of Medicine Professor
Los Angeles, CA Department of Psychiatry
Yale University School of Medicine
David M. Treiman MD
Adjunct Clinical Professor
Newsome Chair in Epileptology
Yale Law School
Director, Epilepsy Center
New Haven, CT
Barrow Neurological Institute
Phoenix, AZ
 1
PART

History and practice of

forensic psychiatry

1 A conceptual framework for forensic psychiatry 3

Richard Rosner
2 Defining forensic psychiatry: roles and responsibilities 7
Robert Weinstock, Gregory B. Leong and J. Arturo Silva
3 History of forensic psychiatry 14
Marvin Prosono
4 Forensic psychiatric report writing 31
J. Arturo Silva, Robert Weinstock and Gregory B. Leong
5 Guidelines for courtroom testimony 37
Phillip J. Resnick
6 Practical issues in forensic psychiatric practice 45
Robert L. Sadoff
7 Education and training in forensic psychiatry 52
Rusty Reeves and Richard Rosner
8 Ethical guidelines 56
Robert Weinstock, Gregory B. Leong and J. Arturo Silva
9 Liability of the forensic psychiatrist 73
Daniel Willick, Robert Weinstock and Thomas Garrick
10 The death penalty 79
Gregory B. Leong, J. Arturo Silva and Robert Weinstock
11 Competence assessments 85
Robert Weinstock, Gregory B. Leong and J. Arturo Silva
12 Psychological autopsy 89
Tim E. Botello, Linda E. Weinberger and Bruce H. Gross
This page intentionally left blank

A conceptual framework for forensic psychiatry
RICHARD ROSNER
The second edition of this volume begins with a particu-
lar conceptual framework applicable to all problems in
the field. This framework is designed to organize the
extraordinarily wide range of factors that must be consid-
ered 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 (Joint Commit-
tee on Accreditation of Fellowships in Forensic Psychiatry
1982), they include:
• Civil forensic psychiatry including, at minimum, con-
servators and guardianships, child custody determin-
ations, parental competence, termination of parental
rights, child abuse, child neglect, psychiatric disability
determinations (e.g., for social security, workers’ com-
pensation, private insurance coverage), testamentary
capacity, psychiatric negligence and malpractice, per-
sonal 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 hospitaliza-
tion, confidentiality, right to treatment, right to refuse
treatment, informed consent, professional liability,
ethical guidelines.
Similar areas are included in the more recent require-
ments 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 single psychiatric-legal issue, there is a variety
of legal contexts in which the issue may occur. In the
1
United States, there are fifty state jurisdictions, plus the
District of Columbia, federal and military jurisdictions.
For each of those fifty-three jurisdictions, there is a sepa-
rate 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 focus-
ing 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 themselves 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 care-
giver of an infant child as it grows and develops to adult-
hood? In some instances, there is no one immediately
available to examine; for example, in determining the men-
tal 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 pres-
ent the practitioner’s psychiatric-legal opinion as the result
of a process of reasoned deliberation that is comprehen-
sible and convincing to the majority of rational legal deci-
sion 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 cer-
tainly 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
4 History and practice of forensic psychiatry
supported by scientific facts and statistical projections
might be what is expected. These more sophisticated facts
must themselves 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 organiza-
tion. 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 assess-
ment, 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 impres-
sion. 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 ration-
ally convincing psychiatric-legal opinion?
Among the virtues of a conceptual framework are that
it facilitates: (i) the approach to the forensic psychiatric task
to be accomplished; (ii) 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; (iii) the identification of areas that are
unclear (e.g., the precise legal criteria for the specific issue);
(iv) 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 (v) the
determination of what are the bases of disagreements
between different forensic psychiatrists (e.g., disagree-
ments 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 1982a, 1982b, 1982c, 1985,
1987, 1990). Suppose that a forensic psychiatrist is con-
tacted by an attorney and is asked to provide an evaluation
and report regarding a defendant. The forensic psych-
iatrist 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 evalu-
ation. Pursuing the wrong issue would waste time and
money and would jeopardize the outcome of the defend-
ant’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 cri-
teria that have been used at different times to make psy-
chiatric 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 revi-
sion (American Psychiatric Association 2000) and forth-
coming 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 suffer-
ing 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 stand-
ardization 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 deter-
mine 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. While it is uncommon for a forensic
psychiatrist to have to be concerned with which legal cri-
teria were used in the past, 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 them 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 cri-
teria for NGRI may only address whether or not the
defendant was able to appreciate the nature and quality of
his/her act, whereas in another jurisdiction that criteria
may be supplemented by whether or not the defendant
was able to conform his/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 adja-
cent 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 con-
taining the relevant psychiatric data. The forensic psych-
iatrist 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 defend-
ant’s mental state at the (not quite so past) time of his/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/her competence to
stand trial? Is it the defendant’s future mental state so as to
determine if he/she will be able to comply with the con-
ditions 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) know-
ledge of what he or she was doing and must have had (past)
knowledge that what he/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/her, and must have (present) knowledge of the
nature of the legal proceedings against them. 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 men-
tal capacities a person must have had (past), has (present),
or will need to have (future) to resolve the specific psychi-
atric legal issue. For NGRI, in some jurisdictions, the per-
son must have had the (past) capacity to conform his/her
conduct to the requirements of the law. For competence to
A conceptual framework for forensic psychiatry 5
stand trial, in some jurisdictions, the person must have the
(present) capacity to cooperate with an attorney in his/her
own defense. These criteria direct the forensic psychiatrist
to make specific inquiries regarding the defendant’s non-
informational mental abilities at the relevant time period.
The use of the forensic psychiatric conceptual frame-
work can assist the practitioner in locating potential weak-
nesses in the case they are developing. 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 exacti-
tude. 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 explain-
ing 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: (i) Humans are the only rational bipedal
animals; (ii) Socrates is a rational bipedal animal; (iii)
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 capacity to understand the nature of the court
proceedings against them, and the capacity to cooper-
ate with an attorney in their own defense.
2 John Doe has the capacity to understand the charges
against him, the capacity to understand the nature of
the court proceedings against him, and the capacity to
cooperate with his attorney in his own defense.
3 Therefore, John Doe is competent to stand trial.
Once the structure of the reasoning process is set forth,
it is relatively easy to apply in the formulation of any
psychiatric-legal opinion.
This structured reasoning process also reveals potential
sources of legal challenge during cross-examination. An
opposing attorney may challenge the truth of either of the
two major premises, or may challenge the validity of the
deductive inference. All premises may be challenged and
all deductive inferences may be challenged; the question
is whether or not such challenges will be successful. A
soundly reasoned opinion is more likely to be successfully
sustained than an opinion that is not based on sound
reasoning.
This review of the reasoning process that must sustain a
psychiatric-legal opinion demonstrates why it is so import-
ant to be certain of the specific legal criteria that determine
the issue. The first premise is the statement of the specific
legal criteria (i.e., the law or law-like proposition); the sec-
ond premise is the summation of the available information
6 History and practice of forensic psychiatry
that pertinently bears on the legal criteria (i.e., the factual
proposition). If the first premise is wrong – that is, if the
legal criteria used are incorrect – then the opinion is
unsupported logically. If the second premise is wrong –
that is, if the available data are not relevant to the legal
criteria – then the opinion is unsupported logically.
It is also possible that the two premises are correct and
the deductive inference is wrong. For example: (i) All
humans are rational bipedal animals; (ii) Socrates is a
rational bipedal animal; (iii) therefore, Socrates likes
chocolate.
A horrible example of such faulty deductive inference
making in forensic psychiatry might be:
1 Persons who are capable of understanding the charges
against them, capable of understanding the nature of
the court proceedings against them, and capable of
cooperating in their own defense are competent to
stand trial.
2 Richard Roe understands the charges against him,
understands the court proceedings against him, and
is able to cooperate in his own defense.
3 Therefore, Richard Roe was legally sane (and legally
responsible) at the time when he committed the offense.
The conceptual framework for forensic psychiatry will
assist a competent practitioner of forensic psychiatry in
the cogent organization and presentation of the rational
processes that are the foundation of his or her psychiatric-
legal opinion. Just as the conceptual framework used by
medical practitioners is not a guarantee that they will reach
the correct diagnoses, the conceptual framework used by
forensic psychiatrists is not a foolproof technique for
reaching psychiatric-legal opinions. Rather, each is a tool
for the organization of large quantities of complex data.
In skilled hands, a tool will produce quality goods; in
unskilled hands, a tool will produce shoddy results.
REFERENCES
American Psychiatric Association. 1952: Diagnostic and
Statistical Manual of Mental Disorders. 1st edition.
American Psychiatric Association. 1968: Diagnostic
and Statistical Manual of Mental Disorders.
2nd edition.
American Psychiatric Association. 1980: Diagnostic
and Statistical Manual of Mental Disorders. 3rd edition.
American Psychiatric Association. 1987: Diagnostic
and Statistical Manual of Mental Disorders.
3rd revised edition.
American Psychiatric Association. 1994: Diagnostic and
Statistical Manual of Mental Disorders. 4th edition.
American Psychiatric Association. 2000: Diagnostic and
Statistical Manual of Mental Disorders. 4th edition,
text revision.
Joint Committee on Accreditation of Fellowships in
Forensic Psychiatry. 1982. Standards for fellowship
programs in forensic psychiatry. Bulletin of the
American Academy of Psychiatry and the Law 10(4).
Rosner, R. 1982a: A conceptual model for forensic
psychiatry. In Rosner, R. (ed.), Critical Issues in
American Psychiatry and the Law. Springfield, IL:
Charles Thomas Company, 5–11.
Rosner, R. 1982b: Medical disability compensation:
a practicum. In Rosner, R. (ed.), Critical Issues in
American Psychiatry and the Law. Springfield, IL:
Charles Thomas Company, 71–81.
Rosner, R. 1982c: Misguided loyalty, therapeutic
grandiosity and scientific ignorance: limitations
on psychiatric contributions to family law and
juvenile justice. In Rosner, R. (ed.), Critical Issues
in American Psychiatry and the Law. Springfield, IL:
Charles Thomas Company, 161–70.
Rosner, R. 1985: Legal regulation of psychiatry and
forensic psychiatry: clarifying categories for
clinicians. In Rosner, R. (ed.), Critical Issues in
American Psychiatry and the Law, vol. 2. New York:
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Rosner, R. 1987: Psychiatric assessment of competence to
choose to die: proposed criteria. In Rosner, R. and
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 2
Defining forensic psychiatry: roles and
responsibilities

ROBERT WEINSTOCK, GREGORY B. LEONG AND J. ARTURO SILVA

Forensic psychiatry operates at the interface of two dis- should be practiced in accordance with guidelines
parate disciplines: law and psychiatry. Although most and ethical principles enunciated by the profession of
cases in forensic psychiatry practice engender no con- psychiatry.
flicts, functioning at the interface of these two disciplines
The definition expands on and replaces the definition
can lead to confusion and ethical dilemmas (see Chapter
promulgated by Pollack (1974) that ‘Forensic psychiatry
8). Forensic psychiatry is officially recognized by the
is limited to the application of psychiatry to evaluations
American Board of Medical Specialties as a subspecialty
for legal purposes. Psychiatric evaluation of the patient is
of psychiatry. Definitions of forensic psychiatry serve to
directed primarily to legal issues in which he is involved,
clarify and delineate roles and boundaries.
and consultation is concerned primarily with the ends
Appelbaum (1997) bases the ethics of forensic psych-
of the legal system, justice, rather than the therapeutic
iatry on the principles of truth telling, respect for persons,
objectives of the medical system.’
and justice. Griffith (1998) proposes a narrative approach
Pollack distinguished forensic psychiatry from the
that takes the power differential into account and exam-
broader category of psychiatry and law that he ‘con-
ines the narrative of individuals of the non-dominant
sidered the broad, general field in which psychiatric the-
culture. Candilis et al. (2001) integrates these approaches
ories, concepts, principles, and practice are applied to any
with a robust conception of professional integrity. He
and all legal matters’ (Pollack 1974). According to him,
favors principles infused with the historical narrative of
this category includes both forensic psychiatry and com-
medicine as a healing profession that includes traditional
munity psychiatry. Although concerned with legal issues
medical values and an individual’s personal narrative.
or legal patients, community psychiatric involvements in
Appelbaum (1997), Candilis and co-workers (2001), and
his opinion ‘lean toward the traditional ends of psych-
Weinstock (2001) each consider the need to balance con-
iatry, that is, toward healing or otherwise helping the
flicting responsibilities. In the forensic context, Weinstock
patient.’ Similar distinctions have been made between
agrees the duty to the legal system is primary, but that it
forensic psychiatry and the legal regulation of psychiatry
needs to be balanced by a secondary duty to the evaluee
(Rosner 1985). Rosner believes that forensic psychiatrists
that in some situations can become the dominant con-
function outside of their role as physicians, and that it is
sideration. Such a circumstance could require a forensic
ethical so long as they make it clear to others that they are
psychiatrist to withdraw from a case if ethical concerns
not the evaluee’s personal physician. He makes an ana-
preclude a search for truth. These issues are discussed
logy between the forensic psychiatric role and the psych-
further in Chapter 8.
iatrist bargaining with a car dealer, without considering
The following is the definition of forensic psychiatry
the salesperson’s interests.
adopted by the American Academy of Psychiatry and
However it can be argued that, in contrast to buying a
the Law (AAPL) as expressed in its ethical guidelines
car, the forensic psychiatrist in his or her professional role
(originally developed by the former American Board of
is hired specifically because of being a psychiatrist, and
Forensic Psychiatry (ABFP). The definition states that:
therefore can be seen as retaining his or her professional
Forensic psychiatry is a subspecialty of psychiatry in responsibilities (Foot 1990). He is also clearly using psy-
which scientific and clinical expertise is applied to chiatric and medical skills in his conduct of a forensic
legal issues in legal contexts embracing civil, criminal, psychiatric evaluation. Candilis and co-workers (2001)
correctional or legislative matters; forensic psychiatry believe that society expects some retention of medical
8 History and practice of forensic psychiatry
values when physicians participate in the legal system.
Diamond (1992) also thought that forensic psychiatrists
should not blindly accept all legal ends in their profes-
sional role. He believed that the forensic psychiatrist has a
fiducial responsibility to the legal system. In his opinion –
much like a psychiatrist owes a fiduciary responsibility to
a patient to do only that which he or she believes in their
professional judgment is best, rather than merely doing
what the patient demands – the relationship between
psychiatry and the law should also be fiduciary. According
to Diamond (1992),‘the psychiatrist is no mere technician
to be used by the law as the law sees fit, nor is the science,
art, and definitions of psychiatry and psychology to be
redefined and manipulated by the law as it wishes.’ In his
opinion, the psychiatric expert should not merely deliver
information regardless of any negative consequences.
Surveys of forensic psychiatrists suggest that most find
traditional medical ethics relevant to their functioning
as forensic psychiatrists (Weinstock et al. 1990; Weinstock
et al. 1991). Additionally, the recognition of forensic
psychiatry as a subspecialty and the decision by organized
forensic psychiatry to have the American Psychiatric
Association (APA) enforce ethical conduct in forensic
psychiatry under their framework are most consistent
with seeing medical ethics and goals as relevant. The
AAPL is in the process of revising its ethical guidelines to
make them consistent with the American Medical
Association’s recently revised medical ethics principles.
However, the ethical debates about the proper roles and
responsibilities of forensic psychiatrists continue.
The current AAPL definition of forensic psychiatry, as
explicated in its ethical guidelines, does not take a pos-
ition on the proper goals and values of forensic psych-
iatry. Diamond and Pollack will be contrasted in this
chapter, since both were highly respected contemporaries
who wrote extensively on this continuing debate. These
issues have been a matter of contention for a long time,
and are reflected in the contrasting views of these two
men. Both Diamond and Pollack agreed that forensic
psychiatry applies psychiatric theories and practices to
people and their legal issues for legal purposes. However,
they differed insofar as Pollack believed the ends are legal
ends. Diamond believed forensic psychiatrists should
retain their medical and psychiatric ends in the forensic
role and work towards making the legal system more
therapeutic and less vengeful. This concept has a legal
parallel in the concept of therapeutic jurisprudence
(Stolle et al. 2000).
The definition lists the differing contexts and func-
tions of a forensic psychiatrist. The emphasis is on the
legal context of forensic psychiatric practice. However,
forensic psychiatry has generally come to include and
encompass all the issues and functions at the interface of
psychiatry and law, including the legal contexts surround-
ing psychiatric practice, as demonstrated by this text-
book. There still are some forensic psychiatrists, however,
who believe the two functions should be separated.
Lastly, the definition does clarify that the ethics of
forensic psychiatry are to be determined by guidelines
and ethical principles enunciated by the profession of
psychiatry. It thus is clear that it is not the province of
lawyers or courts to determine the guidelines and ethical
principles of how forensic psychiatry is to be practiced.
The courts can decide what is legal, but not what is
professionally responsible or ethical for forensic psych-
iatry. Ethical guidelines and requirements can and do
sometimes exceed what the law requires. The psychiatric
profession can consider unethical, and provide sanc-
tions for, behavior the courts consider permissible (see
Chapter 8).
Definitions, of course, do not themselves settle con-
flicts or differences of opinion, but can represent arbitrary
distinctions or merely wishes or preferences for how a
specific forensic psychiatrist wishes to function. Despite
Pollack’s philosophy, he himself refused to participate in
capital cases after the Sirhan case (Curran and Pollack
1985). He apparently agreed with Diamond that forensic
psychiatrists should refuse to participate in cases in which
they do not agree with the legal system’s goals. However,
unlike Diamond, he believed he needed to be prepared
to support either side if he became involved in a case.
Diamond believed he needed to be prepared to support
only one side, though only if he could do so with total
honesty because total disclosure of the facts supported
his position. Unfortunately though, some forensic psych-
iatrists are not as open and honest as Pollack and Diamond.
They may intentionally be willing to create false impres-
sions and a few may even be willing to be ‘hired guns’
(Diamond 1990). They may give any opinion desired by
the hiring attorney and make the best case possible for
that opinion regardless of their true beliefs, or be so com-
mitted to a cause that they will misrepresent the data to
support their cause. This role may be appropriate for an
attorney, but not for an expert witness who – unlike an
attorney – takes an oath to tell the whole truth.
FORENSIC EVALUATIONS
It is essential for ethical reasons in any forensic psychiatric
interview to inform an evaluee of confidentiality limita-
tions, and for whom and what purpose the interview is
being conducted. This requirement differs from a clinical
evaluation performed for the patient’s benefit in which
confidentiality is expected and generally is maintained.
However, even in the clinical setting, confidentiality excep-
tions should be explained when they appear potentially
relevant (see Chapter 8). It is important to obtain corrob-
orating evidence. It is necessary to see the data obtained
by both the prosecutor and the defense in a criminal
case, examine police records, interview other persons
who might have relevant information, and review past
medical, social, and psychiatric records. In a civil case it

also is necessary to explore both sides and review relevant
documents.
Because of the legal purpose of the forensic interview,
an evaluee has rational reasons to malinger, and this possi-
bility must be checked by corroborating data (see Chapter
55). Such data also should be obtained not only in an
effort to be objective but also in order to be prepared for
cross-examination. A careful evaluation is necessary, and
an adequate evaluation requires time. Superficial evalu-
ations can miss pathology or contradictory data. Although
AAPL’s ethical guidelines (1995) eliminated the require-
ment of impartiality as impossible to achieve, they empha-
size the need to strive for objectivity. Striving for
objectivity includes the need to search for data that might
contradict the forensic psychiatrist’s initial opinion and/or
biases. ‘Honesty’ has been substituted for ‘impartiality’ in
AAPL’s ethical guidelines (see Chapter 8).
Diamond (1956) called attention to the fact that ser-
iously mentally disordered persons commonly deny their
illness. Simulation of sanity can be just as great a prob-
lem as the simulation of mental illness usually considered
in assessing malingering. Both may be missed in a superfi-
cial evaluation. An evaluee may have such a need to deny
mental illness or psychiatric symptomatology that denial
may occur even if it would be in a defendant’s legal self-
interest to do otherwise.
There is a clear risk in forensic psychiatry of confusing
professional expertise with biases about moral issues. To
quote Pollack (1974), ‘in forensic psychiatry, the expert
applies his material to social ends, all of which are intim-
ately related to moral values.’ Because psychiatric material
can be largely subjective, interwoven with social variables,
and influenced by a variety of cultural factors, what is
presented as psychiatric data and opinion may easily dis-
guise and conceal underlying value judgments.
ROLE OF THE FORENSIC PSYCHIATRIST
Pollack was a proponent of what possibly is the current
dominant approach to forensic psychiatry, at least in most
theoretical discussions. Diamond, however, was a propon-
ent of an alternative but equally legitimate approach that
may in reality informally be the dominant position of
forensic psychiatrists, at least as reflected in surveys
(Weinstock et al. 1991). Most forensic psychiatrists do not
see themselves as functioning totally outside of their med-
ical and psychiatric roles. They use their medical and
psychiatric skills and techniques in the forensic role. Unlike
their role in areas unrelated to their professional expertise
such as negotiating with a car dealer, forensic psychiatrists
are hired because of their professional skills and creden-
tials. They can be perceived as functioning in a medical
role despite any disclaimers and because they conduct a
psychiatric assessment. That is why sensitivity to slippage
is so important and why AAPL’s ethical guidelines require
Defining forensic psychiatry: roles and responsibilities 9
sensitivity to an evaluee perceiving the forensic psych-
iatrist in a therapeutic role. In his professional role, Pollack
believed that the forensic psychiatrist also should become
aware of social policy considerations. Diamond agreed
insofar as such responsibility includes making an effort to
become aware of relevant legal statutes and relevant court
decisions before offering an expert opinion as a forensic
psychiatrist.
Pollack wanted the forensic psychiatrist to ascertain
social policy considerations and try to determine the intent
of the courts and legislators. He made this attempt in the
common situations in which the legal criteria are unspeci-
fied, unclear, or ambiguous. In his opinion, the forensic
psychiatrist has an obligation to present and expose his or
her reasoning so that a trier of fact could understand the
basis for his/her opinion, detect any biases, and disagree if
necessary. Pollack would not try to expand or modify a
legal concept in his forensic psychiatric capacity. He would
try to overcome biases, including what he considered the
psychiatrist’s usual ‘therapeutic bias.’ He would attempt to
give an impartial objective opinion in his role as consult-
ant to the legal system (Pollack 1974) and not participate
in cases in which his bias was strong.
Although Diamond agreed that his reasoning should
be exposed, in contrast, he would interpret ambiguities
in the legal criteria to be consistent with the values of the
medical profession but would be totally honest about
doing so. Diamond, himself, was solely a defense psych-
iatrist in criminal cases. He would participate only in
cases in which an effort would be made by the defense
attorney to present the whole psychiatric truth. In most
cases, he would refuse to participate after being con-
sulted, because he did not think an honest opinion would
help the side that wanted to hire him, or he did not want
to be part of a legal strategy that would hide relevant
information. Although he wanted to help a defendant,
truth and honesty were even higher values.
Diamond interpreted legal ambiguities in a manner
consistent with his view of his fiduciary responsibility.
Although he had a bias in favor of a defendant’s welfare, he
accepted the biases of others who favor law and order and
the protection of society. However, in his opinion, honesty
was crucial. Although few forensic psychiatrists would go
so far as to never participate for the prosecution in any
criminal case, many forensic psychiatrists agree with other
aspects of Diamond’s approach or share his concerns about
facilitating a death penalty sentence (Weinstock et al. 1992).
Many care how their testimony will be used and the pos-
ition they would be willing to support in a death penalty
or other cases. Some have qualms about helping a killer
avoid punishment.
Diamond considered impartiality and objectivity
impossible (Diamond 1959), and thought that the honest
forensic psychiatrist should acknowledge the absence of
both. Even if a forensic psychiatrist started out truly
impartial, the need to defend his or her opinion and a wish
to have his/her team ‘win’ in the adversary battle turns him
10 History and practice of forensic psychiatry
or her into a biased adversary as the case proceeds. Even
though some commentators state the witness on the stand
must do his or her best to impartially preserve the truth
(Halleck et al. 1984), Diamond considered impartiality
impossible, even if the witness is totally truthful from a
subjective standpoint. The truth can have many alternative
perspectives. Katz (1992) recommends ‘disciplined subject-
ivity’ as a more realistic goal instead of impartiality or
objectivity. Even if the more scientific aspects of psychiatry
might be relatively objective, much of psychiatry is subject-
ive. The interpretation of the legal issue and the applica-
tion of psychiatric data to it are especially subjective.
Honesty in Diamond’s (1990) opinion is what separates
the honest advocate from a ‘hired gun.’ AAPL in its ethical
guidelines (1995) accepts the impossibility of impartiality,
but requires honesty and an effort to strive for objectivity.
Diamond was unashamedly biased, but honest.
Despite these considerations, forensic psychiatrists
frequently are asked to indicate how often they have testi-
fied for the different sides in a legal case. Federal courts
are now even requiring such disclosure. This record of
cases is requested to examine for bias in the forensic
expert. Developing a record of testifying for both sides is
often seen as demonstrating a lack of bias, but can be
irrelevant to honesty. Principled, though biased, profes-
sionals can be honest. The absence of bias based on prin-
ciple or values does not negate the ‘hired gun’ who makes
a record of testifying on both sides because he or she is
willing to testify for whichever side pays their fee regard-
less of their true opinion or the merits of the case. In real-
ity, honesty needs to be otherwise demonstrated. Claims
of impartiality can reflect dishonesty or lack of self-
insight. Diamond distinguished between the honest
advocate and ‘hired gun’ insofar as the ‘hired gun’ is dis-
honest (Diamond 1990). The U.S. Supreme Court in Ake
v. Oklahoma (1985) recognized bias and even advocacy
implicitly by stating that defendants in capital cases
needed an expert to help their side.
Many forensic psychiatrists in civil cases testify almost
always for the plaintiff or defense. Although most insur-
ance companies wish to have a truly independent medical
examiner to prevent their wasting money on indefensible
cases, that sometimes is not the case. Some forensic psych-
iatrists contend that a number of insurance companies do
not want forensic psychiatrists who ever testify for the
plaintiff ’s side. Some such forensic psychiatrists may be
‘hired guns.’ However, most who testify for only one side
in such cases probably choose a side most consonant with
their personality or biases, and are probably basically
honest. Testifying out of interest in the issues and not bias
should usually lead to some record of testifying for both
sides, even if not equally distributed. If doing work solely
for one side, the honest expert should find in many cases
that the facts do not support the side that retains them.
According to AAPL’s ethical guidelines (1995), bias is
accepted as inevitable, but it is only unethical if it leads to
dishonesty or to no effort to be objective.
Hopefully, forensic psychiatrists do not agree to make
the best case possible for the weaker side since honesty
would require stating in such cases that the facts support
the opposing side, and few attorneys would want an expert
to come up with such an opinion in a public forum.
Making the best case for a side regardless of stronger
contradictory facts is an approach that is appropriate and
ethical for attorneys. However, this is an essential differ-
ence that highlights the difference between the role of the
attorney and expert witnesses, and legal and forensic
psychiatric ethics. Unlike attorneys, an expert witness
takes an oath to ‘tell the whole truth.’ Legal ethics and what
is permissible legally cannot be sufficient. It is necessary
for experts to appreciate that their roles are different from
attorneys. It is ethical to highlight and emphasize the
strong parts of a case, though such emphasis should not
lead to distortion of the level of confidence in an opinion
or a denial of uncertainty despite pressures from attorneys
to appear certain. The acceptable dividing line, however,
sometimes can become unclear. The integrity of the expert
should prevent him or her from distorting a case in order
to please an attorney.
An example of differing approaches and biases is
shown in their contrasting interpretation by Pollack and
Diamond of the M’Naghten insanity defense in California
which, except for a brief period between 1978 to 1982, was
the insanity standard and is the current standard in most
states (see Part 3, ‘Forensic Evaluation and Treatment
in the Criminal Justice System’). Pollack’s interpretation
tended to favor the prosecution, while Diamond’s clearly
favored the defense. Pollack described social policy consid-
erations as requiring that ‘knowing’ the nature and quality
of the act in an insanity defense is broader than a simplis-
tic, atomistic, childish level of comprehension, but does
not encompass the maximum breadth, scope, and matur-
ity of fullest comprehension (Pollack 1974). Diamond,
in contrast, interpreted ‘know’ to mean appreciate, com-
prehend, or realize the act’s full meaning. Some jurisdic-
tions have adopted the word ‘appreciate’ instead of ‘know’
to indicate a broader view of the word ‘know.’ The APA
implicitly followed Diamond’s interpretation when subse-
quent to the Hinckley decision the APA favored a move
away from the American Law Institute (ALI) insanity
defense to what on the surface was a more stringent test.
The APA claimed that anyone found insane under the ALI
defense could be found insane under more stringent
defenses like M’Naghten. Some states have used the term
‘appreciate’ to indicate a broader interpretation of ‘know.’
However, the term ‘know’ itself lends itself to varying
interpretations.
Diamond opined that a literal interpretation of
M’Naghten would either encourage perjury or force the
psychiatrist to ‘become a puppet doctor, used by the law
to further the primitive and vengeful goals demanded of
our society.’ He thought that if a literal sense of ‘know’
is employed, ‘just about almost every defendant, no
matter how mentally ill, no matter how far advanced his

psychosis, knows the difference between right and wrong
in the literal sense’ and the psychiatrist becomes an expe-
ditor of the death penalty (Diamond 1961). Diamond
preferred not to resort to semantics and to an arbitrary
all-or-none insanity defense, but preferred to focus on
‘diminished capacity.’ Although this defense was officially
eliminated in California, it has surfaced in some other
states. A mens rea defense known as diminished actuality
still exists in California for certain crimes in which psy-
chiatric testimony is permitted as to whether the defend-
ant actually had formed the requisite intent, although
the psychiatric expert is proscribed from expressing an
opinion on the ultimate issue itself. The most significant
change was the abolition of the expanded definitions of
malice and premeditation that Diamond helped the
California courts develop by presenting facts that made
the older definitions seem inappropriate.
It is important in forensic psychiatry to give explan-
ations for an opinion and not just conclusory statements.
Opinions and expertise in psychiatric diagnosis should
not be confused with expertise regarding the application
of psychiatry to legal issues. Expertise in the former does
not ensure expertise in the latter, especially if a psych-
iatrist has not had specialized training in forensic psych-
iatry or has not demonstrated expertise by passing a
certifying examination. The interpretation of the legal
issue itself, moreover, can be subject to varying interpre-
tations as shown by the varying yet honest approaches of
both Pollack and Diamond. It is misleading in many cases
to claim that there is only one right way to interpret legal
criteria. Not distinguishing the difference between psych-
iatric and legal facets can disguise a moral judgment as pro-
fessional medical and psychiatric expertise. Pollack tried
to interpret the relevant legal issue consistent with prece-
dent setting interpretations. Diamond tried to expand the
law by presenting facts that might show existing inter-
pretations of the legal criteria inappropriate.
Most attorneys and forensic psychiatrists consider it
the responsibility of the forensic psychiatrist to put a ‘spin’
on the data and highlight and emphasize facts favorable
to their side and de-emphasize or even ignore data that are
not. Although some such advocacy is probably inevitable,
it is important not to so distort the data that the testi-
mony approaches the level of a ‘hired gun.’ Many forensic
psychiatrists leave all contradictory information for cross-
examination. However, in the absence of a good cross-
examination, the ‘whole truth’ may never be revealed.
Some have questioned the propriety of psychiatrists
expressing opinions on ultimate legal issues. Although
both Pollack and Diamond believed that forensic psych-
iatric expertise should include the ability to express an
opinion on ultimate legal issues, some commentators
(Katz 1992) advocate that psychiatrists should avoid
expressing an opinion on the ultimate legal issue. This is
a minority position in forensic psychiatry at the present
time, but has been adopted by the law for certain legal
issues in some jurisdictions.
Defining forensic psychiatry: roles and responsibilities 11
RESPONSIBILITIES OF THE FORENSIC
PSYCHIATRIST
Controversy exists regarding to whom the forensic psych-
iatrist owes a duty. This problem in part is due to the fact
that a traditional doctor–patient relationship does not
apply. Stone (1992) believes that psychiatry enters an
ethical morass when it leaves the clinical situation, such
as in managed care or in forensic psychiatry. Accord-
ing to Appelbaum (1990, 1997), forensic psychiatrists
lose the primacy of the duties of beneficence and non-
maleficence owed by treating physicians to their patients.
Instead, the duties of truth and respect for persons, and
the goal of justice achieve primacy in the legal system.
Stone (1984) does not believe that ‘truth’ solves forensic
psychiatry’s problems such as the good clinician seduc-
ing a patient into false trust. Surveys of forensic psych-
iatrists indicate that an overwhelming majority still
believe that traditional medical values play a role in the
functioning of forensic psychiatrists (Weinstock et al.
1991). Despite the survey findings, controversy exists in the
profession regarding this issue (Weinstock et al. 1990). In
modern times, even treating psychiatrists owe a responsi-
bility to society as well as to the patient, for example with
child abuse reporting. It probably is most consistent with
survey results and is reasonable to view the forensic psy-
chiatrist like the treating psychiatrist as having multiple
agency responsibilities such as to the courts, society, the
attorney who retained him or her, and the evaluee,
regardless of who requests the psychiatric consultation.
The difference is probably best characterized as a differ-
ence in priority or primacy, with the forensic psych-
iatrist, unlike the treating psychiatrist, giving primacy
to legal questions and specific forensic duties like truth,
respect for persons and primacy (Appelbaum 1997).
However, secondary medical responsibilities remain.
These in some instances can be so important that they
can become determinative of ethical action (Candilis
et al. 2001; Weinstock 2001). In some death penalty
roles, the conflict most appropriately may require non-
participation.
Although controversy still exists, survey results best
support a position of multiple agency and multiple
responsibility for a forensic psychiatrist. Even though
many forensic psychiatrists believe they owe a duty and
responsibility only to the person who pays their fee so long
as they make their role and allegiances clear at least once to
an evaluee, survey results imply that this position may
actually be a minority one among forensic psychiatrists.
Moreover, slippage of a warning may occur if the forensic
psychiatrist is a good clinician who inspires trust. Although
frequently claimed, it is unclear why a forensic psychiatrist
should owe a duty solely to the person paying the fee when
even treating psychiatrists are unable to have the luxury
of such simple single allegiances. Multiple responsibilities
have become a part of all psychiatric practice.
12 History and practice of forensic psychiatry
Other issues regarding the responsibilities of the
forensic psychiatrist are discussed in Chapter 8. However,
it is important in fairness not to hold the profession of
forensic psychiatry responsible for unpopular legal deci-
sions that may result from many factors. Sometimes the
decisions may be unpopular but valid, or the judicial sys-
tem may limit the evidence an expert is permitted to
introduce. Unpopular insanity acquittals have led to
changes in the law and illegitimate bad press for forensic
psychiatry. Sometimes forensic psychiatrists unfairly are
blamed for problems presented by the adversary legal sys-
tem and for the ‘battle of experts.’ Psychiatrists have legit-
imate differences of opinion. The ‘battle of experts’ exists
for all expert witnesses in all disciplines, and is by no
means unique to forensic psychiatry. Sometimes there is
a risk of blaming the entire profession of forensic psych-
iatry when the public dislikes a decision or the testimony
of a particular expert, and newspapers and politicians use
such dissension for personal advantage. However, foren-
sic psychiatry does have a responsibility to police itself
and not rely on others to do it (Appelbaum 1990).
Stone (1984) expressed concern about the jury’s con-
fusion caused by a psychiatrist taking an oath to tell the
whole truth, yet in reality being expected to make the best
case possible for his or her side. He proposes that psych-
iatrists be introduced in court as partisans, similar to
attorneys who take no oath. Stone argues that the ration-
alization that cross-examination will bring out the whole
truth is self-deceptive, since such cross-examinations may
never occur (e.g., pre-trial settlement of the case). He is
skeptical that forensic psychiatrists really tell the whole
truth. Stone advocates honesty about what really is occur-
ring. However, his criticisms apply to all expert witnesses
and even the adversary system itself, and his recommen-
dations show no sign of being adopted by the professions.
Also controversial is the degree of the psychiatrist’s obli-
gation to clarify limits of his or her opinion (aside from
any possible tactical advantage in doing so) or whether
such clarification can be rationalized as left for cross-
examination that may not occur or be done well. Katz
(1992) considers acknowledgment of uncertainty as a
crucial responsibility of the forensic psychiatrist.
PRESENT STATUS OF FORENSIC PSYCHIATRY
Although controversy exists regarding some aspects of the
proper role and responsibilities for forensic psychiatrists,
many issues have found a general consensus in defin-
itions and ethical guidelines. Forensic psychiatry has
been accepted as an official medical subspecialty by the
American Board of Medical Specialties. Forensic psych-
iatry fellowships have been developed to teach the special
knowledge necessary to apply psychiatry to legal issues.
General residency training in psychiatry even supple-
mented with formal legal education is insufficient, since
law schools do not emphasize psychiatric issues or their
application to the law. Specialized training is needed in
forensic psychiatry covering a rapidly growing special
body of knowledge.
Forensic psychiatry is a large subspecialty, as evi-
denced by this textbook. The vastness of the knowledge
base – both clinical and legal – creates challenges for the
forensic psychiatrist to act responsibly. Careful evalua-
tion of the relevant data is important considering the
serious implications to the individuals involved. A
healthy skepticism regarding all the data supplied by
both sides is necessary. Claims of expertise in areas where
the psychiatrist does not have special knowledge or train-
ing and offering psychiatric-legal opinions on legal issues
without trying to ascertain the jurisdictional legal cri-
teria are two prime examples of irresponsible professional
behavior. It is therefore incumbent on forensic psych-
iatrists to be informed about psychiatry, law, and ethics,
in order to appropriately fulfil their professional roles
and responsibilities.
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Stolle, D.P., Winnick, B., Wexler, D.B. 2000: Practicing
Therapeutic Jurisprudence. Durham, North Carolina:
Carolina Academic Press.
Defining forensic psychiatry: roles and responsibilities 13
Stone, A.A. 1984: The ethics of forensic psychiatry:
a view from the ivory tower. In Stone, A.A. (ed.), Law,
Psychiatry and Morality. Washington, DC: American
Psychiatric Press.
Stone, A.A. 1992. Paper presented as part of a panel
on controversial ethical issues in forensic
psychiatry, 23rd Annual Meeting of the American
Academy of Psychiatry and the Law, Boston,
October 16, 1992.
Weinstock, R. 2001. Commentary: a broadened conception
of forensic psychiatric ethics. Journal of the American
Academy of Psychiatry and the Law 29, 180–5.
Weinstock, R., Leong, G.B., Silva, J.A. 1990: The role of
traditional medical ethics in forensic psychiatry. In
Rosner, R., Weinstock, R. (eds), Ethical Practice in
Psychiatry and the Law. New York: Plenum Press,
31–51.
Weinstock, R., Leong, G.B., Silva, J.A. 1991. Opinions
by AAPL forensic psychiatrists on controversial
ethical guidelines: a survey. Bulletin of the American
Academy of Psychiatry and the Law 19, 237–48;
erratum 19, 393.
Weinstock, R., Leong, G.B., Silva, J.A. 1992. The death
penalty and Bernard Diamond’s approach to forensic
psychiatry. Bulletin of the American Academy of
Psychiatry and the Law 20, 197–210.

History of forensic psychiatry
MARVIN PROSONO
The formal recognition of forensic psychiatry as a
medical subspecialty places heavy demands on historical
construction. It is not sufficient to engage the history
of forensic psychiatry simply as a subtext of the greater his-
tory of psychiatry. This approach has been taken by most
of the standard histories of psychiatry (Alexander and
Selesnick 1966; Zilboorg 1967; Ackerknecht 1968), which
either portray psychiatry as foreordained by the inevitable
march of science or as crusading against the inertia of
entrenched superstition and ignorance (see also Mora
1970 and Mora and Brand 1970). Medical specialties have
generally evolved along with the development of the nat-
ural sciences, although psychiatry has not precisely followed
this path; thus, ‘… the development of psychiatry has been
more difficult to delineate’ (Marx 1970, p. 595).
The history of forensic psychiatry must be given sep-
arate attention and traced directly through the emergence
of psychiatric discourse and practice, as those have inter-
sected with legal necessities within the greater context
of the rise of civilization. This chapter follows the history
of that intersection through the ancient, medieval, and
modern periods after first considering the nature of the
complex intellectual problems involved in constructing
such a history.
Drawing a boundary around the activity of forensic
psychiatrists is problematic, since all psychiatric activity
may contain an element of ‘forensicity.’1 It is an even
greater challenge to trace back the activities preceding
those now systematically performed by forensic psych-
iatrists. Psychiatry as a medical specialty did not exist much
before the late eighteenth or early nineteenth century,
and the widespread employment of physician/experts in
courts of law in the West does not have a pedigree that is
much older. Foucault (1972, p. 179) has commented that
what preceded psychiatry could not be characterized as
1
‘In an era in which virtually every psychiatrist must take cognizance
of certain medico-legal principles, an argument could be made that
“ forensicity” is a continuous variable distributed unevenly over the
entire population of psychiatrists’ (Dietz 1978, p. 13).
3
a discipline but rather was a ‘discursive practice’ which
consisted of a commentary on various physical and men-
tal afflictions as understood at the time.
In sociological terms, the forensic psychiatrist is a
medical professional called upon to participate in the
establishment of legal decisions (particularly those deci-
sions affecting the status of persons), further validating
the decision-making process with their scientific and
professional credentials. The task of the social historian
is to construct an account of this form of social action
and the concerns that gave rise to it; however, there are
a number of technical obstacles that preclude any per-
fect reconstruction of the past (Mead 1980). Continu-
ities, discontinuities, appearances, disappearances and
reappearances, things maintained, modified, or aban-
doned (Foucault 1972) characterize a ‘discursive practice’
such as that of forensic psychiatry and its predecessors in
social action.
Two concerns are implicitly embedded in this history.
First, there are the ancient and enduring problems of
human motivation and intention. All legal systems have
had to grapple with the problem of deciding competency
and accountability. Second, in order to decide such
questions there must be decision-makers. In courts of
law, judges and juries are the ultimate decision-makers:
judges deciding questions of law; juries, in the Anglo-
American system of jurisprudence, deciding questions of
fact. Matters of insanity or incompetence have routinely
been described as questions of fact with decision-makers
assisted, especially in modern contexts, by a highly pro-
fessionalized group of experts. The history of forensic
psychiatry is, in effect, the history of the intersection of
the enduring legal and social problems of establishing
competency and imputing responsibility and both the
professionalization of medicine and the specialization of
psychiatry.2
2
The important dates and events in the evolution of forensic
psychiatry are summarized in Appendix 3.1.

ANCIENT PERIOD
Imhotep (ca. 3000 BC), who was grand vizier and chief
architect to the Egyptian Pharaoh Zoser, was ‘the first
great man combining the sciences of law and medicine;
he might, if you wish, be described as the first medico-
legal expert’ (Smith 1951, p. 600). In Imhotep, we find
the undifferentiated roles of priest/physician/statesman/
architect, although we should be wary about placing too
much credence in the accomplishments of a figure who
may be entirely a myth.
According to some authorities, ancient Babylonia pro-
vides us with evidence of the first murder trial and the
first expert witness, in that case a midwife (Smith 1951,
p. 600; Ackerknecht 1976, p. 1225). One of the first
instances of the consideration of intent in the weighing
of personal responsibility is found in the scriptures of the
ancient Hebrews.3 Deuteronomy 19:1–13 describes the
logic for establishing ‘refuge cities’ in which someone
who had killed through sheer accident would be safe
from capture by avenging relatives. The ancient Hebrew
law understood the status of an act as determined by the
intent of the actor. Thus, the notion of an evil mind
entered into Western law (Platt and Diamond 1966). The
importance of intention for judging human action was
already evident in the Babylonian legal system as set
forth in the Code of Hammurabi, although this system of
law was terribly harsh, almost always meting out death
for infractions of law. Such an approach can be found in
much primitive law wherein no qualification is made for
the intention of actors. Kelsen (1946, p. 65) has termed
this ‘absolute responsibility (liability).’
The ancient Greeks left the resolution of many con-
flicts to so-called ‘private law,’ meaning that the parties
to a dispute would be left to decide it among themselves.
There was little need or opportunity for the rendering of
expert or forensic opinion other than isolated instances
such as a physician substantiating the pre-existence of
a defect in a slave who had been sold. When questions
of mental competence arose, there is no evidence that
physicians were used as experts among the Greeks in any
modern sense (Rosen 1968, p. 136; see also Amundsen
and Ferngren 1977).
The Greek philosopher Plato saw the human soul as
divided between the rational and irrational, the rational
soul distinguishing human beings from lower or ani-
mal nature (Zilboorg 1967, p. 52). Because human beings
are free to choose, more severe punishments should be
imposed for those ‘harms committed with some degree
3
Platt and Diamond (1966, p. 1227, et seq.) trace the ‘modern law
of criminal responsibility’ to the conflicting meanings given to the
phrase ‘knowledge of good and evil,’ which figures in the Book of
Genesis and the story of Adam and Eve and the forbidden fruit. The
phrase ‘knowledge of good and evil’ has been interpreted to mean
perfect wisdom as well as moral capacity, and the ensuing confusion
has been preserved, according to these authors, in modern law.
History of forensic psychiatry 15
of calculation’ (Platt and Diamond 1966, p. 1229). Plato’s
great disciple, Aristotle, recognized the importance of
knowledge in the imputation of responsibility: ‘A person
is morally responsible if, with knowledge of the circum-
stances and in the absence of external compulsion, he
deliberately chooses to commit a specific act’ (cited in
Platt and Diamond 1966, p. 1229).
These early approaches have had a significant impact
on all subsequent discussions of the problem of respon-
sibility. They presage the tension among: those who would
excuse the insane from responsibility for criminal acts
only when there is evidence of a total loss of reason (pos-
sibly analogous to the behavior of a ‘wild beast’); those
who would allow such excuse when the only apparent
mental impairment is a cognitive one; and others who ask
whether there existed ‘an irresistible impulse’ or whether
the act was a ‘product’ of the disease or impairment.
It is from Greece that the heritage of Western medi-
cine derives, and the great Greek observer and clinician
Hippocrates is considered the father of that medical
tradition. One of his greatest contributions was his
certainty that epilepsy was not supernaturally caused.
Diseases were of natural origin and could be both under-
stood and treated as manifestations of the natural order
(Ackerknecht 1968, p. 10). Possessing a ‘clinical intuition,’
Hippocrates suggested that various physical diseases alle-
viated ‘madness’ or ‘mania,’ anticipating by some 2300
years the malarial treatment of mental disease resulting
from syphilis (Zilboorg 1967, p. 48).
Ptolemaic and Roman Egypt are of interest because of
the existence of a demosios iatros, or public physician
(Amundsen and Ferngren 1978, p. 338, et seq.). Although
certain kinds of knowledge were exploited by Ptolemaic
courts, such as the expert opinion of land surveyors,
physicians were not summoned to court to give expert
opinion (Amundsen and Ferngren 1978, p. 340).
Among ancient legal systems, Roman law was certainly
the most comprehensive and sophisticated. Like its Greek
predecessor, the Roman legal process did not employ
physicians as experts (Sesto 1956, p. 33), although mid-
wives, land surveyors (agrimensores), and handwriting
experts were used in a forensic capacity (Amundsen and
Ferngren 1979, p. 48). An iudex, or judge, had very wide
discretion in gathering and considering evidence and
took the counsel of adsessores, who were wise men learned
in jurisprudence; however, there is no evidence that either
on a regular or exceptional basis were adsessores members
of professions whose knowledge could help decide ques-
tions of fact (Amundsen and Ferngren 1979, p. 46).4
Yet Roman law did recognize that those who commit-
ted acts without malicious intent should not be held
4
‘In cases where a curator is to be appointed to discharge the affairs
of one who is considered insane, the praetor [a public official] is urged
to investigate the case most thoroughly “since many people feign
madness or insanity” so that they may evade their civil obligations’
[citing Digesta 27,10,6 (Ulpian)] (Amundsen and Ferngren 1978, p. 43).
16 History and practice of forensic psychiatry
accountable for those acts. The Twelve Tables, one of the
earliest Roman codifications, made provision for a system
of guardianship of the insane, usually placing the person
and his or her possessions under the care of paternal
relatives. The Lex Aquila in the third century provided that:
‘(A) man who, without negligence or malice, but by some
accident, causes damage, goes unpunished’ (quoted in Platt
and Diamond 1966, p. 1230). Under the Lex Cornelia, chil-
dren, because of the innocence of their intentions, and the
insane, because of the nature of their misfortune, were
excused from punishment (Platt and Diamond 1966,
p. 1230).
On the subject of the insane, Roman law deals primarily
with questions of guardianship and is not plagued by
the almost single-minded concern with criminality one
finds in modern sources. The question of intention, while
important in the ancient literature, is overshadowed by
issues of custody, protection, and status. This difference in
emphasis flows from the approach that the Romans took
toward the behavior of those who were deemed deviant or
insane. The sometime devastating result of their irrational
behavior could be remitted by compensation to the victims
paid by the guardian of the insane. Payment of money
could act as a remedy even in a case of murder if the rela-
tives of the victim (or the owner of the victim, in the case of
a slave) would agree to such payment instead of some form
of physical retribution. Roman law was not exceptional in
this respect, somewhat the same kind of system obtaining
in Anglo-Saxon and Danish England (Walker 1968).
Roman medicine reached its apogee in the person of
Galen (AD 130–200) who, like Hippocrates, was a scien-
tific positivist, rejecting soothsayers in favor of anatomists
(Zilboorg 1967 [1941], p. 87). Galen saw the brain as the
seat of thought, but posited two irrational souls, one in
the heart and the other in the liver. Unfortunately, Galen
became enshrined as a medical authority even though
most of the dissections he performed were limited to pigs
and dogs. Many medical riddles (such as the circulation of
the blood) remained unsolved for over 1300 years until
the authority of Galen was overthrown.
MEDIEVAL PERIOD
The Middle Ages (approximately the sixth through the
sixteenth centuries) was a period of scientific retrench-
ment during which the traditions of Rome and theology
of Christianity held sway throughout most of Europe. In
AD 528 the Emperor Justinian ordered a review and codi-
fication of the enormous corpus of Roman legislation.
The Code of Justinian, or the Corpus Iuris Civilis5 (distin-
guishing it from canon or church law), made provision
5
The Institutes of Justinian, with English introduction, translation,
and notes by the late Thomas Collett Sandars, M.A. 1970 (originally
published 1922).
for the insane. Likened to one ‘absent, asleep or even dead’
a person who became insane was protected from loss of
property or position but was not considered capable of
making a will, transacting any business or held respon-
sible for wrongdoing. Roman law followed the principle
that ‘an insane person, like an infant not yet capable
of understanding, usually before the age of 7 or 8, was
incapable of malicious intent and the will to insult’ (Van
Ommeren 1961, p. 6).
The Roman Catholic Church, once established in
Europe, relied on Roman law to answer many practical
questions relating to insanity. How was matrimonial
consent affected by insanity? Could the insane receive the
sacraments of the church? Could a priest who became
insane continue in his role? Should divorce be permitted
if one of the partners became insane? How could it be
determined that insanity was not being feigned in order
to obtain a divorce?
Secular authorities also had to contend with similarly
difficult questions. How was it possible to detect a law-
breaker who feigned madness to avoid punishment? What
were the rights of the madman who was in remission?
Who would act as guardian to such a person? Two ques-
tions arise in any historical consideration of forensic psych-
iatry: How was it decided that any particular individual
was mad or insane, that is, how was insanity recognized,
and who was given the responsibility of determining the
presence of insanity when it became an issue? No evidence
seems to exist demonstrating that physicians were used as
experts in the resolution of any of these questions during
the medieval period.
The Italian city of Bologna may have been the first to
establish a system of medical expertise that was used in
what we would call criminal investigation (Simili 1973).
Although Bologna may have had the first legal code con-
ferring expert status on physicians,6 there may have
existed a pragmatic system of expertise utilized in diverse
locations throughout Europe that was pressed into service
when needed even if not recognized officially by statute.
In Germany, the medieval city of Freiburg i. Br. gave bar-
ber/surgeons the responsibility of playing a forensic role
at a time when academic medicine remained aloof from
the problems of the mundane world (Volk and Warlo
1973, p. 101). In their researches, these authors found that
‘scientific forensic medicine was preceded for centuries by
an empirical prescientific form that was motivated by the
practical demands of the courts,’ but that before the
6
Bologna is by no means the only one of the medieval Italian cities
that incorporated into their laws detailed rules for medical experts.
Such rules are also found, e.g., in the city statutes of Padua (1316),
Genoa (fourteenth century), Mirandola (1386), Bassano (1389),
Florence (1415), Verona (1450), Brescia (1470), Milan (1480), Ferrara
(1506), Genoa and Urbino (1556). These cities that played such a
tremendous role in the genesis of modern economics, political
thought and art, must therefore also be regarded as among the
most influential factors in the establishment of legal medicine
(Ackerknecht, in Burns 1977, p. 251).

appearance of Paolo Zacchia7 medical experts had not
been utilized by courts.
The ruling councils of fourteenth-century Venice
relied on the Corpus Iuris Civilis (or the traditions of the
Roman law) when faced with the problem of excusing
behavior because of insanity. Once again, we find that
physicians did not assist the decision-makers. Although
physicians were called upon to testify concerning phy-
sical elements in a crime, they were not asked to test-
ify when insanity was the issue. ‘This is not surprising.
Insanity was traditionally a community judgment, not a
medical one’ (Ruggiero 1982, p. 111).
In England, tests of legal insanity were developed and
became part of the legal tradition of the common law.
Henry de Bracton was an early and formative influence
on the development of these tests. Occupying the pos-
ition of chief justiciary of the highest English court, and
author of one of the first substantial treatises on English
law, On the Laws and Customs of England8 (ca. 1256),
Bracton has been identified with the ‘wild beast test.’ It
had been thought this legal test of insanity demanded
that in order for the insane to avoid responsibility for
committing a crime, a kind of fury or wildness must
characterize the individual or the act; however, Platt and
Diamond (1965) have demonstrated that Bracton’s use
of the concept of wild beast (brutus) was not in any way
intended to compare the insane with wild beasts but was
making the point that the insane, like animals, were not
capable of forming the requisite intent to commit crime,
much as a child would be incapable of forming such
intent. When a decision on the insanity of an accused was
an issue in an English criminal proceeding, the matter
was given over to the judgment of the king. A royal par-
don could be sought to release the insane from respon-
sibility, a procedure also used to excuse those who killed
by accident or in self-defense (Walker 1968, vol. 1, p. 24).
In England, the statute known as Praerogativa Regis9
drew an important distinction between those who were
7
‘The first complete edition of Paolo Zacchia’s monumental work
(Questiones MedicoLegales) was printed in 1654 in Rome. At that time,
the author was Proto medicus of the Papal State and medical advisor
of the Rota, the High Court of the Roman Catholic Church’ (Karplus
1973, p. 125). This work of Zacchia’s was considered the finest expos-
ition and synthesis of medico-legal questions for many years after
its writing, and illustrates the sophistication that had developed
in medico-legal thinking by the middle of the seventeenth century.
‘[Paolo Zacchia] … may be rightly considered the founder of the
medical jurisprudence of insanity’ (Zilboorg 1944, p. 508).
8
Bracton, Henry de. 1977. De Legibus et Consuetudinibus Angliae. On
the Laws and Customs of England, 4 vols. Translated with revisions
and notes by Samuel E. Thorne. Cambridge, MA: Harvard University
Press. [This thirteenth century work is attributed to Henry de
Bracton (1210–1268).]
9
‘The king’s right is distinctly stated in the document known as
Praerogativa Regis, which we believe to come from the early years
of Edward I (1272–1307). The same document seems to be the old-
est that gives us any clear information about a wardship of
lunatics. The king is to provide that the lunatic and his family are
History of forensic psychiatry 17
termed ‘natural fools,’ congenitally abnormal, and those
who were ‘non compos mentis,’ or whose symptoms of
illness appeared after birth. The condition ‘non compos
mentis’ included a wide range of psychiatric disorders and,
unlike that of ‘natural fool,’ was amenable to temporary or
even permanent recovery (Neugebauer 1978, p. 159).10
How was it decided and by whom that an individual
fell into one or another of these categories? Juries known
as inquisitions were established to examine persons who
might fall within the terms of the statute. The Court of
Chancery empowered the sheriff and other public offi-
cials to make an investigation not only into the mental
status of questionable persons but also the possessions
and property they held. Like the pattern in the rest of
medieval Europe, physicians were not involved in these
determinations; a finding of incompetence or congenital
insanity was in medieval England (as it was in medieval
Venice) a ‘community judgment’ (Neugebauer 1978).
One of the darker aspects of this ‘community judg-
ment’ occurring during the medieval period was the
practice of witch-hunting. From the fifteenth through
the seventeenth centuries, thousands upon thousands of
persons were tried on the charge of practicing witchcraft.
The Malleus Maleficarum (or Witches’ Hammer) written
by two Dominican friars, Sprenger and Kraemer, set out
the argument for the existence of witches, the manner in
which they could be identified, and the procedures for
properly trying them. A noteworthy appearance of a
physician as an expert in an English court was that made
by Sir Thomas Browne (Finch 1950). Browne, author of
the Religio Medici, a book of religious contemplation,
participated in the witchcraft trial of two women in 1664
at Bury St. Edmunds, testifying that the devil might work
through the madness of the women; thus, Browne
appeared to support the independent existence of witch-
craft and madness simultaneously.11
The physician Johann Weyer (1515–1588), possibly
the first physician to devote the major part of his pro-
fessional attention to psychiatric illnesses, is viewed by
many as the voice of reason standing against the spirit of
the time (Alexander and Selesnick 1966; Diamond 1961;
properly maintained out of the income of his estate, and the
residue is to be handed over to him upon his restoration to sanity,
or, should he die without having recovered his wits, is to be admin-
istered by the ordinary for the good of his soul; but the king is to
make nothing to his own use (Pollack and Maitland 1968, p. 481).
10
‘Whether a man was an idiot or a madman was a matter of local
knowledge, and they [the petty jury] were therefore the obvious
people to ask [concerning the mental state of an accused]’ (Walker
1968, p. 24). In the seventeenth century, Lord Coke in Beverley’s
Case, 4 Co. 123b, 76 Eng. Rep. 1118 (K.B. 1603), made further clari-
fications to the distinctions between ‘idiots’ or natural fools and
‘lunatics’ and generally summarized the laws of England regarding
insanity to his time (Brakel and Ruck 1971, p. 2–3).
11
‘Some biographers of Browne, asserting that his testimony led to
the convictions, have deplored his part in the proceedings’ (Finch
1950, p. 215).
18 History and practice of forensic psychiatry
Zilboorg 1967; Mora 1991). Alternatively, the witchcraft
trials are portrayed by some as the true forerunner of the
law/psychiatry interface. The psychiatrist Thomas Szasz
has made a widely publicized career characterizing psych-
iatry as a modern version of witch-hunting. Although
Szasz credits Weyer with recognizing that witchcraft was
too often used as a diagnosis for what otherwise must
have been madness, Szasz criticizes Weyer for his belief in
the existence of witches (Szasz 1970). For Szasz, however
humane their motives may be, physicians who partici-
pate in the legal process assist in bringing medicine into
the service of the law and of the forces of social control
(see also Szasz 1974).
MODERN PERIOD
One commentator has traced the origins of modern
forensic medicine to 1507 and the penal code drawn by
the Bishop of Bamberg, leading to the requirement placed
in the Constituto Carolina of the Emperor Charles V that
‘… required evidence of medical men in all cases where
their testimony could enlighten the judge or assist inves-
tigation in such cases as personal injury, murder and
pretended pregnancy’ (Gerber 1961, p. 197). Erwin
Ackerknecht finds the first reference to the medical expert
in the courts of Paris of 1511 (Eigen 1985, vol. 2, p. 38).
Whichever may be the case, the beginning of the sixteenth
century apparently marks the recognition by legal
authorities that forensic expertise not only is useful, but
indispensable.
What characterizes the transition to the modern
period is the evolution of medical and legal theories con-
cerning the behavior of the insane, the tests through
which insanity has come to be recognized, and methods
for the treatment of psychiatric illnesses. Older humoral
or demonological theories were abandoned (sometimes
without clear replacement), the common sense tests
for idiocy or lunacy were set aside, and the treatment
accorded those defined as mad or lunatic changed from
family guardianship to care in an asylum and then to
maintenance on psychoactive medication.
Medical men slowly expanded on the distinctions
made by the Praerogativa Regis between those born nat-
ural fools and those who became mentally impaired after
birth. Thomas Willis (1621–1675) produced his own tax-
onomy of mental disorders. One of the most significant
disorders for the law was melancholia, because the delu-
sions under which a melancholic labored might be tran-
sitory. Willis distinguished between a ‘universal type’ of
melancholia in which the affliction affected all aspects of
mental process and a ‘particular type’ which would leave
the judgment of an individual unaffected except in one
or two areas (Jackson 1983, p. 176).
Matthew Hale, an English jurist who ultimately became
lord chief justice and authored the History of the Pleas of
the Crown (first published posthumously in 1736), may
have been the first to use the term ‘partial insanity,’ a con-
cept close to Willis’ ‘particular type.’ In contrast to what
he saw as ‘partial insanity,’ under which category he placed
melancholia, Hale posited a ‘perfect madness’ or ‘total
alienation of the mind.’ Such a distinction was particu-
larly significant since melancholia was a frequent basis
for allegation of insanity (Jackson 1983, p. 173).
Hale believed that it was an individual’s state of mind
and not the nature of his or her acts that was of import-
ance in determining whether legal insanity could be used
as a criminal defense (Mora 1976, p. 1419). In so positing,
Hale was merely reiterating the logic of the English law
commentators Bracton (died 1268) and Coke (1552–
1634), both of whom recognized that in order for a crime
to exist there needed to be a mens rea, or an evil mind or
guilty intent, along with an actus reus, or evil deed
(Hermann 1983). Coke was of the opinion that the ends
of punishment were not served by inflicting it upon those
who were incapable of reason or understanding because
such punishment could not serve as an example to others
(Platt and Diamond 1965, p. 359).12
Throughout the history of Anglo-American law can be
found various tests of insanity to determine the presence
or absence of an evil mind or criminal intent. The evolu-
tion of these tests can be followed through a series of
important criminal cases beginning in the eighteenth
century.13 One of the first of those cases was Rex v. Arnold,
16 How. St. Tr. 695 (1724), Judge Robert Tracy presiding.
Edward Arnold was tried for the attempted murder of
Lord Onslow. The case has been interpreted as a prece-
dent for the ‘wild beast test’ in that ‘in order to be excused
from criminal responsibility as insane, the accused must
not know what he is doing, “no more than an infant, a
brute, or a wild beast” ’ (Judge Tracy, quoted in Hermann
1983); however, it is clear that there are many different
tests embedded in the instructions that Judge Tracy gave
to the jury, such as a test of abstract moral judgment
(‘distinguish between good and evil’).
‘The trial of Earl Ferrers in 1760 marks the first recorded
instance of “psychiatric” testimony offered in the criminal
trial’ (Eigen 1985, vol. 2, p. 37). In a fit of rage, the Earl
had shot and killed his steward, Rex v. Ferrers, How. St. Tr.
886 (1760). Dr. John Monro, physician superintendent of
12
‘For, as is observed by Sir Edward Coke, the execution of an
offender is for example, ut poena ad paucos, metus ad omnes per-
veniat: but so it is not when a madman is executed; but should be
a miserable spectacle, both against law, and of extreme inhuman-
ity and cruelty, and can be no example to others’ (Blackstone 1979,
Vol. 4, p. 25).
13
It should be noted that the importance of case, or judge-made,
law is the hallmark of the English common law tradition. Other
European traditions that follow Roman or civil law (or variants of
the Napoleonic code) do not assign the same importance to the
precedents set by judicial decision-making in any particular case.
Rather, statutes set out the law and judges (and less often juries) are
bound only by the statute or code law and not by what other judges
have determined to be the law in similar cases already decided.

Bethlem (commonly known as Bedlam), testified as an
expert witness. Dr. Monro was examined by the accused
Earl Ferrers himself, who conducted his own defense in
accordance with the English law of the time. The Earl was
left in the difficult position of having to prove his own
insanity; however, he conducted so sagacious a defense
that his plea was not believed and he was found guilty and
executed.
The standard of a total deprivation of reason was suc-
cessfully challenged in 1800 in the case of Rex v. Hadfield
(1800) 27 St. Tr. 1281. Hadfield had been a soldier attached
to the Duke of York in the last years of the eighteenth cen-
tury. While fighting, he had sustained severe head wounds,
which led to his discharge from the army and resulted in
permanent insanity punctuated by delusions of the world’s
imminent end and his role as its savior. To accomplish the
world’s salvation, Hadfield attempted to assassinate King
George III in order that he, himself, would be executed and
thus save the world through his martyrdom. ‘Hadfield
used a firearm, and came within a few inches of wounding,
if not killing, George III’ (Walker 1968, p. 74). Hadfield was
disarmed, seized, and ultimately brought to trial. Unlike
the unfortunate Earl Ferrers, Hadfield had counsel and was
represented by the superlative jurist, Thomas Erskine who
managed to win an acquittal. Erskine recast the insanity
defense in terms of disease process, a shift from the older
insistence on tests of cognitive understanding or moral
knowledge. It was no longer only the presence or absence
of reason, but the presence of delusion or a deranged state
of mind, which the jury was to take into account (Quen
1968, p. 45):
Delusion, therefore, where there is no frenzy or rav-
ing madness, is the true character of insanity; and
where it cannot be predicated of a man standing for
life or death for a crime, he ought not, in my opinion,
to be acquitted … . I must convince you, not only
that the unhappy prisoner was a lunatic, within my
own definition of lunacy, but that the act in question
was the immediate, unqualified offspring of the dis-
ease … to deliver a lunatic from responsibility to crim-
inal justice, above all, in a case of such atrocity as the
present, the relation between the disease and the act
should be apparent (Erskine, quoted in Hunter and
Macalpine 1963, p. 571).
In 1812, John Bellingham was executed for the murder
of Spencer Percevale, first lord of the Treasury and chan-
cellor of the Exchequer. Although an insanity defense was
raised, the decision in Hadfield’s case was ignored and
a knowledge of right and wrong test was employed. In
1840, Edward Oxford (R. v. Oxford [1840] 9 C. & P. 525)
attempted to assassinate Queen Victoria. His subsequent
insanity plea was successful. The Bellingham decision
(R. v. Bellingham [1812] O.B.S.P. case 433) was explicitly
disclaimed. ‘Lord Chief Justice Denman reaffirmed [in
the Oxford decision] the primacy of the question of the
determining or responsible factor for the act: the disease
History of forensic psychiatry 19
or the individual?’ (Quen 1968, p. 46). A pattern seems
to emerge from the eighteenth- and nineteenth-century
cases: those who succeed in the commission of crime fail
in their insanity plea; those who attempt a crime and fail,
succeed in their insanity plea.
The case that definitely breaks this pattern, if there is a
pattern, and establishes a rule that has been maintained
by most American jurisdictions until the present day,
is M’Naghten’s case, 10 Cl & Fin. 200, 8 Engl. Rep. 718
(1843). Daniel M’Naghten, believing the man he shot in
the back was Sir Robert Peel, the British prime minister,
mistakenly assassinated Edward Drummond, private
secretary to Peel. M’Naghten suffered from an elaborate
set of delusions involving his persecution by the British
government and the Vatican, among others. The ensu-
ing trial is noteworthy for the number of physicians who
were called as expert witnesses (nine in all), although two
did not examine M’Naghten. They opined that no doubt
existed as to the insanity of the prisoner, even though
M’Naghten might have been able to conduct his life along
rational lines and understand the difference between
right and wrong.
M’Naghten was found not guilty by reason of insanity
after the case had been stopped by the judges. The two
physicians called by the prosecution, although they had
interviewed M’Naghten, never appeared or testified at the
trial. Two of the defense experts (Winslow and Philips),
although they never met M’Naghten and knew him solely
by observing him in court, testified that he was insane,
agreeing with the opinion of their colleagues appearing
for the defense. On the strength of the medical testimony,
Judge Tindal stopped the trial and charged the jury which
returned with a verdict of not guilty by reason of insanity.
This decision left Queen Victoria, her government, and
the public in a state of uneasiness over the relatively unde-
fined nature of that mental condition that would permit
an insanity plea to succeed.
After the trial, the chancellor of the House of Lords
addressed the House on the law of England regarding the
responsibility of the insane and offered to call a conven-
tion of English judges. Three months later, fifteen judges
of the Queen’s Bench assembled for the purpose of clarify-
ing the law (Quen 1968, p. 48). To these judges, the House
of Lords addressed five questions. In part, the answers
they gave to these questions have come to be called the
M’Naghten Rules. These rules are still utilized in many
jurisdictions in the United States. (For a discussion of cur-
rent insanity tests, see Part Three,‘Forensic Evaluation and
Treatment in the Criminal Justice System.’) Probably the
most significant part of these rules for the further devel-
opment of forensic psychiatry is that found in the answers
to the second and third questions. These questions sought
guidance on the instructions to be given to a jury and the
terms into which these instructions should be cast:
That the jury ought to be told in all cases that every
man is presumed to be sane, and to possess a
20 History and practice of forensic psychiatry
sufficient degree of reason to be responsible for his
crimes, until the contrary be proved to their satisfac-
tion; and that to establish a defense on the ground of
insanity, it must be clearly proved that, at the time of
committing of the act, the party accused was labour-
ing [sic] 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 what he was doing was wrong. [Emphasis added]
(Trial of Daniel M’Naughton, 1843. In: Modern State
Trials. Revised by William C. Townsend, 1850, quoted
in Hunter and Macalpine 1963, p. 921).
Besides establishing and limiting the legal conditions
under which psychiatric expert witnesses would have to
testify (and under which they testify to this day in many
English-speaking jurisdictions), the decision in this case
and the answers to the subsequent questions reveal an
interesting and unexpected influence. If the M’Naghten
case can be seen as an essential ratification of the pres-
ence of physicians in courts as experts on insanity, that
ratification was achieved in no small part by the work of
an American physician, Isaac Ray.
FORENSIC PSYCHIATRY IN THE
UNITED STATES
The legal treatment of the insane in colonial America is
consistent with the treatment they received during most
of European history. Determinations of insanity con-
tinued to be made by civil authorities, not by physicians
(Deutsch 1949, p. 40; see also Grob 1973). Compared with
the growth of mental asylums in Europe, American insti-
tutions devoted to the care and treatment of the mentally
ill arose slowly and needed theoretical justifications from
abroad. Based somewhat on its English predecessor,
Bethlem (or Bedlam), the Pennsylvania hospital, was
opened in 1752.14 Benjamin Franklin was among the men
who founded it, and they had as one of their objectives
the admittance of mental patients (Dain 1976, p. 1182).
In a petition drawn up by Franklin for the provincial
Assembly in 1751, he states:
That with the Numbers of People, the number of
Persons distempered in Mind and deprived of their
rational Faculties, hath greatly increased in this
Province.
That some of them going at large are a Terror to
their neighbors, who are daily apprehensive of the
Violences they may commit …
14
‘The idea of the Pennsylvania Hospital originated with Dr. Thomas
Bond, a man who had been disowned by the Friends in 1742 for
taking an oath. Having visited England later, he was impressed with
the care provided the mentally ill at Bethlehem Hospital’ (Deutsch
1949, p. 17).
That few or none of them are so sensible of their Con-
dition, as to submit voluntarily to treatment that
their respective Cases requires, and therefore con-
tinue in the same deplorable state during their Lives;
whereas it has been found, by the existence of many
Years, that above two Thirds of the Mad People
received into Bethlehem Hospital, and there treated
properly, have been cured. (Franklin, quoted in
Deutsch 1949, p. 59)
By 1844, a large network of public and private asylums
existed in the United States.15 In that year, thirteen super-
intendents of mental asylums founded the Association of
Medical Superintendents of American Institutions for the
Insane (AMSAII). One of the founding members of that
association was Isaac Ray, who became the superintend-
ent of Maine Insane Hospital in 1841 and later superin-
tendent of the Butler Hospital in Providence, Rhode
Island. After having tried for two years to establish a med-
ical practice in Portland, Maine, Ray moved to Eastport,
Maine, where he succeeded as a general practitioner.
At age thirty-one, Ray wrote A Treatise on the Medical
Jurisprudence of Insanity (1838),16 which was one of the
first systematic studies in English of the law/psychiatry
interface.
The element in Ray’s thinking that seems to have had
the profoundest effect on developments both within law
and psychiatry is the notion of ‘moral insanity,’ a concept
introduced by James Cowles Prichard, a nineteenth-
century English physician and scholar.17 Ray was critical
of the English tests of insanity as they have been
described herein because they were too concerned with
cognitive function, ignoring the role of emotion and the
impact of mental disease on ‘moral’ functioning:
In legal contexts the term ‘moral insanity’ implied an
inability to conform to the moral dictates of society –
as a consequence of disease, not depravity, and despite
the absence of traditionally accepted signs of mental
disturbance. The morally insane offender might seem
to be quite rational in conversation, even intelligent,
be able to solve problems and be subject to no
15
The following is a list of the location of some of the early
American mental hospitals and their dates of establishment:
Philadelphia, Pennsylvania, 1752; Williamsburg, Virginia (first state-
supported mental asylum), 1774; New York Hospital, New York,
1791; Frankford, Pennsylvania, 1817; Boston, Massachusetts, 1818;
Hartford, Connecticut, 1824; Lexington, Kentucky, 1824.
16
‘Five years before M’Naghten’s trial, an American doctor, Isaac
Ray, had published what was to become one of the most influential
books of the nineteenth century on the subject [insanity and the
law]: A Treatise on the Medical Jurisprudence of Insanity (1838), and
in the year before the trial the learned, though not very original,
Prichard (who was to become a Commissioner for Lunacy in 1845),
had published a similar work’ (Walker 1968, p. 89).
17
Tighe characterizes the notion of ‘moral insanity’ as ‘the single
most controversial concept in the emerging discipline of American
forensic psychiatry’ (Tighe 1983a, p. 12).

delusions or sensory misconceptions – yet still be
mentally ill. (Rosenberg 1968, p. 68)
Ray’s treatise followed the work of the reformers
Vincenzo Chiarugi, Philippe Pinel, and William Tuke,
who through religious or ideological optimism attempted
to cure the insane by either softening the atmosphere of
the mental institution (Pinel supposedly struck off their
chains) or taking them out of destructive environments
into the countryside. ‘Moral treatment’ consisted of kind-
ness, understanding, and what resembled a type of behav-
ior modification therapy.
By the middle of the nineteenth century, the notion
of moral insanity had gained additional support among
those who followed the phrenologists Gall and Spurzheim.
These men had attempted to connect particular mental
faculties to particular sites within the brain. Thus, follow-
ing on this logic, it would be possible for a person to be
totally lucid and in apprehension of the difference
between right and wrong and yet commit felonious acts
because the part of the brain in charge of moral control
might be diseased. During the trial of Charles Guiteau, the
assassin of President Garfield, discussed later in this chap-
ter, the various psychiatric and neurological experts who
appeared debated whether ‘moral insanity’ was a viable
medical notion.
For alienists (as early psychiatrists were known), the
debate over the issue of moral insanity had a very signifi-
cant impact. The work Ray had done affected the out-
come of the M’Naghten trial and became an influence on
English and American legal usage:
Alexander Cockburn, counsel for the defense
[M’Naghten’s defense], followed the lead of Lord
Erskine [defense counsel in Hadfield’s case] and
attempted to establish a more flexible test of excul-
pable insanity. He made extensive and almost exclu-
sive reference to the work of the American physician,
Isaac Ray, in his attempt to demonstrate that legally
exculpable insanity should include more than dis-
ease of the intellect. (Quen 1968, p. 47)
In spite of Ray’s influence on the M’Naghten decision,
that influence was undone in great part by the House
of Lords and its panel of judges, which ‘clarified’ the
M’Naghten decision so as to enshrine a knowledge test
of mental competence in criminal procedure. Ray was
attempting to have the law recognize the ‘… wide range of
mental disorders which primarily affected an individual’s
emotional and volitional capacities …’ which would affect
imputations of responsibility (Tighe 1983a, p. 30).
However, the law was reluctant to make such an acknow-
ledgment. Ray credited such resistance to jurists’ ignor-
ance, poor education, and lack of experience with the
insane. To remedy this state of affairs, Ray worked to edu-
cate both the legal and medical community to what he
saw as the correct approach to psychiatric forensic prob-
lems. In 1866, Ray was put into contact with Judge Doe of
History of forensic psychiatry 21
the New Hampshire Supreme Court upon the latter’s
seeking medical opinion in a case before his court. Thus
began a six-year correspondence between the two men
that had a very profound effect on the direction that med-
ical jurisprudence was to take in the United States. This
correspondence gives an intimate and detailed picture of
the collaboration between Ray and Doe as they sought to
have the question of insanity recognized as a question of
science and not of law. ‘The resulting rule of law, estab-
lished in State v. Pike and subsequently known as the
“New Hampshire Rule”, has been proposed from time to
time for wider adoption both in this country and in
England’ (Reik 1953, p. 183).
The New Hampshire Rule, or ‘product rule,’ states that
a test of insanity ought to determine if the act in question
was the ‘product’ of a mental disease or defect, more
closely reflecting Isaac Ray’s desire to avoid cognitive
tests of insanity such as the M’Naghten Rule. This ‘prod-
uct rule’ was adopted in the District of Columbia in 1954
and called the Durham Rule (Durham v. United States,
214 F.2d 862 (D.C. Cir. 1954)), but was later overturned
in the case U.S. v. Brawner, 471 F.2d 969 (D.C. Cir. 1972),
which replaced it with the rule enunciated in the American
Law Institute’s (ALI) Model Penal Code. Quoting from
that model code, the following appears in the Brawner
decision:
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 appre-
ciate the criminality [wrongfulness] of his conduct or
to conform his conduct to the requirements of the law.
An ‘irresistible impulse’ test first using the word
impulse was employed in Commonwealth v. Rogers, 48
Mass. 500 (Massachusetts 1844). The most influential
early case to add this concept to M’Naghten was Parsons v.
State, 2 So. 854 (Ala. 1887), which referred to mental
disease as causing a loss of power to choose between right
and wrong, destroying free agency at the time of the
alleged criminal act. A similar test was utilized in a federal
court in Davis v. United States, 165 U.S. 373 (1897), which
referred to the will or governing power of the mind being
so destroyed that a defendant’s actions are no longer sub-
ject to his will but are beyond his control. Although the
New Hampshire Rule or ‘irresistible impulse test’ cur-
rently is not relied on anywhere as the sole test, similar
tests are often used in conjunction with the M’Naghten
Rule or are incorporated in the volitional prong of the
ALI insanity test. A form of the ‘irresistible impulse’ test is
the ‘policeman at the elbow’ test.
Much controversy arose soon after physicians began
testifying as psychiatric experts because their testimony
often betrayed fundamental disagreements within the
profession over the nature of mental disease. These
disagreements seemed to suggest that either the expert
was failing to make an objective evaluation (and many
22 History and practice of forensic psychiatry
motives could be adduced for such failure, such as the
personal or religious values of the expert, or the payment
received from a party in the case) or the expertise itself
was faulty. During the meetings of AMSAII, references
were made with greater regularity to the discomfort
of its members over the contradictory testimony given
by physicians and the attacks made during cross-
examination on the credibility of expert witnesses as the
nineteenth century advanced (Tighe 1983a, p. 112).
Probably the most important battles fought in a
courtroom in the late nineteenth century over these
issues occurred during the trial of Charles Guiteau, the
assassin of President Garfield. On July 2, 1881, Guiteau
approached Garfield at Union Station in Washington,
DC, and shot him as horrified Secretary of State James G.
Blaine looked on. (Garfield did not die until September
19, 1881.) The motive for this slaying is not clear, but
supposedly Guiteau had been disappointed in not having
been appointed to a diplomatic post in France. Some of
the most eminent men from the worlds of psychiatry and
neurology appeared to testify at the trial (Rosenberg
1968).18
The conflicts that occurred during the trial, centering
as they did on the concept of moral insanity, brought the
tensions within psychiatry and between psychiatry and the
emerging specialty of neurology into the open. John
Gray, superintendent of Utica Asylum, vigorously opposed
the idea of moral insanity. The neurologist Edward
Spitzka defended it on the basis that brain disease could
be selective in its manifestations. Gray, who had many
years of experience treating the insane, did not believe it
was possible for an individual to be insane in only part of
his mind. Spitzka was rallying for reform of the insanity
defense and wished to see the law recognize the recent
advances that had been made in medical science. Much
was made at the trial of the hereditary nature of insanity,
a notion that had gained favor toward the end of the
nineteenth century.
All arguments proved futile. Garfield had been a
popular president and his assassin could not have gone
unpunished. This case seems to fall within the pattern
described earlier for eighteenth- and early nineteenth-
century English cases. Those who succeed in their deadly
aims are found guilty regardless of any pleas that might be
made. In fact, Guiteau was found guilty and was executed
in 1882.
18
Among these experts were Charles H. Nichols, superintendent of
the Bloomingdale Asylum in New York; Charles Folsom of Harvard
and the McLean Asylum in Boston; Edward C. Spitzka, neurolo-
gist; Fordyce Barker, professor of medicine and president of the
New York Academy of Medicine; Allen McLane Hamilton, alienist;
John Gray, superintendent of Utica Asylum in New York and editor
of the American Journal of Insanity; William W. Godding, superin-
tendent of the Government Hospital for the Insane in Washington,
DC; James H. McBride, superintendent of the Asylum for Insane in
Milwaukee, Wisconsin. This list is not exhaustive.
For forensic psychiatric practice, the Guiteau trial had
two important results. The first is that by focusing the
light of public attention on the insanity defense, much
dissatisfaction was raised in the minds of the involved
professionals and the public at large over the role that
medical experts were playing in courtroom proceedings.
(Almost exactly one hundred years later, in 1982, the trial
of John Hinckley Jr., who had made an unsuccessful
attempt on the life of President Reagan, caused a very
similar reaction.) Second, the mandatory use of the hypo-
thetical question19 during the trial caused further frustra-
tion among the experts. These two results, coupled with
the professional rivalries that were exacerbated by con-
flict-ing testimony, helped to precipitate various attempts
at reform, which have occupied many in the legal and
psychiatric professions in one form or another to this day.
As a response to the ongoing professional debate and
attempts at reform there emerged various medico-legal
societies in the larger cities of the United States:
The founding of the New York Medico-Legal Society in
1867 signalled the beginning of a new era in medico-
legal relations. In this new era the still struggling
sub-specialty of medical jurisprudence of insanity was
transformed into a ‘science’ as the physicians and
attorneys interested in it became caught up in the
general process of professionalization that was chang-
ing medical and legal practice at the end of the nine-
teenth century. (Tighe 1983a, p. 180)
The New York Medico-Legal Society continues in an
attenuated form. The Society of Medical Jurisprudence in
New York, which was incorporated on March 7, 1883,
claims to be the oldest society of its type in the United
States. The society continues to be composed of attorneys
and physicians and provides a forum for outstanding
individuals from various professions whose concern is the
advancement of medical jurisprudence.
Not only do organizations seem to appear and disap-
pear from the professional landscape, but energetic and
forceful individuals who formed the backbone of the
early forensic organizations came from a variety of pro-
fessional backgrounds. For instance, Clark Bell, an attor-
ney and founder and editor of the Medico-legal Journal,
described as ‘the first American journal devoted exclu-
sively to medical jurisprudence’ (Tighe 1983a, p. 185),
was either president or secretary of the New York
19
It had been the practice in American courts of law for attorneys
to be required to pose questions to expert witnesses only as hypo-
thetical questions. Legal tradition construed an expert opinion on
the actual facts of any particular case as an invasion of the pro-
vince of the jury whose most important function was to decide
such questions of fact. This practice led to the creative phrasing of
questions beginning with the word ‘suppose’ and recreating in
almost every detail the case being tried except for the actual
names, dates, and other identifying information. (See Kidd 1915,
for an attempt in one American jurisdiction to correct this practice
as part of larger evidence reforms.)

Medico-Legal Society from approximately 1872 to 1918.
Bell saw the major role of the society as an educational
one, bringing together legal and medical people who
could engage in ‘mutual education’ as well as in educat-
ing the general public (Tighe 1983a, p. 187). The society
also engaged in vigorous attempts at reform of the sys-
tem of expert testimony and the revision of notions of
criminal responsibility.
In 1909,20 after a National Conference on Criminal Law
and Criminology was held at Northwestern University Law
School, a committee was formed under the chairman-
ship of the law professor Edwin Keedy to reform the law
of insanity. Keedy enlisted eminent attorneys, judges, and
psychiatrists to serve on this committee, which was to
focus on tests of responsibility, the forms in which verdicts
were cast, and expert testimony. Lack of agreement among
the disparate professional elements involved meant that
little was accomplished in the way of reform (Tighe 1983a,
p. 314).
As the chairman of the committee, Keedy exemplified
the position of the legal profession. ‘According to Keedy
the medical expert’s only task was to give the jury tech-
nical assistance in evaluating a defendant’s mental state’
(Tighe 1983a, p. 361; see also Tighe 1983b). This model
of psychiatric expert testimony contrasted sharply with
the one that was supported by the psychiatrists, espe-
cially Adolph Meyer and William A. White. These psychi-
atrists wished to have the concepts of medical and legal
insanity integrated and the jury determination of insan-
ity replaced by psychiatric determinations. Such a model
of the expert’s role in the courtroom contradicted basic
rules of evidence and legal procedure. Trial by jury is a
right protected by the Constitution of the United States.
All witnesses may be cross-examined and all facts in
question must be put to the jury for determination.
Further, psychiatrists such as William A. White (and
later Karl Menninger) attacked the very principles upon
which criminal law and criminal procedure were predi-
cated. They argued that punishment for crime often pre-
vented the rehabilitation it sought to achieve, that such
punishment merely expressed the need for revenge, and
that legal decision making in such matters ought to be
surrendered entirely to scientists. The arguments of psy-
choanalysts such as White and Menninger gained influ-
ence as psychoanalysis itself gained prestige.
Bernard L. Diamond, M.D., a psychoanalyst, was
instrumental in the development of the diminished
20
In this same year (1909), William Healy, a British-born psychia-
trist who had graduated from the University of Chicago Medical
School, became the director of the Psychopathic Institute of the
Cook County (Chicago) Juvenile Court, which had been opened in
1899 as the first court of its kind. The Psychopathic Institute was
also the earliest such court clinic in the United States. Some of the
most prominent forensic psychiatrists, such as Jonas Rappeport in
Baltimore and Richard Rosner in New York, worked or continue to
work in such court-related psychiatric institutions.
History of forensic psychiatry 23
capacity defense in California. Diminished capacity per-
mitted gradations of punishment by finding gradations
of guilt. It allowed the psychiatrist to explain why a
defendant committed a crime. Prior to the development
of this type of defense in California, two separate trials
were held: one to establish guilt or innocence; and another
afterward to determine sanity or insanity (Diamond 1961,
p. 74). Until People v. Wells, 33 Cal.2d 330 (1949), psych-
iatrists were excluded from testifying until the second
stage of the bifurcated trial. People v. Wells established
that mental illness could negate the mens rea (criminal
intent) required to convict for a crime and evidence
supporting such negation could be introduced at the
primary trial.
Diamond testified in another, later case, People v.
Gorshen, 51 Cal.2d 716 (1959), which permitted testimony
and opinions regarding specific intent in the absence of
legal insanity:
The essence of my [Diamond’s] testimony was that
Gorshen killed, not because he was insane, but rather
as a defense against insanity. Although he knew right
from wrong in the sense of M’Naghten, although he
appeared to have premeditated, deliberated, and to
have had the requisite criminal intent of malice, that
he was, nevertheless, not a free agent. That he was
suffering from an uncontrollable compulsion, the con-
sequence of mental disease. (Diamond 1961, p. 79)
The California Supreme Court on appeal accepted the
argument made by Diamond and other psychiatrists
filing amici curiae briefs in the Gorshen case. It allowed
that a showing of ‘mental abnormality not amounting to
legal insanity’ could provide evidence that the defendant
did not possess the specific mental state required for con-
viction of a crime but still could be found guilty of a
lesser-included crime. However, in response to the furor
over the trial of Dan White, the assassin of San Francisco
Mayor George Moscone and Supervisor Harvey Milk,
the California legislature has undermined most of
Diamond’s efforts by eliminating diminished capacity as
a defense. Nevertheless, the diminished capacity defense
has been utilized in some other states. A mens rea defense
of diminished actuality was retained in California.
During his long and distinguished career, Diamond
also supported an approach to forensic psychiatry in
which the psychiatrist in criminal trials would become
an advocate, testifying with total honesty solely for the
defense. (See Diamond [1985] for a characterization of this
approach, which Diamond contrasts with the approach
of the late Seymour Pollack, a forensic psychiatrist who
established a celebrated forensic training program at the
University of Southern California.)
In terms of forensic psychiatry, the status of psychiatrist
as expert had already been achieved prior to the Freudian
‘revolution.’ Nevertheless, the movement away from
interpreting insanity solely as a chemico-physiological
imbalance or a hereditary degeneration, to the view that
24 History and practice of forensic psychiatry
dysfunctional mental states and attendant behavioral
manifestations arose from environmental and familial
influences, opened every aspect of social and psycho-
logical life to the scrutiny of the psychiatrist. Psychiatric
expertise began to be sought in an ever-widening range
of situations. Such an increase in the perimeter of the
psychiatrist’s jurisdiction and responsibility is a continu-
ing theme within medical jurisprudence; however, recent
developments have moved psychiatry back toward the
biological/biochemical.
Forensic psychiatry failed to professionalize during its
early history not merely because the pioneers and reform-
ers were overzealous or scattered in their energies, which,
in fact, they were. On the one hand, figures such as Isaac
Ray (a physician), Clark Bell (attorney), and Edwin Keedy
(attorney) were striving to organize across professional
lines, that is, by including physicians from a variety of
specialties and attorneys in their struggles. On the other
hand, the task of such reformers was made doubly diffi-
cult since they were attempting to achieve meaningful
substantive reform in the area of their specialization with-
out having first formally specialized and/or professional-
ized. Thus, the boundaries of the specialty were unclear
and the centers of power were diffuse.
Although the formation of the medico-legal societies
of the nineteenth and early twentieth century provides
evidence that movement toward formal organization had
begun, the major player in this respect continued to be
AMSAII. Through its journal, the American Journal of
Insanity founded in 1844, AMSAII played an important
role in educating the growing psychiatric community to
the importance of understanding legal issues.
At its annual meeting in Washington, DC, in 1892,
AMSAII changed its name to the American Medico-
Psychological Association (AMPA) and adopted a new
constitution. This change recognized the changed shape
of the psychiatric profession inasmuch as the medical
superintendent no longer dominated professional affairs.
Standing committees did the major work of AMSAII and
AMPA. In 1882 a committee on the ‘criminal responsi-
bility of the insane’ was added (Barton 1987, p. 88–89).
Neither AMSAII, nor its successor, AMPA, was distin-
guished by vigorous activity on the national scene. It did
not provide dynamic leadership for the growth of a sub-
specialty in forensic psychiatry, let alone the psychiatric
profession generally, until after World War I.
In 1921, the AMPA again changed its name to the
American Psychiatric Association (APA) and by that time
had 1000 members (Barton 1987, p. 168). Adolf Meyer,
a leader in the specialty before and after World War I,
assisted in promoting research in psychiatry and spurred
changes in medical education to include greater attention
to psychiatry. The emergence of forensic psychiatry could
not have occurred without the widening exposure of
physicians to education in psychiatry both in their under-
graduate and graduate medical education. The addition
of psychiatry to the medical school curriculum was slow
in coming. Even by the late 1930s, psychiatry had not been
added as a mandatory part of the curriculum at insti-
tutions such as the medical school of the University of
California, San Francisco, which had only one psychiatrist
on its faculty at the time. Forensic psychiatry was also
absent from medical school curricula.
Except for the medico-legal societies described above,
forensic psychiatry was not represented by any formal
organization; however, there was movement in the APA
with respect to the recognition of the growing impor-
tance of forensic issues:
In 1925 the first report of the new Committee on Legal
Aspects of Psychiatry of the American Psychiatry
Association was published. Dr. Karl Menninger submit-
ted the reports as chairman. It marked a true turning
point in the history of the problem [the interface of
law and psychiatry], and Karl Menninger’s name must
rightly occupy an honorable place among the pioneers
of an important and difficult task. (Zilboorg 1944,
p. 579)
This committee had contacts with the Section on Criminal
Law and Criminology of the American Bar Association.
In 1934, a section of forensic psychiatry was initiated
by the APA under the chairmanship of William Alanson
White, who had been president of the APA (1924–1925)
and was one of the most vocal critics from the psychiatric
community of the criminal justice system. By the end of
World War II, the general unresponsiveness of the APA to
the growing problems surrounding the practice of psy-
chiatry became patent and had been observed by William
Menninger. He and a group called the ‘young turks’ went
on to form the Group for the Advancement of Psychiatry
(GAP) in 1946 to restructure the APA because of their per-
ception that the APA had been less than responsive in sup-
porting the military during World War II. In fact, major
changes in the APA structure were effected through the
urging of GAP members, including the establishment of
an office of medical director (Barton 1987, p. 118).
The Council on Psychiatry and the Law (CPL) of the
APA emerged during 1979–1980 out of the Council on
Governmental Policy and Law when Alan Stone was APA
president. The CPL has been very active in formulating
policy proposals for its parent body. Participating with
other groups, the CPL breaks up into smaller groups as
needs warrant; for instance, the Insanity Defense Work
Group developed an APA statement on the insanity defense
in December 1982. The APA recommended elimination
of the volitional prong of the insanity defense, but use of
the word ‘appreciate’ instead of the more cognitive word
‘know’ appeared to minimize the effect of the change. It
was prompted by the public furor that arose over the ver-
dict in the case of John Hinckley Jr., who attempted to
assassinate President Reagan and who was found not
guilty by reason of insanity. The AMA had recommended
abolition of the insanity defense and its replacement by a
mens rea defense, and the APA statement was seen by

many as a political move to stem anti-psychiatric public
sentiment. H. Keith Brodie, M.D., president of the APA,
who signed the foreword to the APA statement, character-
ized it as follows: ‘This is the first comprehensive position
statement on the insanity defense to be developed and
adopted by APA’ (American Psychiatric Association 1984,
p. 4). Considering the age of the APA and its antecedent
organizations, this characterization reveals much about
activity within the APA and the caution it has shown in
taking formal positions on forensic issues.21
However, it is not from any reforms within the APA
itself or action on the part of any of its committees that
the formal organization of forensic psychiatry has arisen.
Rather, this subspecialty came into existence through the
efforts of psychiatrists particularly interested in foren-
sics who maintained professional relationships with law
schools and forensic organizations. Through the 1950s,
1960s, and 1970s, law schools became interested in hav-
ing psychiatrists on their faculties. Psychiatrists such as
Bernard Diamond at the University of California, Berkeley;
Jay Katz at Yale Law School; Alan Stone at Harvard Law
School; and Andrew Watson at the University of Michigan
Law School are all examples of this trend. Ultimately,
training programs in forensic psychiatry arose. One of
the earliest and most notable was the program developed
by Seymour Pollack at the University of Southern
California. The Western Psychiatric Institute in Pittsburgh
is another important center of forensic psychiatric train-
ing and activity.22
Probably the most important organization to give atten-
tion to the relations of psychiatry and law has been the
American Academy of Psychiatry and the Law (AAPL).
Jonas Robitscher, lawyer and psychiatrist, characterizes the
formal inception of AAPL in 1969 in the following fashion:
This formal group [AAPL] was the outgrowth of an
informal group of about fifteen, mainly directors of
forensic psychiatry fellowship training programs, who
had met in connection with the American Psychiatric
Association meeting in Boston in 1968. This new group
now [1972] has about 250 members, all interested in
some phase of legal psychiatry … . The by-laws of
AAPL list six aims: to exchange ideas and experience
among forensic psychiatrists in North America; to ele-
vate the standards of study and practice in this field;
to develop training programs for psychiatrists desirous
of acquiring skills in forensic psychiatry; to take lead-
ership in initiating and monitoring research in the
field; to improve relationships between psychiatrists
21
Since 1952, the APA has given the Isaac Ray Award to an individ-
ual who has made an outstanding contribution to ‘forensic psych-
iatry or to the psychiatric aspects of jurisprudence.’ Since 1967, the
APA (joined by the American Academy of Psychiatry and Law in
1982 as cosponsor) has given the Manfred Guttmacher Award for
outstanding contributions to the literature of forensic psychiatry.
22
For an excellent (although somewhat dated) discussion of the
changes taking place within forensic psychiatry see Robitscher (1972).
History of forensic psychiatry 25
on the one hand and attorneys, legislators, jurists, and
penologists on the other; and to take leadership in
informing the public of the needs of those involved
with the law and the contributions available from
psychiatry (Robitscher 1972, p. 316).
AAPL is a thriving and vibrant professional organiza-
tion that publishes a newsletter (in April, September, and
December) and quarterly journal (Journal of the American
Academy of Psychiatry and the Law), and sponsors an
annual convention. Under the direction of Jonas R.
Rappeport as medical director, AAPL became the largest
forensic psychiatric organization in the United States.
There are chapters of AAPL throughout the United States
with the first district branch organized by Richard Rosner
in the New York area, known as the tristate chapter. AAPL
maintains an active liaison with the American Academy of
Forensic Sciences (AAFS). AAPL adopted ethical guide-
lines in 1987.
The American Academy of Forensic Sciences founded
in 1948 (as the American Medico-Legal Congress) is com-
posed of experts from diverse disciplines including, but
not limited to, psychiatry, pathology, toxicology, anthro-
pology, engineering, and ballistics. Individuals active
within the AAFS have made major contributions to the
furtherance of the professionalization and specialization
of forensic psychiatry.
Chief among such contributors was Maier Tuchler, a
psychiatrist with extensive experience in forensics, who
worked assiduously to form a certifying body for forensic
psychiatry.23 Apparently, an idea for such a certifying body
had first been proposed by Lowell Sterling in the early
1950s when he was chairman of the psychiatry section of
AAFS. Such a proposal was also made in the mid-1950s
by Ralph Banay, a psychiatrist active in the world of
criminalistics, and editor of the Journal of Correctional
Medicine and Social Therapy. However, an earlier move-
ment forming specialty boards had occurred in the
1930s24 and resistance had arisen later within the medical
community to what was seen as overspecialization.
When AAPL was approached to cosponsor a forensic
board with AAFS, there were problems that had to be
23
I am indebted to and would like to thank Stanley Prentice, M.D.,
F.A.P.A., for allowing me access to materials he prepared in
advance of writing a history of the American Board of Forensic
Psychiatry. Those materials were invaluable aids in understanding
the development of the American Board of Forensic Psychiatry
(Prosono 1990). Much of the following history of the American
Board of Forensic Psychiatry relies on the work of Dr. Prentice.
24
‘The ABA [American Board of Anesthesiology] was one of nine
boards established between the years 1933 and 1938 – a period
which saw the flowering of the specialty board movement in the
United States, the others being the American Board of Pediatrics
(1933), of Orthopedic Surgery (1935), of Psychiatry and Neurology
(1935), of Radiology (1935), of Urology (1935), of Internal Medicine
(1936), of Pathology (1936), and of Surgery (1937).’ (Little 1981,
p. 317)
26 History and practice of forensic psychiatry
overcome. Some of the original founders of AAPL such
as Jonas Rappeport looked upon attempts at certification
with skepticism. These attempts created dissension in
what otherwise was a ‘healthy organization’ and generated
the fear that certification might ultimately lead away
from the educational mission of AAPL, and create elites
within the organization. These objections ultimately sub-
sided when it was realized that AAPL would not be the
certifying body itself but rather only a sponsoring agency.
The way ultimately opened for the formal organization
of a board in June 1976, with the participation of AAFS,
AAPL, liaison with the APA and the American Medical
Association (AMA), and financing from the Legal
Enforcement Assistance Administration (LEAA). The first
members of the American Board of Forensic Psychiatry25
(ABFP) were all highly experienced in forensic psychiatry,
were involved in teaching, and had been certified by their
specialty board, the American Board of Psychiatry and
Neurology (ABPN).
It had been decided by the founders of ABFP that
no members would be ‘grandfathered’ into certification;
that is, even those psychiatrists who organized the ABFP
would have to sit for the certifying examination. The
board required that psychiatrists (limited to those prac-
ticing in the United States and Canada) wishing to be
certified in forensic psychiatry also be certified by ABPN.
In addition, five years of post-residency experience was
required with substantial involvement in forensic work.
(Consideration was given for time spent in forensic fel-
lowship training programs. One year of credit was given
for a law degree.) Two examinations had to be successfully
passed: one written given during the annual meeting of
the APA, and one oral given during the annual meeting of
AAPL. Candidates needed to pass the written exam-
ination before taking the oral. Mechanisms were in place
for retaking examinations that were not passed and for
appealing board decisions. Richard Rosner was instru-
mental in the creation of standards for accrediting fellow-
ship programs in forensic psychiatry as well as the
development of the Accreditation Council on Fellowships
in Forensic Psychiatry (ACFFP). Its processes were imple-
mented in 1988 and the first programs were accredited in
1989. The Accreditation Council was supported finan-
cially by AAFS and was given administrative support by
AAPL. Both organizations became cosponsors .
Neither the mechanisms established by the American
Board of Forensic Psychiatry for certifying forensic psych-
iatrists nor the accreditation procedures of the Accredit-
ation Council on Fellowships in Forensic Psychiatry
25
The first board of directors of the American Board of Forensic
Psychiatry were: Walter Bromberg, M.D.; Bernard L. Diamond, M.D.;
Zigmond M. Lebensohn, M.D.; Herbert C. Modlin, M.D.; Joseph L.
Paterson, D.Crim.; Irwin N. Perr, M.D.; Seymour Pollack, M.D.;
Stanley L. Portnow, M.D.; Jonas R. Rappeport, M.D.; Robert L.
Sadoff, M.D.; John K. Torrens, M.D.; and Maier I. Tuchler, M.D.
are now used. After some years of struggle and negotia-
tion, a decision was made by the American Psychiatric
Association to recognize forensic psychiatry as a full-
fledged psychiatric subspecialty. Qualifying examinations
are no longer conducted under the auspices of ABFP but
are administered by the American Board of Psychiatry and
Neurology with the concurrence and cooperation of the
American Board of Medical Specialties. Such formal
recognition will have an impact not only on the credential
that forensic psychiatrists come to obtain but also on the
nature of their postgraduate education.
Since the Accreditation Council for Graduate Medical
Education (ACGME) began accrediting fellowship pro-
grams in forensic psychiatry in 1997, there are now thirty-
six such programs scattered throughout the United States.
In addition, there are numerous professional bodies that
offer programs in continuing education given credit by
ACGME. When the ABPN began certifying forensic psy-
chiatrists by examination, there were no approved
ACGME fellowship programs. Thus, the requirements for
taking the first examination could have been fulfilled by
attending any one of a number of ‘non-approved’ post-
residency programs or through a number of years prac-
ticing extensively in the field. In 2001, the ‘practice track’
was eliminated and in 2003 only attendance at an
ACGME-approved program will be accepted as fulfilling
the requirements for examination. Of course, board certi-
fication in psychiatry is required before attempting quali-
fication in the sub-specialty of forensic psychiatry. From
1994 through 1999, 1310 board certified psychiatrists
were qualified in forensic psychiatry by the American
Board of Psychiatry and Neurology.
After traveling a circuitous and difficult path, forensic
psychiatry has emerged from a history extending back to
the beginning of civilization in the West. This emergence
has not been smooth; there have been many breaks and
bumps in the trail. It is only within the past 250 years that
physicians or psychiatrists have been asked into courts
to act as expert witnesses. Although many attempts have
been made to reorganize or reform the nature of the
social action performed by forensic psychiatrists, those
attempts have only had limited success. For instance,
there is much dissatisfaction with the M’Naghten Rule,
but most states retain it despite much psychiatric oppos-
ition. Some jurisdictions in recent years have even
returned to M’Naghten from the ALI test in response to
unpopular trial verdicts and public clamor. There are
bound to be additional strains within this sub-specialty
as the already large prison population of the United States
increases and some States continue to employ the death
penalty. Ethical issues abound and will only become more
complex. Now that there is a mechanism for complete
board certification of forensic psychiatrists, professional-
ization is formally complete. The next chapter of this
history will most likely concern the nature of this sub-
specialty moving into its maturity, betokening a series of
new tensions and challenges.

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 History of forensic psychiatry 29

Appendix 3.1 Important dates in the history of forensic psychiatry (dates BC are approximate).
Date Event
3000 BC Imhotep combines the role of priest/physician/statesman and scientist.
1850 BC First murder trial in Babylonia in which an expert witness (midwife) appears.
1800 BC Code of Hammurabi makes early recognition of importance of intent in criminal law but punishes most
crimes with death.
1200 BC Hebrew law establishes the intent of actor when establishing guilt for murder.
460 BC Birth of Hippocrates (died 377 BC).
450 BC Twelve Tables of Roman Law refers to the legal incapacities of children and the insane; provided for
guardianship of fools by family or paternal relatives.
Lex Aquila in Roman law does not hold a man accountable for damage to property when caused without
negligence or malice.
Lex Cornelia punishes those who injured the personality of victim or lowered esteem in which victim was
held, but exempted children and the insane when they committed such injury.
AD 130 Birth of Galen (died AD 201).
AD 528 Code of Justinian likens the insane person to someone who was absent, asleep, or dead, although the
insane did keep their property and their offices. When considering crime, the insane were excused as
were children who could not form the requisite intent.
AD 1256 Henry de Bracton writes On the Laws and Customs of England, a discussion of the ‘wild beast test.’
AD 1272 Enactment of Praerogativa Regis or King’s Right in the reign of Edward I. Established system whereby the
king conserved the property of an individual who became insane after birth; however, the property of
congenital fools reverted entirely upon the king. Special commissions were held to determine mental
status and property rights.
AD 1292 City of Bologna establishes the first expert medical investigatory service in Europe.
AD 1302 One of the first recorded medico-legal autopsies performed in Bologna.
AD 1487 First possible publication date of the Malleus Maleficarum, or Witches’ Hammer, written by two Dominican
friars, Jakob Sprenger and Heinrich Kraemer, as a handbook for witchhunters.
AD 1648 Wardships such as those established by the Praerogativa Regis are transferred to the English Court of
Chancery (where they are still heard today).
AD 1664 Sir Thomas Browne testifies in the trial of two women for witchcraft.
AD 1681 Thomas Willis publishes his Opera Omnia, which describes various cerebral diseases and a host of
psychiatric disorders.
AD 1724 Arnold case.
AD 1736 Publication of Matthew Hale’s History of the Pleas of the Crown.
AD 1752 Pennsylvania Hospital opens in Philadelphia with one of its expressed intents ministering to those with
mental diseases; first hospital of its kind in colonial America.
AD 1760 Trial of Earl Ferrers; first criminal trial in which physician appears as expert witness in English law on issue
of mental state.
AD 1800 Hadfield case.
AD 1810 Benjamin Rush delivers a lecture entitled ‘Lecture on the Medical Jurisprudence of the Mind.’
AD 1812 Bellingham case.
Benjamin Rush writes Medical Inquiries and Observations on the Diseases of the Mind.
AD 1838 Isaac Ray writes A Treatise on the Medical Jurisprudence of Insanity.
AD 1840 Oxford case.
AD 1843 M’Naghten case.
AD 1844 First issue of the American Journal of Insanity. Founding of the Association of Medical Superintendents of
American Institutions for the Insane.
Commonwealth v. Rogers, 48 Mass. 500 (1844).
AD 1847 Founding of the American Medical Association.
AD 1849 First American treatise on neurology, An Inquiry Concerning the Diseases and Functions of the Brain and
Spinal Cord, written by Amariah Brigham.
AD 1867 Founding of the New York Medico-Legal Society.
AD 1872 John Ordronaux is appointed first commissioner of lunacy in New York State.
AD 1877 Founding of Massachusetts Medico-Legal Society.
AD 1881 Trial of Charles Guiteau for assassination of President Garfield.
AD 1883 Founding of the Society of Medical Jurisprudence of New York City.
AD 1884 Founding of the Philadelphia Society of Medical Jurisprudence.
AD 1885 Founding of the Rhode Island Medico-Legal Society.
AD 1886 Founding of the Chicago Medico-Legal Society.
AD 1887 Parsons v. State, 2 So. 854 (Ala. 1887).
AD 1890 Founding of the Denver Medico-Legal Society.
30 History and practice of forensic psychiatry

AD 1892 AMSAII changes its name to American Medico-Psychological Association.

AD 1897 Davis v. United States, 165 U.S. 373 (1897).
AD 1900 Publication of Sigmund Freud’s Interpretation of Dreams.
AD 1909 National Conference on Criminal Law and Criminology held at Northwestern University Law School;
attorney Edward Keedy forms committee to reform insanity law.
First psychiatric court clinic established in Chicago at Juvenile Court by William Healy.
AD 1921 American Medico-Psychological Association changes its name to American Psychiatric Association;
the American Journal of Insanity changes its name to the American Journal of Psychiatry.
AD 1925 Karl Menninger as its chairperson submits the first report of the Committee on Legal Aspects of Psychiatry
of the American Psychiatric Association.
AD 1933 Founding of American Board of Medical Specialties (at first named Advisory Board for Medical Specialties).
AD 1934 William Alanson White chairs the first section on forensic psychiatry initiated by APA.
AD 1935 Founding of American Board of Psychiatry and Neurology.
AD 1946 William Menninger founds Group for the Advancement of Psychiatry.
AD 1948 Founding of American Academy of Forensic Sciences (as American Medico-Legal Congress).
AD 1949 People v. Wells, 33 Cal. 2d 330 (1949).
AD 1952 First Isaac Ray Award presented by the American Psychiatric Association to Winfred Overholser,
superintendent of St. Elizabeth’s Hospital; award is made to an individual who has made outstanding
contributions to the field of forensic psychiatry.
AD 1954 Durham case – crime a ‘product’ of mental disease or defect (Durham acquitted).
AD 1959 People v. Gorshen, 51 Cal. 2d 716 (1959).
AD 1967 Manfred S. Guttmacher Award established by American Psychiatric Association to honor outstanding
contributions to forensic psychiatry; first presented in 1972.
AD 1969 Founding of American Academy of Psychiatry and the Law.
AD 1972 Brawner case – Durham Rule abandoned; ALI rule adopted.
AD 1976 Founding of American Board of Forensic Psychiatry.
AD 1982 Barefoot v. Estelle, 463 U.S. 880 (1982) – Supreme Court of the United States found that psychiatrists are
competent to testify to the question of future dangerousness of an individual convicted of capital crime
and sentenced to die; American Psychiatric Association joined defense as amicus curiae in opposing this
outcome.
AD 1987 AAPL adopts ethical guidelines.
AD 1988 Accreditation Council on Fellowships in Forensic Psychiatry implements its processes.
AD 1989 First programs accredited by Accreditation Council on Fellowships in Forensic Psychiatry.
AD 1993 American Board of Psychiatry and Neurology and American Board of Medical Specialties are preparing to
formally establish forensic psychiatry as a subspecialty and administer appropriate examinations.
AD 1994 American Board of Psychiatry and Neurology takes over certification process in forensic psychiatry.
AD 1999 There were approximately 1310 psychiatrists who qualified in forensic psychiatry since the American Board
of Psychiatry and Neurology began the certification process.
AD 2001 Last certification of forensic psychiatrists who graduated from a non-ACGME approved program in forensic
psychiatry.
AD 2003 First examination planned by the American Board of Psychiatry and Neurology for all candidates who
graduated from approved ACGME programs in forensic psychiatry.

Forensic psychiatric report writing
J. ARTURO SILVA, ROBERT WEINSTOCK AND GREGORY B. LEONG
Forensic psychiatric report writing can be the essential –
or even the only – work product of a forensic psychiatric
examination. Attorneys may request confidential evalu-
ations which are protected in many states under an attor-
ney–client privilege. Reports may be requested by judges
to advise them regarding how to proceed in the senten-
cing phase and to help them determine the most appropri-
ate action. Most importantly, the overwhelming majority
of cases referred for psychiatric evaluation result in writ-
ten forensic psychiatric reports. An exception would be
when an attorney requires a confidential consultation,
without the risk of an unfavorable report reaching the
other side. However, in most cases the report is the most
important piece of psychiatric input, since most cases
involving psychiatric issues are settled without court-
room testimony and cross-examination. Therefore, the
findings in the forensic psychiatric report become the
basis upon which the case is settled. Attorneys utilize
the report in trying to assess the strengths and weaknesses
of their cases. The forensic psychiatric report is the pri-
mary format in which forensic psychiatrists can demon-
strate their diligence and expertise. Relevant information
and explanations of reasoning cannot be omitted with the
rationale that they will be given during courtroom testi-
mony or thorough cross-examination, since neither of
these usually occur. However, in the forensic psychiatric
report, the psychiatrist’s opinion can be presented in the
most persuasive format. The report itself is likely to stand
or fall on its own.
According to Rosner (1990), the essential elements of
a forensic psychiatric examination involve addressing the
following four points:
1 What is the specific psychiatric-legal issue?
2 What are the legal criteria that determine the issue?
3 What are the relevant psychiatric-legal data?
4 What is the reasoning process used to reach a
conclusion?
Whilst all these elements must be addressed in the
report, it is essential to distinguish between them and not
4
to obscure them with an unexplained conclusory opin-
ion regarding the legal issue.
Forensic psychiatric reports can be a substantial prob-
lem for the psychiatrist without forensic training who
may conduct a standard psychiatric evaluation without
adapting it to the legal arena. In fact, many of the objec-
tions that judges, attorneys, and other people in the legal
system express regarding psychiatric reports is that they
frequently fail to collect and link the psychiatric informa-
tion necessary to address the relevant psychiatric-legal
issues. Essential differences exist between the ordinary
psychiatric report and the psychiatric report intended for
legal purposes. The forensic psychiatrist is generally not
writing the report for other clinicians (the usual purpose
of a psychiatric report). Rather, legal personnel and
laypersons, who are not familiar with psychiatric ter-
minology, read it. Therefore, it is important to minimize
technical jargon as much as possible, provided that the
quality and accuracy of the report is not compromised.
Abbreviations should be kept to a minimum, and when
technical terms are used they should be explained clearly
and concisely. The forensic report may readily become
public knowledge through incorporation into the official
court record and thus be accessed by the public, includ-
ing the media. The report may also be subject to careful
scrutiny in order to find any inaccuracy or misstatement.
It can be used by a skillful attorney (especially with the
assistance of a knowledgeable forensic psychiatric expert)
to discredit and embarrass the mental health profes-
sional who wrote it if the case reaches the trial stage
(Melton et al. 1997). Any minor inaccuracy, even if not
essential to the opinion, could be used to totally discredit
an expert.
ELEMENTS OF A GOOD FORENSIC REPORT
The non-forensic psychiatric report starts with the history
and clinical data and includes a mental status examination.
32 History and practice of forensic psychiatry
It concludes with a list of diagnoses, some of which may
be only tentative and may be ruled out as new informa-
tion is obtained. The report evinces a scientific search for
truth reflecting the progress of an ongoing evaluation or
treatment. The forensic psychiatric report includes some
data similar to the clinical psychiatric report. However,
in Pollack’s (1974) opinion, the principles of forensic
psychiatry require a higher level of certainty for legal
purposes than may be appropriate for other purposes.
Pollack also developed the concept of ‘reasonable med-
ical certainty,’ which requires that ‘the forensic psych-
iatrist be more certain rather than less in his or her
psychiatric judgments about observational data and that
he/she should be called upon to demonstrate that his/her
clinical inferences also hold a professionally acceptable
level of conviction.’ Others such as Diamond (1985)
would permit psychiatric opinions, including opinions
held by only a minority of psychiatrists with their usual
clinical level of confidence, but would make the level of
confidence including any uncertainty clear (Katz 1992).
Diamond (1985) preferred the term ‘reasonable medical
probability.’
Forensic psychiatric reports can lead to action with
irreversible consequences more often than clinical reports,
so more care should be exercised. There also are more
areas for disagreement. Although the psychiatric-legal
issue usually can be ascertained from the report, there
may be disagreement regarding the specific criteria for
the psychiatric-legal issue. Therefore, the criteria for the
psychiatric-legal issue utilized by the forensic psychiatrist
need to be stated clearly to prevent confusion or obfusca-
tion of crucial facets. There certainly can also be differ-
ences in the application of the psychiatric data to the legal
issue, and there can be differences in the reasoning process.
Pollack recommended mentioning alternative possibilities
to the main opinion, and why these interpretations were
rejected. The reasoning process and alternative possibili-
ties can be obscured in an unexplained conclusory report.
Such reports risk disguising misinterpretations of legal
criteria or moral judgments as psychiatric expertise.
Some forensic psychiatrists have advocated not express-
ing an opinion on the ultimate issue (Katz 1992), in order
to express an opinion only on that psychiatric issue for
which they have expertise. They also believe that it encour-
ages the psychiatrist to explain what has happened, and
clarifies that the moral issue should be decided by the trier
of fact. Most forensic psychiatrists, however, consider opin-
ions on the ultimate legal issue proper unless legally pro-
scribed from doing so. Not expressing an opinion on the
legal issue can be an artificial limitation, and expertise in
forensic psychiatry should involve familiarity with relevant
legal criteria.
Report formats need not follow a specific style, and
may differ. Lawyers and judges are most familiar with the
legal report format that begins with the conclusion(s), fol-
lowed by explanations of the facts and reasoning that sup-
port it. Forensic psychiatrists may wish to adopt this legal
format in order to make it more readable to attorneys and
judges who may not wish to wade through enormous
amounts of information prior to reaching the conclusion.
This format will be utilized in this chapter, but it is not
necessary and a standard psychiatric format is often
acceptable. Nonetheless, we emphasize that a potential
problem with the general psychiatric format is that the rel-
evant legal opinions may be missed and obscured by the
mass of clinical material that may be of little relevance to
the judge or the attorney. If the general psychiatric format
is used, the relevant reasoning and legal conclusions
nonetheless must be added. Purely conclusory reports are
unacceptable, even if requested by an uninformed judge or
attorney. In forensic psychiatric cases, the opinion is often
best placed at the beginning of the report in legal style so
that the judge or other officers of the court may, if they
wish, read the opinion before they undertake a more com-
prehensive reading of the report. However, the other
aspects of a report still are essential.
In most cases it is also crucial that a careful examin-
ation be performed and all the relevant data obtained (see
Chapter 2). The attorney should be asked to provide all
relevant data and clarify the legal question and criteria.
The interviewing of collateral sources may be necessary,
and psychological, neurological and other medical tests
may need to be performed before a conclusion is reached.
If necessary, home visits should be carried out. If a report
is required before full evaluation is completed, the tenta-
tive nature of any conclusions should be stated, or the
attorney should be informed that no opinion is yet pos-
sible. If relevant information is being intentionally with-
held because of legal technicalities, then questions should
be raised that the forthcoming evidence might contradict
an opinion desired by the attorney. Ordinarily, the forensic
psychiatrist should insist on seeing such evidence before
offering an opinion. Despite attorneys wanting clear con-
clusions, uncertainty should be acknowledged if clearly
present (Katz 1984). It is dishonest to imply unwarranted
certainty. Presenting the reasoning and indicating the
degree of certainty of an opinion is essential. If the psych-
iatrist has a very unusual philosophy or point of view, he
or she has an affirmative obligation not to disguise it as
well-accepted scientific knowledge. Pollack would have
gone further and said that such opinions did not reach the
required level of reasonable medical certainty necessary
for psychiatric-legal opinion making. Because evaluees in
forensic settings often have motives to try to convince an
evaluator to form a self-serving opinion, whenever pos-
sible all data from them must be checked out and com-
pared with independent sources of information such as
police reports, psychiatric records, and interviews with
other persons including other health professionals.
It also is important to clarify areas of agreement with
other psychiatrists so that all the opinions will not be dis-
missed by the trier of fact because of a minor technical
disagreement. For example, all the examining forensic
psychiatrists may agree that a person is psychotic – and

that may be all that is important in reference to the legal
issue. Psychiatrists may disagree whether a person suffers
from schizophrenia, bipolar disorder, or schizoaffective
disorder, but the technical disagreement may be irrele-
vant for the legal purpose.
ELEMENTS OF A GOOD FORENSIC
EVALUATION
In this chapter, special reference is made to two often-
used report formats in the forensic psychiatric area.
Pollack (1974) recommended the following format for a
forensic psychiatric report:
I Identifying data.
II Agency or person requesting examination and
reasons for request.
III Identification of place, dates and duration of
examination(s).
IV Itemization and identification of all data basic to
opinions: All persons examined and interviewed, all
records and all collateral material reviewed before or
after examination of the patient, and all materials
used as the basis of the psychiatrist’s opinions
should be itemized and identified. The relevant
materials from such reports should not be copied
into the report but referred to in section VII (see
below) when used to justify the psychiatric opinion.
V Outline of psychiatric-legal issues: If not provided
by the attorney or judge, the psychiatrist should
outline the specific legal issues to be addressed.
VI Psychiatrist’s opinions: A separate paragraph should
be provided for each psychiatric conclusion which
relates to the specific legal inquiry.
VII Data and reasoning basic to opinions: The psych-
iatrist should provide an itemization of those mater-
ials considered basic for his/her opinions, and
indicate why these opinions were given highest pri-
ority as opposed to other opinions considered by
him/herself but considered less likely. Pollack advo-
cated including all significant materials here – both
data supporting the psychiatrist’s opinions and
those which appear contrary. In another separate
paragraph, if indicated, there should be an outline
of other possible conclusions or interpretations of
behavior, and an opinion as to their ranking order
on the scale of probability. This approach indicates
that all data were considered, and gives an account-
ing of data and opinions considered but discarded.
It is similar to a medical differential diagnosis.
Any inconsistencies or contradictions in data should be
noted, with explanations provided whenever possible.
Different types of psychiatric data should be clearly speci-
fied and demarcated. The history, clinical observation, the
patient’s subjective responses, the psychiatrist’s subjective
Forensic psychiatric report writing 33
responses to the patient, descriptions from collateral
sources, and psychological test reports all should be
distinguished.
In Pollack’s format, aspects of the clinical psychiatric
examination should be included, but usually only when
coupled with their specific relationship to the legal issue.
This includes significant experiences of life history and
personality development and clinical data obtained dur-
ing the psychiatric examination (mental status). There
should be a description of how and why these aspects
relate to the legal issue.
Psychiatric inferences and interpretations of behavior
and mental and emotional states should be distinguished
from more basic clinical or other descriptive data. Pollack
advocated making a clinical psychiatric diagnosis if pos-
sible, but relating it to the psychiatric inquiry and opinion.
Psychodynamic inferences should be clearly identified
including historical, developmental, and behavioral data,
and the reasoning by which such inferences were derived
should be elaborated in a separate paragraph (Pollack
1974). In presenting the reasoning, Pollack recommended
presenting first the data and reasoning which most per-
suasively supports the final opinion rather than open-
ing with negative data. Pollack recommended that only
the most meaningful and relevant materials should be
included and linked to the legal issue by expressed rea-
soning. Rejected possible opinions should then be pre-
sented with reasoning related to why it was not sufficiently
persuasive to overturn the major opinion. He recom-
mended offering levels of confidence about alternative
minor rejected opinions that are relevant to the legal
issue and describing how much probative weight is given,
and why.
The most persuasive format in Pollack’s opinion is to
couple the data with reasoning following the psychiatric
opinion. He believed that the report should be as short as
possible, with inclusion of only the most significant pro-
bative material. The level of confidence of the expert’s
opinion should also be given, and it should be specifically
indicated if it falls below reasonable medical certainty.
Positive findings from the physical and neurological
examinations, laboratory studies, and other medical reports
should be summarized in a separate paragraph. If further
examinations are indicated to substantiate the psych-
iatrist’s opinions, they should be recommended in this
section in Pollack’s format. Psychiatric qualifications
should be noted under the psychiatrist’s signature empha-
sizing those such as being a diplomate of certifying boards,
which characterize his or her expert status. Pollack’s for-
mat can include information regarding psychiatric history,
mental status, reasoning behind the psychiatric diagnosis,
and a description of the data surrounding the events in
question, but only to the extent that information from
these categories is relevant for the legal conclusion and
only in the section describing the reasoning process. Many
reports in Pollack’s style therefore do not include a psychi-
atric diagnosis or mental status examination. Although
34 History and practice of forensic psychiatry
the reasoning section is undoubtedly essential, Pollack’s
view is controversial because it does not routinely include
the psychiatric data, which usually is part of a clinical
evaluation. Most forensic psychiatrists do include this
data, as illustrated below. Pollack’s style emphasizes the
reasoning process as the most important part of the report
including analysis of alternative possibilities, and why they
were rejected.
In comparison to Pollack’s approach, the format for
psychiatric report writing originally recommended by
the American Board of Forensic Psychiatry lends itself to
more comprehensive reports. This format also follows
the legal style, but includes more of the usual psychiatric
data which are part of a clinical report. It is given as a
model style, which need not be rigidly applied. However,
the Board states that unacceptable reports generally lack
significant information in one or more of these cat-
egories. For instance, they do not separate data from con-
clusions, or do not identify the relevant legal question to
be answered. In the following discussion we will also
make some recommendations that we think are likely to
increase the efficacy of the forensic psychiatric report,
thereby modifying somewhat, the latter format. The
Board format is as follows:
I Introduction: The examinee should be identified,
as well as the person or agency requesting the psy-
chiatric evaluation. The purpose of the evaluation
should be stated, i.e., the legal question that the
examiner is being asked to address. The legal stan-
dard under which the evaluation will be considered
should be made explicit.
II Opinion: This section should contain a summary
of the final opinion in language meeting the legal
standard.
III Sources of information: These should be identified.
Data, duration and location of interviews should
be noted. All documents that were reviewed should
be identified and listed.
IV Confidentiality: This section should include the
nature of confidentiality as explained to the exami-
nee, and an estimation of the examinee’s compre-
hension of that communication.
V Data surrounding the events in question: This sec-
tion should include the events and relevant after-
math as described by the examinee, as well as data
from other versions according to records or others.
Generally, detailed descriptions with quotations
are important when possible.
VI Relevant past history: The examinee’s family and
developmental history, prior medical, criminal and
psychiatric history, quotations from other docu-
ments and interviews may be included here. This
section generally follows the outline of a psychi-
atric history.
VII Mental status examination: It is generally import-
ant to have a complete mental status evaluation,
including a description of the circumstances of the
evaluation, whether or not the examinee was
taking medication at the time, and who were pre-
sent during the interviews. Descriptions of appear-
ance, speech, affect, perception, apperception,
intelligence, thought process and content, atten-
tion, orientation, memory, judgment, insight and
cognition are appropriate.
VIII Summary of special studies: In this section, sum-
maries of psychological testing, neurological exam-
inations, electroencephalograms (EEGs), computed
axial tomography (CAT) scans, etc., should be
reported.
IX Diagnostic and forensic formulation: In this sec-
tion the preceding data should be organized and
marshaled so as to make clear the basis for the psy-
chiatric diagnosis, if any. In a similar fashion, the
basis for the conclusions relating to the legal ques-
tions should be written in language relatively free of
jargon, outlining the specific legal standards, whether
or not the ultimate issue is directly addressed.
We also recommend that Section IX be explicitly divided
into a diagnostic section as well as a section encompass-
ing the forensic formulation. The diagnostic section
should begin by acknowledging the type of nosological
criteria that will be used, which in the United States usually
corresponds to the most recent version of the Diagnostic
and Statistical Manual (DSM) of Mental Disorders
(American Psychiatric Association [APA] 2000). If other
diagnostic systems are used, these should be clearly
acknowledged. Moreover, because the DSM approach is
the standard for psychiatric diagnosis in the United States,
experts who opt to use a different diagnostic system are
obliged to explain their decision to do so, including pro-
viding adequate data to indicate the scientific or other
(e.g., psychodynamic) basis for using a different nosolog-
ical system. If psychological testing is to be used as an
adjunct of the diagnostic process, this should also be
explicitly acknowledged in the diagnostic section.
Malingering of mental illness is especially relevant to
forensic psychiatric examinations because individuals
involved in legal proceedings may exaggerate their psychi-
atric symptoms in order to obtain a favorable outcome.
In the criminal law area, for example, the defendant may
fabricate or exaggerate mental difficulties in order to
minimize his or her criminal responsibility, whilst in civil
cases the plaintiff may malinger in an effort to prove
occupational or social disability in order to collect monet-
ary awards. We strongly recommend that malingering be
considered on a routine basis in forensic psychiatric evalu-
ations. If a systematic examination of malingering is
deemed necessary, DSM-IV-TR recommends that four
factors should be considered: (i) medico-legal context of
the presentation, which by definition in a forensic report
is always present; (ii) substantial discrepancy between the
evaluee’s stress or disability and objective data; (iii) lack of

cooperation during the psychiatric evaluation and non-
compliance to recommended treatment; and (iv) the
presence of antisocial personality disorder (APA 2000).
According to this approach, an evaluee should be strongly
suspected of malingering if any combination of the above
four factors are present. This approach has the disadvan-
tage that the diagnosis of antisocial personality disorder
and its requisite precursor, conduct disorder, can be a
laborious and time-consuming process. Moreover, some
would stress that there is little support for antisocial per-
sonality disorder as a sensitive marker of malingering
(Resnick 1998). For certain specific problems such as
posttraumatic stress disorder or psychosis, certain algo-
rithmic approaches have been proposed that can be gen-
erally helpful (Resnick 1998; Hall and Poirier 2001). Many
psychometric instruments have been used in evaluations
for malingering (Hall and Poirier 2001), some of which can
be administered in a short time (Miller 2001). However,
some of these instruments may require specialized train-
ing and are themselves time consuming in their adminis-
tration (Hall and Poirier 2001).
Dissimulation of sanity should also be considered as a
possibility (Diamond 1956). Psychiatric symptomatology
can be withheld even when it could be to the person’s legal
advantage to be mentally ill. It is not uncommon for indi-
viduals with psychotic illness to refuse to accept that they
are mentally ill, and it may entail a careful appropriately
focused evaluation to get through their denial and detect
legitimate mental illness. It can be more acceptable to some
individuals to be thought antisocial than psychotic or men-
tally ill. Additionally, in criminal cases, the defendant may
attempt to make fictitious attempts to appear healthy in
order to avoid being declared incompetent to stand trial
and sent to a psychiatric hospital. In civil cases involving
child custody, a mentally ill parent may attempt to deny
psychopathology in order to secure the right to interact
with his or her child. Dissimulation of sanity probably is
under-appreciated, and is very easy to overlook. Inadequate
superficial examinations can miss both malingering and
dissimulation of mental health (see Chapter 55).
The DSM system requires a multi-axial diagnostic
impression for clinical purposes. In the forensic psychi-
atric area, judges and attorneys frequently want to see the
total diagnostic impression upon which the psychiatric-
legal opinions were based. We therefore recommend a
complete multi-axial impression be provided using all
five axes toward the end of the diagnostic section. In most
cases, at the very least, Axis I and II categories should be
included. Some cases may demand close scrutiny regard-
ing specific steps required to make a diagnosis. This may
include utilization of instrumentation known to increase
reliability of diagnostic assessments such as semi-
structured interviews like the Structured Clinical Inter-
view for DSM-IV Axis I Disorders (SCID-I) (First et al.
2000). Some semi-structured interviews may require
special training for optimal use. The same may be true
for characterization of symptom clusters that require
Forensic psychiatric report writing 35
re-evaluation and comparison from two or more time
periods. In forensic psychiatric evaluations, reliable scales
designed to provide some quantitative characterization of
general psychopathology or specific symptom clusters
may be of substantial help (Perkins et al. 2000; Yonkers
and Samson 2000).
Regarding the formulation of the forensic psychiatric
opinion, it should be clear from the outset that a diag-
nostic impression is usually only a starting point for con-
sidering relevant psychiatric-legal opinions. Usually, the
mere statement that an individual suffers from a specific
set of mental disorders does not provide sufficient reso-
lution. Specific symptoms, symptom combinations or
disabilities of legal relevance must be clearly identified
and characterized in detail. These in turn must then be
linked to the specific legal questions. The specific linkage
between relevant psychiatric categories and legal ques-
tions should be illustrated through the use of real-life
examples from the relevant case or with the aid of hypo-
thetical scenarios, if appropriate, whenever considera-
tion of probability of further occurrence is an important
component of the forensic psychiatric opinions.
The Board format has a section indicating the explan-
ation given an evaluee regarding confidentiality limita-
tions. This aspect is important, since explanations are
required in ethical guidelines (see Chapter 8). This inclu-
sion is also important because in some jurisdictions fail-
ure to explain the nature and purpose and confidentiality
limitations could preclude the testimony and report
from being admissible. Even if not specifically men-
tioned in the report, it is crucial for ethical reasons to
describe confidentiality limitations to any evaluee. Most
forensic psychiatrists recommend indicating in the report
that an explanation was given.
Many similarities exist between different forensic psy-
chiatric report styles. All acceptable styles identify the
legal issue, frequently use a legal format, identify all the
data obtained and utilized, and have a section applying
the psychiatric data to the legal data as well as an explan-
ation of the basis for the legal conclusion which includes
the reasoning process. Most acceptable formats include a
psychiatric history, mental status, reasoning behind the
psychiatric diagnosis, and a description of data surround-
ing the events in question.
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American Psychiatric Association. 2000: Diagnostic and
Statistical Manual of Mental Disorders. Fourth edition,
text revision. Washington, DC: American Psychiatric
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Diamond, B.L. 1956. The simulation of sanity. Journal of
Social Therapy 2, 158–65.
Diamond, B.L. 1985. Reasonable medical certainty,
diagnostic thresholds, and definitions of mental illness
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in the legal context. Bulletin of the American Academy
of Psychiatry and the Law 13, 121–8.
First, M.B., Spitzer, R.L., Williams, J.B.W., Gibbon, M. 2000:
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(SCID-I). In: Task Force for the Handbook of Psychiatric
Measures (eds.), Handbook of psychiatric measures.
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Hall, H.V., Poirier, J.G. 2001: Detecting Malingering and
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Katz, J. 1984: The Silent World of Doctor and Patient.
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Katz, J. 1992. ‘The fallacy of the impartial expert’
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Miller, H.A. 2001: M-Fast: Miller Forensic Assessment of
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Perkins, D.O., Stroup, T.S., Lieberman, J.A. 2000: Psychotic
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Rosner, R. 1990: Forensic psychiatry: a subspecialty.
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Guidelines for courtroom testimony
PHILLIP J. RESNICK
The role of the expert witness is to educate the court
about matters that are beyond the layperson’s under-
standing. Medical reports or testimony are required in
50–85 per cent of all trials (Hirsch, Morris, and Moritz
1979). The U.S. Supreme Court has discussed the ‘pivotal
role that psychiatry has come to play in criminal pro-
ceedings’ (Ake v. Oklahoma 1985). The court expects
psychiatrists to ‘conduct a professional examination on
issues relevant to the defense, help to determine whether
the insanity defense is viable, to present testimony, and to
assist in preparing the cross-examination of the state’s
psychiatric witness.’
TYPES OF WITNESS
It is a general principle of law that courts have a right
to every person’s evidence. A psychiatrist may be sub-
poenaed to testify either as a fact (percipient) witness or as
an expert witness. A fact witness simply states his or her
direct observations. For example, a psychiatrist who saw
a patient for psychological symptoms after an automo-
bile accident might be asked to testify about the present-
ing complaints, number of visits, and any medications
prescribed. A psychiatrist is not ordinarily asked to give
opinions when serving as a fact witness. In a small minor-
ity of jurisdictions, however, the court may ask treating
psychiatrists to state an opinion. The psychiatrist should
then be qualified as an expert witness and may seek an
expert witness fee from the party who sought the opin-
ion (Hirsch 1975). The opinions of treating psychiatrists
may be given high credibility by the court because they
are not the views of hired witnesses.
The expert witness is a witness who has a ‘special know-
ledge’ of the subject on which testimony is to be given. The
knowledge must be viewed as not normally possessed by
the average person. The psychiatric expert witness may
testify in the form of an opinion about facts directly
related to the profession of psychiatry. In practice, the
psychiatric expert witness may function to make the judge
5
aware of the facts, as well as his or her conclusions about
symptoms, causation, and prognosis (Gutheil 1998).
TRUTH, ADVOCACY, AND ETHICS
The objective of trials is the peaceable settlement of
disputes with the appearance of fairness. Trials make
no pretense of being scientific. In the United States
and England, trials are conducted within the adversary
model – that is, the attorneys are advocates of the causes
they represent. Cast into the midst of this battle, the
ethical psychiatric witness must resist the temptation to
accept an advocate’s role (Curran et al. 1980).
It is a fallacy to assume that a psychiatric witness can
be completely impartial. Regardless of whether one is
employed by the court or by an attorney, the psychiatrist
usually starts out with an impartial attitude. Once he or
she has formed an opinion, however, it is only human for
them to identify themselves with that opinion and to
hope for the success of the side that supports their con-
clusions (Diamond 1959). However, once the psychiatrist
takes the witness stand, he or she must do their best to
impartially preserve the truth and their professional
integrity. Relevant information may not be kept secret
(Halleck et al. 1984). The psychiatrist must guard against
any sense of loyalty to the retaining attorney that would
cause him or her to shift his thinking from that of an
objective expert witness to that of an advocate.
Blatant advocacy is easily recognized and reduces the
credibility of the expert witness; subtle advocacy is the
more difficult problem. Zusman and Simon (1983)
reviewed examinations of plaintiffs about psychological
damage resulting from the 1972 collapse of the Buffalo
Creek dam. They attributed differences in psychiatric opin-
ions to the interview settings, the examiners’ training and
orientation, and forensic identification with the attor-
neys who employed them.
Psychiatrists who are inexperienced in courtroom work
may be unaware that their diagnoses and conclusions
38 History and practice of forensic psychiatry
regarding legal issues are considered only as opinions.
Juries are instructed to decide for themselves how much
weight to give the testimony of each witness. Even when
it is uncontradicted, the jury has the right to disregard
psychiatric opinion evidence. The jury alone makes the
ultimate decisions about disputed issues, such as criminal
responsibility or liability for malpractice.
The expert should not go beyond the available data or
the scholarly foundations of his or her testimony (Brodsky
and Poythress 1985). An ethical psychiatric expert can
enhance their credibility by appropriately acknowledg-
ing facts of the case which are unfavorable to their opin-
ion, the limitations of their opinion, and hypothetical
situations under which their opinion would be different
(Gutheil 1998).
Preparation for testimony
When approached by an attorney to perform an evalu-
ation in order to help resolve a legal dispute, the psych-
iatrist should initially clarify several points. The specific
legal issue and legal standard should be put in writing by
the attorney. In a criminal case the attorney, for example,
may wish an opinion about competency to stand trial,
sanity at the time of the act, or psychiatric factors for
mitigation of the penalty. Legal standards vary from one
jurisdiction to another. Before accepting any legal refer-
ral, psychiatrists should be certain that there is no actual
conflict of interest or even an appearance of conflict of
interest. Fees should also be clearly understood.
Before beginning an evaluation for legal purposes, the
psychiatrist has an absolute obligation to inform the sub-
ject about the absence of confidentiality and to specify
those persons who will receive copies of any report.
Psychiatrist–patient confidentiality by treating psych-
iatrists may or may not be respected in court. When asked
to reveal personal information in open court, a treating
psychiatrist may request an opportunity to explain to the
judge in chambers why such information may be irrele-
vant to the issue at hand, and should remain confidential.
The judge, however, is the final decision maker. The psych-
iatrist who complies with a judge’s direction to reveal
information is immune from criminal and civil liability.
Should he or she fail to comply, the psychiatrist may be
held in contempt of court.
DEPOSITIONS
A deposition is a ‘statement of a witness under oath, taken
in question and answer form as it would be in court, with
opportunity given to the adversary to be present and cross-
examine …’ (Gifis 1996). Depositions are of two types: (i)
evidence depositions; and (ii) discovery depositions.
Depositions taken to preserve testimony in the event
that a witness will not be available at the trial are called
evidence depositions. This type of deposition adheres to
the usual trial procedures of direct and cross-examination,
and is often videotaped for viewing at the trial. In a
videotaped deposition, the psychiatrist should think of
the camera as a friend. Each question and answer should
be treated as a separate item because the deposition may
be edited before it is shown at trial. Turning away from
the camera is glaringly obvious on videotape.
The discovery deposition is designed to gather infor-
mation prior to trials. Almost all questions are asked by
opposing counsel. This type of deposition plays an import-
ant role in civil litigation. The psychiatric expert should
thoroughly prepare for a discovery deposition because it is
likely to have a significant impact on settlement negoti-
ations. Over 90 per cent of cases settle before trial.
During a discovery deposition, the attorney’s goals are
to learn the facts and opinions of the opposing witness,
assess strengths and weaknesses, and gather ammuni-
tion for cross-examination at trial. The attorney may
ask broad questions to encourage rambling answers that
might reveal new facts. The expert witness being deposed
should not volunteer any information not called for in
the questions. The psychiatric expert should listen care-
fully to each question asked during the deposition. It is
helpful to pause for a moment after the question is asked
to give it careful consideration, and to allow time for
other attorneys to object (Gutheil 1998). The expert wit-
ness should request the written record of the deposition
for future review and planning of trial testimony. One’s
deposition should be re-read just prior to trial to refresh
the expert’s memory. Attorneys often seek to impeach the
expert’s credibility by showing differences between depos-
ition and trial testimony.
COURT TESTIMONY
The psychiatric expert witness first undergoes direct
examination by the attorney who called him or her. This
consists of non-leading questions that allow the wit-
ness to express his/her opinions and reasoning without
interference.
Cross-examination is conducted by the adversary
attorney to test the credibility of the testimony. Redirect
examination – sometimes called rehabilitation – allows
the retaining attorney to repair damage and clarify points
from cross-examination. Re-cross-examination is limited
to issues raised in the redirect examination.
DIRECT EXAMINATION
Qualifications
At the beginning of the direct examination, the qualifica-
tions of the expert are elicited. Ordinarily, any licensed

physician will be recognized as an expert witness with
the right to give opinions. Qualifications should include
schools attended, internship, residency training, academic
titles, hospital affiliations, board certifications, and honors.
Those journal and book publications that are especially
relevant to the case at hand should be mentioned. It is
preferable to have the attorney elicit these qualifications
through several questions to avoid the appearance of
immodesty (Usdin 1977).
Credibility
It is critical for the expert witness to establish credibility
with the jury. Credibility may be divided into three com-
ponents: (i) expertise, including the witness’s credentials,
training, and experience; (ii) trustworthiness, including
sincerity, the appearance of objectivity, and lack of parti-
sanship; and (iii) dynamism, that is, the style of delivery
during testimony (Bank and Poythress 1982).
Trustworthiness may be more important than cre-
dentials in achieving credibility (Appelbaum and Anatol
1974). Studies reveal that wearing conservative clothing
substantially increases the psychiatrist’s credibility in court
(Tanton 1979). Male psychiatrists should wear dark suits.
Solid colors enhance credibility, whereas pinstripes con-
fer greater authority (Malloy 1988). Female psychiatrists
appear most credible if they wear solid-colored suits with
skirts that fall below the knee. Conservative dresses with
contrasting blazers are also effective (Malloy 1996). Both
male and female witnesses should avoid wearing jewelry
or anything ostentatious. Local customs should be con-
sidered in making decisions about what to wear to court.
The expert witness’s style of speech has considerable
impact on his or her credibility (Lubet 1998). In controlled
studies of mock testimony, powerful speech was found to
be more convincing and credible than powerless speech
(Conley, Obar, and Lind 1978). Powerful speakers are
straightforward and give more one-word answers than
powerless speakers. Used by persons with low power and
status vis-à-vis the court, powerless speech tends to make
more frequent use of the following (Erickson et al. 1978):
1 Intensifiers (so, very, surely): I surely did.
2 Hedges (kind of, I think, I guess).
3 Especially formal grammar.
4 Hesitation forms (uh, well, you know).
5 Gestures (using the hands to point while saying ‘over
there’).
6 Questioning forms (rising, question intonation in
declarative contexts).
7 Excessive politeness (please, thank you, sir).
Opinion with reasonable medical certainty
After listing his or her qualifications, the expert is next
asked to describe their clinical examination and the
Guidelines for courtroom testimony 39
background materials that were reviewed. It is most effi-
cient if the witness can refer to the first page of their
report for the exact dates and length of examinations and
a complete list of documents reviewed.
The witness is then asked whether he or she has
formed an opinion with reasonable medical certainty
regarding the contested issue. The exact definition of
‘reasonable medical certainty’ varies from one jurisdic-
tion to another (Rappeport 1984). In most states, it sim-
ply means more probable than not. The psychiatrist
should ask the retaining attorney to explain the exact
meaning of the phrase in a particular case if he or she is
not certain.
In law, there is a distinction between the words pos-
sibility and probability. The law considers anything pos-
sible. However, something is not probable unless it is more
likely than not. In other words, when mathematically
expressed, its chances are 51 percent or greater (Hirsch,
Morris, and Moritz 1979). The expert should be aware
that ‘reasonable certainty’ is simply the minimum level of
confidence required to express an opinion in court. It is
possible for the expert who is more confident to say so
(Lubet 1998).
When asked whether he or she has formed an opinion
with reasonable medical certainty, the witness should
reply with only a ‘yes’ or a ‘no.’ According to courtroom
ritual, the witness may not offer an actual opinion until
asked. The witness is then asked to explain the basis for
the opinion – that is, the underlying data and step-by-
step logic used to reach the conclusion. Narrative direct
testimony has been found to be more effective than frag-
mented short answers (Conley, Obar, and Lind 1978).
The presentation should be punctuated by some ques-
tions, however, since prolonged, uninterrupted narrative
may become tiresome.
Hypothetical questions
Hypothetical questions may be put to the expert witness
on direct or cross-examination. All the facts assumed in
the question must be placed in evidence during the trial.
The purpose of hypothetical questions is to protect
against undue dominance by the expert. They permit the
jury to know the premises that underlie the expert’s
opinion, enabling proper evaluation of its weight. It is
not improper for an expert witness to give an opinion
in response to a hypothetical question without having
performed a personal examination. However, the psych-
iatrist must have made an effort to perform a personal
examination. Both in the psychiatric report and on the wit-
ness stand, the expert should state that his or her conclu-
sions are limited because of the inability to perform a
clinical psychiatric evaluation. During cross-examination,
hypothetical questions may introduce evidence that
was previously unavailable to the expert witness. The
appearance of a closed mind about new data suggests
40 History and practice of forensic psychiatry
partisanship. One fair answer is, ‘I would need to
re-evaluate the subject based on the new information.’
The more modern rules of evidence, including the
Federal Rules of Evidence (703, 704), abolish the need for
hypothetical questions. The only limitation on the sup-
porting data used by experts is that it be the type reason-
ably relied on by experts in forming opinions. Although
theoretically sound, in practice hypothetical questions
often prove cumbersome and confusing to juries. The
record for length was set in a 1907 Massachusetts ‘will’
contest with a 20 000-word hypothetical question that
took several hours to read. The answer was, ‘I don’t know’
(MacDonald 1976).
Suggestions regarding direct examination
During the pretrial conference, the attorney and the expert
witness should plan to explicate those issues on direct
examination that are most likely to be attacked during
cross-examination. This provides an opportunity to fully
explain problematic areas to the jury, without the con-
straints of cross-examination. In any event, redirect exam-
ination should allow the expert witness to explain issues
that were cut short during cross-examination.
Answers to specific questions should be relatively
short, clear, and stated in simple language. If answers are
overqualified, boredom can cause the jury to lose inter-
est. Generally speaking, the ‘homier’ the analogy the bet-
ter. While attempting to stay within these guidelines, the
expert witness must still behave naturally for his or her
own personality. A stilted performance will detract from
the witness’s appearance of sincerity.
Psychiatrists should use demonstrative evidence if
possible. Points may be listed on a blackboard. If charts
are made in advance, they can be admitted into evidence
and then taken into the jury deliberation room. For
example, a graph showing a decrement in IQ may facili-
tate the jury’s understanding of the seriousness of a head
injury.
The witness should ordinarily look at the jury and
direct his or her remarks to them. Eye contact will help
the psychiatrist assess the jury’s understanding of what
he/she is saying and enhance their credibility. The expert
witness should never talk down to jurors – if they feel
patronized, they will not accept what the witness is saying.
The expert witness must not become, or even appear
to become, an adversary. Once the psychiatrist is on the
stand, it is his or her absolute obligation to tell the truth,
regardless of the effect it will have on the trial outcome.
The appearance of impartiality is best achieved when
the witness treats both lawyers (on direct and cross-
examination) with the same professional courtesy and
distance (Curran, McGarry, and Petty 1980).
Psychiatrists should not use professional jargon in
court because it is likely to be misunderstood, not under-
stood, or made to look ridiculous. It is preferable to use
equivalent words, such as mood for affect, even if they
are not perfect synonyms. Emerson observed that ‘elo-
quence is the power to translate a truth into language
perfectly intelligible to the person to whom you speak.’
The following example of psychiatric testimony con-
tains jargon: ‘The patient showed marked psychomotor
retardation and considerable inhibition of speech. Some
ideas of reference were implied, although no frank delu-
sion formation was evident.’ This could be expressed in
lay language as follows: ‘His movements were slow and
his voice was low and monotonous. He spoke little and
volunteered nothing. He felt that certain people were
referring to him when they spoke with each other pri-
vately, but he did not show any clear-cut delusions about
this – just vague ideas that he was the subject of other
people’s conversations’ (Davidson 1965).
Nothing alienates a jury more quickly than a psych-
iatric expert witness who appears arrogant. If a witness
is asked whether he or she has ever been wrong, they
should reply ‘yes,’ assuming it is true. While testifying,
witnesses should attempt to display dignity, confidence,
and humility.
Ordinarily, the expert witness should not attempt to
be humorous; a trial is a serious matter. Self-deprecating
humor is the safest type. An extremely experienced wit-
ness may attempt to use humor as a way of coping with
an overzealous cross-examiner, but this is certainly not
recommended for the novice.
The expert witness’s answers should not go beyond the
questions in direct or cross-examination. Volunteering
additional information may open up new areas for cross-
examination, which could be highly damaging.
It is usually best for the psychiatric expert witness
not to volunteer his or her theoretical orientation.
A theoretical school can easily be attacked on cross-
examination.
The expert witness should not say that he or she has
an impression, feeling, or speculation. If the psychiatrist
believes that something is more probable than not, the
same information can be communicated by calling it a
professional opinion.
The expert witness should never mention the presence
of a defendant’s insurance company in a civil trial. In
most jurisdictions, this is viewed as prejudicial because it
may encourage the jury to increase the amount of money
awarded to the plaintiff. Consequently, mention of an
insurance company could lead to a mistrial.
Whether an expert witness should mention counterar-
guments to his or her own position during direct exam-
ination is open to controversy. Research demonstrates
that it is more effective to discuss counterarguments dur-
ing direct testimony if an opposing expert will testify
later (Goldstein, Heller, and Sechrest 1966). If no rebut-
tal is expected, persuasive impact is reduced by bringing
up counterarguments. This may, however, raise ethical
issues about whether the witness is then ‘telling the whole
truth.’

CROSS-EXAMINATION
Areas of attack
Cross-examination is the questioning of a witness by
a party other than the one who called the witness. The
questions will be about testimony given on direct exam-
ination. The purpose of cross-examination is either to
discredit or clarify testimony already given in order to
neutralize damaging testimony.
The cross-examiner may seek to discredit adversary
testimony by showing the witness to be a fool, a liar, and
a nitwit. The goal of cross-examination is not to convince
the witness of his or her error, but to expose weaknesses
in the testimony (Shubow and Bergstresser 1977).
The cross-examiner may seek to attack the expert wit-
ness in the following areas: credentials; bias; adequacy;
and validity. The credentials of an expert witness may be
attacked by showing a lack of experience or education. A
cross-examining attorney may bring out the fact that an
opposing expert witness has not achieved board certifi-
cation, or has required more than one attempt to do so.
The amount of testimonial experience may also be
used to discredit an expert. The cross-examiner may imply
that the witness is inexperienced and unknowledgeable
because of limited testimonial experience. Conversely, if
a witness does have substantial testimonial experience,
the cross-examiner may try to show the witness to be a
professional ‘hired gun.’ If the witness is asked whether or
not they are a professional witness, one good answer is,
‘my profession is the practice of psychiatry. It just so
happens that I am frequently asked to testify on psych-
iatric issues.’
Bias in the expert witness may be demonstrated by
showing a history of having always been employed by one
side. For example, an expert may be consistently hired by
only the prosecution in criminal cases. The appearance of
bias or personal interest is decreased if the witness is able
to say that he or she has testified on behalf of both pros-
ecution and defense, or has testified on behalf of both
plaintiffs and defendants in civil cases. Another way that a
cross-examining attorney may attempt to show bias is by
questions about fees or pretrial conferences. The expert
should not try to avoid answering these questions. If
asked how much one has been paid for one’s testimony,
the expert may reply, ‘I’m not being paid for my testi-
mony. I’m been paid for my time, like the other profes-
sional people in the courtroom.’ Similarly, the expert
should not feel embarrassed about admitting to having a
pretrial conference with an attorney, since this is neces-
sary to prepare for testimony.
The psychiatrist’s examination may be attacked as
being inadequate. Issues such as examination length,
privacy, or obtaining corroborating information may
be questioned. A brief examination may be portrayed as
being inadequate to ‘fully understand’ a complex matter.
Guidelines for courtroom testimony 41
A cross-examiner may attempt to demonstrate incon-
sistencies between police accounts and the defendant’s
account given to the psychiatrist. Marked inconsistencies
may make the psychiatrist look gullible, and make the
defendant look guilty. A cross-examiner may seek to
demean the psychiatric examination by asking, ‘Do you
mean to say that all you did was talk to the plaintiff?’ A
good response is to say that the psychiatrist has special
training in evaluation of the mood, thought organiza-
tion, and speech patterns of mentally ill persons. The
routine mental status examination may be described as a
series of tests to assess such items as memory, concentra-
tion, abstract thinking, and judgment.
The validity and reliability of all clinical examinations
may be attacked. Evidence of limited reliability of psych-
iatric examinations has been collected in Coping with
Psychiatric and Psychological Testimony (Ziskin and Faust
1995). It has been demonstrated that different theoretical
backgrounds predispose psychiatrists to reach different
conclusions based on the same data. There is no scientific
evidence indicating the validity of a retrospective diagno-
sis. Attempts should not be made to defend the science of
psychiatry; rather, the expert should state that he or she
is confident of their opinion in this particular case. The
cross-examiner may point out inconsistencies within an
expert’s report, between his/her testimony and previous
testimony, and between testimony and published articles.
In this technological age, experts should be aware that
attorneys sometimes search the Internet or Web sites for
an expert’s professional biography, publications and even
prior testimony (Malone and Zwier 1999).
Psychiatric expert witnesses should be aware that
transference feelings toward cross-examiners, opposing
experts, or judges may diminish the effectiveness of their
testimony. The primary danger is overadvocacy. If a wit-
ness becomes partisan, he or she is likely to become
overextended, emotional, and defensive, thereby losing
credibility.
Types of cross-examiners
The expert witness should be prepared to encounter three
particular types of cross-examiners (Bromberg 1969).
The first is the ‘country’ lawyer who claims to know noth-
ing. He or she stumbles over technical words, and seeks to
oversimplify human actions and reduce the psychiatrist’s
explanations to meaningless gobbledygook for the jury.
A good response for the psychiatrist is to ‘one down’ the
attorney. For example, the psychiatrist might say, ‘I under-
stand what you mean about big words; I often have diffi-
culty understanding legal terms.’ This gambit places the
expert witness back on the same level as the jury.
The second type of cross-examiner is the ‘unctuous’
lawyer who is excessively polite. He or she apologizes
for taking up the doctor’s valuable time and refers to
the witness as a ‘man of science.’ By concealing certain
42 History and practice of forensic psychiatry
information, such a cross-examiner may proceed to set the
psychiatrist up for a devastating blow toward the end of
his or her testimony. Thus, it is particularly important for
the psychiatric witness not to let his/her guard down when
the cross-examiner is especially friendly or flattering.
Finally, the ‘blustery’ cross-examiner works toward
immediate destruction of credibility and attempts to bully
the witness by making reference to the psychiatrist’s fee
and loyalty to the retaining attorney. Instead of counter-
attacking, the expert witness should use the principles of
judo, in which assailants are defeated largely through the
force of their own assault (Shapiro 1984).
Suggestions regarding cross-examination
An expert witness should never be a smart aleck or
argue with a cross-examiner. The jury will ordinarily
identify with the witness; but if the witness acts smart,
the jury will take the part of the cross-examiner in the
belief that he or she is just doing their job.
Psychiatrists should not be defensive during cross-
examination. Witnesses need not be apologetic if cross-
examiners do not agree with their opinions. It gives the
cross-examiner a distinct advantage if the psychiatrist
loses his or her temper, because it makes the witness look
over-involved to the jury.
The expert witness should never guess at an answer;
it is better to say that one either does not know or does
not remember. An expert witness is not expected to have
a quick, knowledgeable reply to every question.
During cross-examination, the expert should gra-
ciously concede points and admit the obvious. For
example, when asked ‘Dr., isn’t it possible …’ the expert
should reply, ‘Of course it is possible.’ However, the expert
may then go on to point out why it is unlikely. Refusing
to concede an obvious point causes the expert to look
either foolish or hostile. After the expert’s testimony has
concluded, and neither attorney has any further ques-
tions, the judge will dismiss the expert. The psychiatric
expert should then leave the courtroom. The expert
should not stop to consult with the retaining attorney, or
linger to see the remainder of the trial. These activities
suggest too much interest in the final outcome of the trial
(Gutheil 1998).
The psychiatric witness should be aware that any files
that are taken to the stand may be scrutinized by the
cross-examining attorney; he or she may even request a
recess to review them in detail. Consequently, if the
psychiatrist does not wish to be cross-examined on certain
information, it should not be taken to the witness stand.
The expert witness should be wary of acknowledging
any book as an authority (Younger 1982). Once a book is
acknowledged, the witness is liable to be cross-examined
on all of its contents. Instead, the psychiatrist might
indicate that their knowledge comes from many sources,
including training and experience, rather than any single
textbook. Before responding to any question about a
quote, the expert witness should insist on seeing it in
context.
The cross-examiner may ask the expert witness’s
opinion of opposing expert witnesses. It is unbecoming
to engage in personal attacks, even if one has a low opin-
ion of an opposing witness. It is better for the psychiatrist
to simply state that he or she disagrees with the opposing
expert on this occasion.
CONTROL IN THE COURTROOM
A good cross-examiner will seek to control the witness,
much like a rider uses the reins to control a horse. How-
ever, there are several ways in which the witness can exert
some control during cross-examination.
The witness may pause before answering a question,
which serves to break the rhythm of the cross-examiner’s
questioning. It also allows the retaining attorney time to
make an objection. The witness may further disrupt
the flow of a cross-examiner’s attack by refraining from
answering any question that includes a minor error.
The expert witness should take opportunities to break
eye contact with the cross-examining attorney in order to
direct answers toward the jury. This serves to further
establish the expert’s role as an educator, as opposed to
someone who is merely being questioned. The experi-
enced expert may use cross-examination as an opportun-
ity to reiterate opinions given during direct examination.
The expert should try to give full opinions during
cross-examination. If interrupted, the expert should
attempt to complete his or her answer. When the cross-
examiner attempts to limit answers, the jury is given the
impression that he or she is trying to conceal something.
When the expert is cut off before completing an answer,
it should serve as a signal to the retaining attorney to
explicate that area on redirect examination. In an effort
to more tightly control the expert, the cross-examiner
may demand only ‘yes’ or ‘no’ answers. The expert should
listen closely to each question, and determine whether or
not the whole truth will be conveyed by a ‘yes’ or ‘no’
answer. If it cannot, an appropriate answer might be ‘that
question cannot truthfully be answered “yes” or “no”.’
(Gutheil 1998).
The expert should be alert to a pattern of questioning
designed to elicit only ‘yes’ answers. This technique,
which is commonly used by salespersons, makes it more
difficult for the expert to say ‘no’ when the occasion
arises. A cross-examiner may misquote an expert’s report
or earlier testimony. These errors should be pointed out.
They may be an innocent mistake, or a deliberate attempt
to distort testimony. If an expert is badgered, he or she
may turn to the judge and say that they have answered
the question as well as they can. However, this option is
best reserved for only extreme situations.

Finally, the expert should not appear vanquished if a
point must be conceded. The witness should avoid con-
veying any non-verbal communication of defeat to the
jury (Brodsky 1977).
RIGHTS OF WITNESSES
The expert witness has several rights in court (Danner
1983):
1 If the expert is unclear about how they should answer
a question, or whether they must answer the question
posed, they may ask the judge.
2 The expert may ask the judge whether the material
asked for is privileged.
3 The expert may refuse to answer questions that they
do not understand. They may also ask examining
counsel to clarify or repeat the question.
4 The expert may state that they do not know the
answer to a question.
5 The expert may ask the judge whether they can qualify
their answer when a ‘yes’ or ‘no’ answer is requested.
6 The expert has a right to complete their answer, and
should protest if they are interrupted.
7 The expert may refer to written records to refresh
their recollection.
CONCLUSION
The legal process should not intimidate the expert wit-
ness. The psychiatric expert possesses greater expertise
in matters of mental health than the other courtroom
participants. No professional undergoes more intense
scrutiny than the psychiatrist who testifies in court. It
takes courage of conscience for a psychiatrist to tell a
retaining attorney that his or her opinion will not be
helpful. The expert witness must be able to endure seeing
their opinions deliberately distorted by a cross-examiner
one day, and incorrectly reported by the press the next
day. However, the expert who is knowledgeable, well pre-
pared, and thinks well on their feet may find the court-
room experience an enjoyable challenge.
REFERENCES
Ake v. Oklahoma, 105 S. Ct. 1087,84 L. Ed. 2d 53 (1985).
Appelbaum, R.L., Anatol, K. 1974: Strategies for Persuasive
Communication. Columbus, OH: Charles E. Merrill.
Bank, S.C., Poythress, N.G. 1982. The elements of
persuasion in expert testimony. The Journal of
Psychiatry and Law 10, 173–204.
Brodsky, S.L. 1977: The mental health professional
on the witness stand: a survival guide. In Sales, P.D.
Guidelines for courtroom testimony 43
(ed.), Psychology in the Legal Process. New York:
Spectrum.
Brodsky, S.L., Poythress, N.G. 1985: Expertise on the
witness stand: a practitioner’s guide. In Ewing, C.P.
(ed.), Psychology, Psychiatry, and the Law. Sarasota, FL:
Professional Resource Exchange, 389–411.
Bromberg, W. 1969. Psychiatrists in court: the psychiatrist’s
view. American Journal of Psychiatry 125, 49–50.
Conley, J.M., Obar, W.M., Lind, E.A. 1978. The power of
language: presentational style in the courtroom. Duke
Law Journal 78, 1375–99.
Curran, W.J., McGarry A.L., Petty, C.S. 1980: Modern Legal
Medicine, Psychiatry and Forensic Science. Philadelphia,
F.A. Davis, Co.
Danner, D. 1983: Expert Witness Checklists. Rochester, NY:
The Lawyers’ Cooperative Publishing Co.
Davidson, H.A. 1965: Forensic Psychiatry. 2nd edition.
New York: Ronald Press Company.
Diamond, B. 1959. The fallacy of the impartial witness.
Archives of Criminal Psychodynamics 3, 221–36.
Erickson, B., Lind, E.A., Johnson, B.C., O’Barr, W.M. 1978.
Speech style and impression formation in a court
setting: The effects of ‘powerful’ and ‘powerless’
speech. Journal of Experimental Social Psychology
14, 266–79.
Gifis, S. 1996: Law Dictionary. 4th edition. New York:
Barron’s Educational Series.
Goldstein, A., Heller, K., Sechrest, L. 1966: Psychotherapy
and the Psychology of Behavior Change. New York:
John Wiley.
Gutheil, T. 1998: The Psychiatrist as Expert Witness.
Washington, DC: American Psychiatric Press, Inc.
Halleck, S.L., Appelbaum, P., Rappeport, J.R., Dix, G.
1984: Psychiatry in the Sentencing Process. Washington,
DC: American Psychiatric Association.
Hirsch, C., Morris, R.C., Moritz, A.R. 1979: Handbook of
Legal Medicine. 5th edition. St. Louis: The Mosby
Company.
Hirsch, H.L. 1975. Physician as witness – rights, duties,
and obligations. Journal of Legal Medicine 3, 40–3.
Lubet, S. 1998: Expert Testimony: A Guide for Expert
Witnesses and the Lawyers who Examine Them. National
Institute of Trial Advocacy.
MacDonald, J.M. 1976: Psychiatry and the Criminal.
Springfield, IL: Charles C. Thomas Co.
Malloy, J.T. 1988: New Dress for Success. New York: Warner
Books.
Malloy, J.T. 1996: New Women’s Dress for Success. New
York: Warner Books, Inc.
Malone, D., Zwier, P. 1999: Expert Rules: 100 (and More)
Points You Need to Know About Expert Witnesses. Revised
1st edition. National Institute for Trial Advocacy.
Rappeport, J.R. 1984. Reasonable medical certainty.
American Academy of Psychiatry and the Law
Newsletter 9, 19–20.
Shapiro, D. 1984: Psychological Evaluation and Expert
Testimony. New York: Van Nostrand Reinhold.
44 History and practice of forensic psychiatry
Shubow, L., Bergstresser, C. 1977. Handling the
psychiatric witness. Trial 13, 32–5.
Tanton, R.L. 1979. Jury preconceptions and their effect
on expert scientific testimony. Journal of Forensic
Sciences 24, 681–91.
Usdin, G. 1977. Psychiatric participation in court.
Psychiatric Annals 4, 42–51.
Younger, I. 1982. A practical approach to the use of expert
testimony. Cleveland State Law Review 31, 1–42.
Ziskin, J., Faust, D. 1995. Coping with Psychiatric and
Psychological Testimony. 5th edition. Volumes 1, 2, and
3. Marina Del Ray, CA: Law and Psychology Press.
Zusman, L., Simon, J. 1983. Differences in
repeated psychiatric examinations of litigants
to a lawsuit. American Journal of Psychiatry
140, 1300–4.
Suggested reading
Brodsky, S.L. 1991: Testifying in Court: Guidelines and
Maxims for the Expert Witness. Washington, DC:
American Psychological Association.
Group for the Advancement of Psychiatry, formulated by
the Committee on Psychiatry and the Law. 1991: The
Mental Health Professional and the Legal System. New
York: Brunner/Mazel Publishers.
Gutheil, T.G. 1998: The Psychiatrist in Court: A Survival
Guide, Washington, DC: American Psychiatric Press, Inc.
Resnick, P.J. 1986. Perceptions of psychiatric testimony: a
historical perspective on the hysterical invective.
Bulletin of the American Academy of Psychiatry and the
Law 14, 203–19.

Practical issues in forensic psychiatric practice
ROBERT L. SADOFF
The practice of forensic psychiatry can provide a very
satisfying and rewarding experience. However, it can also
be very frustrating unless one pays attention to details
that may significantly affect the work of the forensic
psychiatrist. Aside from all of the substantive materials
that need to be known in order to practice good legal
psychiatry, the forensic psychiatrist must also be a good
practicing clinician.
An important difference between forensic psychiatry
and general psychiatry is that the forensic psychiatrist is
an investigator whose assessment must include informa-
tion beyond the clinical examination – that is, all data
relevant to the legal issue at hand. For example, in crim-
inal cases the forensic psychiatrist must obtain, in add-
ition to other materials, the police investigation reports,
the crime scene forensic data, witness statements, and the
defendant’s confession when available. In civil cases,
the forensic psychiatrist must review medical records of
prior injuries, operations or other traumatic experiences,
as well as observations of others who have been involved
in the care and treatment of the plaintiff. In sum, for the
forensic psychiatrist the clinical examination is necessary
(when possible) but not sufficient for a complete and
comprehensive assessment.
In discussing practical issues for the forensic psych-
iatrist it may be instructive to develop two different
cases, one criminal and one civil, pointing out various
areas that require observation and clarification.
CRIMINAL CASE
The first step in any case is the initial contact by the attor-
ney to the psychiatrist. When a public defender or a
private criminal defense lawyer requests consultation on
a criminal case, several questions must be raised and
issues clarified at that initial communication in order to
avoid subsequent problems. First, the psychiatrist should
ascertain the nature of the charges and the location of
the defendant. Is the defendant at large, that is, on bail, or
6
confined in a particular institution? The attorney should
then be asked to give a brief synopsis of the case and the
reason for seeking psychiatric consultation. If the psych-
iatrist is satisfied that it is the type of case on which he or
she wishes to consult, then they proceed to obtain more
information from the attorney.
All available records should be provided at the initial
mailing. The psychiatrist should be aware that various
discovery rules in different jurisdictions may limit the
immediate availability of some discovery material. What
is important for a valid assessment are the police investi-
gation reports, the statement of the defendant if one has
been made, and statements of other witnesses.
With respect to the examination of the defendant,
depending on the nature of the case, the timing of that
examination may be an issue. If there is a delay between
the crime and the request for psychiatric consultation,
then there may be no urgency. However, some cases
depend on a very early examination of the defendant, as
close to the time of the commission of the alleged offense
as possible. This may involve the psychiatrist traveling to
the prison in the evening or on a weekend. Psychiatrists
may also wish to conduct early interviews with other
people such as the spouse, family members, and neighbors
in order to obtain a clear picture of the event in question.
With respect to fees, the psychiatrist clarifies with
the attorney at the initial telephone call the fee that is
requested. In private cases, working for the defense, a
retainer fee is usually sent with the materials prior to the
examination. For public defenders or prosecutors, billing
procedures usually preclude retainer fees. However, the
hourly fee should be agreed upon at the outset to avoid
any later confusion. Some prosecutors and public defend-
ers require contracts with their expert witnesses, as do
some forensic psychiatrists, for their records.
Depending on the wish of the psychiatrist, the defense
attorney may be present at the initial examination. If the
psychiatrist is examining for the defense, the presence of
the attorney can help to introduce the psychiatrist to the
defendant and to avoid problems where the defendant
may not be certain that it is permissible for him or her to
46 History and practice of forensic psychiatry
speak to the psychiatrist. It may ease entry to the institu-
tion by having the attorney present, or by calling ahead to
ensure admission. Occasionally, a court order is required
for admission to various prisons or mental health cor-
rectional facilities. Sometimes a letter of introduction
is required and should be taken by the psychiatrist to
the prison.
It is essential that the psychiatrist knows not to bring
contraband into prisons. All knives, matches, and gum
should be left in the car or in the office. Recording devices,
cellphones and beepers are usually not allowed. The
patient’s records, a notebook, and pen or pencil for taking
notes are allowed. Some prisons require the psychiatrist
to lock away wallets, purses, keys, or other items in a safety
locker before being admitted into the prison. All prisons
have security measures to ensure safety and may require a
search of the psychiatrist before entering the prison.
Examining the defendant
When meeting the defendant, it is important to reveal
the identity of the psychiatrist, whom the psychiatrist
represents, and what will be done with the information
obtained from the defendant. This is essential, especially
when working for the prosecution, so the defendant
understands that the psychiatrist is not working for his
or her attorney and that what they tell the psychiatrist
may be used against them in a court of law. It is also
important to indicate to the defendant for what purpose
the psychiatrist is seeing the defendant – that is, compe-
tency to stand trial, criminal responsibility, or evaluation
for sentencing, including the possibility of the death
penalty. Without telling the defendant the purpose of the
examination, the psychiatrist’s testimony may later be
restricted or may serve as a basis for appeal if there is a
guilty verdict.1
In some cases, defense attorneys may wish to be pre-
sent when the psychiatrist is examining for the prosecu-
tion. That appears to be the right of the defendant in most
jurisdictions, unless the court orders that no one else is to
be present during the examination. In some cases, when
the defense attorney is not present, the court may order
the examination to be audiotaped or videotaped. In some
jurisdictions, the defendant need not cooperate with the
prosecution psychiatrist.2 He or she may be ordered to be
present during the examination, but may not be ordered
to speak to the prosecution psychiatrist. Thus, the exam-
ination may be limited or restricted, and that fact should
be carefully noted in any written report. However, in
some jurisdictions the defense may not put forward an
1
Estelle v. Smith, 451 U.S. 454 (1981).
2
See Purdons 50P.S. Sect. 7402(f). Also see Commonwealth v. Campo,
480Pa.516,391 A.2d1005 (1978) and Commonwealth v. Glenn, 459Pa.
545,330 A.2d 535 (1974).
insanity defense if the defendant does not cooperate with
the prosecution psychiatrist as he or she did with the
defense psychiatrist.3 It should be noted here that it is
unethical for a forensic psychiatrist to examine a defend-
ant for the prosecution before an attorney has been
appointed or retained (American Academy of Psychiatry
and the Law 1987).
It is important to take a thorough and comprehensive
history during the examination of the defendant. Some-
times, several different examinations will be required
before an opinion can be given. Occasionally, special
testing such as psychological and/or neuropsychological
testing, and neurological examination with electro-
encephalography (EEG), magnetic resonance imaging
(MRI), or computed axial tomography (CAT) is needed.
Where memory is impaired, a sodium amytal or hypnotic
interview may be helpful. In such cases where hypnosis
or amytal is utilized, the procedure should be recorded
on videotape. During such examinations, one should
not lead the defendant or make undue suggestions to
the individual whose memory is impaired. Such leading
questions or suggestible influence will detract from the
effectiveness of the examination and may result in an
invalid conclusion.
Preparation of the report
The forensic psychiatrist should receive and review all
discovery materials and all information that is necessary
for forming an opinion regarding the defendant’s com-
petency, criminal responsibility, and/or disposition before
rendering a report. Sometimes the court orders a report
before all discovery has been obtained. In that case, the
psychiatrist is well advised to prepare a report indicating
it is a preliminary report based on the order of the court,
without the availability of all records that are known to
exist. At the bottom of the report, the psychiatrist may
write, ‘When other information is obtained or made
available to me, I will review it, and if it affects my opin-
ion, I will prepare an addendum or modification to this
preliminary report.’ In that way, the psychiatrist duly sat-
isfies the demand of the court while recognizing that lim-
itations on his or her opinion may occur as a result of the
rules of law within that jurisdiction. The psychiatrist also
keeps the door open for additional materials that may or
may not change her/his opinion and result in an adden-
dum to the report.
Some jurisdictions have an open discovery rule,
whereby all information is freely given by both the pros-
ecution and defense. In other jurisdictions, attorneys
withhold information until the judge orders the release
of the data. In one case, for example, the prosecution
expert’s report was not given until the morning he
3
See, for example, New Jersey Statutes 2CA-5C.

testified. It was very difficult to try to read through the
sixty-seven pages of his report in the few moments before
the court opened and the expert took the stand. That
appears to be an unnecessary burden and a deprivation of
courtesy between and among the principals in the court-
room. How much better it would be if everyone had time
to review, digest, appraise, and analyze the reports of
other experts so the examination and cross-examination
can be as effective as possible. This ‘game playing’ is a
reflection of the adversarial nature of the proceeding.
Some jurisdictions have eliminated that problem by hav-
ing a much more cooperative approach, even within the
adversarial system. Nevertheless, the forensic psychiatrist
must be aware of the particular rules within each
jurisdiction, as they all may vary. One must not be caught
off guard by assuming that the rules are similar
everywhere.
Preparation of the expert witness
The preparation of the psychiatrist as an expert witness is
essential. The psychiatrist should never go into the court-
room without first preparing with the attorney. One must
not only prepare for the questions that will be asked on
direct examination, but must also anticipate the cross-
examination.
Preparation also includes telling the attorney what
the responses will be to various cross-examination
questions. This is done so the attorney is prepared to
rehabilitate on redirect. Sometimes, the response to a
good cross-examination question will weaken the effect-
iveness of direct testimony. Some attorneys prefer their
experts to argue with the cross-examining attorney to
defend their weakened position. However, it is better for
the attorney calling the expert into court to rehabilitate
on redirect, rather than to expect the expert to be the
one to deny information or to argue points on cross-
examination. One should be an advocate for the attor-
ney’s position but not an adversary in the traditional
sense.
The most important characteristic of the expert wit-
ness is credibility. Without credibility, there is no effect-
ive testimony. Cross-examination questions are often
asked that go to the credibility of the expert witness. If
the expert does not respond in a believable manner, the
jury will have no faith in the expert and will discount
other substantive opinions given.
It is important in criminal cases, when working for the
defense, to receive in advance one’s fee for time in court.
‘The check is the key to the courtroom door.’ The cred-
ibility of the expert is also enhanced by having received
his or her fee in advance, as he/she is not dependent on
the outcome of the case in order to receive the fee. On
cross-examination, the expert is often asked if he or she
has been paid for his testimony. The response is that the
expert is paid for his/her time, and not for the testimony.
Practical issues in forensic psychiatric practice 47
One should not apologize for receiving an adequate fee
for the time in court. The fee is always paid on an hourly
basis, but in courtroom work there may be a minimum of
four hours for a half-day or eight hours for a full day if the
testimony goes into the afternoon session. The psych-
iatrist is not able to determine how many hours will
be spent in court, and thus cannot schedule patients
accurately. Therefore, it is advisable to clear at least a half-
day or perhaps a whole day, depending on the nature of
the case, and then to charge the attorney accordingly. The
fee should come from the attorney and not the client. The
expert is the agent of the attorney, aiding the attorney
who helps the client. Whatever arrangement is made
between attorney and client is of no concern to the psy-
chiatrist. The contract is with the attorney, not the client
or defendant.
It is important for the expert witness to know that he
or she is not responsible for the ultimate verdict. The
psychiatrist neither wins nor loses the case: he or she is
but one cog in the great wheel of justice, and should not
boast upon winning a case, nor should he or she fear
being blamed for losing one.
Testifying in court is a skill and an art. One must
be well prepared with the facts and details of the case.
It is helpful to have the materials that were reviewed
listed in one’s report so that one can turn to the report
and read off the materials that helped support the opin-
ion given. One should have those materials available in a
logical sequence in order to turn directly to the materials
and not appear to be fumbling with papers on the wit-
ness stand. A disorderly stance only decreases the image
of the psychiatrist as a true professional in the eyes of
the jury.
With respect to cross-examination, it is important to
respond to cross-examination questions in a professional
manner and usually with direct, short answers. Good
attorneys usually do not ask ‘why’ questions on cross-
examination, since that would open the door for a psych-
iatrist to explain the rationale for her/his conclusions.
Usually, the cross-examination questions require short
responses such as ‘yes’ or ‘no.’ However, the psychiatrist
should not be bound to a ‘yes’ or ‘no’ answer if doing so
would confuse the jury or make the testimony unclear.
The expert can usually appeal to the judge to be allowed
to answer the question and then offer a clarification.
Nevertheless, if restricted to a ‘yes’ or ‘no’ answer, one
must rely on the skill of the attorney calling the expert to
rehabilitate on redirect by asking the expert to clarify the
answer given on cross-examination. One must recall that
this is a battle between lawyers and not between and
among the experts. One may disagree with one’s colleague
without being disagreeable. The expert psychiatrist
should never indicate that a colleague is lying or incom-
petent, but rather that one disagrees with the findings
of one’s colleague, who may have conducted a more
thorough investigation or have a different database, thus
reaching a different conclusion.
48 History and practice of forensic psychiatry
CIVIL CASE
When called by the plaintiff ’s attorney in a civil case, the
forensic psychiatrist should ascertain initially the nature
of the case (e.g., competency, personal injury, toxic tort,
malpractice, domestic relations matter) and determine
whether the case is within the psychiatrist’s expertise.
It may be that the psychiatrist consulted is not a child
psychiatrist, does not have sufficient experience with
psychopharmacology or use of electroshock therapy, and
the case may hinge on specific expertise in any of these
areas. It is incumbent upon the professional to refer the
attorney to the proper experts who could give the most
effective assessment and testimony, if needed, in such a
case. Functioning in a triage capacity is a very important
task of the forensic psychiatrist by referring to the proper
source needed for the best resolution of the case.
In malpractice cases, it is important to determine ini-
tially who the defendants are and whether there would be
any conflict of interest if the psychiatrist became involved
either in a medical malpractice case for damages, or in a
psychiatric malpractice case for liability and damages.
It may be best to refer the plaintiff ’s attorney in some
psychiatric malpractice cases to colleagues a fair distance
away or in another jurisdiction in order to avoid any con-
flict of interest. If the psychiatrist agrees to accept a case
for a civil defense attorney in a psychiatric malpractice
case in which the defendant is known to the expert, all
such prior contact must be revealed at the outset. Defense
attorneys may need to decide whether to allow the psych-
iatrist to become involved, as any prior contact may affect
the case on cross-examination. Would the expert have a
particular bias in helping a ‘friend’ in court?
Fees
In civil cases, fees are established at the initial contact, and
a retainer fee is requested and obtained with the materials
sent by the plaintiff ’s attorney prior to the examination.
Defense attorneys representing insurance companies may
or may not be in a position to offer retainer fees. Psych-
iatrists should ascertain that fact at the outset.
Some psychiatrists prefer examining plaintiffs without
first looking at records in order to preserve ‘neutrality.’
They do not wish to be influenced by the findings of
others or by previous records before examination. That
appears to be a difficulty in forensic cases, since one really
needs to know the issues before exploring in a blind man-
ner. The examination questions need to be focused on
issues relevant to the particular case. Therefore, all avail-
able data should be requested at the outset. During the
examination, one may be alerted to records that had not
been previously obtained, and should insist on receiving
them before proceeding further.
It is usually important for the psychiatrist to discuss
the findings of the examination with the attorney before
preparing a report. The attorney should be given the
expert’s preliminary opinions and should be told what
additional information is required before a report can be
written. If the opinions of the psychiatrist are not helpful
to the attorney, he or she may advise the psychiatrist not
to prepare a report. In most jurisdictions, if the plaintiff ’s
attorney is not going to utilize the psychiatrist at trial, the
psychiatrist may not be identified as an expert and no
report need be required or turned over to the defense
attorney. However, all defense examinations are known
to the plaintiff ’s attorney and reports, helpful or not, are
usually required.
Preparation of the report
It is important to include all relevant information in the
expert psychiatric report. An attorney occasionally may
ask, in a civil case, whether certain information about
prior accidents or injuries may be left out of a report in
order not to ‘prejudice’ the case. This is not a good idea
because a total evaluation includes all relevant informa-
tion, especially prior injuries. If the attorney insists on
having a report without this information, it is best not
to prepare a report and to refer the attorney to another
psychiatrist.
However, in criminal cases there are rules of evidence
that may preclude placing certain information in the final
report. For example, history of previous criminal behav-
ior may be left out if the report is going to be shown to the
jury. Juries are not to be told of prior criminal activity, as
that could prejudice the jury in the particular case. Thus,
there are rules that one must follow and one should not
be constrained about removing information that may be
harmful to the individual examined, if the court agrees
and orders that the information be deleted.
May a report, once prepared, ever be modified or
changed at the request of the attorney? This is a very sen-
sitive issue that affects all forensic psychiatrists. If, upon
request, the forensic psychiatrist deems the changes to be
necessary, and if the changes would not adversely affect
his or her opinion, he or she may make the changes and
send a revised report to the attorney. The psychiatrist
should clearly indicate that this is a revised version of a
previous report. Occasionally, the attorney would not
wish to have the report so marked as revised, but would
rather present only one report that includes the revisions
and discard the original report. In those cases, it is appro-
priate to label the original report a preliminary report.
It is usual for good attorneys, on cross-examination,
to ask if the expert has ever prepared an earlier version of
the report submitted. In answering such a question, the
psychiatrist must be truthful and explain why the changes
were made. If the psychiatrist does not have a copy of
the original preliminary report, there may be some impli-
cation made on cross-examination that the psychiatrist
had something to hide by discarding the earlier version.

Thus, it is important to retain early reports to indicate
what changes were made and for what reasons.
It is essential that the expert does not lie at the request
of the attorney and indicate that there was no prelim-
inary report when, in fact, there was. There may have
been several preliminary reports that had been revised
several times. That fact, if questioned, should be made
known to the jury as a matter reflecting credibility, truth-
fulness, and integrity. In addition, to lie in court about an
earlier version of the report would be perjury – a felony
punishable by fine or prison. The best way to avoid such
a problem in court is to prepare only one report after full
consultation with the attorney about the material to be
included and the structure of the report.
Examination of the plaintiff
The psychiatrist working for the plaintiff ’s attorney may
see the plaintiff several times before rendering an opin-
ion or writing a report. When working for the defense
attorney, the psychiatrist may have only one shot at the
examination and should make the most of it. Thus,
it is suggested that ample time be allowed for such an
examination.
Occasionally, the plaintiff ’s attorney will wish to be
present during the examination by a defense-appointed
psychiatrist. This has become a matter of controversy
and debate among psychiatrists and forensic psych-
iatrists. Many psychiatrists without forensic experience
do not enjoy the prospect of conducting such an examin-
ation in the presence of third parties. They argue that
others present in the examining room dilute the trad-
itional one-on-one relationship and the examination is
conducted in less than ideal circumstances. Some psych-
iatrists refuse to examine an individual in the presence of
others. However, many forensic psychiatrists understand
the needs of plaintiffs to have representation during
every stage of their proceedings. The examination by a
defense psychiatrist may be a traumatic experience for
the plaintiff, who may be comforted by having an ally in
the room. That person may be the attorney, a paralegal,
or a representative of the plaintiff ’s law firm. The exam-
ining psychiatrist may require that person to sit behind
the examinee and not give cues or signals during the
examination.
Interruptions of the examination should not be toler-
ated unless the attorney representing the plaintiff feels
that the question asked is intrusive, inappropriate, or
irrelevant. There usually are no serious problems having
the plaintiff ’s attorney present, taking notes, listening,
and observing. However, there are times when plaintiffs’
attorneys wish to tape record the examination session.
The forensic psychiatrist may agree or refuse to have the
session either tape-recorded or videotaped unless the
examiner is able to obtain a copy of the videotape and/or
a copy of the transcript of the tape recording. Some
Practical issues in forensic psychiatric practice 49
forensic psychiatrists videotape every examination they
conduct.
Preparation for trial
As noted previously for criminal cases, pretrial prepar-
ation is absolutely necessary in civil cases and should occur
prior to the psychiatrist entering the courtroom. The
psychiatrist should know precisely what questions are to
be asked on direct, and should be able to anticipate cross-
examination questions. The psychiatrist should then dis-
cuss his or her responses to such anticipated questions
with the attorney, so that the attorney is also prepared.
On occasion, there will be information that has not
been provided to the expert. This may be a letter, a report,
or even a deposition. In some cases, the expert has not had
the time or availability to interview various people involved
in the case. Very often, when working for the defense in a
criminal case, the expert does not interview the arresting
officers or members of the victim’s family. That fact may
be brought to light under good cross-examination to show
the jury how ‘incomplete’ the psychiatrist’s investigation
has been. When asked if individuals had been interviewed,
the best response is a factual ‘no.’ If given the opportunity,
one may explain why such examinations were not con-
ducted, as due to limitations of time, resources, or avail-
ability, or even the unwillingness on the part of the other
witnesses to be interviewed.
When the cross-examination involves showing the
psychiatrist a document that he or she has never reviewed,
it is prudent for the expert, when surprised in such a
manner on the witness stand, not to offer the opinion,
‘Yes, it automatically changes my opinion,’ but to indicate
that the document reveals new information that has not
previously been reviewed. The psychiatrist may wish to
take some time to review that document and its impact on
his/her opinion before reaching a conclusion to be offered
to the jury.
ESTABLISHING A PRACTICE OF FORENSIC
PSYCHIATRY
It is impossible to address all the practical points needed
to avoid problems in the practice of forensic psychiatry.
Salient practical advice that confronts forensic psych-
iatrists on a daily basis is offered herein in condensed form.
However, the prudent forensic psychiatrist will have sup-
plemented his or her education with a fellowship in
forensic psychiatry before embarking on a career in this
increasingly complex subspecialty of psychiatry. It is now
essential for a psychiatrist to take an accredited fellow-
ship in forensic psychiatry4 before he or she is allowed to
4
List of accredited Fellowship Programs in Forensic Psychiatry,
American Academy of Psychiatry and the Law, Bloomfield, CT, 06002.
50 History and practice of forensic psychiatry
take the examination for board certification in forensic
psychiatry. One does not need board certification in
forensic psychiatry to practice as a forensic psychiatrist,
but it does add to the credibility of the individual as an
expert witness.
If the psychiatrist does not wish to take a fellowship
in forensic psychiatry, he or she should enlist a practicing
forensic psychiatrist as a mentor or consult with a leader
in the field. Certainly, the aspiring forensic psychiatrist
should read the literature and be familiar with the leading
cases that affect the functions of the forensic psychiatrist.
It is not always easy to get started in the field in an area sat-
urated with competent forensic psychiatrists. However,
the aspiring forensic expert can give lectures to lawyers’
groups and can work in clinics and other forensically ori-
ented facilities where his/her skills will become known to
attorneys who may wish to avail themselves of such serv-
ices. Writing articles for attorneys is also a means by which
one can become identified as a prospective expert.
It is not recommended to advertise one’s wares or skills
in legal journals or daily newspapers. Commercial expert
witness groups that charge fees and provide experts to
attorneys around the country should also be avoided. On
cross-examination, one can easily be exposed as belong-
ing to such a ‘factory’ or ‘mill,’ as they are called. However,
there are legitimate professional advisory groups that do
provide forensic services to attorneys. One may affiliate
with such a group and be available for consultation when
needed. It would be unwise, however, to become involved
in a group where membership fees are paid in order to
have one’s name on a list of potential experts.
It is also wise not to offer one’s skills by soliciting to
consult on a particular case. It is better to wait for the
attorney to call the expert. However, it is proper for a psych-
iatrist to let her/his colleagues know that she/he is inter-
ested in taking cases with legal ramifications. Working on
the medical-legal committee of one’s local medical society
is another means of exposure for subsequent consulta-
tions. By and large, the best means of identifying oneself as
a forensic expert is to express an interest, take a fellowship
in an accredited program, and work under the tutelage of
competent and experienced forensic experts.
There have been a number of changes in the field of
forensic psychiatry in the past decade. The rise of
managed care has stimulated further interest in forensic
psychiatry because it tends to be ‘managed care free.’ The
membership of the American Academy of Psychiatry and
the Law that began in 1969 with eight original members
has now grown to well over 3000 members nationwide.
Most psychiatrists practicing forensic psychiatry are not
full time in the field, but also maintain a private treat-
ment practice. It is important for the practicing psych-
iatrist to be aware of potential conflicts of interest when
his/her patient becomes involved in a legal matter. In
most cases, it is unwise and a potential conflict for the
treating psychiatrist to act also as the expert witness for
his/her patient. Claims of bias to help one’s patient will
be brought, as well as the lack of ‘neutrality’ that is essen-
tial in the ethics of forensic psychiatry. Furthermore,
testifying for a patient who does not do well in court
may reflect on the subsequent treatment of the patient
and the therapeutic alliance necessary for successful
therapy (Strasburger, Gutheil, and Brodsky 1997).
Another potential problem for the practicing psych-
iatrist is scheduling. The demands of forensic psychiatry
may preclude a psychiatrist from regular sessions with
particular patients. The judge may require the psych-
iatrist to be in court at a time when he or she regularly
sees a particular patient. That can be quite disruptive to
patients who depend upon regularity of sessions because
of their own schedule.
There are some cases that should be avoided by the
private practicing forensic psychiatrist. These include
evaluating police officers or security guards for clearance
to carry a gun. This is a no-win situation. If the psych-
iatrist clears a guard or a police officer to carry a gun and
that person later misuses the weapon, the psychiatrist
will be blamed for incomplete assessment and making
a recommendation that was improper. If, however, the
psychiatrist determines the guard or the officer to be at a
special risk for carrying a weapon, such persons may sue
the psychiatrist for depriving them of making a liveli-
hood (Sadoff 1998).
Similarly, examining sex offenders to determine
whether they are ‘dangerous’ may also have peril for the
forensic psychiatrist (Sadoff 1998).
Ethical questions may arise when a forensic psych-
iatrist is asked to evaluate a prisoner on death row who
has become acutely mentally ill. What is the role of the
psychiatrist in recommending treatment or providing
treatment for the inmate in order to alleviate his/her
mental condition so that he/she can then be put to death?
Finally, due to the recent proliferation of psychiatrists
carrying out forensic work, the American Psychiatric
Association and the American Academy of Psychiatry and
the Law have developed peer review committees to assess
and evaluate the appropriateness of forensic assessments
and testimony.
CONCLUSION
The practice of forensic psychiatry is rewarding and excit-
ing, but may also be frustrating and very difficult for the
uninitiated. It is strongly recommended that anyone who
is seriously interested in practicing forensic psychiatry
take a fellowship training year or work with a competent,
respected forensic psychiatrist as a mentor. Read the litera-
ture and follow the rules to avoid obvious pitfalls. Never
work on a forensic case unless an attorney is involved.
Occasionally, a plaintiff or a client will call, indicating that
he or she is going pro se without an attorney. It is much
more difficult to work with individuals who do not have

the guidance of an attorney in this very complicated area.
The more one knows, the better protected one is. There is
much to know in a substantive manner, but one also
needs to know the practical issues that affect all forensic
psychiatrists.
ACKNOWLEDGMENTS
I am indebted to Julie B. Sadoff, Esquire, for her careful
reading of the manuscript and her helpful suggestions
with respect to legal issues.
REFERENCES
American Academy of Psychiatry and the Law. February
1987: Ethical Guidelines for the Practice of Forensic
Psychiatry. Baltimore, MD. (Revised 1989, 1991, 1995.)
Sadoff, R.L. 1998. The practice of forensic psychiatry:
perils, problems and pitfalls. Journal of the American
Academy of Psychiatry and the Law 26, 305–14.
Strasburger, L.H., Gutheil, T.G., Brodsky, A. 1997.
On wearing two hats: role conflict in serving as both
psychotherapist and expert witness. American Journal
of Psychiatry 154, 448–56.
Suggested reading
Beck, J.C. 1990: Confidentiality Versus the Duty to
Protect: Foreseeable Harm in the Practice of
Practical issues in forensic psychiatric practice 51
Psychiatry. Washington, DC: American Psychiatric
Press.
Brodsky, S.L. 1991: Testifying in Court: Guidelines and
Maxims for the Expert Witness. Washington, DC:
American Psychological Association.
Bromberg, W. 1979: The Uses of Psychiatry in the Law:
A Clinical View of Forensic Psychiatry. Westport, CT:
Quorum Books.
Bursten, B. 1984: Beyond Psychiatric Expertise.
Springfield, IL: Charles C. Thomas.
Group for the Advancement of Psychiatry. 1991:
The Mental Health Professional and the Legal System,
report no. 131. New York: Brunner/Mazel.
Gutheil, T.G., Appelbaum, P.S. 2000: Clinical Handbook of
Psychiatry and the Law. 3rd edition. Baltimore:
Lippincott, Williams and Wilkins.
Halleck, S.L. 1980: Law in the Practice of Psychiatry:
A Handbook for Clinicians. New York: Plenum.
Sadoff, R.L. 1988: Forensic Psychiatry: A Practical Guide for
Lawyers and Psychiatrists, 2nd edition. Springfield, IL:
Charles C. Thomas.
Schetky, D.K., Benedek, E.P. 1980: Child Psychiatry and the
Law. New York: Brunner/Mazel.
Schetky, D.K., Benedek, E.P. 2002: Principles and
Practice of Child and Adolescent Forensic
Psychiatry. Washington, DC: American Psychiatric
Publishing, Inc.
Simon, R.I. 1987: Clinical Psychiatry and the Law.
Washington, DC: American Psychiatric Press.
Stone, A.A. 1984: Law, Psychiatry, and Morality:
Essays and Analysis. Washington, DC: American
Psychiatric Press.

Education and training in forensic psychiatry
RUSTY REEVES AND RICHARD ROSNER
INTRODUCTION
Over the past twenty-five years, education and certifica-
tion in forensic psychiatry have grown more uniform and
systematic. In 1982, the American Academy of Forensic
Sciences (AAFS) and the American Academy of Psych-
iatry and the Law (AAPL) cosponsored a report, entitled
Standards for Fellowship Programs in Forensic Psychiatry
(AAFS-AAPL Joint Committee 1982). That report fos-
tered a common didactic and experiential core in training
programs in the United States and Canada. The creation,
in 1988, of the Accreditation Council on Fellowships in
Forensic Psychiatry (ACFFP), a semi-autonomous com-
ponent of AAPL, furthered that end by creating a process
to distinguish training programs that met the Standards
for Fellowship Programs in Forensic Psychiatry from
training programs that did not meet the Standards. The
ACFFP accredited fellowships from 1989 until 1997.
Midway through 1997, the ACFFP was supplanted by the
Accreditation Council for Graduate Medical Education
(ACGME). There has been a corresponding change in
nomenclature, i.e., the ACFFP referred to forensic training
programs as fellowships, whereas the ACGME refers to
forensic training programs as residencies. As of July, 2002,
the ACGME had approved thirty-eight forensic residency
programs (with a total of ninety-two trainee positions) as
meeting its criteria for accreditation (ACGME 2002).
The American Board of Forensic Psychiatry (ABFP)
was an early organization that required candidates for
certification to take both a written and an oral examin-
ation to demonstrate competence. The ABFP was estab-
lished in 1976 with the sponsorship of the AAFS and the
Forensic Sciences Foundation (FSF) and financing by the
Legal Enforcement Assistance Administration (LEAA).
Subsequently AAPL also sponsored the ABFP. Successful
completion of the ABFP examination conferred a life-
time certification in forensic psychiatry.
In 1990, AAPL succeeded in obtaining from the
American Psychiatric Association (APA) formal recog-
nition of forensic psychiatry as a psychiatric specialty. In
7
the early 1990s, the APA asked the American Board of
Psychiatry and Neurology (ABPN) to establish an exam-
ination procedure for persons to be certified in the sub-
specialty of forensic psychiatry. The ABPN then
successfully petitioned the American Board of Medical
Specialties (ABMS) for authorization to offer a new foren-
sic psychiatry examination. Thus, as of October, 1994, the
ABFP was supplanted by the examination for Added
Qualifications in Forensic Psychiatry of the ABPN, under
the auspices of the ABMS. Unlike the life-long certification
of the ABFP, the ABPN certificates for forensic psych-
iatrists are valid for only ten years; periodic re-certification
examinations are required to sustain the validity of the
ABPN forensic certification. As of June, 1998, the ABPN
had issued 824 certificates in forensic psychiatry (ABPN
2000a). In 1999 – the last year in which one could be certi-
fied by the ABPN without having completed a fellowship
in forensic psychiatry – the ABPN issued 486 more certifi-
cates (Pasternak at ABPN 2000). It is anticipated that gradu-
ation from an ACGME-accredited forensic psychiatry
residency and certification by the ABPN eventually will
become the preferred route into forensic psychiatry.
Despite these gradual moves toward standardization
and rigor in education and certification, the strong
demand for practitioners in forensic psychiatry currently
makes it possible for one to do work in forensic psych-
iatry without having completed a fellowship, and without
having been certified by the ABPN. As of July, 2000, there
were 2500 members of AAPL, 3500 members of the APA
with a ‘special interest’ in forensic psychiatry (many of
whom are the aforementioned AAPL members), and only
1310 psychiatrists certified in forensic psychiatry by the
ABPN. Thus, at the present time, most practicing forensic
psychiatrists are not graduates of ACGME-accredited
forensic psychiatry residency programs, and are not certi-
fied by the ABPN in forensic psychiatry. They are largely
self-educated, having combined independent readings,
attendance at continuing medical education programs,
and vocational experiences to develop their professional
talents. If one’s goal remains learning outside of a formal

forensic psychiatry residency program, and one is willing
to forego specialty certification in forensic psychiatry by
the ABPN, then a program of systematic independent
study may allow one to develop the skills and know-
ledge necessary to function competently as a forensic
psychiatrist.
For the immediate future, a mix of self-trained and
ACFFP fellowship and ACGME forensic residency-trained,
ABFP- and ABPN-certified and uncertified, forensic psych-
iatrists will practice the subspecialty. Until such time as
the practice of forensic psychiatry is made legally contin-
gent on graduation from an accredited forensic residency,
or certification by the ABPN, some practitioners will con-
tinue to come into the field by independent study and
on-the-job training.
SYSTEMATIC INDEPENDENT STUDY
Systematic independent study is meant to refer to a self-
directed program of education and experience, such as
might be pursued by a practitioner who wishes to work
in forensic psychiatry without participating in an ACGME
forensic residency program. It differs from the earlier on-
the-job training of many old-time practitioners in that it
is more organized and aims to be more comprehensive. It
can be accomplished on a part-time basis and it can con-
tinue over many years, rather than being full-time and
concentrated like a forensic residency.
Persons interested in pursuing systematic independent
study can turn to the ACGME’s Program Requirements
for Residency Education in Forensic Psychiatry to learn
not only the likely structure and content of such a pro-
gram, but also the knowledge and skills a practitioner in
the subspecialty is expected to possess. (The full program
requirements are available on ACGME’s website [ACGME
2000].) In general, any such systematic independent study
will have: a planned series of educational employment
experiences in criminal law, civil law, legal regulation of
psychiatry, and domestic-relations law; a planned sequence
of readings and continuing medical education courses in
forensic psychiatry; and a regularly scheduled supervisory
process in which the would-be forensic psychiatrist obtains
educational input from an experienced and board-certified
forensic psychiatrist.
The series of employments should include part-time
work, with practical clinical education (e.g., on-the-job
training), in such roles and settings as: a correctional
mental health service; a criminal court or domestic rela-
tions court forensic psychiatry consultation service; an
independent medical examiner for the Social Security
administration or for a private insurance company; a
liaison–consultation psychiatric service in a general hos-
pital; and a psychiatric emergency room. The emphasis is
on the series, rather than on any one employment site, so
that the would-be forensic psychiatrist will have a wide
Education and training in forensic psychiatry 53
range of practical experiences encompassing many
aspects of the field, including criminal law, domestic
relations law, and corrections.
1 The criminal law experiences should include such
cases as: competence to stand trial; competence to have
confessed; competence to waive representation by
counsel; post-conviction evaluations to assist the pro-
bation service; evaluations for insanity defense cases;
and assessments of when persons acquitted by reason
of insanity may safely be released from secure settings.
2 The correctional experiences should include such
matters as: voluntary and involuntary treatment of
incarcerated persons; inter-institutional transfers from
correctional facilities to mental health facilities and
from mental health facilities to correctional facilities;
and evaluations to assist the parole service.
3 The domestic-relations law experiences should include
such issues as: child custody cases; children-in-need-
of-supervision cases; juvenile delinquency cases; termi-
nation of parental rights cases; child neglect and abuse
cases; spouse and elder abuse cases; and competence to
be married/to be divorced assessments.
4 The civil law experiences should address such matters
as: assessment of alleged psychiatric disability com-
pensation cases; competence to make a will; compe-
tence to make a contract; competence to manage one’s
finances; and need for total guardianship.
5 The experiences in legal psychiatry should include such
concerns as: competence to consent to treatment; com-
petence to refuse treatment; competence to make a liv-
ing will; competence to designate a health-care proxy
decision-maker; competence to decline to be resusci-
tated; admission to a psychiatric hospital as an informal
or voluntary or involuntary or emergency patient; con-
fidentiality of communications and records; psychi-
atric malpractice; and psychiatric ethics.
These examples are illustrative, rather than exhaust-
ive. No one employment site can be expected to provide
such a broad range of experiences as is desirable, so that
a series of employments is needed. Part-time work for one
or two years in several settings is needed to obtain access
to the appropriate range of experiences.
The readings and continuing medical education
courses must address a similarly broad range of topics.
The would-be forensic psychiatrist needs to know intro-
ductory basic law and the legal system’s procedures; spe-
cial issues in forensic psychiatry; history of (and current
practice in) forensic psychiatry; civil law and psychiatry;
criminal law and psychiatry; domestic-relations and
psychiatry; correctional psychiatry; legal regulation of
psychiatry; and the landmark legal cases in the field.
Continuing medical education in forensic psychiatry
is available through the programs presented at the annual
scientific conventions of the American Academy of
Psychiatry and the Law each October, and the American
Academy of Forensic Sciences each February. Selected
54 History and practice of forensic psychiatry
special panels and courses may be provided at the con-
vention of the American Psychiatric Association each
May. The Learning Resources Center of AAPL offers mail-
service educational audiotapes, videotapes, and reading
materials. The regional chapters of AAPL provide local
educational opportunities.
Tutoring and private supervision in forensic psych-
iatry is usually available on a fee-for-service basis, much
as psychiatrists have obtained private tutoring and super-
vision in psychotherapy. Among other matters, such tutor-
ing should address how to organize the data of forensic
psychiatric evaluations and reports, how to think about
issues in forensic psychiatry, how to write reports for legal
purposes, and how to testify effectively in court. Tutors
should be board-certified in forensic psychiatry and,
preferably, on the faculty of an accredited forensic resi-
dency training program. A list of psychiatrists certified by
the ABFP may be obtained from AAPL’s membership
directory. A list of psychiatrists with ABPN certification in
the subspecialty of forensic psychiatry can be obtained
from The Official ABMS Directory of Board Certified
Medical Specialists, published annually by the ABMS, and
available in many public and medical school libraries.
FORENSIC RESIDENCY TRAINING
Forensic residency training provides a more concen-
trated and integrated experience than systematic inde-
pendent study, designed to ensure exposure to the field’s
diversity, with intensive education and close supervision
from experienced and knowledgeable practitioners.
The ACGME requires of its approved programs
that the training period in forensic psychiatry be twelve
months, and that training occur after completion of a
psychiatry residency accredited by the ACGME. Training
in forensic psychiatry that occurs during the general resi-
dency training will not be credited toward this one-year
requirement.
The clinical assignments must include experiences in
the following three areas: (i) forensic evaluation of sub-
jects of both genders, including adolescent, adult and
geriatric groups, in both civil and criminal contexts;
(ii) consultation to general psychiatric services on issues
related to the legal regulation of psychiatric practice;
and (iii) treatment of persons involved in the criminal
justice system. Residents must have experience in review
of written records, and in testifying in court or in mock
trials. The overall didactic curriculum must include the
following components: (i) a psychiatric curriculum;
(ii) a law curriculum related to forensic psychiatry (e.g.,
fundamentals of law); (iii) a civil law curriculum; (iv) a
criminal law curriculum; and (v) conferences in forensic
psychiatry. The program should also offer a meaningful,
individually supervised scholarly experience for each
resident.
The program must be administratively attached to
and sponsored by a residency program in psychiatry that
is accredited by the ACGME. The program should take
place in facilities accredited by the appropriate state
and/or federal licensing agencies, the courts, and, where
appropriate, the Joint Commission on Accreditation of
Healthcare Organizations. There must be a clear educa-
tional rationale for the inclusion of each participating
institution, and written affiliation agreements specific to
the provision of training in forensic psychiatry between
the institution sponsoring the program and each of the
participating institutions.
The program director must be certified by the ABPN
in the subspecialty of forensic psychiatry, or have equiva-
lent qualifications in forensic psychiatry satisfactory to
the ACGME’s Psychiatric Residency Review Committee.
A major responsibility of the program director is the
preparation of a written statement outlining the educa-
tional goals of the program with respect to knowledge,
skills, and other attributes of residents at each level of
training and for each major rotation or assignment. The
program director must also provide regular evaluation of
residents’ knowledge, skills, and overall performance.
In addition to the program director, there must be at
least one other faculty member certified by the ABPN in
the subspecialty of forensic psychiatry or its equivalent,
and at least one certified child and adolescent psych-
iatrist. The faculty must also be qualified by experience
in forensic psychiatry to provide the expertise needed to
fulfill the didactic, clinical, and research goals of the pro-
gram, and must devote sufficient time to the educational
program. In addition to the faculty psychiatrists, the
faculty must include a lawyer and a forensic psychologist.
All elements of the program must be located in desig-
nated facilities based on written affiliation agreements.
The program must include experiences in: (i) facilities
in which forensic psychiatric evaluations are performed
on subjects with a broad variety of psychiatric disorders
(e.g., a court clinic); (ii) facilities that provide general
psychiatric services to patients with a broad variety of
psychiatric disorders (e.g., a general inpatient unit); and
(iii) facilities that treat persons in the correctional system
(e.g., a jail). Residents must have ready access to a major
medical library with an adequate number of texts and
journals in psychiatry and the law.
These requirements represent a partial list of ACGME’s
requirements. For the complete list, visit the ACGME’s
website (ACGME 2000).
The Association of Directors of Forensic Psychiatry
Fellowships (ADFPF) plays an additional role in the effort
to ensure quality education in forensic psychiatry. The
ADFPF continues the old ACFFP nomenclature by refer-
ring to forensic training programs as fellowships, rather
than following the new ACGME preference for calling
such training programs forensic residencies. The ADFPF,
a semiautonomous Council of AAPL, gives forensic resi-
dency directors a forum to exchange ideas and make

themselves aware of developments relevant to training in
forensic psychiatry, such as certification and accreditation.
The ADFPF meets twice a year, at the annual AAPL meet-
ing, and immediately prior to the annual APA meeting.
CERTIFICATION OF EXPERTISE IN FORENSIC
PSYCHIATRY
The ABPN offers an examination whose successful com-
pletion certifies the psychiatrist for ten years as an expert
in the specialty of forensic psychiatry. The ABPN does not
offer a ‘grandfathering’ mechanism; everyone certified by
the ABPN must pass its examination. The multiple-choice
examination assesses candidates on their knowledge in:
legal regulation of psychiatry; civil; criminal; corrections/
correctional healthcare; legal systems/basic law; children/
families; special diagnostic issues, procedures, and con-
sultations and investigations in forensic psychiatry; risk
assessment; and practice issues (ABPN 2000b).
In order to sit for the ABPN forensic examination, an
applicant must first be certified by the ABPN in psych-
iatry. The examination of April, 1999, was the last ABPN
examination that a psychiatrist could take without having
graduated a one-year fellowship in forensic psychiatry.
The examination of April, 2001, was the last ABPN exam-
ination that a psychiatrist could take without having
graduated an ACGME-approved fellowship. Thereafter,
all applicants were required to submit documentation of
successful completion of one year of ACGME-approved
residency training in forensic psychiatry. The forensic
Education and training in forensic psychiatry 55
training must not begin before the time that general resi-
dency training in psychiatry is completed, including time
spent in combined training programs. The exposure to
forensic psychiatry given to psychiatry residents as part of
their basic psychiatry curriculum does not qualify for this
credit.
REFERENCES
American Academy of Forensic Sciences-American
Academy of Psychiatry and the Law Joint Committee
on Accreditation of Fellowship Programs in Forensic
Psychiatry. 1982. Standards for fellowship programs in
forensic psychiatry. American Academy of Psychiatry
and the Law Bulletin 10(4).
American Board of Psychiatry and Neurology, Inc. 2000a.
Available at www.abpn.com/certification/statistics.html
American Board of Psychiatry and Neurology, Inc. 2000b:
2001 Information for Applicants for Certification in the
Subspecialties of Geriatric Psychiatry, Clinical
Neurophysiology, Addiction Psychiatry, Forensic
Psychiatry and Neurodevelopmental Disabilities.
American Council for Graduate Medical Education. 2000:
Program Requirements for Residency Education in
Forensic Psychiatry. Available at
www.acgme.org/req/406pr296.asp
American Council for Graduate Medical Education. 2002.
Available at www.acgme.org/adspublic/
Pasternak, J. 2000. Personal communication. At the
American Board of Psychiatry and Neurology.

Ethical guidelines
ROBERT WEINSTOCK, GREGORY B. LEONG AND J. ARTURO SILVA
INTRODUCTION
Ethical guidelines in medicine are in a state of flux at the
time of this writing. The American Medical Association
(AMA) revised its Principles of Medical Ethics in 2001
(hereafter Principles). The American Psychiatric Associ-
ation (APA) bases its Annotations on the AMA Principles.
The previous AMA Principles remain relevant in the
most recent revision that has made relatively minor
changes to the existing Principles. However, the latest
version of the APA guidelines does not incorporate the
two new principles that were added, or the revisions in
language of the existing principles. The APA is in the
process of revising its Annotations and Opinions to be
consonant with the revised AMA Principles. The American
Academy of Psychiatry and the Law (AAPL) developed
its ethical guidelines to be consistent with the AMA
Principles and APA Annotations. The AAPL Committee
on Ethics currently also is revising its ethical guidelines
to be consistent with the new AMA Principles. Reference
should be made to the revised AAPL guidelines as well
as to APA Annotations and Opinions as soon as they
become available. Nevertheless, the overwhelming num-
ber of existing guidelines should still be relevant for the
foreseeable future.
Ethical guidelines in forensic psychiatry are, of neces-
sity, complex. Forensic psychiatry operates at the interface
of two disparate disciplines – law and psychiatry – with
differing objectives, philosophies, values, approaches, and
methods. Psychiatry, a branch of medicine, endeavors to
improve mental health and to help patients. Although
Hippocratic physicians saw their duties only to individual
patients, the responsibilities of physicians both ethically
and legally have been extended in modern times to
include society. The law, on the other hand, resolves dis-
putes, with justice, retribution, containment, and deter-
rence as its goals. Ethics as a philosophical discipline itself,
incorporates both deontological (duty) and utilitarian or
consequentialist values, and philosophy itself provides no
clear resolutions to this conflict (Rosner 1990). Dilemmas
8
occur when no resolution is entirely satisfactory since
some ethical value must be sacrificed. No set of ethical
guidelines can foresee every such contingency, so forensic
psychiatrists require training in how to analyze and resolve
ethical dilemmas themselves.
ETHICAL DILEMMAS AND CONFLICTS
Although most forensic psychiatric evaluations do not
present ethical dilemmas, functioning at the interface of
law and psychiatry can frequently lead to ethical conflicts.
There can be no clear resolution methods or any single
relevant rule that does not conflict with another compet-
ing consideration. Stone (1984) in a paper originally
presented at AAPL, stimulated much concern and debate
by positing that the ethical requirements and boundaries
of a healing profession become unclear once psychiatrists
leave the therapeutic realm. Four problem areas can be
distilled from Stone:
1 The basic boundary problem of whether psychiatry
has anything to offer the law.
2 The potential for psychiatrists to try to help a patient
by twisting rules of justice and fairness.
3 The potential for the psychiatrist to deceive a patient
in order to serve justice and fairness.
4 The power of the adversarial legal system to both
seduce and abuse psychiatrists in ways that demean
the profession.
Other potential pitfalls and problems involve reconciling
deterministic psychiatric theories with a legal system
based on free will. For instance, Moore (1984) contends
that mind–brain confusion in American forensic psych-
iatry goes back at least to Isaac Ray, who thought that
if mental disease is physical, the power to choose is
extinguished and the actor is ipso facto not responsible.
According to Moore, the law – in contrast to science –
uses the language of action and reason. Possible physical
causes of mental illness are irrelevant to whether the law

decides to excuse. Halleck (1992) considers the issue of
voluntariness, relevant to assessments by clinicians in
treatment approaches as well as forensic assessments.
Stone cautions that physicians lose their ethical bound-
aries when they give other factors such as justice, advance-
ment of science, or political causes greater weight than
helping patients or doing no harm. He believes that a psy-
chiatrist cannot simply adjust to the adversarial system
and still remain true to his or her calling as a physician.
However, problems exist even in a treatment capacity,
no longer simple or ‘pure.’ Treatment psychiatrists pro-
gressively have had conflicting responsibilities thrust upon
them. In circumstances such as child abuse reporting,
other requirements may take precedence over patient
welfare (Weinstock et al. 1991), especially under circum-
stances in which reporting leads to prosecution of a
patient and to the psychiatrist being used for that purpose
in some states. Therefore, the boundaries of even treating
psychiatrists no longer are clearly demarcated.
Stone also states that juries do not clearly understand
the partisan role of the forensic psychiatrist, or that when
a forensic psychiatrist testifies ‘he or she should be under-
stood as having attempted to present the best case pos-
sible’ (Stone 1984) for the retaining party. Stone argues
that until there is candor, it will not be possible to ‘sweep
the ethical problems of psychiatry under the rug of intelli-
gible adversarial ethics.’ However, these problems are not
unique to forensic psychiatry – they can arise for all
expert witnesses who testify under our adversary system
(see Chapter 2). If changes were to be made, they would
necessarily involve the entire adversary process and its use
of expert witnesses, and not solely forensic psychiatry.
ETHICAL PRINCIPLES RELEVANT TO
FORENSIC PSYCHIATRY
Appelbaum (1990) wrote that, ‘Psychiatrists operate out-
side the medical framework when they enter the forensic
realm, and the ethical principles by which their behavior
is justified are simply not the same.’ He contends that the
principles of beneficence and non-maleficence lose their
primacy to the principles of truth in the forensic setting.
Although ethical conflicts sometimes can arise, Appelbaum
(1984) believes that forensic psychiatrists should present
both the subjective and objective truth. Psychiatrists
should gather the maximum amount of relevant data to
most accurately present the subjective truth as they see it.
Objective truth, according to Appelbaum, requires psy-
chiatrists to make evident any limitations on their con-
clusions. Familiarity with the relevant recent literature is
also essential.
In addition to subjective truth telling or honesty,
Appelbaum (1997) considers respect for persons as the
second moral rule on which forensic psychiatric ethics
should rest. For forensic psychiatrists, the major risk is
that ‘subjects of forensic evaluations will assume that an
Ethical guidelines 57
evaluating psychiatrist is playing a therapeutic role and,
therefore, that the usual ethics of the clinical setting
apply.’ Evaluees may think that, as physicians, forensic
psychiatrists are there to help or at least do no harm, and
so the subject may think that it is safe to speak freely.
According to Appelbaum, while ‘allowing subjects to
hold such beliefs might be an effective means of gather-
ing information, it is inherently deceptive and exploit-
ative, and fails to respect subjects as persons.’ The justice
system shows respect for persons by tempering its pur-
suit of truth with the recognition that sometimes other
values must take precedence. For example, defendants in
western democracies are not tortured to get at the truth,
and in our country constitutional rights generally are
respected. Respect for persons is shown by a forensic psy-
chiatrist not capitalizing on a misunderstanding of his or
her role and by keeping information confidential, except
to the degree required by the legal process to fulfill the
forensic function.
Additionally, according to Appelbaum (1997), not as
professionals, but as citizens, forensic psychiatrists have
duties to behave non-maleficently except when acting
within the legitimate scope of their professional roles in
the pursuit of justice. According to him, ‘they cannot
avoid the obligation of determining whether the actions
they are being asked to perform in fact promote justice.’
For example, assisting in abusive interrogation or torture
of prisoners would fail that test.
Weinstock et al. (1990) have posited that traditional
medical ethics should be retained and have continued to
serve all of medicine as an ideal. They hold that trad-
itional medical ethics should play a role and should be
a factor in the process of balancing conflicting values
using the method recommended by Hundert (1990).
Appelbaum (1997) agrees that violating moral rules is
an inevitable consequence of the complexity of life and
resolving such conflicts ‘requires balancing, among other
morally relevant factors, the nature of each imperative,
the benefits and harms likely to flow from its violation,
and the alternative means of achieving the desired end.’
He states that moral rules are required of individuals, but
moral ideals are desirable. Professional ethics can trans-
form a moral ideal into a moral rule. An example is the
requirement of physicians to relieve pain, which is only an
ideal for the general public. Appelbaum believes that the
moral ideals that should be converted into moral rules are
those values that society wants the profession to promote.
Differences between the ethics of differing professions
should depend on society’s expectation of the profession.
Society gives professions certain privileges in exchange
for certain duties and the expectation for self-regulation.
Although controversial, the retention of traditional
Hippocratic medical values as a consideration in forensic
ethics is most consistent with the findings in surveys of
forensic psychiatrists. The highest-rated potential new
ethical guideline in a recent survey was shown to be a
guideline to consider medical and psychiatric ethics as a
58 History and practice of forensic psychiatry
factor when performing a forensic evaluation (Weinstock
et al. 1991). A way to conceptualize these conflicting issues
would be to see forensic psychiatrists as having multiple
agency responsibilities much like all other psychiatrists,
especially those who consult to any other system. There is
no simple single duty or loyalty for all psychiatrists (see
Chapter 2). In the judicial process there may often be an
assumption that traditional medical ethics remains a con-
sideration, so eschewing medical ethics completely may
in fact be misleading to juries and even judges who may
misinterpret the role of an expert who eschews all medical
values.
Truth telling can harm a patient even in the treatment
setting, such as by making an antisocial personality diag-
nosis, so harm is not unique to forensic psychiatry. Truth
telling has more primacy than patient welfare in the
forensic setting. The opposite priority may be true in the
treatment setting, or at minimum they have equal value.
Primacy though, in situations in which the secondary
duty becomes more serious than the primary duty, does
not necessarily preclude the secondary duty becoming
determinative occasionally of the most ethical course of
action. Examples are child abuse reporting, performing
prearraignment assessments, and treating prisoners to
make them competent to be executed, in which the ser-
ious harm to the secondary duty makes that duty pre-
dominant in those situations. Because of these conflicting
values as well as misunderstandings about the adversary
process, forensic psychiatry has endeavored to develop
ethical guidelines to be used in the practice of forensic
psychiatry. Relevant guidelines have also been developed
by the APA and AMA. However, even ethical guidelines
cannot resolve all ethical problems, as ethical guidelines
and values can conflict. Although some guidance can be
given about prioritization, at some point, the individual
practitioner must balance competing ethics and values
(Hundert 1990). Unfortunately, no rules can cover all
contingencies, but practitioners should not be sanctioned
for behavior about which there can be serious disagree-
ment. Ethics committees can advise and help, although
the conflicting and sometimes differing values of law
and medicine can make this balancing a formidable but
inevitable task. Anyone practicing forensic psychiatry
needs to be ready to analyze options from an ethical per-
spective and not resort to a simplistic rule to the exclu-
sion of all other considerations.
Griffith (1998) emphasizes the importance of dom-
inant/non-dominant group issues, using a cultural for-
mulation in forensic ethics discussions. He considers a
need to be sensitive to such issues as the frequent lack
of respect for African-Americans seeking justice and to
become aware of an individual defendant’s personal nar-
rative in addition to dominance and political facets. Even
if such sensitivity does not result in an assessment help-
ful to a defendant, non-dominant cultural issues should
be understood fully and any unfairness understood. In
Griffith’s opinion, these are reasons for psychiatrists from
non-dominant cultures, more likely to be sensitive to
these issues, to remain in court.
Candilis et al. (2001) propose a robust view of the
forensic role that integrates both the principled and narra-
tive approaches. Central to their concept is professional
integrity tied to the community and its values, reflecting a
community expectation of a broader more physician-
based approach from its forensic experts. In addition, each
profession has its own historical narrative and an internal
set of duties, values and ideals, essential for professional
identity and integrity. The historical narrative of a pro-
fession anchors the profession in values that resist the
vagaries of social and situational forces. Candilis et al. con-
tend that the historical narrative of forensic psychiatry is
still emerging. A narrow view sees a narrowly defined role
as an agency of society and the court. The broader view of
professional integrity that these authors advocate permits
personal and traditional physician-based values to inform
the forensic role. Narrative ethics are an answer to criti-
cism of the principled approach developed by Beauchamp
and Childress (2001). Principles, according to Candilis et
al. (2001), work at the theoretical level to create a frame-
work for appropriate action, but alone are limited in their
ability to address the motives and intentions of individuals.
Alone, principles are inadequate to give guidance in
complex forensic situations. ‘Narrative can operationalize
theory in a practical manner, describing the individual’s
unique path to the forensic encounter.’ In the narrative
approach, all medical and legal dramas are viewed as a
play in which the participants create a moral tale. A foren-
sic expert should take an individual’s narrative into account
and endeavor, if permitted, to describe it to a court.
Weinstock (2001) agrees with the need to balance
conflicting values, and conceptualizes consultation in
forensic psychiatry as not essentially different from con-
sultation to other systems such as managed care. Even in
research roles, a physician has duties to science, but has
ethical responsibilities to remove a patient from a study if
there is a serious risk of harm. Treating psychiatrists have
duties to society (e.g., protecting society from a patient)
that can conflict with duties to a patient, so they also con-
front ethical dilemmas. Ciccone and Clements (2001) fear
ethics becoming arbitrary with the Candilis approach.
They prefer an applied ethics approach entailing a
probabilistic inductive theory of ethics and a systems
epistemology-like context ethics and a scientific episte-
mology rather than a special moral reasoning. In situations
requiring conflicting roles, they advocate having different
forensic psychiatrists perform the conflicting roles.
Appelbaum (1997) supports a principled approach
and recognizes a need to balance conflicting duties when
complex ethical problems arise. He expresses concern
though that ‘if forensic psychiatrists persuade themselves
that they maintain a residual duty – of a professional
nature – to benefit and not to harm evaluees, they are
likely to communicate that to their subjects.’ An evaluee
could be misled into thinking the forensic evaluation is a

quasi-therapeutic encounter. In the process of mutual
deception, the subject will be betrayed and potentially
harmed. In Appelbaum’s view, that is a clear advantage of
deriving the ethics of forensic psychiatry from the pursuit
of justice and not health, thereby sending a clear message
regarding the distinction between the forensic and thera-
peutic roles. Although Appelbaum makes an important
point that probably should be determinative in most situ-
ations, secondary medical responsibilities still might be
relevant in some circumstances, and even determinative
in a few.
Sometimes professional ethics have been distinguished
from personal morals. However, such a distinction can
be confusing since the terms ethical and moral generally
have been used interchangeably. In the professional
realm, ‘ethics’ is the term usually used, whilst in religion,
‘moral’ is the predominant term, though both are generally
interchangeable. Sometimes problems are labeled ‘moral’
when organizations choose not to address them, but know
that some members have strong ethical views on the issue
in question (e.g., some death penalty roles). Sometimes
legitimate differences of opinion exist about whether spe-
cific ethical concerns should apply to the entire profession.
Diamond (personal communication, April 25, 1988) dis-
tinguished between organizational ethics and personal
ethics. Personal ethics can be more stringent than organ-
izational ethics, and can be held by individuals or groups
for personal reasons, not shared by other practitioners.
They may be strongly held, but should not be forced on all
professionals if there is a good ethical foundation for alter-
native approaches. They can nonetheless though be power-
ful guides to clinical practice.
Diamond further differentiated personal ethics from
organizational ethics that include minimal standards of
conduct practitioners must follow. Violations of these
minimal standards can lead to ethics actions up to expul-
sion from an organization, licensing board actions, and
may even lead to legal liability (such as the requirement
not to have sex with patients). Though according to
Diamond, a subcategory of organizational ethics are ideal
standards of practice followed by the most competent
practitioners and leaders in the profession, which even-
tually should be but are not yet enforceable. They are
guidelines for good practice for which there is not yet a
consensual agreement that they are general standards of
practice. They should be, but are not always, distinguished
from enforceable standards in some guidelines. Similarly,
Dyer (1988) has distinguished between ethical guidelines,
which function in a punitive role, and guidelines for good
practice by the concerned psychiatrist that are not enforce-
able but are aspirational and should be considered by psy-
chiatrists trying to behave most ethically. Some of AAPL’s
ethical guidelines might be best seen as aspirational since
not all of them can be enforced. The American Academy of
Forensic Sciences (AAFS) is in the process of developing
aspirational guidelines for good forensic practice to sup-
plement their Code of Conduct.
Ethical guidelines 59
TRADITIONAL HIPPOCRATIC ETHICS
A guiding principle for medicine has been primum
non nocere, or ‘first, do no harm.’ This principle dates
back to Hippocrates in ancient Greece, but efforts to find
its exact origin have been unsuccessful. It is not part of
the Hippocratic Oath, although the oath does enjoin
the physician from using medicine to harm patients (or
anyone) depending on the translation (Weinstock et al.
1990). It is possible that it is a Roman modification of
Hippocratic ethics and is usually stated in Latin. This
principle is not specifically stated in the current Principles
of Medical Ethics as promulgated by the American
Medical Association (AMA 2001). It does, however, still
function ‘to establish physicians as a moral community
(with) delineated obligations and responsibilities specific
to the medical profession’ (American Medical News
2000). It also still is perceived by the general public as the
fundamental ethical principle for medicine.
Hippocratic ethics made a resurgence when medi-
cine was introduced into medieval Europe, probably
because of its similarities to the Catholic confessional,
with its paternalism and secrecy. Current medical ethical
codifications date back to Thomas Percival. In the late
eighteenth century, Percival wrote his Medical Ethics that
presented a scheme for professional conduct with many
features in common with the Hippocratic Oath. It fol-
lowed an epidemic in 1789 in Manchester, England, and
became a model for ethical codes in the United States,
even though not adopted as an approach in England.
The United Kingdom has relied more on the honor of
physicians since rules cannot cover all contingencies. Of
course problems arise when there is no honor. Similarly,
in the legal area, the United Kingdom relies more on
respect for physicians and does not have privilege laws.
In 1847 a dispute among several schools of physicians
in the United States led orthodox practitioners to found
the AMA, and they adopted a Code of Ethics patterned
after Percival.
AMA PRINCIPLES OF MEDICAL ETHICS
The last revision of the AMA Principles of Medical Ethics
was in 2001 (AMA 2001). In its introductions to the
Principles, the AMA stated:
The medical profession has long subscribed to a body
of ethical statements developed primarily for the
benefit of the patient. As a member of this profession,
a physician must recognize responsibility to patients
first and foremost, as well as to society, to other health
professionals, and to self. The following Principles
adopted by the American Medical Association are not
laws, but standards of conduct which define the essen-
tials of honorable behavior for the physician.
60 History and practice of forensic psychiatry
The AMA has enumerated nine ethical guidelines (called
Sections) in its Principles of Medical Ethics:
1 A physician shall be dedicated to providing compe-
tent medical care, with compassion and respect for
human dignity and rights.
2 A physician shall uphold the standards of profession-
alism, be honest in all professional interactions, and
strive to report physicians deficient in character or
competence, or engaging in fraud or deception, to
appropriate entities.
3 A physician shall respect the law and also recognize a
responsibility to seek changes in those requirements
which are contrary to the best interests of the patient.
4 A physician shall respect the rights of patients, col-
leagues, and other health professionals, and shall safe-
guard patient confidences and privacy within the
constraints of the law.
5 A physician shall continue to study, apply, and advance
scientific knowledge, maintain a commitment to
medical education, make relevant information avail-
able to patients, colleagues, and the public, obtain
consultation, and use the talents of other health pro-
fessionals when indicated.
6 A physician shall, in the provision of appropriate
patient care, except in emergencies, be free to choose
whom to serve, with whom to associate, and the envir-
onment in which to provide medical care.
7 A physician shall recognize a responsibility to partici-
pate in activities contributing to the improvement of
the community and the betterment of public health.
8 A physician shall, while caring for a patient, regard
responsibility to the patient as paramount.
9 A physician shall support access to medical care for all
people.
Important changes have occurred since the previous 1980
version of the Principles. The current version empha-
sizes the primacy of the duties to the patient despite
co-occurring responsibilities to society. Responsibilities
to a patient are paramount when caring for a patient.
There is a new emphasis on care and not merely service.
There is an emphasis on honesty in all professional inter-
actions as well as on patient rights. There is a new duty
to safeguard patient privacy and new responsibilities to
medical education and the betterment of public health.
Additionally, there is a new responsibility to support access
to medical care for all people.
PRINCIPLES OF MEDICAL ETHICS WITH
ANNOTATIONS ESPECIALLY APPLICABLE TO
PSYCHIATRY RELEVANT TO FORENSIC
PSYCHIATRY
The APA has developed Annotations (APA 2001a) to the
previous 1980 version of the AMA Principles of Medical
Ethics that elaborate on issues and situations especially
applicable and relevant to psychiatric practice. The most
recent 2001 version of the APA Annotations and Opinions
still is based on the 1980 AMA version and is in the process
of revision in order to conform to the new 2001 AMA
Principles.
In reference to the APA Annotations, Appelbaum
(1992) has stated that the Annotations suffer insofar as
‘they are generated on an ad hoc basis, as an issue rises to
the surface in the APA rather than in a systematic effort
to elaborate an ethical code.’ Although many are relevant,
they are not specifically directed to the forensic setting.
Moreover, as mentioned by Appelbaum, some rules
are ‘so general as to create no boundaries at all.’ None-
theless, many of the Annotations are relevant to forensic
psychiatry.
The existing Annotations are capable of enforcement.
They are especially important for all psychiatrists, and
ignorance is not an excuse. An allegation of an ethics
violation against an APA member is investigated by the
local district branch of the APA, which holds hearings
and recommends sanctions if an ethical violation is
found. Sanctions include admonishment, reprimand,
suspension, and expulsion from the APA. Expulsions and
more than very brief suspensions also are reported to the
National Practitioners Data Bank since September 1,
1990. The Data Bank contains records of medical profes-
sionals, psychotherapists, and dentists who have been
successfully sued (even if settled), whose licenses have
been revoked or suspended, or who have been sanc-
tioned by a hospital, medical group, or health plan with a
peer review system (with privileges suspended or
removed). In addition, the Ethics Committee of the APA
district branches can report offending member psych-
iatrists to state licensing boards. If a member resigns while
the case is under investigation, this fact can be made pub-
lic in an APA publication if the allegation is serious.
Relevant annotations in forensic psychiatry in its 2001
version include several Annotations subsumed under
each of the 1980 AMA Principles of Medical Ethics as
stated below.
Principle (Section) 1
Relevant is Annotation 4, which prohibits physician par-
ticipation in a legally authorized execution (see Chapter
10). This section had been interpreted solely as prohibit-
ing giving lethal injections. The AMA has already passed
resolutions affirming that it is unethical for physicians,
regardless of their personal views of capital punishment,
to participate in legally authorized executions, except to
certify death. They have said that involvement short of
the death penalty process itself is ethical. They even say
the controversial testimony about aggravating and miti-
gating circumstances at the penalty phase of a capital
trial is ethical.

Principle (Section) 2
Relevant is Annotation 1, which states that sexual activity
with a current or former patient is unethical because of
the inherent inequality in the doctor–patient relation-
ship that may lead to exploitation. Annotation 2 states
that the psychiatrist should diligently guard against
exploiting information furnished by the patient and
should not use the power afforded to him/her by the
therapy situation to influence the patient in ways not
directly relevant to treatment goals. Annotation 3 states
that psychiatrists who practice outside their areas of
expertise should be considered to be practicing uneth-
ically. Annotation 4 states that in situations in which
psychiatrists, because of mental illness, jeopardize the
welfare of their patients and their own reputations and
practices, it is ethical and even encouraged for another
psychiatrist to intercede. Annotation 5 states that like
all medical services, psychiatric services are dispensed
in the context of a contractual arrangement with the
patient binding on the physician as well as patient, and
the provisions of such a contract should be established
explicitly.
Principle (Section ) 3
Relevant is Annotation 1, which indicates that when
illegal activities bear directly upon practice, it would be
self-evident that such a psychiatrist would be ethically
unsuited to practice. Protesting social injustice probably
would not bear on either the psychiatrist’s image or his
or her ability to treat patients ethically and competently.
Although no prior assurance about any illegal activity
could be given, it is conceivable that an individual could
violate a law in such circumstances without being guilty
of professionally unethical behavior. Annotation 2 says
that the practice of acupuncture is not per se unethical.
Principle (Section) 4
Several annotations are relevant under this section.
Annotation 1 requires the protection of patient records,
even the identification of the person as a patient. Annota-
tions 2 and 5 involve confidentiality and its limitations
and the exercise of caution when disclosing sensitive
patient information. Annotation 5 states that the disclos-
ure of sensitive material like fantasy material and sexual
orientation is usually unnecessary. Annotation 3 requires
adequate disguise to protect anonymity in teaching and
writing. Annotation 4 includes a duty in consultations to
alert any non-physician consultant to the duty of confi-
dentiality. Annotation 6 directly is applicable to forensic
psychiatry and states that if individuals are examined for
security purposes, for determining suitability for various
jobs, or for determining legal competence, the nature and
purpose and lack of confidentiality of the examination
Ethical guidelines 61
must be explained to the examinee at the beginning
of the examination. Although Annotation 6 does not
specifically cover all forensic examinations, AAPL ethical
guidelines require such explanations whenever lack of
confidentiality is involved. Annotation 9 applies if psych-
iatrists are ordered by the court to reveal patient confi-
dences. They may comply or ethically hold the right to
dissent within the framework of the law. If in doubt, they
should respect the right of the patient to confidentiality
and unimpaired treatment and should reserve the right
to raise the question of adequate need for disclosure.
If case disclosure is required by the court, the right to
disclose only information relevant to the legal question
at hand may be requested. Annotation 13 states that
‘psychiatric evaluations of any person charged with
criminal acts prior to access to, or availability of, legal
counsel should not be performed except for rendering of
care for the sole purpose of medical treatment.’ This is
also an AAPL requirement. Annotation 14 refers to abuse
of power and inequalities in the working relationship,
which can cause ethical problems in sexual involvements
between a faculty member or supervisor and a trainee or
student.
Principle (Section) 7
Relevant is Annotation 3, which states it is unethical
to offer opinions about public figures without an exam-
ination and proper authorization. Also germane is
Annotation 4, which concludes that a personal exam-
ination of the patient is required prior to certifying a
patient for involuntary treatment.
OPINIONS OF THE APA ETHICS COMMITTEE
ON THE PRINCIPLES OF MEDICAL ETHICS
RELEVANT TO FORENSIC PSYCHIATRY
Some published Opinions of the APA Ethics Committee
on the Principles of Medical Ethics (APA 2001b) also are
relevant. The Opinions are identified by a number fol-
lowed by a letter. The number refers to the correspond-
ing principle of medical ethics. Below are some of the
Opinions apropos to the practice of forensic psychiatry.
Section 1
Section 1-C makes it clear that giving a lethal dose of a
sedative to a prisoner in a legal execution is unethical
since a physician is a healer, not a killer. Section 1-D indi-
cates it would not be ethical to knowingly permit oneself
to be a patient’s beneficiary since it gives the appearance
of impropriety and possibly of exploitation. Section 1-G
states that if a psychiatrist’s role is only to certify some-
one’s homosexuality for United States Immigration and
62 History and practice of forensic psychiatry
Naturalization Services (INS) purposes, it is unethical
since the psychiatrist is a party to a policy excluding
people for reasons of ethnic origin, race, sex, creed, age,
socioeconomic status or sexual orientation. Section 1-N
states that it is ethical to provide a competency examin-
ation prior to the execution of a felon if the prisoner
is informed of the examination’s purpose and lack of
confidentiality, and has legal representation, and if the
opinion is in keeping with accepted standards. The
psychiatrist’s position should not be to further his or
her own opinion of capital punishment. Despite the
APA position, significant differences of opinion on this
issue by forensic psychiatrists have been shown in surveys
(Weinstock 1988; Weinstock et al. 1991; Leong et al. 2000).
This issue is discussed further later in this chapter. Section
1-BB states that it would be too difficult to provide com-
petent medical service if a psychiatrist evaluated his/her
own family member and testified on that person’s behalf.
Section 1-HH clarifies that it is unethical to have a roman-
tic relationship with a patient’s primary caretaker such as
the parent of a patient or any other key third party.
Section 2
Section 2-D clarifies that it is up to APA district branch
ethics committees to establish any exceptions to the
prohibition of sex with former patients by careful con-
sideration of all relevant facts, especially any evidence
indicating exploitation of a former patient. It also clari-
fies that the APA Annotations and APA Principles are not
laws but standards of conduct for behavior by physicians.
Section 2-U clarifies that it is unethical to fee split with
attorneys. Section 2-Z states that in situations in which
a state requires forensic examiners to give an expected
opinion at hearings for sexual offender violations, it is
unethical to submit to pressure not to give an honest opin-
ion but to alter it in a way to reach a conclusion demanded
or expected by authorities. Section 2-BB explains that a
defense forensic psychiatrist involved in a case charging
sexual involvement with a patient by a psychiatrist should
not report the case to the Ethics Committee unless there is
imminent public danger or legal compulsion. Confiden-
tiality is otherwise overriding. Section 2-HH states that
although it is ethical to receive goods and services in lieu of
fees so long as it is at fair market value and does not exploit
the patient, the recommendation is not to do this with a
current patient since it is likely it could impair the treat-
ment relationship. Section 2-TT states it is unethical to turn
a doctor–patient relationship into an employer–employee
one since in most cases it exploits the doctor–patient rela-
tionship to do so with a former patient. Section 2-CCC
advises caution in having a social non-sexual relationship
with a former patient. Section 2-HHH says it is not uneth-
ical if a patient in his or her will establishes a scholarship in
the psychiatrist’s name if the psychiatrist does not partici-
pate in the selection of candidates or use of the funds.
Section 4
Section 4A states it is a conflict of interest for an employed
psychiatrist to perform an evaluation to determine the
competency of a patient to aid his or her hospital employer
in collecting charges from the patient. Section 4-E clarifies
that developing a speculative psychological profile for
someone who committed gruesome mass homicides is
not unethical. If a psychiatrist believes the profile is that
of one of his or her patients, he/she should strongly urge
the patient to go to the police, perhaps with the assistance
of an attorney. If the patient refuses, the psychiatrist can
notify the police. If the attacks are past history, the guide-
lines advise only encouraging a patient to turn himself or
herself over to the authorities, but it may be prudent to
tell the patient to retain an attorney first so that his or her
legal rights and welfare will not be ignored. Section 4-G
states that it is ethical to provide information that is not
highly personal to an insurance company relevant to a
claim. However, if it involves a child of sufficient matur-
ity, in order to judge the issue the child should also
be asked to give permission in addition to the parent.
Consent in these circumstances traditionally is a blind
consent, and not truly informed. If the child wishes con-
fidentiality and has sufficient maturity, his or her wish
should be honored. A solution might be to address the
report to the insurance company’s medical director,
clearly marked as confidential information. Section 4-J
raises the question of the ethics of not disclosing to state
authorities that a patient sexually abused his or her child.
The state may require such disclosure, despite the therap-
ist working on the problem effectively, expecting an
early resolution, and believing the child abuse had
been exaggerated, and otherwise behaving ethically. The
Opinions state that ‘where state law requires disclosure,
you are ethically required to do so.’ Section 4-K states
that confidences survive death and confidential infor-
mation cannot be given about a deceased mother to a
grieving daughter. Legally, however, jurisdictions differ.
Section 4-L states that it is ethical to offer a diagnosis
based solely on a review of records to determine whether
a suicide was a result of illness. Section 4-L says it is
ethical for insurance purposes to determine whether a
suicide was a result of illness solely by examining the
records. Section 4-M states that a psychiatrist cannot eth-
ically examine a child at the request of a non-custodial
parent against the wishes of the custodial parent absent
an urgent situation when the custodial parent is unavail-
able, and then testify in court about the child. The psych-
iatrist should suggest that the non-custodial parent
obtain a court order. Section 4-P clarifies that exceptions
to confidentiality after death can be made to protect
others from imminent harm or under proper legal com-
pulsion. Patients trust psychiatrists to protect their confi-
dences even after death – no less so if the deceased is a
prominent person. Section 4-Q clarifies that if there is
knowing consent by a patient without coercion or even
 Ethical guidelines 63

coercion (like no consent, no security upgrade) for a basis to provide charts to a managed care company for an
security clearance evaluation, the privilege of maintain- audit. A specific informed consent should be obtained
ing confidences is the patient’s and not the therapist’s. and the records only of patients whose treatment is paid
The therapist, however, can claim lack of competence to for by a managed care company should be reviewed by an
make such an evaluation. Section 4-R relates to being appropriate clinician in the physician’s office. The phys-
asked or even subpoenaed to testify in a child custody ician should make certain that only appropriate clinicians
dispute after having seen a divorcing couple in therapy, see the records and much like with court-ordered release
with one party wishing the testimony and the other not. of records, they should be redacted if they contain infor-
A confidentiality objection should be raised, but there mation about other persons.
may be proper legal compulsion if the best interests of
the child are paramount and the court or jurisdiction
considers this need overriding. Section 4-U raises the
Section 7
issue of a psychiatrist who treated a member of a mur-
Section 7-A states that consulting to the Catholic Diocese
dered prominent family, testified in court, and was later
about marriage annulments regarding the competence of
asked by a television company to be a consultant for a
church members to request such an annulment is ethical
movie about the killing. The Opinions state it does not
without a personal examination with only a review of
create a good image but can be ethical if nothing new and
reports and other information. Requiring consultants
no new insights other than those made public at the trial
always to conduct a personal examination if asked by
are revealed. It is unclear whether this admonition applies
various medical, social and rehabilitative agencies for
though to a non-treating forensic psychiatrist, but it is
opinions would be impractical and would prevent their
likely to apply to information not released in open court.
obtaining the benefits of psychiatric consultation. Section
Section 4V refers to the ethics of giving a former patient’s
7-B discusses testifying for the state in a criminal case
name to the phone company to stop endless vituperative
about the competency of the defendant based on medical
phone calls. The suggestion is that after consultation
records without examining the defendant or having his or
with a colleague and an attorney, as a last resort, it can be
her approval to render an opinion. The Opinion states that
permissible with ample warning to the former patient.
section 7, Annotation 3, was developed to protect public
Section 4-X clarifies that patient identity must be hidden
figures from psychiatric speculation harmful to public fig-
in presenting case materials in a publication, or informed
ures and the psychiatric profession, and not to protect
consent is required. Section 4-Y clarifies that families
criminal defendants. This opinion, however, could be
have little right to information without patient permis-
interpreted as not necessitating AAPL’s ethical guidelines
sion, barring imminent danger to self or others, or patient
more stringent requirement. AAPL requires a personal
incompetence requiring family protection. However, sup-
examination if at all possible and creates an affirmative
port and understanding should be given to the family
obligation to indicate the limitations of any opinion if
within these limits. Section 4-AA clarifies that an abusing
given without such a personal examination. The APA
father has no ethical right to the records of a son who
Opinion is ambiguous though in that it does not say it is
committed suicide if the patient would not have wanted
ethical not to express the limitations of such an opinion.
the father to see them, even if the father is executor of the
One problem with the APA Annotations and Opinions
estate. The ethical obligation is to withhold the records,
is that they do not cover any issues in any systematic way,
but a lawyer needs to determine the legal right. If the
and are not based on any underlying ethical principles
father has a legal right to the records, it is suggested that
other than the AMA Principles of Medical Ethics. They
the court be petitioned to determine the need for disclos-
also are not specifically directed toward forensic psych-
ure and limit it to what is relevant or whatever legally
iatry. They respond only to inquiries about actual cases
proper question the father has (such as insurance), not
(Appelbaum 1992). AAPL is attempting to correct these
simply to satisfy his curiosity. Section 4-BB explains that
deficiencies in its current ongoing revisions of its ethical
it is not ethical to use information provided by a present
guidelines. The APA lacks jurisdiction over the ethical
patient about a former patient who is suing the therapist.
improprieties of non-members, but their guidelines still
It is not ethical to have the psychiatrist’s lawyer depose
are relevant for court and licensing board actions.
the current patient because the legal problems are not
germane to treatment responsibilities toward the current
patient. Section 4-II says that it is not ethical because of
confidentiality to report the mere suspicion of child abuse
RELEVANT ETHICAL GUIDELINES OF
PROFESSIONAL ORGANIZATIONS
without considering issues like whether it is ongoing, and
likely to continue despite treatment. However, in recog-
nition that some states have statutes requiring such The American Academy of Forensic Sciences (AAFS) also
reporting, advice is given to consult specific state statutes. has an enforceable code of ethics, important even if lim-
Section 4-LL says that a general informed consent obtained ited in scope. The code precludes professional or personal
when a patient applies for insurance is not a sufficient conduct adverse to the best interests and purposes of
64 History and practice of forensic psychiatry
AAFS that includes the following: misrepresentation of
education, training, experience, area of expertise, or one
or more criteria for membership; material misrepresen-
tation of data upon which an expert opinion is based;
and making public statements appearing to represent the
position of AAFS without first obtaining the specific per-
mission of the board of directors. Distortion of data
addressed by AAFS is not specifically addressed by AAPL,
but could be considered under the section on honesty
(see AAPL guidelines below). AAPL’s section V on quali-
fications does specifically address the need for accurate
presentation of qualifications and experience. It is more
unclear whether these issues are covered by the APA
Annotations, unless section 2, referring to dealing hon-
estly with patients and colleagues, would also be inter-
preted to include courtroom testimony, or section 7
regarding a responsibility to participate in activities
contributing to an improved community would apply.
Section 1 on competent medical service is also relevant.
AAFS also is working on the development of aspirational
guidelines called Guidelines for Good Forensic Practice.
Such guidelines already were adopted by the AAFS
Committee on Good Forensic Practice.
Other related organizations have developed ethical
criteria for forensic participation. These include forensic
psychologists (American Psychological Association 1992),
who also are revising their ethical requirements. The
National Organization for Forensic Social Work has also
adopted ethical guidelines for their membership.
An ethics survey of forensic psychiatrists showed almost
all had encountered ethical problems in their forensic
work. The ‘hired gun’ problem was considered to be the
greatest ethical problem (Weinstock 1986). However,
without knowing the forensic psychiatrist’s motives, it
is difficult to distinguish honest bias, sometimes even
unconscious, from a ‘hired gun.’ Moreover, it is too easy
sometimes for a forensic psychiatrist who considers his
or her position ‘right’ to confuse an honest difference of
opinion with the problem of the expert on the other side
being a ‘hired gun.’ AAPL has developed systematic eth-
ical guidelines for the practice of forensic psychiatry. The
principles were first developed by Jonas Rappeport, and
refined, modified, and developed by Henry Weinstein,
and some sections revised by Robert Weinstock.
Of necessity, items were excluded that were too con-
fusing or were not capable of receiving general support.
Diamond (1992) thought the profession of forensic psych-
iatry should establish standards for acceptable forensic
psychiatric opinions, such that opinions should not be
contradicted by readily accessible data, and also should
develop standards for acceptable criteria to be qualified
as an expert. He believed AAPL has avoided guidelines in
many controversial areas. AAPL has been criticized for
not enforcing its own ethical guidelines (Halpern 1990;
Appelbaum 1992). Instead, it relies on the APA for enforce-
ment. Forensic psychiatry’s recognition as a subspecialty
arguably makes medical ethics even more relevant. AAPL
has developed procedures for peer review of transcripts
of psychiatric testimony, since there is controversy regard-
ing whether such issues should or would be covered in
ethical guidelines (Weinstock et al. 1991; Appelbaum
1992). AAPL’s ethical guidelines supplement the APA
Annotations. Peer review would enable additional pro-
fessional self-regulation. However, if voluntary, such peer
review is likely to be avoided by those most in need of it.
Despite some criticism, the ethical guidelines never-
theless are a very important development. They were
passed in 1987, and last revised in 1995. The 1995 revised
version is reprinted (with permission) below.
AAPL’S ETHICAL GUIDELINES (ADOPTED
MAY, 1987; MOST RECENTLY REVISED 1995)
I. Preamble
The American Academy of Psychiatry and the Law is
dedicated to the highest standards of practice in forensic
psychiatry. Recognizing the unique aspects of this prac-
tice which is at the interface of the professions of psych-
iatry and the law, the Academy presents these guidelines
for the ethical practice of forensic psychiatry.
COMMENTARY
Forensic psychiatry is a subspecialty of psychiatry, a med-
ical specialty. Membership in the American Psychiatric
Association, or its equivalent, is a prerequisite for mem-
bership in the American Academy of Psychiatry and the
Law. Hence, these guidelines supplement the Annotations
Especially Applicable to Psychiatry of the American
Psychiatric Association to the Principles of Medical Ethics
of the American Medical Association.
The American Academy of Psychiatry and the Law
endorses the Definition of Forensic Psychiatry adopted
by the American Board of Forensic Psychiatry, Inc:
Forensic Psychiatry is a subspecialty of psychiatry
in which scientific and clinical expertise is applied to
legal issues in legal contexts embracing civil, crim-
inal, and correctional or legislative matters; forensic
psychiatry should be practiced in accordance with
guidelines and ethical principles enunciated by the
profession of psychiatry. (Adopted May 20, 1985)
The forensic psychiatrist practices this subspecialty
at the interface of two professions, each of which is
concerned with human behavior and each of which has
developed its own particular institutions, procedures,
values, and vocabulary. As a consequence, the practice of
forensic psychiatry entails inherent potentials for com-
plications, conflicts, misunderstandings and abuses.
In view of these concerns, the American Academy of
Psychiatry and the Law provides these guidelines for the
ethical practice of forensic psychiatry.

II. Confidentiality
Respect for the individual’s right of privacy and the main-
tenance of confidentiality are major concerns of the psych-
iatrist performing forensic evaluations. The psychiatrist
maintains confidentiality to the extent possible given the
legal context. Special attention is paid to any limitations on
the usual precepts of medical confidentiality. An evalu-
ation for forensic purposes begins with notice to the eval-
uee of any limitations on confidentiality. Information or
reports derived from the forensic evaluation are subject to
the rules of confidentiality as apply to the evaluation, and
any disclosure is restricted accordingly.
COMMENTARY
The forensic situation often presents significant problems
in regard to confidentiality. The psychiatrist must be aware
of and alert to those issues of privacy and confidential-
ity presented by the particular forensic situation. Notice
should be given as to any limitations. For example, before
beginning a forensic evaluation, psychiatrists should
inform the evaluee that although they are psychiatrists,
they are not the evaluee’s ‘doctor.’ Psychiatrists should
indicate for whom they are conducting the examination
and what they will do with the information obtained as a
result of the examination. There is a continuing obligation
to be sensitive to the fact that although a warning has been
given, there may be slippage and a treatment relationship
may develop in the mind of the examinee.
Psychiatrists should take precautions to assure that
none of the confidential information they receive falls
into the hands of unauthorized persons.
Psychiatrists should clarify with a potentially retain-
ing attorney whether an initial screening conversation
prior to a formal agreement will interdict consultation
with the opposing side if the psychiatrist decides not to
accept the consultation.
In a treatment situation, whether in regard to an inpa-
tient or to an outpatient in a parole, probation, or con-
ditional release situation, psychiatrists should be clear
about any limitations on the usual principles of confiden-
tiality in the treatment relationship and assure that these
limitations are communicated to the patient. Psychiatrists
should be familiar with the institutional policies in regard
to confidentiality. Where no policy exists, psychiatrists
should clarify these matters with the institutional author-
ities and develop working guidelines to define their role.
III. Consent
The informed consent of the subject of a forensic evalu-
ation is obtained when possible. Where consent is not
required, notice is given to the evaluee of the nature of
the evaluation. If the evaluee is not competent to give
consent, substituted consent is obtained in accordance
with the laws of the jurisdiction.
Ethical guidelines 65
COMMENTARY
Consent is one of the core values of the ethical practice
of medicine and psychiatry. It reflects respect for the
person, a fundamental principle in the practices of
medicine, psychiatry and forensic psychiatry. Obtaining
informed consent is an expression of this request.
It is important to appreciate that in particular situ-
ations, such as court-ordered evaluations for competency
to stand trial or involuntary commitment, consent is not
required. In such a case, the psychiatrist should so inform
the subject and explain that the evaluation is legally
required and that if the subject refuses to participate in
the evaluation, this fact will be included in any report or
testimony.
With regard to any person charged with criminal acts,
ethical considerations preclude forensic evaluation prior
to access to, or availability of legal counsel. The only
exception is an examination for the purpose of rendering
emergency medical care and treatment.
Consent to treatment in a jail or prison or other crim-
inal justice setting must be differentiated from consent
to evaluation. The psychiatrists providing treatment in
these settings should be familiar with the jurisdiction’s
rules in regard to the patient’s right to refuse treatment.
IV. Honesty and striving for objectivity
Forensic psychiatrists function as experts within the legal
process. Although they may be retained by one party to a
dispute in a civil matter or the prosecution or defense in
a criminal matter, they adhere to the principle of honesty
and strive for objectivity. Their clinical evaluation and
the application of the data obtained to the legal criteria
are performed in the spirit of such honesty and efforts to
obtain objectivity. Their opinion reflects this honesty
and efforts to attain objectivity.
COMMENTARY
The adversarial nature of our Anglo-American legal
process presents special hazards for the practicing foren-
sic psychiatrist. Being retained by one side in a civil or
criminal matter exposes the forensic psychiatrist to the
potential for unintended bias and the danger of distor-
tion of their opinion. It is the responsibility of forensic
psychiatrists to minimize such hazards by carrying out
their responsibilities in an honest manner, striving to
reach an objective opinion.
Practicing forensic psychiatrists enhance the honesty
and striving for objectivity of their work by basing their
forensic opinions, forensic reports, and forensic testi-
mony on all the data available to them. They communi-
cate the honesty and striving for objectivity of their work,
efforts to obtain objectivity, and the soundness of their
clinical opinion by distinguishing, to the extent possible,
66 History and practice of forensic psychiatry
between verified and unverified information as well as
among clinical ‘facts,’ ‘inferences’ and ‘impressions.’
While it is ethical to provide consultation to an adver-
sary in a legal dispute as a testifying or reporting expert,
honesty and striving for objectivity are required. The
impression that psychiatrists in a forensic situation might
distort their opinion in the service of the party which
retained them is especially detrimental to the profession
and must be assiduously avoided. Honesty, objectivity, and
the adequacy of the clinical evaluation may be called into
question when an expert opinion is offered without a per-
sonal evaluation. While there are authorities who would
bar an expert opinion in regard to an individual who has
not been personally examined, it is the position of the
Academy that if, after earnest effort, it is not possible to
conduct a personal examination, an opinion may be ren-
dered on the basis of other information. However, under
such circumstances, it is the responsibility of the forensic
psychiatrist to assure that the statement of their opinion
and any reports of testimony based on those opinions,
clearly indicate that there was no personal examination
and the opinions expressed are thereby limited.
In custody cases, honesty and striving for objectivity
require that all parties be interviewed, if possible, before
an opinion is rendered. When this is not possible, or, if
for any reason not done, this fact should be clearly indi-
cated in the forensic psychiatrist’s report and testimony.
Where one parent has not been interviewed, even after
deliberate effort, it may be inappropriate to comment on
that parent’s fitness as a parent. Any comment on that
parent’s fitness as a parent should be qualified and the
data for the opinion should be clearly indicated.
Contingency fees, because of the problems that these
create in regard to honesty and efforts to obtain objectivity,
should not be accepted. On the other hand, retainer fees do
not create problems in regard to honesty and efforts to
obtain objectivity and, therefore, may be accepted.
Treating psychiatrists should generally avoid agreeing
to be an expert witness or to perform evaluations of their
patients for legal purposes, because a forensic evaluation
usually requires that other people be interviewed and tes-
timony may adversely affect the therapeutic relationship.
V. Qualifications
Expertise in the practice of forensic psychiatry is claimed
only in areas of actual knowledge and skills, training and
experience.
COMMENTARY
As regards expert opinions, reports and testimony, the
expert’s qualifications should be presented accurately
and precisely. As a correlate of the principle that expert-
ise may be appropriately claimed only in areas of actual
knowledge, skill, training and experience, there are areas
of special expertise, such as the evaluation of children or
persons of foreign cultures, or prisoners, that may
require special training and expertise.
VI. Procedures for handling complaints of
unethical conduct
Complaints of unethical conduct against members of
the Academy will be returned to the complainant with
guidance as to where the complaint should be registered.
Generally, they will be referred to the local district
branch of the American Psychiatric Association (APA).
If the member does not belong to the APA, the com-
plainant will be referred to the state licensing board or to
the psychiatric association in the appropriate country.
If the APA, American Academy of Child and Adolescent
Psychiatry, or the psychiatric association of another
country should expel or suspend a member, AAPL will
also expel or suspend the member upon notification of
such action, regardless of continuing membership status
in other organizations. AAPL will not necessarily follow
the APA or other organizations in other actions.
COMMENTARY
It is the present policy of the American Academy of
Psychiatry and the Law not to adjudicate questions of
unethical conduct against members or nonmembers.
General questions in regard to ethical practice in
forensic psychiatry are welcomed by the Academy and
should be submitted for consideration to the Committee
on Ethics.
The Committee will issue opinions on general or
hypothetical questions, but will not issue an opinion on
the ethical conduct of a specific forensic psychiatrist or
about an actual case.
Should a specific complaint against a member be sub-
mitted to the Academy, it will be referred to the Chair of
the Ethics Committee. The Chair will, in turn, generally
direct the complainant to the ethics committee of the local
district branch of the American Psychiatric Association, to
the state licensing board, or to the psychiatric organization
of other countries for foreign members.
The Academy, through its Committee on Ethics or in
any other way suitable, will assist the local or national com-
mittee on ethics of the American Psychiatric Association,
state licensing boards or ethics committees of psychiatric
organizations in other countries in the adjudication of
complaints of unethical conduct or the development of
guidelines of ethical conduct as they relate to forensic
psychiatric issues.
DISCUSSION OF AAPL’S GUIDELINES
AAPL’s guidelines were developed specifically for foren-
sic psychiatry and address important relevant issues.

However, they exclude or are vague regarding issues for
which consensus could not be obtained. Moreover, they
represent solely guidelines for good practice even though
most AAPL guidelines have reached a level of general
agreement. They are not subject to enforcement and
complaints are referred to APA district branch which has
the option to consider them, or to another analogous
body for foreign members. AAPL members who belong
only to the American Academy of Child and Adolescent
Psychiatry have ethical complaints against them referred
to that organization, which in turn refers complaints to
state licensing boards.
AAPL’s ethical guidelines are an important founda-
tion. The APA district branch ethics committees, who
actually conduct ethics investigation hearings involving
APA members accused of an ethics violation, increas-
ingly consider the AAPL guidelines to clarify APA
Annotations. The high response rate in surveys and
the fact that an overwhelming majority of forensic psy-
chiatrists in surveys say they have encountered ethical
problems belies any aspersions that forensic psych-
iatrists are unconcerned about, or insensitive to, ethical
problems.
A survey of AAPL members (Weinstock et al. 1991)
showed support (in decreasing order) for the following
additional guidelines that are not currently part of the
official guidelines:
1 Medical and psychiatric ethics remain a consideration
when performing a forensic evaluation.
2 The forensic psychiatrist should not distort data.
3 Sex between a forensic psychiatrist and an evaluee is
unethical so long as the case remains in litigation.
4 Because of the seriousness of the matter, an opinion
should not be given in a death penalty case without a
personal examination regardless of whether court
decisions hold such testimony permissible.
5 As a physician, a forensic psychiatrist owes some
responsibility both to an evaluee and society, regard-
less of who pays the fee.
OPINIONS OF THE AAPL COMMITTEE ON
ETHICS
The AAPL Committee on Ethics also developed its own
Opinions during the years that Robert Weinstock was
acting as its chairman. However, in contrast to the APA,
these opinions are developed without evaluating the
details of an actual case to give an opinion on the real
case itself. They are ethical analyses only and not legal
opinions and the specifics of the case are not considered.
These Opinions are the product of the Committee on
Ethics but they have been reviewed and approved by the
Executive Council. The first two Opinions are based on
hypothetical questions raising ethical concerns.
Ethical guidelines 67
Distortion of data
Example: In a forensic examination for the defense in a
criminal trial, a patient who was psychotic at the time of
the offense admits to taking cocaine on the night of the
crime. The defendant has a history of paranoid schizo-
phrenia. The defense psychiatrist tells the defendant not
to tell anyone else about the drug use, omits it from his
report, and states that in his opinion the defendant is not
guilty by reason of insanity.
Issue: There is no direct statement in the APA or AAPL
guidelines relevant to deliberate distortion of data.
Opinion of AAPL Ethics Committee: Such actions are not
ethical.
Relevant are AAPL ethical guideline Section IV on
honesty and striving for objectivity, as well as AMA/APA
ethical principle Section I requiring competent medical
service. The forensic psychiatrist could legitimately
believe the defendant was paranoid schizophrenic and
met the criteria for insanity. However, he should include
relevant data as to drug usage, and a forensic psychiatrist
should not tell a defendant to withhold data.
Confidentiality
Example: A psychiatrist for the prosecution informs a
defendant of the lack of confidentiality and that he is
hired by the prosecution. The defendant continues to
give information harmful to himself, including revealing
his attorney’s defense strategy. He says he is doing this
because he knows the psychiatrist is trying to help.
Opinion of the AAPL Ethics Committee: AAPL ethical
guideline Section II commentary is relevant. It indicates
that although the forensic psychiatrist should inform the
evaluee that he is not the evaluee’s doctor, there is also a
continuing obligation to be sensitive to slippage despite
the fact that a warning has been given. A treatment rela-
tionship may still develop in the evaluee’s mind.
In the case example, the defendant states directly that
he believes the psychiatrist is trying to help him, yet the
psychiatrist makes no effort to clarify his role, or to be
sensitive to slippage. Therefore, there are clear ethical
problems with his behavior.
The APA does not address this issued directly and
refers only to determinations of legal competence in
Section 4, Annotation 6, which states that a ‘psychiatrist
must fully describe the nature and purpose and lack of
confidentiality of the examination to the evaluee at the
beginning of the examination.’
AAPL’s Committee on Ethics has subsequently issued
a number of additional opinions that are based on actual
questions raised to the ethics committee:
1 Question: Is sex with a forensic evaluee ethical?
Answer: No. Section IV of the AAPL ethical guidelines
requires honesty and striving for objectivity. Sex with
an evaluee would seriously impede objectivity and
68 History and practice of forensic psychiatry
would be exploitative and coercive. It would make the
APA section I requirement for delivery of competent
medical service almost impossible.
2 Question: Is it ethical for forensic psychiatrists perform-
ing an evaluation to use bullying tactics, to be rude, use
name-calling, and press a plaintiff to drop the case?
Answer: Most relevant is the APA and AMA principles
of medical ethics section 1, ‘a physician shall be dedi-
cated to providing competent medical service with
compassion and respect for human dignity.’ Also rele-
vant is AAPL section IV on honesty and striving for
objectivity. The use of bullying tactics and deliberate
rudeness are disrespectful of human dignity and
therefore are unethical, as are pressuring a plaintiff to
settle and failing to be objective. However, the special
role of a forensic psychiatrist also needs to be con-
sidered. A psychiatrist retained by the defense in a civil
suit is obtaining information for the side opposing the
plaintiff. What may appear to a plaintiff to constitute
bullying tactics may merely be appropriate skepticism
to disbelieve the plaintiff or to press for inconsisten-
cies in order to try to determine if there is malingering.
Unlike a therapeutic interview that involves helping
the evaluee as the primary purpose, a forensic evalu-
ation may necessitate exploration of areas that a plain-
tiff prefers to avoid and finds upsetting. In addition,
a negative evaluation by a forensic psychiatrist may
motivate a desire to retaliate by filing an ethics com-
plaint. Each case should be evaluated by exploring
the forensic psychiatrist’s reasons for his/her behavior.
Differences in interview style do not necessarily involve
ethical infractions. However, deliberate rudeness, pres-
sure to settle, and lack of respect for human dignity
are not justified.
3 Question: I am treating an insurance company
employee who for the past several years has been for-
ging signatures on loan applications and running an
illegal scheme at work. On two occasions he has been
admitted to the hospital because of stress. I will be testi-
fying at a Workers’ Compensation hearing regarding
the employee’s ability to work. Am I obliged to reveal
these illegal activities as one major source of stress?
Answer: You are functioning in a treatment capacity,
and any forensic role is an adjunct to your therapeutic
role and not primary. However, testifying in court
might still conflict with your therapeutic role since
there is no duty for a treating psychiatrist to obtain
information from sources other than the patient and
you will need to answer any questions the court con-
siders relevant and admissible. You may be unable to
be objective under those circumstances because of
counter-transference feelings toward your patient and
your awareness that unfavorable statements will inter-
fere with therapy. AAPL’s guidelines require obtaining
the informed consent of the subject when possible.
Your patient should be informed of the possibility that
if you are asked to testify you may be asked questions
that would require your revealing his reported illegal
activities. Since you would not wish to perjure your-
self if asked direct questions in court, he should con-
sult with his attorney and decide whether to call you
to testify. In many states, the patient may automat-
ically waive any therapist privilege if he tenders his
mental state at issue. The patient should consult with
an attorney about this issue in order to make an
informed decision. If possible, it might be wise to sep-
arate the treatment and forensic roles since the two
roles can conflict. AAPL guidelines section IV, honesty
and striving for objectivity, recommend that a treat-
ing psychiatrist generally should avoid agreeing to be
an expert witness or to perform an evaluation for legal
purposes on a patient.
4 Question: A forensic psychiatrist in a small town in
which he is the only psychiatrist had been treating the
mother who was murdered by her son, the current
defendant. This same psychiatrist had been hired to
perform a forensic evaluation on the son in a death
penalty trial. Is it ethical for the mother’s former psych-
iatrist to perform a forensic evaluation on the son?
I am afraid the son is being railroaded.
Answer: It is unlikely that the forensic psychiatrist
under these circumstances could meet the AAPL
requirements of striving to be objective. Also, regard-
less of privilege laws, APA’s Annotated Principles clearly
state that confidentiality continues after death. Could
the forensic psychiatrist avoid using confidential infor-
mation from the mother in the evaluation? More infor-
mation is needed on the specifics of the case, but the
behavior you question may in fact be unethical. Even if
these issues were not problems, there would be an
appearance of impropriety and a lack of objectivity.
Therefore the psychiatrist should refuse to take the case
even if a non-local psychiatrist must be found.
5 Question: Our court clinic has been asked to provide
psychiatric evaluations of defendants for dangerous-
ness, in order to help determine bail amount prior to
the defendants having access to an attorney. Is this
ethical?
Answer: Both the APA and AAPL (under section III
consent) preclude forensic evaluation prior to access
to or availability of legal counsel. The only exception
is an evaluation for the purpose of rendering emer-
gency medical care and treatment.
6 Question: An attorney has asked me to do a forensic
examination on a lien, in which I would collect my fee
only if the case is successful. Is this ethical?
Answer: If your fee or its collection is dependent on the
successful outcome of a trial, it is unethical as explained
under the AAPL guideline section IV, honesty and
striving for objectivity. It also is unethical according to
the AMA opinions of the Council on Ethical and
Judicial Affairs sections 6.01 and 9.07. It is ethical for
attorneys to accept cases on a contingency basis since
they have no ethical duty to strive for objectivity. The

attorney is responsible for all expenses including your
fee. A retainer presents no problems with striving for
objectivity and may even facilitate it, so it presents no
ethical problem. According to AMA Opinions of the
Council on Ethical and Judicial Affairs, section 8.10,
however, a lien may be filed as a means of assuring pay-
ment in states that have lien laws, providing the fee is
fixed in amount and not contingent on the amount of
the patient’s settlement against the third party. Since
your lien would be dependent on the outcome of the
case, it would be unethical.
7 Question: I provide psychiatric evaluations for the dis-
trict attorney’s office after an attorney has been
appointed, but before the attorney has been able to see
the defendant. Under these circumstances I explain
the nature and purpose of the evaluation, and that I
am working for the district attorney so there is no
confidentiality. If the defendant tells me incriminat-
ing evidence I see no problem since I have obtained
his informed consent. Is this ethical?
Answer: No. The APA and AAPL guidelines preclude
such evaluations prior to access to or availability of an
attorney. In this case, the attorney clearly has not yet
been available. The attorney may not wish his or
her client even to talk to the forensic psychiatrist. The
psychiatrist cannot obtain adequate informed consent
under these circumstances, as the defendant revealing
incriminating evidence to you demonstrated.
8 Question: Is it ethical for two forensic psychiatrists
who work closely together to testify on opposite sides
of a case?
Answer: Yes, as long as no information is shared
between the forensic psychiatrists without the approval
of both opposing attorneys, and both attorneys are
informed about the close working relationship of the
two forensic psychiatrists. The AAPL guidelines section
on confidentiality and honesty are relevant.
9 Question: On the basis of news reports, a forensic
psychiatrist offered to testify for the district attorney
in a death penalty case without examining the defen-
dant. Are his actions ethical?
Answer: AAPL guidelines section IV, honesty and striv-
ing for objectivity, require an earnest effort to person-
ally examine the defendant. If impossible, it is necessary
to qualify the opinions and indicate in any reports and
testimony that there was no personal examination and
the opinion expressed is thereby limited. If such was
not done, the testimony would be unethical. Moreover,
the extreme interest displayed by the forensic psychia-
trist casts doubt on his ability to be objective.
10 Question: Is it ethical for a forensic psychiatrist initially
retained by the defendant in the criminal case to then
agree to testify for the co-defendant without obtaining
the approval of the attorney for the defendant?
Answer: Commentary under the AAPL guidelines sec-
tion III, confidentiality, states that the psychiatrist
should clarify with a potentially retaining attorney
Ethical guidelines 69
whether an initial screening conversation prior to
a formal agreement will interdict consultation with
the opposing side if the psychiatrist decides not to
accept the consultation. Although it could be debated
whether the attorney for the co-defendant is the oppos-
ing side, the frequent conflict of interest between such
co-defendants indicate that the essence of this AAPL
guideline still applies. The failure of the forensic
psychiatrist to obtain clarification prior to the initial
consultation places an affirmative obligation on the
psychiatrist to obtain approval from the first attorney
prior to consultation or retention by the co-defendant’s
attorney. Alternatively, the forensic psychiatrist could
inform the first attorney at the onset that he/she plans
to consult with the second attorney or that a brief
discussion with the first attorney will not neutralize
his/her ability to work with the second attorney.
The APA does not address this issue clearly unless
Principle 2, requiring honesty with patients and col-
leagues, could be broadened to include attorneys and
their clients. Under the conditions you mention it
would be unethical to testify for the co-defendant
without the defendant’s attorney’s approval.
11 Question: Is it ethical to testify that the psychiatrist
for the opposing side is a prostitute because he is paid
handsomely for his services, for the side the com-
plainant believes is frequently the wrong side?
Answer: It is crucial to distinguish between honest
differences of opinion, biases – both conscious and
unconscious – and ‘hired guns.’ Ethical guidelines for
the AAPL and the AMA and APA ethical frameworks
no longer require proper etiquette and respect for
other physicians as an ethical issue. In fact, principle
2 of the AMA and APA principles indicates an ethical
duty to strive to expose those physicians deficient
in character or competence. However, to call names
would violate the APA and AMA requirements to
respect human dignity. Moreover, the honesty and
objectivity of the psychiatrist calling names would
validly be questioned. The exposure of deficiencies of
character or competence in other psychiatrists can be
accomplished without name-calling.
12 Question: A forensic psychiatrist in a death penalty
case did not interview the defendant because he said
such people always lie, so an interview would be
worse than useless. He also stated that he would
express his opinion against the defendant with rea-
sonable medical certainty. Is this ethical?
Answer: AAPL section IV, honesty and striving for
objectivity, require an earnest effort personally to
examine the defendant and, if impossible, to qualify
the opinion and indicate in any reports and testimony
that there was no personal examination and the opin-
ion is thereby limited. As that was not done, and there
was no evidence of any attempt to do so, the testi-
mony is unethical. Moreover, the unsubstantiated
statements that such defendants always lie, and that
70 History and practice of forensic psychiatry
no pertinent information can come from such an
interview, would seem to violate the AMA and APA
section 1 requirements for competent medical service
insofar as they are totally unsubstantiated opinions
that are not compatible with competent service.
13 Question: A forensic psychiatrist always testifies for
the defense in death penalty trials, but cannot sub-
stantiate his conclusions on the witness stand when
asked for justification. He appears willing to lie in
order to prevent the execution of the defendant. Is
this ethical?
Answer: AAPL does not require a witness to be expert
at responding to cross-examination. However, honesty
and striving for objectivity are required. Although
saving a life may be most consistent with traditional
Hippocratic ethics, truth and honesty are the primary
duties for a forensic psychiatrist. It might be argued
that a secondary doctor–patient relationship exists,
but it cannot override truth and honesty. If the true
facts are not favorable, a forensic psychiatrist can
refuse to become involved. To testify falsely is always
contrary to the APA and AMA requirement for com-
petent medical service, and is unethical.
14 Question: A forensic psychiatrist has testified that a
defendant is competent to be executed. Is this ethical?
Answer: The APA and the AMA forbid participation in
a legally authorized execution, but such participation
has been narrowly defined. Although some would
argue that competence to be executed evaluations are
unethical because they are too close to the death
penalty, both the Council of the Medical Society of
the State of New York and the American College of
Physicians, as well as the World Psychiatric Association,
have taken such positions, yet neither the AMA nor
APA currently have positions on this issue. Surveys of
forensic psychiatrists show divided opinions on this
issue, with a slight majority seeing no ethical problem
with performing competence to be executed evalu-
ations. It is also debatable whether evaluations show-
ing incompetence to be executed must be unethical if
evaluations showing competence to be executed are
unethical. At present, there is nothing unethical about
the testimony in your question.
15 Question: A psychiatrist who is asked to evaluate a
defendant found him sleeping, and testified that the
defendant could not be schizophrenic as schizo-
phrenics do not sleep so soundly. Is this ethical?
Answer: As there is no evidence for such a statement,
it would contradict AAPL’s requirements for honesty
and striving for objectivity and the APA requirement
for competent medical service, and it is therefore
unethical. AAPL does not forbid testimony express-
ing minority points of view, but there needs to be
some evidence for an opinion; moreover, unusual
opinions need to be honestly labeled.
16 Question: A plaintiff ’s attorney has asked me to
change the diagnosis in my report from a dysthymic
disorder to major depression in order to strengthen
the case. Is this ethical?
Answer: Changing such a major issue would violate
honesty and objectivity as well as competent medical
service, and therefore would be unethical. Although
it may not be unethical to accept changes in phrase-
ology or improved ways of expressing an opinion, a
major change in diagnosis is unethical without new
data to justify it.
17 Question: A forensic psychiatrist clearly became very
involved in a case, emotionally arguing his position
in court and giving advice to the attorney about strat-
egy. Is this ethical?
Answer: Although many forensic psychiatrists believe
advocacy is unethical, AAPL has followed the view
that advocacy is permissible, and advocacy for an
opinion may even be desirable. Identification with a
cause and even bias are not unethical in and of them-
selves, and some emotionality and bias may be
inevitable. However, bias must be openly acknow-
ledged and not lead to distortion, dishonesty, or fail-
ure to strive to reach an objective opinion.
DEATH PENALTY ETHICAL ISSUES
Some issues in forensic psychiatry remain controversial.
The death penalty is such an example. It produces con-
flict in forensic psychiatry, as it does generally in
American society, with the additional factor of the forensic
psychiatrist being a physician. Other western democracies
all have abolished the death penalty. In capital cases, the
legal system often asks forensic psychiatrists to examine
defendants and evaluate various legal issues, including
various competencies, mental state at the time of the
offense, dangerousness, and aggravating and mitigating
circumstances (see Chapter 10). It can be argued that
psychiatric assessment of these forensic issues are shared
by both capital and non-capital cases and does not differ.
In the alternative extreme, some psychiatrists question
the ethical propriety of providing consultation to the
prosecution at any stage of a capital case (Leong et al.
2000). There are many intermediate positions. Although
there is some correlation between a psychiatrist’s personal
views of the death penalty and their professional views
about the proper role of the forensic psychiatrist in such
cases, the two are not the same. It is possible to oppose
capital punishment as a citizen but to participate in the
process short of the actual killing because the psychiatrist
believes it does not violate professional ethics, it is not
the psychiatrist’s professional role to question current
law, the opinion is sufficiently removed from the killing
process, and such a view is supported by current profes-
sional ethical guidelines. Forensic psychiatrists who
support the death penalty as a citizen can still believe it
violates their view of appropriate professional medical

ethics to participate in some or all forensic roles. Forensic
psychiatrists who oppose the death penalty also can choose
to participate honestly in cases in which they think their
involvement could be helpful, even if the opposite result
sometimes occurs (Diamond 1990; Foot 1990). The APA
has taken a position against treating a defendant incom-
petent to be executed if the purpose is to make him or her
competent.
ETHICAL PRACTICE
Ethical guidelines are important. As stated by the ethical
theory of virtue, however, ethical guidelines and even
knowing what is right does not necessarily lead to doing
the right thing. It is necessary to wish to be ethical.
Knowledge will not necessarily affect the behavior of the
‘hired gun.’ However, it is often difficult to know whether
a forensic psychiatrist truly has an idiosyncratic belief,
has been insensitive, or has been dishonest. Ethics com-
mittees need to try to determine intent, and judge the
act itself. Forensic psychiatrists should not unfairly be
blamed for the problems of the legal adversary system.
Guidelines can help clarify what is ethical. However,
the best insurer of ethical conduct must be the integrity
of the professional persons themselves who, in forensic
psychiatry, face the challenge of confronting and balan-
cing many conflicting values. These challenges are not
unique to forensic psychiatry but are more complex than
in the relatively uncomplicated treatment context. These
challenges can provide some of the enjoyment of being a
forensic psychiatrist. However, organizations that do
provide sanctions should be aware of the complex bal-
ancing of values involved in forensic psychiatric practice.
Sanctions should not be imposed under circumstances in
which there is no general consensus and in which legit-
imate differences of opinion could apply.
REVISIONS TO AAPL’S ETHICAL GUIDELINES
AAPL is currently revising its ethical guidelines in
response to the 2001 revisions of the AMA ethical princi-
ples and for the first time indicate the underlying basis
for the AAPL ethical guidelines. As of this writing, AAPL
recognizes the moral principles of respect for persons,
fidelity, fairness, and social responsibility as under-
lying forensic ethics and the guidelines balance the
duties between society and individual evaluees. Conflicts
between principles are resolved by the greatest balance of
right over wrong. Although there is the absence of a tra-
ditional doctor–patient relationship, forensic psychiatry
is rooted in the ethical principles of medical practice.
Private information not directly relevant to the legal pur-
pose of the examination should also be protected. Foren-
sic psychiatrists should be familiar with the relevant
medical literature. Because of the absence of a traditional
Ethical guidelines 71
patient–physician relationship, courtroom testimony
cannot formally be considered the practice of medicine.
There are new AAPL ethics sections on research in foren-
sic settings and telemedicine in forensic psychiatry. Since
these revisions are not final, there are likely to be changes
before these revised ethical guidelines are adopted for-
mally. Readers should check for the latest versions of
these documents.
REFERENCES
American Medical Association 2001: Principles of Medical
Association. Chicago, Illinois.
American Medical News, May 1, 2000. Employer health
exams; relevance of Hippocratic Oath. Chicago, Illinois.
American Psychiatric Association. 2001a: The Principles of
Medical Ethics with Annotations Especially Applicable to
Psychiatry. Washington, DC: American Psychiatric
Association.
American Psychiatric Association. 2001b: Opinions of
the Ethics Committee on the Principles of Medical
Ethics with Annotations Especially Applicable to
Psychiatry. Washington, DC: American Psychiatric
Association.
American Psychological Association. 1992: Ethical
Principles of Psychologists and Code of Conduct.
Washington, DC: American Psychological Association.
Appelbaum, P.S. 1984. Psychiatric ethics in the courtroom.
Bulletin of the American Academy of Psychiatry and the
Law 12, 225–31.
Appelbaum, P.S. 1990. The parable of the forensic
psychiatrist: ethics and the problem of doing harm.
International Journal of Law and Psychiatry 13, 249–59.
Appelbaum, P.S. 1992. Forensic psychiatry: the need for
self-regulation. Bulletin of the American Academy of
Psychiatry and the Law 20, 153–62.
Appelbaum, P.S. 1997. A theory of ethics for forensic
psychiatry. Journal of the American Academy of
Psychiatry and the Law 25, 233–47.
Beauchamp, T.L., Childress, J.F. 2001: Principles of
Biomedical Ethics. New York: Oxford University Press.
Candilis, P.L., Martinez, R., Dorning, C. 2001. Principles
and narrative in forensic psychiatry: toward a robust
view of professional role. Journal of the American
Academy of Psychiatry and the Law 29, 167–73.
Ciccone, J.R., Clements, C. 2001. Commentary: forensic
psychiatry and ethics – the voyage continues. Journal
of the American Academy of Psychiatry and the Law
29, 174–9.
Diamond, B.L. 1990: The psychiatrist expert witness:
honest advocate or ‘hired gun’? In Rosner, R.,
Weinstock, R. (eds), Ethical Practice in Psychiatry and
the Law. New York: Plenum Press, 75–84.
Diamond, B.L. 1992. The forensic psychiatrist: consultant
v. activist in legal doctrine. Bulletin of the American
Academy of Psychiatry and the Law 20, 119–32.
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Dyer, A.R. 1988: Psychiatry and Ethics. Washington, DC:
American Psychiatric Press.
Foot, P. 1990: Ethics and the death penalty: participation
by forensic psychiatrists in capital trials. In Rosner, R.,
Weinstock, R. (eds), Ethical Practice in Psychiatry and
the Law. New York: Plenum Press, 207–17.
Griffith, E.E.H. 1998. Ethics in forensic psychiatry: a
response to Stone and Appelbaum. Journal of the
American Academy of Psychiatry and the Law 26,
171–84.
Halleck, S.L. 1992. Clinical assessment of the voluntariness
of behavior. Bulletin of the American Academy of
Psychiatry and the Law 20, 221–36.
Halpern, A.L. 1990: Adjudication of AAPL ethical
complaints: a proposal. In Rosner, R., Weinstock, R.
(eds), Ethical Practice in Psychiatry and the Law.
New York: Plenum Press, 171–4.
Hundert, E.M. 1990: Competing medical and legal ethical
values: balancing problems of the forensic psychiatrist.
In Rosner, R., Weinstock, R. (eds), Ethical Practice in
Psychiatry and the Law. New York: Plenum Press,
53–72.
Leong, G.B., Silva, J.A., Weinstock, R., Ganzini, L. 2000.
Survey of forensic psychiatrists on evaluation and
treatment of prisoners on death row. Journal of the
American Academy of Psychiatry and the Law 28,
427–32.
Moore, M.S. 1984: Law and Psychiatry: Rethinking the
Relationship. New York: Cambridge University Press.
Perry v. Louisiana, 498 U.S. 38 (1990).
Rosner, R. 1990: Forensic psychiatry: a subspecialty. In
Rosner, R., Weinstock, R. (eds), Ethical Practice in
Psychiatry and the Law. New York: Plenum Press, 19–29.
Stone, A.A. 1984: The ethics of forensic psychiatry: a view
from the ivory tower. In Stone, A.A. (ed.), Law,
Psychiatry and Morality. Washington, DC: American
Psychiatric Press.
Weinstock, R. 1986. Ethical concerns expressed by forensic
psychiatrists. Journal of Forensic Sciences 31, 596–602.
Weinstock, R. 1988. Controversial ethical issues in forensic
psychiatry: a survey. Journal of Forensic Sciences 33,
176–86.
Weinstock, R. 2001. Commentary: a broadened conception
of forensic psychiatric ethics. Journal of the American
Academy of Psychiatry and the Law 29, 180–5.
Weinstock, R., Leong, G.B., Silva, J.A. 1990: The role of
traditional medical ethics in forensic psychiatry. In
Rosner, R., Weinstock, R. (eds), Ethical Practice in
Psychiatry and the Law. New York: Plenum Press,
31–51.
Weinstock, R., Leong, G.B., Silva, J.A. 1991. Opinions by
AAPL forensic psychiatrists on controversial ethical
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of Psychiatry and the Law 19, 237–48; erratum 19, 393.

Liability of the forensic psychiatrist
DANIEL WILLICK, ROBERT WEINSTOCK AND THOMAS GARRICK
INTRODUCTION
Various immunities protect forensic work, and as a result
forensic psychiatrists are less likely to be sued than are
treating psychiatrists. Despite the rarity of lawsuits
against forensic psychiatrists, they face multiple areas of
exposure not normally faced by treating psychiatrists.
This chapter discusses the areas of potential liability in
forensic work, and identifies methods to respond to
those risks. However, the differing state and federal laws
relevant to these issues mean that the information in this
chapter is illustrative only and is not a substitute for
obtaining legal advice from a qualified attorney.
Any lawsuit against a forensic psychiatrist involves a
claim that the psychiatrist had a duty to a client or a third
person, and breached that duty proximately causing
harm to the person protected by the duty. It may often
differ from a medical malpractice lawsuit insofar as there
is no traditional doctor–patient relationship and there
may be no patient, so the duty would be to a party other
than a patient (see Chapter 28). Three variables are rele-
vant to understanding and coping with potential liability
for forensic work:
1 Who is the forensic client?
2 What task is being performed?
3 Is the task being performed with legal protections,
such as pursuant to a court order?
THE FORENSIC CLIENT
The first variable is the identity of the forensic client. The
situation least likely to lead to any successful suit against
the forensic psychiatrist is an appointment by the court,
with a court order, for a psychiatrist to conduct an evalu-
ation and to prepare a report. In such a situation, the
forensic psychiatrist functions as an arm of the court
and is typically protected by the same litigation privilege
that protects judges and other witnesses. The most risky
9
situation, on the other hand, is for the forensic psych-
iatrist to agree to perform a forensic evaluation or to pro-
vide court testimony on a patient that the forensic
psychiatrist has been treating. Here, the forensic task may
destroy the treatment relationship and expose the psy-
chiatrist to claims of both medical and forensic malprac-
tice. Such dual treating and forensic roles are discouraged
by the American Academy of Psychiatry and the Law
Ethics Guidelines (see Chapter 8). In also to causing
potential ethical problems, there are also liability con-
cerns (discussed below), so forensic psychiatrists should
make every effort not to provide forensic services for a
patient whom they are treating.
A list of typical forensic clients is as follows:
• Attorneys and their clients.
• Insurance companies.
• Employers.
• Courts.
• Patients in treatment with the psychiatrist providing a
forensic evaluation.
• Consultation with other physicians or psychiatrists
regarding the legal regulation of psychiatry such as
mental health laws in the state.
• State licensing agencies, such as a Medical Board.
• Professional societies or their ethics committees.
• Hospitals or their medical staffs for purposes of peer
review.
THE FORENSIC TASK
The second variable is the nature of the forensic task. The
tasks performed by a forensic psychiatrist can be divided
into two general categories:
1 The first category is legally informed psychiatric con-
sultation to a client based on examination of a person
and/or review of other sources of information regard-
ing that person. Examples of such consultation include
evaluations of the existence of psychiatric disability,
74 History and practice of forensic psychiatry
or advice to an attorney as to whether the client has
suffered emotional distress as a result of the wrongful
act of another person who is a potential defendant in a
lawsuit. Another type of legally informed consultation
is to a non-forensic colleague about mental health law
or forensic issues.
2 The second category is expert testimony in a judicial
proceeding on behalf of a client, based upon examin-
ation of a person and/or review of other sources of
information. Examples of this type of forensic work
include testimony at trial on issues such as whether a
criminal defendant is insane, or whether a civil plain-
tiff has suffered emotional distress proximately caused
by a defendant’s acts or omissions.
LEGAL PROTECTIONS
The third variable is whether there are legal protections
for the forensic work. Protections may include: a court
order appointing the psychiatrist to perform the forensic
work; a stipulation between the parties in a lawsuit,
including the person being evaluated, for the forensic
evaluation; appropriate disclosures to the person being
evaluated regarding the scope and dissemination of
the evaluation; and/or an appropriate contract between
the forensic psychiatrist and the person(s) involved in the
evaluation. There also is judicial immunity not only for
testimony in court but generally for work in preparation
for a court case, especially if the forensic psychiatrist is
appointed by a neutral party such as a court. In addition,
as stated above, the absence of a traditional doctor–
patient relationship should generally be protective against
claims of medical malpractice. These protections make
liability risks for a forensic psychiatrist relatively rare in
contrast to those for treating psychiatrists, but it is import-
ant to be aware that liability exposure does exist for a
forensic psychiatrist, and it is important to take steps to
minimize this exposure.
POSSIBLE EXPOSURE TO LIABILITY
There has been a dramatic increase in reported lawsuits
against forensic witnesses, so that despite the risk of suit
being significantly less than for clinical practice, it no
longer is unusual or extremely rare. The theories which
are being successfully pursued in such lawsuits can change
the ground rules for forensic psychiatrists. Risks include
being sued for negligence that proximately causes damage
to the forensic psychiatrist’s client or to a third party;
lawsuits for alleged intentional wrongful conduct, such
as defamation, fraud, or infliction of emotional distress;
claims of violation of laws governing the practice of
psychiatry; and claims of breaches of codes of ethics.
Claims for negligence
The most likely claim faced by a forensic psychiatrist is a
claim for negligence. A negligence claim alleges that the
defendant (the forensic psychiatrist) had a duty to the
plaintiff which was breached by the defendant’s negli-
gence proximately causing damage to the plaintiff. There
are a number of different types of negligence lawsuits
that are not medical malpractice that may be brought
against a forensic psychiatrist.
1 The person, such as an attorney or patient, or an
insurance company that retained a psychiatrist to per-
form a forensic task, may sue for negligence if that
person is damaged due to negligent performance of
the forensic task, such as a negligently performed
forensic evaluation (Murphy v. Mathews 1992). The
risk of such lawsuits has increased because of the
greater scrutiny given to the qualifications of expert
witnesses by courts as a result of the U.S. Supreme
Court’s landmark decisions regarding expert witness
certification in Daubert v. Merrill Dow Pharmaceuticals,
Inc. (1993), and in Kumho Tire Co. v. Carmichael
(1999). As a result of these decisions, federal and state
courts are increasingly scrutinizing the qualifications
of expert witnesses and the content of their testimony.
Subsequent to these decisions, some courts are exclud-
ing the testimony of unqualified experts and exclud-
ing testimony not supported by relevant peer-reviewed
research. Hence, a forensic psychiatrist who oversells
his or her qualifications or opinions only to have his/
her testimony subsequently excluded, could potentially
be subject to a lawsuit for negligence in misrepresent-
ing his/her qualifications.
2 A forensic psychiatrist may be sued for personal
injury by a person who is not a client and is the sub-
ject of a forensic examination, where emotional or
physical damage to the subject is caused by negligent
performance of the examination such as, for example,
traumatizing a subject by being unnecessarily rude
(Appelbaum 2001). Examples include malpractice
liability permitted against a forensic expert for injur-
ies sustained by the person being evaluated during a
workers’ compensation evaluation (Mero v. Sadoff 1995)
and a negligently or intentionally improperly per-
formed forensic evaluation of an insured for a health
insurance company (Dalton v. Miller 1999).
3 A forensic psychiatrist may be sued by a person who
is not a client for a negligently conducted forensic
examination that results in damages that are not per-
sonal injuries. For example, in the case of Politi v. Tyler
(2000), a psychologist who conducted a child custody
evaluation in connection with a court proceeding was
found to be appropriately subjected to a suit for
negligence in the conduct of the evaluation. The psy-
chologist’s claims for judicial immunity and witness
immunity were rejected by the Supreme Court of

Vermont, because her evaluation was not conducted
pursuant to an order entered by the trial court. This
decision was handed down despite the fact that the
court ordered such an evaluation and she was chosen
by both parties as the agreed medical examiner. As a
result of the examination and subsequent testimony
by the psychologist, the parties stipulated to a joint
custody arrangement. The wife later sued the psych-
ologist for slander, malpractice and intentional inflic-
tion of emotional distress and also alleged that the
negligent evaluation injured her rights, other than by
a personal injury, by forcing her into the noted stipu-
lation. The decision in this case implies that if the
evaluation had been conducted pursuant to a court
order, the defendant would have been immune from
suit. In contrast though, other reported court deci-
sions protect providers of foren-sic services from law-
suits for inadequate forensic examination. For example,
in Felton v. Schaeffer (1991), the damage award against
a physician, who allegedly negligently performed a
pre-employment fitness examination which resulted
in the applicant not being hired, was reversed on the
grounds that the physician had no physician–patient
relationship with the applicant and, hence, had no
duty to the applicant. In reversing the damage award,
the appellate court also found that the physician was
protected by a qualified privilege protecting non-
malicious communications to an interested person, in
this case the potential employer.
4 A forensic psychiatrist could be sued by a third party
who is not a client and is not the subject of a forensic
evaluation, but who suffers personal injury as a result
of acts or omissions in the forensic evaluation. An
example of this would be a situation in which a psych-
iatrist conducts a forensic examination of a criminal
defendant who, during the course of the examination,
reveals that he intends to injure or kill a third party.
A suit could follow if the psychiatrist fails to warn the
intended victim and the victim is harmed. Although
attorney–client privilege might preclude a warning
since the psychiatrist is not in a treatment role, arguably
the forensic psychiatrist has an obligation to warn the
third party in jurisdictions that follow the reasoning
and precedent in Tarasoff v. Regents of the University of
California (1976), and there probably is an ethical
duty to do something. The absence of a traditional
doctor–patient relationship may be protective of the
forensic psychiatrist in a medical malpractice suit.
However, in People v. Clark (1990) the California
Supreme Court did not reject the proposition that a
forensic psychotherapist has an obligation to warn of
the criminal defendant’s disclosure that he wished to
harm third parties in an otherwise confidential exam-
ination. The Court indicated that the attorney–client
privilege should have precluded the information being
admitted into court in the pending criminal case since
the evaluation was supposed to be confidential to the
Liability of the forensic psychiatrist 75
defense attorney, but determined that the error of
admitting the information in the criminal trial was
harmless.
5 A non-forensic colleague or trainee could sue a foren-
sic psychiatrist for giving negligent advice about
mental health law. At least in a teaching situation the
forensic psychiatrist is likely to be protected by the
absence of a physician–patient relationship from med-
ical malpractice. In a situation where a physician, while
lecturing in medical school, stated to a patient’s doctor
that the patient should undergo surgery, the lecturing
physician could not be liable in a suit by the patient
for medical malpractice in the surgery, because there
was no direct physician–patient relationship between
the lecturing physician and the patient (Ranier v.
Grossman 1973). However, although unlikely, a suit
could be filed alleging some other type of negligence to
a student or colleague. To lessen the chance for such a
claim it would be helpful to clarify at the outset that
forensic psychiatrists do not give legal advice but only
legally informed psychiatric consultation and teaching.
6 A forensic psychiatrist could possibly be sued by an
employer for an allegedly negligent pre-employment
examination, that leads to the hiring of an unqualified
employee whose improper acts, in turn, lead to damage
to the employer. For example, in the case of Wharton
Transport Corp. v. Bridges (1980), the Court held that a
successful lawsuit could be brought by an employer
against a physician for indemnification where the
physician had allegedly negligently conducted a pre-
employment physical examination of a person hired as
a truck driver by the employer, because the truck driver
was really not fit for the job and caused an accident,
which imposed damages on the employer. It is not a
large leap to envision a lawsuit by an employer against
a psychiatrist who performs a pre-employment psych-
iatric evaluation that results in the hiring of an employee
who for psychiatric reasons subsequently causes dam-
age to the employer or to other persons (such as work-
place violence).
7 A forensic psychiatrist who acts as a forensic expert for
his or her patient always runs the risk of being sued
for both psychiatric and forensic malpractice by the
patient. It is easy to envision therapy being destroyed
by the psychiatrist acting as a forensic witness. It also
could be claimed that a treating psychiatrist per-
formed a negligent evaluation by relying too much on
a patient, violated recommendations of AAPL in per-
forming a dual role, and thereby was demolished dur-
ing cross-examination. In addition to creating ethical
problems, another strong reason for a forensic psych-
iatrist not to become involved in a forensic capacity
with a patient can be seen to be the increase in liabil-
ity exposure that can arise from becoming involved
in these dual, potentially conflicting roles. Of course,
there are situations where a patient in treatment
tenders his or her mental condition as an issue in a
76 History and practice of forensic psychiatry
lawsuit and thereby opens the door for the opposing
party to compel the testimony of the treating psych-
iatrist. But even in these situations it is not advisable
for the treating psychiatrist to be retained as the pri-
mary forensic witness for the patient.
Claims for intentional torts
These include the following possibilities:
1 A forensic witness may be sued for defamation in situ-
ations where the forensic witness makes allegedly
false statements, outside of court, about the person
whom the forensic witness evaluated. For example,
a forensic psychiatrist who is of the opinion that a
party to a lawsuit is insane may testify to that effect in
the lawsuit and be protected by judicial or witness
immunity. If the forensic psychiatrist makes a similar
statement outside of the lawsuit, such as in a press
interview, the psychiatrist may be sued for defamation
(Susan A v. County of Sonoma 1991). A California
Appellate Court did find possible liability in the case
of a forensic psychologist who spoke with the press
about the defendant and his mother during a trial.
He had been hired by a public defender to examine a
defendant for defense purposes. The psychologist was
misled into thinking the public defender wished him
to speak to the press and had authorized the reporter’s
inquiries. Moreover, he received approval to do so
from the attorney’s supervisor. The court clarified
that a statutory privilege for publication applies to any
communication made in a judicial or quasi-judicial
proceedings by litigants or other participants author-
ized by law in order to achieve the objects of the
litigation, with some logical relation to the action.
Privilege did not apply, even though the press state-
ments were made to obtain a litigation advantage for
the defendant, since publication was to persons in no
way connected with the proceeding. Quasi-judicial
immunity also did not apply since the psychologist had
been retained by the defense and not as a non-advocate.
Therefore, at least in California, forensic psychiatrists
can be liable if they make allegedly defamatory state-
ments in ways not directly related to the trial and if
they are hired by one of the adversaries, since quasi-
judicial immunity is reserved for non-advocates.
2 A forensic psychiatrist might be sued for intentional
infliction of emotional distress, if he or she conducts
a psychiatric evaluation and the subject of the evalu-
ation contends that it was conducted in a manner
intentionally designed to be emotionally damaging
such as being unnecessarily rude.
3 A forensic psychiatrist who intentionally misrepresents
his or her qualifications for the purpose of obtaining
employment, may be sued for fraud by the attorney
or other person employing him or her, where the
misrepresentation is uncovered and the testimony of
the forensic expert is disallowed by the court resulting
in the loss of the lawsuit or the misrepresentation is
uncovered in cross-examination of the expert.
Federal civil rights claims
A forensic psychiatrist who certifies a patient for an invol-
untary hold may be sued for a federal civil rights violation
notwithstanding a state statute providing that the psych-
iatrist has immunity for his evaluation (Jensen v. Lane
County 2000).
Alleged violations of ethics codes and
medical practice law
These include the following possibilities:
1 A forensic psychiatrist may be subject to discipline for
practicing without a license where he or she examines
a client or testifies in a state where he or she is not
licensed. This is a new area of risk, and there are a num-
ber of states that require a license to carry out forensic
work in that state. Maryland and Illinois, for example,
have specific statutes requiring licensure of psych-
ologists in those states as a prerequisite for expert tes-
timony (Simon and Shuman 1999). Florida and some
other states have been creating problems for psych-
iatrists performing forensic work in a state in which
they are not licensed. Before testifying out of state, the
forensic psychiatrist should determine whether a license
is required to give expert testimony in the other state,
whether they need to work in conjunction with a
forensic psychiatrist licensed in that state, or whether
some sort of registration with licensing authorities is
necessary to testify (Simon and Shuman 1999).
2 A forensic psychiatrist who gives false or negligent
testimony in a judicial proceeding may be protected
from civil suit by judicial immunity or witness immun-
ity, but may still be subject to sanction by a profes-
sional society for ethics violations, or subject to an
accusation by the state agency which issued his or
her medical license (Budwin v. American Psychological
Association 1994).
3 A forensic psychiatrist may be sued for breach of
patient privacy or confidentiality if he or she conducts
an evaluation for an employer and discloses confiden-
tial information to the employer without the consent
of the employee being evaluated (Pettus v. Cole 1996).
Pettus (1996) illustrates the risks of not informing
the person being evaluated that such disclosures
will be made and of not obtaining written consent to
such disclosures. In Pettus, psychiatrists performing
forensic evaluations for an employer were sued for
breach of confidentiality in disclosing information to
the employer of the person being evaluated allegedly
without obtaining specific permission from the

person being evaluated. Although the psychiatrists
ultimately won the lawsuit, an appellate court initially
held they could appropriately be sued for alleged
breaches of confidentiality.
PROTECTIONS AGAINST LIABILITY CLAIMS
There are certain prudent steps which a forensic psych-
iatrist may take to protect against liability claims:
1 A forensic psychiatrist should purchase liability insur-
ance that provides coverage for forensic work. Some-
times, this can be added as a rider to a medical
malpractice insurance policy, but protection is needed
for acts by a forensic psychiatrist that are not medical
malpractice since there is no traditional physician–
patient duty. That coverage should obligate the insurer
to defend and to indemnify the forensic psychiatrist
against claims arising out of forensic work. Care
should be taken to select an insurance company with
a high financial rating and a policy with appropriate
coverage. Issues to be considered are whether the
insurance policy is a claims made policy or is a policy
providing occurrence coverage. Claims-made cover-
age covers claims which arise during the period when
the insurance is in force. An issue with a claims-made
policy is whether it provides coverage for claims that
arise out of events occurring before the insurance was
in force (nose coverage). Occurrence-coverage insur-
ance covers claims which arise out of alleged acts or
omissions occurring when the insurance is in force.
There should be an inquiry as to whether any occur-
rence coverage includes coverage for claims in which
the alleged damage occurred after the alleged improper
acts, and after the period when the insurance was in
force. For both claims-made and occurrence-coverage
insurance, the insurer should also be questioned as to
the availability of tail coverage or an extended report-
ing period for claims first made after the insurance
coverage period has expired. In purchasing insurance
do not rely on shorthand phrases such as ‘occurrence’
or ‘claims made’ to understand the insurance cover-
age. Ask specific questions about what is insured.
2 A common mistake frequently made by attorneys
who retain forensic witnesses is that they retain
the forensic witness as an expert before they know
what opinion the forensic witness will render. In
some jurisdictions this results in the attorney having
an obligation to disclose the identity of the retained
expert before knowing whether the expert’s opinion
will be favorable to the attorney and his or her client.
Care should be taken in being engaged for forensic
work to avoid this risk. It is advisable that the forensic
expert enters into a written agreement with the attor-
ney retaining the expert, and that the agreement
provides that the attorney on behalf of the attorney’s
Liability of the forensic psychiatrist 77
client, is retaining the forensic psychiatrist to provide
a consultation, with the attorney having the option of
converting the forensic psychiatrist into an expert
witness. In some states this means the attorney will
have the option of not using the forensic psychiatrist
as an expert witness, if the psychiatrist’s opinions are
not favorable to the attorney. In that event, the foren-
sic psychiatrist’s communications with the attorney
will be confidential by virtue of the attorney work-
product doctrine, and the forensic psychiatrist may
not disclose those communications or the adverse
opinion. There is thereby less likely to be legal friction
between the forensic psychiatrist and the retaining
attorney in such circumstances, and less likelihood
of a suit by the attorney or the attorney’s client for
negligence.
3 A written contract could be helpful. Terms which
should be included in any contract between a forensic
psychiatrist and an attorney are the fees to be charged
by the forensic psychiatrist, such as the hourly fees for
review of documents and examination of persons
being evaluated, hourly fees or daily fees for testimony
in court or in deposition, and any fees charged for travel
time. Any contracts should be signed by the attorney. A
contract might include terms obligating the attorney
to pay the psychiatrist’s fees on a monthly basis, or
within a certain period of time after billing is rendered.
The contract in relevant jurisdictions might also
provide that the forensic expert’s communications
with the attorney are protected by the attorney work-
product doctrine, unless and until the forensic witness
is designated as expert witness, and should also provide
that any communications with the attorney’s client in
connection with the forensic work is also protected by
the attorney–client privilege, unless and until the foren-
sic witness is designated as an expert. In other words, in
many jurisdictions, attorney work-product confiden-
tiality, and attorney–client privilege do not automati-
cally apply to communications by an expert witness
with the attorney who has retained the expert or with
that attorney’s client unless the expert is properly
retained. Without such protection, the expert could be
subpoenaed by the opposing side. Finally, a contract
might contain a disclaimer based on the Daubert v.
Merrill Dow Pharmaceuticals, Inc (1993) and the Kumho
Tire Co. v. Carmichael (1999) decisions to the effect that
there is no guarantee that the expert will be allowed to
testify in court.
4 Wherever possible, the work done by the forensic psych-
iatrist should be pursuant to court order since, as
discussed above, work conducted pursuant to court
order in a judicial proceeding is protected by judicial
or witness immunity.
5 When conducting an evaluation, a forensic psych-
iatrist should consider providing written disclosure to
the person being evaluated of the purpose of the evalu-
ation, that the person being evaluated is not a patient
78 History and practice of forensic psychiatry
of the forensic psychiatrist, and that information col-
lected in the evaluation, and the opinions of the
forensic psychiatrist based on that information, will
be disclosed to others. Where possible, identify exactly
which other persons will receive such disclosures.
6 The forensic psychiatrist should always clarify his or
her role in any consultation so that there are no false
expectations such as a misinterpretation that legally
informed psychiatric consultation is legal advice, or
that a forensic evaluation includes treatment.
CONCLUSION
In conclusion, although liability is significantly less
for psychiatrists practicing forensic psychiatry than in
clinical psychiatry, potential liabilities are broad-based
and do exist. Most importantly, the malpractice liabilities
are often distinct from those encountered in usual clinical
psychiatric settings and increasingly require in-depth
familiarity with the scope and practice of the field of
forensic psychiatry. Various strategies for minimizing
these liabilities are warranted, including written disclos-
ures and contracts for forensic work. Although relatively
unusual, liability exposure does exist in forensic psychi-
atry, and some precedent-setting appellate cases have been
cited in this chapter. Appropriate measures should be
taken to limit this potential exposure.
REFERENCES
American Academy of Psychiatry and the Law. 1995.
Ethical Guidelines of the American Academy of
Psychiatry and the Law. Bloomfield, CT: American
Academy of Psychiatry and the Law.
Appelbaum, P.S. 2001. Liability for forensic evaluations: a
word of caution. Psychiatric Services 52, 885–6.
Budwin v. American Psychological Association (1994).
24 Cal. App. 4th 875, 29 Cal. Rptr. 2d 453.
Dalton v. Miller (Col. App. 1999). 984 P. 2d. 666.
Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993).
509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786.
Felton v. Schaeffer (1991). 229 Cal. App. 3d 229, 279 Cal.
Rptr. 713.
Jensen v. Lane County (9th Cir. 2000). 222 F. 3d 570.
Kumho Tire Co. v. Carmichael (1999). 526 U.S. 137, 143 L.
Ed. 2d 238, 119 S. Ct. 1167.
Mero v. Sadoff (1995). 31 Cal. App. 4th. 1466, 37 Cal. Rptr.
2d 769.
Murphy v. Mathews (Mo 1992). 841 S.W. 2d 671.
People v. Clark (1990). 50 Cal. 3d 583, 268 Cal. Rptr. 399,
789 P. 2d 127.
Pettus v. Cole (1996). 49 Cal. App. 4th 402, 57 Cal. Rptr. 2d 46.
Politi v. Tyler (Vermont 2000). 751 A. 2d 788, 170 Vt. 428.
Rainer v. Grossman (1973). 31 Cal. App. 3d 539, 107 Cal.
Rptr. 469, 17 A.L.R. 4th 132.
Simon, R.I., Shuman, D.W. 1999. Conducting forensic
examinations on the road: are you practicing your
profession without license? Journal of the American
Academy of Psychiatry and the Law 27, 75–82.
Susan A. v. County of Sonoma (1991). 2 Cal. App. 4th 88,
3 Cal. Rptr. 2d 27.
Tarasoff v. Regents of the University of California (1976).
17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P. 2d 334, 83
A.L.R. 3d 1166.
Wharton Transport Corp. v. Bridges (Tenn. 1980). 606 S.W.
2d 521, 24 A.L.R. 4th 1295.

The death penalty
GREGORY B. LEONG, J. ARTURO SILVA AND ROBERT WEINSTOCK
Capital punishment in the United States has often been
the subject of intense societal controversy (Baird and
Rosenbaum 1995; Sarat 2001). The current epoch of cap-
ital punishment began in 1976 with the U.S. Supreme
Court decision of Gregg v. Georgia. Only between the U.S.
Supreme Court cases of Furman v. Georgia in 1972 and
Gregg v. Georgia in 1976 did federal law for the only time
in U.S. history effectively eliminate the death penalty in
the United States. However, this prohibition was short-
lived and since the Gregg decision, each jurisdiction can
decide upon the legitimacy of capital punishment. At
the end of 2000, the imposition of the death penalty was
possible in 38 states and by the federal government (except
for the District of Columbia) (U.S. Department of Justice
[USDOJ] 2001). At that time, the 3593 prisoners housed
on death row were 98.5 per cent male, 55 per cent white,
and 43 per cent black. The death row census increased 1.5
per cent from year-end 1999, and the ages of the inmates
ranged from 18 to 85 years (USDOJ 2001). In the most
recently available government statistics on capital punish-
ment, 14 states executed 85 prisoners in 2000, including
two female prisoners (USDOJ 2001). A preliminary count
for 2001 found 66 executions (USDOJ 2001). Since the
Gregg decision, i.e., from January 1, 1977 until the end
of 2000, 31 states have executed 683 prisoners, with 65
per cent of the executions occurring in five states (Texas,
Virginia, Florida, Missouri, and Oklahoma) (USDOJ
2001). At year-end 2000, three states (California, Texas,
and Florida) accounted for 39 per cent of the death row
population (USDOJ 2001). However, the annual number
of persons executed from 1930 to the late 1940s exceeded
100 per annum, i.e., was greater in absolute number for
each year of the post-Gregg era (USDOJ 2001).
The debate surrounding capital punishment tradition-
ally had two major camps. Retentionists, or supporters
of the death penalty, offer several reasons for preserving
the ultimate punishment, including retribution, justice,
deterrence, and the possibility of saving money over
imprisonment if appeals are sharply limited. Moreover,
the retentionists view capital punishment as satisfying the
proportionality analysis, i.e., the severity of the punishment
10
should be commensurate with the gravity of the crime.
Fear, though, has probably been the prime motivator
behind the pro-death penalty position. The higher crime
rates in the United States, which more closely resemble
those of volatile Third World countries (that also permit
capital punishment) than those of other developed western
nations, may provide a partial explanation for this fear
(Currie 1985). Additionally, with strong popular support
for the death penalty, politicians have been reluctant to risk
their careers supporting an anti-death penalty position.
Abolitionists, or opponents of capital punishment,
offer several reasons to support their position, including
the irreversibility of the punishment, the possibility of exe-
cuting an innocent person, disproportionately high eco-
nomic expense arising from the legal process, ethnic
imbalance in those executed with overrepresentation of
African-Americans, and that the barbarity and inhumane-
ness of an execution violates the Eighth Amendment.
Abolitions also cite quantitative data such as the lack of
increased crime rates in other western democracies with-
out capital punishment and the lack of empirical evidence
to support the death penalty’s deterrent effect on crime
rates in states that have reimposed capital punishment or
in neighboring states which differ in terms of permitting
executions.
During much of the latter part of the twentieth cen-
tury, American public opinion has increasingly favored
the pro-death penalty position since a nadir of support
in 1965. Congress has followed the pro-execution senti-
ment with its enactment of the Anti-Terrorism and
Effective Death Penalty Act of 1996, which limits the
number of legal appeals for capital cases (see U.S. Code,
Title 28, Section 2254 in particular). However, at the
close of the century, scientific advances, inadequate legal
representation, and other errors have become significant
factors in the death penalty debate. With advances in
forensic science techniques, particularly with the use of
DNA evidence, there has been post-trial demonstration
of not merely a ‘not guilty’ finding, but actual innocence
(Connors et al. 1996). On the legal front, successful
legal appeals have been based on ineffective assistance of
80 History and practice of forensic psychiatry
defense counsel. A recent review of recent death penalty
convictions found substantial error rates in the impos-
ition of capital sentences from 1973 through 1995
(Liebman et al. 2000). These serious doubts regarding
the actual guilt of convicted death row prisoners have
caused concern among even pro-death penalty propon-
ents, and at the start of the Millenium there has been an
increasingly intense call for a moratorium on executions.
Recent public surveys indicate public opinion shifting
toward suspending executions until at least reforms are
instituted (The Justice Project 2000). So beyond the trad-
itional retentionist and abolitionist division, a third major
position favoring a moratorium on capital punishment
has emerged and appears to be gathering momentum in
the death penalty debate.
What may temporarily reduce the death row inmate
population, or at least delay execution in many cases, is
the United States Supreme Court ruling in Ring v. Arizona
(2002). In Ring, a seven-to-two vote held that those states
in which their statutes allowed a judge alone to rule on
aggravating factors (or in essence the imposition of the
death penalty) during a capital trial would violate the
Sixth Amendment right to a jury trial.
MEDICAL ETHICS AND THE DEATH PENALTY
Medicine, and especially psychiatry, has not been immune
to the polemics surrounding capital punishment. Profes-
sional participation in an execution is expressly an uneth-
ical activity for physicians based on the ethical guidelines
promulgated by the American Medical Association (AMA)
and adopted by the American Psychiatric Association
(APA). Participation though has been narrowly inter-
preted by the AMA as forbidding involvement in the
actual administration of the means of death, or pro-
nouncing death (Skolnick 1993). One professional group
has adopted a more stringent definition of unethical psy-
chiatric participation in capital cases, i.e., any participa-
tion after a guilty verdict has been rendered (Rosner et al.
1991). Nonetheless, rank and file physicians do not neces-
sarily agree with the AMA-generated ethical position, as a
recent survey of physicians suggests that many believe a
certain level of participation in the execution process is
professionally acceptable, such as assisting with a lethal
injection or pronouncing death (Farber et al. 2000).
Forensic psychiatrists themselves are divided on the
issue of the propriety of capital punishment (Leong et al.
2000). Nonetheless, surveys of forensic psychiatrists have
shown that a clear majority believe that the death penalty
should be treated differently because of its special ser-
iousness. In such surveys, forensic psychiatrists also are
divided in regards to the ethics of facilitating a death
sentence in any manner despite the lack of any official
position by professional organizations on most death
penalty matters (Weinstock 1986; Weinstock 1989).
Participation by forensic psychiatrists in death penalty
cases is probably the one area in which the goals of the
legal system are most likely to collide with traditional
medical ethics (primum non nocere) (Weinstock, Leong
and Silva 1990).
Because of the recent turmoil in the death penalty
issue, while not changing medical ethics, organizations
have taken positions on capital punishment. For example,
the American Academy of Psychiatry and the Law (AAPL)
has taken a position in favor of a moratorium on the death
penalty. Following a survey of the AAPL membership,
the Executive Council of AAPL adopted the following
resolution on May 6, 2001 (AAPL 2001):
Resolved, that the American Academy of Psychiatry
and the Law calls for a moratorium on capital pun-
ishment at least until death penalty jurisdictions
implement policies and procedures that: A) Ensure
that death penalty cases are administered fairly and
impartially in accordance with basic due process;
and B) Prevent the execution of mentally disabled
persons and people who were under the age of 18 at
the time of their offenses.
FORENSIC PSYCHIATRIC PARTICIPATION IN
THE DEATH PENALTY PROCESS
Ake v. Oklahoma (1985) sets a minimal requirement for
the capital case defendant to have access to psychiatric
consultation. The legal system often asks forensic psych-
iatrists to examine defendants to evaluate various issues,
including various competencies, mental state at the time
of the offense, dangerousness, and sentencing (treatment)
recommendations. The psychiatric assessment of these
forensic issues are shared by both capital and non-capital
cases and does not differ. Nonetheless, some forensic psy-
chiatrists may view participation in capital cases as quali-
tatively different from that of participation in non-capital
cases, citing concern about involvement in the death
penalty process.
In a recent survey of forensic psychiatrists, although
some question the ethical propriety of providing consult-
ation to the prosecution at any stage of a capital case
(Leong et al. 2000), there is no consensus about the
appropriateness of participation by forensic psychiatrists
in death penalty cases. Individual forensic psychiatrists
have to decide on their own as to whether to participate
in forensic psychiatric evaluations and if so, for which
assessments they feel professionally and personally com-
fortable. Whatever position a forensic psychiatrist takes, if
providing forensic psychiatric expertise in a capital case,
the assessment should be done honestly (Diamond 1990;
Foot 1990; Weinstock, Leong and Silva 1992) in accord-
ance with the current forensic psychiatric ethics (see
Chapter 8). There are other professional issues involving
psychiatrists and physicians in a capital case, but these lie
beyond those facing the forensic psychiatric consultant.

PSYCHIATRIC EXPERT WITNESS TESTIMONY
Unlike most non-capital cases, psychiatric testimony
at the penalty (sentencing) phase of a capital trial may
be particularly important and potentially controversial
since the death penalty is at issue. Psychiatric testimony
supporting the defense position can be crucial. Mental
problems not qualifying for insanity or diminished
capacity as well as a presentation of a psychodynamic or
biopsychosociocultural explanation of the crime may be
particularly relevant for mitigation. Nevertheless, psy-
chopathology believed by the psychiatrist to be mitigat-
ing can be perceived by the trier of fact as aggravating.
Because of the irreversible nature of the capital punish-
ment, the Supreme Court has recognized that the capital
case defendant must be afforded the opportunity to pre-
sent any and all mitigating factors by which the trier of fact
can decide not to impose the death penalty for a capital
offense (Lockett v. Ohio 1978; Eddings v. Oklahoma 1982).
Psychiatric testimony supporting the prosecution
position during the sentencing phase of a capital trial can
be especially problematic since its sole purpose is to bring
about a death sentence. The United States Supreme Court
case of Payne v. Tennessee (1991) created potential oppor-
tunities for psychiatrists to participate for the prosecution
during the sentencing phase of a capital case. The Payne
case reversed prior Supreme Court decisions and allows
prosecutors to use Victim Impact Statements during a
criminal trial’s sentencing phase. Depending on the juris-
diction, these statements can detail the victim’s character
as well as the psychological impact of the crime upon the
victim’s family and community. The prosecution could
then conceivably call psychiatric experts to validate the
psychological effect of the crime upon the victim’s family
(Stone 1991). Although psychiatric participation for the
prosecution after having examined only the victim’s fam-
ily appears to raise serious questions regarding its ethical
propriety – especially in death penalty cases – some
mental health commentators have argued that there is no
professional ethical argument against such participation
(Kermani and Kantor 1994).
Although some forensic psychiatrists are of the
opinion that only efforts to prevent a death sentence
are ethical, dishonesty in testimony whether supporting
the prosecution or defense position, however noble the
motive, is not ethically appropriate. Dishonesty would
undermine respect and usefulness for psychiatry in the
legal system. Although ethical guidelines for the practice
of forensic psychiatry do not require impartiality, hon-
esty and striving for objectivity are required.
Barefoot v. Estelle (1983) defined some legal contours
of allowable courtroom psychiatric testimony during
the penalty phase of a capital trial. The Supreme Court
ultimately denied Barefoot’s contentions that psychiatrists
cannot accurately predict dangerousness and that a per-
sonal examination by the psychiatric expert witness of the
defendant is required. In regard to permitting psychiatric
The death penalty 81
testimony based on a hypothetical situation (questions)
instead of on a personal examination, the Court ruled
this tactic permissible as it was already commonly used
and strongly established as a legal maneuver.
Notwithstanding the Barefoot decision, the clinical
assessment of dangerousness may lack the high degree of
accuracy that would seem to be ethically warranted when
the death penalty is at issue. Moreover, offering an opin-
ion without a personal examination of the defendant
would most likely reduce the accuracy of an assessment
of dangerousness than if a personal examination had
been part of the psychiatric expert’s database. Surveys of
forensic psychiatrists have shown that most favored an
ethical guideline forbidding testimony in a capital case
without a personal examination (Weinstock 1989;
Weinstock, Leong, and Silva 1991). Even though the court
stated that prognosticating dangerousness as done in the
Barefoot case was legally permissible, professional ethical
standards could find such practice unethical. Current
American Academy of Psychiatry and the Law (AAPL)
ethical guidelines state that an earnest effort should be
made to examine the defendant and require at least a
statement of the limitations of any opinion given without
a personal examination. Such a statement of limitations
apparently was not done in the Barefoot case.
Estelle v. Smith (1981) defined the psychiatrist’s legal
responsibility as to informing the defendant about the
possible consequences of a psychiatric evaluation. Estelle v.
Smith concerned the use of a pre-trial psychiatric assess-
ment for competency to stand trial to serve as the basis
upon which testimony by the psychiatrist supporting
the prosecution position was offered during the penalty
phase of a capital trial. The Supreme Court ultimately
ruled the Fifth Amendment privilege against compelled
self-incrimination was violated since no Miranda-type
warning was given and the Sixth Amendment right to
assistance of counsel was violated since defense counsel
assistance could not be provided to help decide whether
the defendant should be psychiatrically examined.
Informing defendants of the possible consequences of
a psychiatric evaluation, i.e., providing Miranda-type
warnings, can raise unforeseen problems, such as affect-
ing what information the defendant provides to the
examining psychiatrist which in turn may inadvertently
cause more (legal) harm than benefit (Leong, Silva, and
Weinstock 1990). In addition, the effectiveness of a
Miranda-type warning may wane as the interview pro-
gresses due to ‘slippage’ or the diminishing effect of such
a warning on an evaluee over the course of the evaluation
process (Leong, Silva, and Weinstock 1990).
COMPETENCY TO PROCEED
Three capital cases have been reviewed by the U.S.
Supreme Court in the last decade of the Millenium that
82 History and practice of forensic psychiatry
involve competency to stand trial. In Riggins v. Nevada
(1992), the U.S. Supreme Court reversed and remanded
the Nevada Supreme Court’s decision to affirm the
trial court’s decision. The Court ruled that involuntary
administration of antipsychotic medication during trial
could be done only if such treatment was medically
appropriate, the defendant was a danger to himself or
others, and there were no less intrusive treatments avail-
able. In Cooper v. Oklahoma (1996), the U.S. Supreme
Court ruled that even though a defendant can show by a
preponderance of the evidence that he or she is not com-
petent to stand trial, Oklahoma’s requirement that the
defendant make the showing by clear and convincing
standard of proof violated due process. These two decisions
appear favorable toward the capital criminal defendant.
However, in Godinez v. Moran (1993), the U.S. Supreme
Court’s ruling did not favor the death row inmate. During
trial, Moran had waived his right to counsel, pleaded
guilty, and subsequently received a death sentence. After
receiving a death sentence, Moran changed his mind and
attempted to assert that he was not competent to proceed
at the time of waiving counsel and pleading guilty. The
U.S. Supreme Court rejected Moran’s argument that
there were differences in competency to stand trial, com-
petency to plead, and competency to waive counsel.
ELIGIBILITY FOR EXECUTION
Demographic factors
The Supreme Court has ruled under what conditions
a person may be excluded from execution. In the matter
of the ‘juvenile death penalty,’ the high court has forbidden
capital punishment for those under age 16 in Thompson v.
Oklahoma (1988), but not for those ages 16 and 17 in
Stanford v. Kentucky, Wilkins v. Missouri (1989) at the time
of the commission of the capital crime. However, indi-
vidual states can require a higher minimum age than the
Supreme Court’s age 16. Of the jurisdictions permitting
capital punishment, 14 states and the federal system pro-
hibit the execution of those under age 18 (USDOJ 2001).
Adolescence may still be a relevant mitigating factor for
the defense to present during the penalty phase of a juven-
ile death penalty case in the 24 other death penalty states.
Statistical data have found that African Americans dis-
proportionately receive the death penalty (Appelbaum
1987). However, in McCleskey v. Kemp (1987), though the
Supreme Court acknowledged that race was a factor in
the death sentences in some capital cases and correlated
with it, the court declined to give sufficient weight to
such empirical findings to overturn a death sentence on
the basis of race in the State of Georgia. The majority
imposed a requirement that racial bias be proven in a spe-
cific case. The court ignored the scientific implication of
95 per cent probability that the finding could not have
occurred by chance, i.e., a statistically significant finding.
In the criminal justice system, such certainty ordinarily is
at the ‘beyond a reasonable doubt’ level. They also could
have restricted the death penalty to especially heinous
crimes in which race was found to be less of a factor. They
did not do so, however, despite this appreciation in the
dissenting opinions.
Mental factors
The only forensic psychiatric issue exclusive to capital
cases concerns the competency to be executed. Vigorous
debate has followed the competency to be executed
process (Heilbrun, Radelet, and Dvoskin 1992; Bloche
1993). Only in the case of a person found incompetent to
be executed can capital punishment be prevented for
psychiatric reasons prior to a legally scheduled execu-
tion. Ford v. Wainwright (1986) involved a case of a man
sentenced to death who first developed a full-blown
paranoid psychotic disorder only after serving time on
Florida’s death row. The Supreme Court on appeal ruled
that the Eighth Amendment prohibits the execution of
an ‘insane’ prisoner, and Ford had the right to a judicial
hearing to determine his competency.
The legal parameters in Ford governing the forensic
psychiatric issue appear straightforward. However, clin-
ical and ethical problems can arise for psychiatrists
performing competency to be executed examinations or
treating incompetent death row inmates. There appears
to be minimal conflict in offering an opinion supporting
an inmate’s incompetency to be executed, as this could
delay the execution. However, if the examining psych-
iatrist offers an opinion supporting competency, then is
the psychiatrist directly participating in the person’s exe-
cution? Although some psychiatrists may find that this
does violate their personal ethical values or their view of
what professional ethics should be, current medical ethics
does not view this as direct participation in the execution
process. Competency to be executed examinations also
offer the possibility of sparing an inmate from the death
penalty.
A greater clinical–ethical conundrum arises after the
prisoner is found incompetent to be executed and the
prison psychiatrist is called upon to treat the death row
inmate in order to restore his or her competency.
Treatment in such a case significantly departs from ordin-
ary medical goals insofar as the primary purpose is to
allow a patient to be executed, not to relieve suffering,
and therefore has the aura of representing direct partici-
pation in the death penalty process. Even if there were
psychiatrists willing to treat ‘insane’ death row inmates,
clinical and ethical problems become increasingly complex
when the prisoner refuses prescribed psychotropic medica-
tion. The Supreme Court has so far left the right to refuse
treatment by ‘insane’ death row inmates unanswered in the
case of Perry v. Louisiana (1990). Instead, the U.S. Supreme

Court remanded Perry’s case back to the trial court for
further proceedings to decide the right to refuse treat-
ment issue in light of the right to refuse treatment case of
Washington v. Harper (1990). The trial court reinstated
the involuntary medication order. The Louisiana State
Supreme Court subsequently heard the case on appeal and
ruled against the involuntary administration of antipsy-
chotic medications to restore Perry’s incompetency to be
executed. However, the Louisiana State Supreme Court
in State v. Perry (1992) left open the possibility that the
death sentence could be reinstated if Perry became com-
petent to be executed without the use of antipsychotic
medications. Very few states provide for commutation of
a prisoner’s death sentence upon a legal determination of
incompetence to be executed. To address this conundrum,
the AMA in the current opinions of the AMA Code of
Medical Ethics by its Council on Ethical and Judicial
Affairs (CEJA) holds that physicians ‘should not’ treat an
incompetent death row inmate for competency restor-
ation unless the death sentence is commuted or the inmate
is undergoing extreme suffering (American Medical
Association 2000).
While mental illness can postpone, and in some cases
preclude, capital punishment on a post-conviction basis
in cases of incompetence to be executed, the presence of
mental retardation has recently come to center stage. As
recently as in Penry v. Lynaugh (1989) the Supreme
Court ruled that mental retardation does not automati-
cally preclude a death sentence, though it can be a miti-
gating factor. Only 13 years later, the Supreme Court in a
six-to-three decision reversed the decision of the Virginia
Supreme Court in Atkins v. Virginia (2000) and ruled
that execution of a mentally retarded individual violated
the Eighth Amendment prohibition against cruel and
unusual punishment (Atkins v. Virginia 2002). The
Supreme Court based in part their decision on the direc-
tion of state legislatures in those states allowing capital
punishment toward prohibiting execution of the men-
tally retarded. The immediate effect of the Atkins case
will be to void the capital sentences of death row inmates
whose mental retardation can be demonstrated, but the
operational effect for future capital cases will involve a
determination of mental retardation either pre-trial or
during trial prior to jury deliberations on whether to
impose the death penalty. Whether the Supreme Court
ruling in Atkins v. Virginia leads to further restrictions on
capital punishment will likely be a focus of considerable
debate for the foreseeable future.
Accelerating factors
Although capital punishment has recently been under
intense scrutiny and changes in the death penalty process
are inevitable in the U.S. in the coming years, another area
in which forensic psychiatry can become involved arises
when a death row prisoner seeks to expedite the execution
The death penalty 83
process. Death penalty opponents have vigorously opposed
an inmate’s preference for death over life imprisonment.
What actually occurs is an inmate’s attempts to waive his
or her right to further legal appeals. Attorneys for the
anti-capital punishment position attempt to have the
defendant’s competency to waive further legal appeals
called into question (Weiss 1999).
REFERENCES
Ake v. Oklahoma, 470 U.S. 68 (1985).
American Academy of Psychiatry and the Law. 2001:
Position Statement of AAPL on the Death Penalty
(Adopted May 6, 2001). Downloaded from
http://aapl.org on 12/24/01.
American Medical Association. 2000: Current Opinions of
the Council on Ethical and Judicial Affairs. Downloaded
from http://www.ama-assn.org on June 19, 2000.
Appelbaum, P.S. 1987. The empirical jurisprudence of the
United States Supreme Court. American Journal of Law
and Medicine 13, 335–49.
Atkins v. Virginia, 260 Va. 375; 534 S.E. 2d 312 (2000).
Atkins v. Virginia, 122 S.Ct. 2242 (2002).
Baird, R.M., Rosenbaum, S.E. (eds). 1995: Punishment and
the Death Penalty: The Current Debate. Amherst, NY:
Prometheus Books.
Barefoot v. Estelle, 463 U.S. 880 (1983).
Bloche, M.G. 1993. Psychiatry, capital punishment, and
the purposes of medicine. International Journal of Law
and Psychiatry 16, 301–57.
Connors, E., Lundregan, T., Miller, N., McEwen, T. 1996:
Convicted by Juries, Exonerated by Science: Case Studies
in the Use of DNA Evidence to Establish Innocence after
Trial (NCJ 161258). Washington, DC: U.S. Department of
Justice.
Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373 (1996).
Currie, E. 1985: Confronting Crime: An American Challenge.
New York: Pantheon Books.
Diamond, B.L. 1990: The psychiatric expert witness:
honest advocate or ‘hired gun?’ In Rosner, R.,
Weinstock, R. (eds), Ethical Practice in Psychiatry and
the Law. New York: Plenum Press, 75–84.
Eddings v. Oklahoma, 71 L. Ed. 2d 1 (1982).
Estelle v. Smith, 451 U.S. 454 (1981).
Farber, N., Davis, E.B., Weiner, J., et al. 2000. Physicians’
attitudes about involvement in lethal injection for
capital punishment. Archives of Internal Medicine 160,
2912–16.
Foot, P. 1990: Ethics and the death penalty: participation
by forensic psychiatrists in capital trials. In Rosner, R.,
Weinstock, R. (eds), Ethical Practice in Psychiatry and
the Law. New York: Plenum Press, 207–17.
Ford v. Wainwright, 106 S.Ct. 2595 (1986).
Furman v. Georgia, 408 U.S. 238 (1972).
Godinez v. Moran, 113 S.Ct. 2680 (1993).
84 History and practice of forensic psychiatry
Gregg v. Georgia, 428 U.S. 153 (1976).
Heilbrun, K., Radelet, M.L., Dvoskin, J. 1992. The debate
on treating individuals incompetent for execution.
American Journal of Psychiatry 149, 596–605.
Kermani, E.J., Kantor, J.E. 1994. Psychiatry and the death
penalty: the landmark Supreme Court cases and their
ethical implications for the profession. Bulletin of the
American Academy of Psychiatry and the Law 22,
95–108.
Leong, G.B., Silva, J.A., Weinstock, R. 1990: Ethical
considerations of giving Miranda-type warnings.
In Rosner, R., Weinstock, R. (eds), Ethical Practice in
Psychiatry and the Law. New York: Plenum Press,
151–62.
Leong, G.B., Silva, J.A., Weinstock, R., Ganzini, L. 2000.
Survey of forensic psychiatrists on evaluation and
treatment of prisoners on death row. Journal of the
American Academy of Psychiatry and the Law 28, 427–32.
Liebman, J.S., Fagan, J., West, V., Lloyd, J. 2000. Capital
attrition: error rates in capital cases, 1973–1995. Texas
Law Review 78, 1839–65.
Lockett v. Ohio, 57 L. Ed. 2d 870 (1978).
McCleskey v. Kemp, 107 S.Ct. 1756 (1987).
Payne v. Tennessee, 111 S.Ct. 2597 (1991).
Penry v. Lynaugh, 109 S.Ct. 2934 (1989).
Perry v. Louisiana, 111 S.Ct. 449 (1990), reh. denied 111
S.Ct. 804 (1991).
Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810 (1992).
Ring v. Arizona, 122 S.Ct. 2428 (2002).
Rosner, F., Halpern, A.L., Kark, P.F., et al. 1991. Physician
involvement in capital punishment. New York State
Journal of Medicine 19, 15–18.
Sarat, A. 2001: When the State Kills: Capital Punishment
and the American Condition. Princeton, NJ: Princeton
University Press.
Skolnick, A.A. 1993. Health professionals oppose rules
mandating participation in executions. Journal of the
American Medical Association 269, 721–3.
Stanford v. Kentucky, Wilkins v. Missouri, 109 S. Ct. 2969
(1989).
State v. Perry, 610 So.2d 746 (La. 1992).
Stone A.A. 1991. Report on the Supreme Court decision in
Payne v. Tennessee. Newsletter of the American
Academy of Psychiatry and the Law 16, 79–81.
The Justice Project. 2000. New survey shows overwhelming
majority supports changes to death penalty: Democratic
and Republican lawmakers release poll showing 80%
support reform to capital punishment system.
Downloaded from http://www.TheJusticeProject.com on
9/26/00.
Thompson v. Oklahoma, 101 L. Ed. 2d 702 (1988).
U.S. Department of Justice. 2001: Capital Punishment 2000
(NCJ 190598). Washington, DC: U.S. Department of
Justice.
Washington v. Harper, 110 S.Ct. 1028 (1990).
Weinstock, R. 1986. Ethical concerns expressed by forensic
psychiatrists. Journal of Forensic Sciences 31, 596–602.
Weinstock, R. 1989. Perceptions of ethical problems by
forensic psychiatrists. Bulletin of the American Academy
of Psychiatry and the Law 17, 189–202.
Weinstock, R., Leong, G.B., Silva, J.A. 1990. The role of
traditional medical ethics in forensic psychiatry. In
Rosner, R., Weinstock, R. (eds), Ethical Practice in
Psychiatry and the Law. New York: Plenum Press,
31–51.
Weinstock, R., Leong, G.B., Silva, J.A. 1991. Opinions by
AAPL forensic psychiatrists on controversial ethical
issues: a survey. Bulletin of the American Academy of
Psychiatry and the Law 19, 237–48, erratum 19, 393.
Weinstock, R., Leong, G.B., Silva, J.A. 1992. The death
penalty and Bernard Diamond’s approach to forensic
psychiatry. Bulletin of the American Academy of
Psychiatry and the Law 37, 830–8.
Weiss, K.J. 1999. Waiving death row appeals: whose right
is it anyway? Journal of the American Academy of
Psychiatry and the Law 27, 471–81.

Competence assessments
ROBERT WEINSTOCK, GREGORY B. LEONG AND J. ARTURO SILVA
Forensic psychiatrists frequently are asked to make assess-
ments of competence for legal or administrative purposes.
Competence is a context-dependent term with criteria
specific to the function being evaluated. It is possible to be
competent for one purpose yet incompetent for another.
Competence also can change as a person’s underlying
condition changes, or circumstances occur that challenge
a person’s capabilities. The type of functioning necessary
for a specific purpose generally involves intellectual and
emotional capabilities that a forensic psychiatrist may be
most qualified to assess, although for competence assess-
ments unlikely to reach formal litigation, a general psych-
iatrist ordinarily may be appropriate for the task such as
offering a professional opinion about the competency to
provide for basic needs (grave disability).
According to Grisso (1986), legal competence includes
an evaluation of an individual’s ‘functional abilities,
behavior, or capacities.’ Functional abilities relate to a
person’s specific knowledge, beliefs, or understanding
necessary to accomplish a given task. Assessments of com-
petence require information about ability to function in
a specific area, and ability to assess a situation and weigh
relevant factors. There are tools that have been developed
to help assess some types of competence. For example,
the MacArthur group developed one for competence to
stand trial (Poythress et al. 1999). Care must be taken
in using such instruments since they do not take the
place of a careful assessment by a clinician of the relevant
facets. For example, delusions about a crucial aspect of a
trial might make a defendant incompetent to stand trial,
even if the individual is in all other respects competent.
Additionally, a person with deficits in many areas may
be competent to stand trial on a relatively simple charge
with a small penalty if a defendant is aware of the issues
central to the case. Such issues are especially important
and potentially complex though in assessments of com-
petence to stand trial, since unforeseen situations may
arise in a trial, and a defendant may have only one chance
at a competence to stand trial assessment. According to
the U.S. Supreme Court in Godinez v. Moran (1993), once
a defendant is found competent to stand trial, he or she
11
may be considered competent for all situations that may
occur in a trial, even if not foreseen at the time of the
evaluation, such as representing himself/herself. Justice
Thomas, in the majority opinion, thought it would be too
complex to reassess a defendant each time a new issue
arose during a trial.
A psychiatric diagnosis of any type is not synonymous
with incompetence. Only the manner in which the men-
tal disorder interferes with functioning in a specified
context is relevant to an assessment of incompetence.
The law specifies the legal criteria, which differ depend-
ing on the type of competence evaluated. Oftentimes,
incompetence is legally required to be the result of men-
tal illness, such as with mental health guardianships or
conservatorships.
Forensic psychiatrists may be in a position to ascer-
tain whether certain biases are prejudices or whether
there are supportive psychiatric data. For example, many
judges and juries believe that children should be raised
by conventional parents. Even though there is no empir-
ical justification for this opinion, it still could affect the
outcome of a parental fitness (capacity) hearing. In many
circumstances, no relevant data exist, and prejudices and
value judgments also can influence a forensic psych-
iatrist’s opinion. Value judgments should be distin-
guished from professional opinions and scientific data.
It may also be necessary to test or observe functioning
at a specific task in a specific context in order to deter-
mine to what degree an impairment leads to a disability.
Sometimes, psychological tests are helpful to document
specific areas of impairment and disability as well as their
extent (Grisso 1986). Biases of the forensic psychiatrist
should not be misrepresented as scientific data with
reasonable medical certainty. Efforts should be made to
obtain data supporting any such belief with an ethical
responsibility to strive for objectivity.
Grisso (1986) conceptualizes several characteristics
relevant for competence assessments. A contextual char-
acteristic or a general environmental context establishes
parameters for relevant functional abilities as they are
applicable to legal competence in a specific area. Decisions
86 History and practice of forensic psychiatry
must he made regarding relevance for a particular pur-
pose. Causal inferences are necessary to relate abilities or
deficits to a specific cause and to make future prognosti-
cations. An interactive characteristic focuses on the per-
son’s abilities to meet demands in interactions with
others or demands posed by a specific situation.
Competency is based on the ability to function in a
specified situation or task. A person may be disabled in a
particular area of functioning regardless of the degree of
impairment. Competence does not depend on an absolute
level of functioning or general functional ability. However,
judgmental characteristics are involved in deciding what
level of functioning is needed for a specific competence.
Judgments then are utilized in recommending a dispos-
ition. Although judges sometimes give little or no weight
to psychiatric input, they also may follow a psychiatrist’s
recommendation without further consideration. Thus,
a recommendation can have a very significant impact.
Gutheil and Appelbaum (2000) distinguish between
standards for general and for specific competence. General
competence questions are raised when it is believed that
a person is unable to make decisions about a wide range
of affairs. A finding of incompetence can lead to a person
being placed on a guardianship or conservatorship. Specific
competence refers to ability to perform a specific function.
A person may be competent to function in one area but
not in another, because differing capacities and abilities
may be required. Making this distinction itself can be an
important contribution by a forensic psychiatrist consult-
ing with general physicians and psychiatrists.
A person who is assessed as generally incompetent is
considered so for all legal purposes – that is, a global
incompetence. However, such a person may be de facto
competent for a specific purpose, and this fact should be
brought to a court’s attention. For example, a person not
competent to handle his or her money, or make decisions
about psychotropic medication or psychiatric hospitaliza-
tion, may be competent to decide whether to have their
leg amputated for medical reasons. People on guardian-
ships in most jurisdictions generally are considered legally
incompetent for all purposes. Conservatorships in some
states are more limited than guardianships, and may be for
incompetence in some specified areas but not others. In
cases of actual or de facto competence in a limited area for
a person adjudicated as legally or de jure incompetent, the
person’s consent should be obtained in addition to that
of a conservator or guardian if practical considerations
preclude a court hearing. If a person improves and general
competency is restored, courts should be petitioned to
rescind the guardianship or conservatorship. This situ-
ation is similar to that of adolescents and children who may
be legally incompetent because of immaturity for most
purposes, solely because of their age. In fact, they may be
able to make more competent decisions than many adults
in some circumstances despite being considered legally
incompetent. However, unlike the disabled adult, the law
may refuse to recognize a minor as competent for some
purposes despite the reality or facts of a situation, prob-
ably because of the perception of immaturity of juveniles.
There are many different types of specific competence
with varying criteria distinct for the relevant area of
functioning. Although statutory and case law sometimes
specify the criteria in respective jurisdictions, criteria can
be vague and allow for flexibility as well as subjectivity.
An attempt always should be made to find out and clarify
the legal criteria before offering an opinion. Sometimes
it is necessary to refer to the forensic psychiatric litera-
ture, such as with incompetence to give informed consent
to medical treatment, since there is relatively little legal
precedent. Specific competence assessments in the crim-
inal arena include various competencies to proceed (stand
trial, enter a plea, testify, waive counsel, be sentenced) in
the legal matter, competence to waive Miranda rights, com-
petence to confess, and most dramatically competence to
be executed. In the civil area, specific competencies include
those dealing with parenting, informed consent for treat-
ment or research, consent for voluntary psychiatric hospi-
talization, contracting, marriage, and will-making. These
specific areas and their criteria are discussed in chapters
in other sections of this book.
Many psychological test instruments have been
developed for specific competencies (Grisso 1986), and
these sometimes are helpful in assessing specific areas of
functioning. However, although they produce reliability,
they are not necessarily better than a careful assessment
by a clinician who may reach a more valid conclusion by
being able to consider which factors are most relevant to
a specific situation. Even when the tests have good cor-
relations with clinical assessments, they may miss what
is essential in a specific case. They may be utilized best
as supplements to careful clinical evaluations, but should
not replace them.
Value judgments are an inevitable part of capacity and
competence determinations (Koppelman 1990). There is
the internal value related to the conceptualization of a
person’s success or failure at something, and the external
values brought by those doing the evaluations. Values
are involved in establishing the cut-off line for abilities,
which divides competence from incompetence (Faden and
Beauchamp 1986). Evaluators who come up with differ-
ing assessments of competence may do so also because
of differing external values they bring to the assessment
even if they agree on the data. For example, they may give
differing value and weight to autonomy, beneficence, pater-
nalism, civil liberties, and social protection. Values enter
into priorities and into determinations of how people
ought to live, what people ought to be able to do, what
value to give patient welfare, and what value to give to an
individual’s choice and preferences. Value judgments
in this area are especially important, but probably are
inevitable in all of forensic psychiatry, with impartiality
probably impossible (Diamond 1959).
Informed consent is another area in which psych-
iatrists are often asked to assess competence and for which

there are few legal standards in most jurisdictions (Grisso
and Appelbaum 1998; Berg et al. 2001). Sliding-scale
thresholds have been utilized for competence to give
informed consent (Roth, Meisel, and Lidz 1977; Drane
1984). Differing thresholds may depend on the factors in
a specific case, such as the risks and benefits of a decision
and the reasonableness of an evaluee’s choice. A high
threshold tends to be utilized for competency if a person
is prepared to make an unreasonable choice. Rather than
using unreasonable outcome per se as a criterion, such
differing thresholds suggest that a more stringent attempt
should be made to search for a deficit in the ability to
weigh relevant information if an evaluee’s choices are too
unreasonable. A person’s choice should at least be under-
standable in order to be competent, even though it may
be unwise. Many irrational elements enter into decisions
by normal competent individuals (Brock and Wartman
1990). Values inevitably enter into any determination of
reasonableness, but varying thresholds are most consist-
ent with common-sense approaches to this issue.
Although the sliding-scale concept ordinarily has been
utilized in civil competence assessments, it also can be
seen to have applicability in the criminal area. Criteria
for competence to proceed can be interpreted in varying
ways depending on the seriousness of the offense or the
unreasonableness of a defendant’s wishes regarding a trial.
A serious offense or complex legal case may require a
greater degree of ability of a defendant to understand the
charges against him or her and to provide assistance to his
or her attorney. Depression must be seriously considered
as making a defendant incompetent to stand trial in the
case of serious felonies if it leads to a wish for a strategy to
be found guilty and perhaps even a wish for the death
penalty. A lower threshold is probably necessary to stand
trial for less serious crimes. Sliding-scale criteria probably
are frequently utilized but usually are not so conceptual-
ized in the criminal area.
The biases of an examiner also can influence the inter-
pretation of terms utilized in the legal criteria. The most
honest and effective approach is to be open about the data
and also the abilities evaluated, as well as explaining which
legal criteria were used and how they were interpreted.
A competence assessment should indicate what areas of
functioning were evaluated, how they were evaluated, and
what factors were considered relevant and why. Compe-
tence for one purpose should not be confused with com-
petence for another or with criteria for general competence.
Simple conclusory statements should be avoided as they
can conceal hidden value judgments and can disguise such
value judgments as psychiatric expertise.
Some commentators have recommended that psychi-
atrists utilize the term ‘capacity’ in their assessments to
clarify that competence is a legal determination. Others
suggest that the psychiatrist should comment solely on a
person’s mental status. Although competence is a legal
concept, it is unclear why a forensic psychiatrist should
not give his or her opinion about competence even though
Competence assessments 87
this opinion does not have the same force as a legal deter-
mination. Admittedly, other non-psychiatric factors are
relevant such as the nature of the medical problem and
possible alternative treatments and psychiatrists may not
be the most expert at assessing subtle cognitive deficits,
but psychiatrists are probably more adept than any other
member of the treatment team at considering the ways in
which mental factors can impede decision making cap-
acity. In an emergency situation, such as competence to
give informed consent for urgent medical treatment, there
may be insufficient time to take the case to court. There
is no persuasive reason to relegate the assessment of
the ultimate legal issue of competence by default to an
internist in these situations.
Forensic psychiatrists are especially suitable for
assessing a person’s mental status and its potential for
interfering with specific areas of functioning. If general
psychiatrists are asked to make such assessments, foren-
sic psychiatrists can provide consultation to them. It is
important to specify all the reasoning and criteria so that
areas of agreement and disagreement can be determined.
Lack of clarity on these facets can lead to confusion
regarding distinctions between professional opinions
involving specific expertise and value judgments. Minor
technical disagreements should be differentiated from
psychiatric data pertinent to the legal criteria. For example,
it may be irrelevant for a specific legal purpose whether
a person suffers from bipolar disorder, schizoaffective
disorder, or schizophrenia, if it is clear that the person
harbors delusions. An attorney can use any lack of clar-
ity to confuse the trier of fact. It is important to be
clear about the differing aspects of competence so that a
forensic psychiatrist can make a clear case to the trier of
fact and can prevent attorneys from obfuscating the
many areas of reliable and valid non-controversial data
in psychiatry.
REFERENCES
Berg, J.W., Appelbaum P.S., Parker, L.S., Lidz, C.W. 2001:
Informed Consent: Legal Theory and Clinical Practice.
New York: Oxford University Press.
Brock, D., Wartman, S. 1990. When competent patients
make irrational choices. New England Journal of
Medicine 322, 1595–9.
Diamond, B.L. 1959. The fallacy of the impartial expert.
Archives of Criminal Psychodynamics 3, 221–36.
Drane, J.H. 1984. Competency to give informed consent:
a model for making clinical assessments. Journal of
the American Medical Association 252, 925–7.
Faden, R.R., Beauchamp, T.L. 1986: A History of Informed
Consent. New York: Oxford University Press.
Godinez v. Moran, 113 S.Ct. 2680 (1993).
Grisso, T. 1986: Evaluating Competencies. New York:
Plenum Press.
88 History and practice of forensic psychiatry
Grisso, T., Appelbaum, P.S. 1998: Assessing Competence to
Consent to Treatment: A Guide for Physicians and Other
Health Professionals. New York: Oxford University Press.
Gutheil, T.G., Appelbaum, P.S. 2000: Clinical Handbook of
Psychiatry and the Law, 3rd edition. Baltimore:
Lippincott, Williams & Wilkins.
Koppelman, L.M. 1990. On the evaluative nature of
competency and capacity judgments. International
Journal of Law and Psychiatry 131, 309–29.
Poythress, N.G., Nicholson, R., Otto, R.K., et al. 1999:
MACCAT-CA: The MacArthur Competence Assessment
Tool-Criminal Adjudication. Odessa, Florida:
Psychological Assessment Resources.
Roth, L.H., Meisel, A., Lidz, C.W. 1977. Tests of
competency to consent to treatment. American Journal
of Psychiatry 134, 279–84.

Psychological autopsy
TIM E. BOTELLO, LINDA E. WEINBERGER AND BRUCE H. GROSS
An area of work that is increasingly becoming a part of
forensic psychiatry is that of psychiatric consultation to
the office of the Medical Examiner or Coroner (ME/C) in
assisting with manner of death determinations. One type
of consultation is referred to as a psychological autopsy.
Although most forensic psychiatrists do not routinely
perform psychological autopsies, there is a growing need
for such professional involvement, which includes
cooperation and interaction with other forensic scien-
tists. Moreover, some of the basic principles of forensic
psychiatry should be easily applied to psychological
autopsy evaluations.
HISTORY
The psychological autopsy concept in death investigation
was developed at the Los Angeles Suicide Prevention
Center by Robert Litman, Norman Farberow, and Edwin
Shneidman in an effort to determine more accurately a
person’s role in his or her own demise. It was Shneidman
who coined the term ‘psychological autopsy.’ ‘In essence,
the psychological autopsy is nothing less than a thorough
retrospective investigation of the intention of the dece-
dent – that is, the decedent’s intention relating to his
being dead – where the information is obtained by inter-
viewing individuals who know the decedent’s actions,
behavior, and character well enough to report on them.’
(Shneidman 1981, p. 326).
Jacobs and Klein (1993) found that there were at least
six purposes for psychological autopsies. These include:
‘(i) determine the mode of death; (ii) determine a per-
son’s intention to die through retrospective reconstruc-
tion; (iii) determine why a person would choose suicide
in terms of their motivation, personal philosophy, and
psychodynamics; (iv) determine why a person would
suicide at a particular time by analyzing the temporal
precipitants; (v) serve as a research tool to aid in the
understanding and prevention of suicide; and (vi) serve
as a therapeutic tool to aid the survivors of suicide.’ (Jacobs
and Klein 1993, p. 209). The authors added additional
12
purposes such as evidence in criminal and civil cases, and
as support for congressional testimony.
Robert Litman performed the first recorded psycho-
logical autopsy in 1958 at the request of Theodore
Curphey, who was then the Los Angeles County Medical
Examiner/Coroner. The case involved a forty-six-year-
old man who drowned as a result of going off a pier. The
psychological autopsy concluded that his death was not a
suicide.
EVALUATIONS
Contemporary death certificates have a category that
reads, ‘Natural, Accident, Suicide, Homicide, or Unde-
termined’ (NASH classification). Approximately 5 to 20
per cent of all deaths are not clear as to the appropriate or
correct manner of death; these unclear or uncertain
deaths are called equivocal deaths. The ambiguity is usu-
ally between the modes of suicide versus accident. To
resolve this ambiguity, a psychological autopsy may
uncover psychological material that helps to clarify the
manner of death. There are other cases that are deter-
mined as a suicide by the ME/C, but contested by family
or significant others. A psychological autopsy may be
helpful in these contested cases. Thus, the psychological
autopsy evaluations stem from the demand for the ME/C
to make a definitive determination on a decedent’s man-
ner of death in ambiguous/equivocal cases and for the
ME/C to re-evaluate the manner of death in contested
cases of suicide.
The psychological autopsy is an evaluation that focuses
on the psychological aspects surrounding the death and,
most notably, the decedent’s intention as related to his or
her actions at the time of his or her death. The decedent’s
intention is the differentiating aspect that defines a death
as suicide rather than accident. A determination of suicide
requires establishing that the death was both self-inflicted
and intentional. For most ME/Cs, a determination of
intentionality is the most difficult criterion for establish-
ing the manner of death. Intent requires that the decedent
90 History and practice of forensic psychiatry
knew or had in his or her mind that a specific act would
probably result in death.
Psychological autopsies are useful whenever a retro-
spective psychological assessment can help determine the
cause of death. In 1985, the California State Supreme
Court case of Searle v. Allstate Life Insurance Company
(a case of a decedent’s wife contesting the life insurance
company’s decision not to give her the full life insurance
benefits because of the suicide determination of her hus-
band’s death) established a landmark ruling. The court
opined that mental capacity was very relevant to the
determination of whether an act of self-destruction was
committed by the decedent with suicidal intent: ‘If the
insured did not understand the physical nature and con-
sequences of the act, whether he was sane or insane, then
he did not intentionally kill himself.’ (Searle 1985, p. 439).
In consideration of the court’s decision in the Searle v.
Allstate Life Insurance Company case, the psychological
autopsy should focus on the decedent’s mental capacity to
form the intent to commit suicide and the factors that
may have impaired his or her mental capacity to form that
intent, such as alcohol, drugs, mental illness, or mental
retardation. It should be noted that the presence of any
of these factors does not in and of itself preclude the
capacity to form the intent to kill oneself.
PSYCHOLOGICAL AUTOPSIES IN
LOS ANGELES COUNTY
In 1989, the USC Institute of Psychiatry, Law, and
Behavioral Science began consulting with the Los Angeles
County Department of Coroner’s Office in performing
psychological autopsies. The cases evaluated were either
equivocal (i.e., the coroner’s office was unsure if the death
was a suicide or an accident) or contested (i.e., a family
member or significant other protested the coroner’s
determination that the death was a suicide).
Prior to any case being referred for a full psychological
autopsy, the Los Angeles County Department of Coroner’s
Office requires that the next-of-kin sign an authorization
and indemnification form. The signed authorization
acknowledges the risks inherent in conducting a psycho-
logical autopsy which may include psychological trauma
to surviving family members, prolongation of the grieving
process, and possible revelation of intimate details con-
cerning the death.
We utilize a team approach consisting of USC Depart-
ment of Psychiatry faculty members (forensic psych-
iatrists and forensic psychologists) and postdoctoral
psychiatry and psychology fellows who work under the
faculty’s supervision. In an effort to conduct the retro-
spective analysis of the decedent’s mental capacity to
form the intent to kill him or herself, the psychological
examiners need to review a number of sources of infor-
mation. These include: the autopsy report; the ME/C
investigator’s report; police reports, if available; and
laboratory data, including toxicology results. Next, it is
necessary to contact the family, spouses, friends, employ-
ers, co-workers, neighbors, persons who witnessed the
lethal act, family physicians, and therapists, if any, as well
as other relevant parties. Prior to the interview, each per-
son is informed that the material gathered from him or
her is confidential to the coroner’s office only and cannot
be released to any other party.
The sources of information should be able to provide
a picture of the decedent’s life-style and his or her behav-
ior and mental state near the time of death. The contacts
are made by telephone or face-to-face interviews. If avail-
able, it is important to review past medical records
and/or past psychiatric records. In that the decedent is
dead and there is a need for the ME/C to render a man-
ner of death determination, the issue of confidentiality
related to medical records is, in most cases, not a barrier
to access information. Shneidman (1969) developed an
outline of sixteen categories that might be included in a
psychological autopsy.
It is important to note that during the psychological
autopsy evaluation, the forensic psychiatric/psycho-
logical examiners may contact people who are still in the
grieving process. As forensic examiners/consultants to
the office of the ME/C, the primary purpose of the psy-
chological autopsy is not necessarily therapeutic; rather,
our main objective is to gather information, in a sensitive
manner, to determine the decedent’s mental capacity
to form the intent to kill him or herself. It is our policy
to suggest routinely to the distressed family members/
significant others that they seek outside counseling to
help them deal with the grieving process, which may have
been thwarted because of the delay in certification of
death. Often, the survivors state spontaneously that the
psychological autopsy was of therapeutic value to them by
allowing them to vent their feelings about the decedent’s
death and talk about the decedent’s life.
When the psychological autopsy evaluation is com-
pleted, a written report is sent to the Los Angeles County
Department of Coroner’s Office. This report is confiden-
tial to the coroner only, and includes the sources of infor-
mation reviewed, the opinion concerning the decedent’s
manner of death, and the data and reasoning basic to the
opinion. This practice is well known to forensic mental
health professionals who conduct confidential evalu-
ations for referring parties. When the psychological
autopsy report is submitted to the coroner, a conference
is held with a number of forensic scientists present who
are involved in assisting in the final determination of
manner of death. These include pathologists, toxicolo-
gists, coroner investigators, and forensic psychiatrists/
psychologists. A general consensus is reached concerning
the manner of death being suicide, accident, or undeter-
mined. This opinion is then offered to the coroner for his
consideration as to the final determination of the man-
ner of death.

RISK FACTORS ASSOCIATED WITH SUICIDE
A number of studies have been reported that highlight
factors associated with persons who commit suicide. The
presence of any one feature does not clearly lead to sui-
cidal behavior; rather, when such factors appear in com-
bination with each other, an individual’s risk for suicide
is greatly increased.
Demographic features have proved significant as risk
factors. Suicide rates increase with age and are the highest
in persons older than 65 years (Barraclough et al. 1974;
Baker 1996). Males are significantly more likely to com-
mit suicide than females (Popoli, Sobelman, and Kanarek
1989; Murphy 2000). Divorced, separated, or widowed
individuals have higher rates of suicide than married
or single people, and people who never married are
more likely to take their lives than married individuals
(Popoli, Sobelman, and Kanarek 1989; Grinspoon 1986).
Whites are more likely than other races to commit suicide
(Pfeffer 1985; Murphy 2000).
Another risk factor category is psychiatric illness. Many
individuals who commit suicide suffer from some mental
disorder at the time of their death. The two most common
illnesses encountered are affective disorder and alcoholism
(Rich et al. 1988; Grossman 1992; Brent et al. 1993a;
Avis 1994; Shaffer et al. 1996; Lecomte and Fornes 1998;
Weinberger et al. 2000). Individuals who suffer from
schizophrenia also represent a high-risk group for suicide
(Bleuler 1978). Roy (1982a, 1982b) found that among
schizophrenics, young men in the earliest stages of their
illness have the highest rate of suicide. In addition, person-
ality features such as aggression, impulsivity, and hopeless-
ness are related to suicidal behavior (Blumenthal 1988).
The issue of an individual having a history of being ill,
either physically or mentally, and obtaining treatment
should be considered when identifying risk factors.
Former psychiatrically hospitalized adult patients have a
higher rate of suicide than non-patients (Shaffer 1988). It
is also common for individuals to see a medical doctor
shortly before committing suicide. These individuals may
feel the need for help, perceive themselves as sick, or have
a chronic, painful, terminal illness that makes them feel
helpless and hopeless (Bhatia, Khan, and Sharma 1986).
Interpersonal and life event factors are found to play a
role in suicidal behavior. Instability or dysfunction within
one’s domestic life is noteworthy, particularly for young
people (Pfeffer 1981; Asarnow, Carlson, and Guthrie 1987;
Marttunen, Aro, and Lonnqvist 1993; Adams, Overholser,
and Lehnert 1994). In addition, social isolation and with-
drawal are significant behaviors (Tabachnick et al. 1966).
Recent, important losses such as the death or separation
from an important relative or friend, loss of health, and
significant financial and legal problems are identified as
risk factors (Tabachnick et al. 1966; Litman 1989; Rich,
Sherman, and Fowler 1990; Brent et al. 1993b; Brent
1995). Youth are especially susceptible to rejection by
Psychological autopsy 91
significant others, humiliating life events, and disciplinary
crises (Shaffer 1988).
People who are contemplating suicide frequently give
warnings. They may communicate clear threats or inten-
tions, or even give indirect hints (Rosenberg et al. 1988).
It is common among adolescents who commit suicide to
make threats shortly before committing the act, and often
they tell only a peer or sibling (Brent et al. 1988). Previous
attempts at suicide as well as a family history of suicide
are also viewed as risk factors (Shneidman and Farberow
1965; Kreitman 1977; Shafii et al. 1985; Grossman 1992;
Bukstein et al. 1993; Brent et al. 1993a).
Other factors have been found that are associated with
suicidal behavior. Rosenberg et al. (1988) identified these
as ‘phrases and criteria related to intent.’ They may be
used to help determine whether the individual intended
to kill him or herself. Making inappropriate or unex-
pected preparations for one’s death, such as giving away
possessions, is viewed as an indicator. Other noteworthy
factors are whether the individual obtained or learned
about means of death or rehearsed fatal behavior, as well
as evidence that the individual ‘recognized high potential
lethality of means of death. Examples: A pharmacist or
physician taking an overdose of a highly lethal drug, or
the decedent’s “researching” different drugs to determine
their degree of lethality.’ (Rosenberg et al. 1988, p. 1450).
If the decedent took measures to avoid rescue, this would
also reflect upon the individual’s intent to commit suicide.
CASE EXAMPLE
The following case example represents an effort to illus-
trate the type of material to be gathered and considered
when conducting a psychological autopsy. Certain details
have been altered to protect the identity of the deceased
and her family.
The Los Angeles County Department of Coroner’s
Office referred an equivocal case to the team of forensic
doctors at the USC Institute of Psychiatry, Law, and
Behavioral Science. The purpose of the psychological
autopsy was to assist the coroner in making a more defini-
tive manner of death determination.
The case involved a forty-four-year-old divorced
white female who was found nude lying at the bottom of
her swimming pool by her sixteen-year-old daughter at
around 5:00 p.m. The daughter last saw the decedent that
morning at breakfast, before the daughter went to school.
On the day of her death, the decedent saw her attorney
about an upcoming court case. The decedent had a
psychiatric history of depression and was in treatment with
a psychiatrist who prescribed antidepressant medication
(amitriptyline). A ‘suicide note’ was found in the kitchen.
The team of doctors reviewed the autopsy report as
well as past psychiatric hospitalization records, and inter-
viewed the decedent’s daughter, boyfriend, employer,
92 History and practice of forensic psychiatry
attorney, and treating psychiatrist. According to the daugh-
ter, the decedent was born and raised in Los Angeles. She
attended high school and received two years of college
education. She married at age twenty-seven and was
divorced twelve years later. She had one daughter, age six-
teen. She worked for the past six years as a secretary for a
medical office. Her employer, Dr. X, described the dece-
dent as a capable person who did not appear depressed
for the several weeks prior to her death.
The decedent was the older of two children from a
middle-class Italian family. The decedent’s own mother
had a history of depression and had been in psychiatric
treatment. The decedent had a history of depression for
the past five years. The daughter described the decedent
as being increasingly depressed immediately following
the divorce from her husband five years earlier. The dece-
dent’s ex-husband is described as an alcoholic, who has
not been making child support payments for the past
several years.
According to the psychiatric hospitalization records,
the decedent was hospitalized at age thirty-nine for treat-
ment of major depression. At that time, she felt depressed,
had vegetative signs of decreased appetite, weight loss,
anhedonia, lethargy, hopelessness, and suicidal ideation
but no intent. The major precipitant was the divorce from
her husband. According to Dr. Y, her treating psychiatrist
for the past three years, the decedent was responding
well to antidepressant medication. She kept her weekly
appointments and was last seen several days prior to her
death. At that time, she was not depressed and there was
no suicide ideation elicited. The decedent was concerned
about her sixteen-year-old daughter, who appeared
increasingly depressed herself and was considering enter-
ing psychotherapy. Mr. G, the decedent’s boyfriend, dis-
cussed their three-year relationship. He stated they were
close friends and had talked of getting married after his
own business was more stable. He described the dece-
dent as being depressed in the past. However, since being
treated with the antidepressant medication, amitripty-
line, over the past year, the decedent’s depression was
much improved. He last saw her for dinner two days prior
to her death. Nothing out of the ordinary or remarkable
was noted by him. He talked to her on the telephone the
night prior to her death. She was concerned about the
upcoming court hearing regarding back child support
payments from her ex-husband, but did not mention any
depressive themes or feelings of being overwhelmed.
The decedent’s attorney was interviewed by telephone.
The attorney knew the decedent for six months. They had
a meeting at noon on the day of the decedent’s death. The
attorney noticed that the decedent was slightly anxious
about the case, but seemed to feel relieved upon learning
that the attorney was very optimistic about the outcome
of her case. The daughter stated that her mother occa-
sionally drank alcohol during the day, about two or three
times a month. She would get intoxicated about once
or twice a year at parties. She described the decedent as
having several close friends. The decedent often went
swimming for exercise in the backyard pool. The daugh-
ter mentioned that her mother was a good swimmer who
swam nude at times when she was by herself.
On the day of her death, the decedent and her daugh-
ter had breakfast together at about 7:00 a.m. The dece-
dent talked about working in the morning and going to
see her attorney at lunchtime. The daughter returned
home about 5:00 p.m. and found the decedent at the
bottom of the swimming pool. The daughter called the
paramedics. The paramedics pronounced the mother
dead after unsuccessful cardiopulmonary resuscitation
(CPR) attempts. A notebook was found on the kitchen
counter. On one page was a grocery list; on the second
page was written, ‘Life is not worth living. Life has too
many problems.’ When questioned about this, the daugh-
ter admitted that she herself wrote the note containing
the depressive themes, and that the decedent wrote the
grocery list. The handwriting of the grocery list was dif-
ferent from the handwriting of the ‘suicide note.’ The
daughter’s handwriting was very similar to that of the
‘suicide note’ and not the grocery list, while the dece-
dent’s handwriting was determined to be very similar to
the grocery list.
Autopsy findings were consistent with death from
drowning. Toxicological results revealed blood alcohol
equal to 0.27 g/100 ml, and there was a therapeutic level
of amitriptyline in the blood.
After obtaining material from all of the sources of
information, a team of forensic psychiatrists and forensic
psychologists met in conference and discussed the argu-
ments for and against a determination of suicide. Those
features that were associated with a risk to commit sui-
cide were the white race, age of the decedent, and her
divorced marital status. In addition, she had a history of
psychiatric hospitalization and current treatment for
depression, and had expressed feelings of hopelessness in
the past.
There were some features that appeared initially to
weigh on the side of suicide, but upon further examin-
ation they did not support this conclusion.
1 The decedent was divorced. However, the divorce was
not a recent occurrence and she was involved presently
in a long-term significant relationship with her boy-
friend. She was not lonely or isolated, but rather had
several close friends.
2 The decedent had a five-year history of mental illness
(viz., major depression) and expressed some suicidal
ideation when she was first ill. She was in treatment at
the time of her death. However, according to her
psychiatrist, she was responding well to psychiatric
treatment including antidepressant medication. She
was last seen several days prior to her death and was
not viewed as depressed. In addition, she never made
any suicide attempts and expressed no suicidal
ideation since her first hospitalization.

3 The decedent had financial difficulties; however, these
were not acute, but rather chronic problems. Further-
more, she was actively trying to solve her financial
situation by going to court to seek back child support
payments from her ex-husband.
4 The court case may have been a stressor for the dece-
dent, yet the decedent’s attorney told her on the day of
her death that she was very optimistic about the out-
come of the court case.
5 It may seem that the decedent took precautions to
avoid rescue by swimming alone when no one was at
home. On the other hand, she had a history of swim-
ming alone and was a good swimmer.
6 The decedent had a significant blood-alcohol level.
The daughter described the decedent as drinking
alcohol to celebrate certain occasions, and believed
that the decedent was celebrating her meeting with her
attorney and hearing the positive information about
the upcoming court case. An important consequence
of her drinking may be that the decedent’s mental
impairment from the alcohol intoxication could have
diminished her ability to swim.
7 A ‘suicide note’ was found in the kitchen. Upon further
investigation and comparison, however, it was dis-
covered that the decedent had not written the note;
rather, it was written by the daughter who was recently
depressed herself prior to her mother’s death.
Finally, there were other factors present that did not sup-
port suicide. The decedent had a full-time job, was satis-
fied with it, and was performing well. Additionally, there
was no family history of suicide. Further, the decedent
made no preparations for her death.
In conclusion, what may have appeared to be a suicidal
death was not supported by the psychological autopsy. In
examining retrospectively the decedent’s mental capacity
at the time of her death, it could be stated that she was
impaired to such a degree that she could not have formed
the intent to commit suicide. We believed that her intoxi-
cation level might have weakened both her physical skills
(i.e., ability to swim) and cognitive capacity (i.e., ability to
realize the extent of her intoxication and understand its
consequences on her swimming ability, thus placing her
at high risk for serious harm). Moreover, given the mater-
ial we had, there were few significant risk factors present
that would support a suicidal death. That is, the psycho-
logical autopsy did not uncover factors that sufficiently
established a mental state that would lead to suicide.
As stated earlier, we always suggest to family, friends,
and significant others that they consider seeking counsel-
ing and/or treatment regarding any possible psycho-
logical trauma resulting from the decedent’s death. In this
particular case, the daughter was encouraged strongly to
follow through with her plans to enter psychotherapy.
The case was presented and discussed at the mode
conference held at the Los Angeles County Department
of Coroner’s Office. The forensic scientists agreed that
Psychological autopsy 93
the manner of death was ‘accident’ and not ‘suicide.’ The
coroner’s final determination was ‘accident.’
CONCLUSIONS
The principles followed in forensic psychiatry can be
applied to the legal issue of manner of death. That is, a
psychological autopsy should be a forensic psychiatric
report that renders a psychiatric-legal opinion regarding
manner of death based on relevant data and reasoning. In
performing the psychological autopsy, the forensic psych-
iatrist becomes part of a team of forensic scientists, for
example, ME/C investigator, pathologist, and toxicologist,
who share and contribute information and opinions.
From our experience with the Los Angeles County
Department of Coroner’s Office and other ME/C offices
throughout the country, there is an unmet need for psy-
chological autopsies. The psychological autopsies per-
formed by forensic psychiatrists can be a great asset for
the Medical Examiner/Coroner in making manner of
death determinations in equivocal and contested cases.
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 2
PART

Legal regulation of
psychiatric practice

13 Informed consent and competency 97

Harold I. Schwartz and David M. Mack
14 Hospitalization: voluntary and involuntary 107
Harold I. Schwartz, David M. Mack and Peter M. Zeman
15 Involuntary civil commitment to outpatient treatment 116
Robert D. Miller
16 The right to treatment 121
Jeffrey L. Geller
17 Treatment refusal in psychiatric practice 129
Debra A. Pinals and Steven K. Hoge
18 Confidentiality and testimonial privilege 137
Ralph Slovenko
19 The duty to protect 147
Alan R. Felthous and Claudia Kachigian
20 Treatment boundaries in psychiatric practice 156
Robert I. Simon
21 Sexual misconduct in the therapist–patient relationship 165
Robert I. Simon
22 The law and physician illness 173
Stephen L. Dilts and Douglas A. Sargent
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Informed consent and competency
HAROLD I. SCHWARTZ AND DAVID M. MACK
THE ISSUE: EVOLUTION OF A DOCTRINE
The concept of informed consent is well established in law;
competent patients have a right to make informed treat-
ment decisions for themselves, free from coercion. The
translation of this seemingly straightforward principle into
clinical practice, however, has been fraught with confusion
and dissent while courts have expanded the liability of
practitioners for failing to obtain informed consent
for psychiatric treatments (Beahrs and Gutheil 2001). As
Roth (1985) notes, the concept is relatively new, the term
‘informed consent’ having first been introduced in a 1957
California case, Salgo v. Leland Stanford Junior University
Board of Trustees. The concept has evolved since Salgo, influ-
enced by new case law, ethical considerations and changed
standards of clinical practice (Meisel and Kabnick 1980).
Recent developments in informed consent law and
clinical practice include case law around informed con-
sent for psychotherapy, fueled by the recovered mem-
ory controversy (Lipton 1999) and other cases; evolving
standards for consent to research with psychiatrically
disordered populations (Pinals and Appelbaum 2000)
and the involuntary administration of medication (see
Chapter 17). Most recently, controversies around end-of-
life decision making and physician-assisted suicide have
focused on competency assessments and the role of psy-
chiatrists in competency determinations (Ganzini et al.
2000).
Questions remain around the definition and appli-
cation of some of the core principles of the informed
consent doctrine. Significant confusion continues to sur-
round the definition of competency (Schwartz and Roth
1989), in part because the courts have remained vague on
the subject (Meisel 1979). Despite ambiguity in the law,
the past decade has seen significant efforts to clarify the
clinical practice of competency assessment (Grisso and
Appelbaum 1998) and to establish standardized object-
ive measures of competency (Grisso, Appelbaum and
13
Hill-Fotonhi 1997). That discussions of informed consent
remain fraught with controversy may reflect the degree
to which the traditional values of medical paternalism
seem to conflict with a mandate to promote indivi-
dual autonomy (Pernick 1982). Some physicians remain
reluctant participants in a practice intended to shift the
balance of power in medical decision making from the
physician to the patient (Stone 1979).
Psychiatry stands in a unique and somewhat paradox-
ical position with regard to informed consent. Because
psychiatrists have long been engaged in discussion-based
treatments with patients that require their patients’
fullest cooperation, and because these discussions often
touch on questions of individual autonomy, psychiatrists
may be more accustomed to discussing questions of per-
sonal responsibility for treatment decisions with their
patients than physicians in other specialties. In this
regard, their experience may lead them to value patient
autonomy in medical decision making more than others.
At the same time, the psychoanalytic tradition, which
underlies many talk-based therapies, is not conducive to
extensive disclosure by the clinician and efforts by patients
to obtain information about the treatment process have
often been labeled as resistance. In the role of consultant
to medical and surgical colleagues, assessing competency
when patients refuse treatment, many psychiatrists
have developed expertise around these issues and are
comfortable contending with the balance of values
underlying complex competency disputes. The growing
complexity of issues surrounding treatment refusal at the
end of life (Sullivan and Youngner 1994) has extended
most recently to the debate about physician-assisted
death and the role of psychiatric assessment of
competency of patients requesting hastened death
(Ganzini et al. 2000). This chapter discusses the develop-
ment of the informed consent doctrine and clinical/legal
concepts of competency and their application to clinical
practice.
98 Legal regulation of psychiatric practice
Legal and social history
INFORMED CONSENT: THE SALGO CASE
The requirement that patients consent to treatment had
long been established in common law when, in 1914,
Justice Benjamin Cardozo wrote in Schloendorff v. Society
of New York Hospital that ‘Every human being of adult
years and sound mind has a right to determine what shall
be done with his own body.’ It was not until the Salgo case
in 1957, however, that the concept of informed consent
was elaborated. In that case, a patient who had experi-
enced a spinal cord injury due to a translumbar aorto-
graphy claimed that he had not been informed of the risks
before the procedure. The court ruled that physicians
will be liable if they withhold facts that are ‘necessary to
form the basis of an intelligent consent.’ Here, for the first
time, a court had emphasized that the patient’s right to
consent required disclosure of the facts necessary to
make an informed decision.
ELEMENTS OF DISCLOSURE AND THE
‘REASONABLE MEDICAL PRACTITIONER’
STANDARD
In Natanson v. Kline (1960), a Kansas court developed the
doctrine further by outlining the kinds of information or
the elements of disclosure thought to be necessary for
decision making by the patient. In the Natanson case the
patient, claiming to have been inadequately informed of
the risks of treatment beforehand, was burned by cobalt
irradiation following a mastectomy. The elements of dis-
closure required by the court included the nature of the
patient’s illness, the nature of the proposed treatment and
its likelihood of success, the risks of untoward outcomes,
and the availability of alternative modes of treatment.
The court set limits on the amount of information that
had to be disclosed about each of these elements by estab-
lishing what has come to be known as the ‘reasonable
medical practitioner’ standard. Under this rule, the physi-
cian would be required to disclose only that which the
reasonable medical practitioner would disclose under
similar medical circumstances. This standard assumes
that a consensus exists within the medical profession
regarding what constitutes appropriate disclosure.
THE ‘REASONABLE PERSON’ STANDARD
The reasonable medical practitioner standard came
under significant challenge in the 1970s. In Canterbury v.
Spence, a 1972 Washington, DC, case, the court proposed
that standards of disclosure be based on that which a
‘reasonable person’ would find material to clinical deci-
sion making. It is of note that although the reasonable
person standard shifts the focus from what clinicians
generally do to what patients might want to know, nei-
ther the Canterbury decision nor the decision in Cobbs v.
Grant, a related 1972 California case, actually required
that disclosure be formulated around the needs of a par-
ticular individual patient. These courts instead focused
on what a hypothetical reasonable person would want to
know, probably in an effort to balance expansion of the
patient’s right to reasonable disclosure with concerns
about the expansion of malpractice liability that might
follow (President’s Commission 1982). Nevertheless, a
physician should disclose any information the physician
has reason to believe the patient would want to know, in
addition to that information a reasonable person would
want to know.
Other influences
The evolution of the doctrine of informed consent cannot
be adequately depicted by simply restating the major
twentieth century legal cases that have shaped it. Here, we
can only suggest the variety of historical, cultural, and
social forces that have influenced the doctrine and direct
the reader elsewhere for greater detail. The legal and eth-
ical theory that underlie the development of the informed
consent doctrine are well reviewed by Appelbaum, Lidz,
and Meisel (1987).
Faden and Beauchamp (1986) review the ethical con-
flict between paternalistic models of physician-driven deci-
sion making and the value of individual autonomy. Katz
(1984a) reviews the complicated interface of professional,
cultural, and psychological issues that have influenced the
development of clinical practice and informed consent law.
Important precedents in the twentieth century include the
Nuremberg Code, which established informed consent
requirements for human research, later reflected in
informed consent requirements for treatment.
Among other cultural phenomena whose influence
has been important, though difficult to gauge, has been
the development of medical consumerism (Schwartz and
Roth 1989). Based on the civil rights and consumer move-
ments of the past generation, medical consumerism has
been marked by increased demands for information and
patient participation in decision making. This has been
fueled, in part, by the diminution of the role of the gen-
eral practitioner and the fragmentation of care inherent
in the growth of subspecialization. The structure of health-
care delivery systems may also have a profound impact
on the evolution of informed consent. In Great Britain,
the National Health Service is dependent on rigidly
limited prospective funding. There is little room for
patient choice on many matters, and hence there has
been little opportunity for the development of informed
consent practice as we know it in the United States
(Schwartz and Grub 1985).
The impact of managed care
The managed care movement has had a deleterious
impact on informed consent practice in several ways.

The decreased amount of time that a physician can spend
with each patient has diminished the opportunity for
reflection and discussion which truly informed consent
requires. The time constraint issue is compounded by the
increased paperwork and telephone time needed for pre-
certifications and utilization management. The most
serious threat to informed consent has been the ‘gag rule’
clause which some managed care companies have required
in their contracts with care providers. These clauses have
explicitly prevented physicians from disclosing treatment
choices which are not available secondary to limitations
of the patient’s insurance plan. In response, the American
Psychiatric Association has revised its ethics code to
require explicitly that patients be informed ‘of financial
incentives or penalties which limit the provision of
appropriate treatment’ (American Psychiatric Association
1998) and various states have enacted patient protection
legislation that bans the use of gag rules by managed care
companies.
THE COMPONENTS OF INFORMED CONSENT
AND CRITERIA FOR COMPETENCY
ASSESSMENT
The doctrine of informed consent requires that a patient
be competent in order to consent to treatment, that the
consent be informed, and that it be given free of coercion.
Thus, the three fundamental components of informed
consent are information (disclosure), voluntariness, and
competency.
Information (disclosure)
The disclosure of information is central to the process of
informed consent. The elements of disclosure were for-
mulated in the Natanson v. Kline case (1960). Patients
must be informed of the nature of their illness and of the
treatment proposed. Patients must be informed of
the risks and benefits that might reasonably attach to
the treatment as well as the risks and benefits of alterna-
tive treatments and the consequences of no treatment
(Meisel, Roth, and Lidz 1977). The reluctance of physi-
cians to disclose information remains an impediment to
informed consent. Although many clinicians behave as
though disclosure may be harmful, there is little empiri-
cal evidence that disclosure of information has, in fact,
been harmful to patients (Meisel and Roth 1981). In fact,
there is evidence to the contrary. For example, while
many physicians have been concerned that providing
detailed information about the risks of tardive dyskinesia
may lead to neuroleptic non-compliance, at least one sys-
tematic study has found that providing such information
in a comprehensive fashion did not deter patients from
continuing with neuroleptic medication (Munetz and
Roth 1985).
Informed consent and competency 99
Voluntariness
The issue of voluntariness seems straightforward only in
the extreme, that is, when the patient is forcefully coerced
and informed that voluntary consent is not possible. More
often the issue of voluntariness is less straightforward,
as the clinician must distinguish between coercion and
appropriate persuasion in his or her attempt to influence
the patient’s behavior. Empirical efforts to delineate this
distinction have proceeded with great difficulty (Meisel
and Roth 1983). To be sure, there are elements of the
doctor–patient relationship, the regression inherent in
physical illness, and the influence of institutionalization,
which taken together or individually, may predispose to
coercion. The most widely discussed case bearing on vol-
untariness is Kaimowitz v. Michigan Department of Mental
Health (1973). The Kaimowitz court found that involun-
tarily confined mental patients live in an inherently
coercive institutional environment and that it would
be impossible for an involuntarily hospitalized patient
to feel free of coercion when his or her release from the
hospital might depend on his/her consenting to experi-
mental psychosurgery. It is difficult to generalize from
this case to the treatments routinely used in psychiatric
practice.
Competency
The subject of competency to consent to or refuse treat-
ment continues to arouse controversy and confusion.
Adults are presumed to be competent unless adjudicated
otherwise. Minors are considered to lack competency to
consent. Such competency (or incompetency) de jure
usually refers to global or general competency. Despite
the presumption of de jure competency, patients may in
fact (de facto) lack competency to make specific treatment
decisions. Psychiatrists are generally called to evaluate a
patient’s de facto competency to refuse (or sometimes to
accept) a specific treatment. Such specific competencies
have been referred to as partial or clinical competency or
decisional capacity. The use of the term ‘decisional cap-
acity’ avoids the confusion surrounding the use of the
term ‘competency.’
The controversy that surrounds the issue of compe-
tency determinations emanates largely from the failure of
the courts to establish a consensus on accepted standards
for incompetency and the absence of a consensus on
appropriate procedures for competency determinations
(Appelbaum, Lidz, and Meisel 1987). In a seminal review
of the subject, Roth, Meisel, and Lidz (1977) summarized
the criteria by which competency assessments are made.
These include evidence that the patient: (i) actually evi-
dences a choice; (ii) evidences a choice that the clinician
believes will lead to a reasonable outcome; (iii) appears
to apply rational reasoning to the decision-making process;
(iv) has the ability to understand the information that
100 Legal regulation of psychiatric practice
has been disclosed; and (v) actually understands that
information. Other commentators have emphasized
appreciation of the disclosed information as an important
criterion for competency assessment above and beyond
understanding (Appelbaum and Roth 1982; Drane 1985;
Grisso and Appelbaum 1998). These criteria can be
thought of as encompassing four activities that are basic
to competent decision making: choosing; understanding;
reasoning; and appreciating (Appelbaum and Roth 1982).
The criterion that appears to be least restrictive or
most protective of the patient’s autonomy is evidencing a
choice. While evidencing a choice is seldom used alone as
a standard in competency assessment, it may more com-
monly be used in combination with reasonableness of
outcome for assessing competency to make certain very
low-risk decisions. This has not infrequently been the
case in accepting patients’ decisions to voluntarily admit
themselves for psychiatric hospitalization. In Zinermon v.
Burch (1990) the U.S. Supreme Court cast doubt on this
practice by seeming to suggest that voluntary patients
may require screening for competency in order to admit
themselves to the hospital (Appelbaum 1990). The impact
of the Zinermon case on practice has been limited to date
(see Chapter 14).
While examination of the reasoning process by which
a patient makes a decision is often useful in competency
assessment, there is, in fact, no legal requirement that an
individual’s thought processes be entirely rational to be
considered competent. Individuals who are delusional or
even formally thought disordered may be capable of
making competent treatment decisions, especially if they
are able to demonstrate understanding despite their symp-
toms. This is often the case with patients whose circum-
scribed delusional system is unrelated to the treatment
decision at hand.
Understanding is clearly the criterion that the courts
most often equate with competency (Meisel 1979;
Appelbaum, Lidz, and Meisel 1987). While the courts have
blurred the distinction between being informed and
understanding, and between the ability to understand and
actual understanding, it is clear that the demonstration of
understanding of disclosed information is generally
required to meet the ethical and legal requirements of
informed consent. However, this standard may be inad-
equate in certain high-risk decision-making situations.
The highest form of understanding may be thought of as
appreciation, a condition with both cognitive and emo-
tional components (Drane 1985; Appelbaum and Roth,
1982; Grisso and Appelbaum 1998). One can easily
imagine a situation in which a patient, employing massive
denial of illness, refuses potentially life-saving treatment.
The patient may be able to reflect understanding of all that
he or she has been told about his/her condition and the
treatments being offered, but through the employment of
denial he/she may be unable to grasp the meaning of this
information in his/her own life. In certain very high-risk
decisions the application of an appreciation standard is
appropriate. Decisional capacity is most often assessed
during a clinical interview. Grisso and Appelbaum (1998)
urge that such interviews be developed with the relevant
criteria in mind and a plan to assess them systematically.
The MacArthur Competence Assessment Tool (MacCAT-
T) is a structured assessment instrument designed for use
across clinical populations and treatment issues (Grisso,
Appelbaum, and Hill-Fotonhi 1997).
Choosing criteria for competency
assessment
It has been implicit in our discussion of competency
criteria that, in each and every competency assessment,
criteria must be selected by which the patient’s decisional
capacity will be judged. We have also indicated that the
selection of criteria is influenced by the degree of risk
inherent in the treatment decision. This approach was
formulated by Roth and colleagues (1977) as a model for
competency assessment based on the risk–benefit ratio
of treatment. Drane (1985) revised this model into a slid-
ing scale. The principle is the same in either model: as the
consequences of a patient’s decision to consent to or
refuse treatment become more serious, the criteria for
assessing competency should become more stringent.
The President’s Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral
Research (1982) has endorsed the principle of linkage
between the criterion chosen to assess capacity and the
consequences of the decision that the patient is asked to
make. Some commentators (Appelbaum, Lidz, and
Meisel 1987) have urged adherence to a single standard
for competency assessment (understanding being the most
broadly accepted single standard). However, because there
can be a broad range in definitions of understanding and
subjectivity is involved in its assessment, some applica-
tion of a sliding scale or risk–benefit ratio model is
appropriate, if only to help select between various levels
of understanding. Although the application of variably
stringent criteria can be paternalistically abused (if the
reviewer does not approve of the outcome of the patient’s
decision he or she can raise the criterion until the patient
is found to lack capacity), this model can also allow for a
clinically appropriate balancing between the values of
health and autonomy.
In another version of the sliding scale, Grisso and
Appelbaum (1998) employ the model of a balance scale
with autonomy at one end and protection at the other. The
patient’s decision-making capacities add weight to the
autonomy end, while increasing risk inherent in the deci-
sion adds weight to protection and, if great enough, may
override the bias in favor of autonomous decision making.
Exceptions to informed consent
There are four exceptions to informed consent. These have
been reviewed elsewhere (Meisel 1979) and will be only

briefly discussed here. Incompetency is the first and most
obvious exception. Patients must be competent in order to
give informed consent and they cannot be expected to
provide it if they are found to lack decisional capacity. This
does not imply that an incompetent patient should be
excluded entirely from the decision-making process. It is
important to remember that a patient’s decisional capacity
may change during the treatment process as a result of
treatment (Appelbaum and Roth 1981), or as a matter of
the natural evolution of the patient’s mental disorder
(Roth 1985), or as the nature of the treatment decision fac-
ing the patient changes (Schwartz and Blank 1986).
The state of medical emergency creates the second
exception to the requirement for informed consent.
When there is an imminent danger of serious harm to an
incapacitated patient or others, treatment (limited to
that which is necessary to address the imminently danger-
ous condition) may be given until the emergency passes.
As a matter of law, the patient’s consent to treatment is
implied during an emergency when consent cannot be
obtained. While the definition of a medical emergency
is subject to controversy, the right-to-refuse-treatment
cases have recognized an emergency exception to consent
(Roth 1985).
Patient waivers constitute the third exception. A patient
may waive the right to decide for herself. Good clinical
practice would require that the physician pursue the
matter with the patient in order to ascertain that the
waiver truly represents the patient’s wishes.
Therapeutic privilege represents the fourth exception.
Therapeutic privilege allows the physician to withhold
information from a patient when to provide it would
clearly harm the patient. This is especially applicable if
the information would cause a high degree of psycho-
logical distress and impair the patient’s decision-making
capacity as a result. Therapeutic privilege can easily be
abused. It is clearly not intended to allow the physician to
withhold information simply because he or she believes
that provision of that information will lead the patient to
refuse treatment. Case law supports the conclusion that
the privilege is extremely limited in application. Indeed,
such limitation was noted in Canterbury v. Spence, where
the court stated that the privilege was limited ‘lest the
privilege devour the disclosure rule itself.’ The application
of this concept is reviewed elsewhere (Somerville 1984).
Statutory provisions in some states for involuntary treat-
ment without informed consent may be considered an
additional exception (American Psychiatric Association
Resource Document 1997).
OBTAINING THE DATA: THE INFORMED
CONSENT PROCESS
Obtaining informed consent is often conceived of as a
specific time-limited event: the physician comes to the
Informed consent and competency 101
bedside, discloses information to a patient who acknow-
ledges understanding it, and signs a form to document his
or her consent. This event model may be convenient for
the physician and hospital staff, but as Appelbaum, Lidz,
and Meisel (1987) argue, it may also perpetuate the belief
that informed consent is a charade. In place of this event
model, these authors (Lidz, Appelbaum, and Meisel 1988)
propose a process model in which informed consent is
viewed as an ongoing process or dialogue between phys-
ician and patient throughout the course of treatment.
In this model, the physician presents information to the
patient in a discussion-like format, attending to the
patient’s level of sophistication and intelligence, and
tailoring information to the patient’s needs (Stanley 1983).
The patient should be encouraged to ask questions and
ultimately should understand the rationale behind the
physician’s offered treatment options. The patient should
be encouraged to consult with family and friends, and be
given adequate time to consider and to ask additional
questions. The physician must be prepared to return
to the subject in the future as needs dictate. The phys-
ician should facilitate consideration of the patient’s needs
and wishes in the decision-making process. All informed
consent discussions should be carefully documented in
the chart.
The signing of a consent form is all too often substi-
tuted for a truly informed consent process. While phys-
icians and patients alike believe that the primary purpose
of the consent form is to protect doctors from lawsuits
(Harris, Boyle, and Bromsetin 1982), in fact, the presence
of a signed generic consent form rarely provides adequate
legal protection if adequate information has not been
disclosed and the informed consent discussion, includ-
ing specifics of the disclosure, has not been documented
in the chart. Failure to obtain informed consent can stand
alone as the basis for a battery or negligent nondisclosure
lawsuit.
Clinical applications
HOSPITALIZATION
Many states require that patients give written informed
consent for voluntary psychiatric hospitalization (Roth
1985), an expansion of the customary practice for med-
ical and surgical procedures. At the same time, a number
of empirical studies suggest that patients admitted to
psychiatric hospitals very often do not understand
the voluntary admission process (Olin and Olin 1975;
Appelbaum, Mirkin, and Bateman 1981). In states where
written informed consent is required, patients who are
unable to demonstrate adequate understanding would
have to be hospitalized involuntarily, and yet these
same patients may not meet criteria for commitment
(Appelbaum 1990). As indicated above, the Supreme
Court has required that in states with such a competency
requirement, mechanisms must be in place to assure that
102 Legal regulation of psychiatric practice
the patient is indeed competent upon voluntary admis-
sion (Zinermon v. Burch, 1990) (see Chapter 14.)
A common clinical practice that violates the spirit of
informed consent is the use of the threat of commitment
to coerce a patient into voluntary admission (Schwartz
and Roth 1989). This often occurs when a patient, clearly
in need of hospitalization, does not quite meet the cri-
teria for involuntary admission, though the clinician is
wary of the clinical and legal consequences of dischar-
ging the patient from the emergency room (Rachlin and
Schwartz 1986). In fact, many patients believe that their
only alternative to voluntary hospitalization is to be hos-
pitalized involuntarily (Gilboy and Schmidt 1971). Since
informed consent requires voluntariness (the absence of
coercion) and an accurate disclosure of options, the
patient can hardly be considered to have given informed
consent for hospitalization under these circumstances.
MEDICATION AND ELECTROCONVULSIVE
THERAPY
The administration of psychotropic medication is the
most common psychiatric intervention that requires con-
sent. Antipsychotic medications raise the greatest concern
because of the risk of tardive dyskinesia and other side
effects, but certainly antidepressants, anticonvulsants, and
antianxiety agents all have attendant risks requiring dis-
closure. Antipsychotics are often introduced when the
patient’s decisional capacity is impaired by illness. Although
delay of disclosure to the acutely psychotic, agitated, and
disorganized patient may be warranted for a brief time
(American Psychiatric Association Resource Document
1997), any delays beyond resolution of the patient’s
acute disorganization are not legitimate (Halleck 1980;
Roth 1983) and may create a potentially significant liabil-
ity (Munetz 1985; Wettstein 1985) since mentally ill per-
sons do not lose their right to informed consent merely
because of mental illness. Lidz and colleagues (1984)
review the many resistances by practitioners to appro-
priate informed consent discussions about neuroleptics.
The right to refuse treatment is further discussed in
Chapter 17.
Electroconvulsive therapy (ECT), one of the few med-
ical ‘procedures’ available in psychiatry, requires anesthesia
and, in virtually all institutions, written consent forms.
Patients must be informed of the risks of anesthesia and
the complications secondary to ECT itself, including that
of transient memory loss. Competent patients must give
informed consent for ECT and, though exceptions exist,
most statutory regulations require that when competency
is in question, consent must be obtained from the courts
(Levine et al. 1991). In In re Branning, an Illinois appeals
court ruled that guardians cannot consent to ECT for their
wards absent a finding of incompetency of the ward to
make such a treatment decision. In Matter of A.M.P.,
another Illinois appellate decision, the court held that par-
ents of a sixteen-year-old (who was non-communicative,
psychotic and failing other treatments) could not consent
to ECT for their child without judicial review.
CONSULTATIONS TO OTHER SERVICES
Treatment refusal by hospitalized medical or surgical
patients commonly leads to a consultation for compe-
tency assessment by the psychiatrist. Much less frequently,
concerns that a consenting patient may lack capacity will
also lead to a consultation. It is important to remember
that while the psychiatrist’s task is to evaluate the patient’s
decisional capacity, and to recommend appropriate inter-
ventions that may enhance that capacity, he or she is not
there to actually obtain the patient’s consent – that
remains the obligation of the patient’s treating physician.
The detection of overlooked medical conditions (delir-
ium is probably the most common example) should lead
to suggestions for further work-up and treatment, which
may also resolve the patient’s apparent decisional incap-
acity. At times, ascertaining the meaning of the patient’s
consent or refusal may facilitate a psychodynamically
informed intervention that could enhance the patient’s
decisional capacity. While the psychiatrist-consultant
renders an opinion about the patient’s decisional capacity
and may further opine as to the likely outcome were a
competency hearing to be held, it is often necessary to
remind the referring physician that only the courts declare
people legally incompetent.
Elements of the psychiatric interview sufficient to
establish the patient’s mental status must be performed.
Since competency is a shifting phenomenon, and is influ-
enced by alterations of the patient’s mental status and
evolving responses to treatment, it is often necessary
to evaluate the patient over time in several interviews
(Schwartz and Blank 1986). Appelbaum and Roth (1981)
have emphasized the importance of clarifying with the
referring physician the nature and extent of the informa-
tion that has actually been presented to the patient; it
would be impossible to assess the patient’s understand-
ing without knowing the nature of the disclosure that has
been made. Circumscribed delusional thinking may be
detected by clarifying with others the information that
the patient has been provided.
PSYCHOTHERAPY
Psychotherapy has been an area of clinical practice to
which informed consent is infrequently applied, though
the ethical guidelines of the American Psychological
Association (1992) explicitly and of the American Psych-
iatric Association (1998) implicitly require it. Clearly, the
uncertainty that surrounds the prediction of risks, bene-
fits and prognosis in psychotherapy, and the difficulties
that clinicians experience in disclosing uncertainty (Katz
1984b), is a partial explanation. The reluctance to disclose
is also partly rooted in the psychoanalytically based
theoretical tradition of many psychotherapies (Robitscher

1978). The failure to discern psychotherapy as a proced-
ure to which significant risks attend had been an add-
itional explanation, reinforced by what had been a limited
history of successful malpractice litigation of verbal ther-
apies. This has changed, however, especially in light of the
judgments in ‘recovered memory’ litigation and as the
size of monetary awards has grown (Beahrs and Gutheil
2001).
It is clear, however, that psychotherapists hold out
psychotherapy as a treatment that is likely to be of bene-
fit, that the treatment often comes at significant personal
cost (emotional and financial) to the patient, and that a
variety of adverse consequences, that is, the development
of negative transference reactions, regressive states, and
depression, may attend the treatment. For all these rea-
sons psychotherapy demands informed consent and
such discussions should include some disclosure of the
nature of the treatment, its length and cost, as well as the
patient’s condition and prognosis with or without treat-
ment (Simon 1982). In the case of Osheroff v. Chestnut
Lodge, the plaintiff sued after spending a year in a psych-
iatric hospital receiving only psychoanalytic treatment
for a severe depression. His claim that he had never been
informed that medication was an option was settled out
of court (Malcolm 1986).
The Tarasoff v. Regents of the University of California
(1976) case and other duty-to-protect cases that have
followed have created a dilemma for the therapist who
may find himself or herself having to balance the patient’s
right to confidentiality in psychotherapy with a duty to
protect individuals who may be harmed by the patient
(Roth and Meisel 1977). (For further discussion, see
Chapter 19.)
RESEARCH
The issue of research involving mentally ill subjects has
become increasingly controversial recently, with attention
focused on studies in which ill subjects are withdrawn
from active treatment or placed on placebo, and others in
which subjects have been challenged by substances which
can produce or exacerbate psychotic symptoms (Pinals
and Appelbaum 2000).
Government advisory groups, including the National
Bioethics Advisory Commission (1998) (the ‘Commis-
sion’), have provided guidance on research involving
mentally ill subjects. The Commission issued a report
regarding, in relevant part, informed consent, capacity
and surrogate decision making when engaging in research
involving persons with mental disorders that may affect
decision-making capacity. The Commission found that
consent was of paramount importance, but allowing
patients to enter into research by using proxy decision
makers is also important due to the significant number
of patients who are unable to communicate a choice
autonomously. The Commission urged new and enhanced
regulation of research with decisionally impaired
Informed consent and competency 103
individuals to protect patients’ rights while at the same
time increasing research opportunities.
In T.D. v. New York State Office of Mental Health
(1996) a New York regulation, which allowed surrogate
decision makers to provide consent to experimental treat-
ment on incompetent adults and minors involving more
than minimal risk, was held unconstitutional by a
New York appellate court. The court held that the regula-
tion did not identify minimum qualifications or assess-
ments to determine capacity, nor did it provide for
administrative or judicial review of any determination
that would satisfy due process. Pinals and Appelbaum
(2000) provide an excellent review of current controversies
surrounding competence and informed consent in psychi-
atric research.
THE ELDERLY
Specific clinical or legal issues related to informed con-
sent and competency are raised by special populations
of patients, including the elderly and nursing home
patients. The special issues related to minors and the
developmentally disabled are beyond the scope of this
chapter.
The growing percentage of the population represented
by the elderly focuses our attention on competency issues
surrounding end-of-life decisions, protracted periods of
incapacity generated by dementing illnesses, and testa-
mentary capacity. The Patient Self-Determination Act of
1990 provides support for the increased participation in
critical medical decision making of competent elderly
patients through advance directives, consisting of instruc-
tional directives and proxy directives which designate
healthcare decision-making surrogates.
The SUPPORT project revealed the limited impact of
enhanced communication regarding advance directives
on improving end-of-life care (Covinsky et al. 2000).
Many questions have been raised about the validity of
advance instructional directives, especially about the
possibility of being fully informed of medical contingen-
cies which one may not be able to appreciate at the time
a directive is formulated. While proxy decision makers
are crucially important, in principle, for extending patient
autonomy, studies have demonstrated poor predictive
abilities of surrogates to exercise substituted judgment
even after advance directive instructions are discussed
(Teno et al. 1994; Covinsky et al. 2000). While some authors
question the primacy of advance directives and promote
best interest judgments (Dresser and Whitehouse 1994;
Tonelli 1996), case law still supports the requirement to
exercise substituted judgment.
A myriad of informed consent issues are raised regard-
ing nursing home placement (Dubler 1988; Kapp 1998)
and research with elderly demented patients. Physicians
must be aware of the special protections for this popula-
tion and limitations in some jurisdictions regarding the
types of research and the nature of research risks for which
104 Legal regulation of psychiatric practice
surrogates can consent (Annas and Glantz 1986; Sachs
and Cohen 1996).
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Hospitalization: voluntary and involuntary
HAROLD I. SCHWARTZ, DAVID M. MACK AND PETER M. ZEMAN
The history of psychiatric hospitalization in the United
States dates formally to 1750 when the first hospital unit
dedicated specifically to mental patients was opened at
the Pennsylvania Hospital in Philadelphia. The ground-
work for the humane institutional treatment of the men-
tally ill had been laid in Europe in the late eighteenth
century by pioneers such as Philippe Pinel at the Hospital
of Bicêtre in Paris, Vizcenzo Chiarugi at the Hospital of
Bonafaccio in Florence, and William Tuke at the York
Retreat in England, each of whom took steps to introduce
humanitarian approaches to the treatment of the men-
tally ill. The Friends Asylum at Frankford, Pennsylvania,
the Bloomingdale Asylum in New York, the McLean
Asylum in Charlestown, Massachusetts, and the Hartford
Retreat (later, The Institute of Living), in Hartford,
Connecticut, were all privately supported hospitals that
opened in the early nineteenth century. By 1861, forty-
eight asylums were in operation in the United States with
a census of 8500 patients (Katz 1989).
Although humanitarian impulses motivated the estab-
lishment of the asylums, and ‘moral treatment’ was influ-
ential with psychiatrists of the day, the procedures by
which individuals were committed to hospitals did not
reflect great concern for their rights and liberty interests.
Patients were admitted and retained in hospital on the
basis of a doctor’s judgment regarding the need for
admission and continued hospitalization. Whether in a
private asylum or in one of the public state hospitals built
in the second quarter of the nineteenth century, patients
were uniformly confined involuntarily to psychiatric
institutions with only the rarely used writ of habeas cor-
pus as recourse (Gutheil and Appelbaum 2000). Mental
institutions in that era were basically asylums for confine-
ment, not hospitals for treatment, and therefore it is
not surprising that the concept of voluntary admission
was unknown. Furthermore, involuntary admission was
virtually unregulated by statutes protecting individual
rights. Brakel, Parry, and Weiner (1985) cite a New York
law, enacted in 1788, that authorized two or more judges
to direct constables to detain and confine persons, who
by lunacy or otherwise are furiously mad or are so far
14
disordered in their senses that they may be dangerous
to be permitted to go abroad. However, by the mid-
nineteenth century, cases began to appear in the courts
in which early steps were taken to shape the rights of the
mentally ill. Two cases cited by Brakel and colleagues are
illustrative of this.
In 1845, Josiah Oakes (Matter of Josiah Oakes) was
confined at Mclean Asylum in Massachusetts after it was
alleged that he suffered from a mental disturbance.
Concern arose about him when he became engaged to a
young woman ‘of unsavory character’ within days of his
wife’s death. Oakes invoked the common-law right of
habeas corpus to test his confinement. In response, the
court acknowledged that the U.S. Constitution did not
permit the detention of a person against his will without
procedural or legal safeguards, and it went on to state that
‘the restraint can continue as long as the necessity [for the
patient’s and others’ safety] continues. This is the limita-
tion and the proper limitation.’ This decision was import-
ant in that it began to specify criteria to be used in
determining the propriety of involuntary hospitalization.
In so doing, the court moved away from the sole standard
of ‘detention of the violent’ for the protection of society
to consider detention for therapeutic purposes (Brakel,
Parry, and Weiner 1985).
In 1860, Mrs. E. P. W. Packard was confined to the
Illinois State Hospital on the petition of her husband.
An Illinois statute in force at the time stated, ‘Married
women and infants, who, in the judgment of the medical
superintendent are evidently insane and distracted,
may be received and detained at the request of the hus-
band … without the evidence of insanity and distraction
required in other cases.’ After her release three years
later, her efforts were instrumental in the reform of
commitment legislation in her state. Illinois passed a
personal liberty bill that mandated a jury trial in civil
commitments.
Another pivotal figure in recognizing the plight of the
mentally ill and in laying the groundwork for improving
conditions of treatment for them was Dorothea Dix, who
traveled much of the country in the 1840s and 1850s,
108 Legal regulation of psychiatric practice
exposing abominable conditions, including the housing
of those with psychiatric illnesses, in many instances, in
jails and public almshouses. These individuals were neither
charged with nor guilty of any crime; yet their liberty was
curtailed, and they were held in squalid and miserable
surroundings without even the slightest pretext of treat-
ment (Reisner 1985). As a result of the efforts of Dorothea
Dix, thirty-two mental hospitals were founded in the
United States and overseas and twenty states improved
their capability of caring for the mentally ill by either
building or enlarging their mental hospitals (Brakel, Parry,
and Weiner 1985).
These early cases and others like them established the
framework for the debate about involuntary commit-
ment that continues to this day. The debate focuses on
the substantive criteria by which individuals may be
committed involuntarily to psychiatric hospitals and the
procedural safeguards that shall be employed, in order to
effect the balance between protection of the liberty inter-
ests of those who may be involuntarily confined on the
one hand, while enabling the treatment of those in need,
on the other. The reforms of the mid- and late nineteenth
century were geared toward protecting the liberty inter-
ests of individuals and made it much more difficult to
arbitrarily commit patients to involuntary hospitaliza-
tion. By the turn of the century, requirements for judicial
review of psychiatric commitments were commonplace.
The pendulum would soon swing back toward more lib-
eral commitment statutes and, as many commentators
have noted, it has continued to swing back and forth
through the twentieth century and into the twenty-first,
vacillating between periods when concern about the
ease of hospitalization for those in need of treatment was
primary and periods of concern with protection of indi-
viduals from unwarranted confinement. Further under-
standing of this debate requires discussion of the legal
doctrines, which underlie the authority of the state to
involuntarily commit individuals.
LEGAL DOCTRINES: PARENS PATRIAE AND
POLICE POWER
The state’s power of civil commitment is derived from
two basic legal doctrines: parens patriae and police
power. Parens patriae, literally translated from the Latin
as ‘Father of the country,’ originally referred to the sover-
eign’s power and duty to act for and in the best interest
of his subjects. More liberally translated as ‘the state as
parent,’ it refers to the government’s authority and
responsibility to act for the infirm, incompetent, and
mentally ill who are unable to act in their own interests
to care and provide for themselves in a safe and capable
manner. Thus, the concept of parens patriae underlies
society’s actions for the benefit of those who are unable
to act responsibly for themselves. It is intended to protect
the individual from his or her own disability or incom-
petence. Commitment statutes that allowed for the
involuntary hospitalization of the mentally ill solely on
the basis of the need for treatment were based purely on
the principle of parens patriae.
Police powers, on the other hand, flow from the gov-
ernment’s authority to act in the interest of maintaining
order and the public safety. They would, therefore, be
invoked principally when a person’s behavior or condi-
tion represents a danger to himself or the public at large.
Commitment statutes requiring that an individual must
be mentally ill and dangerous to himself and others are
founded on both the parens patriae and police power
principles (Gutheil and Appelbaum 2000).
It should be stressed, however, that neither parens
patriae nor police powers give state governments unlim-
ited prerogatives to enact laws or take actions for the pro-
tection of individuals or society. Both powers are limited
by provisions of the U.S. Constitution that address spe-
cific civil rights of individuals, such as the privacy rights
delineated in the First and Fifth amendments (Reisner
1985).
RECENT DEVELOPMENTS
By the mid-1900s the pendulum had swung once again in
the direction of liberal commitment statutes based on the
parens patriae principle, generally requiring only the pres-
ence of mental illness and the need for treatment. Statutes
and regulations governing hospitalization through the
1950s and 1960s were frequently paternalistic and infant-
ilizing, often, by implication, equating the status of invol-
untary hospitalization with incompetency. For example, in
Connecticut until 1971, one could be committed if one
was found to be ‘mentally ill’ and a ‘fit subject for confine-
ment in a hospital for the mentally ill’! Patients confined
under this provision could not register to vote, and auto-
matically lost the privilege of using the telephone upon
admission unless this right was specifically restored by
the physician. It was not patients themselves but rather
patients’ families who were consulted and asked to give
informed consent for major procedures and treatment
interventions. As late as 1968 in Connecticut, one sought
informed consent from a patient’s family rather than from
the patient in order to administer electroconvulsive ther-
apy (ECT). Clearly, such practices were seen as effective
and humane ways of delivering care, but they were hardly
responsive to the civil rights and individual freedoms of
the patient (Rubenstein, Zonana, and Crane 1977).
The pendulum reversed itself in the 1960s as American
society began taking a distinct interest, once again, in the
civil liberties of psychiatric patients. A number of cultural
factors influenced this development. The rise of medical
technology and the increasing specialization and subspe-
cialization of medicine that followed World War II led to

a fragmentation of medical care and disenchantment with
the medical profession (Schwartz and Roth 1989). The
civil rights movement led to an enhanced interest in and
recognition of the rights of various minority groups
including the mentally ill. Reports in the popular media
of institutional abuse and neglect, the emergence of crit-
ics from within the psychiatric profession and of a mental
health bar funded through the community mental health
movement converged at a time when distrust of govern-
mental benevolence was becoming widespread (Hoge,
Appelbaum, and Geller 1989). The result was a series of
state statutes and appellate-level decisions that shifted
parens patriae-based commitment criteria dramatically
to dangerousness-based criteria.
Typically the commitment criteria in most states dur-
ing the 1970s and 1980s required the individual to be suf-
fering from a mental illness and dangerous to him/herself
or others (often with a requirement that the threat be
‘imminent’ or for a recent ‘overt’ act as evidence of dan-
gerousness). In addition, many states included ‘gravely
disabled’ or ‘inability to care for self ’ as an additional cri-
terion usually referring to a condition of profound disor-
ganization and deterioration rendering the individual
unable to provide for him/herself the most basic needs
of nutrition and shelter. In addition to these substantive
changes in commitment criteria, changes in the proced-
ural requirements led to what has been termed the ‘crim-
inalization’ of commitment, for example, by requiring
standards of proof in commitment hearings that had pre-
viously been used only in criminal proceedings. The fol-
lowing statutory enactments and developments in case
law were influential in these developments.
Legislative and case law development
LAKE v. CAMERON: THE LEAST RESTRICTIVE
ALTERNATIVE
In Lake v. Cameron (1966), Judge David Bazelon of the
U.S. Court of Appeals for the District of Columbia Circuit
first applied the concept of the least restrictive alternative
to commitment law (Hoge, Appelbaum, and Geller 1989).
The court required that the entire spectrum of services
available to a patient be considered, including outpatient
treatment, halfway houses, and nursing homes. Only if
such less restrictive alternatives are unavailable and/or
unsuitable could one consider involuntary commitment
to a hospital. The concern, of course, is to prevent any
infringements on personal liberty, which may be greater
than absolutely necessary. It becomes incumbent, there-
fore, on the clinician to delineate and report as specifically
as possible the historical data and clinical observations
that justify the major curtailment of a person’s freedom
represented by a psychiatric hospitalization, if this is
indeed the least restrictive placement dictated by his or
her illness. Critics of this concept argue that the least
restrictive alternative may not be the most therapeutic
Hospitalization: voluntary and involuntary 109
one. The ‘least restrictive alternative’ doctrine has most
recently been shaped by the Americans With Disabilities
Act (ADA) of 1990 and the Supreme Court’s extension
of the protections of that act to the institutionalized
mentally ill in Olmstead v. L.C. (1999) discussed below.
THE LANTERMAN-PETRIS-SHORT ACT
The Lanterman-Petris-Short Act (LPS) enacted by the
California Legislature in 1969 became the first in the
modern era of revised commitment statutes that heavily
emphasized dangerousness. This law required a demon-
stration of mental illness, overt dangerousness, or disabil-
ity so grave that an individual would be at risk of physical
harm without hospitalization. The statute provided many
procedural safeguards including frequent legal reviews of
commitment status and provisions for the appointment
of a conservator to protect the interests of the severely dis-
abled patient (Brakel, Parry, and Weiner 1985). Recently,
the California legislature considered – but did not enact –
revisions to LPS which would have dramatically broad-
ened standards for commitment by allowing involuntary
hospitalization for individuals who would be at risk for
psychiatric harm in the absence of treatment, by length-
ening commitment periods and establishing outpatient
commitment.
LESSARD v. SCHMIDT
In Lessard v. Schmidt (1972), a federal district court in
Wisconsin established a requirement for evidence of
an overt act demonstrating dangerousness within thirty
days preceding commitment. The Lessard decision was
notable for the procedural requirements for commit-
ment which established, for instance, notification of the
right to a jury trial and the right to counsel. Most signifi-
cant was the requirement for proof of the need for com-
mitment beyond a reasonable doubt, a standard that had
previously been applied only to criminal procedures.
JACKSON v. INDIANA
Jackson v. Indiana (1972) addressed criminal rather than
civil commitment, but is relevant as a landmark case
placing limitations on involuntary hospitalization. In
this Supreme Court case a deaf-mute defendant charged
with two criminal offenses was committed to a mental
hospital by the trial court after being found incompetent
to stand trial. Upheld by an Indiana high court, the com-
mitment was reversed on appeal to the U.S. Supreme
Court on the grounds that the defendant was denied
equal protection and due process. The court pointed out
that under existing Indiana law, an individual who was
charged with, but not convicted of, a criminal offense
could be deprived of liberty via an involuntary hospital-
ization to restore competency with fewer safeguards than
those afforded an individual undergoing the process of
civil commitment. Furthermore, under law existing at
110 Legal regulation of psychiatric practice
the time, the person could have been committed indefi-
nitely if he could not be restored to competency to stand
trial. As a result of this case, many states have passed laws
limiting the amount of time a person may be committed
on the basis of incompetency to stand trial.
O’CONNOR v. DONALDSON
In O’Connor v. Donaldson (1975) the Supreme Court
declared that one could not confine the non-dangerous
mentally ill in a psychiatric hospital ‘without more.’ Many
courts and critics have construed the Donaldson decision
to mean that a finding of dangerousness is constitutionally
required to justify involuntary hospitalization (Stromberg
1982). However, others have interpreted this ruling to
mean that the non-dangerous mentally ill cannot con-
stitutionally be confined without the provision of mean-
ingful treatment. By this interpretation, Donaldson was a
right-to-treatment decision rather than a decision requir-
ing a finding of dangerousness for commitment (Roth
1980). The Supreme Court has yet to further elucidate this
matter.
FASULO v. ARAFEH
Fasulo v. Arafeh (1977), decided by the Connecticut
Supreme Court, exemplifies efforts at the state level to
regulate commitment procedures. The patients bringing
the action had been subjected to long-term commitments
at a state psychiatric hospital without periodic review by
the court of the continued necessity for hospitalization. The
court ruled that the absence of such a review violated due
process and equal protection guarantees in Connecticut’s
constitution. In contrast to the precedent set in Lessard v.
Schmidt for proof beyond a reasonable doubt, the court
ruled that the need for further involuntary hospitalization
must be demonstrated by clear and convincing evidence.
Most states have adopted statutes that prevent indefinite
commitment without a court review.
PARHAM v. J.R.: COMMITMENT OF MINORS
In Parham v. J. R. (1979), the Supreme Court balanced
protection of the rights of minors undergoing commit-
ment with an endorsement of medical decision making.
The court did not agree with the position of the U.S.
District Court that a post-admission adversarial hearing
was necessary to protect the minor’s interest. Rather, it
stressed the requirement for a neutral fact finder to deter-
mine whether the admission was appropriate. This fact
finder, who could be the admitting physician, was expected
to conduct a thorough review of the circumstances sur-
rounding the child’s hospitalization as part of his or her
psychiatric evaluation. It was the court’s position that
such a traditional medical evaluation was preferable to a
more formal adversarial hearing. In fact, the court found
that turning to the courts rather than a ‘trained specialist’
on such matters ‘can turn rational decision making into
an unmanageable enterprise.’
ADDINGTON v. TEXAS: RESOLUTION OF THE
STANDARD OF PROOF
In Addington v. Texas (1979), the Supreme Court brought
resolution to the debate about the appropriate standard
of evidence for commitment proceedings. The case had
proceeded through the Texas trial court, Court of Appeals,
and Supreme Court over the question of which standard
should be used to decide whether commitment is indi-
cated – a preponderance of the evidence, clear and con-
vincing evidence, or proof beyond a reasonable doubt.
In deciding that ‘clear and convincing evidence,’ roughly
75 per cent certainty, provided due process protection
without making it unduly difficult to achieve commit-
ment, the court endorsed the concept that a balance
should be struck between protecting patients’ rights and
providing needed treatment.‘Beyond a reasonable doubt,’
the standard requiring roughly 90–95 per cent certainty
used in criminal cases, was felt to be unnecessarily
demanding and unlikely to be met in most civil commit-
ment situations. At the same time, ‘preponderance of the
evidence,’ the standard requiring approximately 51 per
cent certainty generally used in civil cases, did not satisfy
Fourteenth Amendment due process requirements when
confinement was at risk.
A Model Law
Although neither a statute nor a legal case, the American
Psychiatric Association’s Model Law on Civil Commit-
ment (Stromberg and Stone 1983) should be mentioned.
The Model Law provides for emergency psychiatric hos-
pitalization, not to exceed two weeks, for any person
showing evidence of a major mental illness. It also allows
another thirty days of involuntary commitment if it is
determined by the court that the individual suffers from
a severe mental disorder that is treatable in the hospital
(and that such treatment represents the least restrictive
alternative); the person will not or cannot consent to vol-
untary admission; the person is incompetent to consent
to treatment; and without treatment the individual will
experience substantial deterioration or cause harm to
him/herself or others. The requirement of incompetency
and the provision for commitment in order to prevent
substantial mental or physical deterioration are notable
features. Aspects of this model are reflected in several
state commitment statutes.
KANSAS v. HENDRICKS AND SEXUAL PREDATOR
STATUTES
Sexual predator statutes, which provide for civil commit-
ment of certain individuals following completion of their
criminal sentence for certain sexual crimes, are a recent

development in the law. These statutes generally author-
ize a state to civilly commit convicted sex offenders beyond
their prison term if they suffer from a mental abnormal-
ity, mental illness or personality disorder that makes
them likely to commit additional sex crimes. The United
States Supreme Court, in Kansas v. Hendricks (1997),
found these sexual predator statutes constitutional as
long as a finding of mental illness and dangerousness is
established. The Court held that sexual predator statutes
are a constitutional exercise of a state’s police power
of involuntary civil commitment in order to protect
the public health and safety. Thus, if a state has a sexual
predator law, the state may civilly commit an individual
who is mentally ill as defined by the legislature and shows
a likelihood of future dangerousness. Although civil com-
mitment for sexual predators requires findings of mental
illness and dangerousness, findings adequate to meet
these requirements have not been fully established by
the courts (Foucha v. Louisiana 1992). However, courts
are interpreting these requirements very broadly. The
traditional requirements for severe mental illness have
been abandoned in these laws, allowing evidence of
personality disorder sufficient to meet the criteria for
mental illness.
Sexual predator statutes have been criticized for
expanding the application of civil commitment to
indefinite preventive detention based on predictions of
future behavior, while inadequately addressing treatment
(Appelbaum 1997). The Hendricks decision can be
viewed as having blurred the boundaries between crim-
inal behavior and mental illness, threatening the integrity
of the medical model of civil commitment (Zonana and
Norko 1999). (See Chapter 74 for additional discussion
of sexual predator statutes.)
THE AMERICANS WITH DISABILITIES ACT AND
THE OLMSTEAD CASE
The Americans With Disabilities Act (ADA), passed in
1990, provides that ‘no qualified individual with a dis-
ability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.’ The Code
of Federal Regulations interprets the statute to require
that services be provided ‘in the most integrated setting’
applicable to the needs of individuals with disabilities and
that reasonable modifications to services and programs
must be made to avoid discrimination unless the modi-
fications would ‘fundamentally alter the nature of the
service, program or activity.’
The ADA and interpretive federal regulations were seen
by many as an avenue to require less restrictive and more
‘integrated’ treatment settings (Appelbaum 1999). A num-
ber of lower federal court lawsuits succeeded in having
care transferred to the community (Petrila 1999). Given
the limitations in state resources for community-based
Hospitalization: voluntary and involuntary 111
programs, it was predictable that the right to treatment in
the most ‘integrated’ setting would conflict with the eco-
nomics of state systems of care. That conflict was adjudi-
cated in Olmstead v. L.C. (1999), the case of two Georgia
women with mental retardation and comorbid psychiatric
diagnoses whose discharge from hospital to community
was long delayed by the scarcity of appropriate commu-
nity services.
The Supreme Court’s ruling (in four separate opinions)
in Olmstead delivered a very mixed message (Herbert and
Young 1999). A majority of five held that unnecessarily
prolonged inpatient hospitalization, beyond the point of
appropriate discharge, is discriminatory under the ADA.
However, the court placed significant limitations on a
right to community care through its interpretation of the
regulation that remedies that would ‘fundamentally alter’
state services are not required. For example, a program
with a waiting list that moves at ‘a reasonable pace’ would
be sufficient. Justice Anthony Kennedy went further in
a concurring opinion to state that ‘a state may not be
forced to create a community-treatment program where
none exists.’ As Appelbaum (1999) notes, the impact of
Olmstead remains unclear. While the rights of the disabled
to appropriate treatment in the community would appear
to have been advanced, the Court appears reluctant to
compel states to create community programs where they
don’t exist. Following Olmstead, the Second Circuit Court
of Appeals held in Rodriguez v. City of New York (1999)
that ‘Olmstead does not stand for the proposition that
states must provide disabled individuals with the oppor-
tunity to remain out of institutions.’
CURRENT STATUS
The revolution in civil commitment legislation that began
in the late 1960s, and led to enhanced procedural safe-
guards and stringent dangerousness-based commitment
criteria, appears to have ended (Wexler 1986). Families
of the mentally ill have objected to commitment criteria
that make it more difficult for their loved ones to obtain
necessary hospitalization (Dunham 1985). Many critics
have noted the relationship between the increasing preva-
lence of the homeless mentally ill and increasingly strin-
gent commitment statutes and case law. In Washington
state, a highly publicized murder by an individual who had
been denied voluntary admission to a state hospital only
hours earlier, led to a public outcry for liberalization of that
state’s commitment statute. Washington had passed one of
the most restrictive commitment statutes in the country in
1973. In 1979 that law was significantly liberalized to allow
for the hospitalization of virtually any individual who
manifested a severe deterioration in his or her condition
(Durham and LaFond 1988). Similar revisions followed in
other states. A number of states have relaxed their dan-
gerousness criteria by eliminating the requirement for evi-
dence of a specific overt act indicating dangerousness or
by dropping the requirement that the threat of dangerous
112 Legal regulation of psychiatric practice
behavior be imminent. A number of states have, like
Washington, revised commitment criteria to allow for
involuntary hospitalization of patients who would suffer
significant deterioration in their conditions without hospi-
talization. Recent attempts to loosen commitment criteria
in California’s Lanterman-Petris-Short Act (the statute
whose passage reflected the broad national shift to more
restrictive commitment criteria in 1969) represent the lat-
est development in this swing of the pendulum.
HOSPITALIZATION PROCESS AND
PROCEDURES
Although details vary from state to state because of dif-
ferences in statutory provisions, there are certain basic
procedures for psychiatric hospitalization that are fol-
lowed in most jurisdictions.
Voluntary hospitalization
Since the early 1960s, voluntary psychiatric hospitaliza-
tion has gained in acceptance over involuntary commit-
ment, and the majority of patients today are admitted on
this basis. Indeed, many statutes or state regulations
require that patients be given the option to choose vol-
untary admission (assuming they are competent to do
so). The practice of voluntary hospitalization is intended
to promote a collaborative relationship between phys-
ician and patient, to remove some of the stigma associ-
ated with admission for treatment of a mental disorder,
and to eliminate the coercive element associated with
involuntary hospitalization, thereby promoting patient
autonomy. Critics contend that voluntary admission
may also be coercive since patients are often under great
pressure from family, friends, clinicians, and work associ-
ates to agree to admission (Rachlin and Schwartz 1986;
Schwartz and Roth 1989). Nonetheless, a voluntary admis-
sion – even when under some duress – carries with it
certain benefits and advantages that make it a more desir-
able option than an involuntary one for most people. In
almost all jurisdictions, as a voluntary patient an individ-
ual retains the right to decide to accept or reject treat-
ment, medications in particular, and retains the (modified)
right to leave the hospital.
Most state statutes have provisions for two types of
admission on a voluntary basis: a so-called ‘informal’
admission usually based on the patient’s verbal agreement
to be admitted; and a formal admission in which the
patient generally signs a written agreement to be admitted
(Reisner 1985). The difference between the two types con-
cerns the laws governing the patient’s release from the
institution.
Under an informal admission, the patient must be
discharged immediately upon his or her request. There is
no statutory period during which he or she can be held in
the hospital following a request for discharge. Thus, the
patient is able to leave the institution, often in the midst
of treatment and against the advice of physicians, without
their being able to do anything to prevent this, assum-
ing involuntary commitment is not justified. While
‘informal’ admissions may satisfy the demands of some
that voluntary hospitalization be without any constraints,
they create a number of potentially serious problems.
An informal admission allows a person suffering from a
severe mental disorder, which may be seriously affecting
his or her reasoning and judgment, to terminate abruptly
and unilaterally a plan of treatment and leave the hos-
pital without affording their physician any opportunity
to attempt to persuade them otherwise, or to work out
alternative treatment arrangements. When the abruptly
departing patient is felt to be dangerous to him/herself or
others, the clinician faces a quandary, since allowing the
patient to leave may violate the duty to protect (the pub-
lic and the patient).
In contrast to an informal admission, a formal admis-
sion on a voluntary basis usually includes a mandatory
period, defined by statute, during which the hospital has
the discretion to hold the patient against his or her wishes
should they attempt to leave. This type of admission is
essentially a voluntary commitment since the patient, on
the basis of his/her own agreement, usually in writing, has
temporarily relinquished his/her absolute freedom to
come and go as they please. The statutory period during
which the patient may be held is generally short (usually
three to five days), but it affords advantages over an infor-
mal admission. It provides a ‘cooling-off period’ during
which both the patient and the therapist can assess their
positions and perhaps reach a workable compromise to
avoid a complete disruption of treatment. In the case of a
seriously ill patient, where continued hospitalization is
necessary to protect the patient or others, it provides time
for the patient’s family or the institution to seek an invol-
untary commitment from the court.
An important facet of formal voluntary hospitaliza-
tion, highlighted by the U.S. Supreme Court in Zinermon
v. Burch (1990), is that of informed consent. Most states
require patients to give informed consent for voluntary
hospitalization. The requirement to ascertain that a vol-
untary patient is admitting himself to a psychiatric hos-
pital knowingly, voluntarily, and competently may, under
certain circumstances, be overlooked. As the admitting
psychiatrist, one is often faced with a clinical situation of
some urgency necessitating hospital admission as quickly
and expeditiously as possible. There is considerable pres-
sure to give the patient the benefit of the clinical doubt
and to allow him/her to be admitted voluntarily if he/she
appears willing to do so rather than go through the
inconvenience, trauma, and expense of a commitment
proceeding.
This may well have been the situation when Darrell
Burch, found on a highway in Florida in a disoriented
and psychotic state, was admitted voluntarily first to a
 Hospitalization: voluntary and involuntary 113

private and then to a public mental health facility in hospitalization is the growing availability of outpatient
December 1981. That admission led to the case of commitment (see Chapter 15).
Zinermon v. Burch, ultimately decided by the U.S. Supreme
Court in 1990. Burch alleged that state law had been vio-
lated because he had been allowed to admit himself as a
Involuntary hospitalization
voluntary patient when he was not competent to do so. It
Most states have statutes that provide for two means of
was his position that the hospital professional staff ‘knew
involuntary hospitalization. The first means is by an
or should have known’ that he was incompetent to give
emergency certification that is effected in most instances
informed consent to a voluntary admission and therefore
by a licensed physician or other qualified individual such
that he should have been accorded an involuntary com-
as a clinical psychologist or psychiatric nurse. Such a cer-
mitment proceeding. The staff ’s failure to do so resulted
tification does not need to be reviewed by the court prior
in his being denied the constitutionally guaranteed pro-
to the patient’s admission, is essentially a holding order
cedural safeguards that accompany involuntary commit-
prior to commitment, and is intended to provide a means
ment. The court, noting that Florida law requires a
for a time-limited admission without delay in the types
competent consent for voluntary hospitalization, ruled
of urgent situations presenting themselves most typi-
that state hospital officials had deprived an incompe-
cally in hospital emergency rooms. In most states the
tent patient of due process by permitting him in error
provision for emergency certification is coupled with
to ‘consent’ to a voluntary admission rather than insti-
a provision for a probable-cause hearing by the court
tuting involuntary commitment procedures. It took the
shortly after admission in order to review the necessity
position that, at least in jurisdictions with a statutory
for hospitalization.
requirement for informed consent to voluntary hospital-
The second means is a more complex process that
ization, the state bears an obligation to ascertain that
involves the filing of a petition for commitment with the
consenting patients are, indeed, competent to do so.
court of proper jurisdiction. This petition is preceded by
The impact of Zinermon has been less than might have
or leads to an examination of the patient by one or more
been expected. Over the past decade, a majority of courts
psychiatrists or other qualified individuals designated by
have not relied on Zinermon to establish common law
the court. The court then decides on the basis of the writ-
requirements regarding consent to voluntary admission
ten reports and oral testimony whether the individual
and treatment. However, Zinermon is relied upon for its
meets the commitment criteria outlined in the state
42 U.S.C. § 1983 precedent establishing that a plaintiff is
statutes. Commitments are generally time-limited and
entitled to sue defendants in tort as state actors for their
there is usually a statutory requirement that the commit-
allegedly unlawful confinement (Wilson v. Formigoni 1994).
ment status be reviewed on a periodic basis. In addition,
However, a minority view does depict Zinermon as estab-
an individual can always request a review of their status
lishing precedent requiring that feasible procedures exist
through a habeas corpus petition. Court-ordered com-
to determine a person’s due process rights before those
mitments are by statute generally longer than emergency
rights are deprived, such as competency to consent before
certifications. They provide due process protections
voluntary commitment (Powell v. Georgia Department of
through the various procedural safeguards discussed
Human Resources 1997). Nonetheless, the extreme poten-
above (e.g., judicial review and evidentiary standards).
tial of Zinermon to significantly impact the voluntary sys-
tem of commitment available in this country did not
materialize. Zinermon’s impact is limited in part because
of the majority view of the limited § 1983 holding of the
RELEVANT DATA AND REASONING PROCESSES
Supreme Court and because of a lack of subsequent cases
brought before a court on the same issue. Involuntary hospitalization, on an emergency basis or
Most recently, economic factors have shifted the bal- through formal commitment proceedings, presents many
ance away from voluntary to involuntary admissions. clinical, ethical, and legal dilemmas. Clinicians are typ-
As state hospitals continue to downsize or close, increas- ically faced with a seriously disturbed patient who is
ingly only the most acutely ill can be hospitalized, a popu- unable or unwilling to accept the required treatment;
lation more likely to require involuntary commitment. with a distraught family that is ambivalent at best about
At the same time, managed care companies have set ‘forcing’ their family member into an institution against
the criteria for inpatient admission so narrowly that in his or her wishes; with their own conflicts about depriv-
most cases only individuals who are actively psychotic ing another of his/her liberty balanced by the desire to
(and at risk), suicidal or homicidal can be admitted. At treat those in need; and with the specter of a lawsuit that
its most extreme, managed care practice sets the standard could result from an improper commitment or from a fail-
for admission so rigidly that only those who, by virtue of ure to commit, leading to an outcome in which someone
their extreme clinical condition, qualify for involuntary is harmed. In order to find one’s way through this morass,
commitment can meet it. Still another factor impact- it is important for the clinician to avoid a rush to judg-
ing the tension between voluntary and involuntary ment and to analyze carefully and objectively the patient’s
114 Legal regulation of psychiatric practice
present condition and the historical data, which will allow
for an understanding of the pattern and presentation of
the patient’s illness. It is also vital to evaluate the environ-
mental setting and social influences to which the patient
will be subject if not hospitalized and to assess the likely
impact of these on the patient’s condition and predicted
behavior.
The clinician’s assessment of the patient’s presenting
picture and historical data must be considered within the
context of knowledge about the particular legal stand-
ards for commitment in one’s own state. The clinician
can then reason from the clinical data within the frame-
work of the statutes in his or her jurisdiction to deter-
mine whether his/her patient’s clinical picture meets the
legal requirements for an involuntary hospitalization.
For example, it is critical to know whether the statute in
question allows for commitment on the basis of ‘grave dis-
ability’ or ‘inability to care for oneself,’ as these criteria
allow the clinician considerably more latitude than strictly
defined dangerousness criteria. Mental health profes-
sionals can take some comfort from the fact that both
recent legal decisions and research studies have affirmed
that psychiatrists are able to make sound judgments in
decisions about involuntary hospitalization. In a 1984
study, Schwartz, Appelbaum, and Kaplan found that
psychiatrists’ decisions to commit correlated appropri-
ately with legal criteria and were consistent with independ-
ent assessments of the patients’ clinical status and need
for treatment. Appelbaum and Hamm (1982) previously
demonstrated that decisions to commit in a Massachusetts
psychiatric hospital conformed closely to the require-
ments of that state’s commitment statute. Two high court
decisions – Youngberg v. Romeo (1982) and Parham v. J.R.
(1979), among others – have expressed confidence in the
ability of psychiatrists to make sound and reasoned deci-
sions on behalf of their patients.
It is not the purpose of this chapter to provide a thor-
ough review of the emergency assessment. Gutheil and
Appelbaum (2000) provide an outstanding review of such
assessments and outline categories of data and clinical
considerations that must be part of such evaluations.
They point out that it is of critical importance to obtain a
substantial amount of historical data in a short period of
time. While the patient, of course, is a key source of such
data, his or her clinical state may interfere with his/her
ability to provide accurate and useful information, and
the evaluator must be ready to turn to family, friends, and
employers to supplement what the patient cannot, or will
not, provide. The patient’s right to confidentiality must be
respected and protected whenever possible, but his or her
emergency needs must take precedence over privacy
rights that would be operative in a more normal situation.
One should spend the majority of time with those whom
one judges to be most informative and reliable. Family
members are often a rich source of data if they are able to
remain relatively objective. Police officers, who accom-
pany patients to an emergency room, can be very helpful
in describing current symptoms since they have training
and experience in observing and reporting behavior.
The decision to commit must balance clinical factors
that increase and decrease the risk to the patient or others
if the patient is not hospitalized. Gutheil and Appelbaum
(2000) review the internal and external risk factors and
resources that either increase or decrease the urgency of
the clinical situation and enhance or diminish coping
mechanisms available to the patient. Examples of risk fac-
tors include loss of significant people in one’s life through
death, separation, or divorce; loss of circumstances such
as a job with accompanying loss of monetary security and
self-esteem; history of impulsivity, poor achievement, and
poor interpersonal adaptation; and intolerably dysphoric
feeling states. Examples of resource factors are a prior
level of education and achievement, strong religious con-
viction and faith, vocational and professional training,
and good interpersonal and social skills. In their clinical
examination, psychiatrists must take a careful inventory
of risk and resource factors to assist them both in deter-
mining the need for hospitalization and in assessing the
patient’s readiness for discharge.
The question of predicting dangerousness is a paradox-
ical one for psychiatrists. The ability to predict violence
remains a controversial issue (Monahan and Steadman
1994), and many studies have raised questions about clin-
icians’ abilities in this regard. Nonetheless, many psych-
iatrists continue to believe that we can predict violence,
and society continues to require that we do so (Beck
1985). We undoubtedly stand on more solid ground
regarding suicide risk assessment than we do in evaluat-
ing potential violence to others; however, it is still import-
ant to acknowledge that we are better able to identify the
characteristics of groups at risk than to specify the risk
that a particular individual presents (see Chapter 57).
Research in the area of suicidality indicates that the risk
is higher for men than women, greater for the divorced
and widowed, and increases after middle age. Other
factors that increase risk are family history of suicide,
depression, and alcoholism; current life stressors such as
bereavement, moves, job loss, physical illness, or injury;
ongoing psychiatric illness, most notably depression; and
intense psychiatric symptomatology, agitation and dys-
phoria in particular, accompanied by feelings of pessimism
and hopelessness (Gutheil and Appelbaum 2000).
Finally, careful documentation of the history obtained,
the sources of information on which it is based, the
patient’s mental status findings, and a diagnostic and
treatment formulation, including an assessment of dan-
gerousness, is mandatory to guide the clinical team that
will be responsible for the patient in hospital, to provide a
foundation for discharge planning, and to give informa-
tion to the clinician who may be faced with the patient as
an unknown quantity in a future emergency. Such docu-
mentation need not be lengthy. Rather, one should aim
for a brief, crisp description that contains all of the salient
elements of the emergency evaluation.

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Involuntary civil commitment to
outpatient treatment
ROBERT D. MILLER
Until the deinstitutionalization movement led to a 75 per
cent reduction in censuses in inpatient psychiatric facil-
ities by the late 1970s, most of the discussion on civil
commitment in the clinical and legal literature concerned
involuntary hospitalization. One of the main criticisms
of commitment was that patients objected mostly to
hospitalization in understaffed, coercive facilities and,
if released, they would voluntarily seek treatment in the
community (Bleicher 1967; Chambers 1972). The conflu-
ence of effective antipsychotic medication, the rise of the
community mental health movement, the application of
the legal doctrine of the least restrictive alternative to
commitment (Miller 1982), libertarian attacks on the
parens patriae basis for commitment, and economic pres-
sures resulted in massive discharges from state mental
hospitals.
Unfortunately, expectations that patients would seek
treatment voluntarily in the community were often not
realized. Many patients continued to deny their illnesses
and therefore their need for treatment (Van Putten 1974).
Fewer than half the planned community mental health
centers were ever built, and many of the ones that were
opened focused increasingly on less severely ill patients
and did not provide necessary services such as outreach
and transportation (Chu and Trotter 1974; Goldman,
Adams, and Taube 1983) for chronic patients.
Although hospital censuses dropped, admission rates
rose dramatically, and the only treatment that many
chronically mentally ill patients received continued to be
through brief but repeated hospitalizations. As it became
increasingly clear that many such patients could (or
would) not come voluntarily for outpatient treatment,
judges and clinicians sought methods to ensure the com-
pliance necessary to prevent deterioration, which would
require hospitalization (Hiday and Goodman 1982; Miller
and Fiddleman 1983). Before the mid-1980s, all states
except New York permitted judges to commit patients to
outpatient treatment (although the provisions were not
15
explicit in most states); but there were no statutory proced-
ures to implement or enforce those orders (Miller 1985).
THE CONDITIONAL RELEASE MODEL
Before the due process reforms of the 1970s mandating
judicial review of both admissions and continued hos-
pitalization (Miller 1987), state hospitals utilized an infor-
mal process of outpatient commitment to maintain
control over their patients. Patients who were deemed
ready for a trial release were placed on passes or convales-
cent leaves, but were not formally discharged from their
hospitalizations until they proved themselves capable of
making satisfactory adjustments to community living.
These passes sometimes lasted for years, and superintend-
ents had the authority to have patients returned to the
hospital for any reason deemed sufficient by the treating
clinicians. As there were few outpatient treatment facilities
for chronic patients, hospital staffs were often the only
clinicians available to provide treatment, either in the
community or in the hospital.
As courts took over the authority to determine whether
commitment was legally appropriate, they also assumed
responsibility in most states to decide the site of treatment.
In addition, as dangerousness replaced need for treatment
as the major criterion for commitment, commitment to
outpatient treatment became problematic, since patients
dangerous enough to satisfy existing commitment criteria
often required hospitalization.
Notwithstanding these difficulties, many judges
adopted a conditional release model borrowed from
criminal law to permit the release of patients who had
demonstrated that they could not remain safely in the
community without some external structure, particularly
continuation of psychotropic medication (Miller 1988a).
Unfortunately, many judges and attorneys went even

further, utilizing a plea bargaining model as well, under
which commitment to outpatient treatment became a
compromise between clinical recommendations for con-
tinued hospitalization and patient desires for uncondi-
tional release from commitment (Miller, Maher, and
Fiddleman 1984).
INITIAL COMMITMENT TO OUTPATIENT
TREATMENT
A more recent development over the past decade is initial
commitment to outpatient treatment, without the neces-
sity of first being hospitalized (Miller 1990). The purpose
for such an alternative is to permit intervention early in
the predictable course of a chronic mental illness, thus
avoiding inevitable and preventable hospitalization.
Prior to the 1980s, few state commitment laws permit-
ted such direct community commitments. By 1984 a sur-
vey of state mental health program directors (Miller 1985)
revealed that although thirty-seven states permitted initial
outpatient commitment, it was rarely utilized. Respond-
ents to a subsequent survey (Miller 1992) reported that
thirty-five states permitted initial outpatient commit-
ment, and that it represented a significant proportion of
outpatient commitments in several of those states. More
recently (Torrey and Kaplan 1995), thirty-seven states
responded to a national survey of the use of outpatient
commitment. Seven reported very common use, seven
reported common use, and the remaining twenty-three
reported infrequent use. Together, these studies show an
ongoing increase in the use of outpatient commitment,
although it is still underused in the majority of states.
STUDIES OF OUTPATIENT COMMITMENT
Most studies of outpatient commitment are still largely
anecdotal (Miller 1988a). Early studies evaluated the suc-
cess of the process chiefly by measuring changes in hospital
readmissions after passage of laws or regulations intended
to encourage commitment to outpatient, rather than inpa-
tient, facilities. The first report, from North Carolina prior
to the passage of statutes setting forth explicit procedures
governing the process (Hiday and Goodman 1982), indi-
cated that the conditional release model was effective,
as measured by reduced readmissions, when one judge
(who presided over all commitment hearings for one of
the state’s four commitment districts) began committing
patients to outpatient treatment at their initial inpatient
commitment hearings.
A subsequent report from a different district of North
Carolina (Miller and Fiddleman 1983) reported that most
mental health center clinicians felt that commitment had
been ineffective in providing treatment to their patients.
Bursten (1986) reported that new statutory provisions for
Involuntary civil commitment to outpatient treatment 117
outpatient commitment in Tennessee had been ineffect-
ive in reducing readmissions.
Later reports from Washington, DC (Zanni and
DeVeau 1986), Arizona (Van Putten, Santiago, and Berren
1988) and Ohio (Munetz et al. 1996) were more favorable;
they found that not only were hospitalizations prevented
but that effective treatment had been provided. The most
thorough study was done in North Carolina after a series
of statutory amendments added explicit procedures for
enforcement of outpatient commitment, established ini-
tial commitment with broader criteria than those required
for involuntary hospitalization, and provided capitation
funds for centers accepting committed patients as an alter-
native to hospitalization (Hiday and Scheid-Cook 1987).
The authors reported that, although some of the statutory
provisions had not been observed in practice (particularly
those requiring patients to have had previous involuntary
hospitalizations after failure of attempted outpatient treat-
ment), many community clinicians were enthusiastic
about the effects of the process. Although most patients
missed appointments at some point during the six-month
study period, 80 per cent were still actively involved in
treatment at the end of the six months – a far higher rate
than that found in patients not committed for follow-up
treatment.
More recently, two comprehensive studies have
attempted to go beyond measures of rehospitalization in
assessing the effects of outpatient commitment. New York,
which had been the only state to explicitly prohibit out-
patient commitment, established a pilot program at
Bellevue which was studied by Policy Research Associates
(1998) and by Telson, Glickstein and Trujillo (1999). The
program included forced medication, but only for those
patients found by a court incompetent to make treatment
decisions. Policy Research Associates found no statistically
significant differences between committed and voluntary
patients, but both groups experienced significantly fewer
hospitalizations, attributed by the researchers to more
intensive services made available by the program. Telson’s
group, who studied the program for five years (Policy
Research Associates used an 11-month period), reported
that once all the participants understood the program,
committed patients were rehospitalized less frequently
and stayed significantly fewer days when they were
hospitalized.
The North Carolina study (Swartz et al. 1995) also
used control groups, and also found that committed
patients had fewer and briefer hospitalizations. However,
the authors also found that increased resources were
more important than the commitment itself.
THE RIGHT TO REFUSE TREATMENT
Most patients who benefit from commitment to out-
patient treatment suffer from major mental disorders
118 Legal regulation of psychiatric practice
(chiefly psychoses and affective disorders) that can be
adequately controlled by medication. Most clinicians feel
that the conditions of outpatient commitment for such
patients must include continuation of appropriate medi-
cation (Miller and Fiddleman 1983; Miller et al. 1987;
Geller 1990; Schmidt and Geller 1990; Meloy, Haroun,
and Schiller 1990). Some authors (Knoedler 1988) have
argued that commitment should include the authority to
physically force medication on outpatients, but few com-
mentators and no state legislatures have agreed with that
proposal, because of opposition from both the great
majority of community clinicians and from civil libertar-
ians, whose support is necessary in order to pass outpa-
tient commitment laws (Miller 1988b). And as Hiday and
Scheid-Cook (1987) have demonstrated, the great major-
ity of committed outpatients take their medication with-
out physical force.
The initial APA Task Force Report (Miller et al. 1987)
recommended against physically forced outpatient medi-
cations. More recently, the authors of the APA’s Resource
Document on Mandatory Outpatient Treatment (Gerbasi,
Bonnie, and Binder 2000) take no position, but recom-
mend that if medication is forced, it be forced only on
those found incompetent to make treatment decisions.
CRITICISMS OF OUTPATIENT COMMITMENT
Although clinical scholars have generally supported the
concept of outpatient commitment, several have raised
concerns about the potential for abuse inherent in
broader commitment criteria and the difficulties involved
in its implementation (Geller 1986; Mulvey, Geller, and
Roth 1987). Although civil libertarians first suggested
the establishment of formal procedures for commitment
to outpatient treatment (Chambers 1972) and criticized
the American Psychiatric Association’s Model Law on
commitment because it did not provide for outpatient
commitment (Rubenstein 1985), since the practice has
become operational most have been highly critical of it –
particularly where need-for-treatment criteria have been
established to permit initial commitment.
Keilitz (1990) and McCafferty and Dooley (1990) sur-
veyed the existing statutes and literature on outpatient
commitment and came to negative conclusions that were
radically different from those of the authors of the studies
they reviewed. Schwartz and Costanzo (1987) published
an even more scathing critique of outpatient commit-
ment, arguing that it will not work because of insufficient
community and judicial resources, resistance from clin-
icians, community residents and governments unwilling
to fund the programs, and the difficulty of effective
enforcement.
Legal critics also argue that the parens patriae basis for
outpatient commitment is unconstitutional; that danger-
ousness criteria do not permit commitment to outpatient
treatment; and that broader criteria for outpatient com-
mitment than for involuntary hospitalization violate con-
stitutional guarantees of equal protection. To date, courts
have not accepted these arguments. The concept of
commitment to prevent clinical deterioration has been
accepted by at least one court (Matter of Mental Condition
of W.R.B. 1987), and another court has ratified the practice
of commitment to the state department of mental health,
which then has the authority to determine where the treat-
ment will take place (Glasco v. Brassard 1971).
Courts have, however, rejected clinical control over the
process (Birl v. Wallis 1985, 1986), and several have held
that revocation of outpatient status requires a judicial
hearing, either before (Morrissey v. Brewer 1972; Meisel v.
Kremens 1975; Lewis v. Donahue 1977; In re Anderson
1977; C.R. v. Adams 1981; Application of True 1982; In
re Cross 1983; Matter of Mills 1983; In re M.M. 1985;
In re McPherson 1985; Birl v. Wallis 1985, 1986; In re
Commitment of B.H. 1986) or after (Metaxos v. People
1924; New Jersey v. Carter 1974; Hooks v. Jacquith 1975;
Dietrich v. Brooks 1976; In re Richardson 1984) rehos-
pitalization.
CURRENT STATUS AND RECOMMENDATIONS
FOR OUTPATIENT COMMITMENT
There is active legislative interest in outpatient commit-
ment. The most recent survey of outpatient commitment
in practice (Miller 1992) revealed that twenty-one juris-
dictions revised their outpatient commitment statutes
between 1984 and 1991. Eleven had made substantive
changes, including making outpatient commitment
explicit, establishing provisions for initial commitment,
and creating need-for-treatment criteria. Eleven made
procedural changes, including making provisions for
dealing with non-compliant patients, requiring court
hearings before rehospitalization, and lengthening the
possible duration of commitment.
As of 1991, twenty-seven jurisdictions continued to
use rehospitalization as the major consequence for non-
compliance, while eleven permitted non-compliant
patients to be taken to the outpatient treatment facility.
Twenty-seven jurisdictions require judicial hearings to
justify rehospitalization.
The American Psychiatric Association’s Task Force
on Involuntary Commitment to Outpatient Treatment
(Miller et al. 1987) made a series of recommendations
that are still consistent with practical experience in
the field:
1 Patients committed to outpatient treatment should
be suffering from disorders that can be effectively
controlled in a community setting.
2 The outpatient clinicians must be actively supportive
of the process; they must be provided with sufficient
resources to provide appropriate treatment and must

be involved in the creation of the court-ordered
treatment plan.
3 If medication is an essential part of the treatment
plan, it should be court-ordered, but it should not be
physically forced in outpatient settings.
4 There must be explicit procedures established to deal
with non-compliance. Best are provisions to return the
patient to the outpatient facility, but rehospitalization
must also be available. Jurisdictional issues for condi-
tional release commitments must be resolved.
5 Outpatient clinicians must be protected from addi-
tional liability associated with treating committed
outpatients.
The recent APA task force report (Gerbasi, Bonnie, and
Binder 2000) did not provide model statutes, as had its
predecessor; but it concurred with most of its recom-
mendations that:
1 Outpatient commitment should not be limited to
patients who meet criteria for involuntary hospital-
ization, but extended to prevent relapse or deterior-
ation in those whose relapse would predictably lead
to severe deterioration and/or dangerousness.
2 Predictions about relapse, deterioration and/or future
dangerousness should be based on documented
episodes in the recent past.
3 Outpatient commitment should not be limited to
those incompetent to make treatment decisions, but
should be available to assist patients who, as a result
of their mental illnesses, are unlikely to seek or com-
ply with needed treatment.
4 Outpatient commitment statutes must provide
adequate resources.
5 Statutes should authorize initial commitments of 180
days, with provisions for extensions based on specific
criteria.
6 A thorough medical examination should be required.
7 Outpatient clinicians should be involved in the devel-
opment of the treatment plan.
8 Patients should be consulted about their treatment
preferences and be given copies of their treatment
plans so that they will be aware of the conditions with
which they will be expected to comply.
9 The statutes should contain specific provisions to be
followed in the event of non-compliance, including a
court hearing if the non-compliance is substantial and
further efforts to motivate compliance would fail.
10 No recommendation is made about forced medica-
tion; but if it is authorized, it must be based on
incompetence to make treatment decisions.
The major departure from existing provisions is to extend
outpatient commitment even to patients who are com-
petent to make treatment decisions, but choose not to
accept treatment. That provision has been criticized by
Munetz, Geller and Frese (2000) and Hoge and Grottole
(2000) as an intolerable infringement on civil rights.
Involuntary civil commitment to outpatient treatment 119
Stein and Diamond (2000) and Mattison (2000) echo
earlier critics who argue that, without resources, outpa-
tient commitment offers greater restrictions without the
promise of effective treatment.
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Application of True, 103 Idaho 151 (Idaho 1982).
Birl v. Wallis, 619 F. Supp. 481 (M.D.Ala. 1985);
633 F. Supp. 707 (M.D.Ala. 1986).
Bleicher, B.K. 1967. Compulsory community care of the
mentally ill. Cleveland-Marshall Law Review 16, 93–115.
Bursten, B. 1986. Posthospital mandatory outpatient
treatment. American Journal of Psychiatry 143, 1255–8.
Chambers, D.L. 1972. Alternatives to civil commitment of
the mentally ill: practical guides and constitutional
imperatives. Michigan Law Review 70, 1107–1200.
Chu, F.D., Trotter, S. 1974: The Madness Establishment.
New York: Grossman.
C.R. v. Adams, 649 F.2d 625 (8th Cir. 1981).
Dietrich v. Brooks, 558 P.2d (Or. App. 1976).
Geller, J.L. 1986. The quandaries of enforced community
treatment and unenforceable outpatient commitment
statutes. Journal of Psychiatry and Law 14, 149–58.
Geller, J.L. 1990. Clinical guidelines for the use of
involuntary outpatient treatment. American Journal of
Psychiatry 41, 749–55.
Gerbasi, J.B., Bonnie, R.J., Binder R.L. 2000. Resource
document on mandatory outpatient treatment. Journal
of the American Academy of Psychiatry and the Law 28,
127–44.
Glasco v. Brassard, 483 P.2d 924 (1971).
Goldman, H.K., Adams, N.H., Taube, C.A. 1983.
Deinstitutionalization: the data demythologized.
Hospital and Community Psychiatry 24, 129–34.
Hiday, V.A., Goodman, R.R. 1982. The least restrictive
alternative to involuntary hospitalization, outpatient
commitment: its use and effectiveness. Journal of
Psychiatry and Law 10, 81–96.
Hiday, V.A., Scheid-Cook, T.L. 1987. The North Carolina
experience with outpatient commitment: a critical
appraisal. International Journal of Law and Psychiatry
10, 215–32.
Hoge, M.A., Grottole, E. 2000. The case against outpatient
commitment. Journal of the American Academy of
Psychiatry and the Law 28, 165–70.
Hooks v. Jacquith, 318 So. 2d 860 (Miss. 1975).
In re Anderson, 73 Cal. 3d 98, 140 Cal. Rptr. 546 (1977).
In re Commitment of B.H., 212 N.J. Super. 145 (1986).
In re Cross, 662 P.2d 828 (Wash. 1983).
In re McPherson, 176 Cal. App. 3d 332, 222 Cal. Rptr.
416 (1985).
In re M.M., No. 17, 820-CW (La. Ct. App. 2d Cir. Dec.
13, 1985).
In re Richardson, 481 A.2d 473 (D.C. App. 1984).
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Keilitz, I. 1990. Empirical studies of involuntary
outpatient civil commitment: is it working? Mental
and Physical Disability Law Reporter 14, 368–79.
Knoedler, W. 1988. Outpatient commitment (letter).
Hospital and Community Psychiatry 39, 783–4.
Lewis v. Donahue, 437 F. Supp. 112 (W.D. Okla. 1977).
Matter of Mental Condition of W.R.B., 411 N.W.2d 142
(Wis. App. 1987).
Matter of Mills, 467 A.2d 971 (D.C. App. 1983).
Mattison, E. 2000. Commentary: the law of unintended
consequences. Journal of the American Academy of
Psychiatry and the Law 28, 154–8.
McCafferty, G., Dooley, J. 1990. Involuntary outpatient
commitment: an update. Mental and Physical Disability
Law Reporter 14, 277–87.
Meisel v. Kremens, 405 F. Supp. 1253 (E.D. Pa. 1975).
Meloy L.R., Haroun, A., Schiller, E.F. 1990: Clinical
Guidelines for Involuntary Outpatient Treatment.
Sarasota, FL: Professional Resources Exchange, Inc.
Metaxos v. People, 230 P. 608 (Colo. 1924).
Miller, R.D. 1982. The least restrictive environment:
hidden agendas and meanings. Community Mental
Health Journal 18, 46–55.
Miller, R.D. 1985. Commitment to outpatient treatment:
a national survey. Hospital and Community Psychiatry
36, 265–7.
Miller, R.D. 1987: Involuntary Civil Commitment of the
Mentally Ill in the Post-reform Era. Springfield, Illinois:
Charles C. Thomas.
Miller, R.D. 1988a. Outpatient civil commitment of the
mentally ill: an overview and an update. Behavioral
Sciences and the Law 6, 99–118.
Miller, R.D. 1988b. In reply (letter). Hospital and
Community Psychiatry 39, 784.
Miller, R.D. 1990: Involuntary civil commitment. In Simon,
R.I. (ed.), Annual Review of Clinical Psychiatry and the
Law. Washington, DC: American Psychiatric Press,
95–172.
Miller, R.D. 1992. An update on involuntary civil
commitment to outpatient treatment. Hospital and
Community Psychiatry 43, 79–81.
Miller, R.D., Fiddleman, P.B. 1983. Outpatient
commitment: treatment in the least restrictive
environment? Hospital and Community Psychiatry
35, 147–51.
Miller, R.D., Maher, R., Fiddleman, P.B. 1984. The use of
plea bargaining in civil commitment. International
Journal of Law and Psychiatry 7, 395–406.
Miller, R.D., Luskin, R.L., Starrett, D., et al. 1987:
Involuntary Commitment to Outpatient Treatment.
American Psychiatric Association Task Force Report 26.
Washington, DC: American Psychiatric Press.
Morrissey v. Brewer, 408 U.S. 471 (1972).
Mulvey, E.P., Geller, J.L., Roth, L.H. 1987. The promise and
peril of involuntary outpatient commitment. American
Psychologist 42, 571–84.
Munetz, M.R., Grande, T., Kleist J., et al. 1996. The
effectiveness of outpatient civil commitment.
Psychiatric Services 47, 1251–3.
Munetz, M.R., Geller, J.L., Frese F.J. III. 2000. Commentary:
Capacity-based involuntary outpatient treatment.
Journal of the American Academy of Psychiatry and the
Law 28, 145–8.
New Jersey v. Carter, 64 N.J. 382 (1974).
Policy Research Associates, Inc. 1998: Final Report,
Research Study of the New York City Involuntary
Outpatient Commitment Pilot Program (unpublished),
New York.
Rubenstein, L.R. 1985. APA’s Model Law: hurting the
people it seeks to help. Hospital and Community
Psychiatry 36, 968–72.
Schmidt, M.L., Geller, J.L. 1990. Involuntary
administration of medication in the community: the
judicial opportunity. Bulletin of the American Academy
of Psychiatry and the Law 17, 283–92.
Schwartz, S.L., Costanzo, C.E. 1987. Compelling
treatment in the community: distorted doctrines
and violated values. Loyola (LA) Law Review 20,
1329–429.
Stein, L.I., Diamond, R.J. 2000. Commentary: A ‘systems’-
based alternative to mandatory outpatient treatment.
Journal of the American Academy of Psychiatry and the
Law 28, 159–64.
Swartz, M.S., Swanson, J.W., Wagner, H.R., et al. 1995. Can
involuntary outpatient commitment reduce hospital
recidivism? Findings from a randomized trial of
severely mentally ill individuals. American Journal of
Psychiatry 156, 1968–75.
Telson, H., Glickstein, R., Trujillo, M. 1999: Report of the
Bellevue Hospital Center Outpatient Commitment Pilot
Program (unpublished) New York.
Torrey, E.F., Kaplan, R.J. 1995. A national survey of the
use of outpatient commitment. Psychiatric Services
46, 778–84.
Van Putten, R.A., Santiago, J.M., Berren, M.R. 1988.
Involuntary outpatient commitment in Arizona:
a retrospective study. Hospital and Community
Psychiatry 39, 953–8.
Van Putten, T. 1974. Why do schizophrenic patients refuse
to take their drugs. Archives of General Psychiatry
31, 67–72.
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outpatient commitment. Hospital and Community
Psychiatry 37, 941–2.

The right to treatment
JEFFREY L. GELLER
Whereas the right to treatment was born in the early
1960s, its progenitor was the decades of parlous neglect
of patients in America’s public psychiatric institutions
through the mid-twentieth century. Kenneth Appel, MD,
chairperson of the mental hospitals committee of the
Group for the Advancement of Psychiatry, proclaimed in
1947, ‘Automobiles get better attention than most mental
patients today. The grass surrounding the state hospitals
receives more care and consideration than the patients
inside.’ (Deutsch 1948, p. 98) In his 1958 presidential
address to the American Psychiatric Association, Harry
Solomon indicated that ‘the large mental hospital is anti-
quated, outmoded, and rapidly becoming obsolete. We
can build them but we cannot staff them … they are
bankrupt beyond remedy.’ (Solomon 1958, p. 7).
Much of the right-to-treatment litigation has focused
on establishing standards of care and concomitant
staffing patterns. In the 1940s, the American Psychiatric
Association (APA) maintained that there should be no
less than one psychiatrist for every 150 hospitalized
patients, one graduate nurse for every forty patients, and
one attendant for every eight patients, but no state hos-
pital of the day met all the APA’s standards (Deutsch 1948).
The history of the right to treatment is that of a moral
position casting about for legal grounding. The right
to treatment has been variously based on the Eighth
Amendment (cruel and unusual punishment), the Four-
teenth Amendment (both the due process clause and
the equal protection clause), the quid pro quo rationale
(treatment is due to civilly committed patients in exchange
for enforced confinement), and the least restrictive alter-
native doctrine (‘deprivations of liberty solely because of
dangers to ill persons themselves should not go beyond
what is necessary for their protection’ (Lake v. Cameron
1966, p. 660). Further, courts have struggled with clearly
defining treatment, differentiating between treatment and
habilitation, and distinguishing between the rights and
needs of persons with mental illness, and those with men-
tal retardation.
16
INSTITUTIONAL TREATMENT
The early years: 1960–1974
The right to treatment was initially articulated by Morton
Birnbaum, a lawyer and physician, who argued in 1960:
If the right to treatment were to be recognized, our
substantive constitutional law would then include the
concepts that if a person is involuntarily institutional-
ized in a mental institution because he is sufficiently
mentally ill to require institutionalization for care
and treatment, he needs, and is entitled to, adequate
medical treatment; that an institution that involun-
tarily institutionalizes the mentally ill without giving
them adequate medical treatment for their mental
illness is a mental prison; and that substantive due
process of law does not allow a mentally ill person
who has committed no crime to be deprived of his
liberty by indefinitely institutionalizing him in a
mental prison (Birnbaum 1960, p. 503).
The first tests of Birnbaum’s theory were in criminal
committees. In Rouse v. Cameron (1966), Judge Bazelon
found that a District of Columbia statute mandated treat-
ment for a patient committed after a finding of not guilty
by reason of insanity. Judge Bazelon postulated, however,
that there could be constitutional violations in confine-
ment without treatment, noting the Eighth and Fourteenth
amendments. He further remarked that the ‘hospital
need not show that the treatment will cure or improve him,
but only that there is a bona fide effort to do so’ (Rouse v.
Cameron 1966, p. 456). In Nason v. Superintendent of
Bridgewater State Hospital (1968), the Supreme Judicial
Court of Massachusetts found a constitutional right to
treatment for a patient found incompetent to stand trial
and whose further court proceedings required his return to
competency. This court grounded its decision in the due
process clause of the Fourteenth Amendment.
122 Legal regulation of psychiatric practice

The right to treatment was first applied to civilly com-
mitted patients in Wyatt v. Stickney (1971), a federal dis-
trict court case, affirmed by the Court of Appeals, which
challenged the deplorable conditions in the Alabama
state hospitals. Judge Johnson adopted the theory articu-
lated in Rouse v. Cameron in a series of far-reaching deci-
sions. In the third Wyatt decision, Judge Johnson indicated
he had found that Alabama failed to provide ‘(1) a humane
psychological and physical environment; (2) qualified
staff in numbers sufficient to administer adequate treat-
ment; and (3) individualized treatment plans.’ (Wyatt v.
Stickney 1972, p. 375). The court delineated ‘Minimum
Constitutional Standards for Adequate Treatment of the
Mentally Ill’ for each of these three areas, outlining in
great detail the minimal standards that the state would be
required to meet. The staffing standards are of particular
interest (see Table 16.1).
Other courts took up Judge Bazelon’s analysis, apply-
ing it to institutions for the mentally retarded. In New
York State Association for Retarded Children v. Rockefeller
(1973), the so-called Willowbrook case, the court found
that institutionalized mentally retarded persons had
a right to protection from harm but no clear right to
treatment. To this point, no case had been heard by the
United States Supreme Court.
U.S. Supreme Court: 1975–1982
During this time period the Supreme Court had three
major opportunities to find a right to treatment, but did
not do so. In O’Connor v. Donaldson (1975), Justice
Stewart, writing for the majority of the Supreme Court,
indicated that:
There is no reason now to decide whether mentally
ill persons dangerous to themselves or to others have
a right to treatment … this case raises a single, rela-
tively simple but nonetheless important question con-
cerning every man’s constitutional right to liberty.
(O’Connor v. Donaldson 1975, 573).
Rather, the Court found:
A state cannot constitutionally confine without more
a nondangerous individual who is capable of surviv-
ing safely in freedom by himself or with the help of

Table 16.1 A comparison of state hospital staffing pattern per 250 patients as required by Wyatt v. Stickney (1972), U.S. v.
Indiana (1984), U.S. v. Hawaii (1991), and U.S. v. Virginia (1999)
Wyatt v.
Stickney U.S. v. Indiana U.S. v. Hawaii U.S. v. Virginia
Staff member (1972) (1984)1 (1991)2 (1999)3
Psychiatrist 2 8.3 16 18.25 ⫹ 3 in administrative positions
independent of census
Physician 4 Not discussed 2.5 MDs ⫹ 1.5 NPs
Psychologist 3 5.4 12.5 16 ⫹ 1 Director
(PhD & MA)
Social worker 7 7.5 16.7 1 per treatment team of 15–25
(MSW & BA) patients (size dependent on type of
patient population)
Rehabilitation staff 12 Not discussed 27.8 Specified by functions not numbers
(O.T. & R.T.)
Registered nurse 12 13.8 272 5.0–5.5 HPPD4
excluding nights Of these, must be: at Of these, must be: at least one
least one RN per ward RN per ward per shift;
Licensed practical 6 Not discussed per shift; RNs must be RNs must make up 25–35% of HPPD
nurse 30% of each ward’s depending on type of patient
staff; any 1:1 or other population; any 1:1 staffing is in
special assignments addition
Aides 92 153 are in addition

1
Based on assumption of 50% acute patients (as defined by consent decree) and 50% continuing care patients; also based on 1.7 FTE
nursing staff to have 1 FTE on duty every day.
2
Based on assumption of 18% acute patients, 32% long-term care patients and 50% forensic patients; also based on 1.7 FTE nursing staff
to have 1 FTE on duty every day.
3
Central State Hospital. Based on assumption of 34% civil patients and 66% forensic patients.
4
HPPD is nursing care hours per patient day. It is used to calculate staff as follows: required number of nurses and direct care
staff ⫽ (1.8 ⫻ average no. of patients ⫻ HPPD)/8.

willing and responsible family members or friends.’
(O’Connor v. Donaldson 1975, 576).
To emphasize the absence of a finding of a right to
treatment, in a concurring opinion Chief Justice Burger
found:
… no other basis for equating an involuntarily com-
mitted mental patient’s unquestioned constitutional
right not to be confined without due process of law
with a constitutional right to treatment. (O’Connor v.
Donaldson 1975, p. 587–588, emphasis in original).
However, while Chief Justice Burger’s opinion appears
to reject the right to treatment, the majority opinion,
while failing to find such a right, does not explicitly reject
it either. In fact, the use of the phrase ‘without more’ has
been interpreted by some to mean that non-dangerous
individuals cannot be involuntarily hospitalized without
treatment. Hence lower courts could, and have, con-
sidered the right in subsequent litigation.
Having failed explicitly to find a right to treatment
for the mentally ill, the Supreme Court turned its atten-
tion to the mentally retarded. In Halderman v. Pennhurst
State School & Hospital (1977), the Federal District Court
found:
… that when a state involuntarily commits retarded
persons, it must provide them a reasonable opportun-
ity to acquire and maintain those life skills neces-
sary to cope as effectively as their capacities permit.
The Supreme Court again did not reach the issue of a
constitutional basis for a right to treatment or habilita-
tion, but rather found in this case that the Developmental
Disabilities Assistance and Bill of Rights Act (an act estab-
lishing a federal-state grant program) did not guarantee
to institutionalized mentally retarded persons any such
rights (Pennhurst State School & Hospital v. Halderman
1981).
In Youngberg v. Romeo (1982), the Supreme Court did
finally address the substantive due process rights of men-
tally retarded persons involuntarily committed to insti-
tutions. The Court specifically addressed whether such
persons had rights under the Fourteenth Amendment
to ‘(i) safe conditions of confinement; (ii) freedom
from bodily restraint; and (iii) training or “habilitation” ’
(Youngberg v. Romeo 1982, 309). The Court held:
Respondent has constitutionally protected liberty
interests under the Due Process Clause of the
Fourteenth Amendment to reasonably safe conditions
of confinement, freedom from unreasonable bodily
restraints, and such minimally adequate training as
reasonably may be required by their interests … . And
in determining what is ‘reasonable’, courts must show
deference to the judgment exercised by a qualified
professional, whose decision is presumptively valid.
(Youngberg v. Romeo 1982, p. 307).
The right to treatment 123
The ‘training’ aspect of this case appeared to particu-
larly interest members of the Court. Justice Blackmun, in
a concurring opinion, articulated that the level of train-
ing should be ‘that habilitation or training necessary to
preserve those basic self-care skills he possessed when
he first entered Pennhurst.’ (Youngberg v. Romeo 1982,
p. 327, emphasis in original). On the other hand, in his
concurring opinion Chief Justice Burger opined:
I would hold flatly that respondent has no constitu-
tional right to training, or ‘habitation’, per se … .
I agree with the court that some amount of self-care
instruction may be necessary to avoid unreasonable
infringement of a mentally retarded person’s interests
in safety and freedom from restraint, but it seems
clear to me that the Constitution does not otherwise
place an affirmative duty on the state to provide
any particular kind of training or habilitation – even
such as might be encompassed under the essentially
standardless rubric ‘minimally adequate training’
to which the Court refers. (Youngberg v. Romeo 1982,
p. 329–330).
Subsequent to Youngberg: 1983–1990
The Supreme Court did much less than those who cham-
pioned the cause of the right to treatment would have
hoped. Even before the Supreme Court completed its
way through these cases, psychiatrists with particular
expertise in these matters were doubtful of the usefulness
of the judicial process for this right. Stone (1975) argued,
‘The right to treatment cannot come from complicated
judicial discourse about civil rights and about civil liber-
ties.’ Roth (1977) lamented, ‘I do not believe that the
so-called right-to-treatment laws will ever provide the
help that physicians hoped they would in ensuring that
patients receive needed and effective treatment.’
The right to treatment continued to struggle through-
out this period. Litigation in federal court attempting to
broaden Youngberg is best exemplified by the long strug-
gle between Morton Birnbaum and New York State,
started as Woe v. Matthews (1976) and ending as Foe v.
Cuomo (1989). The major advances in the right to treat-
ment in the 1980s occurred pursuant to the Civil Rights
of Institutionalized Persons Act (CRIPA) of 1980. This act
authorizes the U.S. government to institute a civil action
against any state whose officials, employees, or those act-
ing on their behalf are ‘subjecting persons residing in or
confined to an institution to egregious or flagrant condi-
tions which deprive such persons of any rights, privileges,
or immunities secured or protected by the Constitution
or laws of the United States causing such persons to suffer
grievous harm.’ Under this authority, the Civil Rights
Division of the U.S. Justice Department has been able to
substantially bring the right to treatment closer to a real-
ity for thousands of persons in state psychiatric hospitals
124 Legal regulation of psychiatric practice
and in developmental disabilities/mental retardation facili-
ties. It has done so by applying the standards of Youngberg,
and it has accomplished its end largely through the vehicle
of consent decrees. Just how far this process has come can
be ascertained by comparing the staffing parameters of
the Wyatt case, the first consent decree in 1984 (United
States v. Indiana 1984), and a consent decree initiated
in the late 1980s (United States v. Hawaii 1991) (see
Table 16.1).
ADA and Wyatt: 1990–2000
The Americans with Disabilities Act (ADA), passed on July
26, 1990, is an act ‘to establish a clear and comprehensive
prohibition of discrimination on the basis of disability.’
The Act has four major components: Title I applies to
employment; Title II to public services; Title III to accom-
modations required of private entities; and Title IV to
telecommunication services. Enforcement varies by Title.
Title I is enforced by the Equal Employment Opportunity
Commission (EEOC); Titles II–IV are enforced by specific
government agencies, such as Department of Housing and
Urban Development enforcing housing; and the United
States Department of Justice (USDOJ) enforces all areas
of Titles II–IV not enforced by any other federal agency
(Wylonis 1999). Title II is of greatest interest in the area
of right to treatment in that this title covers state and
local government services and so includes state and county
hospitals.
The part of Title II most pertinent to the right to
treatment is at section 12132, which indicates: ‘no quali-
fied individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a
public entity, or be subject to discrimination by any such
entity.’ Regulations that were required to be promulgated
to operationalize this Act, state at one section, referred
to as the ‘integration regulation,’ that ‘A public entity
shall administer services, programs, and activities in
the most integrated setting appropriate to the needs of
qualified individuals with disabilities’ (28 Code of Fed-
eral Regulations 1998, at 35.130(d)). In the ‘reasonable-
modifications regulation,’ it states that public entities must
make ‘reasonable modifications’ in order not to discrim-
inate ‘on the basis of disability,’ but these pubic entities
are not required to ‘fundamentally alter’ the nature of the
public entity’s programs (28 Code of Federal Regulations
1998, at 35.130(b)(7)).
While the ADA addresses public institutions, it was
seen not so much as a way to improve services within state
and county hospitals, but rather as a way to force states
to move patients out of these institutions. The ADA could
become a vehicle to further the now four-decade-old
movement of patients from institutional to non-
institutional settings, generally referred to as ‘in the
community’ (Geller 2000a).
After 30 years, it appears that the Wyatt case may be
coming to an end. On January 20, 2000 all parties reached
a settlement agreement; a fairness hearing was held on
May 4 and a decision was reached July 13. The Settlement
Agreement endorsed by the court includes the following
components:
1 Accreditation: all mental illness facilities must main-
tain Joint Commission on Accreditation of Health-
Care Organizations (JCAHO) accreditation.
2 Advocacy programs: maintain an advocacy staff to
educate about rights, investigate complaints of rights
violations, monitor conditions of facilities and certi-
fied community programs.
3 Census reduction: specific target census reductions
set, but no facility closures required.
4 Community placement: develop a plan and implement
‘out-placements’ and concurrently increase community-
based placements and services.
5 Public education: institute a comprehensive, state-wide
plan to enhance the public’s appreciation for abilities,
needs and rights of persons with mental illness.
6 Quality improvement: maintain adherence to current
policy and procedures and continue Continuous
Quality Improvement Systems.
7 Safety and protection: allegations of abuse and neg-
lect require timely responses by trained employees
using standard procedures.
8 Treatment and habilitation: Alabama Disabilities
Advocacy Program can have input into individualized
treatment plans, and consultants will be hired to
address special needs populations (dually diagnosed
mental illness/mental retardation, organic brain
injured, physically handicapped, HIV/AIDS, self-
injurious, others) and to review and make recommen-
dations concerning the use of seclusion and restraint
(Wyatt v. Sawyer 2000).
While the most recent Wyatt decision addresses condi-
tions in the state facilities of Alabama, it equally addresses
institutional downsizing, expansion of community ser-
vices, and the monitoring of some community services.
The projected ending date of this Settlement Agreement
is September 30, 2003 or before. The Agreement ends
when all parties agree that Alabama has completed
‘certain obligation undertaken in the agreement.’ (Wyatt v.
Sawyer 2000). It will be of great interest to see how
Alabama proceeds, and to monitor how treatment for
those with serious mental illness is actually advanced
through these efforts.
As a footnote to this era, it is worth noting that CRIPA
is still active in the states, although new wrinkles have
appeared. States are continuing to write Settlement
Agreements with Plans for Continuous Improvement.
Newer agreements advance somewhat different require-
ments from early Consent Decrees (see United States v.
Commonwealth of Virginia in Table 16.1). Hawaii recently
modified its direction in improving Hawaii State Hospital

by announcing its intent to alter the nature of the hospital
by modifying it into a ‘secure rehabilitation facility’
(Act 119, 1999 State of Hawaii Legislature). Florida
announced in 2000, amidst litigation (Johnson v. Murphy
1987), that it would close the state hospital that was the
subject of the suit (Krueger 2000).
COMMUNITY TREATMENT
The right to treatment in the community was initially
based on the right to treatment in the least restrictive
alternative (LRA), a doctrine first articulated in mental
health cases by Judge David Bazelon in Lake v. Cameron
(1966). That landmark case prohibited commitment if
less ‘restrictive’ treatment alternatives were possible.
Although LRA is a convoluted concept at best (Hoffman
and Foust 1977; Gutheil, Appelbaum, and Wexler 1983;
Munetz and Geller 1993; Fisher et al. 1995), it has pro-
vided the basis for extending the right to treatment
through both state statutes and the federal court.
Most states have statutes conferring a right to appro-
priate treatment and services, and many states have
statutes that explicitly address a right to treatment in the
LRA (Beis 1984; Brakel, Parry, and Weiner 1985). In
Dixon v. Weinberger (1975), a case involving the patients
of Saint Elizabeths Hospital in the District of Columbia,
the court, in basing its decision on statutory grounds (the
District of Columbia Hospitalization of the Mentally
Ill Act), found that patients were guaranteed a right to
treatment and that this right was no less than a right to
treatment in the LRA. Unfortunately, the Dixon case has
resulted, throughout most of its existence, in considerably
more process than outcome (Armstrong 1979; Dixon v.
Sullivan 1989; Advocates welcome agreement … 2000).
Through a Consent Order in late winter of 2000, however,
it was hoped that returning the mental health system to
the District (by ending the receivership) would hasten
compliance with the twenty-five-year-old court decision
(Dixon v. Miller 2000; Miller 2000).
In Arizona, the Superior Court of Arizona ruled in
Arnold v. Sarn (1985, p. 40) that the Arizona Department
of Health Services, the Arizona State Hospital, and the
Maricopa County Board of Supervisors were obligated to
provide, pursuant to state statute, ‘a continuum of care’
through a ‘unified and cohesive system of community
mental health care that is well integrated.’ This continuum
was defined by the court as including case management,
residential services, day treatment, outreach, medica-
tions, outpatient counseling, crisis stabilization, mobile
crisis services, socialization, recreation, work adjustment,
and transportation. This process in Arizona through the
mid 1980s has been cogently summarized by Santiago
(Santiago et al. 1986; Santiago 1987).
The Arnold case remains alive and active in 2000. The
plaintiff class and the state of Arizona and Maricopa
The right to treatment 125
County entered into a Supplemental Agreement in
December, 1998. Included in what the Defendants are
required to complete is a needs assessment on a sample
of class members; determine the services necessary to
meet these needs and the methodology to create these
services; develop interim and long-term plans for the
operation of clinical teams; and create standards and
conduct performance reviews (Arnold v. ADHS 1998). By
August, 1999 a study of the mental health services needs
of class members had been completed by the Human
Services Research Institute of Cambridge, Massachusetts
(Personal communication, H. Stephen Leff to Ronald
Smith, August 6, 1999). Progress remains slow. The 2000
Independent Audit Report of the Office of the Monitor
states that ‘only modest substantive progress has been
made in the areas of assessment, service planning, service
provision or adequate monitoring by the clinical teams’
(Arnold v. Sarn 2000, I) and refers to these results as
‘disheartening.’
One of the most far-reaching cases to date, in terms
of its outcome, has been Brewster v. Dukakis (1976).
Plaintiffs brought action against the Commonwealth of
Massachusetts claiming violations of state statutes and
federal entitlements focused on their right to be treated in
the LRA. Two years later, a consent decree was signed
(Brewster v. Dukakis 1978) that mandated a ‘comprehen-
sive community mental health and retardation system
to include no less than residential environments; non-
residential treatment, training, and support programs; and
management services to coordinate and monitor the net-
work of environments and programs.’ The consent decree
focused on those persons of western Massachusetts who
had been, were, or could be patients at the Northampton
State Hospital. While the outcome has been mixed (Geller
et al. 1990a, 1990b; Geller 1991a), some achievements
have been remarkable. A decade after the consent decree
was signed, every patient in the hospital on the day of the
signing had been discharged at least once (Geller et al.
1990a). The Commonwealth of Massachusetts managed
to establish in the area covered by the consent decree the
best-funded community residential system in the United
States (Geller and Fisher 1991). And the lawyer who
brought the suit concluded ten years after the decree took
effect, ‘By most accounts, few persons are still institution-
alized in western Massachusetts or are at risk of hospital-
ization as a result of a lack of an appropriate, less restrictive
alternative’ (Schwartz and Costanzo 1987, p. 1400).
Currently, the major changes in community-based
treatment are being fuelled by courts’ applications of the
ADA to persons in psychiatric institutions. Prior to the
first case heard by the U.S. Supreme Court, there were a
series of cases in lower federal courts that basically found
that persons with mental illnesses must receive care and
treatment in community settings where professional
judgment finds such treatment to be appropriate
(Petrila 1999). An interesting example of such cases is
Kathleen S. v. Department of Public Welfare (1998 and
126 Legal regulation of psychiatric practice
1999), a Pennsylvania case which focused on the closing
of Haverford State Hospital. The thrust of the case was
which, if any, patients could be transferred to Norristown
State Hospital (another Pennsylvania state hospital). The
court divided the patients into three subclasses and
found the following:
• Those identified by the state as appropriate for com-
munity placement now – placement immediately.
• Those identified by the state as placeable during the
next three years – place all within one and one half
years.
• Those identified by the state as not placeable and
requiring hospital level of care – transfer to Norristown
State Hospital, but conduct independent evaluations
by a psychologist or psychiatrist within six months to
determine appropriateness for community treatment.
The state appealed; the ultimate outcome was a Settlement
Agreement between the two parties that made no changes
for the first subclass, extended the date for the second sub-
class by three months, and indicated that all members of
the third subclass identified as appropriate for community
services would receive them no later than six months after
the determination of appropriateness deadline. This case
not only supported the right to community-based care
and treatment, but established quite narrow time frames
for the state to accomplish this objective for all of a state
hospital’s patients determined by professional judgment
to be appropriate for community-based services.
The case of Olmstead v. L.C. (1999) is the hallmark
U.S. Supreme Court decision to date on the application
of the ADA to persons in state hospitals. The case
involved two women with mental retardation – one of
whom also had schizophrenia and the other of whom
carried a personality disorder diagnosis – who were
being maintained in a Georgia state hospital despite the
fact that treatment professionals had concluded each
could be appropriately treated in community-based pro-
grams. The Supreme Court, by a 6-3 majority opinion
found that, for any person with a mental disability,
community-based treatment rather than institutional
placement is required of the states when ‘(1) the state’s
treatment professionals have determined that commu-
nity placement is appropriate; (2) the transfer from
institutional care to a less restrictive setting is not
opposed by the affected individual; and (3) the commu-
nity placement can be reasonably accommodated, taking
into account the resources available to the state and the
needs of others with mental disabilities’ (Olmstead v. L.C.
1999, p. 607). The majority found that the ‘unjustified iso-
lation … [of persons with mental disabilities] is properly
regarded as discrimination based on disability’ (Olmstead
v. L.C. 1999, p. 597). This finding is rooted in the major-
ity’s opinion that ‘institutional placement of persons who
can handle and benefit from community settings perpet-
uates unwarranted assumptions that persons so isolated
are incapable or unworthy of participating in community
life’ (Olmstead v. L.C. 1999, p. 600) and that institutional
confinement ‘severely diminishes the everyday life activ-
ities of individuals, including family relations, social con-
tacts, work options, economic independence, educational
advancement, and cultural enrichment’ (Olmstead v. L.C.
1999, p. 601).
The implications of the Olmstead case for the right to
treatment remain unclear. Commentators have noted
that the decision is ‘vague,’‘weak,’ and ‘fractured’ (Herbert
and Young 1999). Others have remarked ‘that the deci-
sion is unlikely to precipitate the widespread creation of
community-based services for persons with mental dis-
abilities’ (Appelbaum 1999).
CONCLUSION
Where is the right to treatment now? Perhaps best
described as in the eye of the hurricane, where so much is
swirling around it that one can’t get to it. The federal
government is jumping into the fray with legislation
passed in the fall of 2000 (Children’s Health Act of
2000 (H.R. 4365)) incorporating parts of the Mental
Health Early Intervention, Treatment and Prevention Act
(5.2639/H.R. 5091) to fund jail diversion programs, inte-
grated programs for persons with co-occurring mental
illness and substance abuse disorders, suicide prevention
programs targeted to children and adolescents, and other
programs. To whatever degree services in community
settings are improved, the scope of those who are in insti-
tutions but would be appropriate for care and treatment
outside of institutions, continues to expand. A recent
court decision stirs the winds of change by finding that
an individual can make claims simultaneously under the
ADA and under Social Security Disability Insurance
(Broadman 2000). And meanwhile, Alberta Lessard, the
named plaintiff in the case of Lessard v. Schmidt (1972) –
a case that addresses the bases for and procedures of civil
commitment – has failed several times over the years to
obtain care and treatment from the public psychiatric
system in Milwaukee. This because, in a system of down-
sized acute inpatient treatment, ‘they said I wasn’t sick
enough,’ said Ms. Lessard (Mental-illness ruling hinders
patients 2000).
While the activity level around the right to treat-
ment is high, clarity is far from evident. The concept
‘least restrictive alternative’ was never adequately defined
(Munetz and Geller 1993); the concept ‘most integrated
setting’ uses new language, but is equally inadequately
defined. If an individual has a right to ‘community-based
services,’ do we not need to define ‘services,’ and do we
not need to define ‘community’ (Geller 1991b; Geller
2000b)? Until such definitions are clear, and until such
services are uniformly a reality, the right to treatment
remains what in current parlance could be referred to as
an ‘unfunded mandate,’ though for persons who would
 The right to treatment 127

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the Americans with Disabilities Act. Psychiatric Clinics
of North America 22, 147–58.
Youngberg v. Romeo, 457 U.S. 307 (1982).

Treatment refusal in psychiatric practice
DEBRA A. PINALS AND STEVEN K. HOGE
Historically, the rights of mentally ill patients to refuse
treatment have been limited compared to persons with-
out mental illnesses. This was primarily the case for
patients committed to psychiatric facilities, but also
applied to some voluntary patients (Appelbaum 1994).
Society granted psychiatrists the authority to determine
the course of treatment for committed patients and, if
necessary, to administer it over objections. This was the
backdrop until the last quarter of the twentieth century.
By now, virtually every jurisdiction recognizes some ver-
sion of the right of persons with mental illness, whether
committed or not, to refuse treatment. In order to under-
stand current legal approaches to treatment refusal, it is
necessary to unravel the factors that led to this dramatic
change in the nature of doctor–patient relationships in
psychiatric institutions. Along with developments in men-
tal health case law, the evolution of the informed consent
doctrine and public perception about the quality of care
delivered in institutions all played important roles with
respect to the currently recognized right to refuse treat-
ment (Hoge, Appelbaum, and Geller 1989; Perlin 1993;
Appelbaum 1994; Winick 1997).
A crucial legal development was the shift in the legal
justification for civil commitment away from paternalis-
tic grounds – operationalized in a need-for-treatment cri-
terion – to grounds rooted primarily in the police powers
of the state and dangerousness-oriented criteria. When
the legal standard for involuntary hospitalization was one
of need for treatment, a post-commitment right to refuse
treatment made no conceptual sense. However, when
states adopted the new dangerousness-oriented criteria, it
became possible for courts to separate the need for con-
finement from the need for treatment and to question
why treatment was essential, once the threat of harm had
been averted (Appelbaum 1988; Hoge, Appelbaum, and
Geller 1989; Appelbaum 1994).
In addition, until the 1960s committed patients were
regarded as globally incompetent to make decisions. In
that decade the notion that status as a committed patient
equated with incompetence began to fall in the face of clin-
ical and legal pressures. Psychiatrists’ efforts to reintegrate
17
committed patients back into the community were
thwarted by presumptions that they were incompetent
to sign leases or enter into other contractual arrangements.
A growing mental patients’ rights advocacy movement
began to win for this group greater legal equality with
other patients who retained the legal presumption of com-
petence. As a result, by the early 1970s the presumption
that committed patients were globally incompetent had
virtually disappeared (Appelbaum 1994).
The presumption of competence for committed
patients was a pivotal development that gained even
greater significance with the maturation of the doctrine
of informed consent. From a clinical and scientific per-
spective, an enormous amount of research effort has been
put forth in the past decade to elucidate capacities related
to decision-making in both treatment and research settings
for persons with mental illness. This literature has further
supported the notion that persons with mental illness are
not, by definition, incompetent to make their own deci-
sions. Careful examination of their specific treatment
decision-making capacity is required before a determi-
nation of incompetence could be made for a given indi-
vidual (Gutheil and Appelbaum 2000).
Informed consent law also requires doctors to go
beyond mere description of the nature of the proposed
treatment. In order to obtain a valid consent, doctors
must disclose the risks and benefits of the treatment,
alternatives to the proposed treatment, their risks and
benefits, and the risk of no treatment. This expanded
scope of disclosure enables individualized decision mak-
ing, with the emphasis on patient autonomy to choose
amongst options. Thus, informed consent made explicit
that the choice of treatment was inherently an individual
value judgment, and not an objective determination to
be made by an authority on scientific or medical grounds.
Medical decision-making authority shifted dramatically
from physicians to patients. Finally, the evolving informed
consent doctrine provided courts with a convenient ana-
lytic tool, the risk-benefit ratio, by which laypeople, judges,
or other surrogate decision makers could evaluate alter-
native treatments (Appelbaum 1988; Hoge, Appelbaum,
130 Legal regulation of psychiatric practice
and Geller 1989; Appelbaum 1994; Gutheil and Appelbaum
2000). For further discussion of informed consent, see
Chapter 13.
Finally, concerns about the quality of care in psych-
iatric institutions also figured prominently in the emer-
gence of the right to refuse treatment. The broad
discretion that society had vested in psychiatrists to make
treatment decisions in these facilities presumed that their
decisions would be in the best interests of patients:
patients would receive individualized treatment based on
their specific needs. This longstanding grant of authority
extended to the use of antipsychotic medications and,
in the early years of their use, there was no reason to
question how these medications were being employed.
Antipsychotic medications – the first effective treatment
for the severely mentally ill – were regarded as miracle
drugs. Our understanding of these medications changed
with time, as did the assumption of beneficence on the
part of prescribing psychiatrists (Winick 1997). Specifi-
cally, the inherent limitations of antipsychotic medications
were recognized and it was realized that the medications
were not a panacea for mental illness. The risks of treat-
ment were increasingly appreciated as long-term admin-
istration led to potentially irreversible tardive dyskinesia
in a significant minority of patients (Slovenko 2000).
Over time, the judgments of psychiatrists who prescribed
these medications came under attack. Patients in some
underfunded institutions, it was asserted, had been
sedated with antipsychotic medications for staff conveni-
ence. Worse, it was claimed that patients received med-
ications as punishment; and some institutions were said
to have insufficient resources adequately to monitor their
patients’ pharmacotherapy (Hoge, Appelbaum, and Geller
1989).
LEGAL CRITERIA
In view of the diverse factors underlying the recognition
of a right to refuse treatment, it is not surprising that a
variety of legal approaches have emerged that differ in
defining the contours of the right and in the prescription
of procedural protections (Appelbaum 1988; Appelbaum
1994). Even within a single state, the rules governing
treatment refusal may differ depending on whether the
patient is hospitalized in a public or private facility and
in what jurisdiction the issue is being heard. Definitions
of what constitutes incompetence, or an emergency suf-
ficient to override treatment refusal, for example, vary
greatly. Thus, it is necessary that psychiatrists familiar-
ize themselves with the relevant case law, statutes, and
regulations relating to the specific setting.
Legal approaches to the adjudication of treatment
refusal can be categorized into two groups, based on
whether they are driven primarily by concerns about
patient rights or by concerns about the quality of patient
care (Appelbaum 1994). These fundamentally different
legal approaches are typified by the two initial cases in this
area. In Rogers v. Commissioner of Mental Health (1983)
the Massachusetts Supreme Judicial Court adopted a
rights-driven model, relying on state statutes and com-
mon law principles; in contrast, in Rennie v. Klein (1983)
the Third Circuit of the U.S. Court of Appeals found that
a treatment-driven model satisfied U.S. constitutional
requirements.
As case law in each of these areas evolved, several con-
stitutional arguments have been made justifying a right
to refuse treatment. Among these constitutional argu-
ments are the right to free speech, based in part on the
First Amendment, a right to be free of cruel and unusual
punishment based on the Eighth Amendment, a right
to due process, from the Fourteenth Amendment, and a
right to privacy, derived in a general sense from the pen-
umbra of the First, Fourth, Fifth, and Ninth Amendments
(Ciccone et al. 1990; Hermann 1990).
Rights-driven models
Rights-driven models are primarily concerned with the
individuals’ autonomy and thus seek to protect patients’
rights to determine the course of their treatment. These
rights-driven models have at their core an informed con-
sent analysis: competent patients have the right to refuse
treatment, absent an emergency; only the treatment
refusals of incompetent patients may be overridden. Most
jurisdictions with a rights-driven model will require a
formal, legal adjudication of incompetence, but some
variants of this model place the determination of compe-
tence in the hands of psychiatrists or a board (Appelbaum
1994).
In general, those states that hold formal judicial hear-
ings do not place the treatment decision in clinical hands,
even following a determination of incompetence. Courts,
such as the Rogers court, have feared that psychiatrists will
be unable to curb past abuses because competing interests –
maintaining order in the facility, discharging patients,
pleasing family members – may influence their treatment
decisions. Instead, in many jurisdictions the decision-
making authority for the patient is vested in a guardian.
In other jurisdictions (for example, Massachusetts and
New York) the court may make the treatment decision
itself. Standards for decision making may involve a var-
iety of models (Wettstein 1999; Gutheil and Appelbaum
2000). In the first, and one of the more common proto-
types, treatment decisions are made based on what is con-
sidered by an objective decision maker (e.g., the court or
a guardian) to be in the best interests of the patient. An
alternative rigorous standard of decision making is the
substituted judgment model. In this model, the courts
attempt to approximate decisions regarding treatment
based on what the patient would have wanted if compe-
tent. In the Rogers case for example, the courts concluded

that a substituted judgment determination requires evi-
dence including the patient’s stated preferences, experi-
enced side effects of the medication, family preferences,
prognosis with and without treatment and any religious
considerations that should be entered into the determina-
tion (Rogers v. Commissioner of Mental Health, 1983). This
method, although respectful of a patient’s autonomy, can
be difficult if the patient was never competent (Superin-
tendent of Belchertown State School v. Saikewicz, 1977) or
if there is no family or available means to ascertain the
patient’s preference during times when they may have
been competent.
Treatment-driven models
Treatment-driven models have been devised by courts
and legislatures that view patients’ right to refuse treat-
ment as limited to inappropriate care. The notion that
civil commitment is intended to bring about treatment –
and not merely confinement – animates the treatment-
driven model of adjudicating refusal. Committed patients
are entitled to refuse treatment only when it is not truly
prescribed to therapeutic ends. Because the standard for
overriding refusal is based on the appropriateness of the
prescribed treatment, treatment-driven models place the
primary authority to override refusal in the hands of
professionals – be they treating psychiatrists, medical
directors, independent psychiatrists, or multidisciplinary
boards – who can identify misuses of medication. More-
over, because the determinations are made by clinicians,
the procedures for review are often informal and do not
require judicial hearings (Appelbaum 1994).
The perspective of which model is more reasonable
depends on one’s role with the treatment-refusing person.
Psychiatrists generally favor treatment-driven models of
adjudicating treatment refusal because they recognize the
primacy of clinical decision making and therapeutic goals,
and eliminate the possibility that patients who need med-
ications will go untreated. Administrators also favor such
models because they minimize the diversion of clinical
time from treatment efforts. Legal and patient’s rights
advocates generally object to treatment-driven models. In
these models they perceive lesser protections for the rights
of committed patients, which means disadvantage, loss
of autonomy, and diminished dignity for persons with
mental illnesses.
Differences between state and federal
courts
State and federal courts have charted different courses in
deciding right-to-refuse-treatment cases, as was signaled
by the Rennie and Rogers decisions. Federal courts have
typically been willing to show deference to psychiatrists’
judgments regarding committed patients. The U.S.
Supreme Court, for example, specifically instructed the
Treatment refusal in psychiatric practice 131
Third Circuit Court of Appeals to take the Supreme Court
decision of Youngberg v. Romeo (1982) into consideration
in deciding Rennie v. Klein. In Youngberg, a case involving
a committed, retarded patient’s right to treatment and
freedom from restraint, the Supreme Court found that
the exercise of professional judgment was sufficient pro-
tection of patients’ rights when their liberties conflicted
with therapeutic purposes. Lower federal courts have
relied on Youngberg in adopting or upholding treatment-
driven models, as the Rennie court did (Hoge, Appelbaum,
and Geller 1989; Appelbaum 1994).
More recently, the U.S. Supreme Court decided a case
involving the right of a mentally ill prisoner to refuse
treatment, Washington v. Harper (1990). The court upheld
the state of Washington’s regulatory scheme, a variant of
the treatment-driven model that predicated override of
refusal on a finding that the patient met commitment
criteria and needed treatment. The regulations established
procedures for review, including the right to notice, a
hearing before a professional panel, and lay representa-
tion. Although the decision could be read narrowly as
affecting only prisoners, at least one court has already
relied on it – at least partly – in ruling on civilly commit-
ted patients’ right to refuse (Williams v. Wilzack 1990).
Some state courts have been willing to find greater
rights for committed patients than the minimum set by
the federal courts, in some cases, moving to adopt rights-
driven approaches to adjudication. In doing so, these
courts have found that state law – statutes, common law,
or state constitutions – provides additional protections
beyond those mandated by the U.S. constitution (Hoge,
Appelbaum, and Geller 1989; Perlin 1993; Appelbaum
1994).
Impact of the choice of model
There are several roles that the forensic psychiatrist may
be called on to play with respect to the right to refuse
treatment. The laws regulating treatment refusal and
override of refusal vary from jurisdiction to jurisdiction;
forensic psychiatrists may perform a vital function in
educating treating psychiatrists about these laws. Forensic
psychiatrists may be called on to act as consultants to
treating psychiatrists in managing patients seeking to
have their refusal upheld. Alternatively, forensic psych-
iatrists may be called on to act as expert evaluators for
the individual attorneys, hospitals or the court. Finally,
psychiatrists knowledgeable about treatment refusal may
be called on to help formulate policies and procedures
for their hospitals and states. Because of the variety of
roles a forensic psychiatrist may take with respect to a
treatment refusing patient, it is important to understand
the data reflecting the impact of the choice of the model
for overriding treatment decisions.
The incidence of refusal amongst psychiatric patients
has been shown to be greatest in forensic hospitals, ranging
132 Legal regulation of psychiatric practice
from 11 per cent to 45 per cent (Appelbaum 1994). In
non-forensic settings, however, studies have shown that
only approximately 10 per cent of patients will refuse
treatment with antipsychotics at some point during
inpatient hospitalization, with some variations depend-
ing on patient mix (voluntary or involuntary), and other
factors (Hoge et al. 1990; Appelbaum 1994; Kasper et al.
1997). Of those, somewhere between 50 per cent and
90 per cent refused treatment for less than one week.
When treatment refusal is persistent (which occurs in
only a very small percentage of cases), empirical reports
from various jurisdictions indicate that regardless of the
model employed (rights-driven or treatment-driven),
the outcome of review is the same: treatment refusal is
overturned in 90–95 per cent of cases (Appelbaum and
Hoge 1986). Although a few studies showed that override
of refusal may be less frequent in treatment-driven sys-
tems (Appelbaum 1994), a more recent study of patients
in a treatment-driven jurisdiction found that treatment
refusal lasted only 2.8 days, and all patients who persist-
ently refused treatment were ultimately treated involun-
tarily (Kasper et al. 1997). In contrast, Hoge et al. (1990)
found that in a rights-driven setting, refusal episodes
lasted about 13 days, while 23 per cent of treatment
refusers were not treated at the end of the study period.
Some 18 per cent of treatment refusers were brought
before a court, where their refusal was consistently over-
turned. That most treatment refusals that go before a
decision-making body (i.e., the courts or an administra-
tive type review) are overturned is undoubtedly due in
part to the deference to clinical opinion shown even in
rights-driven, judicial models of review. Yet, it is not
fair to conclude from these data that the model of review
has no impact on practice.
Studies from jurisdictions with rights-driven models
of review and judicial determinations have reported con-
siderable delays and costs in obtaining hearings, as feared
(Veliz and James 1987; Hoge et al. 1990; Schouten and
Gutheil 1990). These delays contribute to the increased
length of stay seen with treatment refusers. During the
interval between refusal and judicial review, refusing
patients disrupt the treatment setting – thus impairing
the quality of other patients’ treatment – and require
seclusion and restraint with greater frequency than other
patients (Hoge et al. 1990).
On the other hand, judicial review mechanisms –
perhaps because they are so procedurally cumbersome –
do seem to empower patients. For example, as described
above, in one jurisdiction with a rights-driven model,
only a small fraction of treatment refusers were taken to
review. The majority of patients in this prospective study
began to comply with treatment after some period of
negotiation and discussion. In some cases, patients were
successful in having the dosages of medication reduced.
Nearly one-quarter of the patients had their medication
discontinued, although in several cases this occurred in
conjunction with discharge from the hospital (Hoge et al.
1990). It seems fair to conclude that rights-driven, judicial
review does promote autonomy interests, although opti-
mal treatment for refusing patients and fellow patients
will be compromised, and considerable financial expense
will be incurred as a result.
Treatment-driven models of review may offer clear
advantages in efficiency and clinical flexibility (Schouten
and Gutheil 1990; Bloom et al. 1997). The informal
procedures associated with treatment-driven models
permit significantly more refusing patients to be reviewed.
Although treatment-refusing patients in treatment-driven
settings are just as likely to be disruptive and require seclu-
sion and restraint as those in rights-driven settings, lengths
of refusals may be shorter and reviews may be conducted
more quickly, potentially leading to more rapid treatment
and shorter hospital stays (Kasper et al. 1997). Similarly,
the easier access to review may permit greater flexibility,
while review by clinicians – who have substantive know-
ledge of mental illness and appropriate treatment – may
inject a greater measure of meaningful oversight (Hoge,
Gutheil, and Kaplan 1987).
Efficiencies gained by treatment-driven models of
review may, however, come with some costs. Easy access
to review may reduce some of the incentive for treat-
ing clinicians to negotiate with refusing patients and to
thoroughly evaluate their concerns about medications.
Treatment-driven models are also, by definition, not
designed to primarily promote patient rights, and there
has been concern that patients, when given less of a right
to present their side to a neutral party, may not be as
accepting of the outcome (Winick 1997, p. 384). Patients
may feel that they do not have sufficient voice in a
clinician-dominated process (Monahan et al. 1995). These
are not necessary consequences of a treatment-driven
model of review, but clinicians operating under such sys-
tems must be careful to consider the perspective of refus-
ing patients and to treat them with due respect.
RELEVANT DATA
General points of assessment
REASONS FOR REFUSAL
Careful assessment of the reasons for refusal of treatment
is essential. In many instances, patients’ refusals of medi-
cation are based on actual side effects or other real con-
cerns about their treatment. Often, these symptoms are
not detected by clinicians (Weiden et al. 1987). Even
common and benign side effects such as dryness and
blurring of vision, which seem trivial in comparison with
the beneficial effects of the medications, may lead to
treatment refusal. It is necessary for clinicians to explore
the practical impact and the meaning that patients
impart to these side effects. Blurred vision, for example,
may impair highly valued activities, such as reading or

watching television. Patients may also ascribe dire mean-
ings to the medications themselves or their side effects,
which they are reluctant to discuss with treating psych-
iatrists (Hoge et al. 1990; Gutheil and Appelbaum 2000).
Certain side effects warrant special mention. Patients
may express their experience of akathisia and akinesia in
idiosyncratic ways that may be disregarded as delusion-
ally based. Some patients experience dysphoric responses
to antipsychotic medication, which may lead to refusal.
Many patients are embarrassed to discuss sexual dys-
function related to psychotropic medications, such as
impotence, decreased libido, and retrograde ejaculation.
Specific inquiry into the reasons behind treatment refusal
is a necessary step, before resorting to a legal or adminis-
trative procedure to override the refusal (Gutheil and
Appelbaum 2000).
Side effects should rarely be the basis of long-term
treatment refusal. Various psychopharmacological man-
euvers – for example, changes in the kind of antipsychotic
or other psychotropic medication, dosage amounts and
intervals, adjunctive treatments – will bring side effects
into control in most instances. A careful explanation of
what patients may expect with those changes will alleviate
their concerns in many cases. Persistent treatment refusal
related to side effects is only likely to occur when the risk-
benefit ratio is narrow; for example, when a patient with
significant tardive dyskinesia and a history of poor response
to neuroleptics refuses medication that the treating psych-
iatrist feels is necessary. Furthermore, with the introduc-
tion of newer medications, clinicians and patients have at
hand a wider range of options from which to choose in
order to minimize side effects and maximize treatment
opportunities for forensic and civil patients (Pinals and
Buckley 1999).
Treatment refusal is often illness-related. In many
instances, patients will refuse antipsychotic medication
due to denial of their illness. Some patients will harbor
delusions about treatment and medication; for example,
patients may believe that the medication is actually a poi-
son. Patients with mania or with psychoses, which include
significant components of denial, grandiosity, and expan-
sive mood, are likely to refuse antipsychotic medication
(Hoge et al. 1990; Gutheil and Appelbaum 2000).
Patients with illness-based reasons for refusing treat-
ment pose the greatest clinical challenges. Even when
psychiatrists, nurses, ward staff, family, and friends are
intensively involved – and united in support of medica-
tion – many of these patients will report that they have
accepted medication only as an expedient to leaving the
hospital, and not because they have accepted an illness-
based need for treatment (Hoge et al. 1990).
CONTEXT OF REFUSAL
Clues to managing and assessing the treatment refuser
may be suggested by the context in which refusal takes
place. For example, in an inpatient setting, the majority
Treatment refusal in psychiatric practice 133
of patients who refuse medication do so shortly after
admission (Hoge et al. 1990; Kasper et al. 1997). There
may be many reasons for this: patients may be angry and
disagree about the need for hospitalization. Empathy,
time, and space to adjust to hospitalization, and persua-
sion may lead to a quick end to treatment refusal.
Later in the course of hospitalization, more stable or
long-term patients may refuse medication in response to
specific problems in the hospital. Patients may refuse
treatment to obtain greater attention from their treaters;
less verbal patients may refuse treatment as a stereotypic
response to distress of a physical or social nature. Finally,
treatment refusal may reflect transference issues or other
interpersonal difficulties. The assessment of treatment
refusal, therefore, requires the broadest possible under-
standing of the patient’s clinical circumstances (Wettstein
1999; Gutheil and Appelbaum 2000).
Other contextual settings of treatment refusal have
gained increasing attention. Treatment refusal amongst
civil outpatients, for example, has led to more jurisdic-
tions adopting models of outpatient involuntary com-
mitment, which often requires treatment compliance
as a condition of outpatient status (Miller 1999; see also
Chapter 15). Clinicians working in correctional and foren-
sic settings are faced with other challenges. For example,
a pre-trial defendant’s right to refuse treatment has come
under increasing legal and clinical scrutiny. The case of
Riggins v. Nevada (1992) provided that treatment could
only be administered over the objections of a pre-trial
defendant when ‘medically appropriate’ and with ‘an
overriding justification’ for its administration. However,
the court’s opinion left open for further consideration
the question of whether a defendant’s treatment refusal
can be overridden for the sole purpose of restoration of
competence to stand trial. A more recent and notorious
federal case, U.S. v. Weston (2000) related to Russell
Weston, who allegedly shot at federal officers outside the
capital. He was then deemed incompetent to stand trial
but refused medications to restore his competence. This
case generated further discussions and legal decisions
related to the rights of pre-trial defendants to refuse
antipsychotic medications (Siegel, Grudzinskas, and
Pinals 2001; U.S. v. Weston 2001). (See also Chapter 53.)
Regardless of the context, clinicians working with treat-
ment refusing patients should consider the principles
outlined above in the management of such refusals.
Developing a strong therapeutic alliance and an under-
standing of the patient’s rationale for refusal may be the
treating clinician’s best approach.
Competency assessment
In those jurisdictions with rights-based models, careful
assessment of competence is necessary (see Chapter 11
for a general discussion of this topic). Although most juris-
dictions recognize a lack of understanding of a proposed
134 Legal regulation of psychiatric practice
treatment as determinative of incompetence, frequent
impairments of competence will be related to deficiencies
in patients’ abilities to express sustained choices, abilities
to rationally manipulate information, and in their abilities
to appreciate the nature of their problem. With regard to
treatment refusal, many patients who refuse treatment
are likely to do so because they deny that they are men-
tally ill (Appelbaum and Hoge 1986; Hoge et al. 1990;
Gutheil and Appelbaum 2000).
Appropriateness of treatment
When acting as a consultant, either to the treating
psychiatrist or to the patient, the forensic psychiatrist
must make an independent determination of the appro-
priateness of the prescribed treatment. Many episodes of
refusal occur among acutely psychotic, newly admitted
patients; treatment is frequently appropriate in this clin-
ical context. However, this is not always so, and concerns
about the appropriateness of treatment will increase as
the risk-benefit ratio narrows. Proper evaluation requires
careful attention to history, diagnosis, and assessment of
psychopathology and side effects.
It is useful to begin with a thorough review of the
records and history of the patient. Often, there will be
a history of treatment with psychotropic medications.
Documented evidence of the patient’s previous response
to treatment – in either past or current hospitalizations –
should be carefully reviewed. Consulting psychiatrists
should establish the patient’s diagnosis. Diagnosis will
rely on the review of available records and the diagnostic
interview. In some instances, further testing or further
information gathering may be necessary. Signs and symp-
toms of mental illness, particularly those targeted by
antipsychotic medication, should be carefully assessed,
described, and documented.
An essential component of the evaluation is the
assessment of any potentially significant side effects, such
as abnormal involuntary movements. Structured instru-
ments, such as the Abnormal Involuntary Movement
Scale (AIMS), should be utilized when available to assist
in the quantification and documentation of side effects.
Subjective complaints should be elicited and explored as
described above.
Substituted judgment
In jurisdictions that rely on a substituted judgment stand-
ard for determining whether or not incompetent patients
will receive antipsychotic medications, psychiatrists must
look for evidence of their patient’s treatment wishes
when competent. In many cases the best indication will
be the patient’s record of compliance during periods of
wellness or times of improved functioning. Family mem-
bers, friends, and previous inpatient and outpatient psych-
iatrists are good sources of information. Understanding
any potential religious objections to treatment will also be
important. Sophisticated psychiatrists in substituted judg-
ment jurisdictions will document competency assessments
and compliance of their patients during well periods.
Such documentation may prove particularly valuable in
the event of a later refusal of treatment (Gutheil and
Appelbaum 2000).
REASONING PROCESS
In formulating the approach to a particular patient, the
episode of treatment refusal must be placed in the
broader and longitudinal context of the patient’s treat-
ment; the vast majority of treatment interactions – even
for treatment refusers – will be voluntary in nature. A
common error is for the treating psychiatrist to regard
treatment refusal as merely a legal problem, an obstacle
to be surmounted as quickly as possible. The manage-
ment of an episode of treatment refusal calls upon the
varied skills of the psychiatrist: psychopharmacology;
psychological management of the therapeutic alliance;
and management of the milieu. Psychiatrists must not let
their feelings about the law get in the way of acting in the
best interest of the patient; indeed, many find strict regu-
lation of the right to refuse treatment to be an outra-
geous intrusion into clinical matters. Properly handled,
treatment refusal may be an opportunity to strengthen
the treatment bond (Gutheil and Appelbaum 2000).
At any given point in the course of treatment refusal,
three options exist: (i) negotiation; (ii) discharge; or
(iii) pursuit of an override of the patient’s refusal.
Negotiation
Treatment refusal should be viewed initially as an invita-
tion by the patient to negotiate about treatment. The
involved psychiatrist will explore the reasons for refusal
and its context. Depending on the outcome of this initial
assessment, one of two questions need to be addressed:
1 Can the patient be persuaded to accept the prescribed
medication?
2 Are there reasonable accommodations that the treat-
ing psychiatrist can make to elicit compliance?
Throughout the course of an episode of refusal, the treat-
ing psychiatrist, like any physician, should make efforts
to persuade patients to accept the prescribed treatment.
The efforts of the psychiatrist should be augmented by
those of the nursing and milieu staff; family members
and other loved ones are also important in efforts to per-
suade patients.
Clinicians should guard against becoming entrenched
in their positions regarding treatment. In fact, some
patients may seek to ensnare the treating psychiatrist in a
power struggle, and outside consultation may be helpful

in negotiating such impasses. Through exploration, the
treating psychiatrist may find ways of addressing patients’
concerns about medication. Clarification of misconcep-
tions, frank discussion of side effects, and a consistent
posture of seeking to act in the best interest of the patient
provide the necessary foundation for resolution. Even if
the psychiatrist is unable to elicit voluntary treatment
compliance in this particular instance, this approach
offers the greatest promise for long-term clinical success
(Gutheil and Appelbaum 2000).
Discharge
Discharge against medical advice may be considered in
some cases when negotiation fails. Clinicians may judge
that it is preferable to respect the wishes of the patient
rather than to pursue override of refusal. In some instances,
there will be little choice. Patients who are competent, in
those jurisdictions in which override of refusal turns on
this issue, may be discharged if they are judged not to
pose unreasonable risk to themselves or others.
Discharge from the hospital should not be a rejection
of the patient, or abandonment of treatment. It should
be made clear to the patient that follow-up is indicated
and available, as is future medication treatment (Gutheil
and Appelbaum 2000).
Use of formal mechanisms
In many instances, it will be impossible to negotiate a
reasonable outcome, and discharge will be precluded
by the patient’s clinical condition. While there are no
absolute rules, it seems that patients with very negative
attitudes toward treatment, lacking appreciation of their
clinical condition, will be unlikely to voluntarily comply
with treatment (Hoge et al. 1990).
Once the treating psychiatrist decides to seek override
of the patient’s refusal, the patient should be informed of
this decision, and the reasons for it. The procedures gov-
erning the review of the refusal should be explained and
participation encouraged. Clinicians should discuss with
patients, to the extent possible, what might be said about
them during any adversarial proceeding. In some jurisdic-
tions, patients will have been warned from the outset that
their communications during an inpatient psychiatric
hospitalization will not be confidential in the event that
judicial involvement is required. For some patients, the
process of adjudication could be more therapeutic and
perceived as less coercive if patients were given a mech-
anism to express their thoughts (Winick 1997, p. 342–4).
As mentioned above, in the majority of cases that are
formally reviewed, the refusal will be overturned, and
patients should have the reasons explained for this judg-
ment. In most instances patients will accept medication
at this juncture, and involuntary administration will be
unnecessary. An earlier study by Schwartz, Vingiano, and
Treatment refusal in psychiatric practice 135
Perez (1988) affirmed this in its finding that the majority
of patients who received involuntary medication came to
accept it voluntarily and to acknowledge the need for
treatment. Clinical experience has shown that even when
treatments are only available in oral forms, once an offi-
cial determination has been made to override treatment
refusal, many patients will no longer refuse the proposed
medication. In jurisdictions designating a decision maker
on behalf of the patient (a guardian in most instances),
the treating psychiatrist should obtain informed consent
from this person, as he or she would from a competent
patient. Although it is then not necessary to obtain con-
sent from the patient for legal purposes, it is desirable to
continue to engage the patient to the greatest possible
extent in his or her treatment, thus maintaining a thera-
peutic alliance with the patient directly. Where reason-
able, patient wishes about treatment should continue to
be respected.
REFERENCES
Appelbaum, P.S. 1988. The right to refuse treatment:
retrospect and prospect. American Journal of Psychiatry
145, 413–19.
Appelbaum, P.S. 1994: Almost a Revolution: Mental Health
Law and the Limits of Change. New York: Oxford
University Press.
Appelbaum, P.S., Hoge, S.K. 1986. The right to refuse
treatment: what the research reveals. Behavioral
Sciences and The Law 4, 279–92.
Bloom, J., Williams, M.H., Land, C., Hornbrook, M.C.,
Mahler, J. 1997. Treatment refusal procedures and
service utilization: a comparison of involuntarily
hospitalized patients. Journal of the American Academy
of Psychiatry and the Law 25, 349–57.
Ciccone, J.R., Tokoli, J.F., Clements, C.D., Gift, T.E. 1990.
Right to refuse treatment: impact of Rivers v. Katz.
Bulletin of the American Academy of Psychiatry and the
Law 18, 203–15.
Gutheil, T.G., Appelbaum, P.S. 2000: Clinical Handbook of
Psychiatry and the Law. 3rd edition. Philadelphia:
Lippincott, Williams & Wilkins.
Hermann, D.H.J. 1990. Autonomy, self determination, the
right of involuntarily committed persons to refuse
treatment, and the use of substituted judgment in
medication decisions involving incompetent persons.
International Journal of Law and Psychiatry 13, 361–85.
Hoge, S.K., Appelbaum, P.S., Geller, J.G. 1989: Involuntary
treatment. In Tasman, A., Hales, R.E., Frances, A.J.
(eds), American Psychiatric Press Review of Psychiatry.
Volume 8. Washington, DC: American Psychiatric Press,
432–50.
Hoge, S.K., Gutheil, T.G., Kaplan, E. 1987. The right to
refuse treatment under Rogers v. Commissioner:
preliminary empirical findings and comparisons.
136 Legal regulation of psychiatric practice
Bulletin of the American Academy of Psychiatry and the
Law 45, 764–9.
Hoge, S.K., Appelbaum, P.S., Lawlor, T., et al. 1990.
A prospective, multi-center study of patients’ refusal
of antipsychotic medications. Archives of General
Psychiatry 47, 949–56.
Kasper, J.A., Hoge, S.K., Feucht-Haviar, T., et al. 1997.
Prospective study of patients’ refusal of antipsychotic
medication under a physician discretion review
procedure. American Journal of Psychiatry 154,
483–9.
Miller, R.D. 1999. Coerced treatment in the community.
Psychiatric Clinics of North America 22, 183–96.
Monahan, J., Hoge, S.K., Lidz, C., et al. 1995. Coercion and
commitment: understanding involuntary mental
hospital admission. International Journal of Law and
Psychiatry 18, 249–63.
Perlin, M.L. 1993. Decoding right to refuse treatment
law. International Journal of Law and Psychiatry 16,
151–77.
Pinals, D.A., Buckley, P.F. 1999. Novel antipsychotic agents
and their implications for forensic psychiatry. Journal
of the American Academy of Psychiatry and the Law
27, 7–22.
Rennie v. Klein, 720 F.2d 266 (3rd Cir. 1983).
Riggins v. Nevada, 112 U.S. 1810 (1992).
Rogers v. Commissioner of Mental Health, 458 N.E. 2nd
308 (Mass. 1983).
Schouten, R., Gutheil, T.G. 1990. Aftermath of the Rogers
decision: assessing the costs. American Journal of
Psychiatry 147, 1348–52.
Schwartz, H.I., Vingiano, W., Perez, C.B. 1988. Autonomy
and the right to refuse treatment; patients’ attitudes
after involuntary medication. Hospital and Community
Psychiatry 39, 1049–54.
Siegel, D.M., Grudzinskas, A.J., Pinals, D.A. 2001. Old
law meets new medicine: revisiting involuntary
psychotropic medication of the criminal defendant.
Wisconsin Law Review 2, 307–80.
Slovenko, R. 2000. Update on legal issues associated with
tardive dyskinesia. Journal of Clinical Psychiatry 61
(Suppl. 4), 45–57.
Superintendent of Belchertown State School v. Saikewicz,
370 N.E.2d 417 (1977).
U.S. v. Weston, 206 F.3d (D.C. Cir.) (2000).
U.S. v. Weston, 255 F.3d 873 (D.C. Cir.) (2001).
Veliz, J., James, W.S. 1987. Medicine court: Rogers
in practice. American Journal of Psychiatry 144,
62–7.
Washington v. Harper, 110 S.Ct. 1028 (1990).
Weiden, P.J., Mann, J.J., Hass, G., et al. 1987. Clinical
nonrecognition of neuroleptic-induced movement
disorders: a cautionary study. American Journal of
Psychiatry 144, 1148–53.
Wettstein, R.M. 1999. The right to refuse psychiatric
treatment. Psychiatric Clinics of North America 22,
173–82.
Williams v. Wilzack, 573 A.2d 809 (1990).
Winick, B.J. 1997: The Right to Refuse Mental Health
Treatment. Washington, DC: American Psychological
Association.
Youngberg v. Romeo, 102 S. Ct. 2452 (1982).
 18
Confidentiality and testimonial privilege

RALPH SLOVENKO

When may psychiatrists reveal the confidences of their by the patient instituting litigation. In an oft-quoted
patients? When must psychiatrists reveal their confi- expression, the patient cannot make the medical statute
dences? In this respect, two scenarios are involved, namely both a ‘sword’ and a ‘shield.’ It is considered that a good-
‘in court’ and ‘out of court.’ faith claimant suing for personal injuries would not object
to the testimony of any physician who examined or treated
them; rather, they would want the physician to testify. The
THE IN-COURT SCENARIO defendant is entitled to learn whether the injury com-
plained about predated the alleged incident. A patient who
files a lawsuit and resists the release of his or her medical
In the in-court (and deposition) scenario, testimonial priv-
record can forget about their case as it would be presumed
ilege, or shield law, is designed to protect confidentiality.
that the evidence must be unfavorable or it would have
Let us go fast backward to that part of history relating to
been produced.
medical privilege – the precursor to the psychotherapist–
The death of the patient terminated the privilege in
patient privilege that has now been enacted in all states.
many jurisdictions, so a legatee to a will in testamentary
The medical privilege was an innovation originating in
actions or a beneficiary of a life insurance policy could not
New York in 1828, a time when a person sedulously wanted
claim the privilege of the deceased patient (except perhaps
to conceal from the community the fact that he or she was
when it may be regarded in the interest of the patient).
the victim of some ‘dreadful’ disease that was rampant at
In actions on life and accident insurance policies
the time. In the years following, legislatures of most other
wherein the truth of the insured’s representations as to his
states enacted some form of medical privilege, but from
or her health are vital, the insurer may desire to introduce
the viewpoint of litigation, they were of comparatively
testimony of the insured’s physician to show fraud on
little importance when they were enacted.
the part of the insured in making his/her application. The
At the turn of the twentieth century, however, the devel-
medical privilege may be circumvented quite easily by the
opment of life and accident insurance, workers’ compen-
insurer by inserting a provision in the application whereby
sation, and liability of common carriers rapidly expanded
the insured waives his or her right to the privilege, both for
the role of the medical privilege. Personal injury litigation
themselves and their beneficiary. The same procedure is
came to represent approximately 90 per cent of all litigated
often followed in employment applications, and also for
cases, and the medical privilege penetrated these cases. As
disability benefits, pensions, and compensation claims.
a consequence, insurance interests came into conflict with
Such a waiver by contract is generally upheld. This device
the privilege. Furthermore, strong antipathetic comment
is particularly useful to the insurer in those states where
on the part of the authorities in the law of evidence con-
the termination-by-death rule does not prevail. For large
tributed to the privilege’s unpopularity at law. Surveys of
life insurance policies, the insured is required to undergo
decisions of appellate courts revealed that, for one reason
a medical examination by the company’s physician. As a
or another, the privilege was held not to shield the physi-
result, most undesirable risks are eliminated and the prob-
cian–patient communication (DeWitt 1958).
lem of the medical privilege is diminished in importance.
In one way or another, the privilege was circumvented
by an exception or waiver. Moreover, privileges are nar-
rowly interpreted as they go against the general principle State laws on psychotherapy privileges
that the law is entitled to everyone’s testimony.
In suits for personal injuries – the most important area Finding that the medical privilege provided little or
where the privilege is involved – it is considered waived no shield, the Group for the Advancement of Psychiatry
138 Legal regulation of psychiatric practice
in 1960 urged the enactment of a special psychiatrist–
patient privilege. In 1961, as the result of efforts of
Professor Joseph Goldstein and Dr. Jay Katz of the Yale
Law School, Connecticut adopted a psychotherapist–
patient privilege that became the model of statutes
adopted in all of the states and proposed for the Federal
Rules of Evidence of 1975. The following is a typical
statute.
(a) Definitions
• A ‘patient’ is a person who consults or is examined
or interviewed by a psychotherapist.
• A ‘psychotherapist’ is (A) a person authorized to
practice medicine in any state or nation, or reason-
ably believed by the patient so to be, while engaged in
the diagnosis or treatment of a mental or emotional
condition, including drug addiction; or (B) a person
licensed or certified as a psychologist under the laws
of any state or nation, while similarly engaged.
• A communication is ‘confidential’ if not intended
to be disclosed to third persons other than those
present to further the interest of the patient in the
consultation, examination, or interview, or persons
reasonably necessary for the transmission of the
communication, or persons who are participating
in the diagnosis and treatment under the direction
of the psychotherapist, including members of the
patient’s family.
(b) General rule of privilege. A patient has a privilege to
refuse to disclose and to prevent another person from
disclosing confidential communications, made for the
purposes of diagnosis or treatment of his/her mental
or emotional condition, including drug addiction,
among him/herself, his/her psychotherapist, or per-
sons who are participating in the diagnosis or treat-
ment under the direction of the psychotherapist,
including members of the patient’s family.
(c) Who may claim the privilege. The privilege may be
claimed by the patient, by his/her guardian or conser-
vator, or by the personal representative of a deceased
patient. The person who was the psychotherapist may
claim the privilege but only on behalf of the patient.
His or her authority to do so is presumed in the
absence of evidence to the contrary.
(d) Exceptions
• Proceedings for hospitalization. There is no privilege
under this rule for communications relevant to an
issue in proceedings to hospitalize the patient for
mental illness, if the psychotherapist in the course
of diagnosis or treatment has determined that the
patient is in need of hospitalization.
• Examination by order of judge. If the judge orders an
examination of the mental or emotional condition
of the patient, communications made in the course
thereof are not privileged under this rule with respect
to the particular purpose for which the examination
is ordered unless the judge orders otherwise.
• Condition an element of claim or defense. There is no
privilege under this rule as to communications rele-
vant to an issue of the mental or emotional condi-
tion as an element of his/her claim or defense, or,
after the patient’s death, in a proceeding in which
any party relies upon the condition as an element of
his/her claim or defense.
HISTORY REPEATS
The exceptions are so comprehensive that there is scarcely
any room left for the privilege to operate. Like the medical
privilege, virtually nothing is shielded by the shield. The
exceptions include cases in which the condition of the
patient is at issue, criminal proceedings, testament con-
tests, malpractice cases, and disciplinary proceedings, as
well as other situations (Slovenko 1974; Slovenko 1998).
As in the case of medical privilege, the exception that
arises most frequently – the patient–litigant exceptions –
is where the patient relies on his or her mental condition
as an element of a claim or defense, or, after the patient’s
death, in any proceeding in which any party relies on the
condition as an element of a claim or defense. By injecting
mental condition into litigation, the patient is said to
waive the privilege, in fairness and to avoid abuses. The
adversary is entitled to learn whether the injury or distress
claimed by the patient antedated the alleged wrongdoing.
In a wrongful death action, privilege is waived in order to
establish the cause of death; for example, to rule out sui-
cide. The coroner is entitled to information about the
patient, as when suicide is involved.
Sometimes, when the testimonial privilege is asserted
by the psychiatrist, the covert aim is to avoid scrutiny of
the treatment provided. For example, in a lawsuit involv-
ing a suicide of a patient following discharge, it may be
claimed that the patient was discharged not for medical
reasons but for fiscal ones. The attorney may want to learn
whether there is a pattern of discharging patients at the
expiration of their insurance coverage. In this and other
cases, invasion of the privacy of the therapist’s patients
may be necessary to establish the allegation. The privilege
may be asserted on behalf of the patient, but it belongs to
the patient and is waivable by the patient. The state attor-
ney may have access to medical records for investigative
purposes but with the proviso that unauthorized redisclo-
sure is prohibited (Beigler 1979).
On one ground or another, the privilege has little
or no application in criminal cases. Where the defendant
pleads not guilty by reason of insanity, mental state is put
into issue, thereby waiving any privilege, as in the trial of
John W. Hinckley, Jr., the would-be assassin of President
Reagan. Some jurisdictions exclude the privilege in all
criminal cases, opening the door to medical records of the
defendant and the victim. Then too, the right under the
U.S. Constitution of a defendant in a criminal case to
summon witnesses and to obtain evidence overrides any
privilege that a victim or witnesses may have (Dershowitz

1994). Moreover, a duty to report a patient who poses a
danger to others, whether or not a report is made, under-
cuts any privilege, obliging the therapist to testify or pro-
vide information, as in the trial of the Menendez brothers
(Slovenko 1998). The same theory may be urged when a
parent sues a therapist and seeks the therapy records when
the therapist has brought about a ‘revival of memory’ that
the parent sexually abused the patient in childhood.
In another exception, involving proceedings for hos-
pitalization, the interests of both patient and public call
for departure from confidentiality. The rationale given is
that since disclosure is authorized only when the therap-
ist determines that hospitalization is needed, control
over disclosure is placed largely in the hands of a person
in whom the patient has already manifested confidence.
In actual fact, a patient opposed to hospitalization may
be angered by the breach of confidentiality. The issue of
whether disclosures by a therapist to a court-appointed
examiner were reasonably necessary to protect the inter-
ests of the patient or others is one for the jury; hence the
therapist is not entitled to summary disposition (Saur v.
Probes 1991).
In a court-ordered examination, communications are
not privileged with respect to the particular purpose for
which the examination is ordered unless the judge orders
otherwise. The privilege applies only in the case of a treat-
ing, but not an examining, psychiatrist. (The Hippocratic
oath applies only in treatment situations.) An examin-
ation done at the behest of an attorney, however, falls
under the attorney–client privilege, for in this situation
the expert is acting as an agent of the attorney.
Another exception is made in child custody cases out of
regard for the ‘best interest of the child,’ opening the door
to a wide range of evidence pertaining to the fitness of the
parents. As a general principle, the ‘best interest’ standard
overrides any psychotherapist–patient privilege, thereby
allowing access to therapy records and testimony of the
therapist. Records of treatment of a parent or child occur-
ring years ago, however, might be protected on relevancy
grounds. As one court put it,‘Testimony from a psychiatrist
who briefly treated the wife seven years ago can be of no
relevance to the wife’s present ability to care for the child’
(Peisach v. Antuna 1989). Records will likely be deemed
relevant in the case of a patient who is hospitalized during
the course of litigation, or is suicidal, or is using illegal
drugs, or is surreptitiously engaged in homosexual activity,
or is abusing the child. Indeed, reporting laws mandate that
a therapist report child abuse to the authorities. Quite
often, in child custody disputes, one spouse alleges that the
other has been abusing the child, sexually or otherwise.
California’s psychotherapist–patient privilege, a copy
of the Connecticut statute, was tested shortly after its
enactment in 1965 in a much publicized case involving
Dr. Joseph Lifschutz (In re Lifschutz 1970). The case was
featured in national news weeklies and was reported at
numerous meetings of psychiatric societies and in psy-
chiatric and psychoanalytic bulletins and newsletters.
Confidentiality and testimonial privilege 139
The Northern California Psychiatric Society made a
nationwide appeal to psychiatrists for contributions to
cover legal expenses. The American Psychoanalytic Associ-
ation and the National Association for Mental Health
filed amicus curiae briefs. Although great effort was exerted
on behalf of privilege, the case illustrates the irrele-
vancy of privilege law (as well as the irrelevancy of much
psychiatric testimony).
Joseph Housek, a high-school teacher, brought a
damage suite against John Arabian, a student, alleging an
assault that caused ‘physical injuries, pain, suffering, and
severe mental and emotional distress.’ During a depos-
ition taken by defense counsel, Housek stated that he
had received psychiatric treatment ten years earlier from
Dr. Lifschutz over a six-month period. The defendant then
sought Housek’s psychiatric records from Dr. Lifschutz.
He refused to produce any of his records, assuming there
were any, and also declined to disclose whether or not
Housek had consulted him or had been his patient.
Thereupon defendant Arabian sought a court order to
compel Dr. Lifschutz to answer questions on deposition
and to produce the subpoenaed records. The court deter-
mined that the plaintiff had put his mental and emotional
condition in issue by instituting the pending litigation,
and the statutory psychotherapist–patient privilege did
not apply. The privilege belongs to the patient – not to
the physician – and is waived by the patient as a conse-
quence of bringing suit.
Dr. Lifschutz argued a right of privacy separate from
that of any individual patient, a right derived from what
he saw as a duty not to Housek alone but to all his patients.
He argued that the disclosure of one patient’s confidential
communications causes damage to all of the therapists’
other patients. He also argued that compelling him to test-
ify, unconstitutionally impairs the practice of his profes-
sion. The court was unpersuaded. It said: ‘[W]e cannot
blind ourselves to the fact that the practice of psycho-
therapy has grown, indeed flourished, in an environment
of a non-absolute privilege.’
Statements made by a patient to a physician or a psych-
iatrist as to the symptoms and effects of his or her injury
or malady are admissible in evidence on his behalf as an
exception to the hearsay rule. Under the sporting theory
of justice it is deemed only fair that the defendant also
have the benefit of these statements when they are favor-
able to him or her. Since the privilege is intended as a shield
and not a sword, it is considered waived by the patient
when he or she makes a legal issue of his/her physical or
mental condition. Thus, when plaintiff Housek claimed
that he had suffered ‘emotional distress’ as a result of the
injuries he had suffered, the privileged status of his com-
munications with his psychiatrist was waived, said the trial
court. However, on appeal, the California Supreme Court
doubted that ‘the 10-year-old therapeutic treatment
sought to be discovered from Dr. Lifschutz would be
sufficiently relevant to a typical claim of “mental distress”
to bring it within the exception.’
140 Legal regulation of psychiatric practice
Because the real test is one of relevancy or materiality
(which arises regarding all evidence in every trial), it must
be asked: What are the material issues, and what is rele-
vant or competent to establish them? In other words, does
the item of evidence tend to prove that precise contention
or fact which is sought to be proved? In every case where
the testimony or records of a physician or psychotherapist
have been required by a court, it was because the evidence
was deemed relevant or material to an issue in the case.
As a consequence, in the last analysis, the confidentiality
of a physician–patient or psychotherapist–patient com-
munication is protected from disclosure in a courtroom
only by a showing that the communication could have no
relevance or materiality to the issues in the case, or that it
is unduly prejudicial.
A motion to quash a subpoena is in order when other
evidence more relevant and material is available, or
would be less intrusive to obtain. Such a procedure might
even protect a patient from having to state in discovery
processes whether or not he or she ever saw a psych-
iatrist. At best, the privilege covers communications, not
the identity of a patient. Quite often, mental health pro-
fessionals and others automatically give up records sim-
ply because a subpoena has arrived in the mail, without
realizing that a subpoena is not a court order. Therapists
often assume that a subpoena is an order of the court and
they respond as though they are required to comply.
Actually, subpoenas are issued by an attorney without
court review. The therapist has the right – nay, obligation –
to assert the therapist–patient privilege on behalf of the
patient, at least until such time as the patient has had
the opportunity to be notified. The therapist should alert
the patient’s attorney, who may file a motion to quash the
subpoena or to obtain a protective order limiting disclos-
ure to that which is relevant and necessary. A privilege
must be asserted in a timely fashion in order to prevent
discovery; a privilege not so asserted is waived. The priv-
ilege is waived when the party releases the records to the
opposing attorney or files a witness list naming the treat-
ing physician. Once the privilege has been waived, the
physician is like any other witness; his or her duty is to
tell the truth.
Federal law on psychotherapy privileges
The Federal Rules of Evidence, when adopted in 1975,
omitted a medical privilege, given the numerous excep-
tions that had been made to it. Its Advisory Committee,
however, recommended a psychotherapist–patient priv-
ilege, modeled on the Connecticut law, though the
proposal, along with several others, evoked consider-
able criticism. Two committees of the American Bar Asso-
ciation recommended to the A.B.A. House of Delegates
‘the complete abolition of any and all privilege in
the physician–patient area including the proposed
“psychotherapist–patient privilege.”’ The Committee on
the Judiciary of the House of Representatives, after exten-
sive hearings, recommended and the House approved the
scrapping of all proposed rules on privileges and left the
federal law of privileges unchanged, to wit, that the fed-
eral courts are to apply the state’s privilege law in actions
founded upon a state-created right or defense, while in
other civil cases and in criminal cases, according to Rule
501, the principles of the common law, as interpreted by
the federal courts in ‘the light of reason and experience,’
would apply. In subsequent years the federal courts in
‘the light of reason and experience’ adopted only an
attorney–client privilege and a marital privilege, but by
legislation all fifty states and the District of Columbia
adopted some form of psychotherapist privilege (Advisory
Committee 1975).
In subsequent years, the U.S. Second, Sixth, and
Seventh Circuit Court of Appeals held that ‘reason and
experience’ compel the recognition of the psycho-
therapist–patient privilege in both civil and criminal
cases. In contrast, the Fifth, Ninth, and Eleventh Circuits
rejected the privilege. Given the conflict among the
circuits, the U.S. Supreme Court granted certiorari in
Jaffee v. Redmond (1996). In this civil rights case, coming
out of the Seventh Circuit, the surviving family members
of a man who was shot and killed by a police officer
sought the therapy records of the officer.
Mary Lu Redmond, a police officer in an Illinois town,
fatally shot Ricky Allen after responding to a report of a
disturbance at an apartment complex. She said she shot
Allen because he was holding a butcher’s knife and was
about to stab another man, but Allen’s mother and other
relatives alleged that he was unarmed. Redmond had
undergone counseling with a licensed clinical social
worker after the shooting, and Allen’s relatives sought to
have communications between Redmond and the social
worker divulged. Both Redmond and the social worker
refused, and the trial judge told jurors they could presume
the information would be unfavorable to both Redmond
and the town. The Seventh Circuit ordered a new trial.
It upheld privilege under Rule 501 of the Federal Rules of
Evidence because the ‘key to successful treatment lies in
the ability of patients to communicate freely without fear
of public disclosure.’
The Seventh Circuit said that the privilege was not
absolute and should be determined by balancing the inter-
ests protected by shielding the evidence sought with those
advanced by the disclosure. In this case, the court found in
favor of applying the privilege, noting the strong interest
in encouraging officers who are frequently forced to experi-
ence traumatic events by the nature of their work to seek
qualified professional help. At the same time, the court
noted that there were many witnesses to the shooting, and
the plaintiffs’ need for the officer’s personal innermost
thoughts about the shooting were cumulative at best,
compared to the substantial nature of the officer’s privacy
interest. So, once again, privilege or no privilege, the out-
come depended essentially on relevancy or materiality.

In oral argument before the U.S. Supreme Court,
these issues were raised:
1 Do the Federal Rules of Civil Procedure provide trial
judges with adequate tools to protect privacy interests
involved in confidential communications with a
psychotherapist without creation of new evidentiary
psychotherapist–patient privilege under the Federal
Rules of Evidence?
2 Should any privilege for psychotherapist–patient
communications be extended to social workers, rather
than being limited to psychiatrists and clinical
psychologists?
3 Should a psychotherapist–patient privilege be recog-
nized and, if so, what would be the scope of the
privilege?
In the course of oral argument Justice Scalia asked;
‘If somebody comes up to me and, let’s say, my nephew
comes up to me and says, “You know, Unc, I want to tell
you something in strictest confidence,” and I say,“Yes, you
tell me that, I promise you I won’t tell this to anybody.” Is
that enough that I’ve undertaken a duty of confidentiality
to justify the creation of a privilege?’ And Justice Breyer
asked, ‘Why in logic or policy distinguish between phys-
icians who treat physical problems and psychotherapists?
Is there any reason in logic or policy, is there any reason,
other than what the courts have held? I’m not interested,
for this question, what courts have held in the past. I’m
interested in whether there is a reason in logic or policy
for drawing the line that I just referred to.’
In its decision the Supreme Court declared the priv-
ilege to be absolute, or so it said, concluding that any-
thing else would be worthless. ‘Making the promise of
confidentiality contingent upon a trial judge’s later evalu-
ation of the relative importance of the patient’s interest in
privacy and the evidentiary need for disclosure would
eviscerate the effectiveness of the privilege,’ Justice Stevens
wrote for the majority. The decision went further than the
appellate decision that it affirmed. The Seventh Circuit
had created not an absolute privilege but a qualified one,
to be balanced in appropriate cases by the ‘evidentiary
need for disclosure.’
Although the ruling applies generally to federal litiga-
tion, the Court found the law-enforcement context of the
case to be particularly persuasive. ‘The entire community
may suffer if police officers are not able to receive effective
counseling and treatment after traumatic incidents,’
Justice Stevens said, ‘either because trained officers leave
the profession prematurely or because those in need of
treatment remain on the job.’ Two law enforcement organ-
izations – the International Union of Police Associations
and the National Association of Police Organizations –
joined numerous organizations of mental health profes-
sionals in urging the Court to adopt the privilege. Given
that all of the states and several circuits had adopted the
privilege, it was justified in federal law, Justice Stevens
wrote, in ‘the light of reason and experience.’
Confidentiality and testimonial privilege 141
Under the ambit of the privilege, the Supreme Court
included social workers who provide counseling. The
Court noted that when Americans turn to psycho-
therapy, it is often provided by social workers who gener-
ally are less expensive that psychiatrists or psychologists.
‘Their clients often include the poor and those of modest
means who could not afford the assistance of a psych-
iatrist or psychologist,’ Justice Stevens wrote.
Justice Scalia wrote one of his fiery dissents, suggest-
ing that people would be better advised to seek advice
from their mothers than from psychiatrists, yet there is
no mother–child privilege. Justice Scalia wrote:
When is it, one must wonder, that the psychotherapist
came to play such an indispensable role in the main-
tenance of the citizenry’s mental health? For most of
history, men and women have worked out their diffi-
culties by talking to, inter alios, parents, siblings, best
friends and bartenders – none of whom was awarded
a privilege against testifying in court. Ask the average
citizen: Would your mental health be more signifi-
cantly impaired by preventing you from seeing a psy-
chotherapist, or by preventing you from getting advice
from your mom? I have little doubt what the answer
would be. Yet there is no mother–child privilege.
Justice Scalia’s suggestion that people would be better
advised to seek advice from their mothers rather than
from a psychiatrist prompted a comment in a letter to The
New York Times: ‘Apparently he has never heard the old
story of the mother who boasted about the devotion of her
son: “Not only did he buy me a condo, a Cadillac and a
mink coat, but he also pays a psychiatrist $250 a visit every
week and all he talks about is me”’ (Muravchik 1996).
Justice Scalia in his dissent argued that the privilege
would interfere with the truth-finding function of the
courts and cause the courts ‘to become themselves the
instruments of wrong.’ He wrote:
Even where it is certain that absence of the psy-
chotherapist privilege will inhibit disclosure of the
information, it is not clear to me that that is an
unacceptable state of affairs. Let us assume the very
worst in the circumstances of the present case: that
to be truthful about what was troubling her, the
police officer who sought counseling would have to
confess that she shot without reason, and wounded
an innocent man. If (again to assume the worst) such
an act constituted the crime of negligent wounding
under Illinois law, the officer would of course have
the absolute right not to admit that she shot without
reason in criminal court. But I see no reason why she
should be enabled both not to admit it in criminal
court (as a good citizen should), and to get the bene-
fits of psychotherapy by admitting it to a therapist
who cannot tell anyone else. And even less reason
why she should be enabled to deny her guilt in the
criminal trial – or in a civil trial for negligence – while
142 Legal regulation of psychiatric practice
yet obtaining the benefits of psychotherapy by con-
fessing fault to a social worker who cannot testify.
It seems to me entirely fair to say that if she wishes the
benefits of telling the truth she must also accept
the adverse consequences. To be sure, in most cases
the statements to the psychotherapist will be only
marginally relevant, and one of the purposes of the
privilege (though not one relied upon by the Court)
may be simply to spare patients needless intrusion
upon their privacy, and to spare psychotherapists
needless expenditure of their time in deposition and
trial. But surely this can be achieved by means short
of excluding even evidence that is of the most direct
and conclusive effect.
An individual who kills another may feel guilty about
it whether or not it was done in lawful self-defense or
defense of others. Expressing such feelings in the course
of therapy, however, may appear as a confession of wrong-
doing when it is used in a legal proceeding. But absolute
confidentiality is not acceptable to common sense, as
illustrated by a Michigan case involving the murder of
Dr. Deborah Iverson, an ophthalmologist. Dr. Iverson,
every Thursday morning for several years, would drive to
see her psychiatrist, Dr. Lionel Finkelstein, and would
park in an adjoining area. One Thursday morning she
disappeared after leaving his office and was found stran-
gled a distance away the next day in the backseat of her car.
As the media reported, law-enforcement officials ques-
tioned Dr. Finkelstein for possible clues. Was the patient
threatened? Did she fear someone? Apparently unsatis-
fied with their interview, the law-enforcement officials
obtained a search warrant and seized the patient’s file.
Privilege is no bar to a search warrant.
Confidentiality cannot be turned into a holy grail
without concern for good judgment in these matters. In
all cases, trust – not absolute confidentiality – has to be
the measure of confidentiality. From the file on Dr. Iverson
the law-enforcement officials learned that she was having
problems with hospital co-workers and also ‘troubles or
conflicts’ with some relatives. Using that information,
detectives focused much of their probe on relatives and
co-workers, but it shed no light on the killing. Assuredly,
the patient or the patient’s family would want law enforce-
ment to be informed about any fear that the patient may
have had of an attack (Martin 1996).
In a footnote to the majority opinion in Jaffee, Justice
Stevens, while calling the privilege absolute, recognized
that there would be situations where the privilege would
have to give way to competing demands. He wrote,
‘Although it would be premature to speculate about most
future developments in the federal psychotherapist priv-
ilege, we do not doubt that there are situations in which
the privilege must give way, for example, if a serious
threat of harm to the patient or to others can be averted
only by means of a disclosure by the therapist.’ Justice
Stevens also said, ‘Because this is the first case in which
we have recognized a psychotherapist privilege, it is nei-
ther necessary nor feasible to delineate its full contours in
a way that would govern all conceivable future questions
in this area.’ The court did not bring its decision within
constitutional territory by invoking some notion of
privacy grounded in the Constitution but instead it was
an interpretation of the Federal Rules of Evidence that
govern trials in federal courts.
As might be expected, in the wake of the Jaffee decision,
no time was lost in the setting out of exceptions. The first
Circuit in 1999 held that the nascent psychotherapist-
patient federal privilege encompasses a crime-fraud
exemption similar to that of the established attorney-
client privilege (In re Grand Jury Proceedings of Violette
1999). The decision arose out of subpoenas issued to two
psychiatrists in the course of a grand jury investigation. It
was alleged that the accused trumped up an array of dis-
abilities, which he communicated to selected healthcare
providers, who in turn provided the information to insur-
ance carriers that had underwritten credit disability poli-
cies, thus fraudulently inducing payments. As with the
attorney–client privilege, the exception applies even when
the psychiatrist is an unknowing pawn of the patient.
Inevitably, other exceptions will follow as occurred
in the case of the state-adopted privilege (Shuman and
Foote 1999). As we have noted, when push comes to shove,
the principle of relevancy or materiality rather than priv-
ilege provides the protection of confidentiality. And, we
would emphasize, because relevancy or materiality are
elastic terms, given to interpretation, the therapist should
withhold information until the patient consents or the
court orders disclosure (and, of course, a subpoena is not
a court order). The courts tend to find communications
in therapy irrelevant, immaterial, or prejudicial, and do
not call for their production.
In any event, psychotherapists were enthused by the
news of the Supreme Court’s decision in Jaffee – at least
it did not deflate the myth in the public mind and in the
mind of therapists that the privilege is a solid shield.
Given the extensive publicity to decisions of the Supreme
Court, a decision against privilege would have punctured
the myth of privilege, though in practice, privilege or no
privilege, the outcome is usually the same.
Military law
In the military, until recently, no privilege whatsoever
was recognized for either the physician–patient or psy-
chotherapist–patient relationship, regardless of whether
the physician or therapist is military or civilian. The basis
for not extending privilege to the relationship is that the
harm done to the relationship by disclosure is considered
of less seriousness than the harm done by non-disclosure
to the security of military order and justice. Then, in late
1999, President Clinton signed an executive order extend-
ing a psychotherapist–patient privilege to court-martial

proceedings. The definition of psychotherapist in the
amended Military Code of Justice encompasses psych-
iatrists, clinical psychologists, clinical social workers, and
assistants to a psychotherapist (assistants are people
whom the psychotherapist assigns to provide profes-
sional service to a patient).
This addition to the Uniform Code of Military Justice,
known as Rule 513, does not extend the shield to any
aspects of military life other than courts-martial. In discip-
linary or administrative proceedings that do not come to
trial, such as those involving dismissal of service members
because they are gay, psychiatrists and other mental health
professionals may still be subject to orders to provide
information on a soldier’s sexuality. The privilege, more-
over, does not hold when the patient is dead, even if his or
her family wishes the confidentiality to be maintained.
Military personnel also lose the privilege when any com-
munication with their therapist contains evidence of
spouse or child abuse, or when federal, state, or military
law specifically exempts such abuse allegations from confi-
dentiality protection. Additional exclusions allowed under
the new rule occur in cases in which a therapist believes
that a patient communicates intent to commit ‘fraud or
crime,’ and when the information is ‘necessary to ensure
the safety and security of military personnel, military
dependents, military property, classified information, or
the accomplishment of a military mission.’ The specific
interpretation of the limits of these exclusions is left to the
discretion of military judges who can thus choose to view
them broadly or narrowly on a case-by-case basis. In sum
and substance, the exceptions viscerate the privilege.
THE OUT-OF-COURT SCENARIO
The Task Force on Confidentiality of the American
Psychiatric Association reported some years ago that
although psychiatrists are more worried about demands
for information that emanate from courts, the most fre-
quent demands are made by insurers who cannot compel
disclosure but who can withhold a benefit without it
(American Psychiatric Association 1978). To provide cov-
erage, an insurance carrier must be able to obtain infor-
mation with which it can assess the administration and
cost of programs. Having the medical model in mind,
insurers expect information comparable to that received
for physical disorders. Apart from statutory disclosure
requirements and judicial compulsion, there is no legal
obligation to furnish information, even to law-enforce-
ment officials. In the usual case, patients themselves make
disclosures or authorize their psychiatrist to make them
so as to receive a benefit, such as employment, welfare, or
insurance. Unless justification for disclosure can be estab-
lished, a breach of confidentiality in the out-of-court
scenario may even result in a tort action for defamation or
invasion of privacy. Even disclosure of the fact that an
Confidentiality and testimonial privilege 143
individual is a patient may constitute an invasion of
privacy. (Anderson v. Strong Memorial Hospital 1989).
The supervisory process provides another challenge
to the concept of confidentiality. Quality control necessi-
tates a review of individual patients and therapists and
requires discriminating disclosure. The therapist in train-
ing must breach the confidence of a patient in order to
discuss the case with a supervisor. Patients must be
informed of the presence and role of the supervisor.
Since confidentiality is intended to benefit patients,
and not to harm them, modification of the rules on con-
fidentiality have been made in nearly all jurisdictions to
allow free exchange of information among public mental
health agencies involved in a patient’s treatment, even
without the patient’s consent. In the discharge of a patient,
information must be provided to the new caretaker, for
example, a foster home; the foster family needs to know
what symptoms to look for in case of deterioration of the
patient.
In many instances, however, confidentiality has been
interpreted as a holy grail. As a result, for example, families
who wish to assist mentally ill relatives who may be per-
manently or periodically homeless find that confidential-
ity is an obstacle to getting in contact with their family
members. Hospitals or outpatient programs often decline
to acknowledge that a particular person is enrolled, even
when the family has been notified by the police that this
is the case.
Only a few states give law-enforcement agencies mental
health information for background checks on prospective
gun buyers. Now, fueled by a number of shootings, there is
a growing debate pitting public-safety concerns against
the rights of the mentally ill (Butterfield 2000).
Confidentiality is also an obstacle to research, but in
some measure it gives way to research. The Michigan
Mental Health Code, for example, provides that infor-
mation shall be disclosed ‘as necessary for the purpose of
outside research evaluation, accreditation, or statistical
compilation, provided that the person who is the subject
of the information can be identified from the disclosed
information only when such information is sought or
when preventing such identification would clearly be
impractical, but in no event when the subject of the
information is likely to be harmed by such identification’
(§ 330.1748).
Writing about a patient for publication presents
another problem of confidentiality. In general, a profes-
sional person has multiple loyalties – to the client, to soci-
ety, and to the profession. Through writing, professionals
share acquired knowledge and experience, providing
information that may be of value to other professionals
and to the public generally. However, in the case of psych-
iatry, it is difficult to write about a patient without breach-
ing the confidentiality of that relationship. Unlike physical
ailments, which can be discussed without anyone recog-
nizing the patient, a psychiatric history usually entails
distinguishing characteristics (Slovenko 1983).
144 Legal regulation of psychiatric practice
The matter has come before the courts. In the case of
Doe v. Roe (so-called to protect the privacy of the con-
tending parties), the plaintiff, a university professor of
social work, complained that the publication of a book
written by her therapist violated her right of privacy.
The case went to the U.S. Supreme Court, but it remanded
the case to the trial court in New York, the forum where
the case arose (Doe v. Roe 1975). The trial court was to
decide in that case what is legitimate disguise of a patient,
what is proper consent, and what degree of disguise
requires consent. Over a year later the trial court handed
down an award of compensation for losses and anguish
and enjoined further circulation of the book. In a 22-
page decision, the trial judge wrote: ‘A physician who
enters into an agreement with a patient to provide
medical attention, impliedly covenants to keep in confi-
dence all disclosures made by the patient concerning the
patient’s physical or mental condition as well as matters
discovered by the physician in the course of examination
or treatment. This is particularly and necessarily true of
the psychiatric relationship’ (Doe v. Roe 1977).
In response to the defendant’s contention that the obli-
gation of confidentiality is not absolute but must give way
before overriding public interest, such as a scientific publi-
cation, the court said that ‘an important scientific discov-
ery would take precedence over a patient’s privilege of
nondisclosure,’ but in this case, the court ruled, the defend-
ant failed in its proof that the book represented a major
contribution to scientific knowledge (Doe v. Roe 1977).
More recently, in a number of articles, Dr. Martin Orne
has been both praised and condemned for releasing
records (and audiotapes) to Diane Wood Middlebrook for
a biography of his patient Anne Sexton, the gifted writer
who committed suicide. The dead, after all, are dead, but
survivors may suffer defamation, and patients in therapy
may wonder about the confidentiality of their sessions.
Dr. Orne, justifying his actions, claimed that Sexton told
him ‘to keep the tapes and use them in any way that [he]
saw could help others who were troubled.’ Dr. Orne also
was quoted as saying that Sexton had begun her career as a
confessional poet when he suggested ‘that other troubled
individuals might be helped by her writing about her
experiences in therapy’ (Symposium 1992). One psych-
iatrist asked, ‘Does this mean that Sexton’s wish was the
result of Orne’s suggestion? Was her permission iatro-
genic?’ (Nakdimen 1991). In many states, the decedent’s
executor has the right to waive the privilege, although in
some a court order is required. It was the assessment of
Dr. Orne and Sexton’s executors that she did not want her
private life buried with her.
Is a patient’s consent to publication given ambiva-
lently? Can a patient ever be fully aware, in advance, of
what will be disclosed? Must a patient review the com-
pleted manuscript in order to be fully informed? A patient
who is competent and consents with full knowledge may
be considered a joint venturer (although not sharing in
the profits). Without adequate disguise, consent of the
patient to publication is required. In all matters, the law
distinguishes between a particular retrospective waiver
of confidentiality and a general prospective one. General
prospective waivers, which are now quite commonly
obtained in medical and psychiatric practice, may not
stand up when challenged, even though they are written.
The more the hazards are unknown, the more a prospect-
ive waiver may be said to be void for want of an informed
consent. However, such waivers may dissuade the legally
unsophisticated from making complaints.
Another problem surrounding confidentiality is the
issue of disclosure to safeguard the patient or others. There
are times, albeit few in number, when reporting by a psy-
chotherapist may be crucial. Conflict may arise between
the therapist’s responsibility to an individual patient and
to the public safety. In a number of situations, reporting
by the physician to the authorities is specifically required
by law. The classic example of mandated reporting is the
patient who is determined to have epilepsy and who
operates a motor vehicle. Other notable examples of
mandated reporting include dangerous or contagious
diseases, firearm and knife wounds, and child abuse.
In contrast to mandatory reporting laws stands legis-
lation that mandates non-disclosures of medical infor-
mation. Amendments to the Drug Abuse and Treatment
Acts and Comprehensive Alcohol Abuse and Alcoholism
Prevention Treatment and Rehabilitation Act, and imple-
menting regulations, impose rigorous limitations on the
disclosure of information from alcohol and drug abuse
treatment programs. In various states, legislation pro-
hibits the disclosure of the results of a human immuno-
deficiency virus (HIV) test except to the subject of the test,
and then only if the subject agrees to being informed. In
Hillman v. Columbia County (1991), the Wisconsin Court
of Appeals held that a jail inmate had a cause of action
against jail employees for disclosing results of his HIV
test to other inmates.
As a general principle, a person has no legal duty to
come to the aid of another unless there is a specific rela-
tionship giving rise to that duty. In the much publicized
case of Tarasoff v. Regents of University of California (1976),
the California Supreme Court held that the therapist–
patient relationship entails sufficient involvement by the
therapist to impose on him or her an obligation of care
for the safety not only of the patient but also of others.
The discharge of the duty imposed on the therapist to
protect an intended victim against the danger that a
patient may present may take one or more various steps
depending on the nature of the case (Slovenko 1975;
Slovenko 1989). In People v. Wharton (1991), where the
defendant was convicted for first-degree murder and
sentenced to death, the California Supreme Court held
that the psychotherapist’s warning to the potential victim
of the danger posed by the defendant and the defendant’s
statements made in therapy that caused or triggered the
warning were not covered by the psychotherapist–
patient privilege.

Actually, long before Tarasoff, it had been the practice
of psychiatrists to warn appropriate persons or law-
enforcement authorities when a patient presented a dis-
tinct immediate threat to self or others. In its 1978 Position
Statement on Confidentiality, the American Psychiatric
Association set out examples of clinical situations in
which confidentiality might be broken. The APA called
on clinicians to apply common sense and good judgment
to the careful evaluation of the patient and the issues
‘from the standpoint of their purposes and values’ and to
view the issues as would an impartial sympathetic observer.
Examples of situations in which one would conclude that
breaking confidentiality was warranted included:
1 A patient will probably commit murder; the act can be
stopped only by the intervention of the psychiatrist.
2 A patient will probably commit suicide; the act can be
stopped only by the intervention of the psychiatrist.
3 A patient, such as a bus driver or airplane pilot, who is
charged with serious responsibility, shows marked
impairment of judgment.
The responsibility of psychiatrists for maintaining con-
fidentiality does not negate their responsibility to third
persons or to patients, to the rest of the profession, and to
science. No patient has a right to exploit a confidential
relationship in order to entrap the psychiatrist as a partici-
pant in criminal activity or in a suicide. Psychiatrists and
other professionals have an obligation to practice respon-
sibly. Trust – not absolute confidentiality – is the corner-
stone of psychotherapy. Typically, as a last resort, the
therapist may say something like, ‘You’re losing control.
I must do something about it.’
CONCLUSION
Rules cannot fairly say when the therapist may divulge,
should divulge, or must divulge. Such decisions are not
easy to delineate and require the constant application of
common sense and sound clinical judgment.
REFERENCES
Advisory Committee Notes. 1975. Federal Rules of
Evidence. Proposed Rule 504.
American Psychiatric Association 1978. Position Statement
on Confidentiality. Washington, DC: American
Psychiatric Association.
Anderson v. Strong Memorial Hospital, 140 Misc. 2d 770,
531, N.Y.S.2d 735 (1988), aff’d, 151 App. Div. 2d 1033,
542 N.Y.S.2d 96 (1989).
Beigler, J.S. 1979. Editorial: The APA model law on
confidentiality. American Journal of Psychiatry
136, 71–3.
Confidentiality and testimonial privilege 145
Butterfield, F. 2000. Hole in gun control law lets mentally
ill through. New York Times, April 11, p. 1.
Dershowitz, A. 1994: The Advocate’s Devil. New York:
Warner Books.
Dewitt, C. 1958: Privileged Communication Between
Physician and Patient. Springfield, IL: Charles C.
Thomas.
Doe v. Roe, 345 N.Y.S.2d 560, aff’d, 352 N.Y.S.2d 626, 307
N.E.2d 823, cert. granted, 417 U.S. 907, cert. dismissed,
420 U.S. 307 (1975).
Doe v. Roe, 400 N.Y.S.2d 668 (N.Y. Cy. 1977).
Drug Abuse and Treatment Acts and Comprehensive
Alcohol Abuse and Alcoholism Prevention, Treatment,
and Rehabilitation Act, 42 U.S.C.A. §§ 290dd-3,
390ee-3, and implementing regulations, 42 C.F.R.
Part 2 (1985).
Federal Rules of Evidence, Proposed Rule 504 (1975).
Hillman v. Columbia County, 474 N.W.2d 913 (Wis. App.
1991).
In re Grand Jury Proceedings of Violette, 183 F.3d 71
(1st Cir. 1999).
In re Lifshutz, 2 Cal. 3d 415, 467 P.2d 557, 85 Cal Rptr. 829
(1970).
Jaffee v. Redmond, 518 U.S. 1 (1996).
Martin, J. 1996. Slain doctor talked of conflicts. Detroit
Free Press, June 20, p. B-1.
Michigan Mental Health Code, § 330.1748.
Muravchik, E. 1996 (letter). New York Times, June 19, p. 14.
Nakdimen, K. 1991. Confidentiality (letter). Psychiatric
News, November 1, p. 21.
Peisach v. Antuna, 539 So. 2d 544 (Fla. App. 3d Dist.
1989).
People v. Wharton, 53 Ca. 3d 522, 809 P. 2d 29, 280 Cal.
Rptr. 631 (1991).
Saur v. Probes, 190 Mich. App. 636 (1991).
Shuman, D.W., Foote, W. 1999. Jaffee v. Redmond’s impact:
life after the Supreme Court’s recognition of a
psychotherapist–patient privilege. Professional
Psychology, Research, and Practice 30, 479–87.
Slovenko, R. 1974. Psychotherapist–patient testimonial
privilege: a picture of misguided hope. Catholic
University Law Review 23, 649–73.
Slovenko, R. 1975. Psychotherapy and confidentiality.
Cleveland State Law Review 24, 375–96.
Slovenko, R. 1983. The hazards of writing or disclosing
information in psychiatry. Behavioral Science and Law
1, 109–27.
Slovenko, R. 1989. Misadventures of psychiatry
with the law. Journal of Psychiatry and Law 17,
115–56.
Slovenko, R. 1998: Psychotherapy and Confidentiality.
Springfield, IL: Charles C. Thomas.
Symposium. 1992. Privacy, professionalism and psychiatry.
Transaction/Social Science and Modern Society 29, 5–29.
Tarasoff v. Regents of University of California, 529 P.2d
342, 118 Cal. Rptr. 129 (1974), vacated, 17 Cal. 3d 425,
551 P.2d 334, 131 Cal. Rptr. 14 (1976).
146 Legal regulation of psychiatric practice
Suggested reading
Slovenko, R. 1960. Psychiatry and a second look at
the medical privilege. Wayne Law Review 6, 175–203.
Slovenko, R. 1973: Psychiatry and Law. Boston: Little,
Brown, 61–74, 434–56.
Slovenko, R. 1977. Group psychotherapy: privileged
communication and confidentiality. Journal of
Psychiatry and Law 5, 405–66.
Slovenko, R., Grossman, M. 1985: Testimonial privilege
and confidentiality. In Michels, R., et al. (eds),
Psychiatry, volume 3. Philadelphia: Lippincott, 1–17.

The duty to protect
ALAN R. FELTHOUS AND CLAUDIA KACHIGIAN
Psychiatrists and other mental health professionals can,
under certain circumstances, be liable in a malpractice
claim when a patient seriously harms another person.
When a victim of patient-inflicted violence or the family
or estate of a deceased victim files a lawsuit based on the
psychiatrist’s negligent failure to protect, the forensic
psychiatrist may be called on to review the case to deter-
mine whether the care given was negligent, substandard,
or failed to satisfy fiduciary or legal duties, and whether
the errors might have led to the harm inflicted. The con-
sulting forensic psychiatrist must be familiar with relevant
legal cases, statutory law, and the professional standard of
practice.
LAW FROM THE COURTS
There is a common perception that the duty to protect
was inaugurated by the Tarasoff v. Regents of the University
of California case in California (1974, 1976). This is not
completely accurate, however. Both before and after
Tarasoff, without reliance on the Tarasoff principle,
courts have addressed cases of wrongful discharge from
psychiatric hospitals and patient-inflicted harm to other
persons (e.g., Hicks v. United States 1975; Homer v. State
1974, Selmer v. Psychiatric Institute of Washington, D.C.
1976). Related claims were failure to control or failure to
commit a patient who was already under custodial con-
trol (VandeCreek and Knapp 1989). When a hospitalized
mental patient is discharged and then seriously harms or
kills another person, questions are raised about whether
the release was accomplished in a lawful, prudent, and
clinically acceptable manner. If the physician or hospital
released the patient negligently and such harm resulted,
the victim or victim’s family may be entitled to recover
damages. Courts have favored the plaintiff in some of
these cases even without proof of malpractice (Felthous
1985), but the consulting forensic psychiatrist usually
remains on firm ground by analyzing the case within the
framework of malpractice law.
19
According to common law in the United States, one
person – such as a psychiatrist or psychotherapist – is
not responsible for the harmful violence that a second
person – such as a patient – inflicts upon a third, unless
the first person had a special or controlling relation with
either the second or the third person (Restatement
[Second] of Torts, 1965). Hospital administrators and
physicians were thought to have considerable control
over patients and were sometimes held accountable for
discharge decisions with adverse outcome. As hospital
care became more restricted in favor of community
treatment programs, however, the prospect of treating
outpatients who are marginally mentally ill or potentially
violent became more commonplace.
In 1974, the Supreme Court of California, in its
Tarasoff I decision, articulated the duty to warn. ‘[When]
a doctor or therapist, in the exercise of his professional
skill and knowledge, determines, or should determine,
that a warning is essential to avert danger … he incurs a
legal obligation to give a warning.’ Therefore, therapists
in California had a legal duty to notify an identifiable
victim and/or the police when a patient presented a danger
of seriously harming another person and when such dis-
closures were the most reasonable measures to prevent
violence. Several organizations, including the American
Psychiatric Association, criticized this new law, so the
court reheard the case. The second case, Tarasoff II (here-
after designated Tarasoff ), in 1976, vacated Tarasoff I,
replacing its ‘duty to warn’ with a ‘duty to protect,’ which
emphasized warnings but also allowed for other pro-
tective actions.
Through its 1976 Tarasoff decision, the Supreme Court
of California extended liability to the world of outpatient
care and, more explicitly than before, articulated a ther-
apist’s duty to protect third persons. The psychiatrist who
reviews malpractice claims of failure to protect should be
familiar with Tarasoff and other landmark cases that
advanced or developed legal principles to deal with pro-
tecting other people (e.g., McIntosh v. Milano 1979; Lipari
v. Sears, Roebuck and Co. 1980; Hedlund v. Superior Court
148 Legal regulation of psychiatric practice
of Orange County 1983; Jablonski by Pauls v. United States
1983; Petersen v. State 1983; Naidu v. Laird 1988), as well
as the case and statutory law in the relevant jurisdiction.
Other articles and books have summarized these cases.
Here, emphasis is placed on the principles enunciated,
and not the details of each case. The Tarasoff principle is
as follows:
When a psychotherapist determines, or pursuant to
the standards of his profession should determine,
that his patient presents a serious danger of violence
to another, he incurs an obligation to use reasonable
care to protect the intended victim against such dan-
ger. The discharge of this duty may require the ther-
apist to take one or more of various steps, depending
on the nature of the case. Thus, it may call for him to
warn the intended victim or others likely to apprise
the victim of the danger, to notify the police, or to
take whatever other steps are reasonably necessary
under the circumstances (p. 431).
The Tarasoff decision created responsibilities and liabil-
ities for therapists who have little actual control over their
patients. In some instances, the principle could pertain to
patients who could not be civilly committed. Although
Tarasoff is the most widely known case on the duty to
protect, many other courts addressed the issue of protect-
ing third persons, and they did not uniformly adopt the
same principle.
Some courts adopted the ‘specificity rule.’ According to
this principle, the duty to protect arises only if a specific
threat is made against an identifiable victim (e.g., Brady v.
Hopper 1984; White v. United States 1986). Other courts
found that an identifiable victim was not necessary for
the duty to arise (Lipari v. Sears, Roebuck and Co. 1980;
Durflinger v. Artiles 1981; Petersen v. State 1983; Naidu v.
Laird 1988). The therapist may have a duty to protect even
with regard to automobile accidents caused by his patient if
the violent event was considered to be foreseeable (Felthous
1990). Victims of the violence need not be identifiable,
nor is a threat required for the duty to arise.
Some post-Tarasoff cases found a duty to protect
without reliance on the legal reasoning of Tarasoff (Cain
v. Rijken 1986; Schuster v. Altenberg 1988). The Michigan
Supreme Court held that psychiatrists in a state hospital
have sovereign immunity from liability for failure to pro-
tect third persons (Canon v. Thumudo 1985). Another
court refuted the Tarasoff principle, finding that without
the control of hospitalization, there is no duty to protect
(unless the therapist actually predicts violence) (Hasenei
v. United States 1982). The Ohio Supreme Court deferred
to professional judgment, and formulated a standard for
determining whether professional judgment was exer-
cised (Littleton v. Good Samaritan Hospital 1988).
If the 1980s saw expanding diversification of duty to
protect principles, courts during the last decade of the cen-
tury increasingly tended to reject or retreat from Tarasoff
(Felthous and Kachigian 2001). Courts in the 1990s found
no duty to warn (Boynton v. Burgess 1991; Green v. Ross
1997; Evans v. United States 1995; Thapar v. Zezulka 1999);
no duty to control a voluntary patient (Burchfield v. United
States 1990; Moye v. United States 1990; Santa Cruz v. N.W.
Dade Com. Health Ctr 1991; Boulanger v. Pol 1995; Nasser
v. Parker 1995; Rousey v. United States 1997) or courts
acknowledged but strictly limited the circumstances under
which protective duties could be incurred (Charleston v.
Larson 1998; Emerich v. Philadelphia Center for Human
Development 1998). Nonetheless, other courts in this same
decade adopted the Tarasoff principle concerning outpa-
tients (Estates of Morgan v. Fairfield Family Counseling Ctr.
1997) or extended a Tarasoff-like duty to protect to other
applications [see, for example Reisner v. Regents of the
University of California 1995 (informing a patient of her
HIV status to protect third parties from infection); Pate v.
Threlkel 1995 (informing a patient of the genetic heritabil-
ity of a cancerous tumor to protect potential offspring);
Almonte v. New York Medical College 1994 (rendering
instructors in medical schools potentially responsible for
protecting patients from harm inflicted by residents); and
People v. Wharton 1991 and Menendez v. Superior Court
1992 (forcing testimony by therapists in the criminal pros-
ecution of their patients)].
The important point is that the consulting forensic
psychiatrist must become familiar with the relevant case
law of the jurisdiction in which treatment was rendered.
LAW FROM THE LEGISLATURES
Twenty-eight states now have statutes that explicitly
permit or establish a duty for psychiatrists to make some
type of disclosure to protect those threatened by their
patients. All but two of these statutes [S.C. Code Ann. S.
44-22-90 (Law. Co-op. 1991) and W.Va. Code s. 27-3-1
(1977)] present options for dealing with patients posing
a threat (Table 19.1). With the exception of that in
Texas, all the statutes allow/require warning the potential
victims. Other options include informing law enforce-
ment or hospitalizing the patient. Less common options
include warning the parents of a minor (Idaho,
Mississippi, New Jersey, and Virginia), or alternatives
unique to that state. For example, in Arizona, the duty
can be fulfilled by ‘taking any other precautions that a
reasonable and prudent mental health provider would
take under the circumstances.’ Such a law avoids the criti-
cism of providing a cookbook formula, but it provides
precious little more guidance than the courts have done.
Although states vary in which mental health profes-
sionals are also included under the provisions of their
respective statutes, all the statutes herein referenced
apply to psychiatrists. In California, the statutory provi-
sion for protective disclosure simply refers to psycho-
therapists. In Louisiana, the law pertains to licensed
psychologists and licensed psychiatrists. By contrast,
Table 19.1 Statutory options for discharging the duty to protect
Warn Report to Hospitalize Attempt involuntary
State victim and/or police and/or voluntarily hospitalization Other
Arizona [Ariz. Rev. Stat. Ann § 36-517.02 (1989)] yes – yes – yes yes yes
California [CAL. Civ. Code § 43.92 (West 1985)] yes and yes – – – –
Colorado [Colo. Rev. Stat. Ann. § 13-21-117 (West 1986)] yes and yes or yesb yes yes
Delaware [DEL. Code Ann. tit. 16 § 5402 (1992)] yes and yes or yes yes –
Dist. of Columbiaa [D.C. Code Ann. § 6-2023 (1981)] yes or yes or – yes yes
Floridaa [FLA. Stat. Ann. § 456.059 (West 2000)] yes or yes – – – –
Idaho [Idaho Code § 6-1903 (1991)] yes and yes – – – yes
Illinois [IL. Rev. Stat. Ch. 405, para. 5/6-103 (1991)] yes and yes or yesb yes –
Indiana [Ind. Code § 34-30-16-2 (1998)] yes or yes or – yes yes
Kentucky [Ky. Rev. Stat. Ann § 202A.400 (Baldwin 1986)] yes and yes – – yes –
Louisiana [LA. Rev. Stat. Ann. § 9:2800.2 (West 1986)] yes and yes – – – –
Maryland [Md. Code Ann., Cts. & Jud Proc. § 5-609 (1989)] yes and yes or – yes yes
Massachusetts [Mass. Gen. Laws Ann. Ch. 123 § 36B] yes or yes or yes yes –
Michigan [Mich. Comp. Laws Ann. § 330.1946 (West 1989)] yes and yes or yesb yesb yes
Mississippia [Miss. Code Ann. § 41-21-97 (1991)] yes or yes – – – yes
Montana [Mont. Code Ann. § 27-1-1102 (1987)] yes and yes – – – –
Nebraska [Neb. Rev. Stat. § 329:31 (1994)] yes and yes – – – –
New Hampshire [N.H. Rev. Stat. Ann § 329:31 (1994)] yes or yes or – yes –
New Jersey [N.J. Stat. Ann § 2A:62A-17 (West 1991)] yes or yes or yes yes yes
NewYorka [N.Y. [Mental Hygiene] Law § 33.13 (McKinney 1985)] yes and yes – – – –
Ohioa [Ohio Rev. Code Ann § 2305.51 (Baldwin 1999)] yes and yes or yes yes yes
Tennessee [Tenn. Code Ann. § 33-3-207 (1989)] yes – – or yes yes –
Texasa [Tex. [Health & Safety] Code Ann § 611.004 (West 1991)] – – yes – – – yes
Utah [Utah Code Ann § 78-14a-101 (1988)] yes and yes – – – –
Virginia [Va. Code Ann. § 54.1-2400 (Michi 1994)] yes or yes or – yes yes
Washingtona [Wash. Rev. Code § 71.05.390 (1987)] yes and yes – – – –

a
Provide options for dealing with patient-expressed threats, but statute is permissive; no explicit duty to warn or protect is stated.
b
Initiation of hospitalization unspecified as voluntary or involuntary.
150 Legal regulation of psychiatric practice
the law in Indiana pertains to more than fifteen different
professions, agencies, and institutions. Other statutes not
referenced in this chapter do not pertain to psychiatrists,
but establish protective duties for other mental health
providers, such as counselors, family and marriage ther-
apists, and psychiatric nurses.
In most states, the law applies when a patient makes a
threat of physical violence against an identifiable or iden-
tified victim. Beyond the expressed threat itself, a minority
of states also have statutes requiring that the psychiatrist
determine the patient has the ability to carry out the threat.
In Florida, there is an additional requirement that the
patient will more likely than not carry out the threat in the
near future before a protective disclosure may be issued
[Fla. Stat. Ann. § 456.059 (West 1994)]. Other statutes
simply indicate that the potential violence be imminent.
New Jersey requires beyond the threat that ‘a reasonable
professional in the practitioner’s area of expertise would
believe the patient intended to carry out the threat.’ [N.J.
Stat. Ann. § 2A: 62A-16 (West 1993)]. Moreover, an explicit
threat is not necessary in New Jersey for a duty to warn
and protect to arise if: ‘the circumstances are such that a
reasonable professional in the practitioner’s area of expert-
ise would believe the patient intended to carry out an act
of imminent, serious physical violence against a readily
identifiable individual or against himself ’ (ibid). Thus,
New Jersey law, unlike protective disclosure statutes in
most states, does not restrict protective duties to situ-
ations wherein the narrower specificity rule applies.
Threats triggering the duty are variously qualified
as ‘immediate,’ ‘serious,’ ‘actual,’ or ‘specific.’ The New
Hampshire and Delaware laws include threats of prop-
erty damage, not just bodily harm.
LAW FROM BOTH COURTS AND
LEGISLATURES
A number of states now have both case and statutory law
that address a Tarasoff-like duty to warn or protect.
Familiarity with relevant case law alone is insufficient for
the forensic psychiatrist who consults on a duty to protect
case in one of these jurisdictions. Neither should the
reviewing psychiatrist feel content to examine only the
state’s protective disclosure statute. Germane law may
have been crafted by both the legislature and the courts
and includes law governing civil commitment and priv-
ileged and confidential information. It therefore behooves
the consultant to know about both statutory and judicial
law pertaining to confidentiality and the duty to protect.
Even if always necessary, and usually helpful, compari-
sons of statutory and judicial law are not always satisfac-
torily clarifying, a matter confounded by the flux of
changing public policies. Here will be cited the experi-
ence in just three states as examples: Colorado, Texas, and
Florida.
In Brady v. Hopper, the Tenth Circuit United States
Court of Appeals in 1984 affirmed the District Court’s
holding (Brady v. Hopper 1983) that brought the ‘speci-
ficity’ version of the Tarasoff principle to the state of
Colorado; that is, a duty to protect, but only where the
patient has made a specific threat against an identifiable
victim. Two years later, Colorado enacted protective dis-
closure law that codified the specificity rule. Like the
earlier federal court rulings, the statutory rule does not
acknowledge a duty to warn or protect unless the patient
makes a specific threat. This protective disclosure law,
with its immunity provision for the physician, applies to
outpatients, but not to hospitalized patients who are neg-
ligently released. Neither does this protective disclosure
law, with its attendant immunity for the physician, per-
tain to the failure to hospitalize an imminently danger-
ous and mentally ill outpatient. The issue of wrongful
discharge was brought before the Colorado Supreme
Court in Perreira v. Colorado in 1989. The court decided
that a specific threat was not necessary for the duty to
protect to occur when a violent patient is about to be dis-
charged. In Colorado, judicial and statutory law comple-
ment one another.
Texas does not have a statutory duty to warn or pro-
tect. When a physician has reason for concern that a
patient will harm another person, the state’s statute on
confidential and privileged communication permits dis-
closure, but only to medical or law enforcement person-
nel. Case law decisions of five separate (appellate) courts
appeared to support a duty to warn or protect (Williams v.
Sun Valley Hospital 1987; Kerriville State Hospital v. Clark
1995; Kehler v. Eudaly, 1996; Limon v. Gonzaba 1997;
Zezulka v. Thapar 1997), even though facts conformed to
the respective court’s rule for a duty to warn in but a sin-
gle case (Zezulka v. Thapar 1997). Despite the limitation
of the statutory provision, it appeared that a duty to warn
or protect had arrived in these five state districts, though
the scope of the duty varied somewhat depending on
which rule was adopted for determining the identi-
fiability of the patient’s intended victim (Felthous and
Scarano 1999). However, when this latter case was appealed
to the Supreme Court of Texas, the court held there was
no duty to warn in Texas (Thapar v. Zezulka 1999). More-
over, the court put psychiatrists on notice that they could
be in violation of state law protecting confidentiality if
they issue protective warnings.
The Florida experience demonstrates interactive law
deriving from court decisions based on confidentiality
law and the state’s protective disclosure statute. In Boynton
v. Burgess (1991), the District Court of Appeal for the
Third District of Florida not only rejected a Tarasoff-like
duty to warn, like the high Texas court at the end of the
decade, but the Third District also warned psychiatrists
that protective warnings would be in violation of the
confidentiality law.
Subsequently, in 1994, the Florida legislature enacted
a protective disclosure statute that, without establishing

a duty, permitted psychiatrists to issue protective dis-
closures to the victim or the police (Fla. Stat. § 455.2415
1994, amended to 456.059 in 2000). In Green v. Ross
(1997), the Second District Court did not establish a duty
to warn, because the legislature had left protective dis-
closures as permissive. However, neither did the Second
District Court advise clinicians not to warn. Owing to
Florida’s 1994 protective disclosure law, warnings were,
by then, legally permitted.
CLINICAL STANDARD OF CARE
In its brief to the Supreme Court of California regarding
Tarasoff, the American Psychiatric Association and other
amicae argued that no clinical standard existed for the
accurate prediction of clinical violence. Moreover, the
preventive efficacy of warnings and reports, the most com-
monly mentioned extra-clinical measures to avert violence,
have yet to be demonstrated empirically. Nonetheless,
when referred a duty-to-protect case involving a patient’s
violence to another person, the forensic psychiatrist must
answer the question: Was the professional standard of
care met?
Appelbaum (1985) has suggested that when encoun-
tering a potentially violent patient, the psychiatrist
should take three steps: (i) Assess the patient’s danger-
ousness; (ii) select a course of action; and (iii) implement
this plan. This three-step procedure is simple, clear, and
practical: clinicians should have little trouble accepting
it as a standard of practice. Despite the limited ability
to accurately predict patients’ future acts of violence,
clinicians should at least be capable of asking the right
questions, Appelbaum asserts.
Felthous (1999) proposed an algorithm to help psych-
iatrists in dichotomous decision making for warnings
and hospitalization as measures to prevent violence to
third parties. This algorithm requires the psychiatrist to
attempt to answer the following four questions:
1 Is the patient dangerous to others?
2 If yes, is his or her dangerousness due to serious
mental illness?
3 If not due to serious mental illness, is the dangerous-
ness imminent?
4 Are potential victims of the patient’s violence reason-
ably identifiable?
Assessment of dangerousness is a dynamic process, as
dangerousness itself ebbs and flows with internal changes
and interactions with the environment, including thera-
peutic and other interventions that are less intrusive than
warnings and hospitalization. Protective intervention,
like the prediction of violence, is more art than science;
the critical question is whether an appropriate attempt
was made at assessment and appropriate intervention.
The duty to protect 151
The potential for homicide and serious assault can be
evaluated much like suicide potential. There are many
helpful writings on the clinical assessment and safe man-
agement of potentially violent patients. Forensic psych-
iatrists should be familiar with the recommendations of
Beck (1980, 1985, 1990), Borum, Schwartz, and Swanson
(1996), Felthous (1989), Lion (1981, 1987), Lion and
Tardiff (1987), Reid and Balis (1987), Resnick and Scott
(1997), Roth (1987), Simon (1990), Tardiff (1996), Tupin
(1987) and others, but they must exercise caution in
assigning new standards of practice with corresponding
liability. A recent article by Borum and Reddy (2001) is
helpful in assessing a patient’s threat to harm a specific
person, rather than his/her ‘dangerousness’ in general.
Where a patient expressed a violent threat or homi-
cidal ideation, the consulting expert ought to consider the
following questions: How serious was any intent behind
the threat? How developed was the plan for executing the
violent impulse? Did the therapist determine whether
the threat was absolute and without alternative courses
of action? Was the threat based on likely contingencies
(e.g., ‘I will not kill that woman unless I catch her with
another man. But I fully expect to see her dating some-
one tonight.’)? Did the patient have a lethal weapon in
mind? How available was the chosen weapon? How access-
ible was the intended victim? How soon would the patient
likely carry out his or her threat? Had the patient already
taken any action towards fulfillment of the threat? Had
the patient in other ways shown a recent worsening in his
ability to control violent impulses? Had the patient acted
violently when under similar stressors in the past? Did the
patient appear to be disinhibited by substance abuse?
Overemphasis on the presence of verbal threats can
prematurely foreclose an appropriate assessment of vio-
lent potential. Consider the patient who never made a
verbal threat and swore to the psychiatrist that he or she
had no thoughts of harming anyone. Yet earlier the same
day, without provocation, he/she had severely assaulted a
neighbor, broken the windows of the neighbor’s home,
set fire to the house, and then purchased an M-16 with
several rounds of ammunition. Sometimes action speaks
louder than words. Here, an assessment of violent poten-
tial should have been made. The psychiatrist should have
also determined whether the violent impulses were
related to a particular mental disorder.
A third duty-to-warn or duty-to-protect scenario is the
patient who makes no violent threats and presents no his-
tory of deliberately aggressive behaviors. This patient is the
proverbial ‘accident waiting to happen.’ Already several
duty-to-protect cases of some importance have involved
patient-caused automobile accidents (Felthous 1990). In
some cases, the patient-drivers were afflicted with major
mental illness; in others alcohol or another chemical may
have been the main causative factor. Although courts have
not always found a duty to protect when alcohol was the
main contributor, alcoholism and intoxication statistically
show a greater association with vehicular accidents than
152 Legal regulation of psychiatric practice
other mental states and disorders. Arguably, reporting an
alcoholic driver to the state department of motor vehicles,
with a resultant driving restriction, may, in some cases,
provide the least restrictive and most effective interven-
tion, in comparison with warnings in other situations.
Nonetheless, the notion of physicians reporting alcoholic
drivers remains highly controversial (Aberdeen Medical
Group 1986).
Similarly, the expert may be asked to consider a duty
to protect where the patient is an alcoholic pilot employed
by a major commercial airline. The law has not yet
addressed this issue. Presumably, the common practice is
to honor confidentiality over public safety and report
nothing. The conscientious physician may, after careful
assessment, make a morally justifiable decision and notify
the FAA (Federal Aviation Administration). The physician
who reports then runs the risk of being sued for disclos-
ing confidential information, causing the patient-pilot to
be ‘downed’ with commensurate loss of income. None-
theless, the physician who makes a careful assessment,
determines a substantial risk, and makes a disclosure to
prevent a disastrous airplane crash should not be skew-
ered in court, because firm professional standards and
guiding laws are lacking.
The military physician whose alcoholic patient han-
dles weapon systems of mass destruction is not stymied
by this confidentiality dilemma. In the interest of public
and personnel safety, military physicians are allowed to
make protective disclosures without fear of negative
sanctions for breaching confidentiality.
The expert who addresses potential duties and
dilemmas, not yet defined by law, may feel tempted to
chart new territory by claiming a specific standard of prac-
tice. This may well be encouraged by the referring attor-
ney. Rather than sharpening the horns of this dilemma of
confidentiality versus protection, not yet established in
law or practice, the expert is advised to exercise restraint
and recognize ‘gray areas,’ which should permit profes-
sional discretion in the absence of fixed rules.
The psychiatric profession has not settled on a stand-
ard for warning victims and notifying police. Even the
APA’s model code for protecting third parties does not
advocate a duty to protect, much less a specific duty to
warn, though this code lists warnings as one of the pro-
tective actions the psychiatrist might choose to select
(Appelbaum et al. 1989). Warnings and reports have long
been allowed by ethical standards to prevent violence,
but have not been ethically prescribed. The expert may
point to a legal duty to warn, if it is prescribed by law.
Otherwise, in jurisdictions where the duty is not yet firmly
imposed, the expert, who feels compelled to offer that a
victim should have been warned, probably ought to qual-
ify this warning as their own judgment, and not insist that
it is a practice to which most of the profession would
adhere. A failure to warn is more clearly in error if it is in
violation of case or statutory law, rather than if it is a devi-
ation from a nonexistent clinical standard.
In many duty-to-protect cases, the most serious and
patent errors are clinical ones, and not the failure to take
extra-clinical measures such as warning a victim and
reporting to a law-enforcement agency. The potentially
violent patient was not evaluated carefully, not diag-
nosed accurately, not admitted to the hospital, not
medicated properly, not observed closely enough, or the
patient was discharged from the hospital prematurely
and without adequate planning.
Both psychiatrists and lawyers can make the mistakes
of overemphasizing the importance of threats and warn-
ings and giving too little attention to proper diagnosis
and treatment. Riveted by the patient’s threat, the clin-
ician fails to conduct an adequate mental status examin-
ation. He or she considers warning the designated victim,
but not hospitalizing the potentially violent patient with
serious emotional disturbance. In deposition, the plain-
tiff ’s attorney launches into questioning about why the
clinician failed to warn the victim, rather than first laying
the groundwork of what data the clinician elicited or
failed to inquire about. Overly concerned about failure-
to-warn vulnerability, defense counsel may neglect to
fully develop all that the clinician correctly accomplished
in the way of a diagnostic evaluation, treatment, and
management. The forensic expert who reviews a duty-to-
warn malpractice case must give careful attention to the
clinical care the patient received.
CONSULTATION ON DUTY-TO-PROTECT CASES
The forensic psychiatrist who consults on duty-to-
protect cases should already be familiar with cases such
as Canon, Lipari, Littleton, McIntosh, Naidu, Nasser, Peck,
Petersen, Schuster, Tarasoff, and Thapar. Likewise, he or
she should understand principles applied in duty to warn
cases such as the Hasenei rule, the specificity rule, the
Tarasoff principle, sovereign immunity and the ‘no duty
to control a voluntary patient’ rule requiring a more con-
trolling relationship than either outpatient therapy or
even voluntary hospitalization (e.g., Hasenei v. United
States 1982; Nasser v. Parker 1995). The forensic consult-
ant should also know about pertinent documents of the
American Psychiatric Association including its Amicus
Brief to the Supreme Court of California concerning
Tarasoff, the most recent ethical code of the APA, and
the APA’s Model Law for Protecting Third Persons. Some
knowledge of recent legislative trends and familiarity with
writings of clinicians on the topics of evaluating and man-
aging potentially violent patients, risk assessment and
algorithmic decision making (Felthous 1999) is useful.
Finally, it is recommended that the consultant continue
to treat violent patients and remain well practiced in the
field.
If the referral comes from another state, then enlist
the referring attorney’s assistance in procuring pertinent

jurisdictional law from state and federal courts, any pro-
tective disclosure statute, any privileged and confidential
information statutes, and the state’s mental health code.
If the clinician-defendant was employed by a hospital or
institution, obtain policy statements pertaining to homi-
cidal and violent patients.
With regard to the instant case, obtain all medical and
psychiatric records, transcriptions of all depositions and
courtroom proceedings already held on the case, and all
exhibits already submitted into evidence. If one knows
which experts are consulting on the other side and they
have written on related topics, it may be prudent to
review some of their writings before going to trial.
The consultant should have some basic questions in
mind before starting to read the case materials. Was the
clinical assessment adequate? Was the diagnosis appro-
priate? What, if any, signs of violent potential were there?
If clinical findings warranted further assessment for vio-
lent potential, was this done? Even though the attorney’s
foremost question may pertain to the duty to warn or pro-
tect, the consultant should first assess whether basic clin-
ical responsibilities were satisfied: assessment, diagnosis,
treatment including medication, and hospitalization. If
treatment was accomplished on an outpatient basis, were
the sessions frequent enough? If signs of violence were
escalating, was hospitalization considered? If the patient
was hospitalized, the consultant should assess informa-
tion on the level of observation, control, and thoughtful
discharge planning before releasing the patient. Adequacy
of consistent and accurate progress notes is always a con-
sideration. Finally, the consultant must look for sufficient
communication between treaters where several profes-
sionals have been involved in the patient’s treatment.
Though relying on legal parameters, the consultant
should endeavor to be more fair and practical than the
law seems to be. Our colleagues can be sued for breach of
confidentiality or for failure to warn or protect. If the
stakes seem high for physicians, consider their patients
and the patients’ potential victims. Inappropriate dis-
closure of confidential information can cause a patient to
lose a job or his or her most valued relationship. Failure
to take preventive action may lead to homicide. Yet our
abilities to accurately predict and prevent violence are
meager (Dutile and Foust 1987; Monahan 1981; Wettstein
1984). The clinician walks on a precarious tightrope.
Tilting to one side or the other can risk liability for one-
self and harm others. Meanwhile, the law itself sets this
tightrope differently, variously favoring one or the other
in the balance between confidentiality and warnings/
reports, or protective hospitalization/restrictive civil com-
mitment and ‘de-hospitalization’ (a term more specific
than ‘de-institutionalization’ for referring to the use of
inpatient hospitalization to treat and manage mental
health patients; see also Felthous and Kachigian 2001).
The fair consultant will grant the defendant some
margin in which to exercise good-faith judgment before
finding an error of committing breach of confidence in
The duty to protect 153
the face of serious harm or of omitting to take specific
extraclinical measures. Fault can more firmly be estab-
lished where the defendant violated clear legal regula-
tions or deviated from the clinical standard of care. If the
consultant is to refrain from advancing novel duties and
standards, the prudent expert must also have the courage
and objectivity to identify violations of a clearly stated
and unambiguous law or substandard clinical practice,
where the dereliction of the clinician’s duty proximately
caused the patient to harm another person.
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Aberdeen Medical Group. 1986. Drunken drivers:
what should doctors do? Journal of Medical Ethics
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Almonte v. New York Medical College, 851 F. Supp. 34
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Appelbaum, P. 1985: Rethinking the duty to protect.
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Appelbaum, P.S., Zonana, H., Bonnie, R., Roth, L.H. 1989.
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Association, Area VI of the Assembly of the American
154 Legal regulation of psychiatric practice
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Burchfield v. United States, 750 F. supp. 1312 (S.D. Miss.
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Cain v. Rijken, 717 P.2d 140 (Or. 1986).
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Treatment boundaries in psychiatric practice
ROBERT I. SIMON
The concept of treatment boundaries developed during
the twentieth century in the context of outpatient psy-
chodynamic psychotherapy. Treatment boundary issues
arose from the very beginning of psychoanalysis, reflected
in Freud’s disputes with Ferenczi, Reich, and others. Ethical
principles promulgated by the mental health professions
and the legal duties imposed by courts and statutes have
additionally defined treatment boundaries. For example,
the clinician’s maintenance of confidentiality derives
from three distinct duties: professional (clinical); ethical;
and legal. Treatment boundaries are set by the therapist
that define and secure the professional relationship of
the therapist with the patient for the purpose of promot-
ing a trusting, working alliance.
The boundary guidelines listed below are generally
applicable across the broad spectrum of psychiatric treat-
ments. Nevertheless, considerable disagreement exists
among psychotherapists concerning what constitutes
treatment boundary violations. Appropriate technique for
one therapist may be considered a boundary violation by
another therapist. Much variability in defining treatment
boundaries appears to be a function of the nature of the
patient, the therapist, the treatment, and the status of the
therapeutic alliance. For example, notable exceptions may
exist in alcohol and drug abuse programs, in inpatient
settings, and with certain cognitive-behaviorally based
therapies. Regardless of the therapy used, however, every
therapist must maintain basic treatment boundaries with
all patients. If boundary exceptions are made, they should
be for the benefit of the patient. Every effort must be
exerted to therapeutically restore breached boundaries.
Brief boundary crossings that are quickly rectified can
provide useful insight into conflictual issues for both the
therapist and patient (Gutheil and Gabbard 1993). Harm
threatens the patient when boundary violations progress
in frequency and severity over time.
Boundary guidelines maintain the integrity of therapy
and safeguard both the therapist and the patient. Propon-
ents of therapies that breach generally accepted boundary
guidelines risk harming the patient and incurring legal
liability (Simon 1990a). Psychiatry continues to be highly
20
receptive to innovative therapies that offer the hope of
more effective treatments for the mentally ill (Simon 1993).
The maintenance of basic treatment boundaries should
not be inimical to therapeutic creativity.
PSYCHOTHERAPY: THE IMPOSSIBLE TASK
All psychiatric treatments, regardless of theoretical orien-
tation, are based on the fundamental premise that the
interaction with another human being can alleviate psy-
chic distress, change behavior, and alter a person’s perspec-
tive of the world (Simon and Sadoff 1992). Psychotherapy
can be defined as the application of clinical knowledge and
skill to a dynamic psychological interaction between two
people for the purpose of alleviating mental and emo-
tional suffering. This principle also applies to biological
and behavioral therapies. Yet psychotherapy is an impos-
sible task (Simon 1990a). There are no perfect therapies
and there are no perfect therapists.
Psychotherapy has been described as a mutually regres-
sive relationship with shared tasks but different roles
(Shapiro and Carr 1991). Boundary violations are therap-
ist role violations that inevitably occur to some degree in
every therapy. Although maintaining treatment bound-
aries is a major psychotherapeutic task, competent psy-
chotherapy also requires recognition by the therapist that
he or she has erred. Often, the work of psychotherapy
involves the therapeutic restitution of breached bound-
aries. Treatment boundaries usually can be re-established
if the therapist raises a boundary violation as a treatment
issue. Since therapists use themselves as a primary thera-
peutic tool, sensitivity to boundary violations must be
maintained at a high level.
From a clinical perspective, the therapeutic alliance is
considered by many practitioners to be the single most
critical factor associated with successful treatment
(Marziali, Marmar, and Krupnick 1981). The mainten-
ance of treatment boundaries creates the foundation
for the development of the therapeutic alliance and the

subsequent work of therapy. Trust is the essential basis for
a secure therapeutic relationship that permits patients to
reveal their most intimate problems. The patient’s trust is
based on the conviction that the therapist will use profes-
sional skills in a manner that benefits the patient. The
development of trust itself may be the sole treatment goal.
The maintenance of consistent, stable, and enabling treat-
ment boundaries creates a safe place for the patient to risk
self-revelation. Fundamentally, the therapist’s profes-
sional concern and respect for the patient ensures that
treatment boundaries will be preserved.
Treatment boundary violations occur on a continuum,
usually interfering with the provision of good clinical care
to the patient. Boundary violations frequently result from
the therapist’s acting out of his or her personal conflicts.
As a consequence, the patient’s diagnosis may be missed
or overlooked. Inappropriate or useless treatment may
be rendered. Moreover, the patient’s original psychiatric
condition may be exacerbated. Boundary violations that
represent deviations in the standard of care and are alleged
to have harmed the patient may form the basis of a mal-
practice suit. Boundary violations in the form of negli-
gent psychotherapy are usually part of a claim for sexual
misconduct as well as other suits alleging exploitation of
patients.
Boundary violations foster malpractice suits by creating
a misalliance between therapist and patient. Boundary vio-
lations, usually reflecting the personal needs of the therap-
ist, set patient and therapist against one another. Langs
observes that the failure to maintain treatment boundaries
may lead to autistic, symbiotic, and parasitic relationships
with patients (Langs 1990, p. 339). Langs explains that
autistic relationships (severed link) between therapist
and patient damage meaningful relatedness, symbiotic
(fusional) relationships pathologically gratify the patient,
and parasitic (destructive) relationships exploit the patient.
Frequently, bad results combined with bad feelings set the
stage for a malpractice suit (Gutheil 1989).
BOUNDARY GUIDELINES
Treatment boundaries are established by the therapist
according to accepted professional standards. It is the
therapist’s professional duty to set and maintain appro-
priate treatment boundaries in the provision of good
clinical care. This duty cannot be relegated to the patient.
Once treatment boundaries are established, boundary
issues inevitably arise from the therapeutic work with
the patient that form an essential aspect of treatment.
Boundary crossings that arise from either the therapist or
the patient are quickly addressed and rarely harm the
patient (Gutheil and Gabbard 1993). Boundary viola-
tions, on the other hand, arise solely from the therapist
and are often detrimental to treatment, particularly if
unchecked and progressive. The therapist who creates
Treatment boundaries in psychiatric practice 157
idiosyncratic boundaries or sets no boundaries at all is
likely to provide negligent treatment that harms the
patient and invites a malpractice suit. A fundamental task
for practitioners is the maintaining of constant vigilance
against boundary violations and immediately repairing
any breaches in a clinically supportive manner.
The following boundary guidelines for psychotherapy
help maintain the integrity of the treatment process:
• Maintain relative therapist neutrality.
• Foster psychological separateness of patient.
• Protect confidentiality.
• Obtain informed consent for treatments and
procedures.
• Interact verbally with patients.
• Ensure no previous, current, or future personal
relationship with the patient.
• Minimize physical contact.
• Preserve relative anonymity of therapist.
• Establish a stable fee policy.
• Provide consistent, private and professional setting.
• Define time and length of sessions.
Some of these basic guidelines have been considered by
Langs (1990, p. 303–23) to form the necessary treatment
frame for the conduct of psychodynamic psychotherapy.
Although additional boundary rules could be elaborated,
a general consensus exists concerning the basic rules listed
above. For example, rules concerning the management of
transference and counter-transference could be included
but might not find ready acceptance among some behav-
iorists, biological psychiatrists, and in ‘here and now’
treatments such as Gestalt therapy. Nevertheless, all ther-
apists, regardless of their theoretical orientation, must
recognize that transference and counter-transference play
an important role in any therapy.
An absolutist position concerning boundary guide-
lines cannot be taken. Otherwise, it would be appropriate
to refer to boundary guidelines as boundary standards.
Treatment boundaries are not rigid, easily defined, static
structures that separate the therapist from the patient
like a wall. Instead, they delineate a fluctuating, rea-
sonably neutral, safe space that enables the dynamic,
psychological interaction between therapist and patient
to unfold. Since treatment boundaries have a certain
degree of flux, unanimity of professional opinion does
not exist on a number of boundary matters. Moreover,
clinicians may place greater emphasis on certain bound-
ary guidelines.
UNDERLYING PRINCIPLES
Rule of abstinence
There are a number of fundamental, overlapping prin-
ciples that form the bases for boundary guidelines. One
158 Legal regulation of psychiatric practice
of the foremost principles is the rule of abstinence, which
states that the therapist must refrain from obtaining
personal gratification at the expense of the patient (Freud
1959). Extra-therapeutic gratifications must be avoided
by both therapist and patient (Langs 1990, p. 303–23).
A corollary of the rule of abstinence states that the ther-
apist’s primary source of personal gratification derives
from professional involvement in the psychotherapeutic
process and the satisfactions gained in helping the patient.
The only material satisfaction directly obtained from the
patient is the fee for the therapist’s professional services.
Treatment boundaries are violated when the therapist’s
primary source of gratification is received from the patient
directly rather than through engagement in the thera-
peutic process with the patient. The rule of abstinence is
fundamental to virtually all boundary guidelines.
Duty to neutrality
The rule of abstinence attempts to secure a position of
neutrality for the therapist with the patient. Therapeutic
neutrality is not defined in the psychoanalytic sense of
equidistance between the patient’s ego, superego, id, and
reality. Rather, it refers to the therapist knowing his or
her place and staying out of the patient’s personal life
(Wachtel 1987, p. 176–84). Therapeutic neutrality per-
mits the patient’s agenda to be given primary considera-
tion. The relative anonymity of the therapist assures that
self-disclosures will be kept at a minimum, thus main-
taining therapist neutrality. The law also independently
recognizes the therapist’s duty of neutrality toward
patients (Furrow 1980).
The concept of relative neutrality refers to the limita-
tions placed on psychotherapists that prevent interference
in the personal lives of their patients. Life choices involving
marriage, occupation, where one lives, and with whom one
associates, although grist for the therapeutic mill, are basi-
cally the patient’s final choice (Wachtel 1987, p. 176–84).
Therapists must be very careful about expressing their per-
sonal views in the treatment situation concerning, for
example, politics, religion, abortion, and divorce.
If an otherwise competent patient is thinking about
making a decision that appears foolish or even poten-
tially destructive, the therapist’s role is primarily limited
to raising the questionable decision as a treatment issue.
For example, the therapist can legitimately explore the
psychological meaning of the decision as well as its poten-
tial adverse consequences for the patient’s treatment and
life situation. On the other hand, clinical situations do
arise when the psychotherapist must intervene directly. If
a patient’s decision-making capacity is severely impaired
by a mental disorder, the therapist may need to actively
intervene to protect the patient or others (Simon 1990b).
For example, a psychotically depressed, acutely suicidal
patient who refuses to enter a hospital voluntarily requires
involuntary hospitalization. Under these circumstances,
the clinician intervenes in the patient’s life for valid clin-
ical, not personal, reasons.
Patient autonomy and self-determination
Fostering the autonomy and self-determination of the
patient is another major principle underlying boundary
guidelines. Maintaining patient separateness by support-
ing the process of separation–individuation follows as a
corollary. Of the over 450 current psychotherapies, none
holds as a long-term treatment objective that patients
remain dependent and psychologically fused with their
therapists or others. Obtaining informed consent for pro-
posed procedures and treatments also preserves patient
autonomy (Simon 1992). Patient self-determination dic-
tates that the therapist’s clinical posture toward the patient
should be expectant; that is, the patient primarily deter-
mines the content of his or her sessions. This is not the
modus operandi, however, in cognitive-behavioral thera-
pies or even with some forms of interpersonal therapy.
Moreover, the prohibition that physical contact with
patients be essentially avoided and that the therapist stay
out of the person’s personal life (no past, current, or future
personal relationships) derive in large measure from the
principle of autonomy and self-determination.
Progressive boundary violations invariably constrict
the patient’s freedom of exploration and choice. Properly
maintained treatment boundaries maintain the separate-
ness of the patient from the therapist while also preserv-
ing the psychological relatedness of the patient to others.
Fiduciary relationship
As a matter of law, the doctor–patient relationship is
fiduciary (Omer v. Edgren 1984). The knowledge and
power differentials that exist between therapist and
patient require the therapist, as a fiduciary, not to exploit
the patient for his or her personal advantage. This respon-
sibility is ‘implicit’ in the therapist–patient relationship
and is fundamental to the general ‘duty of care.’ The spe-
cial vulnerabilities and dependence of the patient rather
than the unique powers of a profession give rise to a fidu-
ciary duty (Simon 1987). A fiduciary relationship arises,
therefore, whenever confidence, faith, and trust are reposed
on one side, and domination and influence results on the
other (Black 1990). Not only psychiatrists but also all
mental health professionals have a fiduciary responsibil-
ity to their patients. The maintenance of confidentiality,
privacy, a stable fee policy, and consistent time and pro-
fessional treatment settings are based in large measure on
the fiduciary duties of the therapist.
Respect for human dignity
Moral, ethical, and professional standards require that
psychiatrists treat their patients with compassion and

respect. The dedication of physicians to their patients has
a long and venerable tradition that finds expression in
the Hippocratic oath. The Principles of Medical Ethics with
Annotations Especially Applicable to Psychiatry (1998,
Section 1) instructs: ‘A physician shall be dedicated to
providing competent medical service with compassion
and respect for human dignity.’ On clinical grounds
alone, the competent therapist always strives to maintain
the patient’s healthy self-esteem in the course of therapy.
Exploitative therapists, however, engage patients as part
objects to be used for their own personal gratification.
Frequently, such therapists attack the self-esteem of their
patients as a means of gaining control over them. All of
the boundary guidelines are based on the principle of
respect for human dignity.
TREATMENT BOUNDARIES: GENERAL
ISSUES
Boundaries in small communities
Psychiatrists and other mental health professionals who
practice in small communities and rural areas encounter
unique situations and customs that may complicate the
task of maintaining treatment boundaries (Simon and
Williams 1999). Boundary problems are more likely to
occur in maintaining confidentiality and a position of
relative therapist neutrality and anonymity. Boundary
guidelines must be adaptable to small community prac-
tice without endangering the therapeutic frame and the
patient.
Exigent boundary crossings
In the course of treatment, it may be necessary for the
sake of the patient or the welfare of others for the ther-
apist to cross accepted treatment boundaries. The obser-
vance of usual treatment boundaries may be interrupted
by crises in clinical care, and by intervening, superseding
ethical or legal duties. For example, an agoraphobic
patient initially may be so incapacitated that he or she is
unable to come to the psychiatrist’s office. Home visits
may be necessary. The potentially violent patient who
threatens others creates a conflicting ethical position for
the clinician concerning the maintenance of confiden-
tiality. The existence of legal requirements to warn and
protect endangered third persons may necessitate a
breach of the patient’s confidentiality. If the patient’s
cooperation can be enlisted in the process of warning,
the treatment boundaries may be maintained. Engaging
the patient in the decision to readjust treatment bound-
aries that result from treatment exigencies may permit
salutary boundary reshaping that can facilitate the treat-
ment process.
Treatment boundaries in psychiatric practice 159
Defensive boundaries
Defensive psychiatry refers to any act or omission that is
performed not for the benefit of the patient but to avoid
malpractice liability or to provide a legal defense against
a malpractice claim. Defensive practices that produce
deviant treatment boundaries usually take the form of
clinically unnecessary prohibitions that disturb the ther-
apist’s position of neutrality. Typical clinical issues that
provoke defensive treatment boundaries include treating
patients with sexual transferences and managing poten-
tially violent patients that may require the therapist to
warn and protect endangered third parties. Defensive
boundaries are usually created by unrecognized or uncor-
rected therapists’ counter-transferences (Simon 2000).
Impaired therapists
Impaired therapists usually experience great difficulty in
setting and maintaining acceptable treatment boundaries
(Olarte 1991). Deviant, aberrant, idiosyncratic bound-
aries form the basis for patient exploitation. Severely
character-disordered therapists tend to repeat boundary
deviations with their patients. Predatory, exploitative
therapists also belong to this group. Therapists who
establish aberrant boundaries may also be incompetent;
impaired by alcohol, drugs, and mental illness; situation-
ally distressed by personal crises; or suffering from a para-
philia, particularly frotteurism. Frotteurs have great
difficulty in maintaining appropriate physical distance
from patients, frequently becoming involved in inappro-
priate touching.
Vulnerable patients
Every patient is vulnerable to psychological harm from
therapists who violate treatment boundaries. Borderline
patients are especially at risk for psychic injury (Gutheil
1991). Many of these patients have been physically and
sexually abused as children, and their sense of appro-
priate relationships and boundaries may be seriously
impaired. Treatment boundaries are frequently tested
through compulsive repetition of early childhood rela-
tionships where personal boundaries were not respected.
Highly dependent patients or patients recently experi-
encing a personal loss are also particularly vulnerable to
exploitation.
Although therapists set treatment boundaries, patients
invariably test boundaries repeatedly, and in various
ways. Healthier patients generally are able to stay within
acceptably established treatment boundaries, using the
treatment framework productively. More disturbed
patients often act out their conflicts around boundary
issues. For instance, a patient who was sexually abused as
a child may test the integrity of the therapist by continually
challenging treatment boundaries. With more disturbed
160 Legal regulation of psychiatric practice
patients, a considerable portion of the therapy may be
devoted to examining the psychological meaning of the
patient’s efforts to gain exceptions to established treat-
ment boundaries. Patients who cannot tolerate limit
setting by the therapist may be untreatable (Green et al.
1988).
DISCUSSION OF BOUNDARY GUIDELINES
Neutrality and self-determination
The rule of abstinence and the therapist’s position of rela-
tive neutrality empower patient separateness, autonomy,
and self-determination. Therapists who abandon a pos-
ition of neutrality and undercut the patient’s independence
through numerous boundary violations tend to promote a
fusional relationship between psychiatrist and patient. In
extreme instances, the therapist gradually gains control
over the patient’s life, making basic life decisions for the
patient. Whether done consciously or unconsciously,
boundary violations limit a patient’s options for independ-
ent psychological functioning and recovery. The achieve-
ment of psychological independence is a goal of treatment.
The maintenance of patient separateness that permits pur-
suit of this goal is a boundary requirement for the therapist.
Confidentiality
The maintenance of confidentiality is a fundamental
boundary guideline that must be adhered to unless spe-
cific clinical, ethical, or legal exceptions arise (Simon
1992). Confidentiality must be maintained unless release
of information is competently authorized by the patient.
Breaches of confidentiality typically occur when therapists
find themselves in dual roles (Simon 1987). Such roles
usually occur when the therapist must serve simultan-
eously the patient and a third party. Clinicians working in
managed-care settings often find themselves struggling
with dual roles (New Mental Health Economics 1987).
Informed consent
The law requires informed consent for treatments and
procedures. Incidental to legal intent, informing patients
of the risks and benefits of a proposed treatment main-
tains patient autonomy and fosters the therapeutic alliance
(Simon 1989a). In a number of sexual misconduct cases,
drugs and even electroconvulsive therapy have been used
to gain control over patients (Simon 1992). Negligent
medication practices are especially prominent in these
cases. Obviously, no effort is made to inform the patient
of the risks and benefits of any prescribed medications.
Frequently, addictive medications are given, particularly
barbiturates and benzodiazepines.
Verbal interaction
The process of psychotherapy requires that the inter-
action between therapist and patient be essentially verbal.
Engaging the patient verbally acts as a check against act-
ing out behaviors by the therapist. In psychotherapy, the
therapist must always be alert to the possibility of acting
out emotional conflicts with the patient. Acting out may
be manifested either by the therapist’s behavior or by
inducing the patient to act out.
There is, however, a fundamental difference between
active interventions utilized by the therapist and therapist
acting out. For instance, when somatic therapies or behav-
ioral modification techniques are used, active interven-
tions are made in the service of the treatment, not for the
purpose of exploiting the patient (Goisman and Gutheil
1992). Moreover, therapists may find it necessary to actively
clinically intervene on behalf of a patient in crisis. All
therapies, including Rogersian therapy and even psycho-
analysis, employ active interventions and reinforcement
approaches (Wachtel 1987, p. 120–2). The danger to
patients and their therapy does not arise from therapist
activity per se, but rather from therapist acting out.
Bibring (1954) noted that all dynamic psychothera-
pies variously utilize catharsis, suggestion, manipulation,
clarification, and insight in their therapeutic approaches
to the patient. Irrespective of the methods favored, the
patient should be primarily engaged on a verbal rather
than on an action level. Therapists who act out verbally
can also seriously harm their patients. The behavioral
expression of emotional conflict by therapists is usually
more damaging to patients.
Personal relationships
Most therapists accept the boundary guideline principle
of no previous, current, or future personal relationship
with the patient. Past and current personal relationships
with patients can hopelessly muddle treatment bound-
aries and doom any therapeutic efforts. Social chit-chat
is not psychotherapy.
Maintaining post-treatment relationships with patients
remains controversial (Simon 1992). For a number of
sound clinical reasons, post-termination relationships with
patients should be avoided (Simon 1992). Transferences
can be timeless, raising serious concerns about a former
patient’s ability for autonomous consent to a post-
treatment relationship. A one-year waiting period has
been proposed that ‘should minimize problems and
allow former patients and therapists to enter into intim-
ate relationships’ (Appelbaum and Jorgenson 1991). The
vast majority of therapist–patient sexual relationships
begin within six months of termination. On the other
hand, if the therapist thinks about the patient as a future
sexual partner, boundary violations may likely result that
impair the patient’s treatment. The Principles of Medical

Ethics with Annotations Especially Applicable to Psychiatry
(1998, Section 2, annotation 1) states, ‘Sexual activity
with a current or former patient is unethical.’
Physical contact
The avoidance of physical contact with patients is also a
controversial issue (Bancroft 1981). Situations may arise
in treatment when a handshake or a hug is the appropri-
ate human response. Inoffensive and necessary touching
occurs in the course of administering some procedures or
treatments. Therapists who work with children, the eld-
erly, and the physically ill frequently find that a caring
human touch is comforting and is clinically supportive.
An absolute prohibition against touching patients would
preclude such therapeutic, human responses.
Nevertheless, therapists must be extremely wary of
touching patients. Hugging may seem innocuous, but
when carefully scrutinized, may contain erotic messages.
Gratuitously touching the patient is clinically inappro-
priate and may be a prelude to sexual intimacies (Holub
and Lee 1990). Holroyd and Brodsky (1989) found that
non-erotic hugging, kissing, and touching of opposite-
sex patients, but not same-sex patients, was a sex-biased
therapy practice associated with a high risk of leading to
sexual intercourse with patients. Every patient has the
right to maintain the privacy of his or her own body.
Some psychiatrists continue to do their own physical
examinations of patients. The transference and counter-
transference complications of physical examinations
performed by the treating psychiatrist are well known.
It is important that a physical examination not become
the first step to progressive personal involvement with
the patient.
Anonymity
Therapist self-disclosure is also a complicated topic
(Stricker and Fisher 1990). Patient and therapist shared
regression is one of the obvious dangers of therapist self-
disclosure. Some therapists have found the sharing of a
past personal experience to be helpful for certain patients
in especially supportive psychotherapy. However, the
self-disclosure of current conflicts and crises in the ther-
apist’s life can induce a role reversal in the patient who
then attempts to rescue the therapist. Details of the ther-
apist’s personal life, especially fantasies and dreams,
should not be shared with patients (Gutheil and Gabbard
1993). Therapist self-disclosures appear to be highly cor-
related with the occurrence of therapist–patient sex (Borys
and Pope 1989; Schoener 1989). On the other hand, self-
disclosure may be necessary if the therapist is suffering
from an illness that might negatively affect the treatment
or may cause the therapist to be absent from practice for
a significant period of time.
Treatment boundaries in psychiatric practice 161
The therapist’s position of relative anonymity, how-
ever, does not require that he or she remain a blank screen.
The therapeutic relationship between therapist and patient
is essentially interactive (Wachtel 1987, p. 176–84).
For example, the therapist’s overt and covert reactions to
the patient can be therapeutically valuable in pointing
out to the patient the repetitive nature of the patient–
therapist interaction as it plays out in other important
relationships.
Fees
A fee should be established between the therapist and the
patient that is mutually acceptable. Fees may change over
time according to economic conditions and the personal
circumstances of the patient. Therapists’ fees should
be paid with money only. The pecuniary value of non-
monetary payments is difficult to establish, and should
not be accepted (Simon 1992).
Therapists who become sexually involved with patients
frequently discontinue billing. Although this practice has
a number of meanings, some therapists do so in the erro-
neous belief that not billing the patient terminates the
treatment relationship and therefore the possibility of
being sued. The establishment and continuance of the
doctor–patient relationship is not dependent on the pay-
ment of a fee (King 1986).
Treatment setting
As Langs (1990) points out, a consistent, relatively neu-
tral treatment setting provides the necessary physical
constants that endeavor to maintain ‘a maximal degree of
consistency, certainty, and stability’ for the treatment
experience to unfold. Since many patients have suffered
from inconstancy and intrusiveness in their relationships
and physical environments, maintaining a professional
treatment setting is psychologically important.
Behavior therapists, however, do accompany phobic
patients into threatening environments and situations as
part of their legitimate treatment regimen. Therapists
with religious orientations may attend a patient’s house of
worship. Under exceptional circumstances or in an emer-
gency, the therapist may find it necessary to make a house
call. Flexibility is necessary because of clinical exigencies
and reasonable variations in treatment approaches.
Most patients need to come to the therapist’s office for
treatment. Psychotherapy cannot ordinarily be conducted
over a telephone. With obvious exceptions, the telephone
should be used mainly for making or breaking appoint-
ments or for emergencies. The telephone and other com-
munication devices (e.g., cellphones, beepers, answering
machines) are very useful in emergencies, but should not
be allowed to create technological barriers between the
therapist and the patient (Canning, Hauser, and Gutheil
1991).
162 Legal regulation of psychiatric practice
On the other hand, therapists who treat patients suffer-
ing from dissociative identity disorders sometimes have to
contend with ‘altered mental states’ over the telephone. On
occasion, therapy may be temporarily conducted over the
telephone when the patient cannot come to the office for
reasons of work, travel, or physical illness. Medications
may require adjustment over the telephone between ses-
sions. Telephone contact may be required in emergencies,
but non-emergency telephone interviews should be well
structured, prearranged, time-limited therapeutic engage-
ments that are paid for at the regular rates.
Time
Sessions that are defined in time and length also add sta-
bility to the treatment relationship. In sexual misconduct
cases, therapy sessions progressively lose time definition,
both in scheduling and length. Therapists must always
question their reasons for lengthening or shortening of
sessions. Longer sessions may cause certain patients to feel
special and, potentially, more vulnerable to exploitation.
On the other hand, the length of some sessions may
require a sensitivity to the exigent clinical needs of the
patient. Patients in crisis often need additional time dur-
ing a session. Patients with dissociative identity disorders
may require flexibility in the length of sessions. Some
longer sessions may be needed as various mental states
emerge (Putnam 1989).
BOUNDARY VIOLATIONS AND MALPRACTICE
In almost all cases of therapist–patient sex, progressive
boundary violations precede and accompany the even-
tual sexual acts (Simon 1989b). Empirical and consulta-
tive experience reveals that damaging boundary
violations begin insidiously and are progressive. During
the segment of the therapy session that occurs ‘between
the chair and the door,’ patients and therapists are more
vulnerable to committing boundary excursions and vio-
lations. Inchoate boundary violations with a potential
for damaging progression usually first appear within this
interval. This part of the session can be scrutinized for
early warning of boundary violations and studied for its
instructive value in risk management and prevention of
sexual misconduct (Gutheil and Simon 1995).
Patients usually are psychologically damaged by the
precursor boundary violations as well as the sexual
exploitation (Schoener 1989; Simon 1991). Even if the
therapist and patient stop short of an overt sexual rela-
tionship, precursor boundary violations often prevent
adequate diagnosis and treatment of the patient. The
patient’s original mental disorder is often exacerbated
and other mental disorders are iatrogenically induced.
Thus, therapists may be sued not only for sexual mis-
conduct but also for negligent psychotherapy. In sexual
misconduct cases where insurance coverage is excluded,
a malpractice claim may be filed based upon the numer-
ous, harmful boundary violations that precede therapist–
patient sex.
MONETARY EXPLOITATION
Boundary violations involving money and insurance
matters are quite common (Simon 1992). Irregularities
concerning patient billing of insurance companies may
be only one of a number of boundary violations in the
treatment. Any hint of dishonesty in the therapist’s deal-
ings with third parties will likely disrupt the therapist’s
position of neutrality and create mistrust in the thera-
pist–patient relationship. Becoming involved or involv-
ing the patient in an acrimonious battle with third-party
payers can disrupt boundaries and harm treatment.
Practitioners who become involved in business deal-
ings with patients may later be accused of undue influ-
ence when purchasing valuable goods or property from
the patient at below market value, or when the patient
leaves the witting therapist a large amount of money in a
will (Halleck 1980). The use of ‘insider information’
obtained from the patient for the personal advantage of
the therapist occurs with disturbing frequency (American
Psychiatric Association 1990). An example of such a
practice occurred when a psychiatrist used a stock tip
obtained from a bank executive’s wife during the course
of therapy to turn a large profit (Northrup 1991). Once
the Securities and Exchange Commission learned from
the patient that ‘insider’ information about a merger
was provided, it charged the psychiatrist with profiting
illegally. Profits of $26,933.74 were surrendered, and the
psychiatrist was fined $150,000 and sentenced to five
years of probation and 3000 hours of community service
(Washington Post 1991).
Psychiatrists who work in managed-care settings may
face major ethical concerns and potentially serious dou-
ble-agent roles (Sabin 1989). ‘Negative incentives’ that
cut costs at the expense of diminished quality of care rep-
resent a significant threat to the therapist’s fiduciary
commitment to patients (May 1986). Money matters
must be secondary to the clinician’s professional, ethical
and legal duty to provide adequate clinical care.
DOUBLE AGENTRY
The problem of conflicting loyalties is a major concern to
many psychiatrists (Weinstein 1991). Double agentry
refers to the psychiatrist’s conflicting loyalties when
simultaneously serving the patient and an agency, insti-
tution, or society (In the Service of the State 1978). In the
case of a military psychiatrist, for example, the professional

duty owed to the soldier (patient) versus loyalty to the
military’s best interests poses a potential double-agent
role. Prison psychiatrists are frequently confronted with
the conflict of having to serve the interests of their pris-
oner patients, prison officials, and society. School psych-
iatrists must consider the interests of the student, the
parents, and the school administration.
Boundary violations – particularly those involving
breaches of confidentiality – may occur when therapists
find themselves serving both the patient and a third
party. Dual roles often skew the therapist’s maintenance
of appropriate treatment boundaries. Therapists must
inform patients from the very beginning about any limi-
tations placed on the patient’s treatment, and particu-
larly limits on confidentiality due to dual responsibilities
of the therapist.
Practitioners may hold personal agendas that create
a conflict of interest, disturbing the therapist’s position
of neutrality and creating legal liability. For example,
in Roe v. Doe (1977) a psychiatrist was sued by a former
patient for publishing a book that reported verbatim
information from the therapy including the patient’s
thoughts, feelings, and fantasies.
CONCLUSION
Treatment boundaries fluctuate in response to the
dynamic, psychological interaction between therapist
and patient. As a consequence, boundary crossings and
violations occur in almost every therapy. The boundary-
sensitive therapist can usually re-establish treatment
boundaries before the patient is psychologically harmed.
Epstein and Simon (1990) have devised an Exploitation
Index that offers therapists an early warning indicator of
treatment boundary violations. A survey of 532 psych-
iatrists who were administered the Exploitation Index
revealed that 43 per cent found one or more questions
that alerted them to boundary violations, while 29 per cent
noted that the questionnaire stimulated them to make
specific changes in future treatment practices (Epstein,
Simon, and Kay 1992). Although ‘minor’ boundary excur-
sions initially may appear innocuous, they can represent
inchoate violations along the progression to eventual
exploitation of the patient.
A spot test can be applied by the boundary-sensitive
therapist to determine whether he or she has committed
a boundary violation: first, is the intervention in ques-
tion done for the benefit of the therapist or for the sake of
the patient’s therapy? Second, is the intervention in ques-
tion part of a series of progressive boundary violations?
If the answer to either is ‘yes,’ the therapist is on notice to
desist immediately and to take corrective action. If basic
treatment boundaries are violated and the patient is
harmed, therapists may be sued, charged with ethical
violations, and may lose their professional license.
Treatment boundaries in psychiatric practice 163
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Sexual misconduct in the therapist–patient
relationship
ROBERT I. SIMON
INCIDENCE
The sexual exploitation of patients by therapists is of ser-
ious professional, ethical, and legal concern for the mental
health professions. The results of a nationwide survey of
psychiatrist–patient sex revealed that 7.1 per cent of male
and 3.1 per cent of female respondents acknowledged
sexual contact with their patients (Gartrell et al. 1986). Of
the sexual contacts that occurred, 88 per cent took place
between male psychiatrists and female patients, 7.6 per
cent between male psychiatrists and male patients, 3.5
per cent between female psychiatrists and male patients,
and 1.4 per cent between female psychiatrists and female
patients. Most surveys show a consistent gender difference
that varies from approximately 2:1 to 4:1 male to female
ratio of therapists who sexually exploit their patients.
In surveys carried out after 1980, the percentage of
therapists admitting sexual contact with patients has
steadily declined. In 1989, a survey of 4800 psychiatrists,
psychologists, and social workers showed a rate of
therapist–patient sex of 0.9 per cent for male therapists
and 0.2 per cent for female therapists (Borys and Pope
1989). As of this writing, forensic psychiatrists generally
see fewer sexual misconduct cases than a decade ago. One
reason may be the exclusion of malpractice coverage for
therapist–patient sex by insurers. Another reason may be
the influence of managed care in limiting the amount of
time therapists spend with patients, thus diminishing the
intensity of therapist–patient interactions.
STANDARD OF CARE
The Principles of Medical Ethics with Annotations Especially
Applicable to Psychiatry unequivocally prohibit sex with
a current or former patient (1998). This ethical position
has a venerable tradition in medicine since the time of
21
Hippocrates. Sex between the therapist and the patient is
negligence per se (Simon 1992). Therapist–patient sex is a
violation of those statutes that govern the licensing and
regulation of mental health professionals, incorporating
ethical codes adopted by the professions that specifically
prohibit sexual contact between therapist and patient. It is
also unequivocal evidence of professional incompetence.
The psychiatrist holds himself or herself out to the public
as having standard professional skill and knowledge. The
psychiatrist ‘must have and use the knowledge, skill, and
care ordinarily possessed and employed by members of
the profession in good standing’ (Keeton et al. 1984). Since
a respected minority of psychiatrists does not exist who
will state that sex with a patient falls within the standard
skill and knowledge of psychiatrists, sex between psych-
iatrist and patient is an unquestioned and unchallenged
deviation in the standard of care.
An increasing number of states are limiting by statute
the period of time after treatment ends whereby psycho-
therapists may be held legally liable for sexual involve-
ment with a former patient (Gartrell et al. 1986). Some
state statutes provide immunity from legal liability for
sex between therapist and a former patient that occurs
after a proscribed period of time, usually one to two
years following termination (Bisbing, Jorgenson, and
Sutherland 1995, p. 755–6). Appelbaum and Jorgenson
(1991) have proposed a one-year waiting period that
‘should minimize problems and allow former patients
and therapists to enter into intimate relationships.’ Since
approximately 98 per cent of sexual contact with former
patients occurs within a year of initial clinical contact,
most statutory time limits prohibiting post-treatment
sex more than adequately cover the time of maximal
vulnerability of patients to sexual exploitation (Gartrell
et al. 1986). On the other hand, if the therapist entertains
the prospect of sex with the patient in the future, bound-
ary violations may likely result that impair the patient’s
treatment.
166 Legal regulation of psychiatric practice
Nevertheless, although it may not be illegal for psy-
chotherapists to have sex with a former patient after
expiration of a statutory prohibitionary period, it is
unethical for psychiatrists. The patient may not have
had a therapeutic termination but rather an interrupted
therapy by the therapist who anticipates having sex with
the patient. Post-treatment sex with the patient often
signals the presence of earlier precursor boundary viola-
tions by the therapist. Frequently, therapists who enter-
tain the possibility of post-treatment sex with a patient
usually communicate this desire during the course of
treatment.
Therapist sex with a former patient presents complex
ethical and legal issues. Some therapists marry their for-
mer patients. Moreover, constitutional issues surround-
ing the right of association and the competency of the
former patient to choose freely complicate the legal ana-
lysis of post-treatment sex (Schoener et al. 1989). Clinically,
however, the matter is much more simple. The most
credible policy is to avoid sex with former patients. A
closed-door policy toward former patients should be
considered. Once the patient enters the door of the psy-
chotherapist’s office, it is forever closed to the possibility
of a sexual relationship. Aside from ethical and legal
concerns, a number of sound clinical reasons exist for
this position (Simon 1992).
Sexual relations between supervisor and trainee also
raises ethical issues. The Principles of Medical Ethics with
Annotations Especially Applicable to Psychiatry states the
following:
Sexual involvement between a faculty member or
supervisor and a trainee or student, in those situations
in which an abuse of power can occur, often takes
advantage of inequalities in the working relationship
and may be unethical because: (a) any treatment of
a patient being supervised may be deleteriously
affected; (b) it may damage the trust relationship
between teacher and student; and (c) teachers are
important professional role models for their trainees
and affect their trainees’ future professional behavior.
(section 4, annotation 14, 1998)
THERAPIST–PATIENT SEX: CLINICAL ISSUES,
BOUNDARY VIOLATIONS
The road to therapist–patient sex is littered with numer-
ous boundary violations (Simon 1999). Sexual miscon-
duct rarely happens suddenly, but is usually preceded by
progressive, increasingly damaging precursor boundary
violations (Simon 1989). The precursor boundary viola-
tions usually psychologically harm the patient by inter-
fering with appropriate diagnosis and treatment (Simon
1991a). Precursor boundary violations can cause serious
psychological injury, even if the therapist and patient
stop short of a sexual relationship.
Although every case of sexual misconduct is unique, a
‘typical’ scenario can be derived from cases evaluated for
litigation:
• Therapist’s position of neutrality is gradually eroded
in ‘little’ ways.
• Therapist and patient address each other by first name.
• Therapy sessions become less clinical and more social.
• Therapist’s self-disclosures occur, usually about cur-
rent problems and sexual fantasies about the patient.
• Therapist begins touching patient, usually by hugs
and embraces.
• Therapist gains control over patient, usually by manip-
ulating the transference and by medications.
• Therapy sessions become extended in time.
• Therapy sessions are rescheduled at the end of the day.
• Therapist and patient have drinks/dinner after ses-
sions; dating begins.
• Therapist–patient sex begins.
Since precursor boundary violations to therapist–patient
sex usually occur gradually and incrementally, the ther-
apist may have time to restore treatment boundaries.
Empirical and consultative experience reveals that dam-
aging boundary violations begin insidiously and are pro-
gressive. During the segment of the therapy session that
occurs ‘between the chair and the door,’ patients and
therapists are more vulnerable to committing boundary
excursions and violations. Inchoate boundary violations
with a potential for damaging progression usually first
appear within this interval. This part of the session can
be scrutinized for early warning of boundary violations
and studied for its instructive value in risk management
and prevention of sexual misconduct (Gutheil and Simon
1995).
Self-disclosure by therapists during the course of psy-
chotherapy remains a controversial issue (Stricker and
Fisher 1990). Therapist self-disclosures, especially about
current personal problems and sexual fantasies about the
patient, appear to be highly correlated with eventual sex-
ual misconduct (Borys and Pope 1989; Schoener et al.
1989). Self-disclosures about relationship problems, sex-
ual frustrations, fantasies about the patient, and feelings
of loneliness are particularly troublesome for the patient.
Therapist self-disclosures not only waste treatment time
but also promote a caretaking role on the part of the
patient. On the other hand, explanations may be pro-
vided to patients when the therapist will be absent for a
considerable period of time. For example, a therapist’s
prolonged absence due to illness may require that the
patient see another therapist. A simple explanation to the
patient would be in order.
Epstein and Simon (1990) have devised an Exploit-
ation Index that can be used by therapists as an early warn-
ing indicator of treatment boundary violations. A survey
of 532 psychiatrists using the Exploitation Index revealed
that 43 per cent found that one or more questions alerted
them to boundary violations, whilst 29 per cent were

stimulated to make specific changes in treatment prac-
tices (Epstein, Simon, and Kay 1992).
Transference exploitation
Patients who come for psychiatric treatment are under-
going painful mental and emotional suffering that is
often debilitating. As a consequence, their decision-making
capacity and judgment are usually impaired. Moreover,
the therapist is viewed as a critically important source of
help and hope. Under these circumstances, a patient’s
transference of expectant beneficence may develop that
is highly influenced by early, powerful wishes for nurture
and care. The therapist is frequently idealized as the all-
good, all-giving parent. Combined with the fear of losing
the newly acquired idealized parental figure, the benefi-
cent transference leaves the patient vulnerable to exploit-
ation by the therapist. The beneficent transference is a
common psychological reaction, experienced to varying
degrees by practically all patients. It should be distin-
guished from the transference neurosis that develops in a
number of patients usually undergoing intensive, psy-
chodynamic psychotherapy.
Unlike the physician who works intuitively within the
gambit of a positive transference that provides hope and
succor to the patient, psychiatrists and other mental
health professionals frequently work directly with trans-
ference phenomena as a therapeutic tool. As a treatment
strategy in intensive psychotherapy or psychoanalysis,
the therapist may encourage development of the trans-
ference but then is expected to keep counter-transference
feelings in check for the benefit of the patient. Bio-
logically or behaviorally trained psychiatrists and psycho-
therapists may not place much emphasis on transference
issues in treatment. Nevertheless, the importance of
transference is well known and must be recognized by all
therapists, regardless of their training and theoretical
background. The legal concepts of undue influence and
breach of fiduciary trust may be utilized in place of the
concept of transference in the civil litigation of sexual
misconduct cases involving biologically or behaviorally
trained therapists (Simon 1991b).
The issue of patient transference and the competency
to consent to therapist–patient sex sometimes arises in
the context of litigation (Simon 1994). However, it is the
breach of fiduciary trust by the therapist who engages in
sex with the patient that should be the appropriate focus
of wrongdoing (Simon 1992).
In explaining therapist–patient sex, the concepts of
transference and counter-transference mismanagement
have limitations. Psychotherapists with malignant char-
acter disorders or paraphilias manifesting severe narcis-
sistic, antisocial, or perverse character traits sexually
simply exploit patients. The mismanagement of transfer-
ence and counter-transference feelings is an epiphenom-
enon of character impairment.
Sexual misconduct in the therapist–patient relationship 167
Certain patients appear to be particularly vulnerable
to sexual exploitation. Patients with borderline, depend-
ent, and histrionic personality disorders are vulnerable
to sexual exploitation because significant potential exists
for developing intense erotic and dependent transfer-
ences. The borderline patient may attempt to live out
her or his transference with the therapist. Exceptions to
treatment boundaries may be constantly sought (Gutheil
1989).
Many patients who are victims of sexual misconduct
have been physically and sexually abused as children.
In therapy, formerly abused patients tend to constantly
test treatment boundaries to assess the integrity of the
therapist. Exploitative therapists take advantage of these
patients’ efforts to find a person in authority that they
can begin to trust. No matter how seductive the patient,
the therapist is expected to maintain his or her treatment
neutrality while attempting to understand the meaning
of the seductive behavior with the patient. The therapist
charged with sexual misconduct by the patient cannot
complain that he or she was seduced.
CIVIL LIABILITY
Malpractice is the most common form of legal liability
in sexual misconduct cases. Litigation is almost always
sparked by a real or perceived rejection of the patient by
the therapist that shatters the patient’s sense of special-
ness. If it is just the plaintiff ’s word against the therapist’s
word that therapist–patient sex took place, proving the
case against the therapist may be very difficult. In these
cases, the forensic psychiatrist’s position on either side of
the litigation should be one of neutrality concerning the
factual dispute. A tenable stance is that if the therapist
did engage in a sexual relationship with the patient, then
negligence did occur.
When it can be demonstrated that significant bound-
ary violations have existed, the plaintiff ’s case alleging
sexual misconduct by the therapist is bolstered. Although
the presence of typical precursor boundary violations
makes it more likely that sexual misconduct occurred,
it cannot be inferred with certainty that an actual
therapist–patient sexual relationship took place. If the
plaintiff can provide corroborating evidence to support
the allegations of sexual misconduct, such as testimony
from other abused (former) patients, letters, pictures,
hotel or motel receipts, and identifying body marks, then
the legal defense of the therapist becomes very difficult.
The psychiatrist evaluating psychological damages
will be asked to distinguish the preinjury from postin-
jury psychiatric status of the abused patient. Pope and
Bouhoutsos (1986, p. 45–56) have described a therapist–
patient sex syndrome. This syndrome may not be dis-
tinct, but probably reflects the existence of comorbidity
so often seen in victims of therapists’ sexual misconduct.
168 Legal regulation of psychiatric practice
A study by Bouhoutsos et al. (1983) found that 90 per cent
of the patients were damaged by therapist–patient sexual
intimacies. Pope and Bouhoutsos, in their review of the
literature, state that, ‘overall, the balance of the empirical
findings is heavily weighed in the direction of serious
harm resulting to almost all patients sexually involved
with their therapists’ (Pope and Bouhoutsos 1986, p. 63).
Guidelines for the assessment of psychological harm
caused by therapist–patient sex have been proposed
(Pope 1989; Schoener et al. 1989, p. 133–45). A system-
atic approach to the evaluation of claims of therapist–
patient sexual misconduct also requires considerations
of false accusations in order to maintain a balanced
forensic perspective (Gutheil 1992).
MALPRACTICE CASES
A few representative malpractice cases will illustrate the
general position that courts have taken in undue famil-
iarity litigation. For example, the injurious nature of
precursor boundary violations was underscored in
Zipkin v. Freeman (1968), one of the earliest sexual mis-
conduct cases. The defendant psychiatrist was found to
have manipulated the patient to his advantage by con-
vincing the patient to become his mistress and to leave
her husband. The patient alleged that she had sex with the
psychiatrist and attended ‘group therapy’ that involved
nude swimming. She complained that the psychiatrist
mishandled the transference, which a psychiatrist is
expected to properly handle. The judge stated:
Once Dr. Freeman started to mishandle the transfer-
ence phenomena, with which he was plainly charged
in the petition and which is overwhelmingly shown in
the evidence, it was inevitable that trouble was ahead.
It is pretty clear from the medical evidence that the
damage would have been done to Mrs. Zipkin even if
the trips outside the state were carefully chaperoned,
the swimming done with suits on, and if there had
been ballroom dancing instead of sexual relations.
The jury awarded the patient monetary damages of
$17,000.
Before the Roy v. Hartogs decision in 1976, there was
little significant litigation arising from sexual involve-
ment between a psychiatrist and patient. In Hartogs, for
the first time, large monetary damages were awarded
when Dr. Hartogs attempted to treat his patient’s fear of
being a lesbian by initiating a sexual relationship with
her. The court held that the psychotherapist–patient
relationship was a fiduciary relationship similar to a
guardian–ward relationship. The court stated further
that ‘there is a public policy to protect a patient from the
deliberate and malicious abuse of power and breach of
trust by a psychiatrist when the patient entrusts to him
her body and mind.’
In Simmons v. United States (1986), the court addressed
the consequences of mishandling the transference:
The impacts of sexual involvement with one’s coun-
selor are more severe than the impacts of merely
‘having an affair’ for two major reasons: First,
because the client’s attraction is based on transfer-
ence, the sexual contact is ordinarily akin to engag-
ing in sexual activity with a parent, and carries with
it the feelings of shame, guilt, and anxiety experi-
enced by incest victims. Second, the client is usually
suffering from all or some of the psychological prob-
lems that brought him or her into therapy to begin
with. As a result, the client is especially vulnerable to
the added stress created by the feelings of shame,
guilt, and anxiety produced by the incestuous nature
of the relationship, and by the sense of betrayal that
is felt when the client eventually learns that she is
not ‘special’ as she had been led to believe, and that
her trust has been violated.
MALPRACTICE INSURANCE
Most professional liability insurers will not insure for
sexual misconduct, excluding it as an intentional tort or
criminal action. The rationale is that since it is not prac-
tice, it cannot be malpractice. Some malpractice policies
will cover the costs of litigation but not the cost of dam-
ages. Other insurers will only cover the therapist if the
charge of sexual misconduct is denied.
The negligent management of transference and
counter-transference has been alleged as a cause of ther-
apist sexual misconduct and covered by some profes-
sional liability policies. Since this allegation may be
self-serving on the part of the therapist, the testimony of
an expert witness may be necessary in a legal action
between the therapist and the carrier.
Most cases of therapist–patient sex are preceded by
progressive treatment boundary violations. As a result,
patients are usually psychologically damaged by precur-
sor boundary violations in addition to the eventual
sexual misconduct of the therapist (Simon 1991a). The
therapist’s mismanagement of boundaries may fall under
the negligence provisions of his or her professional liabil-
ity policy. The trend of court decisions in undue famil-
iarity litigation favors compensation of victims.
The statute of limitations may be invoked in sexual
misconduct cases. For example, in Decker v. Fink (1980),
a sexual misconduct case, the Maryland Special Court of
Appeals ruled that the plaintiff ’s impaired judgment,
presumably because of the effects of transference, was
not ‘sufficient legal justification for failing to timely file
[a] medical malpractice action, and evidence established
that [the] plaintiff knew or should have known [of the]
existence of her alleged cause of action.’ In Riley v. Presnell
(1991), however, the Massachusetts Supreme Judicial

Court invoked the discovery rule, which tolled (stopped)
the statute of limitations from running. It rejected the
defendant’s defense that it was too late to bring a mal-
practice suit seven years after the alleged sexual miscon-
duct. The plaintiff successfully contended that he was
unable to discover the psychological injuries resulting
from the sexual misconduct because of the harm caused
by the psychiatrist’s behavior. In cases that involve exploit-
ation of the patient, the therapist’s negligence may impair
the patient’s ability to become aware of the psychological
injuries that are produced (Jorgenson and Appelbaum
1991).
Idealization of the therapist may prevent the patient
from discovering his or her injury, thus permitting the
presence of transference to toll the statute of limitations.
Fraudulent concealment of negligence by the therapist
also may toll the statute; for example, it may occur in
therapist–patient sex when the therapist informs the
patient that sex is therapy, or when the therapist does not
inform the patient that he or she is under the influence of
transference.
CIVIL AND CRIMINAL STATUTES
An increasing number of states have statutorily made
sexual activity both civilly and criminally actionable. For
instance, Minnesota has enacted legislation that states:
A cause of action against a psychiatrist for sexual
exploitation exists for a patient or former patient for
injury caused by sexual contact with the psychother-
apist if the sexual contact occurred: (1) during the
period the patient was receiving psychotherapy … or
(2) after the period the patient received psychother-
apy … if (a) the former patient was emotionally
dependent on the psychotherapist; or (b) the sexual
contact occurred by means of therapeutic deception.
[Minn. Stat. Ann. § 148A.02 (West Supp. 1989)]
Some states make therapist–patient sex negligence
per se by statute, creating a non-rebuttable presumption
concerning the therapist’s duty of care (Simon 1992).
To establish liability, the plaintiff need only prove that
sexual contact occurred and caused damage.
In legislation prohibiting therapist–patient sexual
exploitation, sexual behavior is defined in a variety of
ways, some so vague as to invite constitutional challenges
based on violation of the due process clause in state and
U.S. constitutions (Jorgenson, Randles, and Strasburger
1991). Most statutes define sexual activity as intercourse,
rape, the touching of breasts and genitals, cunnilingus,
fellatio, sodomy, and inappropriate or unnecessary exam-
inations and procedures performed for sexual gratification.
Obviously, statutory definitions cannot possibly encom-
pass the wide variety of sexual activities that constitute
abuse of patients by a therapist.
Sexual misconduct in the therapist–patient relationship 169
Three basic types of remedies have been codified into
reporting, civil liability, and criminal statutes (Appelbaum
1991; Strasburger, Jorgenson, and Randles 1991). Report-
ing statutes require the disclosure to state authorities by a
therapist who learns of any past or current therapist–
patient sex. A few states have civil statutes proscribing
sexual misconduct. The civil statutes incorporate a stand-
ard of care and make malpractice suits easier to pursue.
For example, Minnesota has enacted a statute that pro-
vides a specific cause of action against psychiatrists and
other psychotherapists for injury caused by sexual con-
tact with a patient (Simon 1992). Some of these statutes
also restrict unfettered discovery of the plaintiff ’s past
sexual history. Criminal sanctions may be the only rem-
edy for exploitative therapists without malpractice insur-
ance, who are unlicensed or do not belong to professional
organizations.
Sexual exploitation of a patient, under certain cir-
cumstances, may be considered rape or some analogous
sexual offense and therefore criminally actionable. Typ-
ically, the criminality of the exploitation is determined by
one of three factors: the practitioner’s means of induce-
ment; the age of the victim; or the availability of a rele-
vant state criminal code.
Some states can, and do, prosecute sexual exploitation
suits using their sexual assault statutes (Simon 1992). Sex
with a current patient may be criminally actionable if the
state can prove beyond a reasonable doubt (e.g., with
90–95 per cent certainty) that the patient was coerced into
engaging in the sexual act. Typically, this type of evidence
is limited to the use of some form of substance such as
medication to either induce compliance or reduce resis-
tance. Anesthesia, electroconvulsive treatment, hypnosis,
force, and threat of harm have been used to coerce patients
into sexual submission (Schoener et al. 1989, p. 331). To
date, claims of ‘psychological coercion’ via the manipula-
tion of transference phenomena have not been successful
in establishing the coercion necessary for a criminal case.
In cases involving a minor patient, the issue of consent or
coercion is irrelevant, because minors and incompetents
(including adult incompetents) are considered unable to
provide valid consent. Therefore, sex with a child or an
incompetent is automatically considered a criminal act.
Wisconsin and an increasing number of other states
make sexual relations between a therapist and patient
a statutory criminal offense (Bisbing, Jorgenson and
Sutherland 1995). For example, the Wisconsin statute
holds:
Any person who is or who holds himself or herself out
to be a therapist and who intentionally has sexual
contact with a patient or client during any ongoing
therapist–patient or therapist–client relationship
regardless of whether it occurs during any treatment,
consultation, interview, or examination is guilty of a
class D felony. Consent is not an issue in an action under
this subsection. [Wis. Stat. Ann. § 225(2) (Supp. 1982)]
170 Legal regulation of psychiatric practice
PROFESSIONAL DISCIPLINARY ACTION
In addition to civil and criminal liability, psychiatrists who
indulge in sex with patients also can become embroiled in
ethical proceedings conducted by professional organiza-
tions. The statute of limitations does not apply in ethics
proceedings. Moreover, for the purpose of adjudicating
allegations of professional misconduct, licensing boards
are typically granted certain regulatory and disciplinary
authority by state statutes. As a result, state licensing
organizations, unlike professional associations, may dis-
cipline an offending professional more effectively and
punitively by suspending or revoking his or her license.
Because licensing boards are not as restrained by rigorous
rules of evidence in civil and criminal actions, it generally
is less difficult for the patient to seek redress through this
means. Published reports of sexual misconduct adjudi-
cated before licensing boards generally reveal that if the
evidence was reasonably sufficient to substantiate a claim
of exploitation, the professional’s license was revoked or
the professional was suspended from practice for varying
lengths of time, including permanent suspension.
REPORTING SEXUAL MISCONDUCT
Reporting the alleged sexual misconduct of other ther-
apists based on the statements of patients is fraught with
complex clinical, ethical, and professional issues. Requir-
ing mandatory reporting may create serious double-agent
roles for the therapist that can undermine subsequent
treatment interventions with the exploited patient. A few
states require mandatory reporting of sexual misconduct
by therapists (Bisbing, Jorgenson, and Sutherland 1995,
p. 168–9). In most states with reporting requirements
involving therapist–patient sex, reporting may not pro-
ceed without the patient’s consent.
Clinical flexibility concerning reporting is required
in the treatment and management of sexually exploited
patients. When the patient is a therapist who reports
exploiting his or her patient, does a Tarasoff duty to warn
and protect his or her other patients arise? Conflicting
ethical issues exist surrounding breaching confidentiality
versus potential Tarasoff duties arising from the discov-
ery of a patient–therapist’s continuing sexual exploit-
ation (Eth and Leong 1990).
The requirement to report an impaired colleague or
the allegation of sexual misconduct often conflicts with
the duty to maintain patient confidentiality. Some abused
patients do not want their sexual relationship with a
therapist made public. If the patient is the offending
therapist, the conflict between reporting and maintain-
ing confidentiality is further heightened since reporting
would likely doom the therapy and unilaterally expose
the patient (therapist) to grave personal and professional
consequences.
Second, the reports of therapist sexual misconduct by
a patient may not be true. False allegations of therapist–
patient sex are a relatively rare phenomenon. Neverthe-
less, the new therapist should withhold judgment upon
hearing charges of sexual misconduct against another
therapist. Furthermore, the patient should decide about
bringing allegations of therapist sexual misconduct in
the open, except where mandatory reporting by the ther-
apist is required. Thus, the question of reporting is turned
into a treatment issue.
Third, treatment may be the most pressing need for
the patient who has been sexually abused. Unfortunately,
the patient may have to choose between treatment and
litigation. Psychotherapy and litigation do not mix. The
emotional turmoil and the additional stress the patient
may experience when involved in litigation are often too
disruptive to the continuing conduct of psychotherapy.
Nevertheless, some therapists believe that therapeutic
value exists for the plaintiff in pursuing a suit in over-
coming helplessness, expressing anger and revenge, and
resolving trauma.
Fourth, a therapist’s zeal to report another therapist’s
alleged sexual abuse without regard to the patient’s clin-
ical status can further psychologically damage the patient.
Abused patients have been revictimized by therapists
who have attempted to undo the trauma caused by the
initial sexual exploitation. A common scenario occurs
when the therapist bends over backward to try to prove
his or her own trustworthiness to the patient, or to try to
reparent the patient. As a consequence, serious, damag-
ing boundary violations have occurred (Simon 2001).
The maintenance of therapist neutrality is critical in
these cases and should not be construed as a conspiracy
of professional silence.
The new therapist faced with a patient alleging sexual
exploitation should consider consultation with a forensic
psychiatrist familiar with the legal and ethical issues sur-
rounding allegations of sexual misconduct. The therapist
may be better able to maintain a treatment role while
the forensic consultant handles the legal issues with the
patient. The therapist’s provision of detailed psychiatric
testimony gleaned in the course of therapy may utterly
destroy the treatment relationship and sorely vex the
therapist (Strasburger 1987).
PREVENTION
The sexual exploitation of patients is not correlated with
the level of training or the theoretical persuasion of the
therapist. Gartrell et al. (1986) found offenders were more
likely to have graduated from an accredited residency
and to have undergone personal psychotherapy or psy-
choanalysis. Thus, all therapists must be educated about
sexual misconduct and the devastating consequences for
the patient and the therapist. In tutorials and seminars,

therapists need to be taught that the principle of absti-
nence requires that the therapist’s primary source of
gratification arises from the treatment process with the
patient. The therapist’s position of neutrality demands
that the patient not be exploited as a personal source of
gratification for the therapist. Receiving a fee for profes-
sional services is the only material satisfaction provided
directly by the patient.
Moreover, therapists must be sensitized to the boundary
violation precursors to therapist–patient sex. Since precur-
sor boundary violations occur over time, the alerted thera-
pist may be able to restore treatment boundaries before the
patient is harmed or progression to therapist–patient sex
occurs (Simon 1995). Of course, therapists with severe
character disorders who relate to patients through manip-
ulation and exploitation cannot be expected to benefit very
much from educational efforts.
Therapists who find themselves sexually attracted to
patients and in danger of acting out their feelings must
consider:
• Consultation with a colleague.
• Referral of the patient (with no further contact).
• Personal therapy.
• Acknowledging personal and professional limitations
with certain patients.
• All of the above.
Feelings of sexual attraction by therapists toward patients
is common. A survey of 575 psychotherapists found that
87 per cent felt sexually attracted to their clients, but only
9.4 per cent of men and 2.5 per cent of women acted
out such feelings (Pope, Keith-Spiegel, and Tabachnick
1986). Unfortunately, counter-transference feelings,
particularly the erotic variety, have become associated
with mismanagement of the patient’s treatment and are
viewed with shame and embarrassment by some therapists.
Countertransference, however, when properly managed,
can be used as an important therapeutic tool (Heimann
1950). On the other hand, ignorance of counter-
transference phenomena may harm the therapeutic
process.
CONCLUSION
Malpractice suits against psychotherapists alleging undue
familiarity continue. Unlike the aftermath of other mal-
practice actions, the consequences for the offending ther-
apist go far beyond large monetary judgments. Ethical
proceedings, loss of licensure, professional and personal
disgrace, as well as the loss of income, friends, and family
are just some of the disastrous consequences that occur.
Numerous efforts to address this serious problem con-
tinue through civil and criminal litigation, legislation of
protective statutes, and education of lay-people and pro-
fessionals alike.
Sexual misconduct in the therapist–patient relationship 171
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Gutheil, T.G., Simon, R.I. 1995. Between the chair and the
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The law and physician illness
STEPHEN DILTS AND DOUGLAS A. SARGENT
THE CONCEPT OF IMPAIRMENT
The legal regulation of medical practice is intensified
when the physician is, or is suspected of being, impaired.
The main reason for distinguishing impaired behavior
from other forms of medical misconduct is to safeguard
patients by identifying, treating, and rehabilitating physi-
cians whose medical skills and behavior may be compro-
mised by remediable illnesses. Despite general agreement
in law and medicine about the technical definition of
impairment, many states’ laws still use the terms ‘impaired’,
‘troubled’, ‘addicted’, ‘incompetent’, and ‘distressed’ inter-
changeably. In practice today, impairment has become
a legal term of art for any medical condition that brings
a physician within the jurisdiction of agencies regulat-
ing medical practice. As a result, state programs that
help physicians to enter appropriate medical treatment
for their conditions have uniformly dropped the term,
Impaired Physician Program, and commonly call them-
selves Physician Health Program (PHP); this change in
title underscores the mission of these programs which is
to prevent or remove any medical impairment of ability
to practice.
In 1838, Isaac Ray complained that medicine had not
achieved for the legal rights of the mentally ill the same
advances attained in pathology and therapeutics. He
blamed this on the neglect of doctors (Ray 1838). In
1869, Sir James Paget decried ‘habits of intemperance’,
and at the turn of the century Sir William Osler com-
plained of ‘the morphia habit’ among physicians of his
day (Brewster 1986). But these observations were islands
in a sea of indifference. It would be a hundred years
before any state’s medical licensure law considered illness
in a physician as a matter for rehabilitation rather than
removal. During the past forty years, however, much has
happened to remedy medicine’s neglect of the medi-
cally disabled physician. By the mid-nineteenth century,
states had begun to codify regulations governing medical
practice and to establish Boards of Medicine (BOM) to
set and enforce standards of fitness for entry into medical
22
practice. In 1918, the American College of Surgeons
started the peer review movement by requiring members
to submit cases for review by colleagues. All these activ-
ities sought to safeguard the public from incompetent
doctors by culling ‘bad apples.’ In 1969, Florida (Texas and
Delaware soon followed) enacted the first ‘sick doctor’
statute recognizing impairment as illness calling for treat-
ment (American Medical Association 1973).
The law’s handling of what we now call impairment
began as an attempt to assure patient safety through the
rigorous removal of misbehaving doctors. This approach
was intensified as healthcare expanded and boards
strengthened their capacities to deal with related issues.
Despite the reforms of recent years, this area of law still
bears the marks of a heavy-handed disciplinary legacy
since physicians still are disciplined for merely having an
illness in the absence of any practice problems (Walzer
1990). Clearly, almost any medical illness has the poten-
tial to impair a physician’s ability to practice, and it is the
physicians’ responsibility to self-monitor their ‘fitness for
duty.’ Infrequently, illnesses progress to the point of actu-
ally impairing the ability to practice with reasonable skill
and safety to patients, and some formal intervention is
needed; however, discipline alone has proven ineffective.
Many doctors excluded were well trained, respected, and
once effective, and only later succumbed to disease.
Further, experts estimate that only 15 per cent of truly
impaired physicians are uncovered by disciplinary means
(Brewster 1986). Simply weeding out detected offenders
did not materially advance the safety of patients, was
needlessly wasteful of valuable medical skills and, not
least, was inhumane. Something better was needed. As the
scope of discipline widened under the pressure of events,
its strictures softened as the results of studies and experi-
ence persuaded legislators to adopt a rehabilitative focus.
Impairment defined: the sick physician
An impaired physician is one unable to ‘practice medi-
cine with reasonable skill and safety to patients by reason
174 Legal regulation of psychiatric practice
of mental or physical illness, including but not limited
to deterioration through the aging process, or loss of
motor skills, or excessive use or abuse of drugs, includ-
ing alcohol’ (American Medical Association 1973). An
American Medical Association (AMA) report entitled
The Sick Physician, together with its offshoot, the model
Disabled Doctor Act (updated in 1985 as the AMA
Impaired Physician Treatment Act, IPTA), also depicted
commoner forms of impairment, identified denial and
other barriers to its resolution, and presented a broad
plan to cope with the problem. The plan included a
mechanism for identification and referral: state medical
society committees augmented by hospital and county
medical society committees would organize and carry
out the task of case-finding and referral for treatment.
When professional resources were insufficient, the state
BOM was to be the resource of last resort. The AMA’s
definition has since been adopted, with minor variations,
by most authorities and the medical practice acts of most
states. IPTA’s humane suggestions soon infiltrated laws
regulating the practice of medicine.
Highlights of the physician health
movement
The Sick Physician called upon physicians to help faltering
colleagues who endangered patients and themselves to
recognize their need for professional diagnosis and treat-
ment. It sketched the profile of the sick physician; identi-
fied approaches that should assist concerned colleagues,
family, and friends to bring the physician to treatment;
identified barriers to treatment; prescribed practice
restrictions when necessary; and recommended that dis-
ciplinary and remedial efforts be coordinated to rehabili-
tate physicians who could be restored to practice and
remove those who could not. It recommended guaran-
teed restoration of licensure to physicians who regained
the ability to practice competently. The AMA launched a
ten-year educational campaign to break the ‘conspiracy of
silence’ enshrouding impairment.
AMA-sponsored conferences drew together physicians
and other experts in this field, as well as members of state
and national medical societies and licensure boards, inter-
ested in implementing the latest findings. For example,
a national AMA/American Psychiatric Association (APA)
study showed that suicide often involved disorders that
gave rise to impairment, and that suicidal physicians sig-
naled their intent, thus providing opportunities for pre-
ventive intervention (AMA 1987).
LEGAL CRITERIA FOR REGULATING
PRACTICE
The task of protecting the sick physician’s patients
while preserving valuable medical skills falls into three
main components:
1 Identifying, treating, and rehabilitating the sick phys-
ician. This is carried out by state medical society pro-
grams authorized by state boards of medicine.
2 Maintaining and protecting the peer review systems
that detect impaired practice.
3 Safeguarding the sick physician against excessive, harsh,
or unreasonable treatment. This involves issues of con-
fidentiality, fairness, due process, and economic rights,
as well as maintaining the physician’s emotional health
throughout the stressful process.
Each of these components has a structure supported by a
network of interlocking, though not necessarily smoothly,
meshing laws and regulations.
State laws
Legal control of the sick physician’s practice is mainly
through state law, supported by hospital regulation and
medical ethics. Most state laws, although with great vari-
ation, justify intervention into a physician’s practice when-
ever ‘impairment’ is found; that is, illness or addiction
creating a strong likelihood of misconduct that endangers
patients. Despite the earlier preference for actual perform-
ance deficit as the proper measure (IPTA), few states with-
hold intervention until impairment is proven conclusively
through harm to a patient. A reasonable suspicion of a
potentially impairing illness now is legally sufficient to
bring a physician within reach of the medical board.
State authority to regulate medical practice comes
from its ‘police power,’ a residual constitutional power
(Article 11) conferred upon the state by the Tenth
Amendment, to preserve and promote the health, safety,
and welfare of its citizens. In most states, this authority is
codified in a Medical Practice Act (MPA) that empowers
the BOM to determine the fitness of licensees both at
entry into practice and on a continuing basis. Regulatory
action is triggered when complaints reach the BOM, or
by its own initiative for cause. The authority over the sick
physician is a special case of this general power.1
Typical is Pennsylvania’s MPA (Pennsylvania Statutes
1989), which requires healthcare facilities and colleagues
to report to the board physicians who are addicted and
not receiving treatment, who are diverting drugs, who
are mentally or physically incompetent to practice, who
have resigned to escape discipline, whose privileges have
1
Oregon, the first state board to be responsible for a statewide
impaired physician program, has an MPA [ORS 677.415 (1989)] list-
ing typical grounds for intervention: fraud or misrepresentation,
medical incompetence including incurable or impairing illness,
unprofessional conduct broadly defined (J.J. Uwelling, Federal
Bulletin 78, 131–57, 1991). Illinois [111. Rev. Stat. ch. 111, par.
4400-9 (1991)] covers the same ground with greater specificity, list-
ing thirty-eight separate violations that may lead to suspension or
revocation of the license.

been terminated, or who have been convicted of a felony;
Minnesota’s MPA requires such physicians to report them-
selves. Some states, for example, Colorado (Colorado
Revised Statutes 12–36), do not mandate reporting when
knowledge of the illness is derived in the course of treat-
ing a sick physician.
Board procedure
Typically, the BOM accepts complaints about physician
misconduct from any source. Upon receiving a complaint,
Michigan, for example, gives the reported physician notice
of the complaint and an opportunity to demonstrate com-
pliance (refute the charge) at an informal conference,
where the respondent may be represented by counsel and
may present evidence and witnesses without the eviden-
tiary stringencies of a courtroom. If the complaint is not
resolved to the satisfaction of the parties, a formal hearing
before the BOM as a whole is available, with legal counsel
and most of the procedural protections customarily avail-
able to defendants; typical of most boards’ procedures,
evidence of a kind ordinarily relied on by reasonable
people in the conduct of their daily affairs may be admit-
ted even though court rules of evidence might bar it. The
BOM usually conducts an investigation to ascertain the
nature and cause of the misconduct. Where illness is sus-
pected, psychiatric and other evaluations may be ordered
leading to a professional diagnosis, prognosis, and recom-
mendations for treatment if the cause is a treatable illness.
In treatable cases, a recommendation also is obtained
regarding the need for restricting practice pending
restoration to health. If the BOM then makes a finding of
non-compliance, it may order treatment, perhaps under
the monitoring of a program it authorizes, often one run
by the medical society, with return to practice considered
if and when the physician recovers (Shore 1987).
Physicians who reject or fail at treatment are dealt with
according to the disciplinary measures customary in the
jurisdiction. These usually range from reprimand to revo-
cation of the license to practice. The decision of the board
usually is appealable to a court of general jurisdiction. At
every stage of this procedure variations in local laws may
have important effects on the subject physician and the
likelihood of rehabilitation. Psychiatrists working in this
area of practice should familiarize themselves with the
laws of their jurisdiction.
State programs
State physician health programs are the mainstay of the
system; they usually are run by the state medical society
or are a freestanding non-profit scheme. They encourage
referrals of problem physicians from hospital commit-
tees, and from the physicians themselves or those con-
cerned for their welfare. State boards also use them for
monitored treatment of qualified physicians. However,
The law and physician illness 175
the program must interact smoothly with its BOM if it is
to function effectively. Although most programs grew
from the efforts of volunteer physicians acting through
their medical societies, problems of empowerment and
financing inevitably have led most societies to form
liaisons with boards. The resulting national system has
formed the Federation of State Physician Health Programs,
each program having ties, close or distant, and some
degree of support from their states’ BOM. Michigan’s
Program to Assist the Impaired Physician, for example,
began as the creature of the state medical society and ini-
tially was wholly staffed and run by the Michigan State
Medical Society; similarly, the Colorado Physician health
Program was formed by the medical and osteopathic
societies and spun off as a free-standing non-profit
scheme (Casper et al. 1988). Written policies emphasized
peer efforts to persuade sick physicians to seek voluntary
treatment. Alabama’s law (Code of Alabama 534-24-400,
1990), on the other hand, illustrates a typical joint
board/medical society program:
An Act … to establish … the Alabama Impaired
Physicians Committee (now called the Alabama
Physician Health Program) to provide that the State
Board of Medical Examiners shall have the duty and
obligation to promote early identification, interven-
tion, treatment and rehabilitation of physicians and
osteopaths impaired by reason of illness, inebriation,
excessive use of drugs, narcotics, alcohol, chemicals
or other substances or as a result of any physical or
mental condition; to define the term impaired … .
Most other state programs fall somewhere between
these two in their degree of society–BOM connectedness.
The Alabama act goes on to authorize the BOM to
create a joint board–medical society program with pro-
cedures for reporting confidential information between
committee and board; immunity from liability for the
BOM and committee, their members, and agents; and
confidentiality and non-discoverability for information
about the sick physician and BOM and committee
records and actions. Programs in some states may be
required to report to the board physicians who appear to
need but who refuse diagnostic and prescriptive services,
even without receiving complaints, if there is reasonable
concern of a potential for impairment of the practice.
Reports to the committee are deemed to be reports to the
board for mandatory reporting purposes. Finally, the act
‘repeal(s) all laws in conflict with this Act.’
The impetus for the physician health movement came
from a number of energetic, dedicated physicians who
were publicly in recovery from substance use disorders.
As a result, the original state programs dealt only with
this group of diagnoses. Colorado led the way in estab-
lishing a program dealing with all medical diagnoses
including substance use and other psychiatric disorders,
stress, family problems, and physical problems, such
as cancer and neurologic diagnoses; Colorado also led
176 Legal regulation of psychiatric practice
the way in clarifying the confusion created by the term
‘impaired physician’ by calling itself the Colorado
Physician Health Program (Casper et al. 1988; Dilts et al.
1994). Since then, other state programs have broadened
their scope to some extent.
Diversion: a benign alternative
Since Florida’s ‘Sick Doctor Act,’ a growing number of
states have provided therapeutic alternatives, known as
diversion programs, for sick physicians with a potential
for rehabilitation. California’s program is a good example;
Keeve (1984) describes how the program operates.
The popularity of the diversion alternative has miti-
gated the old conflict between voluntary versus mandatory
reporting and treatment by reducing the apprehensions
of physicians facing discipline while affording them the
undoubted benefits of the strict monitoring of treatment
that characterizes most joint board–medical society pro-
gram features and that sick physicians may need.
The Hospital Physician Health Committee
Hospital Physician Health Committees (sometimes called
the Physician’s Well-Being Committee) can perform the
front-line job of identifying and persuading troubled
physicians to seek help (Keeve 1984). The committee of
volunteer medical staff members provides physicians with
information about the availability of counseling and treat-
ment that is confidential, voluntary, and non-punitive.
It contracts with the ‘agreeable’ physician to support the
treatment by periodic monitoring and contact with both
the treating physician and program for evidence of com-
pliance and the wish to get well. These committees have
had mixed success. Although they offer the friendliness of
being local people, they run into very real issues of con-
flict of interest; as a result, the sick physician may not
want to approach them. Moreover, committee members
face multiple problems of maintaining objectivity about
local colleagues with whom they may interact in a variety
of hospital and social roles. This loss of objectivity can
lead to misidentification of problems and both over and
under reactions, creating very real and significant liability
risks for the hospital and for the committee members.
Hospital committees and others encounter the fol-
lowing questions about their operation, answers to
which must be found in the laws of each jurisdiction:2
• If the sick physician does not comply and endangers
patients, may the committee inform the hospital
administration or state board of medicine? – This is
mandatory in many states.
2
A model hospital staff bylaws is found in C. Krezek: Addressing
the problem of the impaired physician. In Miller, R.D. 1989: Legal
Implications of Hospital Policies and Practices. New Directions for
Mental Health Services, no. 44. San Francisco: Jossey-Bass.
• Is it unethical not to report suspected impairment? –
Reporting is encouraged by the AMA ethical code but
must be balanced by consideration of the value of
patient confidentiality.
• What is the liability, if any, of doctors for reporting? –
None in most states.
• Does the hospital indemnify (seldom, if ever) or the law
protect (almost always) reporters? Is a treating psych-
iatrist required to report? – Often, but not always.
• Does a committee member who contacts a sick phys-
ician establish a doctor–patient relationship? – No.
• Should that member get a release of information from
the sick physician? – Usually, yes.
• Should the committee member give the sick physician
a Miranda warning? – Probably.
• Should (or must) the committee keep minutes of
its procedures with names? – Yes; may be coded for
privacy.
• Are such minutes discoverable? – Usually not.
• Should the committee consider complaints of uneth-
ical behavior? – Only if they contain an inference of
illness.
• Could the committee be liable for failing to warn
the hospital administration about a truly impaired
physician? – This is a gray area.
Although the answers to these questions vary some-
what between jurisdictions from those suggested, the
trend is to immunize (seldom indemnify) good-faith
reporters and to require reporting of suspected impair-
ment. The Joint Commission on Accreditation of Health-
Care Organizations (JCAHO) regulations require regular
fitness reports on all medical staff members, including
mental fitness, which is tantamount to reporting impair-
ment. The Health-Care Quality Assurance Act (Federal
Health-Care Quality Improvement Act 1986) also man-
dates reporting by peer-reviewing healthcare entities (and
this is likely to include all such hospital committees) and
offers immunity, including immunity from antitrust
charges, for good-faith reporters; these are powerful
inducements for reporting. A discussion of these issues
can be found in the APA Ethics Newsletter (American
Psychiatric Association 1994).
DEFENDING THE SICK PHYSICIAN
A psychiatrist consulted by a sick physician should con-
sider this physician in grave danger until proven other-
wise. Accused physicians are at increased risk for depression
and self-destructive acting-out, including suicide. They
and their families (Sargent 1989) almost always need
emotional support and treatment, not only for the con-
dition giving rise to potential impairment but perhaps
even more for the distress that accompanies being
charged with misconduct.

Although sick physicians may not have more practice
difficulties than do other physicians, denial often blocks
sick physicians’ appreciation of their potential impair-
ment and hampers their ability to defend themselves.
Thus, sick physicians often need defending before boards
of medicine, hospital staff committees, and so forth.
Some report feeling pressured to accept the ‘solution’
proffered by the BOM at conference, though it may
require acknowledging facts that might better be dis-
puted, and accepting public disclosure of their lapses in
exaggerated form. Yet the cost of defending their versions
of the truth at a full hearing and the small likelihood of
success lead many such physicians to accept a sanction
that rankles because it seems to them unfair. This, too,
should be handled therapeutically.
Sick physicians may not be able to present themselves
well to a regulatory body because they feel overwhelmed
by embarrassment and guilt. Often they are depressed
and under great stress from the threatened loss of license,
livelihood, and self-esteem. A psychiatrist called in to
consult with legal counsel must appreciate that the sick
physician is likely to be excessively self-critical, prone to
accepting, without challenge, inflated charges, and easily
intimidated by ‘prosecutorial’ investigations. The con-
sultant can assist legal counsel to recognize and counter-
act the legal consequences of depression-driven behavior
and to understand that a benign, therapeutic alternative
to discipline may exist (see section on diversion).
The lawyer selected to defend the physician may be
unfamiliar with the concept of impairment, its relation-
ship to the charges that his or her client faces, and the
opportunities available for rehabilitation for those with a
remedial condition. The psychiatrists consulted should be
prepared to remedy this lack. After obtaining an accurate
history and a proper examination, the psychiatrist might
recommend a diversion or monitoring program, includ-
ing a restriction on practice. The psychiatrist’s opinion
about the treatability of the impairing condition will be
useful to the board. The physician’s defense also will bene-
fit from psychiatric expertise concerning the effects of
stress disorders, addictions, and other mental illnesses on
the ability to practice; what benefits treatment may con-
fer, and how and where they are best attained including
specific treatment programs set up for physicians; how to
manage the impact of illness on medical families; and the
risks that dot the road back to health, including the risk of
suicide. Neither family nor legal counsel may fully appre-
ciate the need to guard against the crisis that disclosure of
the ‘guilty’ secret of impairment usually creates.
Guarding against disciplinary excesses
Hospitals and boards do not always deal judiciously with
sick physicians. Sometimes disciplinary agencies still
equate protecting the public with ‘doctor removal,’ ignor-
ing the good results of treatment programs. A case in
The law and physician illness 177
point: A forty-year-old, depressed, non-drug-abusing
oncologist tried to kill himself with an intravenous bolus
of Demerol (meperidine hydrochloride). He was rescued
and treated successfully. He resumed his practice, but two
years later the board of medicine charged him with drug
abuse. The physician was offered the option of probation
or a hearing before the full board, but was warned that the
latter would involve more time and legal expense and
might have an even harsher outcome. Negotiation by his
persistent lawyer resulted in a compromise: The doctor’s
name was published by the board together with his denial
of the violation and his agreement to accept the board’s
jurisdiction. The state medical society, meanwhile, was
persuaded to reconsider its automatic publication policy
as sometimes unfair. A newspaper that had gotten wind of
the doctor’s troubles was dissuaded from ‘exposing’ him.
Psychiatrists who deal with sick physicians must be
prepared to intervene actively with the system to ameli-
orate unproductive harshness and to protect the physician
against the occasional BOM that views its task as pros-
ecutorial rather than rehabilitative.
Confidentiality
Most physicians who seek treatment fear public disclosure
of their shortcomings because they believe, with some jus-
tification, that stigma will destroy their practices. They
may find some comfort in the confidentiality provisions of
some state laws, but this protection is not absolute, espe-
cially in certain areas, e.g., sexual boundary violations.
State MPA and PHP laws provide varying degrees of con-
fidentiality for the sick physician,3 as does, to a greater
degree, the Federal Drug Abuse and Treatment Act (1972),
which applies mainly to patients of federally funded drug
abuse clinics. But most states do not protect the sick phys-
ician’s medical record from disclosure to its BOM, deeming
licensure to automatically waive the usual physician–
patient confidentiality in communications to the board.
These laws do offer protection against public disclosure of
illness, at least until the doctor is adjudged to have violated
a law and has completed any treatment prescribed. Such
confidentiality may encourage the undiscovered sick
physician to seek treatment.
PROTECTING THE PEER REVIEW SYSTEM
The reform of medical discipline achieved by the
physician health movement left the peer review system
3
Pennsylvania’s law suggests that confidentiality be maintained
only ‘as long as this serves the best interests of the physician and is
in keeping with the law. Physicians who pose a threat to patients
(by refusing treatment or to suspend practice when necessary)
must by law be reported to the state medical board’ (J.S. Sainkoff
and R. McDermott, Pennsylvania Medicine 60 (May), 1988).
178 Legal regulation of psychiatric practice
vulnerable to suit by physicians reviewed. The Medicare
Act of 1965 established mandatory peer review as a
national standard. Yet healthcare-reviewing entities were
not completely protected against liability for bad-faith or
negligent review, or for suits claiming violation of federal
antitrust laws.
Most states provide some immunity to good-faith
peer reviewers. California, for example, immunizes ‘any
professional society [or members of its committees or
staff … peer review committee reviewing the quality of
medical services], hospital governing board, … (or), any
person who participates in quality of care or utilization
review’ against ‘monetary liability or cause of action for
damages (arising from) any act … within the scope of
function of committees … formed to maintain … profes-
sional standards’ (California Civil Code).
Federal protection
Until the case of Patrick v. Burget (1988), it was believed
that a so-called ‘state action exception’ recognized by
federal courts protected peer reviewers from liability in
antitrust actions. This exception to antitrust regulation
permitted certain clearly state-articulated and state-
supervised anticompetitive activities, one being peer
review. But when a doctor, Patrick, sued a hospital peer
review committee for excluding him from practice, a fed-
eral district court upheld his claim that the reviewers
acted in bad faith in order to exclude him as a competitor.
The court rejected the so-called ‘state action exception’ as
inapplicable to this claim and said the wisdom of exempt-
ing peer review from antitrust scrutiny was a question for
the legislature (AMA Board of Trustees 1988).
The Federal Health-Care Quality Improvement Act of
1986 and its companion, the National Data Bank for
Adverse Information on Physicians and Health-Care
Practitioners, implemented in 1991, protects good-faith
peer review from antitrust scrutiny and levels the playing
field by providing a national standard for peer review.
The Act attempts to control medical misconduct by
incompetent, exploitative, or truly impaired physicians
through heightened peer review and intensified discip-
linary measures. The Act requires healthcare entities –
but not individual physicians – to report certain adverse
review actions against physicians where the quality of
care rendered is at issue. This clearly includes actions
against impaired physicians. Also required to report are
insurance carriers and others paying moneys in judg-
ment or settlement of claims for injuries caused by sub-
standard care, such as malpractice judgments. Failure to
report carries heavy penalties. Reporting entities whose
procedures for assessing the responsibility of physicians
for substandard practice meet the Act’s standard of fair-
ness are relieved of some of the Act’s procedural burdens.
It can be argued that the leveling effect of the act on
the variations in state laws regarding impairment will
bring a pax Romana to a vexed area of the law. On the
other hand, the availability of this information has led
some credentialing agencies, e.g., hospitals and managed
care systems, to exclude physicians who have probation-
ary licenses, even if the cause of the probation is only a
health condition with no history of impaired practice.
Physician organizations (e.g., American Academy of
Addiction Psychiatry) are attempting to create flexible
guidelines to replace such arbitrary rules.
Corporate liability
Another pressure to nationalize standards of physician
performance and regulate the behavior of impaired phys-
icians comes from court decisions in many states finding
healthcare corporations liable for harm to patients from
non-employee physicians and others working in their cor-
porate facilities. As Brenner has stated: ‘Using the logic and
values inherent in the concept of predictable human error,
courts are demanding that hospitals take an active role
in protecting patients from the potentially devastating
consequences of physician incompetence or impairment’
(Brenner 1988).
A landmark decision of the Illinois Supreme Court
(Darling v. Charleston Memorial Community Hospital
1966) found that a hospital has a duty of due care to
patients that is independent of its vicarious liability for
the torts of its staff or employees. This distinction sank
the old rule that the physician, as captain of the ship, was
an independent contractor bearing ultimate responsibil-
ity for the acts of his or her crew. Plaintiffs soon targeted
the deeper pockets of the hospital. Over the thirty-six
years since Darling, the change has been so profound that
today one commentator has asserted that there no longer
is a meaningful distinction between corporate liability
and vicarious liability. The hospital and its officers and
medical staff now contend with the treating physician as
the defendant of choice in malpractice suits. The hos-
pital’s pockets are deep and its duties easily established.
Juries may not hesitate to award large damages when the
defendant is not a single, perhaps sympathy-inducing
doctor, but an imposing, impersonal, and apparently
well-heeled hospital.
Today liability accrues if the hospital is negligent in
the selection and continuing oversight of the medical
staff, fails to act to restrict privileges when it knows (or
should know) the physician is impaired, does not enforce
or fails to promulgate its own guidelines for maintaining
a high-quality staff, or fails to comply with state and fed-
eral guidelines having the same purpose and effect.
Corporate liability strongly motivates hospitals to
increase their scrutiny of medical staff competence to
practice, which increases its scrutiny of sick physicians.
How this scrutiny is applied can affect the movement to
rehabilitate physicians for good or ill.
Where the effect is to amplify efforts to identify sick
physicians and bring them into treatment by providing

committees, programs, and guidelines, as recommended
by the AMA, and by publicizing the duty to report sus-
pected impaired physicians, it will be for good. But if the
response is merely to intensify ‘discipline’ while neglect-
ing the salvage of remedial cases, or if rehabilitation
founders on inadequate funding, inaccessible treatment,
and the like, it is likely to restore the ‘conspiracy of
silence’ that The Sick Physician sought to eliminate.
DISCUSSION
Few disciplinary agencies heed Brewster’s finding that
physicians are no more likely to be impaired than other
comparable groups. Insufficient attention is paid to
Shore’s studies showing the high potential for rehabilita-
tion of sick physicians, or Crawshaw’s disclosure of the
tragic effects of ‘strict discipline’ applied to this problem
(Crawshaw et al. 1980). A few states require programs to
disclose the names of all sick physicians to the board,
including unreported physicians who volunteer for treat-
ment. Proponents of early intervention and treatment
believe that such ‘snitch laws’ chill early self-referral for
treatment since they threaten loss of license or public
disclosure and amplify the sick physician’s deepest fears.
Supporters of strict discipline insist that volunteerism
encourages ineffective treatment and only delays the sick
physician’s inevitable decline into ineptitude, incompe-
tence, misconduct, and harm to patients: true impair-
ment. Both sides cite data to support their positions, but
neither has clearly established the correctness of its view.
The emerging pattern today occupies the middle ground
between these extremes, as more states embrace the
rehabilitation favored by organized medicine and have
effected pragmatic compromises on outstanding issues.
REFERENCES
American Medical Association. 1973. Council on mental
health report: the sick physician. Journal of the
American Medical Association 223, 684–7.
American Medical Association. 1987. Council on Scientific
Affairs report: Results and implications of the AMA/APA
physician mortality project, stage II. Journal of the
American Medical Association 257, 2949–52.
American Medical Association Board of Trustees. 1988.
Report MMM. Peer review after Patrick v. Burget.
The law and physician illness 179
American Psychiatric Association. 1994. Reporting impaired,
incompetent, or unethical colleagues. American
Psychiatric Association Ethics Newsletter 10, 1–6.
Brenner, L.H. 1988. Corporate responsibility for physician
impairment. QRB April, 123–8.
Brewster, J.M. 1986. The prevalence of alcohol and other
drug problems among physicians. Journal of the
American Medical Association 255, 1913–20.
California Civil Code Sec. 43.7(13); Cal. Health Safety Code
Sec. 1370,1370.1.
Casper, E., Dilts, S.L., Soter, J.J., Lepoff, R.B., Shore, J.H.
1988. Establishment of the Colorado Physician Health
Program with a legislative initiative. Journal of the
American Medical Association 260, 671–3.
Code of Alabama. Chapter 24. Art. 8-9. 34-24-384 to 406
(1990).
Colorado Revised Statutes 12–36.
Crawshaw, R., Bruce J.A., Eraker, P.L., et al. 1980. An
epidemic of suicide among physicians on probation in
Oregon. Journal of the American Medical Association
243, 1915–17.
Darling v. Charleston Memorial Community Hospital, 33 Ill.
2d. 326, 211 N.E. 2d 253 (1965).cert. denied, 383 U.S.
946 (1966). Federal District Court. 800 F.2d. 1498 (9th.
Cir. 1966).
Dilts, S.L., Gendel, M.H., Lepoff, R.B., et al. 1994. The
Colorado Physician Health Program: observations at
seven years. American Journal on Addictions 3, 337–45.
Federal Drug Abuse and Treatment Act. 1972. P.L. 92-255
21 U.S.C. Sec. 1174 & 1175.
Federal Health-Care Quality Improvement Act. 1986.
42 U.S.C. 11101–11152. Title IV of P.L. 99–660.
Keeve, P. 1984. Physicians at risk: some epidemiological
considerations of alcoholism, drug abuse and suicide.
Journal of Occupational Medicine 6, 503–8.
Patrick v. Burget et al. 486 U.S. 94 1; 108 S. Ct. 1658
(1988).
Pennsylvania Statutes. 63 P.S. Sec. 271.16 (1989).
Ray, I. 1838: The Medical Jurisprudence of Insanity.
Boston: Little & Brown.
Sargent, D.A. 1989: Physician suicide and the medical
family. In Living with Medicine. Washington, DC:
American Psychiatric Press, 146–55.
Shore, J.H. 1987. The Oregon experience with physicians
on probation. Journal of the American Medical
Association 257, 2931–34.
Walzer, R.S. 1990. Impaired physicians: an overview and
update of the legal issues. Journal of Legal Medicine
11, 131–98.
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 3
PART

Forensic evaluation and

treatment in the criminal justice
system

23 Introduction 183
Robert D. Miller
24 Criminal competence 186
Robert D. Miller
25 Criminal responsibility 213
Robert D. Miller
26 Novel mental disorders 233
Robert D. Miller
27 Post-conviction dispositional evaluations 239
Robert D. Miller
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Introduction
ROBERT D. MILLER
The majority of forensic evaluations concern persons
involved with the criminal justice system, except for evalu-
ations for involuntary civil commitment, relatively few
of which are performed by forensic psychiatrists. The
majority of criminal forensic evaluations are performed
by staff of public mental hospitals and outpatient clinics
who have had little formal training in the legal issues
involved. The purpose of this part of the book is to outline
the various forensic evaluations that may be requested by
the criminal courts, to present the legal concepts relevant
to those evaluations, and to discuss techniques for per-
forming the evaluations themselves.
The criminal law is chiefly interested in input from
mental health professionals in determining capacities of
persons charged or convicted of crimes. Thus, cognitive
capacities are of major concern in threshold issues of
competency – to understand Miranda warnings, to con-
fess, to enter a plea, to proceed to trial, to be sentenced,
and to be executed. In the determination of legal respon-
sibility for behavior, both cognitive and volitional capaci-
ties may need to be investigated. The evaluator may
be asked to provide opinions about a defendant’s past
(retrospective), present, or future (prospective) capacities.
The chapter on competency is organized chrono-
logically, according to the stage of a criminal prosecution
in which questions of capacity arise. The chapter on
responsibility is arranged in ascending order of responsi-
bility. Following, there is a discussion of post-conviction
evaluations.
While the criteria for forensic evaluations vary con-
siderably depending on the specific legal issue in ques-
tion, there are some general principles that apply to all
evaluations of criminal defendants. The law assumes
that, once persons achieve the age of majority, they are
legally competent to perform all adult acts, and are
responsible for their actions. When a person’s behavior
departs significantly from the norm however, his or her
competency or responsibility may be questioned. The
initial burden of establishing lack of capacity usually lies
with the party challenging that capacity, although many
jurisdictions provide that once sufficient presumption of
23
impaired capacity or responsibility is raised, the burden
is on the opposing party to refute it.
When a request for an opinion about a criminal defend-
ant is received, it is crucial for the evaluator to determine
the specific type of evaluation in question and the legal
criteria (if any) for the legal construct to be evaluated. One
cannot assume from the circumstances of the evaluation
what is actually to be evaluated; nor can one even assume
that the legal professional making the request understands
what is being requested. Requests such as ‘Please do a
psychiatric evaluation’ (which continue to be all too com-
mon in practice) are meaningless in the forensic context
and should not be accepted without further clarification.
In addition, evaluators should be aware of all the ways
in which defendants’ mental states could be relevant to
their defense to the charges against them. Attorneys
requesting evaluations are not always aware of the various
types of competency (such as to waive Miranda rights, to
plead guilty) and the various degrees of criminal respon-
sibility available in the jurisdiction (e.g., insanity, dimin-
ished capacity, guilty but mentally ill, extreme emotional
distress). The role of a forensic clinician often goes beyond
that of mere agent for the requesting source and encom-
passes that of an agent for justice who advises the court of
all relevant interactions of a defendant’s mental condition
(past, present, or future) and the criminal proceedings
against him or her (Ake v. Oklahoma 1985).
It is crucial that the evaluator be familiar with the rele-
vant statutes and case law in the jurisdiction where the
evaluation is to take place. Not only is such knowledge an
essential precursor to a valid examination but unfamil-
iarity may even result in the evaluator’s opinion being
declared inadmissible (K.L.A. and M.A. v. Hutchinson
et al. 1991).
In addition, evaluators need to be sensitive to the possi-
bility of hidden agendas on the part of the agent request-
ing the evaluation (Miller 1990a). In many jurisdictions
statutes establish public funding for some, but not all,
evaluations. For example, some states provide public funds
for competency but not for insanity evaluations (Miller
and Germain 1989). Even though the Supreme Court has
184 Forensic evaluation and treatment in the criminal justice system
mandated public funding for insanity evaluations (Ake v.
Oklahoma 1985), the case law to date indicates that trial
judges have considerable leeway in deciding whether or
not to authorize them (Rachlin 1988). As a result, public
defenders frequently request a generic psychiatric evalu-
ation in order to decide whether or not an insanity defense
might be appropriate, and to develop sufficient evidence
to convince a court to order one.
Clarification as to the exact nature of the examination
desired is important not only so that evaluators can focus
their interviews and requests for additional information
but also so that they can provide accurate information to
those they are evaluating. The issue of informed consent
and the potential for double agentry inherent in all foren-
sic evaluations is discussed in greater detail in Chapter 92
(Legal Regulation of Psychiatry); here it is necessary to
emphasize the fact that opinions based on faulty or incom-
plete warnings to defendants may subsequently be ruled
inadmissible. For example, the Supreme Court has ruled
that information obtained from a defendant who was told
that his competency to stand trial was being evaluated may
not be used to form opinions for testimony in subsequent
capital sentencing proceedings (Estelle v. Smith 1981).
Because of the inherently adversarial nature of crim-
inal proceedings, and the potentially serious consequences
of those proceedings for defendants, there are also specific
legal protections for criminal defendants that are not
generally available to other evaluees; it is essential that
evaluators be aware of those protections before begin-
ning an evaluation.
Evaluators also need to be aware of professional eth-
ical and practice guidelines relevant to evaluations they
are asked to perform. For example, the ethical guidelines
of both the American Psychiatric Association (1998) and
the American Academy of Psychiatry and the Law (1987)
prohibit the forensic evaluation of criminal defendants
prior to the appointment of counsel, except to provide
emergency clinical care. Despite these explicit guidelines,
some evaluators continue to violate that prohibition. As
is frequently the case, legal rules do not prohibit such
evaluations or testimony (Miller 1990b); but it is incum-
bent upon forensic psychiatrists to maintain a high
standard of clinical practice by avoiding violations of
professional ethical principles.
Another example of legal safeguards is the common
statutory provision of a right to remain silent for crim-
inal defendants undergoing psychiatric evaluation (Miller,
Maier, and Kaye 1986). Evaluators need to be aware of
such provisions, lest they jeopardize the admissibility of
their evaluations by violating them. While such provisions
also exist in many jurisdictions in the case of involuntarily
civilly committed patients, the question of whether they
were observed is much more likely to come up in crim-
inal proceedings.
Another major difference between evaluations of crim-
inal defendants and comparable evaluations of general
psychiatric patients is the much greater incentive for
defendants to distort the information they provide. They
are also often quite uncooperative with evaluation, partic-
ularly if it is made at the request of the prosecution or the
court. For this reason, it is much more important for
evaluators of criminal defendants to insist on obtaining
as much external corroborating information as possible
(Miller et al. 1988). That necessity is reinforced by the fact
that, while general psychiatric evaluations are usually
focused on current mental state, forensic evaluations are
frequently directed at past or future mental functioning or
behavior, making past information particularly important
in order to establish historical patterns. Forensic evalu-
ations must often therefore be indirect, and conclusions
must be drawn from a defendant’s behavior apart from
response to specific questions concerning the legal con-
struct under evaluation. In such cases, inpatient evaluation
may be valuable in providing more extended observations
of such behavior (Miller and Germain 1989).
Forensic evaluators also need to be aware of their juris-
diction’s specific rules concerning disclosure of the infor-
mation they obtain and the opinions they generate based
on that information. In general, opinions stemming from
evaluations requested by (and reimbursed by) a court
are not confidential, and either prosecution or defense
may require that evaluators present their conclusions, and
the data on which they are based, in court. Evaluations
requested by (and reimbursed by) the prosecutor’s office
may not be discoverable by the defense if the prosecutor
chooses not to call the expert witness to testify. In most
states, evaluations requested by (and reimbursed by) the
defense are not discoverable by the prosecution unless
presented as evidence by the defense, because they are
considered to be part of the defense attorney’s work prod-
uct, and therefore privileged. Prosecutors in several juris-
dictions have attempted to have courts or legislatures
permit them access to such evaluation and opinions, and
such conclusions are explicitly discoverable in some.
In addition, most jurisdictions have decided that when
a criminal defendant places his or her mental status at
issue, such as by claiming incompetency to proceed or
insanity, all privilege as to the content of mental evalu-
ations is automatically waived (Gray v. District Court
1994). Given the variation among jurisdictions concerning
confidentiality of psychiatric evaluations and opinions, it
is important that evaluators determine the legal status of
their opinions before informing defendants of the possible
consequences of cooperating with a forensic evaluation.
REFERENCES
Ake v. Oklahoma, 105 S. Ct. 1087 (1985).
American Academy of Psychiatry and the Law. 1987.
Ethical guidelines for the practice of forensic
psychiatry. Newsletter of the American Academy of
Psychiatry and the Law 12, 16–17.

American Psychiatric Association. 1998. The Principles of
Medical Ethics with Annotations Especially Applicable to
Psychiatry. Washington, DC: American Psychiatric
Association.
Estelle v. Smith, 451 U.S. 454 (1981).
Gray v. District Court, 884 P.2d 286 (Colo. 1994).
K.L.A. and M.A. v. Hutchinson et al., No. 88-CV-384
(Kenosha Cty. Wisc. September 1991).
Miller, R.D. 1990a. Hidden agendas at the law-mental
health interface. Journal of Psychiatry and Law
18, 35–58.
Miller, R.D. 1990b. Pre-arraignment forensic evaluation:
the odyssey moves east of the Pecos. Bulletin of the
American Academy of Psychiatry and the Law 18,
311–21.
Introduction 185
Miller, R.D., Germain, E.J. 1989. Inpatient evaluation of
competency to stand trial. Health Law in Canada 9,
74–8, 92.
Miller, R.D., Maier, G.J., Kaye, M. 1986. The right to
remain silent during psychiatric examination in civil
and criminal cases – a national survey and an analysis.
International Journal of Law and Psychiatry
9, 77–94.
Miller, R.D., Roach, L. Maier, G.J., et al. 1988. The re-minds
of Billy Milligan. Paper read at the 19th Scientific
Meeting of the American Academy of Psychiatry and
the Law, October 20, San Francisco, CA.
Rachlin, S. 1988. From impartial expert to adversary in
the wake of Ake. Bulletin of the American Academy of
Psychiatry and the Law 16, 25–33.

Criminal competence
ROBERT D. MILLER
PRE-TRIAL ISSUES
Forensic psychiatrists may be called on to evaluate the
capacities of criminal defendants to satisfy minimal cri-
teria for the fulfillment of their roles as defendants. The
criminal law is concerned with defendants’ capacities for
two reasons. Historically, the first was preservation of the
dignity of the law itself; it is unseemly to try, convict, or
sentence someone who is unaware of what is happening
to him or her or unable to participate in his or her pros-
ecution. More recently, concerns have arisen about the
fundamental fairness of criminal prosecutions and the
protection of the rights of defendants, although the current
trend away from individual rights and toward society’s
rights has caused a significant erosion in many protections
for defendants. This shift in the balance of power has
resulted in an increase in the tension between the two goals,
which is explored in more detail in the subsequent sections.
Although not first in terms of the process of a criminal
prosecution, the general construct of competence to pro-
ceed has been the subject of far more analysis by courts
and forensic clinicians than any other criminal compe-
tence issue, and is discussed first as a model for other evalu-
ations. Many of the techniques discussed in this initial
section are equally applicable to the evaluation of other
types of competence.
Except for competence to waive Miranda rights and
to confess, most competence evaluations are contem-
poraneous and involve determinations of a defendant’s
capacity to perform specified tasks. They are therefore in
general easier to perform than evaluations of responsi-
bility, which are almost always retrospective, and involve
more nebulous and subjective criteria.
Competence evaluations may involve two types of
capacities:
1 The capacity to understand the relevant legal
constructs.
2 The capacity to utilize that information in legally appro-
priate ways.
24
Until the Supreme Court’s decision in Godinez v. Moran
(1993), discussed below, some courts have held that com-
petence to represent one’s self requires that a defendant
possess specific legal knowledge and skills as well as under-
standing. Unless trained and experienced in the practice
of criminal law, forensic evaluators may not be able to
offer opinions on these capacities. For this reason, some
authors have recommended that evaluations be done by
attorney–clinician teams (Gutheil et al. 1987); and some
states permit competence evaluations to be performed by
attorneys as well as by mental health professionals (Wisc.
Stat. Ann. Ch. 1989).
Some defense attorneys have argued that they should
be the ones doing the evaluations, since they are in the
best position to evaluate their clients’ capacities; however,
despite their legal knowledge and first-hand experience
with the defendant in question, attorneys may not be
able to maintain the necessary objectivity concerning their
own clients, may desire a higher level of competence than
is legally required, and may not be able to see problems
stemming from their specific attorney–client relationship,
which might not generalize to relationships with other
attorneys.
The past two centuries have seen a significant expan-
sion of due process rights for criminal defendants,
particularly the right to state-provided counsel, and the
right to be explicitly informed of one’s rights and to have
them respected by the police and the prosecution. Pro-
cedures to protect those rights have been promulgated
by the federal courts and subsequently applied to the
states through the Fourteenth Amendment. As these
rights have won their place in criminal procedure, how-
ever, their implementation has become an expectation of
the criminal justice process, rather than solely rights of
defendants.
As a result, there has developed the presumption that
defendants will avail themselves of all their rights. Thus,
the default characteristics of a criminal prosecution are
that defendants will assert their privileges against self-
incrimination, and rights to decline to talk to the police

until represented by counsel, plead not guilty, request a
jury trial with representation by counsel, and appeal any
conviction, particularly when the death sentence has been
imposed. The law has a strong presumption against waiver
of any of these constitutional rights, for two main reasons:
(i) it violates the dignity of the law to convict a defendant
unless all his or her rights have been scrupulously pro-
tected; and (ii) convictions obtained when defendants
have waived some of their rights are more vulnerable to
appeal.
In order to limit the inappropriate waiver of rights, the
Supreme Court has held that waiver must be ‘knowing
and intelligent’ (Johnson v. Zerbst 1938). Therefore, when
defendants waive any of their rights, forensic clinicians
may be called in to assist the court in determining the
quality of their decision making. Even when defendants
assert all their rights, their mental conditions and behavior
may require that their competence be evaluated before
the prosecution proceeds.
COMPETENCE TO STAND TRIAL
The concept of competence to stand trial goes back to
the English common law requirement that criminal
defendants cannot be tried in absentia (Gobert 1973).
Originally interpreted to mean that defendants must be
permitted to be physically present at their trials, it was
ultimately extended to include mental presence as well as
physical.
As defendants were increasingly expected to take an
active part in their defenses, the law increased its expect-
ations of their capacities and behavior during that pro-
cess. When defendants could (or would) not conform to
those expectations, their competence to fulfill the role of
defendant was questioned.
While requirements that defendants not be tried
unless they were competent had been included in com-
mon and statutory law for centuries, the concept was first
given specific constitutional support in the United States
by a series of Supreme Court decisions beginning in
1960. In Dusky v. United States (1960), the court for the
first time provided criteria for competence to stand trial:
‘The test must be whether he [the defendant] has suf-
ficient present ability to consult with his lawyer with a
reasonable degree of rational understanding and whether
he has a rational as well as factual understanding of the
proceedings against him.’
Although admittedly vague, these criteria set forth
the two main components of competence to stand trial:
(i) cognitive – the capacity to comprehend relevant legal
concepts and procedures; and (ii) volitional – the capacity
to utilize information appropriately in one’s own defense
and to function effectively in the legal environment.
Courts and scholars have attempted to operationalize
these criteria. The federal court for the western district of
Criminal competence 187
Missouri provided the following criteria for competence
in the year following Dusky:
1 The defendant has ‘the mental capacity to appreciate
his presence in relation to time, place, and things.’
2 The defendant has ‘sufficient elementary mental pro-
cesses to apprehend (i.e., to seize and grasp with what
mind he has) that he is in a court of justice, charged
with a, criminal offense.’
3 The defendant ‘understands that there is a judge on
the bench.’
4 The defendant ‘understands that a prosecutor is pre-
sent who will try to convict him of a criminal charge.’
5 The defendant ‘understands that a lawyer will under-
take to defend him against that charge.’
6 The defendant understands that ‘he is expected to tell his
lawyer the circumstances, to the best of his mental abil-
ity (whether colored or not by mental aberration) the
facts surrounding him at the time and place where the
law violation is alleged to have been committed.’
7 The defendant ‘understands that there will be a jury
present to determine guilt or innocence.’
8 The defendant ‘has memory sufficient to relate those
things in his own personal manner’ (Weiter v. Settle
1961).
A number of clinicians have attempted to provide check-
lists or other instruments to guide evaluators in the assess-
ment of competence to stand trial and to provide some
uniformity among evaluations. These approaches are
discussed in detail in the section on evaluation.
The Supreme Court also dealt with procedural issues
in a series of decisions. In Pate v. Robinson (1966), the
Court reversed the conviction of a mentally disordered
defendant because no one had made a formal request for
a competence evaluation during the trial, although the
defense attorney had brought it up. On appeal, the state
argued that counsel’s failure to request a competence evalu-
ation or hearing constituted waiver of that right. The
Supreme Court disagreed, pointing out that ‘it is contra-
dictory to argue that a defendant may be incompetent,
and yet knowingly or intelligently “waive” his right to
have the court determine his capacity to stand trial.’ The
Court opined that as seven years had elapsed since the
trial, retrospective evaluation of competence would not
be productive; it therefore ordered the state either to try
Robinson again, or to release him.
In Drope v. Missouri (1975), the trial judge had found
Drope to be competent to stand trial; however, during the
trial, Drope shot himself and had to be hospitalized. The
judge ruled that the act was voluntary and was done in
order to delay the trial; he therefore directed that the trial
proceed without Drope. The Supreme Court held that
while the judge had initially ‘jealously guarded’ Drope’s
right not to be tried while incompetent, the apparent
suicide attempt should have caused the judge to order
another competence evaluation. It stated that, ‘Even when
a defendant is competent at the commencement of his
188 Forensic evaluation and treatment in the criminal justice system
trial, a trial court must always be alert to circumstances
suggesting a change that would render the accused unable
to meet the standards of competence to stand trial.’
Pate and Drope established the principle that even if the
defense does not raise the issue of competence, the pros-
ecutor and/or the judge must raise it if sufficient evidence
appears to suggest incompetence. Defense attorneys may
not decide, even for valid strategic or tactical reasons, to
decline to raise competence in the face of sufficient evi-
dence to call it into question (Evans v. Kropp 1966; Johnson
v. State 1986). The dignity of the law must here take prece-
dence over a defendant’s right to devise his or her own
defense plan.
Prior to reforms in commitment laws in the 1970s,
indefinite commitment as incompetent to stand trial
frequently amounted to a life sentence without trial, even
for minor criminal charges. The Supreme Court finally
addressed this issue in Jackson v. Indiana (1972). Jackson
had been charged with two robberies, of $5 and $4, for
which he could have been sentenced to a maximum of one
year in jail if convicted. He was a deaf mute with no ability
to communicate with anyone, and was therefore found
to be incompetent to stand trial and committed for treat-
ment. After a year, two psychiatrists reported that Jackson’s
condition was not treatable; the judge ordered the commit-
ment to continue until Jackson had regained his compe-
tence, and his attorney appealed. The Supreme Court ruled
that persons charged with crimes were entitled to the same
protections as civilly committed persons, according to the
decision in Baxstrom v. Herold (1966). The Court held that
‘a person charged by a state with a criminal offense who is
committed solely on account of his incapacity to proceed
to trial cannot be held more than the reasonable period of
time necessary to determine whether there is a substantial
probability that he will attain the capacity in the foresee-
able future.’ It also held more generally that the duration of
a mental commitment must bear a reasonable relationship
to the purpose of the commitment.
This somewhat oracular pronouncement has been
interpreted by most states to limit commitment for treat-
ment to competence to stand trial to the maximum sen-
tence provided for the crime(s) charged. Some states have
gone even further; for example, Wisconsin limits commit-
ment to the maximum sentence for the crime or twelve
months, whichever is less (Wisc. Stat. Rev. Ch. 1989).
Limitations on commitment of incompetent defend-
ants charged with serious crimes cause significant prob-
lems for the criminal justice system, although the number
of defendants found to be permanently incompetent is
extremely small. While the charges may remain pending
indefinitely in most jurisdictions after a finding of incom-
petence, the state has limited options after the statutory
maximum period of commitment for treatment to compe-
tence. It may not confine the defendant in jail indefinitely
(often not at all). It may, of course, release him or her, but
in the case of serious crimes that is not a politically viable
option. In practice, most such defendants are committed
under either civil commitment or guardianship statutes;
but they may then be subject to more strict criteria for con-
tinued commitment than under criminal commitment.
More recently, the Supreme Court has addressed more
procedural issues. In Godinez v. Moran (1993), Moran ini-
tially pleaded not guilty to three counts of murder. After a
suicide attempt, he was evaluated by two psychiatrists and
found competent to stand trial under the Dusky standard.
He later discharged his lawyers and pleaded guilty, say-
ing that he wanted to prevent mitigating evidence being
presented at sentencing. The judge found that Moran’s
waiver was intelligent and knowing, and granted his
request; he was found guilty and sentenced to death. He
appealed, arguing that he had been incompetent to repre-
sent himself; the state courts and the federal district court
denied his appeal, but the Ninth Circuit reversed, holding
that the trial court should have held a hearing to deter-
mine if Moran’s waiver was voluntary, knowing and intel-
ligent. It held that waiver of constitutional rights required a
higher competency than that required to stand trial, the
capacity to make a reasoned choice among alternatives.
The Supreme Court took the case to resolve differences
among the courts of appeal concerning whether the stand-
ard for waiving counsel is higher than the standard for
standing trial. It held that the standard for waiving counsel
is no higher than to stand trial. The competence involved
is that of waiving a right, not the competence to represent
oneself. It did hold that the waiver must be knowing (or
intelligent) and voluntary.
In Cooper v. Oklahoma (1996), Cooper was charged with
capital murder. He was found competent to proceed sev-
eral times under Oklahoma law that presumed a defend-
ant competent unless he established incompetence by
clear and convincing evidence (thus allowing a defendant
who is more likely than not to be incompetent to be found
competent). After being convicted and receiving the death
sentence, Cooper appealed, arguing that the law places too
great a burden on a defendant. The Oklahoma Court of
Appeals affirmed, holding that the state has a great interest
in a speedy trial, and that a truly incompetent defendant
can easily establish his incompetence. The Supreme Court
reversed, holding that, although the burden (by preponder-
ance of the evidence) to prove incompetence can be placed
on a defendant (citing Medina v. California 1992) a lengthy
review of legal tradition indicates that a burden higher
than preponderance violates due process. The assignment
of the legal burden indicates society’s determination of the
confidence the factfinder should have in the factual accur-
acy of conclusions for a particular type of adjudication.
With competence to proceed, the consequences of an erro-
neous decision are clearly much greater than the conse-
quences to the state.
Hidden agendas in competence evaluations
Prior to Jackson, the indefinite commitment provisions
of competence law made the process attractive to both
prosecutors and defense attorneys. Prosecutors were often
 Criminal competence 189

able to effect a life sentence without having to prove any- with the most minimal suggestion of competence, trial
thing at trial. Overworked defense attorneys rarely actively court judges have considerable leeway in deciding whether
challenged the commitments, as they were responsible or not to order a sanity evaluation at government expense.
for a large caseload of competent clients and often felt As discussed in Chapter 23, when judges are resistant
that their incompetent ones were better off in a hospital to ordering sanity evaluations, defense attorneys have
receiving treatment than they would be in jail or on the learned to request competence evaluations, hoping to
streets. In addition, they served to delay the prosecution, obtain information that is also useful for an insanity
usually advantageous to the defense as witnesses forget, defense.
move, or die.
With the post-Jackson limitations on the duration of
commitments for treatment to competence, prosecutors
The characteristics of defendants referred
have largely lost interest in the process, other than to ensure
for competence evaluation
that convictions withstand appeal. With effective and rapid
Descriptive research on defendants referred for compe-
treatment available for most incompetent defendants, the
tence evaluations is presented and reviewed in three excel-
delays have been significantly decreased, and defense attor-
lent books, by Steadman (1979), Roesch and Golding
neys have also largely abandoned covert agendas. A recent
(1980), and Melton and colleagues (1987). The reader is
study (Miller and Kaplan 1992) revealed that in over 95 per
referred to those sources for more detailed information.
cent of cases, the chief reason for questioning competence
Much of the empirical research into competence to
was serious mental disorder causing significant difficulty
stand trial was done more than ten years ago; while the
in communication between the attorneys and their clients.
absolute numbers involved have certainly risen due to
The forensic evaluators concurred with those assessments
increases in criminal arrests, there is no reason to believe
in the great majority of cases, demonstrating that the pres-
that comparative or percentage data have changed signifi-
ence of mental disorder was not just being used as a con-
cantly. In 1978, 6420 defendants were committed to foren-
venient excuse for commitment.
sic hospitals for treatment to competence (Steadman et al.
Other hidden agendas have surfaced in the past two
1982). Roesch and Golding (1980) found in their review
decades, however. As the criteria for involuntary civil
of studies that an average of only 30 per cent of defend-
commitment became increasingly stricter because of
ants referred for competence evaluation were found to be
civil libertarian reforms, and the community psychiatry
incompetent, suggesting that as many as 20 000 defendants
movement pressed for institutionalization, state hospital
were referred for competence evaluation in 1978. That
censuses dropped 75 per cent from their peak in 1955,
number has certainly grown significantly in the interven-
and the numbers of mentally disordered persons living
ing twenty years; defendants admitted for evaluation of, or
in communities rose correspondingly (Miller 1987).
treatment to, competence continue to make up the largest
When the promised community treatment failed to
proportion of patients in state forensic hospitals; and the
materialize (Chu and Trotter 1974), a community backlash
great majority of those defendants are found to be compe-
against discharged but still disordered patients developed,
tent (Daniel et al. 1984).
and public pressure to incarcerate them mounted. Since
Daniel and colleagues (1984) found that a cluster con-
the civil commitment option remained closed, for both
sisting of bizarre behavior at the time of the offense, psych-
legal and economic reasons, the criminal justice system
osis, irrational behavior associated with substance abuse,
was the only system available, and the numbers of men-
and impaired orientation correctly predicted 90 per cent
tally disordered in correctional facilities rose significantly
of competence determinations. Heller et al. (1981) also
(Stelovich 1979; Lamb and Grant 1982). The situation in
found that psychosis and mental retardation were highly
Wisconsin was exacerbated by the fact that statutory
correlated with findings of incompetence. Bennett and
changes in 1976 incorporated not only strict due process
Kish (1990) found that although incompetent defendants
reforms to the civil commitment process but also shifted
were more likely than competent ones to be non-white
funding responsibility for hospital admissions to the coun-
and unmarried, and to have less education, most studies
ties, while continuing state funding for criminal commit-
did not report statistically significant differences.
ments (Miller 1991). There was an immediate 42 per cent
rise in commitments for competence evaluation and treat-
ment (Dickey 1980), and the increase has been maintained Evaluation
over the subsequent fifteen years (Miller 1991). Rachlin,
Stokman, and Grosman (1986) have described similar Although competence to stand trial is usually a contem-
problems in New York. poraneous evaluation, with relatively clear criteria and a
Another frequent underlying reason for requests for significant research literature, the evaluation process is
competence evaluation is the desire of the defense attor- complicated by the sheer numbers of defendants referred
ney to obtain a criminal responsibility evaluation. Many and by the various covert agendas that drive the referral
states provide such evaluations along with competence system. Evaluators therefore need not only be familiar
evaluations in state forensic facilities. Unlike competence with the statutes and case law in their jurisdictions rele-
evaluations, however, where the law requires evaluation vant to competence but also with the social and political
190 Forensic evaluation and treatment in the criminal justice system
climate of the community. If they are not, they run the
risk of missing the point of the referral entirely and
becoming frustrated and ineffective in dealing with the
underlying social and political factors involved.
This is not to say that evaluators should ignore the issue
of competence itself. There are a number of principles for
evaluation that have stood the test of time and research.
As with other evaluations, one must first make sure what
evaluation is really desired. Beware of preprinted court
forms specifying particular evaluations; clerks have been
known to grab the wrong form, and attorneys or judges
with covert agendas may use such forms to transfer prob-
lem patients from jails to forensic hospitals. It is also
incumbent upon forensic evaluators to be sensitive to
issues of competence, even when the referral was for some
other purpose, such as criminal responsibility. If indica-
tions that a defendant may be incompetent to stand trial
are present, the evaluator should address them specific-
ally and call them to either the attorney’s or the court’s
attention. Otherwise, a prosecution may proceed with a
functionally incompetent defendant, resulting in a denial
of constitutional rights and ultimately in a reversal of con-
viction that would have been unnecessary had the issue
of competence been raised appropriately.
While the use of standard psychiatric diagnostic skills
is certainly an essential part of a competence evaluation,
these skills are not sufficient by themselves (Halleck et al.
1992). There is no simple equation between mental dis-
order and incompetence; neither psychosis nor organic
mental disorder nor mental retardation per se render a
defendant incompetent (May v. State 1981), although most
defendants found to be incompetent suffer from one of
these conditions, and their presence should certainly raise
the evaluator’s level of suspicion (Bukatman, Foy, and
DeGrazia 1971; Heller et al. 1981). Evaluators should
also resist the temptation to support inappropriate use
of requests for competence evaluation by setting too high
a threshold for competence, or by keeping patients after
they have recovered their competence in order to pro-
vide more complete psychiatric treatment (Group for the
Advancement of Psychiatry 1974; Halpern 1975).
There are several other significant differences between
standard psychiatric evaluations and forensic evaluations
that must be taken into account in evaluating compe-
tence. Although many psychiatric patients are less than
forthcoming about their problems, criminal defendants
have additional reasons to withhold information from
evaluators. They may simulate disorder to delay or avoid
trial; they may dissimulate in order to avoid hospitalization
or to minimize factors that would impact negatively at
sentencing; and they may refuse to cooperate altogether
(Rogers 1997). Some defendants may not want to be
defended at all; although such positions go against the
basic assumptions of the criminal justice system, they do
not necessarily indicate incompetence (although they
almost certainly will result in competence evaluations)
(Miller and Germain 1987).
For these reasons, it is essential that evaluators seek as
much corroborating information as possible. Past psych-
iatric and criminal histories provide a context in which
current behavior can be assessed. Since it is rare that inca-
pacity exists only with respect to legal comprehension,
observation of other behaviors and interviews with those
in a position to make such observations (defense attorneys,
jailers, etc.) are an essential part of competence evaluation,
even with apparently cooperative defendants. External
information (particularly court transcripts and interviews
with the attorneys and judge) are essential for retrospective
competence evaluations (Miller and Germain 1988).
Competence to stand trial is not a bimodal construct
that a defendant either has or does not have (Bennett and
Sullwold 1984). It is the capacity to perform specific tasks
as part of a criminal defense, and as such will depend
on the tasks to be performed. Defendants may be cap-
able of performing some, but not all, of the possible tasks
involved in their defenses. Evaluators should therefore
attempt to be specific in addressing potential tasks (plead-
ing guilty, waiving counsel, waiving a jury trial, actively
assisting counsel during a trial, testifying, etc.) individu-
ally. At times, the evaluator will know precisely what the
defense plans are and may be able to prevent unnecessary
hospitalization of defendants who are incapable of per-
forming tasks that they will not need to perform (Miller
and Germain 1986). Specific discussion of several of these
capacities are presented in following chapters.
AMNESIA
Amnesia presents a difficult problem for evaluators
(Koson and Robey 1973). Defendants referred for compe-
tence evaluation frequently claim loss of memory for the
times of their alleged crimes. Given the high association
between criminal behavior and intoxication with alcohol
or other drugs, head injuries, and emotional stress, a
substantial incidence of amnesia is to be expected in this
population. Defense attorneys point out that an amnestic
defendant cannot provide essential information, such as
his or her whereabouts, actions, and mental state at the
time of the alleged crime, and therefore cannot meet the
cooperate-with-counsel prong of the competence criteria
(Note 1981).
Because of the frequency of allegations of amnesia, and
because of the difficulty in determining its validity and
resolving it (Koson and Robey 1973), most courts have
concluded that amnesia per se does not render a defendant
incompetent to proceed (Bradley v. Preston 1968). They
reason that in most cases sufficient ancillary informa-
tion will be available to permit an effective defense to be
mounted. One court has suggested that if an amnestic
defendant is otherwise competent, the prosecution should
proceed, and if the defendant is convicted, the judge will
review the case to determine retrospectively whether the
defendant’s amnesia denied him or her a fair trial (United
States v. Wilson 1966). Recently, a Colorado appeals court

adopted the Wilson rationale; the Colorado Supreme
Court declined to adopt the Wilson test, but acknowledged
that the effects of amnesia on competence must be evalu-
ated on a case-by-case basis. (People v. Palmer 2000; People
v. Palmer 2001)
In practice, the most effective procedure to follow when
evaluators feel that the amnesia is genuine and causes a
significant impairment in the particular case (especially if
an insanity defense seems appropriate and the defendant
cannot recall his or her mental state at the time of the
crime) is to inform the court of the problem and to suggest
a brief trial of memory-enhancing techniques to see if the
memories can be recovered. If they can, then competence
is clear; if not, at least the court can be assured that avail-
able treatment is unlikely to restore them (Melton et al.
1987; Miller and Stava 1997). This procedure has been
approved by several courts (Cornell v. Sup. Ct. 1959; People
v. McBroom 1968; State v. McClendon 1968; United States v.
Borum 1972; Davis v. State 1978; United States v. Adams
1978; State v. Mack 1980; State v. Palmer 1987). Since such
techniques, if effective, may reveal information detrimen-
tal to the defendant that is likely to be discoverable in
court, extreme care should be taken to attempt to obtain
informed consent from the defendant, as well as from the
defense attorney, before using techniques such as hypnosis
or narcotherapy.
OUTPATIENT COMPETENCE EVALUATIONS
Because of the deprivation of liberty involved in inpatient
competence evaluations, and because the evaluation can
often be accomplished effectively without hospitalization,
many critics have called for competence evaluations to
be carried out on an outpatient basis (i.e., in jail or in the
community if the defendant is on bail) (Miller and
Germain 1989). A number of jurisdictions have established
such community-based evaluations services, either with
traveling teams of trained professionals (Herron, Zonana,
and Crane 1983) or through training of existing commu-
nity mental health staff (Melton, Weithorn, and Slobogin
1985). Many larger cities have developed specialized court
clinics, often located in the jail itself, to perform compe-
tence evaluations efficiently (Sadoff 1967).
Community-based evaluation can be very effective in
the majority of cases, provided that the evaluators are
sufficiently trained. It avoids unnecessary drain on inpa-
tient resources, eliminates transportation problems, facili-
tates interactions with defense attorneys (Gutheil et al.
1987), and permits local evaluators to develop good work-
ing relationships with the court and jail systems.
Despite these advantages, however, the majority of
states continue to rely on inpatient competence evaluations
(Miller and Germain 1989). There are advantages to hospi-
talization in problematic cases, again assuming appropriate
facilities with sufficient, trained staff. Continued observa-
tion over time by trained forensic clinicians may be neces-
sary to resolve questions of malingering, and inpatient staff
Criminal competence 191
are in a position to develop expertise with conditions (such
as multiple personality disorder) that are dispropor-
tionately represented in forensic populations (Miller and
Germain 1989). Specialized techniques, such as group
interviews to assess a defendant’s capacity to deal with a
number of people (as might be necessary during a trial),
and the use of lawyer–clinician evaluation teams (Gutheil
et al. 1987) are easier to implement in an inpatient facility
than in all but the largest community-based evaluation
programs. In addition, inpatient staff are often in a better
position to make predictions of response to treatment,
since they are the ones who will be providing the treatment
and have direct experience in doing so. Because of these
advantages, inpatient evaluation should continue to
remain a referral option for community-based facilities.
ASSESSMENT INSTRUMENTS
A number of formalized checklists and structured inter-
views have been developed to assist evaluators with com-
petence assessments. Creation of the early schemes (Robey
1965; Lipsitt, Lelos, and McGarry 1971) was necessitated
by conditions in overburdened forensic facilities with
insufficient professional staff to perform the evaluations;
they were designed to permit line staff with less training to
handle the great majority of evaluations. They were simple
in construction and interpretation, and had the virtue of
collecting relevant raw data that could be made available
to the court, and of imposing some standardization on the
process.
The next major attempt to structure evaluations came
from Harvard’s Laboratory of Community Psychiatry
(1973), which developed the Competency Screening Test
(CST), designed as a tool for preliminary evaluation, and
the more lengthy Competency Assessment Instrument
(CAI) for final evaluations. The CST has been heavily criti-
cized by Brakel (1974) and others for its strong bias toward
the status quo, resulting in defendants who express nega-
tive feelings toward attorneys, judges, or the criminal justice
system being found incompetent. The CAI has not been
subjected to sufficient research to estimate either its reli-
ability or validity (Melton et al. 1987).
The Interdisciplinary Fitness Interview (Golding and
Roesch 1984) was developed by two psychologists who
were very experienced with competence evaluations.
Designed to be used by a lawyer–mental health professional
team, it was developed using more sophisticated psycho-
metric approaches than its predecessors, and has been
more extensively validated. It leads to a much more detailed
examination of both psychopathology and legal know-
ledge, and also provides explicit scales for rating the impact
of each response on the eventual competence determin-
ation. Inter-rater reliability has been quite high as to the
ultimate opinions (Schreiber, Roesch, and Golding 1987).
Grisso’s (1986) book on competence assessment tech-
niques and instruments has become a standard reference
work in the field.
192 Forensic evaluation and treatment in the criminal justice system
Most recently, the MacArthur work group has devel-
oped a field-tested and well-validated instrument, the
MacArthur Competency Assessment Tool, Criminal Adju-
dication (Poythress et al. 1999) which is gaining wide
acceptance in the field.
In addition to the generic assessment instruments,
Everington (1990) has developed an instrument designed
specifically for developmentally disabled defendants. This
takes into account the particular behaviors and deficits
unique to this population, and provides much-needed
standardization to their evaluation.
Treatment to restore competence
Although outpatient evaluation of competence is becom-
ing increasingly prevalent, virtually all defendants adju-
dicated incompetent to stand trial are committed to
inpatient units for treatment to restore competence (Miller
and Germain 1989). While the post-Jackson reforms have
limited the duration of commitment in most states, that
still permits extended hospitalization for restoration of
competence, particularly since most defendants are ini-
tially charged with crimes more serious than those to which
they will eventually plead.
Since the majority of defendants found incompetent to
stand trial suffer from psychoses, the treatment modality
most relevant to restoration of competence is antipsy-
chotic medication. Courts have struggled with the issue of
‘chemical competence’ achieved through medication.
Some early decisions (State v. Murphy 1960) held that
defendants must be tried in a ‘natural state,’ that is, off
medications. More recently, courts have appeared to recog-
nize that psychotropic medications are restorative of nor-
mal functioning, and have permitted even involuntary
administration if necessary to restore competence, since
the state’s interest in restoration outweighs the defendant’s
privacy and other interests in refusing (State v. Laws 1978).
Defense attorneys frequently object to their clients
being treated with antipsychotic medications, since (they
argue) it prevents the jury from seeing the defendant as he
or she was at the time of the crime, and even may render
him/her apparently indifferent to the proceedings. Sev-
eral courts have taken notice of this criticism and have
ruled that treatment may be imposed until the defendant
becomes competent. At that time, he or she may refuse
again; but if as a result he/she loses his/her competence,
they may be tried anyway, being considered to have (com-
petently) waived their right to be tried while competent by
deciding to stop treatment (People v. Parsons 1975; State v.
Jojola 1976; State v. Hayes 1978). The issue of the defend-
ant’s appearance to the jury has recently come before
the Supreme Court in the context of the death sentence
of a defendant whose pre-trial competence was restored
through medications. His request to stop the medications
during the trial was denied by the judge, apparently based
on predictions from examining clinicians that he would
lose his competence without medications. The Court over-
turned the conviction because no formal hearing was held
on the issue of forced medication during trial, suggesting
that forced medication might be continued upon a show-
ing at such a hearing that it was necessary to maintain com-
petence. The issue of forcing medication before trial to
restore competence was not definitively addressed (Riggins
v. Nevada 1992).
Other jurisdictions deal with medication refusal by
defendants found incompetent for trial through proced-
ures identical to those applied to civilly committed patients
(Miller et al. 1989).
For defendants whose incompetence is caused by men-
tal retardation, organic brain syndromes, or other factors
that do not respond to current medication, various psycho-
educational programs have been devised to present the
relevant legal material in effective ways (Pittenger 1983;
Webster et al. 1985).
COMPETENCE TO WAIVE MIRANDA
RIGHTS AND TO CONFESS
The first major decision facing a person arrested for a
crime is whether to talk to the police. The Fifth Amend-
ment to the federal Constitution provides that a person
may not be compelled to be a witness against him/herself;
but that privilege has little meaning unless the accused is
aware of it.
Originally, the English common law privilege against
self-incrimination prevented questioning until formal
charges had been brought; but at that point, the accused
could be forced to undergo interrogation. As part of the
reaction against royal abuse of power in the seventeenth
century, the right not to be questioned at trial was estab-
lished. At the same time, the voluntariness doctrine (which
had originated more than a century earlier) evolved, vir-
tually barring pre-trial interrogation. That doctrine was
concerned with the reliability of confessions, not with
any rights of an accused (Benner 1989). An 1848 English
statute required that an accused be informed that his state-
ments could be used against him.
Legal issues
In Bram v. United States (1897), the U.S. Supreme Court
reviewed the English and American common law of con-
fessions, then grafted the voluntariness doctrine onto the
Fifth Amendment privilege against self-incrimination,
again based on a desire to limit the unreliability of confes-
sions. It held that confessions should ‘be free and volun-
tary, that is, not produced by inducement engendering
either hope or fear.’ It eschewed the subjective approach of
attempting to determine the effects of various factors on
the accused, choosing rather an objective test under which

a confession must be deemed involuntary if any degree of
influence has been exerted.
Bram established a presumption of compulsion, which
the state was required to overcome, that was followed by
the federal courts until the 1930s. At that point, the criteria
for compulsion began to be diluted, and confessions
induced by promises became admissible (Benner 1989).
The Fifth Amendment privilege against self-incrimination
was not applied to the states through the Fourteenth
Amendment until Malloy v. Hogan (1964). In that same
year, the Supreme Court held that police interrogation was
a ‘critical stage of a prosecution,’ and therefore the right to
counsel obtained (Escobedo v. Illinois 1964.) Two years later,
in Miranda v. Arizona (1966), the Court added the well-
known requirements that police inform a suspect that he or
she has the right to remain silent and the right to counsel,
and that if he/she chooses to talk with police, anything that
he/she says could be used as evidence against them. It lim-
ited the application of the right to custodial interrogations.
Moreover, it reaffirmed that when a confession is obtained
in the absence of counsel, ‘a heavy burden rests on the gov-
ernment to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel.’
The voluntariness doctrine has undergone a series of
changes through the second half of the twentieth century.
Due process prohibitions against coerced confessions had
been applied to the states in Palko v. Connecticut (1937)
well before the Fifth Amendment was in Malloy. As far
back as 1884, the Supreme Court held that a confession
loses its value when pressures operating on the defendant’s
fears and hopes deprive ‘him of that freedom of will or
self-control essential to make his confession voluntary
within the meaning of the law’ (Hopt v. Utah 1884).
In a series of cases beginning in 1948, the Court rejected
confessions obtained from defendants whose mental
capacities were impaired, through immaturity (Haley v.
Ohio 1948), mental retardation (Fikes v. Alabama 1957;
Payne v. Arkansas 1958; Reck v. Pate 1961; Culombe v.
Connecticut 1961), intoxication with drugs (Townsend v.
Sain 1963), or mental illness (Fikes v. Alabama 1957; Spano
v. New York 1959; Blackburn v. Alabama 1960). In those
cases, the Court specifically took into account the defend-
ants’ individual susceptibilities as well as official conduct
in determining that their confessions had not been volun-
tary. In Blackburn (1960), the Court held that a confession
is coerced if it is not ‘the product of a rational intellect
and a free will,’ and noted that coercion can be mental as
well as physical. In Culombe (1961), it held that,‘The ulti-
mate test [for admissibility of confessions] remains that
which has been the only clearly established test in Anglo-
American courts for two hundred years, the test of volun-
tariness. Is the confession the product of an essentially free
and unconstrained choice by its maker?’
Beginning with the Burger Court, and accelerated
with the Rehnquist Court, however, the due process pro-
tections inherent in Miranda have been eroded in favor
Criminal competence 193
of facilitation of criminal convictions (Parry 1987; Perlin
1987). The coercion required to invalidate confessions
has been progressively limited to conscious police mis-
conduct, and the capacity of a defendant to make a
rational choice has become irrelevant. In 1987, the Court
held in Colorado v. Spring (1987) that the confession
from a defendant who was misled about the purpose of
the interrogation was admissible because, ‘The Constitu-
tion does not require that a suspect know and under-
stand every possible consequence of a waiver of the Fifth
Amendment privilege.’
In Illinois v. Perkins (1990), the Court upheld a confes-
sion obtained by an undercover policeman placed in
Perkins’ cell in order to trick him into confessing to a mur-
der unrelated to the crime for which he had been arrested.
The Court majority held that coercion exists only from the
interaction of police custody and official (i.e., identifiable)
interrogation, and the confession was therefore ‘voluntary.’
Most specifically relevant to the issues of voluntariness
and competence is the Court’s decision in Colorado v.
Connelly (1986). Connelly had traveled from Massa-
chusetts to Colorado, under the influence of command
hallucinations, to confess to a murder. When counsel was
appointed the next day, he requested a competence evalu-
ation, and Connelly was found to be psychotic and incom-
petent to stand trial. After his competence was restored, his
attorney moved to strike his confession, arguing that it had
been involuntary because Connelly’s psychosis prevented
him from making a truly voluntary decision to waive his
rights. The state courts agreed, but the Supreme Court
majority reversed, reasoning that because there had been
no police misconduct and Connelly understood that his
admissions might be used against him at trial, the confes-
sion was voluntary under their revised legal definition of
that concept. Reversing two hundred years of jurispru-
dence, the Court held that, ‘Notions of “free will” have no
place in this area of constitutional law. Respondent’s per-
ception of coercion flowing from the “voice of God” is a
matter to which the Federal Constitution does not speak.’
Evaluation
Prior to Connelly, it appeared that the evaluation of com-
petence to waive Miranda rights (i.e., to confess to a crime)
was conceptually similar to competence to stand trial.
Bursten (1979) argues that voluntariness should include:
(i) a lack of physical or psychological coercion; (ii) appro-
priate knowledge; and (iii) impulse control, which includes
motivational themes, the capacity to delay action, and the
capacity to deliberate and plan. Arguing for a very broad
test of voluntariness, Bursten states that ‘the psychological
standard for voluntariness may go beyond the element of
lack of feeling that one is being coerced, and it goes beyond
a narrowly construed knowledge test. Fantasy, fright,
despair, internal psychological fact, undue influence, and a
product test all widen the scope of relevant data and take it
194 Forensic evaluation and treatment in the criminal justice system
beyond the cognitive sphere; they open the doors to emo-
tional and judgmental factors’ (Bursten 1979, p. 354).
Under the Supreme Court’s purely objective test of
voluntariness, mental health professionals may have little
to offer the court, other than to interpret the effects
of potentially coercive police behavior on the particular
defendant in question. Here, the capacities of individual
defendants may be relevant if it can be demonstrated that
they might be unusually susceptible to persuasion short
of outright coercion.
Since, however, individual states retain the power to
pass and interpret their statutes and constitutions in a
manner more protective of individual rights than required
by the federal Constitution (as interpreted by the Supreme
Court), it is still possible that some states will choose to
retain free will as a necessary part of the definition of
voluntariness. In these cases, forensic clinicians will con-
tinue to be of great benefit to the courts.
COMPETENCE TO PLEAD GUILTY
Plea bargaining accounts for between 87 per cent and
95 per cent of dispositions in criminal cases (American
Bar Association 1968). A guilty plea involves three ele-
ments. First, it is a waiver of three constitutional rights:
(i) the privilege against self-incrimination; (ii) the right
to a jury trial; and (iii) the right to confront witnesses.
Second, it is the defendant’s consent to the judge’s enter-
ing a judgment against him or her and passing sentence.
Third, it is an admission of actual guilt (Note 1971). Guilty
pleas are entered in return for the guarantee of a disposi-
tion that is usually less severe than the maximum sen-
tence for the crime charged. Such pleas are required to be
both voluntary and informed (Newman 1966; McClure
1971; Tofie 1971; Davis 1972; Gallagher 1974; Dix 1977;
Westen and Westin 1978).
Critics of the plea bargaining process argue that it
gives prosecutors (Newman 1966; Davis 1972; Alschuler
1976) and judges (Whitman 1967; Newman and NeMoyer
1970; McClure 1971; Ferguson 1972-1973; Gallagher 1974)
too much power and leads to overcharging in order to
have bargaining room, thereby fostering disrespect for
the criminal process (Alschuler 1968; McClure 1971;
Gallagher 1974; Westen and Westin 1978). For plea bar-
gaining to operate appropriately, there must be effective
assistance of counsel (Alschuler 1975), which is often not
provided in practice.
Proponents argue that plea bargaining saves consid-
erable court time and is supposed to foster the rehabili-
tative process, since the defendant usually admits guilt
(Newman and NeMoyer 1970; Ferguson 1972–1973).
Whitman (1967) points out that defendants benefit from
the lesser sentences obtained through plea bargaining;
and another author (see Note 1977) argues that if plea
bargaining worked as it is supposed to, it would be
preferable to a trial, since the defendants’ direct parti-
cipation in the process would allow them to feel more
satisfied with the outcome.
Legal issues
Despite criticisms of both the theory and practice of plea
bargaining, it is clearly logistically essential to the oper-
ation of the criminal justice system. As a result, there exists
a strong pressure not to interfere with the operation of
the process, which translates into strong resistance on the
part of appellate courts to overturn convictions obtained
through plea bargaining. For example, Judge Tuttle of the
Fifth Circuit wrote in 1957 that,‘[A] plea of guilty entered
by one fully aware of the direct consequences, including
the actual value of any commitments made to him by the
court, prosecutor, or his own counsel, must stand unless
induced by threats (or promises to discontinue improper
harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are
by their nature improper as having no proper relation-
ship to the prosecutor’s business (e.g., bribes)’ (Shelton v.
United States 1957).
Before competence-to-stand-trial jurisprudence became
established in the 1970s, trial judges were accorded consid-
erable autonomy in accepting defendants’ guilty pleas.
Even before that, however, some appellate courts had
begun to argue that formal determination of competence
might be necessary before such pleas could be accepted. In
a series of cases, the Ninth Circuit Court of Appeals
reversed convictions obtained through guilty pleas because
the trial judge had made no inquiry on the record con-
cerning the defendant’s competence to enter the plea
(Jones v. United States 1967; Castro v. United States 1968;
United States v. Tweedy 1969; Sieling v. Eyman 1973). The
Supreme Court concurred with that reasoning in 1969
in Boykin v. Alabama (1969). Following the rationale of
Johnson v. Zerbst (1938) that the law presumes against the
waiver of a constitutional right, the Court placed the bur-
den of proof on the state to demonstrate that a plea has
been voluntarily and intelligently made.
The federal courts have for almost a century required
that guilty pleas be voluntary and intelligent (Bram v.
United States 1897; Machibroda v. United States 1962;
Boykin v. Alabama 1969; McCarthy v. United States 1969),
and that a guilty plea may not be accepted from an incom-
petent defendant (Youtsey v. United States 1899; People v.
Maynard 1932; Forthoffer v. Swope 1939); however, they
have not effectively operationalized those concepts in the
context of guilty pleas. Most courts have followed the trad-
itional approach of examining external coercive factors,
rather than the specific characteristics of the defendants
themselves (see Note 1984).
There has been considerable discussion in the case law
as to the standard for competence to plead guilty. It seems
clear that a general determination of competence to

stand trial does not also establish that a defendant is com-
petent to plead guilty (In re Williams 1958; Brookhart v.
Janis 1966). Several courts have held that a defendant
who pleads guilty without benefit of counsel should be
held to a higher standard than one who is represented
(Brady v. United States 1970; Heberling 1972).
Justice Hufstedler of the Ninth Circuit, in a 1970 dis-
sent, wrote that, ‘To the extent that they differ, the stand-
ards of competence to plead guilty are higher than those
of competence to stand trial. A defendant is not competent
to plead guilty if mental illness has substantially impaired
his ability to make a reasoned choice among the alterna-
tives presented to him and to understand the nature of the
consequences of his plea’ (Schoeller v. Dunbar 1970). Three
years later, the Ninth Circuit adopted that position in
Sieling v. Eyman (1973, at 214), holding that a judge must
go beyond the usual colloquy with the defendant because
that method does not measure the defendant’s capacity by
a ‘high enough standard.’ Chernoff and Schaffer (1972)
argue, however, that standing trial requires a higher level
of competence than does pleading guilty, because more is
expected of a defendant during trial.
Evaluation
There is little judicial guidance for the evaluator asked to
offer opinions on a defendant’s competence to plead guilty.
Justice Tuttle’s dissent in Shelton v. United States (1957)
was adopted by the Supreme Court in 1970 as criteria for
competence to plead guilty (Brady v. United States 1970).
The Wisconsin Supreme Court offered more specific
guidelines in State v. Burke 1964). It stated that it is feasible
for judges seeking to ensure that a guilty plea is valid to do
the following: (i) determine the extent of the defendant’s
education and general comprehension; (ii) establish the
accused’s understanding of the nature of the crime with
which he is charged and the range of punishments
it carries; (iii) ascertain whether any promises or threats
have been made to him in connection with his appearance,
his refusal of counsel, and his proposed plea of guilty;
(iv) alert the accused to the possibility that a lawyer may
discover defenses or mitigating circumstances that would
not be apparent to a layperson such as the accused; and
(v) make sure the defendant understands that if he cannot
afford it, counsel will be provided at no expense to him.
Most of these criteria require legal rather than clinical
knowledge, and focus on objective factors rather than the
defendant’s actual capacities. Evaluators should therefore
familiarize themselves with case law in their jurisdictions
and make sure to address specific criteria, if any. Beyond
that, they should attempt to apply their clinical knowledge
to questions concerning how the defendant’s mental dis-
order (if any) might impair his or her capacity to under-
stand the relevant legal information and apply it in his/her
case, and also to any problems that would render him/her
unusually susceptible to external coercion.
Criminal competence 195
COMPETENCE TO WAIVE REPRESENTATION
BY COUNSEL
The second major decision a defendant must make after
arrest is whether or not to seek or accept representation
by counsel. The right to counsel, after notice and a hear-
ing, is the most central right accorded a defendant in
contemporary U.S. criminal jurisprudence. Until Gideon
v. Wainwright (1963) and Argersinger v. Hamlin (1972),
criminal defendants in state courts were not guaranteed
that lawyers would be provided for them. Once counsel
had to be provided for indigent defendants, a number of
potential difficulties were predictable, indeed inevitable.
Could defendants choose their own lawyers and force
the state to pay? If not, how would the court provide
counsel?
Legal issues
Statutory law in the United States has permitted criminal
defendants to be represented by attorneys since the found-
ing of the country. Historically, at a time when represent-
ation by counsel was prohibited for most defendants, it
could be forced on an unwilling defendant in English law
in Star Chamber proceedings. In those infamous proceed-
ings, the purpose of counsel was not chiefly to assist the
defendant but rather to serve as a guarantor of the valid-
ity of the defendant’s plea; if the plea were found to be
inaccurate or frivolous, the attorney could be punished
along with the defendant (Faretta v. California 1975).
The U.S. Congress passed a law in 1789, one day before
the Sixth Amendment was even proposed, that has been
cited as guaranteeing defendants the right to represent
themselves: ‘In all courts of the United States, the parties
may plead and manage their own causes personally or by
the assistance of such counsel or attorneys at law as by the
rules of the said courts respectively shall be permitted to
manage and conduct causes therein’ (Judiciary Act 1970).
But that statute left room for judicial discretion in deter-
mining whether or not to permit defendants to represent
themselves in specific cases.
There has remained a tension between developing
law in the areas of defendants’ rights to counsel and their
right to self-representation, with some courts and scholars
holding the rights to be mutually exclusive and others
holding them to be complementary (see Note 1965; Grano
1970; see Comment 1971; see Comment 1973; see Note
1976; Chused 1977; Berger 1986). The constitutional argu-
ments have been heavily colored by practical consider-
ations. In the days before defendants were held to have the
absolute right to representation by counsel, opponents of
that right argued that it would delay trials and cost the
state too much money, and also that defendants were quite
capable of presenting their own defenses. As the right
became established, however, critics of self-representation
argued that it would delay and disrupt trials for defendants
196 Forensic evaluation and treatment in the criminal justice system
to conduct their own defenses, and that departure from
representation by counsel would constitute violation of
due process. Judges were concerned that they would be
placed in an impossible situation if defendants attempted
to waive counsel, with an appeal almost guaranteed no
matter which choice they made.
The U.S. Supreme Court has addressed the issue of
waiver of representation in several decisions since Johnson
v. Zerbst (1938). There, the Court held that,‘This protect-
ing duty imposes the serious and weighty responsibility
upon the trial judge of determining whether there is an
intelligent and competent waiver by the accused. While
an accused may waive the right to counsel, whether there is
a proper waiver should be clearly determined by the trial
court.’ It went further to hold that, ‘courts indulge every
reasonable presumption against waiver of fundamental
constitutional rights,’ and that ‘We do not presume acqui-
escence in the loss of fundamental rights.’ (Johnson v.
Zerbst 1938, p. 465).
In Adams v. United States ex rel. McCann (1942), the
Court ruled that the Constitution does not require that a
defendant be represented by counsel. The Court did not
explicitly address the issue of whether the state could force
an attorney on a defendant, although it implied rejection
of that power in dicta: ‘When the administration of the
criminal law … is hedged about as it is by Constitutional
safeguards for the protection of the accused, to deny him
in the exercise of his free choice the right to dispense with
some of these safeguards … is to imprison a man in his
privileges and call it the Constitution.’
In Carter v. Illinois (1946), the Supreme Court held
that the right to counsel ‘does not, however, mean that
the accused may not make his own defense … neither the
historic conception of Due Process nor the vitality it
derives from progressive standards of justice denies a
person the right to defend himself … . Under appropriate
circumstances, the Constitution requires that counsel be
tendered; it does not require that under all circumstances
counsel be forced upon a defendant.’
In Von Moltke v. Gillies (1947), the Court held that, ‘To
be valid such waiver [of counsel] must be made with an
apprehension of the nature of the charges, the statutory
offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges
and circumstances in mitigation thereof, and all other
facts essential to a broad understanding of the whole
matter.’ The Court has also made it clear that it will not
permit defendants to use their right to self-representation
to delay trials or to create phantom issues to raise on
appeal (United States v. Abbamonte 1966).
In Faretta v. California the 6–3 Supreme Court majority
held that the right to self-representation exists not only in
the federal Constitution but also in federal law, and in the
constitutions and laws of the majority of states. It held that
the Sixth Amendment grants to the accused personally the
right to make his defense, and held that to force unwanted
counsel on a defendant ‘can only lead him to believe that
the law contrives against him’ (Faretta v. California 1975,
at 834). It reiterated that waiver of counsel must be know-
ing and intelligent. Trial judges, however, clearly retain
discretion in ensuring that trials satisfy due process and
fundamental fairness requirements (McKastle v. Wiggins
1984). Thus, although Faretta guaranteed the right to self-
representation to competent defendants, it did not oper-
ationalize the ‘knowing and intelligent waiver’ requirements,
and left considerable authority to state courts and trial
judges to force counsel on unwilling defendants.
Forensic clinicians who are asked to evaluate the com-
petence of defendants who express a wish to represent
themselves must therefore familiarize themselves with case
law in their jurisdictions (if any) and consult with practic-
ing attorneys to determine the criteria used for the deci-
sion. Although there are no previous published reports
that provide quantitative data on the actual incidence of
waiver, a 1962 survey of federal district court judges and
prosecutors (see Note 1963) reported that the overall rate
at which defendants waived counsel was 20 per cent, with
some districts reporting that 81–100 per cent of defendants
represented themselves. The variation depended in part
on the willingness of judges to permit waiver. The respond-
ents also indicated that most defendants who waived
counsel pleaded guilty. In another study (Comment 1973),
most Illinois trial judges surveyed reported that fewer than
10 per cent of misdemeanants and fewer than 5 per cent of
felons waived representation. They reported that fewer
than 5 per cent of pro se felony defendants were acquitted,
while in some courts more than half of pro se defendants
charged with misdemeanors were found not guilty. The
judges felt that the defendants’ obvious guilt was the main
reason for conviction, rather than lack of representation.
They reported that their decisions as to whether to permit
waiver were based chiefly on the seriousness of the charges,
rather than on the competence of the defendants.
One author (see Note 1976) suggests several reasons
for waiver:
1 Some defendants have little trust in the fairness of the
system, because public defenders are overworked, or
because they work for the state.
2 Other defendants have too much trust in the system;
many who believe themselves to be innocent feel no
need for representation because they assume that they
will be found not guilty.
3 Still other defendants wish to get a political agenda into
court and believe that assigned counsel will not further
that goal.
4 Some defendants believe that they can explain their
defenses better than an attorney could.
5 Some defendants desire the opportunity to speak to
the jury without undergoing cross-examination.
6 Some defendants believe that they can win the jury’s
sympathy if they appear without an attorney.
7 Finally, some defendants who are not indigent wish to
avoid paying attorney’s fees.
 Criminal competence 197

Another author (see Note 1965) pointed out that experi- defendants who indicated a desire to fire their attorneys,
enced and wily defendants may believe that by refusing but not to represent themselves, were thought to be com-
counsel they may lay grounds for future appeals should petent by the clinical evaluators and the courts.
they be convicted, and that other defendants may wish to
speed up the process.
In the only prospective study in the literature, Miller
Evaluation
and Kaplan (1992) studied 100 consecutive defendants
Under Faretta v. California (1975), and now Godinez v.
admitted for evaluation of, or treatment to regain, compe-
Moran (1993), the only issue is a defendant’s capacity to
tence to stand trial. Data were collected from defendants
understand that he or she is relinquishing their right to
concerning their understanding of the reason for their
be represented by counsel, and to understand that he or
commitments, their reasons for wishing to discharge
she might as a result be at a disadvantage in court. Justice
their attorneys and/or to represent themselves (if they did),
Black’s opinion in Von Moltke v. Gillies (1947), which
their opinions of their competence, their views toward
has been adopted by some courts, would require that, in
attorneys in general and their attorneys in particular.
addition, a defendant must be aware of more specific legal
Defense attorneys for each defendant were contacted
issues, including ‘all other facts essential to a broad under-
by telephone; they were asked who raised the question of
standing of the whole matter.’ Therefore, clinical evaluators
their clients’ competence and why the issue had been
need to be aware of the specific criteria for competence to
raised. For those defendants without representation, the
represent one’s self (if any) in their jurisdictions.
assistant district attorney responsible for prosecuting the
The ‘knowing and intelligent’ test for competence to
case was contacted. The ultimate outcome of the evalu-
waive counsel is conceptually and operationally similar
ation was also recorded.
to the ‘rational as well as factual understanding’ (Dusky v.
Twenty-four defendants had attempted to discharge
United States 1960) test for competence to proceed and
their appointed attorneys; eleven of those had expressed
should pose no greater difficulty to non-legal evaluators.
the desire to waive counsel altogether and to represent
In both situations, evaluators must be careful to determine
themselves. The twenty-four defendants who wished to
that defendants are not simply parroting back information
fire their attorneys were not statistically different from
without comprehending it, or using accurate informa-
the total sample with respect to age, diagnosis, or type of
tion in a psychotic fashion. They must also avoid equating
crimes charged.
poor judgment or lack of agreement with the evaluator or
The eleven defendants who wished to waive counsel
the attorney as indicating, per se, lack of competence. If,
and represent themselves chiefly argued that they could
however, competence requires that defendants have the
represent themselves better than any attorney, or that it
capacity to represent themselves effectively in court, clin-
was their constitutional right to represent themselves,
ical evaluators may not be capable of providing mean-
while the thirteen who merely wished to fire their lawyers
ingful opinions to the court, and the involvement of an
criticized their current attorneys because of spending too
attorney may be necessary (Gutheil et al. 1987).
little time with them, not listening to them, or trying to
Evaluators also need to be aware of the strong legal
coerce them into entering guilty or insanity pleas.
presumption (both theoretical and practical) against
The attorney respondents reported that the issue of
waiver of any major constitutional right, especially the
competence had been raised chiefly by defense attorneys
right to counsel, and need to be prepared to defend
in 84 per cent of cases. By far the major reason for rais-
opinions that a defendant is competent to waive counsel
ing the issue of competence was the perception that the
against strong judicial biases to the contrary.
defendant was too mentally ill or retarded to understand
what the attorney was telling him or her (93 per cent);
other frequent reasons were a history of mental illness
and a need (perceived by the attorney) for treatment.
COMPETENCE TO WAIVE A JURY TRIAL
Of the eleven defendants who asserted their privilege
to represent themselves, nine were found incompetent to Legal issues
proceed and to represent themselves by the courts. The
remaining two were initially felt to be competent to rep- Unlike the other choices available to defendants that are
resent themselves, but both subsequently deteriorated discussed in this section on competence, the Supreme
without psychotropic medication and were ultimately Court has held that there is no constitutionally protected
found to be incompetent to waive representation at some right, even for competent defendants, to waive a jury trial
stage of the proceedings, before treatment was reinstated. and instead be tried before a judge alone: ‘A defendant’s
All these defendants were suffering from major psychiatric only constitutional right concerning the method of trial
disorders, which raised legitimate concerns about their is to an impartial trial by jury. We find no constitutional
competence apart from any desire to waive counsel, and impediment to conditioning a waiver of this right on the
their desires to represent themselves were clearly related consent of the prosecuting attorney and the trial judge
to their psychoses. By contrast, eleven of the thirteen when, if either refuses to consent, the result is simply that
198 Forensic evaluation and treatment in the criminal justice system
the defendant is subject to an impartial trial by jury – the
very thing the Constitution guarantees to him’ (Singer
v. United States 1965). Some states have, however, cre-
ated statutory rights to waive jury trial in certain cir-
cumstances; for example, Alaska provides defendants
who plead insanity a unilateral right to waive a jury trial
(Alaska Stat. 1982).
Just as defendants (or their attorneys) may have their
reasons for preferring a judge to a jury, so the other par-
ticipants may prefer that a jury – representatives of the
community – bear the decision-making burden. Particu-
larly in notorious crimes, elected officials (such as judges)
often prefer not to have to make the final judgment.
Nevertheless, although judges retain ultimate authority
over the nature of the fact-finder, they are not prohibited
from acceding to a competent defendant’s request for a
bench trial, and in fact frequently do, since bench trials
save the government considerable time and money. When
a defendant seeks to waive the right to a jury trial, however,
that waiver must be ‘knowing and intelligent,’ (Johnson v.
Zerbst 1938), as with any other waiver of a constitutional
right.
Evaluation
Since the right is not constitutionally protected, courts
have not provided explicit criteria for competence to
waive a jury trial; nevertheless, by analogy with compar-
able evaluations, ‘knowing and intelligent waiver’ should
include the defendant’s knowing that he or she has the
right to be tried by a jury of his/her peers, that he/she is
seeking to give up that right, and that he/she might receive
a longer sentence, or be convicted rather than found not
guilty, by so doing. Clinical evaluators should also seek to
analyze the defendant’s reasons for seeking a bench trial
(or avoiding a jury trial) as part of the evaluation of the
intelligence of the decision.
COMPETENCE TO WAIVE APPEALS
Legal issues
The right to challenge a conviction, either through direct
appeals through state and federal courts or through
habeas corpus proceedings, is an established part of
Anglo-American law. Indeed, appeals of capital sentences
through the state courts have been required by the major-
ity of state supreme courts (People v. Stanworth 1969;
People v. Silagy 1984; Hamblen v. State 1988). As with other
fundamental rights, a person has the right, under appro-
priate circumstances, to waive the right and to forego an
appeal. As with other competence issues, the questions
concern the circumstances under which the right can be
waived. The appeals process was developed not just to pro-
tect defendants from convictions obtained improperly but
to preserve the dignity of the law by providing review of
trial court decisions for propriety, particularly in sen-
tences of death or long-term imprisonment. In practice,
the appeals process is usually invoked only for lengthy sen-
tences, since the duration of the appeals process itself may
well exceed the length of shorter sentences.
Therefore, when defendants decline to pursue appeals
of sentences for which state law provides automatic
review, or to withdraw appeals already in progress, the
interests of the state are also involved, and the courts are
not required to accept the prisoner’s choice. Bonnie (1990)
argues that the autonomy of a competent defendant should
be respected in these areas, despite the acknowledged
interests of the state in the reliable administration of
justice, particularly when it involves the death penalty.
But courts have generally held that mitigating evidence,
either at sentencing or on appeal, may be introduced over
the defendant’s objection (People v. Deere 1985; State v.
Hightower 1986; Hamblen v. State 1988).
The controlling standard for evaluating the validity of
waiver of appeal is the Supreme Court’s ruling in Johnson
v. Zerbst (1938), that waiver is ‘an intentional relinquish-
ment or abandonment of a known right or privilege,’
which must be ‘knowing and intelligent.’ In Fay v. Noia
(1963), the Court addressed jurisdictional issues between
state and federal courts, and the problem of implied waiver
when a prisoner does not file or raise issues on appeal in a
timely fashion. It held, ‘… nor does a state court’s finding
of [implied] waiver bar independent determination of the
question by the federal courts on habeas, for waiver affect-
ing federal rights is a federal question.’
In Rees v. Payton (1966), Rees had been sentenced to
death for murder. After his direct appeals had been
denied, he filed a habeas petition in federal court, which
was rejected by district and appeals courts. The Supreme
Court granted certiorari; while the petition was pending,
Rees directed his attorney to withdraw it and to forego
any further legal action. The attorney advised the court that
he had doubts of his client’s competence and arranged
for a psychiatric examination. That examiner concluded
that Rees was incompetent to withdraw his appeal; Rees
refused to cooperate with state psychiatrists.
The Supreme Court ruled that it had jurisdiction to
determine whether or not to permit Rees to withdraw his
petition; but without a formal determination of his com-
petence, it could arrive at no decision. It remanded the
case to the federal district court to hold a competence
hearing, asking that court to determine whether Rees had
the ‘capacity to appreciate his position and make a rational
choice with respect to continuing or abandoning further
litigation or on the other hand whether he is suffering
from a mental disease, disorder, or defect which may
substantially affect his capacity in the premises.’
Although the Court has not been reluctant to find
competent waiver in capital cases (Gilmore v. Utah 1976;
Hammet v. Texas 1980), it has noted that the criteria for
competence to waive appeal must be especially demanding,

given the consequences of accepting it (Rees v. Payton
1966; Rumbaugh v. Procunier 1985).
Evaluation
Bonnie (1990) has argued that because of the typical
ambivalence of deathrow inmates who express a desire to
withdraw appeals (White 1987), and because of the severe
depression from which many of them suffer, which might
cause them to despair despite legitimate issues for appeal,
it is crucial that affective factors be considered equally with
cognitive ones, and that clinical evaluators be able to per-
suade the courts to consider them, given the cognitive
emphasis in the case law. It is also important to make evalu-
ations over time, reflecting the tendency of such inmates
to change their minds.
As with other issues associated with the death penalty,
evaluators may be expected to have strong positions on
the morality of capital punishment and must be careful
to minimize the effects of those views on their opinions.
COMPETENCE TO BE EXECUTED
Clinician involvement in the evaluation of competence to
be executed and in the treatment of incompetent death-
row inmates is clearly the most controversial subject in
current forensic psychiatry. As neither the American
Psychiatric Association nor the American Academy of
Psychiatry and the Law has taken a definitive stand on the
ethical issues involved, and neither is likely to do so, this
section takes no position on the morality of participation
by clinicians. After a discussion of the legal issues involved,
it presents a discussion of the ethical arguments that have
been presented in the literature and suggests guidelines
for practice for those clinicians who do choose to become
involved in the process.
Legal issues
Anglo-American jurisprudence has prohibited the exe-
cution of incompetent (often called ‘insane’ by lawyers)
prisoners for over 300 years. Edward Coke (1680) wrote
that the execution of a madman ‘can be no example to
others.’ Blackstone (1769) linked the prohibition against
executing the incompetent to the possibility that,‘Had the
prisoner been of sound memory, he might have alleged
something in stay of judgment or execution.’
The U.S. Supreme Court first addressed the issue in
1897 in Nobles v. Georgia (1897); it rejected Nobles’ con-
tention that he was due a jury trial on his allegation
of incompetence to be executed, reasoning that such a
process would give the prisoner too much control over
the process. It held that the exemption of the incompetent
Criminal competence 199
from execution was not a right but a privilege under
common law; and it therefore permitted the legislature
to prescribe the proper procedure for evaluating inmates’
claims of post-sentencing incompetence.
In Phyle v. Duffy (1948), the Court avoided constitu-
tional issues by reverting to state remedies. In Solesbee v.
Balcom (1950), the Court rejected Solesbee’s arguments
that he was entitled to notice and an adversarial hearing
at which he could have counsel, cross-examine witnesses,
and present evidence on his alleged incompetence for exe-
cution. The Court held that the state procedure did not
deny due process, and compared it to reprieve or clemency
powers usually vested in the executive branch and there-
fore free from judicial review. Justice Frankfurter dissented,
arguing that a reprieve from execution while incompetent
was not a matter of executive discretion but was subject to
due process safeguards that should at least provide the
opportunity for the inmate to be heard.
In Caritativo v. California (1958), the Court upheld
California law, which vested sole responsibility for rais-
ing the issue of competence for execution in the prison
warden. Citing Solesbee, the Court majority agreed that
the courts lacked jurisdiction to consider an inmate’s
competence or to review a warden’s decision unless the
warden initiated a competence inquiry. Frankfurter again
dissented, suggesting that some review of the warden’s
actions was warranted.
Finally, in Ford v. Wainwright (1986), in its first opin-
ion after holding that the Eighth Amendment applied to
the states, Justice Marshall’s plurality opinion held that
Florida’s procedures, under which the governor had sole
decision-making authority on competence determin-
ations, and that inmates had no rights to a hearing or other
due process protections, was unconstitutional. The opin-
ion stated, ‘… whether [the prohibition’s] aim be to pro-
tect the condemned from fear and pain without the
comfort of understanding, or to protect the dignity of
society itself from the barbarity of exacting mindless
vengeance, the restriction [against executing an incom-
petent inmate] finds enforcement in the Eighth Amend-
ment’ (Ford v. Wainwright 1986, p. 410). Marshall’s opinion
further held that the Florida procedures violated due
process and were deficient in protecting information for
federal review; it held that an inmate is entitled to an evi-
dentiary hearing in federal court on his competence. The
majority opinion did not address criteria for incompe-
tence, leaving state definitions controlling.
Justice Powell’s separate opinion mentioned several
theories supporting prohibiting the execution of an incom-
petent inmate: (i) to preserve the inmate’s ability to
make arguments on his own behalf; (ii) execution of an
incompetent has no deterrent value; (iii) to permit the
inmate to make religious preparations (Ford v. Wainwright
1986).
It is therefore clear that states may not execute incom-
petent inmates, and that the determination of competence
requires an adversarial hearing with at least some of the
200 Forensic evaluation and treatment in the criminal justice system
due process protections available at the trial stage (such
as the right to be present, to present witnesses, and to
cross-examine adverse witnesses). The opinions do not
explicitly require that the inmate be represented by coun-
sel, or that hearings be judicial in nature.
According to state attorneys general (Miller 1988),
fewer than half of the thirty-eight states with capital pun-
ishment had developed specific procedures for disposi-
tion of incompetent inmates. Maryland has passed a
statute that provides for automatic commutation of the
death sentence of an incompetent inmate to life without
parole (Ann. Code Maryland 1987), but so far no other
state has followed suit.
The right of an inmate found incompetent for execu-
tion to refuse treatment designed to restore his compe-
tence has not been definitively settled. Few states address
the issue explicitly, although a number of attorneys gen-
eral believe that no such right exists because of the state’s
interest in carrying out its sentences (Miller 1988). The
Supreme Court was presented with that issue in Perry v.
Louisiana (1990). Perry had been found competent for
execution, but only as long as he received antipsychotic
medication. The trial court therefore ordered the medica-
tion continued, involuntarily if necessary. The state courts
denied review – the Supreme Court initially granted
certiorari, but then vacated it, directing the state courts
to consider the issue in light of Washington v. Harper
(1990). The Louisiana Supreme Court subsequently pro-
hibited the involuntary administration of medication to
restore competence for execution, holding that it violated
state constitutional prohibitions against cruel and unusual
punishment and protection of privacy (State v. Perry
1992). The South Carolina Supreme Court reached a simi-
lar conclusion (Singleton v. State 1992).
Evans (1991) points out that the purpose of treatment
in the Perry situation is clearly for the benefit of the state,
not the prisoner, as required by Harper.
Ethical issues
The American Medical Association has adopted the posi-
tion that physicians may not participate in executions, but
has not specified what is meant by ‘participate’ (Current
Opinions 1986). Some authors have argued that any
involvement in capital cases, including pretrial evalu-
ations, is unethical because it legitimizes the death penalty
(Foot 1990). Others have countered that if conscientious
clinicians refuse to participate, it will abandon the field to
those less qualified, and will ultimately harm the prisoners
(Brodsky 1986; Ward 1986; Bonnie 1990; Foot 1990). The
strong division among practitioners was demonstrated by
a survey of forensic psychiatrists in which 39 per cent of
respondents felt that treating inmates to restore their com-
petence for execution was ethical (Weinstock 1987).
While the American Psychiatric Association has not
taken a position on the issues involved, the Section of
Psychiatry and Behavioral Sciences of the National
Medical Association has issued a position statement that
both evaluation and treatment are ethical (National
Medical Association 1986). That position is supported by
Brodsky (1986), Ward (1986), Stone (1984), and Wallace
(1987).
While Resnick (1987) argues that no moral distinc-
tions can be made among participation at various stages
of a capital prosecution, some authors have attempted to
do so. In a state that at the time did not have capital pun-
ishment, the Council of the Medical Society of the State
of New York (Rosner et al. 1991) issued a policy state-
ment interpreting the AMA’s prohibition against physi-
cian participation in an execution to bar any physician
involvement in evaluation for capital sentencing or for
competence for execution. It is less clear whether treat-
ment of incompetent inmates is permissible; the state-
ment holds that physicians may ‘relieve acute suffering
of a convicted prisoner while he is awaiting execution’
(Rosner et al. 1991, at 18).
Radelet and Barnard (1986) and Sargent (1987) also
draw the line at the evaluation of competence for execu-
tion or the treatment of incompetent inmates. Foot (1990)
and Appelbaum (1990) would permit evaluations but not
treatment. Appelbaum argues that evaluation does not
involve a doctor–patient relationship, while treatment
inevitably does. A number of authors (including several
who have been directly faced with the responsibility of
treating incompetent inmates) argue that if clinicians are
to provide treatment, it is essential that treatment be
totally separated from assessment (Radelet and Barnard
1986; Ward 1986; Heilbrun and McClaren 1988; Brodsky
undated).
Several authors recognize the moral dilemma faced by
those opposed to capital punishment and suggest that
such clinicians be granted a ‘conscientious objector’ status
with respect to evaluation and treatment of incompe-
tent deathrow inmates (Bonnie 1990; Brodsky undated;
Salguero 1986; see Note 1986). Brodsky (1986) suggests
the creation of a classification of ‘death-qualified’ clin-
icians, comparable to death-qualified jurors. Such clin-
icians would have to be neither unalterably opposed to,
nor strongly in favor of, the death penalty. He acknow-
ledges the problems inherent in such classifications – that
(as with death-qualified juries) such clinicians are much
more likely to favor than to oppose capital punishment,
and therefore are more likely to find inmates competent
for execution.
Evaluation
Brodsky (undated) discusses three problems with evalu-
ations of competence for execution:
1 Reliability: There are basic problems with diagnostic
assessments in general. They are inherently subjective,
and when combined with the vague criteria for such

competence and the emotional context of capital
punishment, unreliability is inevitable.
2 Frame of reference: Although no checklists or specific
tests have to date been developed for evaluation of
competence for execution, it is reasonable to use the
model of competence to stand trial; the criteria are
comparable, and the professions have consider-
able experience with such evaluations.
3 The differential impact of findings of competence and
incompetence: Even clinicians without strong opposi-
tion to capital punishment as a concept may find it very
difficult to render opinions that would lead directly to
the execution of the evaluated inmate.
As discussed above, the Supreme Court has discussed,
but not made explicit, criteria for competence for execu-
tion. It appears generally clear that competence at least
requires that the inmate know he has been sentenced to
death and why (Florida Stat. 1935). Some commentators
would also require the capacity to assist counsel in ongoing
appeals, and several states have made that requirement
explicit statutorily (Mo. Rev. Stat. 1978; Utah Code 1982;
Miss. Code 1985). Others would require the capacity to
make peace within whatever religious system in which
the inmate believes.
Based on their practical experience, Heilbrun and
McClaren (1988) provide a comprehensive outline of
procedures to be followed by evaluators:
• Make sure to understand the jurisdiction’s legal criteria.
• Make sure that the inmate understands the purpose
and potential consequences of the evaluation.
• Attempt to secure minimally adequate surroundings
for the evaluation.
• Obtain as much independent information as possible.
• Use established instruments, such as the Minnesota
Multiphasic Personality Inventory (MMPI) and
Wechsler Adult Intelligence Scale (WAIS), to bolster
reliability and validity.
• Document the data base and reasoning for the opin-
ion, to facilitate legal review.
Treatment to competence for execution
Perhaps the majority of clinicians would choose not to
provide such treatment (which responsibility would gen-
erally fall on correctional or state hospital clinicians, many
of whom would not consider themselves ‘forensicists’ in
Appelbaum’s typology and would decline to use treatment
to facilitate an execution). Without any official ethical
prohibition against the practice, however, state-employed
clinicians might find themselves in trouble with their
employers. It should be noted that the Louisiana (State v.
Perry 1992) and South Carolina (Singleton v. State 1992)
Supreme Courts cited the integrity of the medical profes-
sion as another reason to prohibit forced medication to
restore competence for execution.
Criminal competence 201
For clinicians who do elect to provide treatment, the
issue of informed consent becomes paramount, even if
not legally required (Ward 1986; Miller 1988; Brodsky
1990). There are in fact some inmates who, while compe-
tent, would prefer to be executed rather than spend the
rest of their lives in prison, and clinicians should not place
their own beliefs above those of their patients (Ward
1986; Miller 1988).
COMPETENCE TO TESTIFY
The issue of capacity to testify in court may be raised
with respect to both defendants and factual witnesses. In
the case of defendants, potential issues of capacity to test-
ify are usually handled as part of the general construct of
competence to stand trial. Challenges to the capacities of
factual witnesses are raised most often in the case of child
witnesses; as such they are discussed in detail in Part Five.
Mental health professionals may also occasionally be
called on to provide information to courts about the
capacities of adult factual witnesses, though most courts
have held that in ordinary circumstances the fact finder is
capable of determining the credibility of witnesses with-
out the opinions of experts (Slovenko 1987). A Minnesota
appeals court ruled that the testimony of a psychologist
concerning an automobile driver’s tendency to admit
blame regardless of fault based on a history of childhood
physical and sexual abuse was inadmissible. The court
held that the jury, through its own knowledge and experi-
ence, was capable of assessing the credibility of a witness
(Scott v. Johnson 1985). In addition, there is the very real
risk that psychiatric examination of witnesses, particu-
larly victims, may serve to intimidate and dissuade them
from reporting crimes (Goldstein 1980).
Legal issues
Even where expertise would seem to be relevant, it is
often barred. In Massachusetts v. Laguer (1991), defense
counsel chose not to introduce expert testimony to attack
the credibility of the victim, who suffered from schizo-
phrenia. The defendant argued on appeal that such testi-
mony could have informed the jury concerning cognitive
deficits common in schizophrenia that would be relevant
to the victim’s reliability as a witness. The state high court
held that such testimony was ‘at its best speculative,’ and
affirmed the conviction.
On the other hand, expertise is sometimes found to
be probative in specific cases. In a robbery and burglary
case, the seventy-two-year-old victim’s personal physician
testified that she needed medication for ‘mild mental
deterioration’ and ‘memory lapses.’ A defense psychiatrist
diagnosed the victim as suffering from ‘Amnesia Confabu-
latory Syndrome’, characterized by rambling, confusion,
202 Forensic evaluation and treatment in the criminal justice system
and ‘a tendency to fabricate forgotten events by filling in
the details through some sort of suggestion.’ The jury
convicted the defendant; the trial court lacked the author-
ity to set aside the verdict, but noted that it went against
the weight of the evidence. The appeals court (which did
have the authority) set aside the verdict, citing the expert’s
testimony and numerous observations from the trial record
indicating the victim’s confusion (New York v. Roberts
1991). Courts have reversed convictions when psychiatric
testimony on a witness’s credibility was barred (People v.
Rensing 1964; People v. Parks 1976).
As with other types of capacities in the criminal justice
system, courts are unlikely to craft per se rules concerning
witness’s reliability based on their membership in a particu-
lar class of persons. As an example, the Georgia Court of
Appeals recently affirmed a trial court’s decision to permit
a witness with an IQ of 40 to testify (Cook v. Georgia 1991).
The appellate court held that the record indicated that the
trial judge’s examination of the witness showed that she
could conceptualize the truth, and that she could distin-
guish between right and wrong answers in a series of ques-
tions administered by the judge. Other courts have affirmed
verdicts in cases in which testimony from mentally retarded
witnesses (Bussey v. Kentucky 1990; New York v. Berardicurti
1990; South Dakota v. Warren 1990; Wagner v. Indiana
1990) was essential.
Courts are more likely to permit expert testimony on
a general topic where significant expertise exists than on
the capacity of a particular defendant. Two major areas
where such expertise exists are eyewitness testimony and
hypnotically enhanced testimony.
EYEWITNESS TESTIMONY
There is a significant body of experimental research on the
reliability and validity of eyewitness testimony (Hilgard
and Loftus 1979). The data indicate that free recall is con-
sistently more accurate but less complete than informa-
tion obtained through structured interviews. The wording
of questions can significantly affect responses; what would
be called leading questions in court significantly distort
answers. For example, asking ‘Did you see the car?’
produced over three times more positive responses than
‘Did you see a car?’ when no car had been present in the
videotape seen by the subjects.
Based on the research data, it appears that the most
effective method to use in interrogating eyewitnesses is to
ask them first for free recall, and then to ask more specific
(but as non-leading as possible) questions, documenting
the information obtained at each part of the interview.
HYPNOTICALLY ENHANCED TESTIMONY
Hypnosis can be an effective technique for recovering
memories lost to psychogenic amnesia, but its use pre-
sents significant problems in the forensic context. The
extensive research literature indicates that the demand
characteristics of the hypnotic situation are likely to lead
to confabulation in suggestible subjects, and that ‘memo-
ries’ so established are difficult to challenge in court (Miller
and Stava 1997). For these reasons, some courts have
barred hypnotically enhanced testimony for years (People
v. Ebanks 1897).
As research provided greater understanding and
acceptance of hypnosis as a clinical tool, courts began to
hold that hypnosis affects the credibility, but not the admis-
sibility, of witness testimony (Harding v. State 1968; United
States v. Miller 1969; State v. McQueen 1978; Clarke v. State
1979; Key v. State 1983; People v. Boudin 1983). In an affi-
davit submitted to the U.S. Supreme Court, Orne (Quaglino
v. California 1978) recommended five criteria for the
admissibility of hypnotically enhanced testimony:
• That the hypnosis be performed by a specially trained
psychiatrist or psychologist who is not otherwise
involved in the case.
• That only the bare minimum of facts should be pre-
sented in writing to the clinician to document the pre-
hypnosis database.
• That the subject should be asked for free recall before
hypnosis is attempted.
• That a videotape of the entire session be made.
• That no one except the clinician and the subject
should be in the room during the session(s).
These criteria were adopted by several other courts (State v.
Hurd 1981; State v. Armstrong 1983). Subsequently, how-
ever, difficulties in implementing these procedures have
caused Orne to call for absolute rejection of hypnotically
enhanced testimony (Orne 1983). Reiser (1986), a psy-
chologist who established the hypnosis training program
for the Los Angeles Police Department, has argued that
confabulation is rare and that the accuracy of recall after
hypnosis is 80 per cent. Spiegel and Spiegel (1984) and
Beahrs (1989) take an intermediate position, acknow-
ledging the problems with hypnosis but arguing that it
does product sufficiently accurate information so that it
should be admissible.
Currently, courts have taken differing positions on the
admissibility of hypnotically enhanced testimony. Courts
in Illinois (People v. Harper 1969), Virginia (Greenfield v.
Commonwealth 1974), California (People v. Shirley 1982),
Florida (Bundy v. State 1986), and the military courts mar-
tial system (United States v. Andrews 1976) continue to bar
all testimony from witnesses who have been hypnotized.
At the other extreme, courts in Wyoming (Chapman v.
State 1982), Louisiana (State v. Wren 1983), North Dakota
(State v. Brown 1983), and the Ninth Circuit (United States
v. Awkward 1979) have held that testimony from witnesses
who have been hypnotized may not be barred for that
reason.
Many courts have adopted intermediate positions.
Those in Wisconsin (State v. Armstrong 1983), Idaho
(State v. Iwakiri 1984), Colorado (People v. Romero 1987),
and the federal Fourth Circuit (McQueen v. Garrison
1987) and Fifth Circuit (Wicker v. McCotter 1986) have

held that the court must first determine if the proposed
testimony is reliable before it may be admitted.
Courts in Minnesota (State v. Koehler 1981), Arizona
(State ex rel. Collins v. Superior Court 1982), Nebraska
(State v. Patterson 1983), New York (People v. Hughes 1983),
North Carolina (State v. Peoples 1984), Washington (State v.
Martin 1984; Michigan (State v. Nixon 1984), Missouri
(Aisbach v. Bader 1985), Massachusetts (Commonwealth v.
Kater 1985), Hawaii (State v. Moreno 1985), Kansas (State
v. Haislip 1985), Georgia (Walraven v. State 1985), Alaska
(Contreras v. State 1986), Delaware (State ex rel. Elliotte v.
State 1986), and Illinois (People v. Wilson 1987) have held
that witnesses who have been hypnotized may testify
only to their recollections prior to the hypnosis.
The Supreme Court has not ruled definitively on the
admissibility of testimony from hypnotized witnesses,
except to hold that to bar the testimony of a defendant
who has been hypnotized would violate the defendant’s
rights under the Fifth (self-incrimination), Sixth (com-
pulsory process), and Fourteenth (due process) amend-
ments (Rock v. Arkansas 1987).
Evaluation
Psychiatrists who are asked to offer opinions on the
capacities of particular witnesses should be aware of the
ethical requirement that diagnoses not be made unless
the psychiatrist has personally examined the witness, at
least in the case of prominent national figures (American
Psychiatric Association 1998). It is not clear whether
diagnostic opinions may be ethically proffered without a
personal examination if sufficient information (medical
records, reports by those who have examined the defend-
ant, etc.) is available. Opinions on general topics, such as
the reliability or validity of eyewitness testimony or hyp-
notically enhanced testimony, may of course be given
without examining witnesses.
Forensic experts should be aware of the numerous
research data on the reliability and validity of eyewitness
testimony (with and without hypnotic enhancement),
and should be able to utilize those data in forming opin-
ions for the court. Evaluators who are retained to hypno-
tize witnesses should be aware of the jurisdiction’s rules
on the admissibility (if any) of hypnotically enhanced
testimony, and should make sure that they conform to
those rules. If such testimony is admissible, but there are
no legal rules governing the process, clinicians would be
well advised to follow Orne’s rules, as they appear to have
gained the most support, both clinically and legally.
MISCELLANEOUS COMPETENCIES
In addition to the competencies previously discussed,
defendants’ capacities may be questioned at any stage
of the proceedings. In this section, competencies that
Criminal competence 203
are questioned and researched less frequently are
discussed.
Competence to waive extradition
Defendants may be arrested at the request of law enforce-
ment officers in other jurisdictions because of outstand-
ing criminal charges in those jurisdictions. Alternately,
defendants arrested for a crime in one jurisdiction may
have more serious charges in another, resulting in a request
for extradition from the latter. Defendants have the legal
right to challenge such transfers and are entitled to a for-
mal hearing if they do so. In order to participate compe-
tently in such hearings (and, indeed, to initiate the hearing
by challenging the extradition proceedings themselves),
defendants must be aware that charges are pending in the
other jurisdiction(s), the nature of the charges and pos-
sible outcome of prosecution, the fact that extradition may
be challenged, and the holding jurisdiction’s criteria for
granting extradition.
Competence to be evaluated
Since a variety of issues related to criminal prosecution
involve professional evaluations of defendants (e.g., com-
petence to stand trial, insanity, sentencing, release), ques-
tions may arise concerning the capacity of the defendant
to participate meaningfully in the evaluation itself, includ-
ing the capacity to consent to those evaluations that require
such consent in a particular jurisdiction. As there are no
statutory or case law definitions of competence to be evalu-
ated, and the potential for an infinite regress is obvious
(Miller and Musholt 1988), clinicians will have to utilize
concepts from informed consent and general competence
law to guide their evaluations.
Competence to be sentenced
Competence is not a fixed characteristic of defendants
but can vary according to individual predispositions and
to the stresses faced during a criminal prosecution. There-
fore, a determination that a defendant is competent to
plead guilty or to stand trial does not foreclose changes in
competence during those procedures (Drope v. Missouri
1975). It is possible that a defendant will competently
enter a guilty plea, or competently go through a trial, but
become disturbed after conviction but before sentence is
passed.
There is little in statutes or case law to define compe-
tence to be sentenced, a procedure that requires relatively
little participation by the defendant. Since the issue is
raised infrequently, attorneys and judges have little prac-
tical experience in dealing with it. Evaluators will there-
fore have to operationalize criteria for evaluation based
on the particulars of the individual case.
204 Forensic evaluation and treatment in the criminal justice system
As usual with legal issues, there are two major factors
to be considered. First, there are the rights of defendants
and their capacities to exercise those rights. The major
process that occurs in most cases after conviction but
before sentencing is the preparation of a presentence
report, usually by the probation and parole department.
Agents interview the defendant and other relevant per-
sons, and review past records concerning the defendant.
The report is then presented to the trial judge to aid in
the determination of sentence; if the defendant is incar-
cerated, it is also available to the parole board to assist it
in making release decision.
It is therefore potentially a very important document
in jurisdictions with flexible sentencing guidelines. In
order for defendants to minimize the adverse conse-
quences of conviction, they must be able to participate in
the preparation of the document by providing informa-
tion to the agent compiling it; and they must also be able
to raise appropriate objections to inaccurate information
contained in it and to the agent’s conclusions and recom-
mendations based on that information.
The other major factor is the dignity of the law. Even if
the facts of the case are straightforward and the presen-
tence report is accurate and fair, defendants must be aware
that they have been convicted of a crime, the reasons
for the conviction, the range of penalties for that crime
(if such a range exists), and why the court is justified in
imposing a sentence upon them. Without such under-
standing, it is unseemly for the court to impose sentence.
In practice, requests for evaluation of competence to
be sentenced arise chiefly when a defendant’s behavior
changes significantly after trial, and he or she suddenly
appears mentally or behaviorally disordered. Threatened
or attempted suicide is a frequent trigger for raising the
question of competence. The attorney raising the ques-
tion is usually more concerned with the client’s mental or
emotional health than with the specific legal capacities
involved; raising the issue of competence is often the most
effective method available to direct clinical attention to
those perceived problems. The problem thus often boils
down to providing appropriate clinical treatment to a dis-
ordered individual, which will both effect a remission in
the mental disorder and satisfy the concerns of the legal
system that were expressed in terms of competence.
Competence to face revocation of
probation or parole
Although probation and parole may be revoked without
the level of formal hearing required to secure a conviction
originally, persons facing such restrictions on their lib-
erty retain due process rights to require the state to prove
that they have violated the conditions under which they
were released. To take advantage of these rights, they must
be aware of the conditions of their probation or parole,
that they are alleged to have violated these conditions,
and they must be able to assist their attorneys in prepar-
ing a defense to the allegations.
COMPETENCE IN THE JUVENILE
JUSTICE SYSTEM
Forensic issues in general involving minors are addressed
in greater detail in Part Five; specific aspects of mental
health evaluations in the criminal justice system applic-
able to juveniles are summarized in this section. The sub-
ject is of increasing importance, as the number of serious
crimes committed by juveniles continues to increase, and
these crimes are being committed by ever younger juven-
iles. Courts are trying juveniles as adults with increasing
frequency and are even passing death sentences (Penry v.
Lynaugh 1989).
Until the nineteenth century, the criminal law made
few formal distinctions based on age, except for the very
youngest children. From its inception, the juvenile justice
system was conceived of as rehabilitative, rather than
punitive or deterrent. Attorneys appointed to represent
juveniles were often guardians ad litem, who did what
they felt was best for their clients, rather than adversarial
advocates for their clients’ wishes.
Proceedings were informal, and juveniles were not pro-
vided with many of the due process protections afforded
adult defendants – a fact noted explicitly by the Supreme
Court in Kent v. United States (1966) in upholding the
District of Columbia circuit court’s statutory right to
waive a juvenile defendant into adult court after a ‘full
investigation,’ but without an adversarial hearing.
Shortly after Kent, however, the Court’s thinking
underwent a significant change. Critics were increasingly
attacking the whole parens patriae concept of state action
when it involved loss of liberty for the subject of the state’s
beneficence. The Court responded to both the libertarian
criticisms and to mounting evidence that many of the
supposed treatment facilities were warehouses at best,
at least as bad as jails, and prisons at worst.
In the landmark case In re Gault (1967), the Court
rejected the rehabilitation–punishment distinction, held
that the due process clause of the Fourteenth Amend-
ment applied to juveniles, and that juveniles facing crim-
inal charges in juvenile court should be afforded the
same procedural protections as were available in adult
courts. Three years later, in In re Winship (1970), the Court
extended the procedural rights of juvenile defendants
to include the right to a jury trial and a requirement of
proof beyond a reasonable doubt for conviction. Although
the Court backed away somewhat by reversing itself
the next year and holding that the right to a jury trial was
not constitutionally required (McKeiver v. Pennsylvania
1971), the principle that potential loss of liberty
warranted significant procedural protections had been
established.

These changes have impacted on issues of competence
in juvenile court. Many courts have adopted an adversarial
model parallel to adult criminal procedure (McMillian
and McMurtry 1969–70; Institute of Judicial Administra-
tion 1980). But many juvenile courts have persisted in
using a ‘best interests’ model and have not implemented
the Gault reforms in practice (Kay and Segal 1972–73).
In some courts, defense attorneys are still expected to
report to the judge any admissions of guilt made by their
clients (Ferster, Courtless, and Snethen 1970–71).
Competence to stand trial
The major problems in discussing competence to stand
trial in juvenile court are the major variations in practice
among jurisdictions, and even from court to court within
jurisdictions; as discussed above, that practice varies from
a relatively strict due process model comparable to adult
court to persistent parens patriae models in which the
judge and attorney for the juvenile make all the import-
ant decisions.
Only eighteen states, the District of Columbia, and
the federal courts explicitly bar proceedings against
incompetent juveniles; in those jurisdictions, the Dusky
v. United States (1960) criteria are generally used (Grisso,
Miller, and Sales 1987). Many of the other jurisdictions
utilize diversion to the mental health system for appar-
ently incompetent juveniles; but twelve states bar psychi-
atric evaluation prior to adjudication, reasoning that to
do so would introduce legally irrelevant material into the
criminal proceedings.
Grisso and colleagues (1987) list four possible reasons
to bar prosecution of incompetent juveniles:
1 Constitutional prohibitions.
2 Protection from stress or duress; several courts have
held that the vulnerability of juveniles requires addi-
tional protection (Haley v. Ohio 1948; Gallegos v.
Colorado 1962; Briones v. Juvenile Court of Denver
1975).
3 Diversion into the mental health system; the authors
argue that the need for diversion with juveniles is no
greater than with adults, so that special diversion pro-
cedures are not only unnecessary but have a great
potential for misuse. In addition, there are significant
jurisdictional and intersystem problems with juveniles
because transfer procedures are often not explicit in
the statutes (In re Two Minor Children 1979).
4 The need to present an adequate defense. This reason
assumes adversarial representation and active partici-
pation by the juvenile, which is clearly not true in all
jurisdictions.
Existing case law has generally not distinguished compe-
tence criteria for juveniles from those for adults, although
dicta in some decisions suggest that factors such as age,
IQ (as a reflection of the juvenile’s functional age) (State
Criminal competence 205
in Interest of Causey 1979), school achievement, mental dis-
order or emotional disturbance, prior court experience,
and demeanor during contacts with counsel may be rele-
vant to competence. Given the lack of uniformity among
courts as to how active juveniles are expected to be in
their defenses (Grisso, Miller, and Sales 1987), practical
application of the Dusky criteria is far from uniform.
Stein (1983) has presented a list of specific capacities
to consider when evaluating juvenile competence, based
on the author’s experience in juvenile court, though this
has not been validated. Because of the wide variability
among courts as to the expectations of the juvenile, the
weight given to the various factors would be expected to
vary significantly.
All jurisdictions mandate inpatient commitment of
incompetent juveniles, as is essentially the case with adults.
In half of those jurisdictions, the juvenile court retains
jurisdiction, whereas in the other half, a determination of
incompetence results in automatic dismissal of the charges
(Grisso, Miller, and Sales 1987).
Barnum et al. (1989) report on the characteristics of
juveniles referred for psychiatric evaluation at a large urban
juvenile court clinic. Because of the unusually high level
of resources at their clinic, judges feel free to refer any-
one they feel should be evaluated; in addition, state law
requires evaluation of all juveniles being considered for
waiver to adult court. As a result, 1000 of the juvenile
court’s annual case load of 1500 were referred. The authors
compared eighty referred juveniles with sixty who were
not referred, and reported that referral was more likely
for younger children, those who had been in special edu-
cation, those whose fathers fell into the lowest socio-
economic class, those with previous referrals to welfare
agencies, those with longer previous arrest records, and
those with a history of being abused. There was no signifi-
cant difference between the groups on the nature of the
criminal charge.
The authors concluded that since few of the variables
correlated with referral are associated with treatment
response, it is unlikely that treatment was the major rea-
son for referral. They suggest that a high risk for recid-
ivism was a more likely motivating factor.
Waiver into adult court
The two major criteria presented by Barnum et al. (1989)
for waiver into adult court in their jurisdiction, high
predicted rate of recidivism and unresponsiveness to
treatment, are also the major criteria in most jurisdic-
tions (Barnum 1987). It appears that a juvenile’s capacity
to participate in the waiver proceedings themselves has
received little attention from the courts.
In his article on evaluation of juveniles facing waiver,
Barnum (1987) concentrates on the determination of
treatability, arguing that clinicians are not experts in pre-
dicting recidivism. He points out that ‘treatment’ for the
206 Forensic evaluation and treatment in the criminal justice system
juvenile justice system includes special education, foster
care, and work programs in addition to traditional mental
health services. Evaluators therefore need to be familiar
with a variety of social and educational support systems in
their communities. They must also consider the effects of
incarceration itself on the juvenile’s future behavior.
Competence to waive Miranda rights
After Gault, courts were faced with the problem of ensur-
ing that juveniles could exercise their new due process
rights (Melton 1981). Because younger juveniles have not
developed adult cognitive skills, their capacities to make
valid decisions about waiving counsel and making confes-
sions is questionable. Studies of cognitive capacity (Inhelder
and Piaget 1968; Niemark and Lewis 1968) demonstrate
that abstract reasoning, inductive and deductive logical
processes, and cognitive complexity begin to take on the
form characteristic of adult thinking between ages eleven
and thirteen, but there is considerable variability from one
child to another that must be taken into consideration in
the legal context.
Grisso and colleagues (Grisso and Pomicter 1977;
Grisso 1980; Grisso and Manoogian 1980; Grisso 1981)
have carried out the major studies in the area of compe-
tence to waive Miranda rights. In a series of studies of
juveniles in the St. Louis area, Grisso’s group investigated
the frequency of police interrogation of juveniles, par-
ents’ behavior during interrogation of their children and
their attitudes toward their children’s due process rights,
differences between juveniles’ and adults’ comprehension
of the Miranda warnings and comprehension of the func-
tions of interrogation and representation by counsel, and
juveniles’ reasoning about the effects of waiving their
Miranda rights (Grisso 1981).
Grisso reported that police interrogation of juveniles
charged with felonies occurred in over 60 per cent of cases;
juveniles usually responded to the questioning. Juveniles
under age fifteen virtually never invoked their rights; those
aged fifteen and sixteen did so in only 12–14 per cent of
cases. These rates were substantially lower than in studies
of adult waiver. Juveniles were typically accompanied by
their parents, but were not represented by counsel, during
police interrogation. Parents were not found to be effective
advocates in these situations; in fact, in the majority of
cases they appeared to believe that their children should
confess.
Juveniles under age fifteen, and those aged fifteen and
sixteen with IQs below 80, were significantly more likely
to be incompetent to understand their Miranda rights
than a comparable adult sample. One-third to one-half of
the fifteen- and sixteen-year-olds with IQs above 80 were
also incompetent, but this is comparable with the adult
controls in the study. Comparable results were obtained
by Ferguson and Douglas (1970). Contrary to the beliefs
of many courts (Fare v. Michael C. 1979), prior experience
with the juvenile justice system was not correlated with
greater comprehension.
Based on his research, Grisso (1981) has recommended
that confessions obtained from juveniles under age fifteen
be excluded unless counsel was present during the inter-
view. Courts have not yet, however, made significant use of
psychological and developmental research on juveniles in
their decisions, focusing instead on police conduct rather
than on the individual capacities of juvenile suspects.
Given the lower cognitive capacities of juveniles, it is even
more important to consider such capacities in determin-
ing the admissibility of confessions.
Courts have examined, but generally rejected, per se
exclusionary rules. Thus, the California Supreme court
rejected a per se rule requiring parental consent for juven-
ile waivers in People v. Lara (1967), and other courts have
followed this lead (State v. Melanson 1972; Theriault v.
State 1974). Given the lack of advocacy demonstrated by
parents in Grisso’s study, parental involvement does not
seem to be of much use in any event.
A federal court of appeals in West v. United States
(1968) expanded on the Lara decision, holding that courts
should consider the juvenile’s age, intelligence, and pre-
vious court experience as well as the circumstances of the
interrogation, such as its length and the care with which
due process was applied, in determining the validity
of waiver of Miranda rights. The Supreme Court also
provided a list of factors to be considered in waiver deter-
minations: ‘The totality approach permits – indeed it
mandates – inquiry into all the circumstances surround-
ing the interrogation. This includes evaluation of the
juvenile’s age, experience, education, background, and
intelligence, and whether he has the capacity to under-
stand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving
those rights’ (Fare v. Michael C. 1979, at 725). Several
courts have examined the possibility of a per se exclusion
of confessions from juveniles, and have rejected the con-
cept (Cotton v. United States 1971; United States v. Ramsey
1973; In the Interest of Thompson 1976). Another court
refused to base exclusion solely on the IQ of the juvenile
(In the Interest of Stiff 1975).
Given the dramatic shift away from consideration of
the characteristics of defendants in adult waiver cases
(Colorado v. Connelly 1986), it is not clear that the Supreme
Court would continue to hold to this position if presented
with a case today. These decisions came before the avail-
ability of research such as Grisso’s; but there have not
been subsequent decisions that have cited such research
in refining criteria.
Attorneys’ right to be present during
psychiatric examinations
Defense attorneys have frequently claimed that they have
the right to be present at psychiatric examinations of

their clients, arguing that it is a critical stage of the pros-
ecution. Federal courts have uniformly rejected such
claims; in United States v. Albright (1968), the Fourth
Circuit held that there is no constitutional right to have
an attorney present during a court-ordered psychiatric
examination for sanity, since that might defeat the pur-
pose of the examination. The same rationale was given
by the Second Circuit (United States v. Baird 1969); the
Seventh Circuit (United States v. Bohle 1971); and the
Fifth Circuit (United States v. Cohen 1976), The courts in
Baird and Cohen also held that a psychiatric examination
is not a critical stage of the proceedings. The Supreme
Court has not directly addressed the issue, although it let
decisions in Cohen and Baird stand by denying certiorari.
In Buchanan v. Kentucky (1987) Buchanan argued that
exclusion of his counsel from the psychiatric examination
requested by both prosecution and defense violated his
Sixth Amendment rights. The Court affirmed the convic-
tion without even addressing the issue.
Reported state court decisions are fewer, but are consis-
tent with the federal cases. In People v. Galimanis (1989)
the defendant has no constitutional right to counsel dur-
ing a psychiatric examination, citing Cohen.
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(N.F. Jud. Cir. Navy-Marine Corps Judiciary, Phila., Pa.,
Oct. 6, 1976).
United States v. Awkward, 597 F.2d 667 (9th Cir.), cert.
denied, 444 U.S. 885 (1979).
United States v. Baird, 414 F.2d 700, 711 (2d Cir. 1969);
cert. denied, 396 U.S. 1005 (1970).
United States v. Bohle, 445 F.2d 54, 67 (7th Cir. 1971).
United States v. Borum, 464 F.2d 896 (10th Cir. 1972).
United States v. Cohen, 530 F.2d 43 (5th Cir. 1976), cert.
denied, 429 U.S. 855 (1976).
United States v. Miller, 411 F.2d 825 (1969).
United States v. Ramsey, 367 F. Supp. 1307 (1973).
United States v. Tweedy, 419 F.2d 192 (9th Cir. 1969).
United States v. Wilson, 263 F. Supp. 528 (D.C. 1966).
Utah Code Ann. Sec. 77-15-2 (1982).
Von Moltke v. Gillies, 332 U.S. 708, 724 (1947).
Wagner v. Indiana, 562 N.E.2d 421 (Ind. Ct. App. 1990).
Wallace, D.W. 1987. Incompetency for execution: the
Supreme Court challenges the ethical standards of the
mental health professions. Journal of Legal Medicine
8, 265–81.
Walraven v. State, 336 S.E.2d 798 (Ga. 1985).
Ward, B.A. 1986. Competency for execution: problems in
law and psychiatry. Florida State University Law Review
14, 35–107.
Washington v. Harper, 110 S. Ct. 1028 (1990).
Webster, C., Jenson, F., Stermac, C., et al. 1985.
Psycho-educational assessment programmes for
forensic psychiatric patients. Canadian Psychologist
26, 50–3.
Weinstock, R. 1987: Controversial ethical issues in
forensic psychiatry. Panel presented at the 18th Annual
Meeting of the American Academy of Psychiatry and
the Law, October 16, Ottawa, Canada.
Weiter v. Settle, 193 F. Supp. 318, 321-22 (W.D. Mo. 1961).
West v. United States, 399 F.2d 467 (1968).
Westen, P., Westin, D. 1978. A constitutional law of
remedies for broken plea bargains. Columbia Law
Review 66, 471–539.
White, W.S. 1987. Defendants who elect execution.
University of Pittsburgh Law Review 48, 853–77.
Whitman, P.A. 1967. Judicial plea bargaining. Stanford
Law Review 19, 1082–92.
Wicker v. McCotter, 783 F.2d 487 (5th Cir.), cert. denied, 106
S. Ct. 3310 (1986).
Wisc. Stat. Ann. Ch. 971.14 (1989).
Wisc. Stat. Rev. Ch. 971.14 (1989).
Youtsey v. United States, 97 F. 937 (6th Cir. 1899).
 25
Criminal responsibility

ROBERT D. MILLER

‘A person is not to be excused for criminally offend-
ing simply because he wanted to very, very badly.’
United States v. Lyons, 731 F.2d 243 (5th Cir. 1984)
In order for defendants to be found responsible for
crimes, the state must prove, beyond a reasonable doubt,
both that they committed an illegal act (actus reus) and
that they possessed the necessary intent to commit that
crime (mens rea). If both cannot be established beyond
a reasonable doubt, then the verdict must be not guilty,
and the defendant must be released. The effects of men-
tal disorder may sometimes justify the conclusion that no
mens rea was present.
Even if both actus rea and mens rea can be proven,
however, mentally disordered defendants may have their
degree of criminal responsibility reduced because of their
disorders. Most states provide for findings of not guilty
by reason of insanity (NGRI, also called innocent by rea-
son of insanity, not guilty by reason of mental disease or
defect, or guilty but for insanity), which absolves a defend-
ant of all criminal liability (but does not prevent subse-
quent commitment to a mental health facility).
Even if the impairment caused by mental disorder
does not satisfy the legal criteria for insanity, it may still
reduce the severity of the criminal charge, or may play a
part in dispositional decisions after conviction. This chap-
ter discusses the various ways in which mental state at the
time of the crime may impact on the ultimate disposition
of the case against a defendant.
NOT GUILTY BY REASON OF INSANITY
The exculpation from criminal liability of mentally dis-
ordered persons has been a part of Western jurispru-
dence for thousands of years. Common law recognized
the insanity defense as far back as the Greeks. Aristotle
(see Irwin 1985) argued that behavior caused by ignor-
ance or compulsion was less blameworthy than that
done voluntarily, and thus should result in reduction or
elimination of punishment. The Jewish law also excused
behavior caused by mental impairment: ‘It is an ill thing
to knock against the deaf mute, an imbecile or minor. He
that wounds them is culpable, but if they wound others,
they are not culpable … for with them only the act is of
consequence, while the intention is of no consequence’
(Mishna 8A).
Early English law permitted exculpation only for
those with severe cognitive disorders. In 1265, Bracton,
Archdeacon of Barnstable, held that, ‘An insane person is
one who does not know what he is doing, is lacking in
mind and reason and is not far removed from the brutes’
(see Bromberg 1979). Lord Matthew Hale (1847) in 1671
held that, ‘Such a person is laboring under melancholy
distempers hath yet ordinarily as great understanding as
ordinarily a child of fourteen years hath, is such a person
as may be guilty of treason or felony.’
In the case of Rex v. Arnold (1724), Judge Tracy held
that, ‘Not every kind of frantic humor … points him out
to be a madman as is exempted from punishment; it
must be a man totally deprived of his understanding and
memory and doth not know what he is doing, no more
than an infant, than a brute, or a wild beast.’
In the nineteenth century, English law began to expand
the criteria for exculpation. In the case of Rex v. Hadfield
(1800), the defense attorney Erskine argued that,‘By insan-
ity, I mean that state when the mind is under the influence
of delusions, where the reasoning proceeds upon some-
thing which has no truth … but vainly built upon some
morbid image formed in a distempered imagination.’ The
trial judge directed a verdict of insanity.
The culmination of the cognitive test for insanity
came in the 1843 case of Daniel M’Naghten. Medical testi-
mony (from physicians who had only observed M’Naghten
during the trial) was unanimous that M’Naghten was
insane, the jury so found, and he was hospitalized. Queen
Victoria was outraged and convened the Law Lords to
answer a series of questions about the insanity defense.
The Lords responded that the standard should be, ‘To
establish a defense on the ground of insanity, it must be
214 Forensic evaluation and treatment in the criminal justice system
clearly proved that at the time of the committing of the act,
the party accused was labouring under such defect of rea-
son, 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 M’Naghten test was adopted by most jurisdic-
tions in the United States, but it was criticized by clin-
icians, including Isaac Ray (1871), who argued that a
psychotic person may appear rational and satisfy a strict
cognitive test, and that delusions may affect a person’s
ability to apply knowledge in a reasonable fashion. As a
result of these criticisms, alternate tests were adopted in
several jurisdictions.
The New Hampshire Supreme Court held in 1871
that the M’Naghten test was legally unsound, and stated
that if an expert testifies that the accused’s mental disease
prevented him from telling right from wrong, the deci-
sion is a matter of fact for the jury (State v. Jones 1871). In
Alabama, the court held that a defendant should be found
insane if the crime was the product of a mental disease,
and if, as a result of the mental disease, the defendant had
either lost the power to distinguish between right and
wrong, or had lost the capacity to avoid doing the act
(Parsons v. State 1887).
The most prominent incarnation of the product test
came from the United States Court of Appeals for the
District of Columbia Circuit in Durham v. United States
(1954); the test was simply, ‘An accused is not criminally
responsible if his unlawful act was the product of mental
disease or defect.’ Judge Bazelon, who authored the
Durham Rule, was soon disenchanted with the conclu-
sory nature of the testimony that resulted from the
increased influence of psychiatric experts, and in a series
of decisions attempted to limit it, first by narrowing the
definition of mental disease or defect to an abnormal
condition of the mind that substantially affects mental or
emotional processes and substantially impairs behavioral
controls (McDonald v. United States 1962). When that
appeared insufficient, the Court of Appeals then ruled
that expert witnesses should confine themselves to testi-
fying on the evidence relevant to the jury’s decision, but
should not draw conclusions from that evidence or pro-
vide opinions on the ultimate question of legal sanity
(Washington v. United States 1967). When that also
proved ineffective, the court finally abandoned Durham
altogether, although it retained the McDonald definition
of mental disease (United States v. Brawner 1972).
Several states responded to criticisms of the cognitive-
only M’Naghten test by adding a volitional component,
the so-called ‘irresistible impulse test.’ Perhaps the most
famous example of its use was by Clarence Darrow in the
Leopold and Loeb case (Weinberg 1957). The main criti-
cism of the test was that it did not go far enough; it did
not cover situations in which defendants’ psychoses
cause them to lose control over their behaviors over time,
rather than suddenly and impulsively. For that reason,
many states abandoned the test in favor of the broader
American Law Institute test. Several states continue to
have a version of the test on their books, however.
Georgia (O.C.G.A. Sec. 16-3-3) states ‘A person shall
not be found guilty of a crime when, at the time of the
act … the person, because of a mental disease, injury, or
congenital deficiency, acted as he did because of a delu-
sional compulsion as to such act which overmastered his
will to resist committing the crime. There are three elem-
ents to this defense: 1) The defendant was laboring under
a delusion. 2) The criminal act was connected with the
delusion. 3) The delusion was as to a fact which, if true,
would have justified the act.’ The statute has recently
been approved in two appeals court cases (Appling v.
State 1997; Dutton v. State 1997).
The Kentucky statutes [Ky. Rev. Stat. 504.020(1)]
have the standard American Law Institute test; but in
1994, a state appeals court (Mattingly v. Commonwealth
1994) restated the test as ‘unable to appreciate the wrong-
fulness of his conduct or to resist his impulse to com-
mit the illegal deed,’ which could be interpreted as an
irresistible impulse test.
The Oklahoma statutes continue to contain a version
of the irresistible impulse test, although there appears to
be an internal conflict within the statute itself: ‘… under
these provisions the test of responsibility for committing
the crime is mental capacity to distinguish between right
and wrong as applied to a particular act, and to under-
stand its nature and consequences, and defendant is not
criminally responsible, if by insanity he did not have
the will and mental power to refrain from committing
the act.’ [Ok. Rev. Stat. Title 22 Sec. 115 (West 1986)].
Notwithstanding the apparent conflict, Professor Robert
Richardson of the University of Oklahoma Law School
(personal communication, December 14, 2000) stated that
there has been no irresistible impulse test in Oklahoma
in practice for the past 40 years.
While the D.C. Circuit Appeals Court was struggling
with Durham, the American Law Institute (ALI) had
promulgated another test for insanity, which contains
both a cognitive and a volitional prong: ‘A person is not
responsible for criminal conduct if at the time of such
conduct as a result of mental disease or mental defect he
lacks substantial capacity either to appreciate the crimin-
ality of his conduct or to conform his conduct to the
requirements of law’ (American Law Institute 1955).
When the Appeals Court abandoned Durham, it adopted
the American Law Institute (ALI) test, as did the major-
ity of states.
With the growing shift to a ‘law-and-order’ social
agenda in the 1980s, the insanity defense came under
attack across the country. Bills to repeal the insanity
defense altogether were introduced in a number of state
legislatures, as well as in the U.S. Congress after Hinckley’s
attempt to assassinate President Reagan. Abolition had
previously been thought to be unconstitutional, although
the Supreme Court had never directly addressed the issue.
State court decisions in Washington (State v. Strasburg

1910), Louisiana (State v. Lange 1929), and Mississippi
(Sinclair v. State 1931) had held that the opportunity
to present an insanity defense was constitutionally
protected. Legislation was introduced in New York
(New York Criminal Justice Reform Act of 1975) and
Pennsylvania (MacKay and Kopelman 1988) to abolish
the defense, but was withdrawn because of fears that it
was unconstitutional.
More recently, however, the defense has been abolished
statutorily in Montana (Montana Code 1981), Idaho
(Idaho Code 1982), Utah (Utah Code 1986), Nevada (Nev.
Rev. Stat. Sec 33, 193.220 1995), and Kansas (Kansas
Statutes Annotated Sec. 22-3219 1996). Montana retains
the ALI criteria for sentencing. Abolition has been upheld
by at least two state supreme courts (State v. Korell
1984; Idaho v. Searcy 1990); and the Supreme Court of
Maryland, by judicial fiat, effectively abolished the insan-
ity defense (Pouncy v. State 1983). The Supreme Court of
Nevada, however, found the Nevada legislature’s aboli-
tion of the insanity defense unconsitutional (Finger v.
State 2001).
Other states have limited the insanity defense short
of abolition. The burden of proof has been shifted from
the prosecution to the defense in Indiana (Indiana Code
1981), Pennsylvania (18 Pennsylvania Const. 1983), Alaska
(Alaska Stat. 1984), and Arizona (Arizona Rev. Stat.
1984–85), as well as in federal law (Comprehensive Crime
Control Act of 1984). A number of critics have argued
that the volitional prong, grafted onto M’Naghten by the
ALI test, is too broad and less capable of scientific analy-
sis, and critics have called for its elimination (Fingarette
and Hasse 1979; American Psychiatric Association 1983;
American Bar Association 1984), despite arguments
that opinions on cognition are no more reliable than on
volition (Rogers 1987). Several states (Interim Hearing
1983; Alaska Stat. 1984) and the federal government
(Comprehensive Crime Control Act of 1984) have there-
fore removed the volitional prong of the test; essentially
restoring the M’Naghten standard.
Most of the lengthy works on the insanity defense
have been critical. The classic treatise, by Goldstein and
Katz (1963), argues that neither case law, statutes, nor
scholarly articles have provided a compelling rationale
for the necessity of an insanity defense providing excul-
pation for otherwise criminal behavior. They suggest that
the political reason for the continuation of the defense is
that it permits the state to incarcerate persons whose
mental states would otherwise have led to a not guilty
finding because of lack of mens rea.
Halpern (1977) argues that the success of the defense
depends more on political, social, and legal factors than
on the mental state of the defendant. He suggests that
there is no rationale for exculpation based on mental dis-
order when other behavioral determinants, such as
heredity, poverty, family environment, and cultural depriv-
ation, do not. He also argues that psychiatrists cannot
measure the degree of mental disorder with sufficient
Criminal responsibility 215
accuracy to be of assistance to the courts. Abolition
would prevent the practice in some states of forcing the
insanity defense on unwilling defendants, and would also
stop the practice of lengthy commitment following a
‘successful’ defense.
Perr (1985) argues that the practical problems of
establishing effective procedures to make reasonable and
socially acceptable determinations of responsibility out-
weigh the theoretical advantages of the insanity defense.
Like Halpern, he points to the imprecision of diagnostic
systems, and he also discusses the difficulty of demon-
strating causal relationships between mental conditions
and behavior. He is also concerned about the effect of
participating in the process on the public image of psych-
iatry. He concludes that abolition of the defense would
have negligible effects on the practice of criminal justice,
but it might focus attention on the plight of mentally dis-
ordered prisoners.
Morse (1978) had also previously supported abolition
of the insanity defense, based on criticisms that psych-
iatrists lack the ability to diagnose or predict behavior with
sufficient accuracy and on the difficulty of distinguish-
ing between an ‘irresistible impulse’ and an impulse not
resisted. More recently, however, he has reconsidered his
position and concluded that the symbolic value of retain-
ing the defense outweighs the problems in its adminis-
tration (Morse 1985). Although the American Medical
Association (1984) had initially supported an abolitionist
position, negotiation with the American Psychiatric
Association resulted in a compromise statement (Joint
Statement of the AMA and the APA 1985).
Disposition and evaluation
Until the civil rights movement in the 1960s and 1970s,
most states provided for automatic and indeterminate
commitment of persons found not guilty by reason of
insanity. After the Supreme Court’s decision in Baxstrom
v. Herold (1966), which held that prisoners transferred to
a mental health facility could not be kept beyond their
maximum criminal sentences unless they met the state’s
criteria for civil commitment, several state courts and
legislatures applied that reasoning to insanity acquittees.
The Michigan Supreme Court, in People v. McQuillan
(1974), held that persons found not guilty by reason of
insanity could be committed only for a brief evaluation
period, and their commitments could not be extended
unless they met civil commitment criteria. The New
Jersey Supreme Court held that committed insanity
acquittees were entitled to a due process hearing within
sixty days to justify continued involuntary hospitaliza-
tion (State v. Krol 1975).
The U.S. Supreme Court reversed that trend in Jones
v. United States (1983), in which a 5–4 majority distin-
guished criminal and civil patients in order to justify
automatic hospitalization of insanity acquittees and
216 Forensic evaluation and treatment in the criminal justice system
commitment beyond the applicable criminal sentence.
Some states (e.g., Wisconsin) have returned to automatic
commitment whereas others (e.g., Michigan) have not.
Some states (e.g., Colorado) continue to permit indefin-
ite commitment. More recently, a 5–4 majority of the
Supreme Court reaffirmed its holding in Jones while
overturning the lower federal courts by holding that an
insanity acquittee must continue to be both mentally ill
and dangerous to justify continued commitment (Foucha
v. Louisiana 1992). While the dissent in Jones had argued
that the majority had gone too far toward governmental
power, the dissent in Foucha argued that it had not gone
far enough; Justice Thomas would have abolished any
practical distinctions between verdicts of guilty and not
guilty by reason of insanity.
One of the major criticisms of the insanity defense is
that it permits defendants to ‘beat the rap’ by obtaining
release earlier than they would if convicted. Public fear of
the mentally disordered, reinforced by rare but dramatic
‘horror stories’ of acts committed by released insanity
acquittees, is often accompanied by the belief that mental
health professionals are too ‘soft’ on insanity acquittees
and release them prematurely.
The available research data do not bear out these per-
ceptions. Slobogin (1985) reports that fewer than 1 per
cent of felony prosecutions result in a successful insanity
defense, and that 60 per cent of successful defenses are
stipulated to without ever going to trial. Available data
indicate that the great majority of evaluators concur on
both diagnosis and legal opinions (Fukunaga et al. 1981);
the apparent prevalence of ‘battles of experts’ is due to
the artifact that those cases in which the experts agree are
usually settled out of court and do not receive the publi-
city of contested cases.
Finally, the data reveal that most insanity acquittees
are not released sooner than prisoners convicted of the
same offenses. Studies from Connecticut (Phillips and
Pasewark 1980), the District of Columbia (Steadman
1985), and Colorado (Pogrebin, Regoli, and Perry 1986)
demonstrated significantly longer stays for insanity
acquittees. Studies from Arizona (Kahn and Raifman
1981) and New York (Pantle, Pasewark, and Steadman
1980) revealed comparable lengths of stay. Only one
study from New York (Pasewark, Pantle, and Steadman
1982) demonstrated shorter stays for insanity acquittees,
and then only when they were transferred from cor-
rectional to mental health facilities.
One flaw in all these studies is that they compared
insanity acquittees with prisoners convicted of the same
crimes. Since 90 per cent of defendants plead guilty, often
to lesser charges, while those pleading insanity rarely have
the opportunity to bargain down their charges, prisoners
matched for conviction do not form a good control
group. Harris, Rice, and Cormier (1991) from Canada have
compared insanity acquittees and prisoners matched for
charge at arrest instead of conviction, and have also
demonstrated longer stays for the acquittees.
Two reports present the effects of changes in the insan-
ity defense. After a change from the ALI test to M’Naghten
in California in 1982 (1981 California Stat. ch. 404, effect-
ive January 1, 1982), the number of insanity acquittees
dropped from an average of 251 per year over the previ-
ous four years to 134 in 1983 (Interim Hearing 1983). One
must be cautious, however, about assuming a causal rela-
tionship between statutory changes and changes in prac-
tice, since the same social forces that led to the statutory
change may also have been responsible for the observed
changes (Miller 1987).
Steadman’s group studied the effects of abolition of
the insanity defense in Montana for three years before
and after the change went into effect in 1979 (Steadman
et al. 1989). Under the revised statute, evidence of insan-
ity is admissible to negate mens rea. The team discovered
that while the number of insanity pleas remained stable,
the success rate dropped from 32 per cent to 3 per cent.
But they also discovered that before 1979, 64 per cent of
defendants who were initially found to be incompetent
to proceed were ultimately found not guilty by reason of
insanity; after 1979, only 5 per cent were found to have
been insane, but 75 per cent of them had their cases
dismissed.
The evaluation of criminal responsibility is one of the
most complex facing the forensic psychiatrist. The criteria
are varied and vague, and are only marginally related to
clinical constructs such as diagnoses (Halleck et al. 1992).
The evaluations are retrospective, sometimes dealing with
events that occurred ten years or more in the past. Political
pressure, particularly in notorious cases, may make it
difficult to retain objectivity.
Forensic psychiatrists should familiarize themselves
with both the relevant statutes on insanity and the applic-
able commentaries and case law, which interpret, clarify,
and define statutory definitions. Although most evalu-
ators continue to rely on clinical experience, efforts are
underway to operationalize insanity criteria and to val-
idate instruments for insanity evaluations (Rogers 1986).
Although it is unlikely that valid quantitative psychomet-
ric instruments will ever be developed because of the
inherently subjective nature of the evaluations, standard-
ization of interviews may prove as beneficial as it did in
the history of evaluation of competency to stand trial.
In rare cases, defendants may be found insane for some
crimes and guilty for others, all during the same proceed-
ings. Such defendants are almost always hospitalized ini-
tially, and remain hospitalized until their mental disorders
are under sufficient control for them to be transferred to
prison to serve out their sentences, assuming those sen-
tences are longer than the hospitalization. Such dual com-
mitments are quite problematic for clinicians at forensic
hospitals, however. They are typically more restricted in
their privileges than patients without concurrent prison
sentences, and clinical staff often develop attachments to
their patients that make it difficult for them to determine
that they are ready to transfer to prison (Miller et al. 1999).

Bifurcated trials and evaluation
When defendants enter insanity defenses, most states
provide that the issues of guilt and sanity are to be tried
together. This practice raises significant problems for the
defense. Most states permit defendants to enter pleas of
both not guilty and not guilty by reason of insanity, thus
providing two opportunities to avoid a guilty verdict.
When the two defenses are joined, however, they may
conflict with each other. For example, in Houston v. State
(1979), Houston raised defenses of self-defense and insan-
ity. He was examined by a psychiatrist, who concluded
that Houston had been insane at the time of the criminal
act, but he also concluded that Houston’s self-defense
claim was not credible. The defense needed the psych-
iatrist’s testimony to establish the basis for an insanity
defense, but if it called the psychiatrist during the case in
chief, he would destroy the self-defense claim. In order to
resolve this dilemma, some courts and legislatures have
separated the guilt and sanity phases of the trial process.
Only Wisconsin (Wisconsin Rev. Stat. 1983–84) requires a
bifurcated trial when the insanity defense is interposed.
Colorado formerly did so (Colorado Stat. 1990a), but
bifurcation was recently abolished (Colorado Revised
Statutes 16-8-104.5 1995).
Other states have experimented with bifurcated trials.
Texas (Townsend v. State 1968), Louisiana (Bruning 1975),
Arizona (Shaw v. State 1971), and Florida (R. Swanson,
pers. comm., 1991) implemented but subsequently aban-
doned them because of problems raised by the bifur-
cation process. Courts in other jurisdictions have ruled
that trials should be bifurcated when to try the issues
together would prejudice the defendant. In Contee v.
United States (1969), the United States Court of Appeals
for the District of Columbia Circuit held that, ‘[A] sound
exercise of the trial court’s discretion will ordinarily result
in bifurcation whenever a defendant shows that he has a
substantial insanity defense and a substantial defense on
the merits to any element of the charge, either of which
would be prejudiced by simultaneous presentation with
the other.’ In United States v. Taylor (1975), the court
reaffirmed its position, pointing out that the merit defense
of self-defense conflicts conceptually with an insanity
defense (the situation in Houston).
Bifurcation raises problems of its own, however. Those
states that try guilt first generally bar psychiatric testi-
mony during that phase, thus preventing the defense
from presenting evidence of mental disability short of
insanity. That issue has been litigated most thoroughly in
Wisconsin. In 1976, the Seventh Circuit Court of Appeals
ruled that barring psychiatric testimony on the issue of
mens rea in a single trial violated the defendant’s Sixth
and Fourteenth Amendment rights (Hughes v. Matthews
1978). However, in a subsequent decision (Steele v. State
1980), the Wisconsin Supreme Court reinstated its bar of
psychiatric testimony in the guilt phase of a bifurcated
trial.
Criminal responsibility 217
Even if the defense may not plead diminished cap-
acity, however, there are other situations in which psychi-
atric testimony would be relevant to the issue of mens rea
but cannot be presented. In a forceful article written in
opposition to the Steele decision, the example was used of
a defendant who commits a criminal act while having a
temporal lobe seizure (Note 1981a). Under Wisconsin
law, evidence of the seizure could not be introduced dur-
ing the guilt phase of the trial to support a defense based
on unconsciousness, and the issue would have to be tried
under an insanity theory. The potential consequences for
a defendant of verdicts of not guilty and not guilty by
reason of insanity differ significantly, and such cases have
occurred (State v. Raaths 1983).
Other courts have held that mandatory bifurcation
violates defendants’ rights. In Shaw v. State (1970), the
Arizona Supreme Court held that mandatory bifurcation
violated the defendant’s right to have all relevant evi-
dence of his state of mind introduced during the guilt
phase of his trial.
While evaluators need to be aware of the trial proced-
ures in their jurisdictions, the presence or absence of
bifurcation will generally make little difference in the
evaluation of a defendant’s criminal responsibility. It
may well affect whether expert opinions will be intro-
duced as evidence bearing on sanity or on mens rea; and
it also may well affect whether the evaluator will be ultim-
ately called to testify. It therefore may also affect the
information given by the evaluator to the defendant
about the potential consequences of cooperating with
the evaluation.
GUILTY BUT MENTALLY ILL
As a result of growing public perception that the insanity
defense exonerates ‘obviously guilty’ defendants (such as
John Hinckley) (Woodmansel 1996), and that it permits
them to be released prematurely, there has been consid-
erable pressure in many jurisdictions to abolish or other-
wise to restrict the use of the insanity defense (Callahan,
Mayer, and Steadman 1987). One response has been the
creation of a new legal category called variously guilty
but mentally ill (GBMI), or guilty but not responsible.
The Michigan experience
As the GBMI alternative was established in Michigan
in 1975, at least six years before it was adopted by any
other state, it is instructive to examine its history in that
state, which has been well documented and studied
(Smith and Hall 1982; Blunt and Stock 1985; Petrella
et al. 1985). Prior to 1960, a large number of criminal
defendants found incompetent to stand trial had accu-
mulated in the forensic mental health system, many of
them committed for longer periods of time than they
218 Forensic evaluation and treatment in the criminal justice system
would have received if convicted. The combination of
increased interest in the civil rights of criminal defend-
ants and the Supreme Court’s creation of criteria for
competency in Dusky v. United States (1960) resulted in
the establishment of a state commission to study the
problem.
The commission’s recommendations were enacted
into a law (Act No. 266, 1966) that changed the criteria
for incompetency to stand trial to conform with Dusky,
changed release procedures for insanity acquittees, and
established a state Center for Forensic Psychiatry to evalu-
ate and treat defendants found incompetent to stand
trial or insane. As a result of these changes, large num-
bers of previously incompetent defendants were brought
to trial, and the number of successful insanity defenses
rose dramatically, from 12 in 1967 to 203 in 1973 (Blunt
and Stock 1985), although retrospective studies showed
that only 70 such acquittees out of 350 actually satisfied
the criteria of being mentally ill and insane (Robey and
Pogany 1974).
In Bell v. Wayne County Gen. Hospital (1974), a federal
district court imposed imminent dangerousness as a cri-
terion for civil commitment in Michigan; and in People v.
McQuillan (1974), the Michigan Supreme Court required
that the state prove that insanity acquittees meet those
criteria before they could be committed. These evalu-
ations resulted in the release of 214 out of 270 insanity
acquittees (Blunt and Stock 1985). When several acquit-
tees released as a result of these changes committed hein-
ous crimes, public outcry caused the legislature to create
the GBMI verdict.
The statute stated, ‘If the defendant asserts a defense
of insanity … (he) may be found “guilty but mentally ill”,
if, after trial, the trier of fact finds all of the following
beyond a reasonable doubt: (a) the defendant is guilty of
an offense; (b) the defendant was mentally ill at the time
of that offense; and (c) that the defendant was not legally
insane at the time of the commission of that offense’ (70
Michigan Compiled Laws 1975a). After a finding of
GBMI, the statute provides that ‘… the defendant … shall
undergo further evaluation and be given such treatment
as is psychiatrically indicated for his mental illness or
retardation’ (70 Michigan Compiled Laws 1975b).
Defendants found GBMI may be placed on five years’
probation, regardless of the maximum sentence for the
crime charged. As of 1985, there had been at least eighty-
seven state appellate decisions involving the GBMI ver-
dict (Blunt and Stock 1985). The state court of appeals
(People v. Sorna 1979) has rejected arguments that the
GBMI verdict denies a defendant’s due process and equal
protection rights to an insanity defense because juries
may choose the GBMI verdict as a compromise between
guilty and insane, although there are some research data
to substantiate the claim (Simon 1967). The state Supreme
Court has rejected the argument that a finding of GBMI
may lead to a denial of the inmate’s right to treatment
(People v. McLeod 1980).
Smith and Hall (1982) reported that between 1975
and 1982, the Center for Forensic Psychiatry evaluated
0.5 per cent of all criminal defendants in Michigan; 6.7
per cent of those evaluated were judged by the center
to be insane (26/100 000 male arrests) and 3.9 per cent
to be guilty but mentally ill (16/100 000). Trial courts
concurred with 95 per cent of the center’s findings that
defendants were neither insane nor GBMI, and with
84 per cent of recommendations for insanity; of those in
which the court rejected the center’s findings, 12 per cent
were found guilty but mentally ill, and 4 per cent were
found guilty. Smith and Hall (1982) attribute the high
concurrence rate to the fact that the center is an arm of
the state; Blunt and Stock (1985) (who are faculty at the
center) believe that it is because of the high quality of the
evaluations produced.
Smith and Hall (1982) reported that there had been
no change in the number of defendants found insane
after the creation of the GBMI alternative, and they
found that GBMI defendants resembled those found
guilty more than those found insane. There are even data
demonstrating that GBMI inmates are incarcerated
longer than inmates found guilty of the same charges.
Petrella and colleagues (1985) criticize Smith and Hall’s
conclusions that the GBMI verdict has been a failure.
They point out that at the same time that the GBMI ver-
dict was created, the legislature also changed the insanity
criteria from M’Naghten to ALI since the broader criteria
for insanity, coupled with the stricter criteria for com-
mitment and the creation of the Center for Forensic
Psychiatry, might be expected to have increased the num-
ber of successful insanity defenses, the fact that no
increase was noted might be at least partially attributable
to the GBMI alternative.
The South Carolina experience
Morgan and colleagues (1988) have reported on the
South Carolina experience with the GBMI verdict. The
South Carolina law states that: ‘A defendant is guilty but
mentally ill if at the time of the commission of the act
constituting the offense he had the capacity to distin-
guish right from wrong and to recognize his act as being
wrong … but because of mental disease of defect he lacks
sufficient capacity to confirm his conduct to the require-
ments of the law’ (S.C. Code Ann. Sec. 17-24-20 (1984).
South Carolina has the M’Naghten test, so volition is
irrelevant to insanity. The law has been found constitu-
tional (State v. Hornsby 1997).
Passage of South Carolina’s GBMI bill was influenced
by litigation against the Departments of Corrections and
Mental Health and the Hinckley verdict, but not by the
numbers of insanity acquittals – there had been only one
or two successful insanity defenses per year, out of 24 000
criminal prosecutions. Morgan and colleagues (1988)
interviewed GBMI inmates; additional information was

obtained concerning past criminal records, previous psy-
chiatric evaluations and treatment, the inmate’s under-
standing of the plea, and the inmate’s recollection of his
or her mental state at the time of the crime.
Between April 1984 and August 1985, forty-two men
and five women were found GBMI; twenty-six men and
four women were interviewed for the study, chosen
because they were still incarcerated in the Columbia,
South Carolina, area. Diagnoses included substance abuse
(15), schizophrenia (11), paraphilia (4), mood disorder
(3), organic brain syndrome secondary to alcoholism (1),
dependent personality disorder (1), and posttraumatic
stress disorder, which was felt to have appeared after the
crime (1). Crimes for which the subjects had been con-
victed included murder (1), battery (6), manslaughter
(5), armed robbery (2), burglary (2), arson (2), house-
breaking (1), sexual assault of a minor (9), contributing
to the delinquency of a minor (1), and shoplifting (1).
Sentences varied considerably (manslaughter from five to
forty years; sexual assault from four to twenty-five years).
No defendant had a jury trial; many charges were reduced
through plea bargaining.
The subjects demonstrated considerable lack of under-
standing of the plea: two were thought too disordered
to respond; twelve did not understand the plea but entered
it upon the advice of counsel; seven thought that the plea
would reduce their sentences; four thought that they
would receive treatment in prison; two thought the plea
meant that they were guilty but unaware or mentally dis-
ordered; one thought he would go to a hospital instead of
prison; one was angry and said, ‘You get the same sentence
with mental illness tacked on’; and one said it meant
‘a lunatic in search of understanding.’
As in Michigan, there was no change in the incidence
of insanity verdicts following the introduction of the
GBMI verdict. No treatment for those found GBMI is
required by the South Carolina law, and many (e.g., sex
offenders) are placed in the general population soon
after their evaluations. Given the lack of understanding
of the plea by the study subjects, it is likely that it was
used to expedite disposition of their cases by promising
treatment.
The authors argue that treatment should be provided
for those found GBMI. They are highly critical of the
South Carolina correctional system’s treatment of men-
tally ill offenders, and argue that if the correctional sys-
tem has resources only for severely mentally ill inmates,
perhaps the statute should require severe mental illness.
LeBlanc-Allman (1998) is also very critical of the
South Carolina GBMI law. The author concedes that the
law would pass muster under a rational basis analysis;
but under a strict scrutiny analysis, the law violates a
defendant’s right to a fair trial, because state law pro-
hibits a jury instruction that compares the dispositions
of guilty and GBMI verdicts. Kentucky has such a statute
[Ky. Rev. Stat. Ann. R 9.55 (1998)]. The author further
argues that, even assuming that reducing inappropriate
Criminal responsibility 219
insanity acquittals is a compelling state interest, GBMI is
not narrowly tailored to satisfy that purpose.
The Illinois experience
As in Michigan, public outrage over crimes committed
by released NGRIs, and frustration over perceived inabil-
ity to abolish the insanity defense, led to the GBMI law.
The framers of the statute had three goals: (i) to protect
society; (ii) to hold some mentally ill offenders account-
able; and (iii) to make treatment available to mentally ill
offenders. The final bill did not require provision of
treatment (Illinois Ann. Stat. 1981), and the state appel-
late court upheld those provisions, holding that a GBMI
inmate’s right to treatment was no different than any
other inmate’s right (People v. Marshall 1983).
Klofas and Weisheit (1986) reviewed court records,
surveyed prosecutors, and interviewed public defenders
from counties in which prosecutors reported significant
numbers of GBMI pleas. State court records provided
summary data only, but Cook County records indicated
the methods by which a verdict was reached.
In Cook County, jury trials were used in only 2 per
cent of GBMI cases and 3 per cent of other felony cases,
but GBMIs were more likely to have bench trials than
other defendants (36 per cent versus 16 per cent). GBMI
crimes were mostly either violent or sex crimes. Sex
crimes were more likely to be pleaded and also to result
in probation (21/44). Some defense attorneys felt that
the law was beneficial to their clients, although most of
them – and almost all prosecutors – felt that it was to the
prosecution’s advantage, since it provided an additional
guilty option. Despite selection based on occurrence of
GBMI verdicts in their counties, a number of both pros-
ecutors and public defenders were unaware of how the
GBMI system operated, with many thinking that treat-
ment was mandatory, or that the defendants would never
spend time in prison.
Both district attorneys (DAs) and public defenders
(PDs) agreed that the availability of GBMI facilitated
plea bargaining. Many also said that by letting defend-
ants deny or mitigate personal responsibility, it did
not cut them off from family or friends as much as a
guilty verdict would have. Cook County PDs said that
their clients would rather be seen as criminal than as
mentally ill, particularly if they did not have previous
hospitalizations.
In practice, judges often made decisions based on
what attorneys said about psychiatric history, without
any expert testimony. The respondents indicated that the
GBMI plea provided neither reduction in sentence nor
treatment, and defendants receive the additional stigma
of mental illness. The authors were critical of PDs who
were ignorant of the actual consequences of a GBMI
plea, or who adopted a paternalistic posture toward their
clients.
220 Forensic evaluation and treatment in the criminal justice system
Recently, a state appeals court struck down Illinois’
GBMI law, holding that a compromise verdict that is
based on juror misperceptions violates due process
(People v. Robles 1997).
The Pennsylvania experience
Under the 1983 statutory revision in Pennsylvania
(Pennsylvania Cons. Stat. 1983), once an accused pleads
insanity, he or she may be found guilty but mentally ill pro-
vided it is proved beyond a reasonable doubt that he/she is
‘guilty of an offense, was mentally ill at the time of the com-
mission of the offense and was not legally insane at the time
of the commission of the offense.’ The plea can be accepted
only after the trial judge has made a finding at a hearing
that the defendant was mentally ill at the time. Once a
GBMI finding is made, the defendant may receive the same
sentence as if simply found guilty, but before imposing sen-
tence, the court shall hear testimony and make a finding on
the issue of whether the defendant ‘… is severely mentally
disabled and in need of treatment.’ If he is, treatment may
be provided in prison or through transfer to a hospital. If
treatment is completed prior to release, release is accom-
plished just as with any other inmate. The definition of
mental illness is that of the ALI insanity criteria.
Discussions about a GBMI verdict began as early as
1979; it was initially proposed to replace the insanity
defense, but that was dropped for fear of unconstitution-
ality. At the same time that the GBMI law was passed, the
common law insanity test was codified, and the burden
of proof was shifted to the defense. MacKay and Kopelman
(1988) conclude that the statute was passed to: (i) reduce
successful insanity pleas; (ii) provide a middle ground
between guilty and NGRI, which would provide treatment
for mentally ill offenders; and (iii) provide increased com-
munity protection.
The authors studied effects of the statute from March
1982 through March 1987. During the study period there
were eighty-nine NGRIs and ninety-one GBMIs studied.
Blacks were over-represented in the NGRI population
(41 per cent versus 21 per cent). GBMIs were more likely
to have been convicted of murder and sex crimes, while
NGRIs were more likely to have assaulted. The average
number of NGRIs dropped 38 per cent after GBMI was
introduced, but the larger number in the year before the
change may have skewed the data. In addition, the shift in
the burden of proof in insanity cases to the defense may
have reduced such pleas.
Unlike Michigan and Illinois, virtually all the sixty-six
hospitalized GBMIs had major mental disorders, and 66
per cent of GBMIs had immediate treatment provided.
Sentences for GBMIs and those found guilty of compar-
able crimes appeared to be similar, although some GBMIs
were given longer sentences.
The GBMI statute was challenged because of the per-
ceived conflict between the M’Naghten criteria for insanity
and the ALI criteria for GBMI, but the state appeals court
held that the law did not violate due process rights
(Commonwealth v. Trill 1988). The authors conclude
that, at least in Philadelphia, the GBMI verdict does
appear to have significant impact in reducing the num-
ber of insanity pleas, in selecting a severely mentally ill
population, and in providing treatment.
Experience in other states
Ten other states in addition to Michigan, South Carolina,
Illinois, and Pennsylvania created GBMI verdicts between
1982 and 1985. Connecticut replaced the verdict of
NGRI with guilty but not criminally responsible in 1982
(Connecticut Public Act 1982). Under the previous
insanity defense, an acquittee had to be civilly committed
to the state mental health department or released. The
new statute provided for commitment of defendants
found guilty but not criminally responsible to the state
corrections department, under less strict criteria. The
statute was repealed the following year, chiefly because of
internal conflict in the definitions; the chief state attor-
ney recommended abolition of the verdict in testimony
before the legislature because it ‘is a contradiction in
terms. The jury on the one hand has the luxury of saying,
“You’re guilty, when in fact the word guilty implied the
concept of blame, but then they say you have no criminal
responsibility … . A society which punishes imbeciles or
people who don’t know what they are doing is not
enhancing responsibility for behavior, it is diminishing
the proper role of punishment’ (Hearing 1983). Nevada
replaced its insanity defense with GBMI (Nev. Rev. Stat.
Sec 33, 193.220 1995).
GBMI statutes currently exist in Alaska (where defend-
ants found guilty but mentally ill are specifically barred
from probation or parole) (Alaska Stat. 1983), Delaware
(Delaware Code 1982), Georgia (Georgia Code 1983),
Indiana (Indiana Code 1982), Kentucky (Kentucky Rev.
Stat. 1982), Utah (Utah Code 1983), New Mexico (New
Mexico Stat. 1983), and South Dakota (South Dakota
Codified Laws 1983). The New Mexico law has been
found constitutional (State v. Neely 1991), as has the
South Dakota law (Robinson v. Solem 1988). Colorado’s
impaired mental condition (IMC) law (Colorado Rev.
Stat. 1990) defense was created by the prosecutors to close
a loophole which resulted in a mentally disordered defen-
dant being found not guilty because of lack of mens rea
and released. In practice, however, its effect was to give the
defense ‘two bites at the apple,’ with two different juries.
While there are not published reports of a defendant found
sane in the first stage being found IMC in the second,
bifurcation provided defense attorneys with the threat of
two extended trials to use to persuade the prosecution to
plea bargain. The prosecutors finally convinced the legis-
lature to coalesce the IMC defense into the definition of
insanity and eliminating bifurcation [C.R.S. 16-8-104.5

(1995)], thus keeping the loophole shut and removing
the second bite at the apple. Although similar conceptu-
ally to GBMI, IMC results in hospitalization rather than
incarceration, and is discussed in the section below on
extreme emotional distress.
Data from Georgia indicate that (except for an abnor-
mally high number of insanity acquittals in the year before
GBMI legislation was passed) there was no significant
change in insanity acquittals after NGRI legislation was
passed (Dvoskin 1988). Insanity acquittals in Alaska
dropped from six per year to one, but at the same time
GBMI legislation was passed, the test for insanity was
changed to the most restrictive in the country (M’Naghten
with only the ‘nature and quality’ part; Keilitz et al. 1984).
Despite all the controversy over the verdict, the avail-
able data (McGraw, Farthing-Capowich, and Keilitz 1985)
indicate that there are even fewer GBMIs in Georgia than
NGRIs currently incarcerated. In the eleven states other
than Michigan, there were (in 1988) only 75 GBMIs,
compared with 449 NGRIs in the same states; three states
had no GBMIs at all. Michigan had 253 GBMIs, com-
pared to only 13 NGRIs.
Discussion and evaluation
In their 700-page report on the GBMI experience, Keilitz
et al. (1984) concluded: ‘Although touted by its propo-
nents as an attractive alternative to the NGRI verdict for
juries to consider, most GBMI findings (like NGRI find-
ings) resulted from pleas and bench trials. Contrary to
the views held by much of the public, by jurors, and by
many members of the mental health and criminal justice
systems, GBMI offenders are not guaranteed treatment
under law, nor are they more likely to receive treatment
than other mentally ill offenders in the general inmate
population to whom the GBMI label has not been
applied. Indeed, they are given stiffer sentences than their
guilty counterparts without any better access to mental
health treatment. GBMI offenders appear to be imprisoned
for longer periods than insanity acquittees are involuntarily
hospitalized. Despite the hopes of its proponents and the
fears of its critics, the GBMI option has not spelled the
demise of the insanity defense.’
Indeed, it appears not to have appreciably disturbed
the frequency of NGRI findings. Slobogin (1985) also
provides a detailed analysis of the GBMI verdict, and
concludes that it is unnecessary as a remedy to problems
with the insanity defense and may actually exacerbate the
problem.
Most of the data in the literature, with the possible
exception of the Philadelphia area, tend to concur with
this analysis. Indeed, there are several cases in which
defendants pleading GBMI have been given the death
sentence (Harris v. State 1986; People v. Crews 1988; State
v. Wilson 1992). Ellis (1993) argues that since (in South
Carolina) a GBMI verdict indicates inability to control
Criminal responsibility 221
actions, volitional impairment reduces culpability suffi-
ciently to bar the death penalty, despite the South Carolina
Supreme Court’s decision in Wilson.
It is not easy to draw firm conclusions as to why
GBMI does not seem to have the anticipated effects of
reducing insanity acquittals and providing treatment to
mentally ill offenders. Several states made substantive
changes in their insanity statutes at the same time they
created GBMI laws. It is also clear that a significant num-
ber of those who must implement these laws are insuffi-
ciently knowledgeable about the provisions and effects of
GBMI findings. The American Psychiatric Association
(1982), the American Bar Association (1983), and the
National Mental Health Association (1983) have all been
quite critical of the GBMI verdict. No new GBMI statute
has been enacted since 1985 except that of Nevada.
It appears that in many states that do not require
defendants to enter insanity pleas in order to be eligible
for a GBMI verdict, the evaluation process is quite infor-
mal (indeed at times virtually non-existent), and many
GBMI verdicts are rendered without any expert testi-
mony at all. Forensic clinicians in states that have GBMI
laws should be aware of those provisions and how they
differ from the tests for insanity. Unless specifically
instructed to the contrary, they should be prepared to
offer opinions on both issues and to thus inform the
defendants they evaluate.
DIMINISHED CAPACITY
The insanity defense results in complete exculpation on
the criminal charge. There are a number of other affirma-
tive defenses based on the defendant’s mental state at
the time of the crime that (if successful) still result in a
criminal conviction, but with mitigation of the sentence.
Historically, the first of these is the diminished capacity
defense.
The diminished capacity approach is based on the
difference between general and specific intent crimes.
General intent is required for all except strict liability
crimes, most of which are minor, such as parking and
health code violations (although some states have strict
liability provisions for crimes such as drug dealing and
statutory rape). Under a strict liability analysis, the per-
formance of the proscribed act is sufficient to establish
liability. General intent is broadly defined by the criminal
law to mean the intent to commit a particular act (such
as assault). In a crime such as assault with intent to rape,
the specific intention to commit rape must be proven in
addition to the general intent to assault.
A successful diminished capacity defense can reduce
a specific intent crime to a general intent crime if the lat-
ter is a lesser included offense within the former (e.g.,
reduction of first-degree homicide to manslaughter). If
there are no such lesser offenses, however, a diminished
222 Forensic evaluation and treatment in the criminal justice system
capacity defense may result in outright acquittal; such
cases are rare in practice.
Legal history
The first judicial statement of the diminished capacity
defense occurred in Scotland (HM Adv. v. Dingwall 1867).
In that case, the defendant’s alcoholism and peculiarities
of mental constitution were held to be extenuating cir-
cumstances justifying reduction of the charge from mur-
der to culpable homicide. The doctrine did not develop
further in Great Britain until after World War II. Early
U.S. decisions rejected the concept; the federal district
court for the District of Columbia rejected jury instruc-
tions on diminished capacity, holding that such innov-
ations were for legislatures to make after intensive studies
and data collection that trial courts are ill-equipped to do
(Stewart v. United States 1954). In rejecting diminished
capacity, the Pennsylvania Supreme Court specifically
emphasized the increased danger to ‘law-abiding citizens’
that would follow its use (Commonwealth v. Rightnor
1969).
The defense was first introduced in the United States
by the California Supreme Court; it held that a trial court
should have admitted psychiatric evidence tending to
show that the defendant might have thought that he was
acting in self-defense when he attacked a prison guard,
and thus could not have had the specific intent required
for the charge of aggravated assault (People v. Wells 1949).
In 1959, the same court permitted expert testimony
about a defendant’s capacity to form intent. It inter-
preted the mens rea requirements of premeditation and
deliberation for first-degree murder to require considered
reflection (People v. Gorshen 1959). From these cases came
the so-called ‘Wells–Gorshen Rule,’ which held that even
though a defendant is legally sane, if he or she was suffering
from a mental illness that prevented his/her acting with
malice aforethought or with premeditation and delibera-
tion, he/she cannot be convicted of murder in the first
degree. In 1964, the court formally recognized a dimin-
ished responsibility defense. The defendant had been
found guilty of a series of carefully planned rapes and
murders; despite unanimous psychiatric testimony that
he lacked criminal responsibility, he was also found sane.
On appeal, the court concluded (based on the psychiatric
testimony) that the defendant’s mental abnormality pre-
vented him from realizing the ‘enormity of the evil,’ and
found that he was therefore not guilty of first-degree
murder People v. Wolff 1964).
The English Homicide Act of 1957 held that: Where a
person kills or is a party to the killing of another, he shall
not be convicted of murder if he was suffering from such
abnormality of mind (whether arising from a condition
of arrested or retarded development of mind or any
inherent causes or induced by disease or injury) as sub-
stantially impaired his mental responsibility for his acts
and omissions in doing or being a party to the killing … .
A person who but for this section would be liable … to be
convicted of murder shall be liable instead to be con-
victed of manslaughter.
Similarly, the American Bar Association’s Model Penal
Code (1962) defined manslaughter as ‘homicide which
would otherwise be murder [but] is committed under the
influence of extreme mental or emotional disturbance for
which there is reasonable explanation or excuse. The rea-
sonableness of such explanation or excuse shall be deter-
mined from the viewpoint of a person in the actor’s
situation under the circumstances as he believes them to
be.’ The Supreme Court has never issued a definitive
opinion on the validity or criteria for the defense, and
there has been a notable lack of consensus across different
jurisdictions on many aspects of the defense.
Since the Supreme Court held in In re Winship (1970)
that the state must prove each element of the crime
charged beyond a reasonable doubt, defense attorneys
have argued that when evidence of psychiatric disorder
is introduced in specific intent cases, the prosecution
has the burden of disproving diminished capacity. The
Supreme Court rejected arguments that the defendant
has the burden of proving that a mental disorder negates
mens rea in Davis v. United States (1895), and reaffirmed
that holding in Mullaney v. Wilbur (1975).
In Martin v. Ohio (1987), the Supreme Court held that
a state may make self-defense an affirmative defense, and
place the burden of proof on the defendant; but it
emphasized that where there is evidence relevant both to
an affirmative defense and to an element of the offense
charged (such as mens rea), the jury must be instructed
that the defendant’s evidence on the affirmative defense
must be considered when determining whether the state
has proved all the elements of the offense charged.
The New Jersey Supreme Court held that while the
burden of establishing the presence of mental disorder
could be placed on the defendant, the state was then
required to prove that mens rea was present despite the
disorder (State v. Breakiron 1987; State v. Zola 1988).
Before the acceptance of the diminished capacity
defense, psychiatric testimony on the issue of mens rea
was frequently barred. In rejecting such testimony, the
Nevada Supreme Court relied on the objection that
the use of such evidence could result in outright acquit-
tals, decreasing protection for the public (Fox v. State
1957). Subsequently, however, state Supreme Courts in
Massachusetts (Commonwealth v. Gould 1980) and New
Jersey (State v. Breakiron 1987), federal district courts in
California (United States v. Frisbee 1985) and the District
of Columbia (United States v. Gold 1987), and the U.S.
Supreme Court (Mullaney v. Wilbur 1975) all held that
psychiatric testimony should be admitted, although the
California Supreme Court emphasized that expert
witnesses would be restricted to diagnoses and descrip-
tions of the effects of mental disorders, barring opinions
on whether defendants possessed the specific intent in

question. The Federal Rules of Evidence held that, ‘No
expert witness testifying with respect to the mental state
or condition of a defendant in a criminal case may state
an opinion or inference as to whether the defendant did
or did not have the mental state or condition constituting
an element of the crime charged or of a defense thereto.
Such ultimate issues are for the trier of fact alone’ [Fed.
R. Evid. 704(b)].
A major exception to the trend in favor of admission
of psychiatric testimony on the issue of mens rea exists in
some states with bifurcated trials when the insanity
defense is raised. The Wisconsin Supreme Court upheld
state statutes barring psychiatric testimony in the first
(guilt) phase of a bifurcated trial, arguing that to permit
evidence of mental disorder to be presented would
undermine the bifurcation (Steele v. State 1980). That
position was subsequently upheld by the Seventh Circuit,
which held that such testimony was competent and rele-
vant on the ‘gross’ issue on insanity, but not on the ‘fine-
tuned’ issue of mens rea (Muensch v. Israel 1983).
The Supreme Court let that decision stand by denying
certification, although it had previously denied certifica-
tion in an Arizona decision that arrived at the opposite
conclusion, holding in dictum that a bar on psychologi-
cal testimony in bifurcated trials violated due process
(State v. Shaw 1970).
Courts in thirty-one states have accepted diminished
capacity (Drew 1998). However, in the early 1980s, oppos-
ition to the concept of diminished capacity increased,
due to the shift from an individual rights to a law-and-
order emphasis in social policy, and fueled by unpopular
decisions, such as the Dan White case in California
(People v. White 1981). The California legislature in effect
repealed diminished capacity in 1982 by abolishing the
distinction between general and special intent, but per-
mitted evidence of mental abnormality to be introduced
to negate all mens rea. It held that, ‘As a matter of public
policy, there shall be no defense of diminished capacity,
diminished responsibility, or irresistible impulse in a
criminal action’ (1988 California Stat., Sec. 25(a),(b)). In
the brief period that this legislation was in effect, Morse
(1984) could find no cases in which a defendant success-
fully used it to negate mens rea. The legislature reversed
itself partially by restoring the general-special intent dis-
tinction, but permitting evidence of mental abnormality
to be introduced only to negate specific intent (1982
California Stat.). State courts in Arizona (State v. Laffoon
1980) denoted ‘imperfect self-defense.’ In In re Christian
S. (1994) the California Supreme Court held that ‘Under
the doctrine of imperfect self-defense, when the trier of
fact finds that a defendant killed another person because
the defendant actually but unreasonably believed he was
in imminent danger of death or great bodily injury, the
defendant is deemed to have acted without malice and
thus can be convicted of no crime greater than voluntary
manslaughter’ [at 575]. The defendant, a minor, was
charged with killing Robert Elliott, a skinhead gang
Criminal responsibility 223
member; he had been physically and verbally harassed
and threatened by Elliott and his friends for over a year.
On the day of the crime, Elliott had threatened and
taunted the defendant on several occasions while chasing
him down the beach. After Elliott challenged the defend-
ant to shoot him, the defendant did.
The court held that ‘Unlike diminished capacity,
imperfect self-defense is not rooted in any notion of men-
tal capacity or awareness of the need to act lawfully’ [at
581-2]. The defense is narrower than diminished cap-
acity, in that the defendant must have had an actual belief
in the need for self-defense, and that belief must relate to
the fear of imminent, not future harm.
Ohio (State v. Wilcox 1981), and Louisiana (State v.
Roussel 1982) also rejected the use of a mental state
defense except for insanity.
Reacting to similar public pressure, the U.S. Congress
passed the Insanity Defense Reform Act in 1984, which
stated that, ‘It is an affirmative defense to a prosecution
under any Federal statute that, at the time of the com-
mission of the acts constituting the offense, the defend-
ant, as a result of a severe mental disease or defect, was
unable to appreciate the nature and quality or the wrong-
fulness of his acts. Mental disease or defect does not other-
wise constitute a defense’ (Comprehensive Crime Control
Act of 1984).
The Legislative Record preserved the Senate Commit-
tee’s rationale for this legislation: The Committee also
included language in Section 20 explicitly providing that
mental disease or defect other than that which renders
the defendant unable to appreciate the nature and qual-
ity or wrongfulness of his acts does not constitute a
defense. This is intended to insure that the insanity
defense is not improperly resurrected in the guise of
showing some other affirmative defense, such as that the
defendant has a ‘diminished responsibility’ or some simi-
larly asserted state of mind which would serve to excuse
the offense and open the door, once again, to needlessly
confusing psychiatric testimony (S. Rep. 1984).
After this statute was enacted, a number of courts
interpreted it. In United States v. Pohlot (1987), Pohlot
was convicted of murder, despite uncontroverted psychi-
atric testimony that he had been insane. The trial judge
refused, based on his interpretation of the Insanity
Defense Reform Act, to instruct the jury that it could
consider the evidence of Pohlot’s mental condition in
determining whether or not he had the required specific
intent for the crimes charged. On appeal, the govern-
ment argued that defense counsel was permitted to
address mens rea in his closing, and that the general
instructions given did not prevent the jury from taking
that evidence into consideration.
The Third Circuit agreed that the most probable effect
of the judge’s instructions was to exclude the psychiatric
evidence from the jury’s consideration of mens rea. It
rejected the government’s claim that the intent of the
reform was to place the burden on the defendant, not the
224 Forensic evaluation and treatment in the criminal justice system
prosecution; it held that a legally sane person might lack
mens rea. The court concluded that the evidence in ques-
tion did not relate directly to specific intent, but to Pohlot’s
understanding of his actions and their consequences. It
therefore affirmed the lower court’s refusal to include the
requested jury instruction.
In United States v. Perry (1999), Ms. Perry pled guilty
to embezzlement; at sentencing, she presented testimony
from a psychologist who testified that she was clinically
depressed and her actions indicated a need for accept-
ance, a capacity for denial, and had an addictive quality.
He opined that the denial and addictive elements caused
‘some diminished capacity,’ which would justify a down-
ward sentencing departure under Federal Sentencing
Guideline Sec. 5K2.13. Her gynecologist also testified
that she was depressed, and he had treated her with anti-
depressant medication. The government presented no
expert testimony in rebuttal. The trial court accepted the
testimony, and granted Ms. Berry’s request for a lower
sentence due to diminished capacity. The government
appealed and the Fourth Circuit affirmed (without pub-
lished opinion). In an unpublished opinion, the court
held that the district court had not abused its discretion.
The court cited the Guidelines statement that dimin-
ished capacity is one ground for downward departure
‘not adequately taken into consideration by the Sentencing
Commission.’
The Supreme Court has not been so accommodating
(Montana v. Egelhoff 1996). Although most states permit
voluntary intoxication to diminish a defendant’s cap-
acity, Montana does not. James Egelhoff was charged with
two murders; he was so intoxicated when found by police
that he claimed that he could not physically have com-
mitted the murders. Montana law allowed evidence of
intoxication to be presented, but prevented the jury from
considering whether voluntary intoxication could have
negated the mens rea required for conviction of deliber-
ate homicide. Egelhoff was convicted, and appealed. The
Montana Supreme Court reversed, holding that the Due
Process Clause guarantees a defendant the right to pres-
ent all relevant evidence to negate an element of the
crime. The U.S. Supreme Court reversed, holding that
the proposition that the Due Process Clause guarantees
the right to introduce all relevant evidence is simply
indefensible. The 5–4 majority listed a number of situa-
tions in which relevant evidence may be excluded, includ-
ing prejudicial, confusing, time-wasting, cumulative, and
unreliable evidence. It held that Egelhoff did not meet
his ‘heavy burden’ that the Montana law violated due
process. It held that dealing with crime is much more the
business of the states than the Federal Government. The
law in question did not ‘offend some principle of justice
so rooted in the traditions of and conscience of our people
as to be ranked as fundamental.’ It traced history and
found no support in the common law for using voluntary
intoxication as a defense. The majority conceded that many
courts had created an exception for specific intent crimes.
Citing that 20 per cent of states have not accepted this
principle, the majority held that is not so deeply rooted
as to be a fundamental right.
Justice O’Connor’s dissent argued that the state’s
interest in convicting a certain class of offenders is not
sufficient to satisfy Due Process. She held that the excep-
tions mentioned by the majority did not exclude a whole
category of evidence.
Discussion and evaluation
Dix (1971) argues that diminished capacity represents an
attempt to integrate the continuous variability of mental
disorder and the discontinuous categories of criminal
law. He analyzes the concept using two models:
1 Subjective – emphasizing the character of individual
defendants. Under this model, liability can be estab-
lished only if: (a) the person violated a social prohibi-
tion; (b) the offender was aware of the prohibition;
(c) the offender acknowledged at the time that the rule
‘should’ have been obeyed; and (d) the offender’s deci-
sion to violate the rule was not significantly affected by
factors other than his/her philosophical decision to do
so. By focusing on the capacity of the defendant, this
model emphasizes the deterrent function of the law.
2 Objective – emphasizing the threat that the offender
poses to society. Under this model, liability is properly
imposed if the person has demonstrated that he or she
poses such a threat. The model emphasizes the ret-
ributive function of the law, but it may also support
the preventive function by educating the public about
the rules.
Dix discusses four theories under which psychological
abnormality might be used in assessing criminal liability:
1 To produce a general mitigating factor (‘diminished
responsibility’). The English Homicide Act of 1954
(Dix 1971) takes this approach, although it deals with
both the charge and the punishment. Dix concludes
that, with the possible exception of homicide, American
law does not easily lend itself to such gradations. Also,
diminished capacity might fit with the principle that
severity of crime correlates with moral responsibility,
but not with the principle that punishment correlates
with the defendant’s threat to society.
2 To affect mens rea. Problems exist because most
offenses (again except homicide) are not graded based
on mens rea considerations. Also, mens rea is generally
defined in purely cognitive terms that are not compat-
ible with psychological analysis. In particular, psycho-
dynamic experts are likely to confound the influence
of unconscious factors with loss of mens rea.
3 There is the potential to use psychological testimony to
argue that, even though mens rea existed, the criminal
behavior was caused by unconscious factors rather
than by the conscious mens rea (State v. Sikora 1965).

However, the law traditionally has used an all-or-none
analysis for the causal relationship between mens rea
and actus reus; so again psychological evidence lead-
ing to gradations of the balance between conscious
and unconscious factors does not fit well within the
present legal framework.
4 It might be possible to modify the mens rea concept to
make it more compatible with psychological evidence.
Chambliss (1967) differentiates between instrumental
and expressive criminal acts, and argues that deter-
rence is more effective for those who have little com-
mitment to crime and whose behavior is expressive
rather than instrumental. This distinction does not exist
formally in current law, although increased penalties
for repeat offenders do address it; and Dix argues that
it would be difficult to prove and difficult to integrate
into existing law.
Dix also argues that attempts should be made to rec-
oncile psychological information and the law governing
mental states, both on the basis of fairness and because
psychological evidence bears on an offender’s ‘personal
turpitude,’ an essential component of society’s desire to
impose punishment. Recognition of psychological fac-
tors reduces the amount of incarceration that a mentally
disordered offender experiences before obtaining treat-
ment. Imposing punishment on those whose mental
condition reduces its deterrent effect is inappropriate.
Diminished capacity would provide juries with an add-
itional option in cases where mental disorder does not
rise to the level of insanity.
Morse (1984) divides diminished capacity into a mens
rea variant (leading to a finding of not guilty for those
crimes without lesser included offenses) and a partial
responsibility variant (reducing the level of the charge). He
admits, however, that the mens rea variant may exculpate
for one crime but not for a lesser included charge, thus
making it essentially comparable to partial responsibility.
The mens rea variant becomes confusing because of
the difficulty of defining the legal distinction between
general and specific intent, which Morse says cannot be
adequately done. He points out that courts introduced
the distinction in order to prevent intoxication, mistake,
or diminished capacity from leading to a not guilty ver-
dict; he argues that it would be simpler just to bar those
conditions as exonerating factors directly. He explains
that experts are often asked not whether the defendant
had the requisite intent but whether he had the capacity
to have formed the intent, which permits unscientific
speculation.
Morse argues that the logical and moral basis for the
mens rea variant is compelling. Arguments for limiting
or rejecting the mens rea variant include: (i) confusion of
the two variants of diminished capacity; (ii) fear that
intoxication and similar claims will lead to total exculpa-
tion; (iii) unwarranted fear for public safety; (iv) unjusti-
fied belief that a mens rea variant will undermine the
Criminal responsibility 225
insanity defense and the bifurcated trial in those jurisdic-
tions that have it; and (v) unjustified fear of cluttering
the trial process.
Morse rejects each argument. In particular, he argues
that there is no significant difference between mental
state determinations in the case of mens rea and in insan-
ity, or competency. He states that it makes no legal or
policy sense to permit diminished capacity for voluntary
intoxication, but to prohibit it for involuntary mental
disorder. There is no reason to believe that mental dis-
order is not as likely to remove general as specific intent.
Morse also argues that it makes no sense to limit the
defense to homicide. He says that the concept behind
partial responsibility in sentencing hearings makes more
sense than at trial, but it removes an important expres-
sion of community wishes from the province of the jury.
Morse accepts that some acts that satisfy criminal defin-
itions should lead to lesser penalties or exculpation, but
not through a partial responsibility approach.
Given the variability among jurisdictions’ statutes and
case law concerning diminished capacity, evaluators must
familiarize themselves with the applicable rules. These
rules include the legal definition of diminished capacity
and whether or not testimony is permitted on the ulti-
mate issue, that is, whether or not the defendant’s capacity
was diminished by mental disorder. Once that has been
done, and the defendant is fully informed of the purpose
of the evaluation and the possible result of any opinions
generated as a result of the evaluation, the approach is
similar to that discussed previously under the insanity
defense. In both cases, the legal question is whether the
defendant was suffering from a mental disorder (however
defined in that jurisdiction) and how that disorder, if pres-
ent, affected the defendant’s cognitive abilities at the time
of the alleged crime.
Because of the recent flux in the availability of dimin-
ished capacity as a defense, formal evaluation schedules
have not been developed as they have for insanity and
competency to stand trial. Evaluators therefore will have
to operationalize the jurisdiction’s legal criteria along the
same lines and be prepared to explain their reasoning in
reports or testimony.
EXTREME EMOTIONAL DISTRESS
Anglo-American common law has for centuries recog-
nized that persons under significant psychological stress
may bear decreased responsibility for their criminal
behavior. Defendants who can demonstrate that their
ability to control their behavior was impaired by emo-
tional conditions not rising to the level of legal insanity
may have the severity of their charges or sentences
reduced, or may even be found not guilty.
When the criminal law was codified by many state legis-
latures, the concept of extreme emotional distress was
226 Forensic evaluation and treatment in the criminal justice system
incorporated into the definitions of particular specific
intent crimes. The construct is therefore comparable to
diminished capacity, in many respects, both in theory
and in actual courtroom practice.
Trial and sentencing
During the trial phase, extreme emotional distress, heat of
passion, or other similar constructs are most often used in
connection with homicide charges. All jurisdictions rec-
ognize different degrees of homicide that differ only as to
the specific intent required. There are two major legal
approaches to this differentiation process. In one, homi-
cide is a single class of crime, with various degrees of
severity (such as first- and second-degree murder, and
voluntary and involuntary manslaughter). Once the act of
killing has been proven, determination of the degree of
culpability is determined by the intent of the defendant.
In the second approach, the different degrees of homicide
are treated as distinct crimes.
Statutes rarely provide clear definitions of extreme
emotional distress; most of them simply use the words
themselves (or similar terms, such as heat of passion).
For example, the Maine statute examined by the U.S.
Supreme Court in Mullaney v. Wilbur (1975) defined
manslaughter as ‘Whoever unlawfully kills a human being
in the heat of passion, on sudden provocation, without
express or implied malice aforethought’ (Maine Rev. Stat.
1964).
Courts may further define statutory terms in individ-
ual cases. ‘Heat of passion’ in the above Maine statute was
explained by a trial judge as, ‘At the time of the act the
reason is disturbed or obscured by passion to an extent
which might [make] ordinary men of fair, average dispos-
ition liable to act irrationally without due deliberation or
reflection, and from passion rather than judgment’ (App.
47 1974). Such definitions from trial courts apply only
to the particular case in question, but appellate courts
may on occasion adopt them, thus applying definitions
to their whole jurisdictions.
The New York Court of Appeals (the highest state
court) pointed out that ‘extreme emotional disturbance’
was substituted for ‘heat of passion’ in the state homicide
statute to reflect advances in psychology demonstrating
that a ‘significant mental trauma’ resulted in a ‘mental
infirmity short of insanity,’ which may be present ‘for a
substantial period of time, simmering in the unknowing
subconscious and then inexplicably coming to the fore.’
The heat of passion defense is precluded by any period of
cooling off before the crime, whereas extreme emotional
disturbance is not necessarily precluded. It is not sufficient
that the defendant was merely angry or upset (People v.
Patterson 1976).
Courts have also attempted to define extreme emo-
tional distress as contrasted to other legal constructs; for
example, the Illinois Supreme Court held that the level of
mental illness required for a guilty but mentally ill find-
ing does not necessarily rise to the level of extreme emo-
tional disturbance required to mitigate a death sentence
(People v. Crews 1988).
The major issue in appellate decisions concerning
extreme emotional distress has been the burden of proof.
The conflict has been over whether extreme emotional
distress is an affirmative defense to first-degree murder,
which requires the defendant to establish its existence; or
whether the prosecution must prove the absence of
extreme emotional distress to establish the intent neces-
sary for first-degree murder.
In the leading case dealing with this issue (Mullaney v.
Wilbur 1975), the U.S. Supreme Court addressed Maine’s
homicide statute, which required a defendant charged
with murder to prove, by a fair preponderance of the evi-
dence, that he acted ‘in the heat of passion on sudden
provocation’ in order to reduce the murder to manslaugh-
ter. The prosecution was required to prove that the homi-
cide was unlawful (neither justifiable nor excusable) and
that it was intentional. Only if those elements were proven
could the jury consider the distinction between murder
and manslaughter. On appeal of a murder conviction, the
Maine Supreme Court held that the prosecution was
entitled to rest on a presumption of implied malice afore-
thought (required for murder) and could require the
defense to prove that a defendant had acted in the heat of
passion. The federal district and appeals courts reversed,
finding that murder and manslaughter were distinct
crimes, and therefore the prosecution was required under
In re Winship (1970) to prove each element of the crime
beyond a reasonable doubt, including malice (which
would be negated by heat of passion.)
The Maine Supreme Court had rejected the argument
in a different case, and the U.S. Supreme Court accepted
this case to resolve the issue. It acknowledged that in
English common law, the burden of proving heat of pas-
sion rested with the defendant, and that early U.S. cases
retained that scheme. However, the Supreme Court had
rejected it in Davis v. United States (1895), and most
states had abandoned it. The Supreme Court acknow-
ledged that proving lack of heat of passion may be diffi-
cult, but that did not justify shifting the burden to the
defendant.
Subsequently, in People v. Patterson (1976), the New
York Court of Appeals held that the New York homicide
statute, which required a defendant to prove extreme emo-
tional disturbance to reduce homicide to manslaughter,
was not comparable to the Maine statute held unconstitu-
tional by U.S. Supreme Court in Mullaney. The New York
law required that intent be proven for homicide, while
extreme emotional disturbance could be raised by the
defense to reduce the charge to manslaughter. The court
therefore held that the New York statute still required the
prosecution to prove the elements of the crime and did
not permit the jury to infer intent from the crime itself, as
the Maine statute did.

The decision was appealed to the U.S. Supreme Court
(Patterson v. New York 1977), which declined to read its
decision in Mullaney broadly, and affirmed the convic-
tion: ‘We thus decline to adopt as a constitutional impera-
tive, operative countrywide, that a State must disprove
beyond a reasonable doubt every fact constituting any
and all affirmative defenses related to the culpability of
an accused … . Proof of the nonexistence of all affirma-
tive defenses has never been constitutionally required; we
perceive no reason to fashion such a rule in this case and
apply it to the statutory defense at issue here.’ New York’s
use of extreme emotional disturbance has been thor-
oughly discussed by Goldstein (1989).
After the Supreme Court struck down most capital
sentencing laws in Furman v. Georgia (1972), all states
with capital punishment revised their procedures to pro-
vide a separate sentencing hearing, at which the state could
present aggravating circumstances and the defense could
present mitigation. In the list of potentially mitigating cir-
cumstances, most states include emotional distress at the
time of the crime. The issue of psychiatric evidence in sen-
tencing hearings is considered in detail in Chapter 27.
THE IMPOSITION OF AN INSANITY PLEA ON
AN UNWILLING DEFENDANT
Previously, our discussion dealt with pleas entered willingly
by the defendant. There remains, however, considerable
controversy in the law when a defendant who appears to
have been insane at the time of the alleged crime refuses
to plead insanity. The central conflict is between the
autonomy of defendants to choose their own defenses
and the dignity of the law. The courts have supported the
general position that competent defendants should direct
the courses of their defenses, but disagreement remains
about what decisions can be made by a defense attorney
without his or her client’s consent (Miller et al. 1996).
In the case of the insanity plea, there are two separate
issues. The first is that of the defendant’s competency to
reject such a defense despite evidence that his or her con-
dition and behavior at the time of the alleged crime met
the criteria for legal insanity. The second is whether even
a competent defendant should be allowed to reject an
insanity defense under such circumstances.
Legal issues
The major line of cases on the subject has come out of
the United States Court of Appeals for the District of
Columbia. In Overholser v. Lynch (1961), the trial judge
had imposed an insanity defense on Lynch, found him
insane, and committed him to St. Elizabeths Hospital.
The United States Court of Appeals and the Supreme
Court focused on the automatic commitment and did not
challenge the trial judge’s authority to impose an insanity
Criminal responsibility 227
defense. In Whalem v. United States (1965), the Appeals
Court held that while an accused may refuse to enter an
insanity defense, he may not, in a proper case, prevent the
court from imposing it. The majority reasoned that the
courts must refuse to permit the conviction of a morally
non-responsible defendant. The court reaffirmed its posi-
tion in United States v. Robertson (1974).
Whalem stood until 1979, when the same court in
Frendak v. United States (1979) reinterpreted its decision
in Whalem. It held that a court may not force an insanity
defense on a defendant who intelligently and voluntarily
rejects it; but it held that a finding of competency to
stand trial does not per se determine competency to reject
an insanity defense.
It pointed out that the Whalem decision gave little
guidance to judges concerning how to decide whether to
impose the defense or not, except for a few factors that
would support a decision to impose the defense. After
Whalem, the case law had encouraged judges to focus on
the evidence supporting an insanity defense, rather than
on the defendant’s competency to make that decision.
Next, the court reviewed the Supreme Court’s deci-
sions in North Carolina v. Alford (1970) and Faretta v.
California (1975), both of which stressed the importance
of permitting a defendant to make decisions central to
the defense, but did not guarantee a defendant the
absolute right to control his or her defense. The court
held that Whalem was inconsistent with the underlying
philosophy of the Supreme Court’s later cases; and it held
that there were persuasive reasons why a competent
defendant might elect to reject a potentially successful
insanity defense, including a desire to avoid a mental
commitment potentially longer than the prison term for
the crime charged, an objection to the quality of treat-
ment or type of confinement attendant upon an insanity
acquittal, a genuine belief that he was not insane, the
belief that raising the defense would be equivalent to an
admission of guilt, the stigma of insanity, irrational fear
of the mentally ill, risk of future discrimination, and
avoidance of denigration of political or religious protest.
The court held that because the defendant bears the
consequences of a decision, if he or she has acted intelli-
gently and voluntarily, a trial court must defer to his/her
wishes not to raise an insanity defense. The judge may
still interpose the defense against the defendant’s will,
however, if the defendant is not competent to reject it
(but presumably otherwise competent to stand trial).
The court then proceeded to provide guidelines for
judges to make that determination. Whenever the evi-
dence raises a substantial question of insanity, the judge
must conduct an inquiry designed to ensure that the
defendant has been fully informed of the alternatives
available, comprehends the consequences of failing
to assert the defense, and freely chooses to raise or waive
the defense. Because the circumstances involve someone
whose mental condition has already been questioned, the
examination must not be cursory. If the judge finds that
228 Forensic evaluation and treatment in the criminal justice system

the defendant is capable of making a voluntary and intel- to impose the insanity defense on incompetent defend-
ligent decision to reject the defense, the judge must ants. Resnick (1978) disagrees, arguing that defendants
respect that decision; but if not, the judge retains the dis- who are incompetent to waive an insanity defense should
cretion to raise the defense sua sponte. be treated the same as other incompetent defendants.
The U.S. Supreme Court has not definitively addressed
this issue; in 1895, the Court held that as insanity is not
strictly an affirmative defense, it can be raised by either the
Evaluation
prosecution or the court (Davis v. United States 1895). In
In United States v. Robertson (1974), the United States
1966, the Court held that ‘the constitutional right of a
Court of Appeals for the District of Columbia Circuit set
defendant [to refuse an insanity defense] cannot be waived
forth several factors that a trial judge should consider in
by his counsel’ (Brookhart v. Janis 1966). But it did not
deciding whether or not to impose an insanity defense,
address whether or not the court could enter such a plea.
including: (i) the bizarre nature of the crime; (ii) whether
As a result, both federal and state case law comes down
defense counsel wishes to raise the defense; (iii) the dif-
on opposite sides of the issue. State courts in Washington
fering views of experts on the question of insanity; and
(State v. Dodd 1967; State v. Jones 1983), California (People.
(iv) the defendant’s behavior at trial. In 1980, the Appellate
v. Redmond 1971; People v. Gauze 1975), Maryland (White
Division of the New Jersey Superior Court operationalized
v. State 1973; Anderson v. State 1973; Treece v. Maryland
the standard ‘knowing and intelligent’ test of the validity of
1988), Indiana (Hooks v. State 1977), and Louisiana (State
waiver of constitutional rights by instructing trial judges to
v. Lowenfield 1985) have ruled that the insanity defense
examine the defendant’s ‘awareness of his rights and avail-
cannot be forced. The Fourth Circuit Court of Appeals
able alternatives, his comprehension of the consequences
held that, ‘A prisoner who insists that he did not commit a
of failing to assert the defense and the freeness of the deci-
crime can hardly be forced by his counsel to confess it in
sion to waive the defense.’ The judge should avoid, how-
order to support a tenuous defense of insanity’ (Snyder v.
ever, ‘an incursion into the area of mental capacity which
Cunningham 1961).
might develop into an irreconcilable conflict with the find-
On the other hand, state courts in Missouri (State v.
ing of competency to stand trial’ (State v. Khan 1980).
Hermann 1955), California (People v. Merkouris 1956),
Most jurisdictions lack statutory or common law cri-
Nebraska (State v. Hall 1964), Washington (State v.
teria, however, and evaluators will have to operationalize
Kolocotronis 1968), Maine (State v. Fernald 1968), New
their assessments based on the general ‘knowing and
Jersey (State v. Gadson 1973), Maryland (List v. State
intelligent waiver’ standard. In states that permit – even
1973; Walker v. State 1974), Minnesota (State v. Pautz
require – judges to enter an insanity defense on behalf of
1974), and Colorado (Les v. Meredith 1977) have permit-
a defendant in appropriate circumstances (Colorado
ted the imposition of an insanity defense. Several of these
Stat.), the psychiatrist may be asked to evaluate defend-
states have decisions on both sides of the issue, and the
ants over their objections, and two distinct issues may
latest decision is not necessarily final. Federal appellate
need to be addressed:
decisions have generally favored the imposition of the
defense (Plummer v. United States 1958; United States v. 1 Is the defendant competent to decide which plea to
Ashe 1973; United States v. Wright 1980). Both federal enter?
(Cross v. United States 1968; Trest v. United States 1968; 2 Does the defendant meet the criteria for insanity (even
United States v. Bradley 1972; United States v. Simms though he or she indicates that they have no desire to
1972; Mendenhall v. Hopper 1978) and state (People v. enter that plea)?
Gonzales 1967; People v. Baxter 1969; State v. Johnston
In such a situation, it is even more important than in the
1974; United States ex rel. Laudati v. Ternullo 1976) courts
usual competency or criminal responsibility evaluation
have generally held that it is not abuse of discretion for a
for the evaluator to have a thorough grasp of the juris-
trial judge to decline to impose an insanity defense.
diction’s rules on the subject, and to communicate fully
Cohn (1988) points out that since the abolition of the
the purpose and potential consequences of the evalu-
insanity defense itself has been found constitutional in
ation to the defendant.
several states, there is little rationale for requiring a judge
Evaluators should also be aware of the possibility of
to impose it. He does not dismiss the need of the law to
political agendas behind forced insanity defenses, where
arrive at a just verdict, but he points out that many
such pleas have been used to discredit political acts by
methods that are demonstrably more effective to achieve
defendants (Resnick 1978).
that end (such as eliminating the privilege against self-
incrimination) have been ruled to be unconstitutional.
Another legal author (Note 1981b) also finds the
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Criminal responsibility 229
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Novel mental disorders1
ROBERT D. MILLER
The traditional use of mental health defenses and claims
has been for major mental disorders such as schizophrenia
and the major mood disorders (Daniel et al. 1984; Rogers,
Bloom and Manson 1984). These authors reported a very
high correlation between findings of insanity and the pres-
ence of psychotic mental disorders in the acquittees.
Together with data from a different jurisdiction, it was
found that 70 per cent of insanity acquittees suffered from
psychotic mental disorders, and 12 per cent suffered from
neurosis, organic brain injuries, or mental retardation. In
recent years, attorneys have begun to put forth new men-
tal or social disorders, either to excuse (or mitigate) other-
wise criminal behavior, or to lay the foundation for civil
litigation.
POSTTRAUMATIC STRESS DISORDER
Perhaps the most common condition is posttraumatic
stress disorder (PTSD), which initially blossomed when
the disorder was officially recognized by the American
Psychiatric Association (1980). The initial criteria required
that the trauma be ‘outside of normal human experi-
ence,’ reflecting its origins in war and single disasters. The
current criteria (DSM-IV) are broader, requiring only that
the person ‘experienced, witnessed, or was confronted
with an event or events that involved actual or threatened
death or serious injury, or a threat to the physical integrity
of self or others; and the person’s response involved intense
fear, helplessness, or horror.’
The broadening of the definition came largely from
the influence of advocates for victims of child abuse, who
argued that serious abuse of vulnerable children over an
extended period of time can cause the same symptoms as
a few catastrophic events. Initially, the focus of the use of
PTSD was on Vietnam veterans, and largely concentrated
1
This chapter is an expansion of material originally published in
the Thomas M. Cooley Law Review (Miller 2000) and is used with
permission.
26
in the criminal courts. Forensic clinicians, while acknow-
ledging the validity of PTSD as a clinical disorder, have
cautioned against its uncritical acceptance in the courts,
in part because the criteria rely so heavily on the patient’s
self reports (Sparr and Boehnlein 1990; Stone 1993;
Weintraub 1997).
On the other hand, legal author Goldklang (1997),
argues for the wider acceptance of PTSD as an excuse for
otherwise criminal behavior. The defense has met with
varying success, due in part to the fact that there are a
number of cases in which the defendants do not meet the
PTSD criteria, and others in which PTSD is present, but
not causally related to the criminal acts in question.
One successful use of the defense was in State v. Heads
(1980). Heads killed the husband of his wife’s sister after
his wife left him. He was found sane and convicted of
murder at his first trial, but the conviction was over-
turned on other grounds. At his second trial (after DSM-
III came out listing PTSD), Heads was found insane.
Despite the broader criteria, Appelbaum et al. (1993)
report that PTSD remains rare as a defense to criminal
charges – their data reveal that it was raised as an insan-
ity defense in 28 of 8953 cases (out of 967 209 felony
cases) and was successful in only eight cases, comparable
to the success rate of insanity defenses in general.
One of the main criticisms of PTSD in the forensic
arena is the subjective nature of the diagnosis. The DSM
criteria are typically operationalized almost entirely from
the patient’s subjective report. Detailed structured inter-
views provide more detail, but can suggest symptoms to
malingerers (Pitman and Orr 1993). Psychometric testing
has not proved effective in distinguishing genuine from
simulated PTSD. Invasive techniques, including lactate or
yohimbine, pain tests, and blood epinephrine (adrenaline)
levels have also been shown to distinguish between PTSD
and simulation, but at this time they are probably unsuit-
able for forensic investigations. Potential blood tests have
been developed but not yet studied in controls and in non-
combat PTSD sufferers (Pitman and Orr 1993).
More promising at the present time is psychophysiologic
testing, to address Criterion D (arousal) of the DSM-IV
234 Forensic evaluation and treatment in the criminal justice system
diagnosis of PTSD. A combination of heart rate, skin con-
ductance, lateral frontalis electromyography (EMG), cor-
rugator EMG, and zygomaticus major EMG was able to
correctly classify 18 of 25 genuine PTSD sufferers, 16 of 16
non-PTSD patients, and subsequently 12 of 16 of the non-
PTSD patients when they were asked to simulate (Orr and
Pitman 1993). These authors stress that the tests cannot
stand alone, and must be used as part of a comprehensive
evaluation. They discuss the differences in admissibility
standards between Frye v. United States (1923) and Daubert
v. Merrill Dow Pharmaceuticals (1993), and cite a recent
case, Vinal v. New England Telephone (1993) as reported in
Pitman, Saunders, and Orr (1994) in which an expert was
allowed to testify under the Frye standard in a civil dam-
ages case that the plaintiff’s psychophysiologic responses
met the PTSD criterion of psychophysiologic reactivity,
but was not allowed to testify as to a numerical estimate of
the probability that she suffered from PTSD.
The broader criteria for PTSD adopted in 1994 have
created a much larger class of potential victims, for both
criminal and civil litigation, and have spawned a number
of ‘me-too’ conditions that are not yet recognized as ‘offi-
cial’ mental disorders by the American Psychiatric Associ-
ation, but are increasingly brought up in court.
BATTERED WOMAN SYNDROME
The oldest of these novel syndromes historically, and the
one most commonly put forward in criminal courts, is
battered woman syndrome (BWS), which is used in an
attempt to explain why women kill their batterers at times
when the women are not in immediate danger. While
BWS clearly exists as a clinical syndrome, and explains
much aggressive behavior against abusers, it is not as clear
whether it should excuse that behavior. The courts have
become increasingly receptive to the admissibility of
expert testimony on BWS, although not necessarily to the
excusing power of the syndrome. [The first appellate case
to approve the admissibility of the BWS was Ibn-Tamas v.
United States (1979); for discussions of subsequent cases
and the rationales for and against the use of BWS as a
defense to criminal charges, see Copp (1995).] Professor
Copp argues for acceptance of BWS as a self-defense con-
cept, because the women in question have been physically
abused by the victim, and when they attack, they protect
themselves from future violence by their abusers. For a
detailed discussion of case law, see Shopp, Sturgis, and
Sullivan (1994).
Schuller and Vidmar (1992) list obstacles to successful
self-defense claims:
1 The laws of self-defense, which require that the defend-
ant have a reasonable apprehension of imminent
death or grievous bodily harm at the time of the
killing, and that the force used was a reasonable and
necessary response.
2 The presumed beliefs that people harbor about the
consequences and effects of male violence against
women in intimate relationships, i.e., that battered
women enjoy or need the violence, and could leave if
they chose.
Expert testimony attempts to explain the defendant’s
state of mind – why her actions can be seen as reason-
able, and why she did not leave. In most cases, however,
experts are allowed to testify as to the nature of BWS, but
not whether the defendant meets criteria for the syn-
drome. Courts consider both reliability and validity,
using either Frye v. United States (1923) or the Federal
Rules of Evidence, #702. The American Psychological
Association has supported the validity of the syndrome,
but points out that methodological problems remain,
including: (i) no control group; and (ii) the non-random
selection of subjects.
Parrish (1996) argues that there is no such thing as a
separate ‘battered women’s syndrome’; the expert testi-
mony is properly used to support a self-defense or duress
defense. Parrish analyzed 269 court opinions and twelve
state statutes; her data demonstrate that:
• Testimony on battering is admissible in all 51 state
jurisdictions. Sixteen of nineteen federal courts that
have addressed the issue have admitted the testimony.
• BWS testimony is most commonly admitted in trad-
itional self-defense cases.
• Most jurisdictions (76 per cent) permit expert witness
testimony to establish that a defendant is battered.
• Most jurisdictions (70 per cent) permit testimony on
a defendant’s mental state.
• Two-thirds of jurisdictions permit testimony to explain
why a battered spouse does not leave the situation.
• Thirty per cent of state courts (44 per cent of federal)
permit expert testimony to prove diminished capacity.
• Appeals were affirmed in 63 per cent of state cases,
although expert testimony was admitted in 71 per cent
of those cases; convictions were affirmed in 77 per cent
of federal cases.
As societal knowledge and attitudes toward domestic
violence change, there may be less need for expert testi-
mony. Jury instructions have been shown to be the most
important variable. In some studies, expert testimony
did not alter verdicts, but it did influence the way in
which jurors perceived the case, whilst in others it did
influence decision making. Testimony was influential
only if linked to the specific defendant, and the studies
were of only mock juries. When expert testimony is
countered by the prosecution, its effects disappear. Ewing
(1987) reviewed 85 homicide trials of battered women,
and the defendant was convicted of some form of mur-
der in 70 per cent of these. In two-thirds of the cases, the
killing occurred outside of a direct confrontation. Walker
(1990) reported that in 150 cases on BWS in which she
has testified, 25 per cent of defendants were acquitted.

BATTERED CHILD SYNDROME
A logical sequela of the recognition of BWS was the cre-
ation of the battered child syndrome (BCS) to explain
(and excuse) aggressive behavior of children against their
abusers, even when their retaliatory behavior was clearly
and carefully planned. The most publicized example of
the use of this defense was in the case of the Menendez
brothers in California, who were finally found guilty at a
second trial, after a hung jury at the first trial (People v.
Menendez undated). The defense remains very controver-
sial. Several other courts have held that testimony on BCS
is admissible, holding that is a ‘recognized medical diag-
nosis’ (State v. Wilkinson 1978; State v. Mulder 1981).
Commentators are divided on the legitimacy of the
diagnosis in court. Sacks (1994) argues that the defense
should be accepted in appropriate cases, but one legal
author (Note 1994) argues against it.
BLACK RAGE
Defense attorneys have now moved from situations in
which abuse by the specific victim(s) is put forward as a
defense to arguing that defendants should be excused
because of generic trauma while growing up. These
syndromes are all variants of PTSD, but without the
documented research that is now available to support
PTSD. One such syndrome is called the black rage syn-
drome, first proposed by Grier and Cobbs in 1968. These
authors argued that because of the pervasive pattern of
racism that persists in the United States, blacks develop
a ‘cultural paranoia’ which leads them to view whites as
the enemy, and thus to react in what they perceive to be
self-defense.
The first reported use of the defense was in United
States v. Robertson (1974), in which a psychiatrist testified
in favor of the black rage defense. In Fisher v. United States
(1946), the trial court rejected a diminished capacity
instruction on black rage, and Fisher was convicted. The
appeals court upheld the rejection of diminished cap-
acity; the Supreme Court majority affirmed, since Fisher’s
mental state did not amount to insanity. Copp (1995)
argues against the defense; while she agrees that discrim-
ination against blacks continues, she argues that it does
not rise to the level of insanity. The theory explains the
development of intense anger, but does not justify crim-
inal conduct. Copp distinguishes black rage from PTSD
because in the latter condition the violence is unantici-
pated and occurs in response to recurrence of the trau-
matic event. She distinguishes black rage syndrome from
BWS because in the latter, the woman has been physically
abused by the victim, and when she attacks, she protects
herself from future violence by her abuser. Copp argues
that to accept black rage as a defense would harm society
in two ways: first, it would open up the floodgates for an
Novel mental disorders 235
endless stream of discrimination-based defenses; and
second, it would insult millions of law-abiding blacks.
Goldklang (1997) supports the defense, conceding that
it would be problematic to satisfy a cognitive insanity test,
but might satisfy an irresistible impulse test or the Model
Penal Code Test; it might also satisfy a diminished capacity
test – particularly the partial responsibility variant.
Falk (1996) also supports the defense. She concedes that
courts have not accepted it, but she argues that such a defense
(along with ‘Urban Psychosis’ and ‘Television Intoxication’)
can be fitted within the existing structure of the criminal
law, either to support an insanity defense, to elucidate other
mental states such as diminished capacity and provocation,
to support self-defense, or to play a mitigating role in sen-
tencing. Falk concludes that these defenses are perhaps
most relevant at sentencing, but the rise of determinate
sentencing guidelines has limited their use.
ROTTEN SOCIAL BACKGROUND
Another sociological background defense that has been
put forward in courts is rotten social background (RSB),
which posits that exposure to violent, abusive conditions
during childhood leads to uncontrollable aggressive behav-
ior. Delgado (1985) argues that RSB defense not only
protects individual defendants, but also forces society to
confront the social conditions that led to it. Morse (1994)
argues that RSB produces neither sufficient external
duress nor sufficient internal coercion, to excuse crim-
inal behavior. The defense has not gained acceptance
in court. The U.S. Court of Appeals for the District of
Columbia Circuit (United States v. Alexander 1972) rejected
the defense, although a psychiatrist testified in its favor.
URBAN SURVIVAL
A similar new sociological defense is urban survival or
urban psychosis syndrome, which proposes that growing
up in violent ghettos causes such a distortion of normal
human values and expectations that its victims do not
develop non-violent responses to adversity, and react to
even the smallest slights with lethal force. As to be expected
from the previous discussion, Falk supports the defense,
at least in some cases, while Copp (1995, p. 207) opposes
it. Estrich (1998) also opposes it, expressing concern that
the criminal justice system itself may suffer if defendants
are not held responsible for their crimes for a variety of
social/political reasons. Similar arguments are made by
Dershowitz (1994).
TELEVISION INTOXICATION
One of the more ingenious attempts to excuse violent
behavior was created by attorney Ellis Ruben in the
236 Forensic evaluation and treatment in the criminal justice system
Zamora case (Zamora v. State 1982). Zamora was a Cuban
immigrant who learned to speak English from watching
television. He and some other adolescent friends were
robbing the house of an elderly neighbor when she sur-
prised them. They brutally murdered her. At trial, Ruben
tried to argue that Zamora had been so saturated with
the violence he had seen on television that he was incap-
able of behaving any other way. The trial court did not
allow testimony on the novel theory, and the denial was
upheld on appeal.
RAPE TRAUMA SYNDROME
Unlike the syndromes discussed above, rape trauma syn-
drome (RTS) refers to victims of sexual abuse, and not to
the perpetrators. First described by Burgess and Holstrom
(1974), the syndrome refers to purported symptoms that
are unique to victims of sexual abuse; its use in court is
typically to prove that sexual abuse actually occurred,
thus providing evidence against a criminal or civil defend-
ant. Such use of expert testimony is controversial. Cohen
(1985) reports that testimony may be proffered to explain
victim behavior that may appear paradoxical to lay jurors
(such as denial or retraction of accusations), or to bolster
the credibility of a victim (especially if the victim is very
young.) Cohen argues that such testimony lacks the
required scientific reliability to be admissible under the
Federal Rules of Evidence. Unlike other syndromes (bat-
tered child, rape trauma, battering parent), there is often
no physical evidence to support child sexual abuse, which
makes the expert testimony even more powerful. Cohen
does approve of testimony that explains specifically sexual
behavior that is not common in young children who have
not been sexually abused, as was the case in In re Cheryl H.
(1984).
Frazier and Borgida (1992) provide a detailed review
of appellate decisions on RTS. Courts continue to be
divided as to the admissibility of RTS testimony. For
example, in State v. Marks (1982), the court held that evi-
dence of rape trauma syndrome was admissible, but in
State v. Taylor (1984) the court ruled it inadmissible,
whilst in State v. Saldana (1982) the court also ruled it
inadmissible because it was not based on a scientific test
that accurately determines whether a rape has occurred.
Frazier and Borgida report that qualification of experts is
rarely a bar to admission. Reliability of RTS evidence was
rarely raised, but when it was it was a major factor in the
evaluation of the testimony. The most common objec-
tion was that the evidence was prejudicial, though courts
have divided evenly on this issue. Testimony is more
likely to be admitted if it is general, and not specific to the
victim in the case. The authors offer several criticisms of
RTS testimony, namely that:
• Since symptoms of rape victims vary widely, a ‘syn-
drome’ does not accurately describe common features.
• Since the symptoms are not unique to RTS, they could
be caused by other stressors.
• Individuals react to being raped in different ways. The
authors do acknowledge that recent research has
demonstrated that RTS symptoms are relatively cir-
cumscribed, and some are specific to rape.
Some courts have held that RTS testimony is not beyond
the ken of the average juror, but the research cited by
Frazier and Borgida contradicts that assumption. While
expert testimony does exert some influence on juries, it
does not appear unfairly to prejudice the defendant. Data
from appellate decisions indicate that some experts are
describing symptoms as consistent with RTS that have
not been substantiated by the literature. Courts do not
appear to rely on the most recent research in their deci-
sions about admissibility.
CULTURAL DEFENSES
In addition to variants of PTSD, defense attorneys have
begun to graft cultural factors onto existing defenses
such as mistake of fact and diminished responsibility. For
example, in People v. Moua (1985) the trial judge reduced
charges from rape to false imprisonment because in the
Hmong culture, the marriage ritual involves abducting a
woman and consummating the relationship despite her
protests. In this case, the Hmong defendant mistakenly
took the victim’s protests as part of the ritual. In People v.
Chen (1989), Chen killed his wife after she confessed her
infidelity. The judge found that Chinese cultural beliefs,
in which a cuckolded husband’s manhood is lost, and he
is expected to kill his wife, diminished Chen’s responsi-
bility to second-degree manslaughter. In People v. Wu
(1991), after discovering her husband’s infidelity, Ms. Wu
killed her young son and tried to kill herself. The trial
judge refused a jury instruction to consider the defendant’s
cultural background, but the Appeals Court reversed,
holding that evidence of her cultural background could
have provided the jury with reasonable doubt that one of
the required mental states existed.
Gallin (1994) argues that such decisions reinforce
domestic violence, as after Chen, there was an increase in
domestic violence in Asian communities in New York.
Asian women who left their countries to escape the ritual
violence are now faced with it in the USA, and feel that
the courts will not protect them. By contrast, when
Vietnamese men were prosecuted in Los Angeles for bat-
tering spouses, the battering subsided.
MISCELLANEOUS NOVEL DEFENSES
Estrich (1998), in addition to listing the common syn-
dromes discussed above, lists several others that she has

encountered in her practice, including adoptive child
syndrome (excusing violent behavior on the basis of a
person’s feelings of rejection because of being adopted);
and riot syndrome (in which mob mentality takes over
and otherwise non-violent individuals become violent).
She applies the same criticisms to these as she has to the
more familiar syndromes. Dershowitz (1994) lists (and
disapproves of) even more syndrome defenses that have
been used in courts; relevant to the PTSD group are eld-
erly abuse syndrome, football widow syndrome, holocaust
survival syndrome, legal abuse syndrome, meek-mate syn-
drome, mother lion defense, premenstrual stress syn-
drome, UFO survivor syndrome, and unhappy gay sailor
syndrome.
Another recent entry is the reverse of the black rage
coin – white racism. In a recent article in the American
Psychiatric Association’s newspaper, Harvard psych-
iatry professor Alvin Poussaint is quoted as stating that
‘extreme racism’ meets the criteria for the DSM-IV diag-
nosis of delusional disorder, and therefore could support
criminal non-responsibility. Allan Tasman, President of
the American Psychiatric Association, opposed the idea,
expressing concern that such a view ‘could be used to
explain away people’s inappropriate beliefs rather than
taking responsibility for them.’ (Psychiatric News 1999).
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Delgado, R. 1985. ‘Rotten social background’: should
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battering and its effects in criminal cases. Wisconsin
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opinion divided. October 1, 1999, 15.
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kill their abusers. Journal of Contemporary Health Law
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283–302.
State v. Heads, 385 So.2d 230 (La. 1980).
State v. Marks, 647 P.2d 1292 (Kan. 1982).
State v. Mulder, 629 P.2d 462 (Wash. App. 1981).
State v. Saldana, 324 N.W.2d 227 (Minn. 1982).
State v. Taylor, 663 S.W.2d 235 (Mo. 1984) (en banc).
State v. Wilkinson, 247 S.E.2d 905 (N.C. 1978).
Stone, A.A. 1993. Post-Traumatic Stress Disorder and the
law: critical review of the new frontier. Bulletin of the
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23–36.
United States v. Alexander, 471 F.2d 923 (D.C. Cir. 1972).
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Vinal v. New England Telephone, No. 91-0564 (Mass.
Middlesex County Super. Ct., Sept. 22, 1993).
Walker, L. 1990: Terrified Love: Why Battered Women Kill,
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Post-conviction dispositional evaluations
ROBERT D. MILLER
When the Supreme Court struck down a number of capital
punishment statutes in 1972 because they were held to be
too arbitrary and did not permit individuation in senten-
cing (Furman v. Georgia 1972), state legislatures enacted
statutes calling for a separate sentencing phase for defend-
ants convicted of capital crimes. In such hearings, the fact
finder would choose between the death penalty and life
imprisonment based on the balance between aggravating
factors presented by the prosecution (including prediction
of future dangerousness) and mitigating factors presented
by the defense (including mental disorder).
Since the Supreme Court found that such statutes were
constitutional (Gregg v. Georgia 1976; Jurek v. Texas 1976;
Profitt v. Florida 1976), mental health professionals have
been called on to provide testimony in sentencing hear-
ings. The most controversy has been raised by psychiatrists
retained by the prosecution who predict future danger-
ousness. As Stone (1984) has pointed out, the intensity of
much of the criticism against such practice stems from
moral opposition to capital punishment, but there have
been some significant departures from professional stand-
ards as well in the actions of some psychiatrists.
First, there is the problem of predicting future danger-
ousness. For the purpose of capital sentencing, the issue
in most states is whether the defendants would be danger-
ous if released; since that would not happen until they
have served lengthy sentences, experts are being asked to
predict behavior years in the future. As pointed out in the
amicus briefs of the American Psychiatric Association,
both in Jurek v. Texas (1976), Estelle v. Smith (1981), and
Barefoot v. Estelle (1983), mental health professionals sim-
ply do not possess the expertise to make such long-term
protections; furthermore, because such testimony is pre-
sented by court-qualified experts, it would be accorded
greater weight than it deserves. Although the Supreme
Court found no problems with such predictions, they
raise ethical questions for psychiatrists and psychologists,
whose ethical codes prohibit going beyond their expertise
(American Psychiatric Association 1998; American Psy-
chological Association 1990).
27
Another issue raised in Estelle was that of the infor-
mation given to the person being evaluated. In that case,
Dr. Grigson had told Smith only that the judge had asked
him to perform a competency evaluation; Smith’s attor-
ney was not even aware of the evaluation. Grigson was not
called to testify at the trial, but did testify at the capital
sentencing hearing. On appeal of the death sentence, the
Supreme Court held that Grigson’s actions violated Smith’s
Fifth Amendment privilege against self-incrimination and
his Sixth Amendment right to counsel.
After Estelle, few defense attorneys in Texas would
permit their clients to be examined by Dr. Grigson; the
prosecution therefore adopted the tactic of presenting
him with hypotheticals based on the facts adduced dur-
ing the trial. Dr. Grigson continued to opine, with over-
whelming confidence, that defendants were sociopaths,
and would continue indefinitely to pose a danger to soci-
ety. These conclusions were challenged in Barefoot v.
Estelle (1983), and the American Psychiatric Association
again filed an amicus brief arguing against prediction of
long-term dangerousness, and arguing that testimony as
to diagnosis is not permissible if based on hypotheticals.
It also pointed out that Drs. Grigson and Holbrook not
only admitted lack of familiarity with the research litera-
ture on prediction of dangerousness but that Dr. Grigson
[who had testified that he did not accept the DSM-III
criteria (American Psychiatric Association 1980) for anti-
social personality] diagnosed Barefoot using idiosyncratic
criteria that the hypothetical information did not satisfy.
The Supreme Court rejected all these arguments and
affirmed Barefoot’s death sentence.
INEFFECTIVE ASSISTANCE OF COUNSEL
There are a number of cases in which defendants sen-
tenced to death have argued on appeal that their repre-
sentation by counsel was ineffective because evidence of
mental impairment was not raised at the sentencing phase
240 Forensic evaluation and treatment in the criminal justice system
of their trials. In order to establish ineffective assistance,
appellants must demonstrate that their lawyers’ practice
fell below a minimum standard, and that as a result their
cases were prejudiced. In the case of capital sentencing
hearings, the court must decide that it could not say
with confidence that the jury would still have found for
the death penalty had the attorney’s performance been
acceptable.
Appellate courts have overturned death sentences
because of ineffective assistance when the evidence shows
that the defendant had a significant history of childhood
abuse or deprivation and/or a history of psychiatric prob-
lems, and the attorney made little or no effort to inves-
tigate that history as a mitigating factor (Armstrong v.
Dugger 1987; Evans v. Lewis 1988; Middleton v. Dugger
1988; Deutscher v. Whitley 1989; Mathis v. Zant 1989).
When the attorney was aware of potential mental evidence
in mitigation but chose not to introduce it for tactical
reasons (Burger v. Kemp 1987), or a competent defendant
himself lucidly barred psychiatric evaluation or testimony
for the sentencing phase (Clanton v. Bair 1987; Bundy v.
Dugger 1988), courts have held that no ineffective assist-
ance occurred.
Courts have listed a number of ways in which emo-
tional distress might mitigate a death sentence. First, the
Supreme Court held that, ‘Evidence about a defendant’s
background and character is relevant because of the
belief, long held by this society, that defendants who
commit criminal acts that are attributable to a disadvan-
taged background, or to emotional and mental prob-
lems, may be less culpable than defendants who have no
such excuse’ (California v. Brown 1987).
Second, mental deficiency may mitigate against the
death penalty (Mathis v. Zant 1989). Mental illness may
also mitigate; the Eighth Circuit held that, ‘… this kind of
psychiatric evidence [childhood abuse, mental deficiency,
and mental illness], it has been held, has the potential to
totally change the evidentiary picture by altering the causal
relationship that can exist between mental illness and
homicidal behavior. Thus, psychiatric mitigating evidence
not only can act in mitigation, it also could significantly
weaken the aggravating factors’ (Middleton v. Dugger 1988,
at 495). The influence of drugs or alcohol has also been
found to be a mitigating factor (Roberts v. Louisiana 1977).
Evidence that a defendant would not pose a threat to
society may also mitigate against a death sentence. In
Skipper v. South Carolina (1986), the Supreme Court held
that, ‘Consideration of a defendant’s past conduct as
indicative of his probable future behavior is an inevitable
and not undesirable element of criminal sentencing … .
The Court has therefore held that evidence that a defend-
ant would, in the future pose a danger to the community
if he were not executed may be treated as establishing an
“aggravating factor” for purposes of capital sentencing.
Likewise, evidence that the defendant would not pose a
danger if spared (but incarcerated) must be considered
potentially mitigating.’
EVALUATION
Although the Supreme Court found no legal objection
to psychiatrists making diagnoses from hypotheticals
with inadequate information, rejecting research data and
the current diagnostic criteria, and predicting long-term
dangerousness with absolute certainty, such behavior
has resulted in sanctions from the American Psychiatric
Association and should be scrupulously avoided by eth-
ical forensic psychiatrists. It is incumbent upon forensic
professionals to be familiar not only with the relevant law
but also with the research data and ethical guidelines of
their professional organizations.
Under the Supreme Court’s decision in Ake v. Oklahoma
(1985), psychiatrists may be called on to serve as consult-
ants to defense attorneys as well as expert evaluators. Given
the case law on ineffective assistance of counsel, it would
behoove such consulting experts in capital cases to be alert
to the possible application of a defendant’s mental impair-
ment to a capital sentencing hearing.
Given the reluctance of many psychiatrists to become
involved in death penalty cases, particularly for the pros-
ecution, district attorneys in some states have had difficulty
finding experts to testify for them in capital sentencing
hearings. In Colorado, prosecutors were having such
difficulty in finding anyone to testify for them in capital
sentencing hearings that they had a law passed that
requires a mental health professional who performs any
pre-trial evaluation in a capital case must also perform an
evaluation for capital sentencing. [C.R.S. 16-8-106(6)(b)
(1995): ‘With respect to offenses committed on or after
July 1, 1995, the report of examination shall include, but
is not limited to, the items described in paragraphs (a) to
(c) of subsection (5) of this section [name of examiner,
content of examination, and diagnosis and prognosis
of defendant’s condition]; and (b) Separate opinions as
to whether the defendant was insane, is incompetent to
proceed, or is ineligible for release, as these terms are
defined in this article, and, in any class 1 felony case
[potentially carrying the death penalty], an opinion as to
how the mental disease or defect or the condition of
mind caused by mental disease or defect affects any mit-
igating factor’]. Preliminary data indicate that not only
has the new law not caused psychiatrists who were previ-
ously not willing to perform sentencing evaluations to be
willing to perform them; but a number who were previ-
ously willing to do pre-trial evaluations have stopped
doing them in objection to the requirement to do sen-
tencing evaluations (Miller 2001).
FORCED TESTIMONY BY EXPERT WITNESSES
IN CRIMINAL CASES
There has been a significant change in the law since the
Maine Supreme Court in 1876 characterized the testimony

of experts as ‘the vain babblings and oppositions of sci-
ence falsely so called’ (State v. Watson 1876). Although
courts are still not entirely comfortable with experts, they
have come to recognize their necessity in many cases
involving complex issues: ‘One of those realities [of liti-
gation] is that attorneys must often rely on the assistance
of [expert consultation] in preparation for trial’ (United
States v. Nobles 1975).
As a result of the law’s increasing reliance on experts
(many legal cases cannot be resolved without expert
participation), courts and commentators have looked at
the question of whether experts may be compelled to
give testimony, just as lay witnesses are. Shuman (1983)
examines the general authority of courts to subpoena
physicians who have not been retained by attorneys in a
particular case; he recognizes that requiring them to
spend time in court takes them away from their primary
function of healing the sick, but notes that courts need to
have access to knowledge that is sometimes possessed
by only a few experts in a field, either because of their
special expertise or because of their knowledge of a par-
ticular case.
Arguments against compelling experts to testify include
the Fifth Amendment prohibition against the taking of
property, but Shuman concludes that it does not prevent
compelled testimony, because the property (i.e., the expert’s
knowledge) and experience are not diminished by the tak-
ing, and because the government is not prohibited from
taking property by the Fifth Amendment, so long as it
properly compensates the owner. He concludes that phys-
icians’ real resistance in many cases is the fact that the gov-
ernment is unwilling or unable to compensate them at
their preferred rates.
Courts have divided on whether such experts may be
compelled to testify. State courts in Indiana (Buchman v.
State 1877), Pennsylvania (Pennsylvania Co. v. Philadelphia
1918), and New Jersey (Staunton v. Rushmore 1934) have
held that the state cannot compel experts to testify. A New
York court (People ex rel. Kraushaar Bros. & Co. v. Thorpe
1947) held that experts may be compelled to testify to
facts, as would a lay witness, but not to provide opinions.
Others have permitted courts to compel experts to testify
to opinions already formed, but not to conduct new inves-
tigations or analyses (Carter-Wallace, Inc. v. Otte 1972).
One appellate court not only required an expert to testify
but also specified that the court was obligated to compen-
sate him at the same rate as for lay witnesses (Dixon v.
People 1897).
More directly relevant to forensic psychiatrists is the
question of whether an expert who has been retained by
the defense attorney in a criminal case, but who is not
called to testify by the defense, may be compelled to testify
for the prosecution. With the increase in discovery by the
defense in criminal cases, prosecutors have called for equal
access to defense information (Beckler, Robinson, and
Morphew 1990). The Federal Rule of Criminal Procedure
(undated) already provide for more extensive discovery
Post-conviction dispositional evaluations 241
than is provided in many state courts, but they do not
explicitly require discovery of non-testifying witnesses.
Imwinkelreid (1990) discusses attorney–client priv-
ilege and the work-product rule as possible sources for
barring prosecution discovery of defense witnesses. He
argues that attorney–client privilege attaches only within
certain relationships, and only to communications within
those relationships. Privilege extends to communications
between an attorney and his or her agent or representa-
tive. Secretaries and interpreters are clearly such agents;
and Imwinkelreid argues that expert consultants should
be included as well, and direct communications between
client and expert should be privileged.
Imwinkelreid acknowledges that the expert’s ultimate
opinion may be based in part on communications from
the client, and thus by itself may be privileged, but he
argues that other sources of data should not be privileged.
Unlike an interpreter, an expert creates new knowledge,
which should not be entirely privileged. In addition, the
courts should not permit the defense to ‘quarantine’
experts merely by consulting them first.
Imwinkelreid then goes on to suggest that protection
of non-testifying experts’ opinions under the work-product
rule might be more appropriate than under attorney–
client privilege. The rule was designed to stimulate the
acquisition of information for preparation of a case, by
granting a qualified privilege for such information. The
prosecution might still be able, however, to obtain access
to expert opinions and data through arguing a special
need exception to the work-product rule. Under the work-
product rule, Imwinkelreid argues that prosecutors could
obtain all third-party information used by the psych-
iatrist, as well as diagnostic conclusions. There are several
arguments against prosecution access under the work-
product rule:
1 The difficulty of separating knowledge based on client
communication from other sources.
2 The fact that pre-trial discovery may provide the pros-
ecution with leads to develop their own evidence.
3 Compelled testimony from a defense witness would
be prejudicial, because a jury might accord it too much
weight.
Imwinkelreid counters these objections by arguing that
one should be able to separate the client communication
parts of a report or opinion from the other sources of
information; in cases in which the separation cannot be
accomplished, the expert could provide a summary that
eliminates all client communications. He concedes that
discovery may provide leads to the prosecution, but sees
no problem with that. The problem of prejudice could be
resolved by barring references to the fact that the expert
was first consulted by the defense.
Friedenthal (1962) also argues in favor of discovery
and is cited by Imwinkelreid, but his article is chiefly con-
cerned with civil cases involving corporate clients and
does not deal with the issues raised by non-testifying
242 Forensic evaluation and treatment in the criminal justice system
defense witnesses in criminal trials, where the law has
traditionally provided more protection for defendants
than for the prosecution.
In an amicus brief before the Supreme Court, the
American Psychiatric Association (APA) and the American
Academy of Psychiatry and the Law (AAPL) argued force-
fully against discovery (APA and AAPL 1985), pointing out
that if the consultative function of psychiatric experts
established in Ake v. Oklahoma (1985) is to have any mean-
ing, the results of those evaluations must be privileged;
the defense attorney must be able to research his or her
case with confidentiality. They further argued that the
testimony should have been barred under both the Due
Process Clause and Fifth Amendment to the Constitution.
Although the issue did not arise in the case, they also con-
tended that a non-testifying expert’s opinions should not
be discoverable, even if the defendant does assert a mental
defense. Under Ake v. Oklahoma, the consultative psych-
iatrist’s role goes beyond evaluation to advising the defense
on trial strategy and tactics, which clearly should not be
discoverable by the prosecution even if the expert testifies.
They also argued that if the due process argument
were not accepted by the Court, then under Estelle v.
Smith (1981), the coerced testimony should not have
been allowed because the psychiatrist did not warn the
defendant of the non-confidential nature of the exam-
ination. They pointed out that when the defense does
assert a psychiatric defense, the state has ample opport-
unity to secure its own evaluations, to penalize defendants
who refuse to cooperate with prosecution experts, and to
cross-examine experts.
The amicus brief addressed arguments in favor of dis-
coverability, which include:
1 By the time the state is aware that a psychiatric defense
is to be entered, it will be too far away from the crime
for an adequate evaluation.
2 Previous examinations by defense psychiatrists will
impair the validity of subsequent state examinations.
3 Since the state is empowered to have its own expert
examine the defendant once a psychiatric defense is
entered, there is no point in barring testimony from
defense psychiatrists.
APA and AAPL responded to these objections by point-
ing out that the time and rehearsal factors could be dealt
with by requiring defense disclosure of its intent to seek
psychiatric examination. Given the dual role of the psych-
iatrist under Ake, prudent defense counsel may well want
to retain two psychiatrists, one to testify and one to consult;
the latter may well be someone who can disagree with the
defense contention and point out weaknesses. If discovery
is permitted, it will force attorneys to seek out only experts
likely to agree with the defense position. The American Bar
Association (ABA) has also arrived at the same position
(ABA 1986).
Courts have divided over this issue, although the major-
ity have held against discovery, including state courts in
Maine (State v. Watson 1876), the District of Columbia
(Taylor v. United States 1955), New Jersey (State v. Kociolek
1957; State v. Melvins 1978), Michigan (People v. Hilliker
1971), California (People v. Lines 1975), Connecticut
(Connecticut v. Toste 1979), Maryland (State v. Pratt 1979),
Alaska (Houston v. State 1979), Texas (Burney v. State
1982), and Colorado (Miller v. District Court 1987). In
the last case, the Colorado Supreme Court held that,
‘A psychiatrist retained by defense counsel to assist in the
preparation of the defense is an agent of defense counsel
for purposes of the attorney-client privilege.’ The court
also held that the defendant did not waive the privilege by
pleading insanity. The federal appeals court for the Third
Circuit reached a similar conclusion (United States v.
Alvarez 1975). The Washington Supreme Court ruled that
a non-testifying expert cannot be called by the prosecu-
tion unless the defense raises an insanity defense (State
v. Bonds 1982). A state appeals court in Florida also held
against discovery, but based its decision on the work-
product rule rather than attorney–client privilege (Pouncy
v. State 1977).
Several courts have come to the opposite conclusion.
State courts in Virginia (Gibson v. Commonwealth 1976)
and Missouri (State v. Carter 1982) and Federal Appeals
Courts for the Sixth Circuit (Noggle v. Marshall 1983)
and Ninth Circuit (United States v. Talley 1986) have per-
mitted discovery. A state court in New York permitted
discovery; the court held that: ‘A defendant who seeks to
introduce psychiatric testimony in support of his insan-
ity plea may be required to disclose prior to trial the
underlying basis of his alleged affliction to a prosecution
psychiatrist. Hence, where, as here, a defendant reveals to
the prosecution the very facts which would be secreted by
the exercise of the privilege, reason does not compel the
exclusion of expert testimony based on such facts … . It
follows that no harm accrues to the defense from seeking
pre-trial psychiatric advice where an insanity plea is
actually entered, for in such circumstances, the underly-
ing factual basis will be revealed to the prosecution psych-
iatrist.’ (People v. Edney 1976).
Petition for appeal to the federal courts was dismissed
(United States ex rel. Edney v. Smith 1976); the court held
that by pleading insanity, Edney had waived any privil-
ege. The Minnesota Supreme Court initially barred dis-
covery (State v. Dodis 1982), but reversed itself five years
later (State v. Schneider 1987).
The Supreme Court has had several opportunities to
address the issue, but has chosen not to do so. It has let
stand decisions that bar discovery (United States ex rel.
Edney v. Smith 1976) and those that permit it (Gibson v.
Commonwealth 1975; State v. Carter 1983; Noggle v.
Marshall 1983; United States v. Talley 1986) by denying
certiorari. In one case (Smith v. Murray 1986) that it did
accept, the majority avoided ruling on the substantive
issue by holding that the defendant’s procedural default
prevented the court from reviewing the case, even though
it conceded that the issue itself had merit. And in the most

recent case (Smith v. Sielaff 1986), it remanded without a
decision.
Because of the current uncertainty of the discover-
ability of expert opinions and data, evaluators retained
by the defense should make sure to inform themselves of
the governing laws and court decisions in their jurisdic-
tions before evaluating defendants, so that they may pro-
vide accurate information about the possible consequences
of cooperating with the evaluation.
FORENSIC RELEASE DECISIONS
Decisions concerning the release of forensic patients
generally center around the prediction and treatment of
dangerousness. The treatment of criminally committed
patients differs significantly from that of civilly committed
patients, whom treating clinicians generally have the
authority (and sometimes the obligation) to release when
they no longer satisfy the jurisdiction’s commitment
criteria. In most states, criminal courts retain jurisdiction
over criminally committed patients and make all the release
decisions, thus apparently absolving clinicians of that
authority (and the attendant responsibility and liability).
There is an increasing number of exceptions to this
principle, however (Miller et al. 1988). As the social cli-
mate has changed from the emphasis on individual civil
rights of the 1960s and early 1970s to the prevention of
harm and the protection of victims in the 1980s, expecta-
tions that clinicians should be able to control their patients
have risen significantly. The only way the law has to com-
pensate victims (and thereby to encourage practitioners to
conform to evolving social norms) is to provide money
damages. The battles are therefore increasingly fought in
the civil courts under tort law (Lieberman 1981).
The most obvious expression of this trend is the obli-
gation of outpatient therapists to prevent their patients
from harming third parties, which was first articulated by
the California Supreme Court in Tarasoff v. Regents of the
University of California (1976) and its progeny (Felthous
1989). Although this obligation may apply to forensic
patients in the community (Cain v. Rijken 1986), it is
more likely to apply to those committed to forensic inpa-
tient facilities, where the degree of control is far greater.
Although courts or other governmental bodies make
most of the release decision for such patients, they must
rely on clinicians to provide them with the necessary
information to do so reliably. And since judges possess
immunity for their decisions, compensation for victims
must come from other sources, including treating clin-
icians and even parole boards (Grimm v. Arizona Board of
Pardons and Paroles 1977). While the recent case law on
the liability for release decisions of clinicians treating
forensic patients is sparse, it can be expected to grow in
the future. Clinicians have been held liable for a murder
committed by an escaped sex offender (Maroon v. Indiana
Post-conviction dispositional evaluations 243
1980), and even for failing to go beyond the court’s own
request for evaluation of competency to stand trial to pre-
dict behavior if released (Hicks v. United States 1975).
There have been other changes in policies that have
insulated forensic clinicians from liability for release deci-
sions. Virtually all long-term criminal commitments are
to state forensic facilities, where – until recently – clin-
icians had been protected by governmental immunity.
Although some courts have held that state employees are
still protected by either governmental (Canon v. Thumudo
1988) or judicial (Seible v. Kemble 1981) immunity, most
states have removed those protections where they had
applied to release decisions (Felthous 1987). Even in states
such as Wisconsin, which provides for release evaluations
by clinicians independent of the patient’s treatment team
(Miller 1987), treating clinicians may be held to have an
obligation to provide releasing authorities with informa-
tion relevant to release decisions (Miller et al. 1988).
Although the Supreme Court had appeared in 1966
to require that criminal commitments meet the same
requirements as civil commitment (Baxstrom v. Herold
1966), it held in 1983 that persons who have committed
crimes are distinguishable from civilly committed persons,
may therefore be committed based solely on an insanity
finding, and may have their commitments extended
beyond the potential criminal sentences for the crimes
charged without satisfying the stricter civil commitment
criteria (Jones v. United States 1983).
As a result of the national trend toward longer incar-
cerations, for forensic patients as well as for criminals,
even some of those jurisdictions that previously provided
for a civil commitment process for defendants found not
guilty by reason of insanity under the influence of the
civil rights movement in the 1970s have reconsidered,
and have made it more difficult for forensic patients to be
released, by broadening the criteria for release and by
restoring criminal court jurisdiction over release deci-
sions (Halpern, Rachlin, and Portnow 1981; Miller,
Ionescu-Pioggia, and Fiddleman 1983). In addition, the
burden of proof has been effectively shifted for forensic
patients; although many statutes require the state to
prove continuing dangerousness to extend commitment,
judges in practice require patients to prove that they are
not dangerous in order to be released.
In addition to predictions of dangerousness, clin-
icians may well be expected to provide effective treatment
before forensic patients are released. In a Colorado case
(Perreira v. State 1986), a treating psychiatrist was found
liable for releasing a patient who subsequently injured
a third person; in upholding the judgment, the state
Supreme Court noted that the psychiatrist had not peti-
tioned the court for an order authorizing the involuntary
administration of psychotropic medication, and released
the patient without a treatment that was considered
medically indicated by the treating psychiatrist. Because
of the development of specialized treatments for aggres-
sive patients (Silver and Yudofsky 1987), the provision of
244 Forensic evaluation and treatment in the criminal justice system
such treatment may in the future become expected of
psychiatrists working with forensic patients. Some states
(Wisconsin Statutes 1989) also place the responsibility
for conducting formal release hearings for forensic
patients on clinicians, which places further responsibility
(and potential liability) on them (Miller 1988).
Clinicians called on to make release decisions should be
familiar with the criteria for release in their jurisdictions.
Because liability is more likely to accrue in the release of
forensic than of civil patients (Miller et al. 1988), evalu-
ations should rely on as much corroborating information
as possible, in addition to direct observations and evalu-
ations of the patient in question. Documentation of the
reasons for the release, and alternatives considered, should
be thorough. Clinicians should also stay abreast of the
research literature on the prediction of future dangerous-
ness (Monahan 1981). In addition, forensic clinicians
should be familiar with the development of specialized
techniques for the treatment of aggressive patients, and
should make sure to document consideration of such
treatment alternatives if they are not employed.
REFERENCES
Ake v. Oklahoma, 105 S. Ct. 1087 (1985).
American Bar Association. 1986: Criminal Justice Mental
Health Standards, Sec. 7-3.3(b)(A) & (B).
American Psychiatric Association. 1980: Diagnostic and
Statistical Manual of Mental Disorders, 3rd edition.
Washington, DC: American Psychiatric Press.
American Psychiatric Association. 1998: Principles of
Medical Ethics with Annotations Especially Applicable to
Psychiatry. Washington, DC: American Psychiatric Press.
American Psychiatric Association and American Academy
of Psychiatry and the Law. 1985. Amicus curiae brief to
Smith v. Sielaff, No. 85-5487 (S. Ct).
American Psychological Association. 1990. Ethical principles
of psychologists. American Psychologist 45, 390–5.
Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987).
Barefoot v. Estelle, 463 U.S. 878 (1983).
Baxstrom v. Herold, 383 U.S. 107 (1966).
Beckler, R.W., Robinson, F., Morphew, W.S. 1990. Protecting
defense evidence from prosecutorial discovery.
Washington University Law Quarterly 68, 71–86.
Buchman v. State, 59 Ind. 1 (1877).
Bundy v. Dugger, 850 F.2d 1402 (11th Cir. 1988).
Burger v. Kemp, 483 U.S. 776 (11th Cir. 1987).
Burney v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982).
Cain v. Rijken, 717 P.2d 173 (Or. 1986).
California v. Brown, 479 U.S. 538,545 (1987).
Canon v. Thumudo, 422 N.W.2d 688 (Mich. 1988).
Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir.
1972); cert. denied, 412 U.S. 929 (1973).
Clanton v. Bair, 826 F.2d 1354 (4th Cir. 1987).
Connecticut v. Toste, 424 A.2d 421 (1979).
Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989).
Dixon v. People, 48 N.E. 108 (Ill. 1897).
Estelle v. Smith, 451 U.S. 454 (1981).
Evans v. Lewis, 855 F.2d 631 (9th Cir. 1988).
Federal Rule Criminal Procedure 16(c).
Felthous, A.R. 1987. Liability of treaters for injuries to
others: erosion of three immunities. Bulletin of the
American Academy of Psychiatry and the Law 15,
115–25.
Felthous, A.R. 1989: The Psychotherapist’s Duty to Warn or
Protect. Springfield, IL: Charles C. Thomas.
Friedenthal, J.H. 1962. Discovery and use of an adverse
party’s expert information. Stanford Law Review 14,
455–88.
Furman v. Georgia, 408 U.S. 715 (1972).
Gibson v. Commonwealth, 219 S.E.2d 845 (1975); cert.
denied, 425 U.S. 994 (1976).
Gregg v. Georgia, 428 U.S. 153 (1976).
Grimm v. Arizona Board of Pardons and Paroles, 564 P.2d
1227 (Ariz. 1977).
Halpern, A.L., Rachlin, S., Portnow, S.L. 1981. New York’s
Insanity Defense Reform Act of 1980: a forensic
psychiatric perspective. Albany Law Review 45, 661–77.
Hicks v. United States, 5 11 F.2d 407 (D.D.C. 1975).
Houston v. State, 602 P.2d 784 (Alaska, 1979).
Imwinkelreid, E.J. 1990. The applicability of the attorney-
client privilege to non-testifying experts: reestablishing
the boundaries between the attorney-client privilege
and the work product protection. Washington University
Law Quarterly 68, 19–50.
Jones v. United States, 103 S. Ct. 3043 (1983).
Jurek v. Texas, 428 U.S. 262 (1976).
Lieberman, J.K. 1981: The Litigious Society. New York:
Basic Books.
Maroon v. Indiana, 411 N.E.2d 404 (Ind. App. 1980).
Mathis v. Zant, 704 F. Supp. 1062 (N.D. Ga. 1989).
Middleton v. Dugger, 849 F.2d 491 (8th Cir. 1988).
Miller, R.D. 1987. The treating psychiatrist as forensic
evaluator II. release decisions. Journal of Forensic
Sciences 32, 481–8.
Miller, R.D. 1988. The Terry hearings to determine the
release of offenders committed under Wisconsin’s Sex
Crimes Law. Wisconsin Bar Bulletin 61, 17–19, 70–1.
Miller, R.D. 2001. The D.A. made me do it – compulsory
capital sentencing evaluations. Journal of Psychiatry
and Law 29, 409–31.
Miller, R.D., Ionescu-Pioggia, R.M., Fiddleman, P.B. 1983.
Judicial oversight of release of patients committed
after being found not competent to stand trial or not
guilty by reason of insanity in violent crimes. Journal of
Forensic Sciences 18, 39–45.
Miller, R.D., Doren, D.N., Van Rybroek, G.J., et al. 1988.
Emerging problems for staff associated with the release
of potentially dangerous forensic patients. Bulletin of
the American Academy of Psychiatry and the Law 16,
309–20.
Miller v. District Court, 737 P.2d 834 (Colo. 1987).

Monahan, J. 1981: The Clinical Prediction of Violent
Behavior. Rockville, MD: Department of Health and
Human Services, # ADM-81-921.
Noggle v. Marshall, 706 F.2d 1408 (6th Cir. 1983), cert.
denied, 465 U.S. 1010 (1983).
Pennsylvania Co. v. Philadelphia, 105 A. 630 (Pa. 1918).
People ex rel. Kraushaar Bros. & Co. v. Thorpe, 72 N.E.2d
165 (N.Y.1947).
People v. Edney, 350 N.E.2d 400, 403 (N.Y. 1976).
People v. Hilliker, 185 N.W.2d 831, 833 (Mich. App. 1971).
People v. Lines, 531 P.2d 793, 802-803 (Cal. 1975).
Perreira v. State, 738 P.2d 4 (Colo. App. 1986).
Pouncy v. State, 353 So. 2d 640 (Fla. Dist. Ct. App. 1977).
Profitt v. Florida, 428 U.S. 242 (1976).
Roberts v. Louisiana, 431 U.S. 633, 637 (1977).
Seible v. Kemble, 631 P.2d 173 (1981).
Shuman, D.W. 1983. Testimonial compulsion: the
involuntary medical expert witness. Journal of Legal
Medicine 4, 419–46.
Silver, J.M., Yudofsky, S.C. (eds). 1987: Treatment of
aggressive disorders. Psychiatric Annals, Volume 17(6).
Skipper v. South Carolina, 476 U.S. 1, 5 (1986).
Smith v. Murray, 477 U.S. 527 (1986).
Smith v. Sielaff, No. 85-5487 (S. Ct. 1986).
Post-conviction dispositional evaluations 245
State v. Bonds, 653 P.2d 1024 (Wash. 1982).
State v. Carter, 641 S.W.2d 54 (Mo. 1982), cert. denied, 461
U.S. 932 (1983).
State v. Dodis, 314 N.W.2d 233 (Minn. 1982).
State v. Kociolek, 129 A.2d 417 (N.J. 1957).
State v. Melvins, 382 A.2d 925 (N.J. 1978).
State v. Pratt, 399 A.2d 421 (Md. App. 1979).
State v. Schneider, 402 N.W.2d 779 (Minn. 1987).
State v. Watson, 65 Me. 74, 76 (1876).
Staunton v. Rushmore, 169 A. 721 (N.J. 1934).
Stone, A.A. 1984: Law, Psychiatry and Morality: Essays and
Analysis. Washington, DC: American Psychiatric Press.
Tarasoff v. Regents of the University of California, 551 P.2d
334 (Cal. 1976).
Taylor v. United States, 222 F.2d 398 (D.C. App. 1955).
United States ex rel. Edney v. Smith, 425 F. Supp. 1038
(E.D.N.Y. 1976); aff’d, 556 F.2d 556 (2d Cir); cert. denied,
431 U.S. 958 (1977).
United States v. Alvarez, 519 F.2d 1036, 1045-47 (3rd Cir.
1975).
United States v. Nobles, 422 U.S. 225, 238 (1975).
United States v. Talley, 790 F.2d 1468 (9th Cir.), cert.
denied, 479 U.S. 866 (1986).
Wisconsin Statutes Sec. 975.09 (1989).
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 4
PART

Civil law

28 Specific issues in psychiatric malpractice 249

Robert M. Wettstein
29 Psychiatric disability determinations and personal injury litigation 260
Jeffrey L. Metzner and James B. Buck
30 Americans with Disabilities Act evaluations 273
A. Jocelyn Ritchie and Howard V. Zonana
31 Sexual harassment 282
Liza H. Gold
32 Trauma-induced psychiatric disorders and civil law 290
Stuart B. Kleinman and Susan B. Egan
33 Neuropsychiatric assessments in toxic exposure litigation 301
Daniel A. Martell
34 Civil competencies 308
J. Richard Ciccone
35 Death, dying, and the law 316
Norman L. Cantor
This page intentionally left blank

Specific issues in psychiatric malpractice
ROBERT M. WETTSTEIN
In this chapter, several of the specific liability issues
that concern mental health professionals – especially
psychiatrists – will be discussed and reviewed. As space
does not permit all of the possible areas of psychiatric neg-
ligence that are not covered elsewhere in this volume to be
covered, the present review is highly selective. The chapter
will focus on negligence liability rather than liability for
breach of contract, civil rights, intentional torts, or fraud
which can also be brought against the psychiatrist, whether
based upon the same conduct or otherwise. The present
topics include the law of negligence, psychopharmacology,
seclusion and restraints, suicide and attempted suicide,
supervision of other healthcare professionals, and disclos-
ure of medical error. The chapter begins with an overview
of error in medicine.
ERROR IN MEDICINE
Error in medicine has attracted increasing attention from
a variety of parties. Physicians and their professional
organizations, injured patients, plaintiff and defense attor-
neys, liability insurance companies, government agen-
cies, researchers, public policy experts, and public health
experts each provide an important contribution to this
increasingly complex area of public life. Terminology in
this field is complex and controversial, with the use of
different definitions of error in medicine. Terms such
as error, accident, inadvertent injury, complication, med-
ical injury, therapeutic misadventure, iatrogenic injury,
adverse drug event, negligent adverse event are used in
different accounts or studies of this issue. Errors in medi-
cine are not necessarily equivalent to negligence, and
may or may not be necessarily preventable, or harmful to
the patient.
The epidemiology of medical error is a growing area
of interest. No one knows the true incidence of medical
errors in general medical populations, because studies
have been conducted in a few selected patient groups
28
such as surgical or intensive care hospitalized patients.
Research methods in this area include retrospective
record review (Thomas et al. 2000; Hayward and Hofer
2001), computerized detection, physician self-reporting
of incidents (O’Neil et al. 1993), or prospective observa-
tional studies (Andrews et al. 1997). Available empirical
research indicates that medical negligence is not rare,
occurring in as many as 4 per cent of hospital admis-
sions, resulting in 44 000 to 98 000 deaths every year in
American hospitals (Kohn et al. 2000), in addition to
costly necessary additional medical care (Andrews et al.
1997). Operative complications and adverse drug effects
are among the most common types of adverse events
(Thomas et al. 2000). Despite the considerable incidence
of medical error, however, few injured patients actually
file a legal complaint (Localio et al. 1991). Fewer than
half of patient-plaintiffs receive any payment, and only
about 10 per cent of medical malpractice cases proceed
to trial (Taragin, Willett, and Wilczek 1992). At trial,
about one-fourth of medical malpractice plaintiffs pre-
vail, compared with one-half of plaintiffs in other tort
cases, nationwide (Litras et al. 2000). Thus, while many
malpractice cases are brought by patients who have not
been treated negligently, medical malpractice litigation
infrequently compensates patients who have been injured
by medical negligence (Localio et al. 1991). In psychiatry,
the incidence of malpractice litigation against psychiatrists
has ranged from 4 to 8 per cent annually, in the 1980s
and 1990s.
A public health approach to medical error has been
recommended, given contemporary advances in know-
ledge of human factors and injury prevention (Leape
1994; Kohn et al. 2000). This approach includes such pro-
visions as mandatory reporting of serious patient injuries
or deaths due to medical error which is not presently
required in the United States. Effort is focused on the sys-
tematic identification and prevention of error through
the proper design of the medical workplace, recognizing
that injuries are often a result of the failure of a complex,
interdependent system rather than an individual.
250 Civil law
LAW OF NEGLIGENCE
Medical malpractice litigation has been an important
legal and medical issue in the United States only in the
last 150 years (Mohr 2000). Malpractice litigation has
been driven by medical factors such as the promulga-
tion of uniform accepted clinical standards of care, in a
social climate of professionalism. Legal factors such as the
availability of professional liability insurance, presence
of contingent plaintiff attorney fees, use of citizen juries,
and pleading of malpractice as a tort rather than a con-
tract also contributed to sustaining malpractice litigation
(Mohr 2000).
Torts, the law of civil injuries, is defined by state or
federal statute, and often case law. By law, a physician has
a duty to the patient to use that degree of skill and care
which is expected of a reasonably competent physician in
the same class to which he or she belongs, acting in the
same or similar circumstances as the patient. A patient-
plaintiff bringing a civil action in tort against the phys-
ician has the burden to prove that the physician has a duty
to provide appropriate evaluation and treatment for the
patient, and that the physician failed to do so. Medical
malpractice litigation is therefore fault-based, and devi-
ations in the standard of appropriate care occur by errors
of omission or commission. The plaintiff must further
prove that the defendant physician’s failure to provide
appropriate care and treatment to the patient was the
proximate cause of the physical or emotional harm to the
patient. Harm to the patient which occurs through causes
other than the defendant’s negligence (e.g., the natural
course of the underlying disease) is not the responsibility
of the defendant. Similarly, liability can be avoided if the
defendant made an error in judgment in the assessment
and care of the patient-plaintiff, despite the adverse out-
come of the case.
Standards of medical care are predominantly national
in origin, but some jurisdictions apply a local or regional
standard of care. The standard of care is not that of the
most highly skilled or even the average physician. In the
litigation, the plaintiff and defendant attempt to estab-
lish the standard of care, and its breach, through the use
of authoritative professional literature, practice param-
eters and guidelines, applicable government regulation,
hospital and clinic policy, accreditation standards, and
expert witness testimony (Ayers 1994; Hyams et al. 1995;
Shuman 1997). However, even practice parameters or
guidelines can widely differ in a particular medical spe-
cialty area, leading to uncertainty regarding the standard
of care (Morreim 1997). Evidence-based medicine has
been introduced as a principle to apply empirical know-
ledge to the practice of medicine and help identify what is
appropriate care (Guyatt et al. 2000). Alternate schools of
thought, through a reputable minority of practitioners,
can also set the applicable standard of care in a given situ-
ation. Relevant evidence must pertain to the standard of
care at the time of the alleged negligence, and not at a sub-
sequent time when medical advances may have occurred.
Breach of the standard of care is determined by the finder
of fact, on a case-by-case basis.
PSYCHOPHARMACOLOGY
Prescription of medication constitutes a large propor-
tion of medical error and iatrogenic patient injuries in
the United States (Bates et al. 1995; Classen et al. 1997).
In non-psychiatric hospitals, errors in medication pre-
scribing, and adverse medication events, are relatively
common and often preventable (Leape et al. 1995; Lesar,
Briceland, and Stein 1997). Such errors by prescribing
physicians, nurses, and pharmacists occur due to inad-
equate information about the patient, lack of knowledge
of the medication, inadequate monitoring, name confu-
sion, faulty interaction with other medical services, incor-
rect dosage calculation, and packaging mix-ups, among
others. Attempts to improve the systems by which medica-
tions are ordered, dispensed, and administered have been
recommended to reduce adverse drug events (Bates et al.
1999). Computerized prescribing of medication, based
upon databases including the patient’s drug and illness
history, formulary guideline reference, and scientific drug
information enhances prescription efficiency and accu-
racy (Schiff and Rucker 1998).
In particular, prescribing psychotropic medication
increases the psychiatrist’s exposure to professional liabil-
ity claims (Brackins 1985; Wettstein 1985; Dukes and
Swartz 1988; Slovenko 2000). It accounts for some of the
excess of professional liability claims that psychiatrists
face relative to other mental health professionals. For
psychiatrists insured with the American Psychiatric
Association’s (APA) professional liability insurance pro-
gram, improper medication was the most common alle-
gation from 1973 to 1984 (Slawson 1989). In addition to
risking professional liability civil suits, psychiatrists – like
all physicians – may be sanctioned by state and federal
prosecutors in criminal actions, or state and federal
licensing agencies (e.g., state medical board, U.S. Drug
Enforcement Agency). With regard to medications, these
actions usually pertain to the physician who inappropri-
ately administers, prescribes, dispenses, or fails to keep
proper records for controlled medications such as opi-
oids, benzodiazepines, or amphetamines. Information
obtained from one state’s medical board, for example,
revealed that inappropriate prescribing, primarily ben-
zodiazepines and opiates, constituted the majority of
physician investigations there (Kofoed et al. 1990). Such
overprescriptions were motivated by physician benefi-
cence rather than malevolence.
It is also important to note that pharmaceutical manu-
facturers are often sued because of the manufacture, dis-
tribution, and marketing of psychotropic medications.

In general, the law of products liability requires that a
manufacturer directly warn the ultimate consumers of the
known risks of the use of the product. For most classes
of prescription medication, however, the pharmaceutical
manufacturers are governed by the ‘learned intermediary
rule’ which states that the manufacturer has a duty to
inform the prescribing physician, but not the patient, of
important information (e.g., indications, contraindica-
tions, dosage, administration, warnings, precautions)
about the medication (Brackins 1985). In other words, the
learned intermediary doctrine relieves manufacturers of
tort liability when adequate warning has been provided to
the prescribing physician. In addition, while professional
(negligence) liability principles apply to prescribing phys-
icians, there is some uncertainty whether negligence or
strict liability principles apply to pharmaceutical manu-
facturers (Brackins 1985; Ausness 1989–90). Nevertheless,
plaintiffs, searching for the ‘deep pocket’ of liability, often
sue the manufacturer as well as the prescribing physician,
healthcare facility, and pharmacist.
Psychiatrists risk negligence liability in several general
areas when they prescribe psychotropic medication
(Wettstein 1983; Wettstein 1988). These include:
1 Failure to take an adequate history prior to
prescription.
2 Failure to obtain an adequate physical examination.
3 Failure to obtain an adequate laboratory examination.
4 Lack of indication for a prescription, and off-label use.
5 Contraindication for a prescription.
6 Prescription of an improper dosage.
7 Prescription for an improper duration.
8 Failure to recognize, monitor, and treat side effects.
9 Failure to abate drug–drug or food–drug reactions
and interactions.
10 Failure to consult with other physicians.
11 Failure to properly diagnose and treat the patient’s
disorder.
12 Failure to obtain informed consent to treatment.
13 Improper record-keeping.
The following discussion will present case examples in
some of these topic areas. Typically, the plaintiff will allege
several areas of negligence in the litigation against each
defendant rather than a single cause of action. Litigation
has been brought against physicians for prescribing all
classes of psychotropic medications, so the following is a
selective sample.
Failure to take an adequate history
In Leal v. Simon (1989), an institutionalized mentally
retarded man had been stabilized on haloperidol (4 mg)
for self-abusive behavior. He was transferred to a com-
munity facility and began treatment with the defendant
psychiatrist. The patient was stable for over a year, and
the psychiatrist changed his medication to 2 mg only as
Specific issues in psychiatric malpractice 251
needed. The psychiatrist indicated that the medication
withdrawal was necessitated by a state audit regarding
medication use in the mentally retarded, as well as the
risk of tardive dyskinesia (TD) which was not present.
Within a month of the medication discontinuation, the
patient deteriorated, requiring hospitalization and larger
doses of haloperidol. He was returned to the state devel-
opmental center, developed contractures of his extrem-
ities, and became wheelchair-confined. The jury found
that the psychiatrist was negligent in failing to review the
patient’s history, failing to obtain the patient’s complete
medical records from the transferring agency, and in
reducing the medication so abruptly.
Empirical data have been accumulating on the associ-
ation between the use of psychotropic medication, particu-
larly benzodiazepines, and automobile or other accidents
(Barnas et al. 1992; Barbone et al. 1998; Thapa et al. 1998).
Though such medication use may only be one of many
risk factors for vehicular injuries, these cases have been
litigated. In Watkins v. United States (1979), the prescribing
physician was found negligent for prescribing a 50-day
supply of Valium (diazepam) to a patient without taking
an adequate psychiatric history or reviewing the patient’s
psychiatric records, which led to a motor vehicle accident.
Lack of indication for a prescription
A psychiatrist prescribed fifty 10 mg diazepam tablets for
a man who, while driving his car the next day, collided
head-on with a motorcycle. It was alleged that the patient
was under the influence of beer and diazepam, which he
had obtained for non-medical purposes, at the time of the
accident. The plaintiff, who sustained serious injuries,
also alleged that it was negligent to prescribe diazepam to
a person who was likely to abuse drugs. A $410 000 out-
of-court settlement was reached with the psychiatrist and
other parties (Munsell v. Lynk 1983).
Contraindication for a prescription
Upon admission to a hospital, a male patient informed the
staff that he was allergic to antihistamines because they
caused urinary retention. He was nevertheless provided at
discharge with hydroxyzine (100 mg, q.i.d.) and trifluoper-
azine. When urinary retention developed, the hydroxyzine
was reduced and later discontinued, but complications
developed including a prostatic infection, Foley catheter for
four years, and eventual prostatic resection. Expert testi-
mony indicated that the hydroxyzine prescription was neg-
ligent given the patient’s history, and that the hydroxyzine
caused the bladder damage. A judgment for the plaintiff of
$20 000 was awarded (Miller v. U.S. 1976).
In Ferrara v. Berlex Laboratories, Inc. (1990), a psych-
iatrist treated a depressed patient with phenelzine
[monoamine oxidase (MAO) inhibitor]. Another physician
252 Civil law
subsequently diagnosed chronic sinusitis and prescribed a
decongestant with pseudoephedrine. The patient suffered a
hypertensive crisis and a stroke, and was awarded a judg-
ment against the second physician for his negligence.
More generally, off-label use of approved psychotropic
medications is common, and is a well-accepted form of
medical practice, though with liability risk (Weiss et al.
2000). Off-label use consists of prescribing an already
Food and Drug Administration (FDA)-approved medica-
tion, but for a medical condition not already approved,
or prescribing for a different patient population, or in a
different dosage, than approved. Off-label use of an
approved medication is distinguishable from the use of a
non-FDA-approved medication or substance. Off-label
use is not per se a deviation from the standard of accepted
psychiatric care. In some cases, failure to prescribe a medi-
cation for an off-label use could be considered a deviation
from the standard of care. Several professional medical
associations have adopted specific policies on the use of
off-label medications, typically noting that such use is
appropriate when based upon sound scientific evidence
and medical opinion (Henry 1999). Case law generally
has recognized the appropriateness of off-label prescribing
(Kuntz 1998). Nevertheless, third-party reimbursement is
sometimes not available for off-label medication prescrip-
tions. The FDA Modernization Act (FDAMA) of 1997,
with subsequent regulations, has articulated the rules by
which pharmaceutical manufacturers are permitted to pro-
mote off-label drug sales to prescribing physicians and
others (FDAMA 1997).
Failure to recognize, monitor, and
treat side effects
An inpatient at a teaching hospital, treated in a team
approach, was given four different neuroleptics, as well as
diphenhydramine and anticholinergics, for what was
thought to be a schizophreniform disorder. In an anti-
cholinergic crisis, she suffered a cardiopulmonary arrest
after five weeks’ hospitalization, with a rectal tempera-
ture of 108°F (42°C). The patient survived with severe
brain damage and was awarded the statutory maximum
of $500 000 (Sibley v. Board of Supervisors 1983, 1985).
In Clites v. Iowa (1980), the parents of a mentally
retarded male at a state facility sued the state for negligence
and failure to obtain informed consent. Several physicians
had treated the patient with antipsychotic medication since
age 18 for ‘aggressive behavior.’ Medication continued for
five years before TD of the face and extremities was diag-
nosed. The trial court ruled that medication had been
inappropriately prescribed, and the patient was improperly
monitored over the years. The trial court also ruled that the
patient’s parents, his legal guardians, ‘were never informed
of the potential side effects of the use, and prolonged use, of
major tranquilizers, nor was consent to their use obtained,’
thus violating the ‘standard that requires some form of
informed consent prior to the administration of major
tranquilizers.’ The parents had not been informed of the
risks attendant to the treatment program, and the trial
court rejected the defendant’s argument that the parents
had implicitly consented. The trial court awarded $385 165
for future medical expenses and $375 000 for past and
future pain and suffering. This was subsequently upheld in
the Iowa Court of Appeals (Clites v. Iowa 1982).
A psychiatrist prescribed and administered monthly
injections of fluphenazine decanoate for five years to a
woman diagnosed with chronic paranoid schizophrenia
(Accardo v. Cenac 1998). In earlier years, she had been
treated by the defendant psychiatrist and another psych-
iatrist with haloperidol, thioridazine, and perphenazine.
The defendant testified that he did not observe any signs
or symptoms of TD during the five years of medication
injections, which ended when he diagnosed her as having
TD and tardive dystonia, and discontinued the antipsy-
chotic medication. At trial, there was dispute over the
frequency of injections, the onset of TD, and the informa-
tion given to the patient and family by the psychiatrist
about the side effects of treatment. Documentation of the
five years of pharmacotherapy consisted of three pages of
handwritten notes. During trial, the defendant stipulated
to his negligence in causing the patient’s TD, and the jury
determined damages, later modified on appeal, including
$500 000 for her future medical care.
Prescription of an improper dose and
duration
In Hedin v. U.S. (1985), the plaintiff was hospitalized for
treatment of alcohol abuse, and treated with thioridazine
and then chlorpromazine as an outpatient. He continued
to take chlorpromazine (600 mg) daily for nearly four
years before his physicians detected his TD and with-
drew the medication. Though the patient had been aware
of the movements involving the face, mouth, trunk, and
extremities, he was unaware they were due to the medi-
cation. The defendant acknowledged having prescribed
excessive amounts of medication over a prolonged period
of time without proper supervision. Damages of nearly
$2.2 million were awarded because the plaintiff had
become functionally disabled from the dyskinesia.
A patient with chronic schizophrenia was treated for
three years with 500 mg daily of loxapine, which was
double the manufacturer’s recommended maximum dose
(Edwards v. United States 1990). Treatment with lower
doses resulted in exacerbation of delusional thinking. He
was also seen for counseling on an outpatient basis. After
two brief hospitalizations for anxiety symptoms, the
patient was found dead at home; he had died of sudden
heart failure. In the subsequent lawsuit, the trial court
ruled that the antipsychotic medication did not cause the
patient’s heart failure and death. The court rejected the
plaintiff ’s allegations that the defendant had failed to
 Specific issues in psychiatric malpractice 253

properly monitor the patient, should not have prescribed and prove that the defendant deviated from that standard.
refills for six months at a time, and should have attempted For several reasons, standards of care in psychopharma-
to reduce his medication. cology are often more elusive than they may seem. New
psychotropic medications of all types are continually
being introduced into the marketplace; for example,
Failure to diagnose and treat with
atypical antipsychotic medications, with their greater
medication
efficacy and lower incidence of movement disorders than
conventional antipsychotic medications, raise the possi-
In contrast to the above case illustrations of overtreat-
bility of a standard of care which demands their use in
ment with medication, an area of growing concern is that
some categories of patients and disorders (Chiles et al.
of undertreatment. New psychotropic medications are
1999; Slovenko 2000; Rabinowitz et al. 2001). The prac-
continually being developed and released for disorders
tice of psychopharmacology also has its fads – avoiding
which were previously untreatable with medication, and
polypharmacy in the care of patients in the 1970s and
new uses are being found for existing medications or
1980s, but encouraging it in subsequent years. Finally,
combinations of medications. Cost-containment strat-
decisions to treat patients with pharmacotherapy, espe-
egies in mental healthcare emphasize the need to provide
cially in high-risk clinical situations such as pregnancy,
effective treatment at the lowest expense, and somatic
are typically complex, risk–benefit processes dependent
treatments can often fill this role.
upon factors related to the physician, patient, and family
Slawson (1991), citing claims experience with the
members (Wisner et al. 2000).
APA insurance program, reported that patient complaints
In adverse drug reaction liability cases, the plaintiff
about the ineffectiveness or inappropriateness of medi-
may introduce the manufacturer’s labeling (e.g., medica-
cation far exceeded those about medication side effects.
tion package inserts and the Physicians’ Desk Reference)
In cases of delayed or no improvement in the patient’s
as evidence of the defendant’s departure from the stand-
symptoms, liability can include the failure to obtain con-
ard of care. In some jurisdictions, such evidence is con-
sultation from a clinician experienced with psychotropic
sidered prima facie evidence of negligence, though
medication and electroconvulsive therapy.
expert medical testimony will still be necessary to estab-
A different but related liability concern is the alleged
lish that the patient’s injury resulted from the negligence
failure to use psychotropic medication; a failure to diag-
(Mulder v. Parke Davis & Co. 1970; Haught v. Maceluch
nose a medication-treatable condition may also be alleged.
1982). Other jurisdictions, however, have rejected the
Case law here has apparently been infrequent so far, but
manufacturer’s labeling as conclusive of negligence, and
one much-publicized case was settled for an undisclosed
require expert testimony as well as the relevant medical
amount after an arbitration panel awarded the plaintiff
literature to establish the standard of care (Haven v.
$250 000, without establishing a legal precedent (Osheroff
Randolph 1972). Thus, compliance with the manufac-
v. Chestnut Lodge 1985). A similar allegation of negligent
turer’s published recommendations will not invariably
failure to treat with psychotropic medication was brought
negate liability, and deviation will not necessarily impose
by a patient who was treated for dysthymic disorder with
liability (Yacura 1984).
psychoanalysis for eight years after he had refused treat-
ment with medication (Cobo v. Raba 1998). At trial, the
jury found for the plaintiff who was a physician specializ-
ing in infectious disease. On appeal, however, the North SECLUSION AND RESTRAINTS
Carolina Supreme Court reversed and remanded, rul-
ing that the defendant psychiatrist was entitled to a jury
Seclusion and restraints in mental health or nursing
instruction on contributory negligence by the plaintiff, a
home settings are highly regulated practices, usually by
legal doctrine in the state which permits a defendant to
state and federal regulations, state statutes, state and
prove that the plaintiff ’s injuries were proximately caused
federal constitutional provisions, and standards set by
by his own negligence.
the Joint Commission on Accreditation of Healthcare
Generally, the ‘respected minority rule’ governs liabil-
Organizations (JCAHO). Federal regulations were adopted
ity for decision making about a particular choice of treat-
by the Health Care Financing Administration in 1999 for
ment in medicine; thus, a treatment practice is legally
Medicare funded hospitals (HCFA 1999), and a federal
defensible so long as a respected minority of practition-
statute was enacted in 2000 applicable to public or private
ers use it for a particular condition.
general hospitals, nursing facilities, and residential treat-
ment centers for children and youth (Public Law 106-310).
Standard of care in psychopharmacology Applicable law may include detailed rules about the defin-
litigation itions of seclusion and restraint, indications (e.g., patient
age, diagnosis, symptoms), exceptions (e.g., time outs in a
As in all medical negligence litigation, the plaintiff must non-locked setting to calm a patient), contraindications,
establish the relevant standard of care in the case at bar role of physician and nursing staff, monitoring practice,
254 Civil law
need for consultation or review, need for patient consent,
documentation of pertinent findings and decision mak-
ing, and reporting of injuries or deaths resulting from the
use of seclusion and restraints. Such legal rules may be
burdensome to physicians and facilities alike, but are prom-
ulgated to protect patients from the emotional and physi-
cal harms which can occur from their use (Fisher 1994;
Appelbaum 1999).
While the use of seclusion and restraints is not a
frequent source of litigation for psychiatrists and hos-
pitals, liability can occur (Johnson 1990; Coffin 1999). In
Youngberg v. Romeo (1982), a committed, mentally retarded
person’s constitutional right to be free from undue bodily
restraint was recognized. Psychiatrists incur negligence
liability for seclusion and restraints when overuse results
in patient injury or death. The physicians in Hopper v.
Callahan (1990), in which a female patient died in seclu-
sion, were alleged to have failed to exercise professional
judgment in ordering the seclusion and in failing to pro-
vide appropriate medical care. In another case, seclusion
and restraints were found to have been used for punitive
rather than therapeutic reasons (Clark v. Ohio Department
of Mental Health 1989). In a case which considered the use
of restraints more generically, a female patient suffered a
fractured tibia when a 135-kg (300-lb) male attendant
knocked her to the ground in preparation for an involun-
tary medication injection (Kuster v. State of New York 1989).
Negligence liability can also occur, perhaps more
commonly, for the failure to use appropriate restraints,
resulting in injury to staff, other patients, or the patient
him/herself. A hospitalized patient in an acute psychotic
episode managed to escape from full leather restraints
while unmonitored, and fled the hospital (Rohde v.
Lawrence General Hospital 1993). He drove off in an
unlocked automobile taken from the hospital parking
lot, and crashed into a fence, suffering serious injuries.
Suit was brought against the hospital, nursing staff, and
physician.
SUICIDE AND ATTEMPTED SUICIDE
Suicide and attempted suicide are among the most com-
mon, and the most expensive, professional liability claims
against mental health professionals and facilities (Slawson
1989; Bongar 2002). Damages for the survivor of a suicide
attempt can exceed those for a completed suicide, due to
the need for continuing medical and rehabilitative expenses
for serious, disabling, but non-lethal injuries (e.g., paraple-
gia, burns, neuropsychological deficits). Income losses for
middle- or upper-income individuals who commit suicide
can reach into the millions of dollars.
Liability may occur for suicides during hospitalization,
shortly after release from the hospital, and on an outpa-
tient basis. Each situation presents different clinical and
legal issues (Klein and Glover 1983). Liability is more
likely with hospital suicides than the other two categories
(Bongar et al. 1993), given the staff’s assumed greater con-
trol over the inpatient than the outpatient, though the risk
factors for hospital suicide are not empirically known,
and may differ from those of outpatient suicide (Proulx,
Lesage, and Grunberg 1997; Powell et al. 2000). In Winger
v. Franciscan Medical Center (1998), for example, a psy-
chiatric hospital allegedly failed to properly supervise a
patient or restrict his access to the bathroom after he
hanged himself with his shoelaces from a showerhead.
Generally, suicide liability is predicated upon an inad-
equate assessment of suicide risk, and/or an inadequate
response to that risk, which is proximately related to the
suicide (Robertson 1988).
An assessment of suicide risk, whether inpatient or out-
patient, is ideally a comprehensive investigation of cogni-
tion, emotion, and behavior with regard to present and
past self-destructiveness (Joiner et al. 1999). The clinician
examines suicide ideation, suicide intention, suicide plan,
availability of weapons, attitudes about suicide, past his-
tory of suicide attempts, behavioral impulsivity, in add-
ition to related clinical dimensions such as depression,
hopelessness, and psychosis. An underappreciated issue
is evaluating the patient’s ability to monitor his or her
own suicidality and report it to the clinician (Gutheil,
Bursztajn, and Brodsky 1986). Repeated suicide assess-
ments of a patient are typically necessary, especially when
treating depressed or severely character disordered hospital
patients, and those who are chronically suicidal. Suicide
impulses can fluctuate in their presence and severity. In
Bates v. Denney (1990), a man who had recently attempted
suicide and been hospitalized was sent home from an
emergency room after he denied suicide ideation, though
his mother had brought him there, believing him to be
suicidal. The treating psychiatrist, contacted by the emer-
gency physician, did not see the patient, and scheduled an
appointment for him the next day, but he shot himself.
The jury found in favor of the defendant-psychiatrist,
despite expert testimony for the plaintiff that the patient
was suicidal and should have been involuntarily hospital-
ized. In a similar case, a man was evaluated at a crisis cen-
ter after having slashed his wrist with a knife and jumped
out of a bedroom window (Vasilik v. Federbush 1999). The
evaluators informed the patient’s father that the patient
was not suicidal but was seeking attention, and they did
not offer psychiatric hospitalization. The patient jumped
in front of a truck the next day. At trial, the jury found for
the plaintiff based upon expert testimony that the patient’s
earlier suicide attempts should have been taken more seri-
ously, and hospitalization offered. In this case as in others,
the court’s or jury’s judgment of the adequacy of the risk
assessment often turns on the nature of its documentation
in the psychiatric record.
Once the suicide assessment has been completed, the
clinician must respond in proportion to the level of risk
identified. Both treatment and security/observation
measures must be taken to reduce that risk. This often

requires balancing treatment versus security needs, which
may be mutually contradictory (e.g., prescribing higher
medication doses with more lethality and potential for
response versus lower doses; increasing hospital suicide
precautions versus permitting more freedom to pursue
treatment opportunities). Yet the courts can be sympa-
thetic to these conflicts. In Topel v. Long Island Jewish
Medical Center (1981), an appellate court overturned
a plaintiff ’s verdict by jury in a hospital suicide case.
The court ruled that professional judgment determined
whether a suicidal patient should be monitored continu-
ously or at 15-minute intervals, and that it was proper for
the defendant physician to evaluate the expected benefits
and risks of constant surveillance. Similarly, in Speer v.
United States (1981), the court ruled that prescribing a
month’s supply of medication (amitriptyline and per-
phenazine), to an outpatient who fatally overdosed, did
not violate the standard of psychiatric care. Hopefully,
suicides by overdose with tricyclic antidepressants such as
doxepin, as in Wozniak v. Lipoff (1988), Chauvin v. West
Jefferson Mental Health Center (1992), and Hobart v. Shin
(1998) will decline with the greater use of the safer sero-
tonin reuptake inhibitors.
Suicides which occur upon release from the hospital
raise questions about negligent release, either inadequate
risk evaluation prior to release, or improper aftercare
treatment plans. In one case (Bell v. New York City Health
and Hospitals Corporation 1982), the treating psychiatrist
had failed to investigate the hospitalized patient’s hallucin-
ations and delusions before releasing him. A week after
discharge, the patient set himself on fire by dousing him-
self with gasoline. The plaintiff ’s verdict by jury was
upheld on appeal.
Whether the patient who attempts or commits suicide
should be held responsible for his or her own behavior
has been addressed by a variety of courts through the
doctrine of contributory negligence. In Hobart v. Shin
(1998), an outpatient with recurrent depression com-
pleted suicide by a ten-fold lethal dose of her doxepin,
while registered under a fictitious name in a motel room.
When she was last seen in the office by the defendant
physician 16 days prior to the suicide, she did not display
any signs of depression, suicide ideation, or hopelessness.
She suffered a relapse two days prior to the suicide, and
her mother urged her to contact her treating physicians,
which she refused. The jury found for the defendant
physician, which was upheld on appeal by the Illinois
Supreme Court, ruling that the state code of civil proced-
ure provides that a plaintiff whose contributory negli-
gence exceeds 50 per cent of the proximate cause of the
injury is barred from recovering any damages. The state
supreme court indicated that this principle also applies
to psychiatric patients who attempt or commit suicide.
No suicide ‘contracts,’ and decisions to discharge a
patient ‘against medical advice,’ are often used by clin-
icians under the erroneous belief that such practices will
protect them from liability. There is no empirical support
Specific issues in psychiatric malpractice 255
that either defensive measure reduces the likelihood of
litigation or adverse legal outcome, or even prevents sui-
cide (Devitt, Devitt, and Dewan 2000; Kroll 2000). Rather,
contracting for safety can create a barrier to communi-
cating the patient’s intense emotional distress, and interfere
with the therapeutic alliance. Staff may inappropriately
reduce their attention to the patient’s suicide potential,
deluding themselves that the patient is safe, and offering
a false sense of security (Miller, Jacobs, and Gutheil 1998).
‘No suicide’ contracts should not substitute for ongoing
comprehensive risk assessment and treatment planning
(Jacobs 1999; Simon 1999).
NEGLIGENT SUPERVISION AND
COLLABORATION
The psychiatrist incurs many potential liability risks when
he or she supervises or collaborates with other mental
health professionals in the care of a patient. The nature
and extent of the risk depends upon the roles and respon-
sibilities of the respective clinicians, the type and severity
of the patient’s mental disorder, the forms of psychi-
atric treatment that are provided to the patient, and
the administrative system of clinical care in which the
patient is seen. For present purposes, we can distinguish
among supervision, consultation, and collaborative treat-
ment sometimes called ‘medical back-up,’‘dual treatment,’
‘shared treatment,’ or ‘split treatment’ (Sederer, Ellison,
and Keyes 1998). In a supervisory relationship, the super-
visee is expected to comply with the recommendations of
the supervisor. In contrast, consultation involves two or
more independently licensed or fully credentialed profes-
sionals. In a collaborative relationship, two or more
licensed or credentialed professionals share the patient’s
care, with each of them independently responsible for
particular aspects of that care.
Psychiatrists who supervise other clinicians bear con-
siderable clinical and legal responsibility for that clin-
ician’s work. In some cases, there is an employer–employee
relationship between them, but often both are employed
by another agency or facility. According to the legal doc-
trine of respondeat superior, the supervisor incurs vicari-
ous liability for the supervisee. Thus, the physician in
Andrews v. United States (1984) was found to have negli-
gently supervised his assistant’s counseling which eventu-
ated in sexual intercourse. The presence of a supervisory
relationship can be suggested by a system of care in which
the psychiatrist signs or reviews team treatment plans, or
billing claim forms, for a patient, even though the psych-
iatrist has no formal supervisory role in the team. Similarly,
the concept of the physician as ‘captain of the ship’ is still
prevalent, despite actual clinical practice to the contrary.
On the other hand, courts have held trainees to the same
standard of care as fully trained professionals, so the super-
visor does not entirely shoulder the liability.
256 Civil law
In contrast, consultants should bear less clinical and
legal responsibility for patient care than supervisors,
especially if the consultant has not personally examined
the patient and billed for the consultation. In that case, a
court may rule that there is no physician–patient rela-
tionship, which is a predicate for professional liability
(Hill by Burston v. Kokosky 1990). Depending upon the
clinical context, consultants may have clinical and legal
responsibilities to perform adequate assessments of the
patient, coordination of care with the attending phys-
ician or psychotherapist, and documentation of their
findings and decision making. To the extent that consult-
ants participate in activities relating to treatment of the
patient, they share the same liability exposure as treating
psychiatrists. Malpractice claims against consulting psych-
iatrists have been litigated and settled out of court (Garrick
and Weinstock 1994).
Psychiatrists who collaborate with non-medical mental
health practitioners in the care of a patient, whether at an
agency or in private practice, might in theory have limited
liability for patient care given their restricted clinical activ-
ities such as infrequent and brief contact with a patient
only for prescribing and monitoring psychotropic medica-
tion, and responding to emergency situations necessitating
hospitalization (MacBeth 1999). In such a practice, the
psychiatrist should not in theory have responsibility for
the psychotherapist’s errors and omissions. Yet, in practice
the legal system may not appreciate the critical distinctions
between supervision, consultation, and collaboration, with
the result that split treatment arrangements do not min-
imize liability for collaborating psychiatrists. For instance,
a plaintiff’s attorney can attempt to distort a collaborative
relationship into a supervisory one. Further, prescribing
psychiatrists increase their liability exposure by seeing
large numbers of patients, in a briefer period of time, for
medication management in contrast to seeing smaller
numbers of patients more frequently, and for longer ses-
sions, by providing psychotherapy and pharmacotherapy.
Liability exposure is also increased for the psychiatrist in
clinical systems of care: (i) in which the psychiatrist is
unable to see patients in timely manner to assess a patient’s
clinical change; (ii) in which the psychiatrist is given
medication responsibility for large numbers of patients;
(iii) when the psychotherapists are inadequately trained
and supervised; (iv) when mechanisms are inadequate to
facilitate genuine collaboration and sharing of informa-
tion between the psychiatrist and psychotherapist; and
(v) when there are multiple therapists and multiple psych-
iatrists providing care to a single patient. Through the use
of ‘joint and several liability,’ split treatment with multiple
defendants can result in the well-insured psychiatrist’s
having to provide most or all of the legal judgment
against the defendants, especially when the non-physician
co-defendants are uninsured or underinsured.
In collaborative treatment situations, the co-therapists
need to clarify the nature of their relationship and
their respective roles and responsibilities (Gutheil 1994;
MacBeth 1999). A written contract or letter of agreement
between the co-therapists can be useful for this purpose.
It should be clear, for example, whether the psychiatrist is
responsible in any way for the non-psychiatrist’s psych-
otherapy, or is only providing pharmacotherapy services.
A judge or jury in a malpractice case could otherwise
assume that the psychiatrist had supervisory authority
over the psychotherapist; such was the practice years ago
until psychopharmacology became a subspecialty prac-
ticed by many psychiatrists under managed healthcare.
The psychotherapist’s responsibility, if any, for monitor-
ing medication response and side effects should also be
clearly defined. There should be ample opportunities for
interaction and coordination between the psychiatrist
and psychotherapist, whether on a regular or crisis basis,
to minimize miscommunication, splitting, and inconsist-
ency in the treatment approach. Professional guidelines
for such collaboration indicate that the patient should
also be informed of each therapist’s responsibilities and
consent to the free sharing of information between the
physician and non-physician (American Psychiatric Asso-
ciation 1980; Gutheil 1994).
HANDLING MEDICAL ERROR
An important dilemma in medical error situations occurs
when the physician or associated healthcare professional
becomes aware of an error in the patient’s care, especially
when the error is harmful to the patient, and the patient
and family are unaware of it. One survey of internal medi-
cine house officers revealed that only 54 per cent dis-
cussed the mistake with their attending physicians, and
only 24 per cent informed the patient or families (Wu et al.
1991). Disclosing a serious error to a patient or family
member is typically discouraged by risk management
staff and legal counsel at hospitals and clinics, for fear of
increasing the likelihood of initiating a lawsuit for the
error. The presence of the National Practitioner Data
Bank, though limited in its actual impact, also serves as
a deterrent to spontaneous reporting of serious error
(Baldwin et al. 1999).
The ethical theories of consequentialism and deontol-
ogy each argue for a physician’s duty to disclose signifi-
cant medical error to patients and families (Wu et al.
1997). Professional medical associations have adopted
policies favoring such disclosure for ethical reasons (Wu
et al. 1997). The Veterans Administration has adopted a
system-wide policy of requiring the disclosure of medical
error to patients and family when that error has resulted
in loss of a patient’s function, earning capacity, or life,
while providing assistance to them in filing a claim
against the facility (Kraman and Hamm 1999). Empirical
data pursuant to this practice at one facility demon-
strated that claim frequency and severity data were mod-
erate, and comparable to those at comparable facilities

(Kraman and Hamm 1999). Surveyed internal medi-
cine patients at an outpatient facility indicated that they
desired an acknowledgment from their physicians of even
minor errors (Witman, Park, and Hardin 1996). Such
‘extreme honesty’ likely undercuts anger and vengefulness
of patients and their families, which can prompt litigation
demanding excess or even punitive damages (Hickson
et al. 1992; Witman et al. 1996). Beyond being the ‘best
defense,’ acknowledgements of medical error, and apol-
ogy, also promote open communication between phys-
icians and patients (Witman, Park, and Hardin 1996;
Shuman 2000), and provides patients with information
which they may need to make decisions regarding their
subsequent healthcare. Yet, such a practice of disclosing
one’s own medical error does not necessarily extend to
the situation of a psychiatrist who learns of a medical
error made by another physician in the care of their joint
patient.
CONCLUSION
Though psychiatrists enjoy among the least exposure to
professional liability in all of medicine, there are still many
practice risks deserving concern, especially in a managed
care, split treatment, clinical environment. Psychiatry is
practiced in an increasingly regulated and complex legal
and financial environment. Systems of care issues which
reduce the risk of error in the practice of psychiatric med-
icine are at the incipient stage of development. This chap-
ter has considered some of the generic psychiatric issues
likely to be brought to litigation. Though specific clinical
practices may change in future years, similar liability con-
cerns will no doubt be applicable.
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Psychiatric disability determinations and
personal injury litigation
JEFFREY L. METZNER AND JAMES B. BUCK
INTRODUCTION
Since 1970, the Bureau of the Census has collected data
on work disability among U.S. residents. The 1990 census
defined work disability as the inability to perform work
resulting from a physical, mental, or other health condi-
tion of six months’ duration or longer; categories are
non-severe (limitation in the type or amount of work a
person can perform) and severe (an inability to perform
work of any type). In 1990, an estimated 12.8 million
persons aged 16–64 years had a work disability: 6.6 mil-
lion were severe, and 6.2 million non-severe. Rates of
work disability varied widely among the states. From
1980 to 1990, the prevalence of work disability declined
nationally from 85.2 per 1000 persons to 81.5 per 1000
persons, and rates of severe and non-severe work disabil-
ity decreased by 3.9 per cent and 4.7 per cent, respectively
(LaPlante 1993a; LaPlante 1993b). The Centers for Disease
Control and Prevention reported during May 1998 that
in the United States an estimated 10 per cent of persons
had some recent disability from a diagnosable mental ill-
ness and up to 24 per cent have experienced a mental dis-
order during the preceding year (Centers for Disease
Control and Prevention 1998).
Different definitions of disability have been developed
by various institutions and organizations such as the
Veterans Administration, Social Security Administration,
private insurers, and workers’ compensation programs. It
is essential to know the specific definition being used in
order adequately to address pertinent questions concern-
ing the presence or absence of psychiatric disability. Tort
law provides other definitions and conceptualizations
when mental and emotional damages are alleged in per-
sonal injury litigation. Issues relevant to the legal defin-
ition of disability under the Americans with Disabilities
Act are addressed in Chapter 30. Definitions used for dis-
ability are more clearly understood by linking them to a
conceptual framework related to the consequences of
29
disease and injury, such as the International Classification
of Impairments, Disability, and Handicaps (ICIDH)
(World Health Organization 1993). The World Health
Organization (WHO) released the Beta-2 draft full ver-
sion of the international classification of functioning and
disability (ICIDH-2) during July 1999. This was a revision
of the ICIDH which was first published in 1980 by the
WHO for trial purposes. The acronym ICIDH has been
retained for historical purposes.
ICIDH-2 systematically groups functional states asso-
ciated with health conditions (i.e., a disease, disorder,
injury or trauma, or other health-related state). Among
the aims of ICIDH-2 is to provide a scientific basis for
understanding and studying the functional states associ-
ated with health conditions and to establish a common
language for describing functional states associated with
health conditions in order to improve communications
between healthcare workers, other sectors, and people
with disabilities.
The ICIDH-2 classification covers any disturbance
in terms of ‘functional states’ associated with health con-
ditions at body, individual and society levels. ‘Function-
ing’ and ‘disability’ are umbrella terms covering three
dimensions:
1 Body functions and structure.
2 Activities at the individual level.
3 Participation in society (ICIDH-2 1999).
The Beta-2 full version (July 1999) has been issued for field
trial purposes. This classification is undergoing systematic
field trials and is subject to further consultation. Reference
should be made to the web page <http://www3.who.int/
icf/icftemplate.cfm> for detailed information concerning
the ICIDH-2.
It is important to understand the cultural, social, bio-
logical, and psychological components of the systems
that determine decisions to seek employment, change
employment, become formally unemployed, or seek or
 Psychiatric disability determinations and personal injury litigation 261
be assigned disability status in order to comprehend more
adequately disability behaviors (Brodsky 1987a). Learning
about these systems will increase knowledge concerning
the relationship between social impairments and psy-
chosocial disability (Ruesch and Brodsky 1968). This
chapter provides an overview of issues to be addressed by
the forensic psychiatrist concerning disability determin-
ations through workers’ compensation systems, the Social
Security Administration, and private insurance policies as
well as fitness for duty examinations and psychological
damage claims in personal injury litigation.
WORKERS’ COMPENSATION
Issues
Workers’ compensation systems vary in each state due to
differences in statutes, case law, and administrative prac-
tices. Such systems were developed as a social policy
response to the acknowledgment that injured workers
were at a legal disadvantage when seeking compensation.
Before the advent of the workers’ compensation system, a
worker who was injured on the job could recover only by
proving the employer was liable in tort, and the employer
was liable only for injuries resulting from failure to use
reasonable care. Three major defenses were available to
the employer under such circumstances:
• The contributory negligence rule found an employer
not liable if the worker’s own negligence contributed
to the injury.
• The assumption of risk rule held that the worker
assumed the risk of injuries on the job after becoming
aware of the possible danger even if the worker con-
tinued to work under protest.
• Under the fellow servant rule, the employer was
absolved of any liability for injuries to one worker
resulting from the negligence of another worker
(Keeton et al. 1984).
It was often difficult for workers to recover under these
common law principles. Additionally, employers were
subjected to potentially ruinous jury verdicts for injuries
to workers, as well as punitive damages claims. Eventually,
statutes were passed in one form or another in all fifty
states where a finding of fault was not required as a pre-
requisite to awarding benefits (Mussoff 1981). The worker
need only show that the injury was the result of a work-
related accident, although there is a range of definitions
concerning this issue. Generally, the injury must arise
‘out of employment,’ which essentially means that the
employee was exposed to a risk in the place of employ-
ment greater than that encountered in everyday life, and
the injury must have occurred in the ‘course of employ-
ment,’ which generally means exposure that occurs within
the time and place of employment (Warshaw 1988).
The typical statute provides that a worker is to be com-
pensated for loss of earnings and medical expenses result-
ing from a work-related injury. The worker no longer
needs to prove negligence to obtain benefits, but generally
only needs to show that the need for such benefits is
work-related. This ‘no-fault’ approach left the employers
with the cost of occupational injuries and disabilities as a
cost of doing business (Lawson 1973). Under this system,
the worker is limited to statutorily defined medical and
disability benefits, and employers are shielded from often
unlimited liability under the civil tort system.
Important psychiatric-legal issues involve concepts of
impairment, disability, maximum medical improvement,
and employability. Familiarity with the American Medical
Association’s (AMA) Guides to the Evaluation of Perman-
ent Impairment (Cocchiarella and Andersson 2000) and
pertinent state law will provide relevant definitions for
the physician involved in workers’ compensation evalu-
ations. For example, the AMA publication defines impair-
ment as ‘a loss, loss of use, or derangement of any body
part, organ system, or organ function’ that is assessed by
medical means; this is in contrast to disability, which is
defined as ‘an alteration of an individual’s capacity to
meet personal, social, or occupational demands or statu-
tory or regulatory requirements because of an impair-
ment.’ A disability arises out of the interaction between
impairment and external requirements, especially those
of a person’s occupation (Doege and Houston 1993,
p. 1–2). Kennedy and Gruenberg (1987, p. 7–8) define
impairment as a limitation due to a defect in an organ’s
functioning, and disability as a limitation of activity pro-
duced by an impairment. Using these definitions, an indi-
vidual who is impaired may not be disabled.
Disability can be either partial or total and can be tem-
porary or permanent. Temporary disability benefits com-
mence once the worker is found to have been injured in
the course and scope of employment and is disabled tem-
porarily from employment. Permanent disability benefits
begin after the worker has reached maximum medical
improvement (MMI) and has received an impairment rat-
ing, which is an important factor in the disability determin-
ation. The definition of MMI varies from state to state,
but generally indicates that the worker’s underlying condi-
tion causing his or her disability has become stable and
further medical treatment will not improve the condition.
However, treatment may still be required following attain-
ment of MMI in order to prevent further deterioration.
The majority of states for almost the past thirty years
have relied on the AMA’s Guide to the Evaluation of
Permanent Impairment (Doege and Houston 1993) to
assess issues relevant to disability. A survey completed in
1999 indicated that forty states use the Guides in workers’
compensation cases because of statute or regulations, or
by administrative/legal practice (Barth and Niss 1999;
Cocchiarella and Andersson 2000).
The 1985 revision of the Social Security Administra-
tion’s ‘Listing of Mental Impairments’ is reflected in the
262 Civil law
fifth edition’s chapter of the AMA publication, which
describes mental and behavioral disorders. Specifically,
activities of daily living, social functioning, concentra-
tion, and adaptation are to be assessed and rated on a five-
point scale. Unlike other chapters on non-psychiatric
impairment, the fifth edition has not provided percentages
for estimates of mental impairment because there is no
available empirical evidence to support any method for
assigning a percentage of impairment of the whole person
despite physicians often being required to make such judg-
ments based on clinical impressions (Cocchiarella and
Andersson 2000).
Over the past twenty years, there has been a significant
increase in workers’ compensation claims attributing
disability to mental impairment or occupational stress.
It was reported by the National Council on Compensa-
tion Insurance that about 15 per cent of all occupational
diseases nationwide in 1985 were stress-related, which
represented a 30 per cent increase from 1984 (Dentzer,
McCormick, and Tsurouka 1986). National healthcare
costs grew at an average annual rate of about 10 per cent
from 1985 to 1992, and workers’ compensation costs
grew at an average annual rate of nearly 15 per cent,
peaking in 1992. These increased costs served as a precipi-
tant for many of the medical cost-containment initiatives
currently in place in workers’ compensation systems
(Eccleston and Victor 1998). Mental disorders already
rank among the top ten work-related injuries and ill-
nesses in the nation (Matsumoto 1994).
It is important to realize that most states’ compensation
systems have been haphazardly constructed. Legislative
amendments and judicial interpretations have created
unique systems in each state (Spieler 1995). Stress claims
are not potentially compensable in eight states; eight
states allow such claims if the stressor is a sudden, fright-
ening, or shocking event; eleven states require the stress
to be in excess of the stress of everyday life or employ-
ment to be compensable; seven states allow compensable
stress claims even if the stress does not exceed that of
everyday life or employment; and fifteen other states
do not have adequately established case law to provide
guidelines for such issues [Warshaw (1988) reports on
only forty-nine states].
Legal criteria
There are three categories of work-related injuries involv-
ing mental stress. Not all states accept all these categories
as compensable work-related injuries. Each has its own
variants and specific problems concerning proof of
causality.
1 The first category is the ‘physical–mental’ claim where
a physical trauma causes a mental injury. An example
is a worker who is injured in an explosion and there-
after develops posttraumatic stress disorder. This type
of claim is accepted by all jurisdictions.
2 The second category is the ‘mental–physical’ claim in
which a mental stimulus causes a physical injury. An
example would be an individual who is subjected to
work-related stress due, e.g., to a heated argument
with a co-worker, or a demotion or termination, and
thereafter suffers a physical injury such as a stroke,
heart attack, or ulcers. Because heart attacks are rela-
tively common in certain worker populations, and
because allegations that a heart attack is work-related
is hard to dispute, some states have implemented
additional criteria for obtaining benefits in heart
attack cases. For example, Colorado denies benefits to
workers suffering heart attacks unless the worker
proves that the heart attack was caused by an unusual
exertion arising out of employment, as opposed to the
stress of everyday life (Colo. Rev. Statutes 1991a).
3 The third, and most controversial category, is the
‘mental–mental’ claim, where a mental stimulus
results in a mental injury, e.g., a shock at work causes
a mental illness. An example would be a claimant who
witnesses a co-worker’s hand severed in a machine
press and as result develops posttraumatic stress and
disabling anxiety.
All jurisdictions allow compensation for physical–
mental and mental–physical claims; however, eleven states
do not recognize mental–mental claims. These states
require some type of physical injury (Head 1997).
Most jurisdictions have limited psychiatric disability
compensation by: (i) narrowly defining accidental injury
or occupational disease; (ii) qualifying the definition of
an acceptable stimulus causing an injury; (iii) raising
the causation threshold for a work-related injury; and/or
(iv) defining a more stringent burden of proof for psy-
chiatric injury (London, Zonana, and Loeb 1988). An
example of such limitation is the current Colorado law
which specifies that mental impairment cannot be based,
in whole or in part, on facts and circumstances that are
common to all fields of employment. This statute also
excludes mental impairment claims which result from
disciplinary actions, work evaluations, job transfers, lay-
offs, terminations, or similar action taken in good faith
by the employer (Colo. Rev. Statutes 1991b).
Bursten (1986) provides a very useful summary con-
cerning issues related to sexual discrimination and sexual
harassment in the workplace. If the worker being dis-
criminated against or harassed has been so affected that
he or she is unable to work, then workers’ compensation
benefits may be available.
Landmark cases
The Michigan Supreme Court holding in Carter v. General
Motors Corp. (1960) was the first landmark case to com-
pensate a worker for a mental disorder precipitated solely
by a mental stimulus. A lower court decision was sustained
for a machine operator who suffered a psychosis alleged
 Psychiatric disability determinations and personal injury litigation 263
to have resulted from stress encountered on his job. This
finding was unique because there was neither a physical
injury nor a specific, definable event that precipitated the
psychosis (Parlour and Jones 1980).
Beveridge v. Industrial Accident Commission (1959) is a
California case that formulated the doctrine of repetitive
injury based on a disability claim due to back pain. This
concept has been widely used to support claims for dis-
ability alleged to result form protracted periods of stressful
incidents (Warshaw 1988). Such litigation has contributed
to the evolution of an objective standard of causation, as
described in McGarrah v. SAIF (1982), that requires the
stressful stimulus to be significant enough to cause disabil-
ity to an average worker as opposed to an individual who
may have specific vulnerabilities to the particular stress.
This standard is in contrast to a subjective standard that
allows for everyday job stress to be compensable for cer-
tain individuals even though most workers would not be
affected by such stress. Deziel v. Difco Laboratories (1978)
allowed a claim to be compensable if the claimant ‘hon-
estly, though perhaps mistakenly, perceives the cause of
her disability to be the work-related personal injury.’ Such
reasoning has also been described as a subjective standard
for establishing causation or an honest perception stand-
ard (London, Zonana, and Loeb 1988).
Relevant information
Various aspects of workers’ compensation claims are
often disputed and litigated, which may result in referral
for a psychiatric examination to assess one or more of the
following issues (Brodsky 1987b):
• If the worker has a mental disorder.
• The duration and symptoms of any mental disorder
diagnosed.
• The etiology of the disorder(s), and, specifically, its
relationship to work.
• Prognosis and treatment recommendations with par-
ticular reference to duration of required treatment.
• Whether and when the worker will be released to return
to work with discussion of any work restrictions.
• Whether vocational evaluation and/or rehabilitation
is indicated.
• If the worker has reached maximum medical improve-
ment (MMI); if not, when it is likely that MMI will be
reached.
Enelow (1991) summarized the work of an advisory com-
mittee in California that developed a list of eight work
functions that could be assessed clinically and through
psychological testing. These eight work functions, which
can serve as a useful outline for relevant areas to be
assessed, include the ability to:
• comprehend and follow instructions;
• perform simple and repetitive tasks;
• maintain a work pace appropriate to a given work load;
• perform complex or varied tasks;
• relate to other people beyond giving and receiving
instruction;
• influence people;
• make generalizations, evaluations, or decisions with-
out immediate supervision; and
• accept and carry out responsibility for direction, con-
trol and planning.
A standard psychiatric examination as described in
standard textbooks (Strauss 1995; Nicholi 1999) should
be performed with emphasis on issues pertinent to the
referral questions. Psychological and neuropsychological
testing are often helpful in establishing the presence of a
mental disorder and assessing both the presence and
consequences of an injury to the brain. Relevant medical
and mental health records should be reviewed along with
other pertinent documents such as job performance evalu-
ations, legal complaints, depositions, responses to inter-
rogatories, and investigative reports that often include
statements from past employers, co-workers, and super-
visors. Such a review will help prepare the psychiatrist
for examination of the examinee, which should include
an assessment of any pre-existing conditions, pre-injury
functioning, and the examinee’s credibility. Comparison
of the history obtained from the examinee with other
sources of information will assist in the credibility assess-
ment. Reference should be made to other chapters in this
volume for relevant information concerning issues of
double agentry and an outline of the usual forensic prin-
ciples that apply to these forensic evaluations.
The examiner should obtain an occupational history
including a detailed work history since the injury, a sum-
mary of prior job experiences, and information about the
worker’s future plans for work. Emphasis should be placed
on learning more about the worker’s experience with the
medical care system and the workers’ compensation due to
issues related to entitlement and secondary gain. Relevant
legal history should summarize any past arrests, prior
litigation, and/or workers’ compensation claims.
Ash and Goldstein (1995) briefly summarize the litera-
ture relevant to predicting whether or not a person, due
to psychiatric-related conditions, can or will return to
work. They report that much of the research relevant to
this issue is from outcome studies in the orthopedic litera-
ture of the treatment of lower-back pain. In general,
organic factors, such as level of pain and severity of phys-
ical injury, have usually not been found to be good out-
come predictors. Non-organic factors, which include
length of time off work, age, and mixed social factors
(e.g., family problems, feelings/attitudes toward work
and illness) have been reported as having some signifi-
cance as predictors of outcome. The worse outcomes
were associated with involvement with workers’ compen-
sation system or litigation.
Anthony et al. (1995) provide a concise literature
review of studies examining the relationship between
264 Civil law
psychiatric symptomatology, diagnosis, and work skills.
The studies do not agree on what, if any, relationship
exists between these areas. Increases in skill perform-
ances have not necessarily corresponded with decrease in
symptoms. Other studies have suggested that symptom-
atology was related to vocational outcomes.
These same authors emphasize that the failure to rec-
ognize the fact that skills and symptomatology are not
highly correlated, and that symptoms cannot be used as
a proxy measure of vocational functioning, will lead to
inaccurate predictions concerning the vocational cap-
acity of persons with psychiatric disabilities. Their find-
ings suggest that vocational assessment must include
both evaluating psychopathology and other measures
of vocational functioning and probably other social–
environmental factors.
Reasoning processes
The credibility of the psychiatrist and the claimant are
important issues in any medical–legal psychiatric exam-
ination. Credibility is often central to claims in which there
is no objective evidence of injury as in posttraumatic
stress disorder and closed head injuries (Hoffman and
Spiegel 1989). Non-medical investigations, including sur-
veillance, are at times helpful in assessing issues of the
claimant’s credibility.
As in other forensic evaluations, the issue of malinger-
ing should be considered, particularly when the exam-
inee provides an inconsistent history, demonstrates
selective memory impairment, withholds relevant infor-
mation, provides inaccurate information, is very hostile
and/or demanding during the examination, or has a past
history of antisocial behaviors.
The findings of the forensic evaluation should gener-
ally be summarized in written form in a manner that is
understandable to the fact finder. Clearly written opin-
ions that reflect logical reasoning facilitate resolution of
the legal issues prior to court hearings. Reference should
be made to relevant chapters and articles for useful dis-
cussion and outlines for these medical–legal reports
(Hoffman 1986; Brodsky 1987b; London, Zonana, and
Loeb 1988; Rappeport et al. 1991).
Integrating data with legal criteria relevant to worker’s
compensation cases is often a very complicated task. The
definitional vagueness of stress often presents problems.
Other problems involve the concept of psychiatric injury,
which often is narrowly defined by the legislature. Estab-
lishing a legal causation is often complicated because of
symptomatic pre-existing mental disorders and because
the work-related accident is only one factor in the life of
the employee. It is more likely that there will be a causal
relationship between the industrial accident and the result-
ing psychiatric injury when the injury is severe and there
are few pre-existing psychiatric factors. The key to causa-
tion is isolating the event that is the precipitating cause
of the job-related mental disorder (Juge and Shraberg
1984). When a worker has a relevant pre-existing psycho-
logical history, then apportionment arises and the issue of
causation becomes more difficult to resolve. Difficulties
also exist in the determination of whether a person is able
to return to work. The psychiatrist needs to organize data
from the examination in order to assist in the legal deter-
mination of compensability, which is a three-prong test
consisting of the following factors (London, Zonana, and
Loeb 1988):
1 The existence of a psychiatric disability which pre-
vents work.
2 The disability is caused by psychiatric injuries.
3 The psychiatric injuries are work-related.
The biopsychosocial conceptualization of illness is
emphasized by Brodsky (1990) to be very pertinent to
studying the causes and recovery patterns of persons suf-
fering from work-related injuries. The dynamics of the
workplace needs to be assessed when there is confusion
concerning the cause of the workplace injury. These
dynamics include the worker’s attitudes toward the job,
relationship with co-workers and supervisors, the nature
of treatment received for the injury, compensation, resid-
ual impairment, and future work plans (Brodsky 1990).
FITNESS FOR DUTY EXAMINATIONS
Issues
It is not uncommon for employers, generally via an
employee assistance program or Human Resources depart-
ment, to refer employees to psychiatrists for a fitness
for duty examination when an employee appears to be
demonstrating symptoms of a mental disorder that may
interfere in the performance of their job.
These referrals frequently involve issues of potential
dangerousness to others, especially related to public
safety issues or workplace violence. Many of these refer-
rals are made with a sense of urgency being conveyed by
the referral source who often request an immediate assess-
ment, if not sooner. Triaging on the phone is often help-
ful to the referral source in determining if the assessment
that needs to be immediately performed involves the need
for hospitalization. Such an assessment should usually
occur in a psychiatric emergency room setting for safety
purposes. Under these circumstances, the fitness for duty
question will be postponed to a time when it can be per-
formed in less of a crisis atmosphere.
Assuming that the fitness for duty examination can pro-
ceed, further information will be required from the referral
source. This information will include the following:
• More detailed information concerning the reason for
the referral at the present time (e.g., nature of the behav-
ior(s) that precipitated the referral, documentation
 Psychiatric disability determinations and personal injury litigation 265
from supervisors, co-workers, customers, etc. regarding
such behaviors).
• The employee’s job description.
• Copies of past job performance evaluations.
• Copies of relevant medical/psychiatric records (it is
often the employee who will be responsible for sup-
plying these records).
• The employee’s current job status (e.g., sick leave, sus-
pended, working, in danger of being fired?).
• The employee’s response to the requested examination.
It may also be helpful for the examiner to talk with the
employee’s supervisor in order to obtain more detailed
information concerning the examination referral.
It is useful to have the referral source provide a
written document to the psychiatrist which specifically
states the questions that should be answered by the
examiner. Many employers do not need – and do not
want – a summary of an employee’s background infor-
mation except to the extent that it is directly related to
the specific referral questions. In general, it is also helpful
to decide in advance the nature of the information that
the examiner will share with the employee at the end of
the examination. It is recommended that the employee be
told the opinions that will be conveyed to the employer
so that he or she can be better prepared for the likely
consequences.
The examiner should be aware of safety issues
involved in many of these examinations related to the
fact that an employee’s livelihood is often at risk. It is for
this reason that it is often not advisable to do these exam-
inations under a pressured timeframe. It may also be
necessary to have more than one interview with the
employee as part of the examination process.
Legal criteria
Many employees are very unhappy with the fitness for
duty process which often is a requirement for them to
continue with their employment. In general, the employee
handbook will provide the legal basis for the mandatory
nature of the fitness for duty examination. The usual
disclosure relevant to the nature of the examination and
limits of confidentiality should be provided to the
employee by the examining psychiatrist.
Relevant information
A standard psychiatric examination, as described in the
workers’ compensation section, should be performed.
Similar to the workers’ compensation examination, this
assessment should also focus on work issues (ability to
perform pertinent work functions as per the job descrip-
tion) and other relevant referral questions. Such ques-
tions often include issues related to diagnosis, treatment
recommendations (nature and anticipated duration),
work limitations/suggested modifications, prognosis, and
potential for dangerousness.
Reasoning processes
The document received from the referral source, which
specifies the questions to be addressed by the examiner,
will serve as a template for the report to be generated
by the examiner. Principles of report writing previously
summarized in this chapter remain applicable.
SOCIAL SECURITY DISABILITY BENEFITS
Issues
The Social Security Disability Insurance (SSDI) Program
(title II) and the Supplemental Security Income (SSI)
Program (title XVI) are administered by the Social Security
Administration (SSA). Title II provides coverage in the
form of cash benefit for those disabled workers and their
dependents who have contributed to the Social Security
trust fund through the Federal Insurance Compensation
Act (FICA) tax on their earnings. Title XVI provides for
a minimum income level for the needy, aged, blind, and
disabled. A financial need, which is statutorily defined,
determines a person’s eligibility for SSI benefits.
The disability benefits programs administered by the
SSA are huge: more than one million applications were
processed for SSI during 1998. In 1992, the social security
disability insurance program cost $28 billion and the SSI
program cost an additional $23 billion (Burtless 1994).
The federal expenditures for cash payments under the SSI
program during calendar year 1998 totaled $27.7 billion.
In January 1999, 6.3 million individuals received feder-
ally administered monthly SSI benefits averaging $341.
Between 1974 and December 1998, the total number of
persons receiving SSI payments more than doubled (from
3.2 million to 6.5 million). The greatest growth was in the
disabled caseload, which more than tripled (from 1.3
million to 5.1 million) over the 24-year period (Brooks
1999). By 2023, the federal SSI recipient population is
estimated to reach 7.3 million, which will represent roughly
2.2 per cent of the population at that time (Social Security
Administration 1999). Some 32 per cent of the 3 919 427
SSI blind and disabled recipients during 1998 were receiv-
ing benefits based on psychiatric impairments.
The Fifth Circuit and other courts and commentators
have labeled the SSA ‘the Mount Everest of bureaucratic
structures with the largest system of administrative adjudi-
cation in the western world’ (Mashaw 1983; Kane v. Heckler
1984; Dubin 1995). Although the vast majority of claims
are adjudicated at the lower levels of the agency, approxi-
mately 1000 cases are docketed in the courts of appeals
each year rendering social security cases among the most
commonly litigated federal appellate cases (Levy 1990).
266 Civil law
The SSA has developed a five-step ‘sequential evalu-
ation process’ for evaluating disability claims. The State
Disability Determination Services (DDS) must determine
whether a claimant:
• is engaged in substantial gainful activity;
• has a severe impairment or combination of impair-
ments;
• meets or equals an impairment listed in the appropri-
ate appendix;
• is prevented by the impairment or combinations of
impairments and residual functional capacity from
engaging in relevant past employment; or
• has the ability to engage in other gainful activity
considering the claimant’s education, past relevant
experience, and residual functional capacity [20 C.F.R.
§§ 404.1520, 416.920 (1994)].
Under settled case law on all courts of appeals, the claimant
has the burden of proof on the first four steps of the five-
step sequential evaluation process [see Johnson v. Heckler
(1985) (collecting cases), vacated on other grounds sub
nom., Bowen v. Johnson (1987)].
Initial DDS decisions that are unfavorable to the appli-
cant may be appealed to the DDS for reconsideration of
that initial denial. If still not satisfied, the claimant may
apply to the Office of Hearings and Appeals (OHA) for a
hearing before an Administrative Law Judge (ALJ). The
next level of appeals is through a review by the Appeals
Council (Social Security Administration 1999).
Pursuant to 42 U.S.C. 405(g), federal courts have juris-
diction to review the commissioner’s decisions. Judicial
review of those decisions is limited to determining whether
the findings are supported by substantial evidence and
whether the ALJ has employed the proper legal standards
(Gropman 1997).
Psychiatrists should be familiar with the SSA medical
standards and guidelines for use in determining disability
due to mental impairment. The process of determining dis-
ability emphasizes medical evidence that includes a signed
report by a licensed physician or psychologist concern-
ing the applicant’s medical history relating to the impair-
ment(s) that prevent work. These regulations concerning
mental disorders, commonly referred to as ‘the listings,’ were
derived from DSM-III (Spitzer and Williams 1980) and
promulgated by the SSA during 1985 and may be revised in
the near future. This section focuses only on issues related to
impairment ratings for adults.
Legal criteria
To qualify for benefits under either SSDI or SSI programs,
an individual must have a medically determinable impair-
ment that causes disability. The definition for disability is
‘the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or men-
tal impairment which can be expected to result in death or
has lasted or can be expected to last for a continuous
period of not less than 12 months… .’ Substantial gainful
work activity is any work of a nature generally performed
for remuneration or profit, involving the performance of
significant physical or mental duties, or a combination of
both, which are productive in nature [Code of Federal
Regulations, Title 20 C.F.R. 400-499 (1999)]. This defin-
ition includes part-time work regardless of pay or similar-
ity to an individual’s former work.
Medically determinable impairments are defined in
terms of specific symptoms, signs, and laboratory findings.
Symptoms, which are defined as the claimant’s own per-
ception of his or her physical or mental impairments, are
not by themselves medically determinable impairments.
Regarding psychiatric impairments, signs are medically
demonstrable abnormalities of behavior, affect, thought,
memory, orientation, and reality testing. Laboratory find-
ings include the usual chemical, electrophysiological, and
roentgenological tests as well as psychological tests.
The SSA has listed eight diagnostic categories of men-
tal disorders that can result in a finding of disability based
on a medically determinable impairment. These cat-
egories, which were essentially defined by DSM-III-R
criteria (Spitzer and Williams 1987), are as follows:
1 Organic mental disorders.
2 Schizophrenic, paranoid, and other psychotic disorders.
3 Affective disorders.
4 Mental retardation and autism.
5 Anxiety-related disorders.
6 Somatoform disorders.
7 Personality disorders.
8 Substance addiction disorders.
Each diagnostic group, except mental retardation and
autism and substance addiction disorders, consists of a set
of clinical findings (paragraph A criteria), one or more of
which must be satisfied and which, if satisfied, lead to a
test of functional restrictions (paragraph B criteria), two
or three of which must be met. There are additional con-
siderations (paragraph C criteria) concerning functional
restrictions in the schizophrenic, paranoid, and other
psychotic disorders and the anxiety-related disorders
(Social Security Administration 1998). The paragraph A
criteria determine the presence or absence of a mental dis-
order (i.e., medically determinable mental impairment).
Criteria in paragraphs B and C are based on functional
areas thought to be relevant to work and establish the
severity of the disorder. A person who is seriously limited
in these areas as a result of an impairment identified in
paragraph A is generally presumed to be unable to work.
Paragraph B of the listings describes the types of
functional limitations caused by the various disorders.
Paragraph B criteria are as follows (Social Security
Administration 1998):
1 Marked restriction of activities of daily living.
2 Marked difficulties in maintaining social functioning.
 Psychiatric disability determinations and personal injury litigation 267
3 Deficiencies of concentration, persistence, or pace
resulting in frequent failure to complete tasks in a
timely fashion in work settings.
4 Repeated episodes of deterioration or decompensation
in work or work-like settings that cause the individual
to withdraw from the situation or to experience exac-
erbation of signs and symptoms (which may include
deterioration of adapted behaviors).
Activities of daily living involve everyday activities
including cleaning, shopping, paying bills, and attending
to one’s personal hygiene. Social functioning refers to an
individual’s ability to interact appropriately with other
individuals. Concentration, persistence, and pace refer to
a person’s capacity to focus attention long enough to per-
mit timely completion of tasks generally found in the
workplace. Deterioration or decompensation in work or
work-like settings refers to problems associated with the
other three categories caused by stress related to work or
similar settings. The examiner should be familiar with
the more comprehensive definitions of these four areas
that are provided in the Social Security Administration
manual (Social Security Administration 1998).
The paragraph C criteria, which were added to the
schizophrenic, paranoid, and other psychotic disorders
and the anxiety-related disorders, essentially recognize
the significant impact of impairments related to cer-
tain chronic mental illnesses even when such impair-
ments are decreased by the use of medication or certain
psychosocial factors such as placement in a structured
environment.
The SSA recognizes that these eight categories of men-
tal disorders do not embrace all types of clinical findings
that may result in impairments severe enough to prevent
work. In such circumstances, the evaluating physician or
psychologist should use his or her judgment in determin-
ing whether an impairment with unlisted symptoms,
signs, or laboratory findings restricts a person’s physical
or mental capacity to an equivalent degree as would a
listed disorder. The state DDS may find such a person dis-
abled based on a report indicating that a person is experi-
encing medically equivalent impairments comparable to
the criteria of the listings for mental disorders.
Persons who have an impairment not meeting one
listed by the SSA and not equivalent to any listed disorder
may, in some instances, be found disabled if the demands
of jobs in which the person might be expected to engage,
based on age, education, and work experience, exceed the
individual’s remaining capacity to perform. This residual
functional capacity (RFC) is defined as ‘a multidimen-
sional description of work-related abilities which an
individual retains in spite of medical impairments’
(Social Security Administration 1986, p. 62). RFC, which
complements the criteria in paragraph B and C of the
listings for mental disorders, describes an expanded list
of work-related capacities that may be impaired by men-
tal disorder. An assessment of RFC involves addressing
the following four areas that are derivatives of the para-
graph B criteria:
1 Understanding and memory.
2 Sustained concentration and persistence.
3 Social interaction.
4 Adaptation.
If a person’s RFC is not sufficient to enable him or her to
do their previous work, other factors will be considered
in the assessment concerning a person’s ability to per-
form any other work, considering the claimant’s age,
education, work experience, and job availability in the
national economy.
The Contract with America Advancement Act of 1996
(CWAAA), signed into law on March 29, 1996, included
one truly essential amendment to the Social Security Act.
The CWAAA abolished substance abuse as a disabling
impairment. People who had received disability benefits
on the basis of chronic substance abuse automatically
had such benefits terminated as of January 1997 if drug
addiction or alcoholism was a contributing factor mater-
ial to a finding of disability unless they reapplied and
could prove disability by reason of another impairment
without considering the effect of drug or alcohol abuse.
Specifically, the key factor to be examined in such cases
was whether the individual would be found disabled if
he/she stopped using drugs or alcohol. The House of
Representatives estimated that nearly 10 000 recipients
would be terminated from both disability insurance
benefit and supplement security income eligibility rolls
due to this amendment (Gropman 1997).
Relevant information
Physicians and psychologists are frequently asked by their
state DDS to provide a report concerning a patient under
the care of the provider in order to assist the DDS in mak-
ing a disability determination. These reports should con-
tain a summary of the standard psychiatric examination,
including mental status examination, diagnosis, prognosis,
treatment recommendations, and a description of limita-
tions and remaining functional capacities regarding ability
to perform ordinary activities. A statement should be
made whether any limitations have lasted or are expected
to last for a continuous period of at least twelve months.
Information concerning paragraph B criteria should be
obtained from both the patient and other sources includ-
ing community mental health centers, sheltered work-
shops, family members, and friends. The assessment should
also contain an opinion concerning the claimant’s ability
to handle his or her own funds. Familiarity and use of the
disability examiner basic training program and the mental
residual functional capacity assessment form, both avail-
able from the SSA, will provide a structured format for the
report and enhance the credibility of the medical report
(Social Security Administration 1987).
268 Civil law
Reasoning processes
Applying the data obtained during a Social Security dis-
ability evaluation to the relevant legal SSA criteria will
be very straightforward if the examiner structures the
report based on the suggested format present in the
referral letter from the DDS. It is encouraging that a
study by the American Psychiatric Association demon-
strated that SSA’s medical standards and guidelines for
determining disability due to mental impairment oper-
ationalize the statutory definition of disability in a man-
ner consistent with current psychiatric practice (Pincus
et al. 1991).
PRIVATE DISABILITY INSURANCE
Issues
Various insurance companies offer individual disability
policies designed to provide a disabled worker with greater
financial benefits than are available through either the
workers’ compensation system or Social Security Admin-
istration. These policies are generally expensive and are
usually not selected by employees of large organizations
due to the significant payroll deductions to cover the
premium expense. These policies are more attractive to
self-employed professionals for reasons similar to the
justification used for purchasing life insurance.
Wall and Appelbaum (1998) relate that disability in the
professional workforce has significantly increased among
physicians since 1989, and that about 3 million persons,
many of them self-employed, were covered by individual
disability policies in 1997. They also summarize legal and
clinical issues involved in performing medical evaluations.
Psychiatrists may be asked to evaluate a policyholder who
is claiming disability based on psychiatric reasons.
It is important to obtain multiple sources of infor-
mation during such an examination. Information from
surveillance may also be helpful. Psychological testing is
often helpful in the functional and diagnostic assessment.
Legal criteria
The psychiatrist needs to know the specific policy defin-
ition of disability in order to focus on the relevant stand-
ard. The better policies will describe disability in terms of
the policyholder’s specific occupation. Such policies
might define disability as: ‘due to injury or sickness, the
policyholder cannot perform each of the material duties
of his/her regular occupation.’ Additionally, such policies
may define ‘regular occupation’ with particularity. For
example, the definition of disability for an attorney might
specify that ‘regular occupation’ means the specialty in
the practice of law the policyholder was practicing just
prior to the date that the disability started. Policies may
define disability in terms of being unable to perform one’s
regular occupation on a full-time basis for a particular
period of time (usually more than 90 days) or in terms of
significantly decreased earning capacity related to injury
or sickness.
Relevant information
The examination should address issues related to the
specific policy definitions of disability. Referral sources
vary on whether they want issues concerning treatment
and prognosis to be addressed. As in the workers’ com-
pensation examination, the examiner should also obtain
a detailed occupational and legal history. In addition to
the usual elements of psychiatric assessments and dis-
closure relevant to the independent medical examination
(IME) process, Wall and Appelbaum (1998) recommend
that the examiner obtain the following information:
• the insured’s current income, disability benefits, and
policy terms;
• current symptoms and stressors;
• a description of the insured’s typical day before and
after the onset of disability;
• the insured’s functioning prior to disability;
• contributing factors to disability;
• efforts at and responses to treatment;
• efforts at returning to work during or after treat-
ment; and
• future plans and self-prognosis.
Reasoning process
Evaluations addressing issues related to private disability
insurance determinations are similar to the workers’
compensation examination. However, such assessments
are generally less complicated because causation is usu-
ally not an issue. Issues of secondary gain are often more
prominent due to the superior benefits offered by most
private insurance disability policies.
PERSONAL INJURY
Issues
Historically, personal injury litigation has involved claims
for damages caused by physical injuries. Courts have long
recognized that psychological injuries often accompany
physical injuries and when a causal connection between
the physical and psychological injuries has been shown,
damages for both types of injuries are recoverable.
Courts (and legislatures) have been more reluctant to
compensate plaintiffs for mental suffering alone, since
such claims are difficult to prove and it is often hard to
 Psychiatric disability determinations and personal injury litigation 269
distinguish between serious emotional injury and feigned
or exaggerated claims. However, most states recognize
such claims, due in part to increasing sophistication in
medical ability to diagnose and document the existence
of psychological injuries which are not caused by physi-
cal trauma.
Legal criteria
When a plaintiff claims psychological injury as the result
of another’s tortious conduct, the claim is for infliction
of emotional distress, which can be either a deliberate act
or a negligent act. Each state has its own case law dealing
with such claims. Intentional infliction of emotional dis-
tress is sometimes referred to a ‘outrageous conduct,’ i.e.,
intentional acts which the average member of the com-
munity would find atrocious and utterly intolerable
and outside the bounds of decency (Keeton et al. 1984).
Physical injury is not an element of intentional infliction
of emotional distress.
Negligent or unintentional conduct is the predom-
inant source of civil litigation involving emotional dam-
ages. In order to recover in such litigation, the plaintiff
must prove that the defendant should have realized that
his or her conduct involved an unreasonable risk of caus-
ing emotional distress, and that such negligence caused
emotional distress of sufficient severity.
A legal duty is a standard imposed by law requiring
individuals to conduct themselves in a manner that does
not unreasonably interfere with the rights of others.
There are three generally accepted standards or theories
of legal duty concerning negligent infliction of emo-
tional distress: the impact rule; the zone of danger rule;
and the foreseeability test. States differ as to which legal
standard should be imposed on defendants in such cases.
The impact rule requires physical impact upon the
plaintiff, otherwise damages may not be recovered for
emotional stress caused by the negligence of another.
Victorian Railways Commission v. Coultas (1888) is an
early English case in which a woman was denied recovery
for mental shock that resulted in almost being hit by a
passing train. The impact rule often nets unjust results
and some courts have devised legal fictions to thwart its
application.
The zone of danger rule holds that the plaintiff may
recover for emotional distress, even if there has been no
impact, where the plaintiff is in the zone of physical dan-
ger and experiences emotional distress caused by the
negligence of the defendant. A typical scenario is where a
negligently operated vehicle nearly strikes the plaintiff. In
such an instance, the plaintiff would not suffer physical
impact, but the near-miss would be a reliable indication
that the plaintiff could have suffered emotional harm.
The foreseeability test is the most liberal and compli-
cated of the duty tests. A pure foreseeability test is satis-
fied by asking the objective question: Is it reasonably
foreseeable that the plaintiff would be harmed given the
defendant’s actions? This test can be divided into two
categories: (i) claims that seek damages for direct inflic-
tion of emotional distress; and (ii) claims that seek dam-
ages for indirect infliction of emotional distress. Indirect
claims are often known as claims for ‘bystander recovery.’
In order to obtain recovery for direct infliction of
emotional distress, the defendant’s negligent conduct
must be directed toward the plaintiff, the plaintiff must
suffer severe emotional distress, and the emotional dis-
tress must be a foreseeable and proximate result of the
defendant’s negligent act. The defendant is liable for all of
the reasonably foreseeable results of his or her negligence.
While recovery for psychological injury is quite
restricted for an individual’s direct injury because of arti-
ficial legal barriers, even more harsh are the legal hurdles
that a bystander must overcome. It was not until 1968
that a court finally lowered the bar against bystander
recovery. In Dillon v. Legg (1968), a mother was allowed
to recover for her own psychic injury after she watched
her infant daughter killed by a negligent driver.
Generally speaking, a bystander can recover for negli-
gent infliction of emotional distress when there is fore-
seeability and there is:
1 Death or serious physical injury of another caused by
the negligence of the defendant.
2 A marital or intimate familial relationship between
the bystander and the injured person.
3 Observation of the death or injury at the scene of the
accident.
4 Severe emotional distress experienced by the bystander.
Issues concerning element 3 are highly litigated related to
the definition of observation and how contemporaneous
with the injury the observation is made. In other words,
what must the bystander observe and how soon after the
injury? The clear trend concerning these legal theories is
toward application of the foreseeability test and toward
discarding the more restrictive impact rule and zone of
physical danger rule.
There is also disagreement among jurisdictions as to
what type and how severe the plaintiff’s injuries must be
before recovery for emotional distress will be allowed. In
impact rule jurisdictions, there is a split of authority as to
whether the plaintiff must also suffer a corresponding
physical injury or whether mere contact is sufficient indi-
cation that the plaintiff could have suffered emotional
harm. In both the zone of danger and foreseeability juris-
dictions no impact is required, but there is nonetheless
often a requirement for physical manifestation of emo-
tional injury, which may be as little as recurrent nausea
or headaches. On the other hand, in jurisdictions where
there is no requirement of physical manifestations of emo-
tional harm, there may be a required showing of severe
emotional distress that is often defined as a disabling emo-
tional or mental condition that may be generally recog-
nized and diagnosed by mental health professionals.
270 Civil law
The issue of a plaintiff’s vulnerability in personal injury
cases is considered in states which follow the eggshell or
thin skull doctrine (i.e., take the victim as you find him)
(Keeton et al. 1984). An eggshell plaintiff is a person who
is extremely vulnerable to even a minor trauma but has
remained asymptomatic prior to the injury. The person
who cracks a plaintiff ’s eggshell skull, even if the trauma
is minimal, is legally responsible for the damages that
ensue under the eggshell doctrine (Simon 1995). However,
the eggshell doctrine is generally rejected by courts in
determining awards for emotional injury. In such juris-
dictions, recovery is usually restricted for normally con-
stituted individuals who show reasonably predictable
reactions to acutely stressful stimuli (Twiford 1985) due
to issues related to both cost and problems relevant to
causation. For example, the Supreme Judicial Court of
Maine opined in Theriaulta v. Swan (1989) that:
… in order to recover for either negligence or reck-
less infliction of emotional distress, a plaintiff must
demonstrate that the harm alleged reasonably could
have been expected to befall the ordinary sensitive
person [citations omitted]. When the harm reason-
ably could affect only the hurt feelings of the super-
sensitive plaintiff – the eggshell psyche – there is no
entitlement to recovery. If however, the harm rea-
sonably could have been expected to befall the ordin-
arily sensitive person, the tort feasor must take
his victim as he finds her, extraordinarily sensitive
or not.
Therefore, pre-existing conditions are an important elem-
ent to be considered in such litigation.
It has been long argued that emotional damages are
too speculative to permit recovery for claims of emotional
distress without some reliable evidence of the damage
such as actual physical harm or physical manifestations
of the emotional harm. However, advances in evaluating
and diagnosing mental injuries have lessened the need
for such artificial standards. Psychiatry can provide suffi-
ciently reliable information concerning the existence and
causation of psychic injuries. With such testimony the
trier of fact can properly evaluate claims of psychic injury
and assess whether a particular claim is concocted and
factious or, in fact, real. So stated the Colorado Supreme
Court in Towns v. Anderson (1978).
Relevant information
The psychiatric examination should address the accuracy
and nature of alleged impairments, and whether they are
proximately related to the injury or exposure. The assess-
ment, which should be as comprehensive as described in
the section on workers’ compensation, needs to address
the following issues (Weissman 1985):
1 The extent to which the accident or exposure caused a
new disorder or exacerbated a pre-existing disorder.
2 Whether a disorder would have occurred at all but for
the instant event(s).
3 The significance to the current disorder of proximate,
pre-existing, and co-existing factors.
4 The course of a pre-existing disorder with the focus
on eventual impairments in the absence of the instant
event(s).
5 The role of other factors including malingering, exag-
geration, convenient focus, and secondary gain on the
current problem(s).
Reasoning processes
General forensic principles, which have already been
described, apply equally to these evaluations. The medical–
legal assessment of a personal injury case generally focuses
on identifying the existence of a psychic injury, determin-
ing proximate cause, assessing credibility, and assessing
prognosis. The nature and degree of impact of the specific
event(s) on the life of the plaintiff should be described
within the context of a biopsychosocial model (Hoffman
and Spiegel 1989). The expert should describe findings
and provide diagnostic formulations at a level of proba-
tive value that attains the ‘reasonable scientific certainty’
(or equivalent standards, e.g., reasonable degree of medi-
cal probability) standard, which is the evidentiary stan-
dard in most civil cases (Weissman 1985).
CONCLUSION
Proper preparation for the forensic evaluation will
increase the forensic psychiatrists’s ability to aid in the
resolution of disability and/or personal injury litigation.
Proper preparation includes adequate understanding of
the specific medical–legal issues to be addressed, with
specific knowledge of the relevant legal criteria. The usual
forensic principles apply in these evaluations, which
should help minimize the issues of double agentry and
clarify issues related to confidentiality. A clearly written
report summarizing the findings of the evaluation will
minimize the need for courtroom testimony by the expert
since such reports often facilitate resolution of the legal
disputes.
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Americans with Disabilities Act evaluations
A. JOCELYN RITCHIE AND HOWARD V. ZONANA
Psychiatrists and other mental health professionals who
provide mental health treatment to individuals with men-
tal and physical disabilities come under the Americans
with Disabilities Act’s anti-discrimination provisions in
their roles as providers in both the public sector and in
private practice. In addition, psychiatrists and other men-
tal health providers are uniquely positioned to serve as
valuable consultants to business, to governmental agen-
cies, and to individuals with mental illnesses and other
cognitive impairments.
HISTORY AND OVERVIEW
The Americans with Disabilities Act (ADA) was passed
in 1990 and reflected bipartisan efforts by Congress and
the George H. W. Bush administration to build on existing
federal legislation to extend anti-discrimination protec-
tions for individuals with disabilities into a broad range
of activities of daily life. In addition to sections outlining
Congressional findings regarding disability discrimin-
ation, the ADA includes five individual Titles covering
private employment (Title I), public services and public
transportation operated by state and local government
(Title II), private sector public accommodations and
commercial facilities (Title III), telecommunications
(Title IV), and a variety of miscellaneous provisions,
including specific exclusions (Title V). Although there
are some common definitions (such as who is ‘an indi-
vidual with a disability’ covered by the Act), each Title
must be considered separately due to differences in how
discrimination rights and responsibilities are balanced.
Titles I, II, and III are discussed below, as are some of
the exclusions found in Title V. Title IV will not be dis-
cussed. Its relevance to psychiatry lies primarily in the
requirement that telephone companies provide operator
relay services to connect deaf or hard-of-hearing individ-
uals who use teletype machines to communicate by
phone with individuals who do not use these machines
30
(including most psychiatrists and other mental health
professionals).
Enforcement provisions vary from Title to Title, but
generally the ADA provides judicial and/or administra-
tive relief including policy changes, accessibility accom-
modations and, in some cases, money damages. The ADA
encourages the use of alternative means of dispute reso-
lution, including settlement negotiations, conciliation,
facilitation, mediation, fact-finding, minitrials, and arbi-
tration. In addition, reasonable attorneys fees, including
litigation expenses and costs, may be granted to the pre-
vailing party in any judicial or administrative action
taken under the Act, at the discretion of the judge or
administrative hearing officer. A ‘prevailing party’ must
have succeeded on any ‘significant issue’ in the case and
obtained at least some of the relief sought. This provision
applies to both the plaintiff and the defendant, and is
intended to prevent frivolous actions being brought, and
to prevent frivolous or uncooperative defenses being
waged. Attorneys fees are most likely to be granted in
situations where parties have refused to negotiate reason-
able accommodations in good faith or have failed to
consider reasonable settlement offers in a timely manner,
rather than from the existence of an underlying prob-
lematic situation in the first place. Most ADA disputes
are resolved without going to court, and interestingly,
by one estimate, approximately 90 per cent of all ADA
employment claims that proceed to court are resolved in
favor of the employer (Blanck 1999).
Overall, the ADA requires an individualized approach
to each situation, governed by a general conceptual
framework provided by the Act. Specifically, the analysis
must focus on the particular fact pattern, taking into
account the individual abilities of the person requesting
an accommodation (rather than relying on a diagnosis
per se), balanced against the circumstances of the entity
from whom the accommodation is requested.
A working knowledge of the ADA is increasingly
important for mental health providers. More than one
type of evaluation may be needed to provide sufficient
274 Civil law
justification for (or defense against) a finding of disabil-
ity under the ADA. Psychiatrists and psychologists may
be asked to render a professional opinion on:
1 Whether the individual in question meets diagnostic
criteria for a particular disorder.
2 Whether the disorder results in functional impair-
ments of sufficient intensity and duration (relative to
the ability of the average person in the general popu-
lation to perform one or more major life activities)
to qualify as having a ‘disability’ within the scope of
the Act.
3 The objective, scientific basis to support their findings
of disability or functional impairment.
4 The specific ways that the impairments affect the
individual’s ability to function within a specific
environment.
5 The types of accommodations that might be appro-
priate to relieve the impact of the impairment.
6 The specific rationale for each recommended
accommodation.
For example, mental health professionals who are asked
to provide forensic evaluations under the employ-
ment provisions of the ADA (discussed below) must
determine an individual’s functional limitations (and
suggested accommodations) in light of the specific
requirements of the essential functions of the job (as
defined by the employer) rather than the functions of
a general job classification. If the functional require-
ments of the job are not well defined, the examiner
should note those limitations in reporting the results of
their assessment.
A working knowledge of the ADA is important for
other reasons. Mental health providers are themselves
‘covered entities’ under the ADA (as well as related civil
rights statutes), and may need to respond to requests
for accommodations from patients and employees. For
example, psychiatrists provide mental health services to
the public, either through private practice (Title III) or
through state or local government practice (Title II). In
addition, they may employ more than fifteen employees
(Title I), and they may be required to meet similar
requirements under another federal anti-discrimination
provision (i.e., Section 504 of the Rehabilitation Act of
1973) because they accept Medicaid or Medicare pay-
ments or accept federal research grants.
The purpose of this chapter is to provide some guid-
ance to clinicians when consulting on ADA-related cases,
as well as to assist clinicians in reducing their own risk
of unintentionally incurring liability under the ADA. The
authors caution, however, that one of the core elements
of the ADA is an individualized analysis of the circum-
stances of the various parties under the ADA. Thus, this
chapter is offered for general information purposes only,
and is not intended to substitute for appropriate legal
advice.
DISABILITY
The ADA utilizes a three-part definition of disability,
which is applied to the Act in its entirety. With respect to
an individual, ‘disability’ means:
• a physical or mental impairment that substantially
limits one or more major life activities of such individ-
ual (i.e., caring for one’s self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learn-
ing, or working);
• a record of such an impairment; or
• being regarded as having such an impairment.
The third prong of the definition is particularly import-
ant for individuals with mental disorders due to the stigma
historically attached to mental illness.
The ADA also extends protections to people associated
with an individual with disability. These would include
spouses, parents, foster-parents, children, employers,
friends, and service providers, if they were discriminated
against on the basis of their known association with an
individual with a disability. Thus, the ‘association’ provi-
sions of the ADA could be used to protect against dis-
crimination against community mental health service
providers in leasing otherwise available office space.
Mental impairment includes ‘any mental or psycho-
logical disorder, such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learn-
ing disabilities.’ Thus, major depression, bipolar disorder,
schizophrenia, personality disorders and anxiety disorders
may be impairments under the ADA. However, the ADA
takes a functional rather than categorical approach, and
a diagnosis is not presumptive evidence of a disability.
Rather, the impairment must present a substantial limita-
tion on one or more major life activities, which depends
on the severity and permanence of the impairment relative
to the average population (see Parry 1994 for an excellent
discussion of mental disorders and the ADA).
At least hypothetically, ‘mental impairment’ could also
include severe personality disorders provided it could be
shown that the person experiences substantial limitations
in one or more major life activities. For example, a person
might be able to demonstrate a pattern of severe self-
injurious behaviors associated with borderline personality
disorder that substantially impairs that person’s ability to
care for him or herself or to work, relative to the average
population. On the other hand, a person with a severe
personality disorder would still need to meet the other
requirements under the various titles of the ADA (e.g.,
being able to do the job with or without accommoda-
tions) and overcome one or more of the exclusions (e.g.,
employment regulations which go beyond the Act itself
in excluding individuals who pose a danger to them-
selves; see below). It would be important to analyze the
individual circumstances of the question involved. Even
if the person in the above example was excluded or

unable to meet other qualification standards for purposes
of a Title I employment case, the ADA association protec-
tions might prevent an employer from firing the spouse
(or parent) of that person in an attempt to reduce the
employer’s health insurance costs associated with the
employee’s dependent’s self-injury.
Short-term physical impairments such as broken legs,
adjustment disorders, or short-term situational depres-
sion typically would not be considered disabilities under
the Act. Individuals with episodic mental illnesses may be
covered if they can be shown to have chronic disabling
effects such as seen in many individuals with schizophre-
nia in remission. Individuals who cannot show chronic
disabling effects may still be covered if they are discrim-
inated against due to their history of mental illness or due
to stigma, under prongs two and three, respectively. An
exception to the functional approach of the ADA is found
in Title V of the ADA, which categorically excludes certain
individuals who might otherwise be covered, including
people who engage in certain sexual behaviors, certain
antisocial behaviors, and illegal drug use. Title V of the
ADA categorically excludes homosexuality, bisexuality,
transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from
physical impairments, or other sexual behavior disorders,
compulsive gambling, kleptomania, or pyromania, and,
psychoactive substance use disorders resulting from cur-
rent illegal use of drugs. In addition, the definition of dis-
ability does not include an individual who is currently
engaging in the illegal use of prescription or illicit drugs.
This exclusion does not apply to an individual who:
• has successfully completed a supervised drug rehabili-
tation program and is no longer engaging in the illegal
use of drugs, or has otherwise been rehabilitated suc-
cessfully and is no longer using drugs illegally;
• is participating in a supervised rehabilitation pro-
gram and is no longer engaging in such use; or
• is erroneously regarded as engaging in such use, but is
not engaging in such use.
Evaluations of mental impairment can include traditional
diagnostic techniques regarding the existence of impair-
ment and its functional limitations. Certain mental dis-
orders such as attention deficit hyperactivity disorder
(ADHD) or specific learning disorders typically require
psychological and neuropsychological testing, in addition
to clinical interviews and thorough histories, in order to
support a finding that an individual is substantially
impaired relative to the general population. Some employ-
ers and public accommodations (e.g., many universities,
many state bar associations, the National Board of Medical
Examiners) go further and require that specific psycho-
logical and neuropsychological measures be used as
supportive documentation (see discussion below). In add-
ition, evaluations may include a retrospective assessment
of whether there was a history of mental impairment and
appropriate documentation of substantial limitations in
Americans with Disabilities Act evaluations 275
major life activities, such as through school and medical
records.
In 1999, the Bazelon Center for Mental Health Law
compiled lists of functional limitations that people with
mental illnesses may experience in the workplace, either as
a result of their illness or due to the effects of medications.
According to the Bazelon Center, work-related social or
emotional limitations due to mental illness might include
difficulties interacting with others, including: asking for
feedback on job performance, responding appropriately to
negative feedback, initiating corrective action, providing
explanations, describing events, responding appropriately
to supervision, maintaining relationships with supervisors,
responding appropriately to supervisors, maintaining
relationships with co-workers, responding appropriately
to co-workers, and adapting to a new supervisor. The
Bazelon list of potential work-related cognitive limitations
due to mental illness include: understanding and carrying
out directions, assessing one’s own performance, making
decisions, exercising judgment, problem-solving capacity,
learning new tasks, adapting to a change in work assign-
ment, focusing on multiple tasks simultaneously, screening
out environmental stimuli, processing information, and
maintaining boundaries of responsibility. Work-related
limitations due to mental illness in the physical domain
might include maintaining a fixed work schedule, main-
taining work pace, and maintaining stamina throughout
the workday, in addition to medication side effects such as
blurred vision and changes in motor control which could
affect work performance. The complete Bazelon Center
list is available through their website at: www.bazelon.org,
which also includes links to a myriad of other useful web-
sites offering information about the ADA.
EXCLUSIONS
In addition to categorical exclusions, people who pose
a ‘direct threat’ to the health and safety of others, that
cannot be eliminated or reduced by reasonable accommo-
dations, are excluded from the protections of the ADA,
even if they otherwise meet the definition of ‘an individual
with a disability.’ The wording of the ADA statute itself
states that the exclusion applies to ‘the health and safety of
other individuals,’ but regulations interpreting the employ-
ment provisions of the ADA state that a ‘direct threat’ is ‘a
significant risk of substantial harm to the health or safety
of the individual or others that cannot be eliminated or
reduced by reasonable accommodation.’
In School Board of Nassau County, Florida v. Arline, the
United States Supreme Court, held that tuberculosis may
be a handicapping condition covered by Section 504 of
the federal Rehabilitation Act. In determining whether the
individual poses a ‘direct threat,’ the court held that the
determination must be based on: (i) reasonable medical
judgments that assess the nature, duration, and severity
276 Civil law
of the risk to the individual and other parties; (ii) the
probabilities that the disease will be transmitted and will
cause harm; and (iii) whether any reasonable accommo-
dation can be made by the employer to ameliorate the risk.
The Court held that the determination of ‘direct threat’
must be based on an individualized inquiry, and that nor-
mally courts should defer to the reasonable medical judg-
ments of public health officials in making their findings.
The Arline standard was expressly adopted in regulations
for the various ADA titles, and has been applied to the
ADA by the Supreme Court in Bragdon v. Abbott (1998),
a case in which an individual with HIV was refused out-
patient dental services. In Bragdon, the Supreme Court
determined that HIV-seropositivity was a disability from
the moment of infection, based on the course of the dis-
ease and its impact on reproduction, a major life activity.
Generally stated, the ADA and its regulations require
that any threat of harm be based on sound medical judg-
ment, and real threats of harm be distinguished from
fears based on stereotypes or myths. In addition, exclu-
sion cannot be based on speculative or remote risks, but
rather must be ‘significant.’ Assessments must be based
on the most current medical knowledge and/or the best
available objective evidence, implying a familiarity with
modern risk assessment techniques, including corrobor-
ating evidence of dangerousness. Scientific evidence and
expert testimony must have a traceable, analytic basis in
objective fact. Thus, a person with a history of repeated
assaultive behavior as a result of his or her mental illness
may be excluded if it can be shown that the threat is sig-
nificant and cannot be eliminated or reduced through
reasonable accommodations. However, a person with a
mental illness including a prior history of assaultive
behaviors only when psychotic would not be excluded
if he or she is no longer psychotic and he or she is likely
to become psychotic in the near future (e.g. no history
of repeated medication non-compliance and return of
psychosis under a particular set of circumstances).
Threats of harm may include a variety of behaviors
that place others in danger. For example, under the Equal
Employment Opportunity Commission Title I employ-
ment provisions, the cognitive effects of a psychiatric
illness that affect an individual’s ability to operate heavy
machinery or otherwise perform his or her job properly
may constitute a ‘direct threat’ to others, which could jus-
tify exclusion. Law enforcement officers, fire fighters, and
lifeguards may require greater safety margins than some
other jobs, and therefore may have lower thresholds for
what constitutes a ‘direct threat’ to others in terms of
mental or physical performance in order to meet the
essential functions of the job.
Although not an ‘exclusion’ per se, the ADA does not
come into play unless and until the otherwise qualified
individual with a disability requests an accommodation,
thereby putting the covered entity on notice. In the typ-
ical situation under Titles I, II, or III, if a person chooses
not to disclose their disability or chooses not to request
an accommodation, he or she is choosing not to come
under the protections of the ADA. However, some individ-
uals with mental illnesses or other cognitive impairments
may not recognize that they have impairments that could
be accommodated. Alternatively, people who do recognize
their impairments and wish to request accommodations
may, by reason of their mental illnesses or cognitive
impairments, require accommodations to be made in the
notification and application process, particularly if the
business or public entity has reason to know that a signifi-
cant percentage of the people it serves have such mental
illnesses (e.g., some public housing).
COURT DECISIONS REGARDING ‘DISABILITY’
Recent Supreme Court decisions, including Bragdon
noted above, underscore the Court’s strict interpretation
of the Act’s reliance on functional impairments when
determining eligibility. In Bragdon, the Court ostensibly
broadened coverage of the Act by affirming its application
to individuals with asymptomatic HIV, citing significant
impairments in the major life activity of reproduc-
tion due to HIV infection. Approximately one year later
in Murphy v. United Parcels, Sutton v. United Airlines,
Inc., and Albertson’s v. Kirkingburg, the Court substan-
tially narrowed the number of individuals covered by the
ADA in ruling that mitigating measures taken to control
the effects of an individual’s impairment – such as eye
glasses, medication, or other therapy – may impact
whether an individual meets the functional requirements
for having a disability under the ADA. Finally, the Court
held that having substantial limitations in the major life
activity of working is being ‘significantly restricted in the
ability to perform either a class of jobs or a broad range of
jobs in various classes as compared to the average person
having comparable training, skills and abilities.’
As a result of these recent decisions, advocates such as
those at the Bazelon Center foresee that many people who
use mitigating measures may be at risk of losing the pro-
tections of the ADA. Determining whether an individual
who takes medication (or other mitigating measures) has
a disability now requires a very careful analysis of what
functional limitations the person continues to experience
despite medication and/or therapy. The ADA likely pro-
tects those whose mitigating measures do not fully control
the effects of their impairments or who face intermittent
periods of substantial limitations, such as some indi-
viduals with bipolar disorder or schizophrenia whose
symptoms are only attenuated or remain regardless of
compliance with medications. The ADA would likely
apply to individuals who experience side effects, such
as significant mobility impairments due to medications
which otherwise successfully alleviate the delusions caused
by schizophrenia. In addition, the substantial limitation
may be caused by a combination of the side effects of the

mitigating measures and the effects of the impairment
itself. ADA will continue to protect individuals whose
symptoms are under good control but who have a record
of substantial limitations in major life activities. However,
merely demonstrating a record of prior hospitalization
may not be sufficient, as courts may require evidence
demonstrating a specific substantial limitation of a major
life activity to establish the record of disability under the
second prong of the ‘disability’ definition necessary to be
eligible for protection under the ADA.
TITLE I: EMPLOYMENT
Title I of the ADA applies both to current employees and
job applicants to ensure equal opportunity in the appli-
cation process and enjoy equal benefits and privileges of
employment to individuals with disabilities. Title I only
applies to employers with fifteen or more employees. As
with the Rehabilitation Act before it, ADA Title I protec-
tions extend only to qualified individuals with disabilities
in employment. A ‘qualified individual with a disability’
is defined in the Act as an individual with a disability who,
with or without reasonable accommodation, can perform
the essential functions of the job that the individual holds
or desires. A reasonable accommodation is anything which
enables an otherwise qualified person with a disability
to perform the essential functions of a particular job, as
long as the accommodation would not impose an undue
hardship on the employer. Title I of the ADA requires an
individualized approach to address the needs and cir-
cumstances of both employees and employers when con-
sidering what accommodations are reasonable. If several
accommodations are available and would provide equiva-
lent benefits, the employer may select the accommodation
that is most easily provided or is least expensive.
Experts asked to render opinions regarding the func-
tional limitations of an individual and make recommen-
dations for accommodations with respect to a certain job
should strive to obtain as much information as possible
about the job in question, including requesting the job
description (or any available ‘job analysis’) from employ-
ers. Job accommodations may include: changing the phys-
ical environment to reduce distractions for individuals
with limited concentration abilities; individualized flex-
ible schedules; flexible return-to-work plans following an
episodic relapse; job restructuring to reassign problem-
atic auxiliary tasks; allowing extra time to learn new tasks;
and providing supports for employees during times of
stress. Experts also need to be sophisticated in their
understanding of the subtle differences between a referral
for a disability evaluation under the ADA from a disabil-
ity evaluation under other statutes such as Supplemental
Security Income (SSI) or Social Security Disability Insur-
ance (SSDI). In Cleveland v. Policy Management Systems
Corp. et al. the Supreme Court held that pursuit and
Americans with Disabilities Act evaluations 277
receipt of SSDI benefits do not automatically bar a per-
son from pursuing an ADA claim or erect a strong pre-
sumption against the recipient’s ADA success. However,
the person must sufficiently explain why the statements
on the SSDI application (that the person is disabled and
cannot work) are consistent with the ADA claim that the
individual can now perform the essential functions of the
job, at least with reasonable accommodation.
The ADA protects job applicants with disabilities, but
does not require employers to give individuals with dis-
abilities any special preferences. After first determining
the essential functions of the job, the employer then deter-
mines the qualification standards that are job-related
for the particular position (rather than a general class of
job) and consistent with business necessity, including
education, skills, experience, physical, medical, and safety
requirements. Prior to making a job offer, employers may
only ask about applicants’ abilities to perform job-related
functions, and may not ask whether an individual has a
disability nor the nature and extent of any obvious disabil-
ity. Medical examinations can only be performed after an
individual has been given a provisional offer for the pos-
ition, and then only for the specific purpose of determining
whether an individual can perform the essential functions
of that particular job. The physician or other health pro-
fessional is not under a duty to limit the examination and
inquiry to ‘job-related functions’ or to domains ‘consistent
with business necessity.’ However, if a job offer is with-
drawn after such an examination, it is the duty of the
employer to show that the reasons for the exclusion are
job-related and consistent with business necessity, or that
the person poses a direct threat to health or safety.
TITLE II: PUBLIC SERVICES (STATE AND
LOCAL GOVERNMENT)
Title II of the ADA prohibits discrimination against quali-
fied individuals with disabilities, which would exclude
them from participating in, or receiving the benefits of
services, programs, or activities of a public entity. A ‘public
entity’ includes any State or local government, depart-
ment, agency, special purpose district, or other instrumen-
tality of a State or States or local government. To be
‘qualified,’ an individual with a disability must, with or
without reasonable modifications to rules, policies, or prac-
tices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids
and services, meet the essential eligibility requirements for
the receipt of services or the participation in programs or
activities provided by a public entity.
Two federal Department of Justice (DOJ) regulations
are of particular significance for public sector psychiatry,
as well as institutional services in state psychiatric hos-
pitals, nursing homes and other residential facilities
run by state or local governments. First, the ‘integration
278 Civil law
regulation’ requires a ‘public entity [to] administer … pro-
grams … in the most integrated setting appropriate to the
needs of qualified individuals with disabilities.’ Further,
DOJ requires public entities to ‘make reasonable modifica-
tions’ to avoid ‘discrimination on the basis of disability,’
but does not require measures that would ‘fundamentally
alter’ the nature of the entity’s programs.
Title II of the ADA has been used to modify state pol-
icies and practices regarding institutional versus commu-
nity-based care for people with mental disabilities. In
Olmstead, et al. v. L.C. (by Zimring, guardian ad litem and
next friend), et al. (1999), the Supreme Court held that
Title II of the ADA requires states to place persons with
mental disabilities in community settings rather than in
institutions when the state’s treatment professionals have
determined that: (i) community placement is appropriate;
(ii) the transfer from institutional care to a less restrictive
setting is not opposed by the individual; and (iii) the
placement can be reasonably accommodated, taking into
account the resources available to the State and the needs
of others with mental disabilities. The Court emphasized
that nothing in the ADA or its implementing regulations
condones termination of institutional settings for persons
unable to handle or benefit from community settings. Nor
is there any federal requirement that community-based
treatment be imposed on patients who do not desire it.
Unlike many ADA analyses in which the individual’s
requested accommodation is judged against the financial
and administrative resources of the governmental entity,
the Court in Olmstead held that the state’s responsibility,
once it provides community-based treatment to qualified
persons with disabilities, is not boundless. States are not
required to fundamentally alter services and programs,
and states are not required to phase out institutions, pla-
cing patients in need of close supervision at risk. Under
the ruling, states may show that in the allocation of avail-
able resources immediate relief for the individual plain-
tiffs would be inequitable, given the responsibility the
State has undertaken for the care and treatment of a large
and diverse population of persons with mental disabili-
ties. The Court recognized states’ responsibilities to main-
tain a range of facilities, given individuals’ periodic needs
for higher levels of inpatient services. The Court gave an
example that if a state could demonstrate that it had a
comprehensive, effectively working plan for placing quali-
fied persons with mental disabilities in less restrictive set-
tings, and a waiting list that moved at a reasonable pace
not controlled by the state’s endeavors to keep its institu-
tions fully populated, the reasonable-modifications stand-
ard of Title II would be met.
The Olmstead case opens up significant opportunities
for expanding community mental health systems and for
real and substantial policy changes in the states. It affects
not only people in institutions, but also non-institutional-
ized individuals at risk of unnecessary institutionalization
due to lack of appropriate community services. Arguably,
this includes people who frequently cycle in and out of
hospitals as a result of a lack of community services,
individuals institutionalized through incarceration in jail
as a result of failure to provide mental health services, and
any other individuals with mental disabilities who are
receiving services in an unnecessarily segregated setting,
including nursing homes and children’s residential ser-
vices. At the time this chapter goes to press, many states are
likely to have developed comprehensive and effective
plans aimed at eliminating unnecessary institutionaliza-
tion, pursuant to the Olmstead decision.
Title II of the ADA continues to apply without limita-
tion to cities, counties and other entities of local govern-
ment. However, the future application of Title II of the
ADA to states (as opposed to local governments) is less
clear. On February 21, 2001, the United States Supreme
Court held in the case of Board of Directors of the Uni-
versity of Alabama v. Garrett that Congress did not have
the constitutional authority to waive the state’s Eleventh
Amendment ‘sovereign immunity,’ because Congress did
not specifically find discrimination by the states in justi-
fying passage of the Act. Thus, suits in federal court by
state employees can no longer recover money damages
under Title I of the ADA. (State services are subject to
Title II of the ADA, but state employment practices are
enforced via Title I, the same regulations that enforce pri-
vate employment practices under the ADA.) The majority
opinion in Garrett makes clear that individuals with dis-
abilities still have federal recourse against state employ-
ment discrimination, stating that the ADA still prescribes
standards applicable to the states. Those standards can be
enforced by the United States in actions for money dam-
ages, as well as by private individuals in actions for injunct-
ive relief (such as a court order reinstating a fired employee,
requiring a reasonable accommodation; or requiring the
employer to change a policy that violates Title I). The
Garrett decision concerns only suits by private individuals
against state employers. Thus, the United States may still
bring enforcement actions against state employers for vio-
lations of Title I, and it may still seek money damages (i.e.,
in suits brought by the Equal Employment Opportunity
Commission [EEOC] or the Justice Department).
As noted above, the Garrett decision does not bar suits
for money damages against local governments or private
employers. The Garrett decision does not currently affect
the validity of Title II of the ADA, although it is likely
that suits for money damages against states under Title II
(and other civil rights laws) will be challenged in the near
future. Even so, the Olmstead decision was not directly
impacted by the Supreme Court’s ruling in Garrett to the
extent that it did not involve money damages for individ-
ual plaintiffs. Thus, it is likely that advocates will continue
to encourage states’ efforts to comply with Olmstead by
reducing unnecessary institutionalization and creating
appropriate community mental health services, at least
in the near future.

TITLE III: PUBLIC ACCOMMODATIONS
AND COMMERCIAL FACILITIES IN
PRIVATE SECTOR
The ADA prohibits private entities from discriminating
against individuals on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privil-
eges, advantages, or accommodations of any place of
public accommodation. If the operations of a private entity
affects ‘commerce’ (travel, trade, commerce, transporta-
tion, or communication among the several States includ-
ing buying office supplies and other goods or services
produced in another state), it is a public accommodation.
Thus, the term ‘public accommodation’ includes all pri-
vately owned businesses that are open to the public such as
restaurants, hotels, theaters, stores, parks, day care centers,
social service agencies, gymnasiums, hospitals, physician’s
offices, etc.
Accessibility is to be achieved through:
• modification of policies, practices or procedures, unless
such modification fundamentally alters the nature of
the goods or services offered;
• the use of auxiliary aids and services (qualified inter-
preters, taped texts, modification of equipment), unless
the business can demonstrate undue hardship;
• removing existing barriers where such removal is
readily achievable (easily accomplishable without much
difficulty or expense); and
• if barrier removal is not readily achievable, then using
alternative methods of making goods and services
available if such methods are readily achievable.
Title III and the implementing regulations distinguish
between physical accessibility requirements for existing
buildings and new construction or significant alterations.
Title III also prohibits discrimination by private commer-
cial transportation services. Private clubs and religious
organizations that are exempt from coverage under the
Civil Rights Act are also exempt from coverage under
Title III of the ADA.
OTHER ISSUES RELATING TO PSYCHIATRY
Title II and/or Title III of the ADA apply to issues involv-
ing individuals with disabilities seeking professional
licensing, including licenses to practice medicine, law,
psychology, and nursing. Licensing authorities have been
challenged regarding their inquiries into the mental
health histories of applicants. Legal commentators have
argued that the professions can best be protected by
inquiries into problematic behaviors rather than inquir-
ing directly about mental illness, per se. In addition, edu-
cators and national testing services have guidelines for
Americans with Disabilities Act evaluations 279
documenting requests for accommodations during
board examinations (e.g., extended time, the use of type-
writers or computers, readers, etc.).
For example, the National Board of Medical Examiners
(NBME) has specific requirements for documentation of
ADHD and Learning Disabilities, including diagnostic
interviews, history, and academic records, as well as
psychoeducational and neuropsychological evaluations
of cognitive functioning and scholastic achievement
with specific tests recommended (and others specifically
excluded). A full description of the requirements for
accommodations is available through their website
(www.nbme.org). Briefly, documentation must include a
current diagnosis and an assessment of the current impact
of the individual’s disability on their ability to take the
NBME tests. Documentation must include the specific
diagnostic criteria and/or diagnostic tests used, including
dates of evaluation, test results and a detailed interpret-
ation of the test results. The report must describe in detail
the demonstrated impact on the person’s ability to take the
medical licensing examination, and a full description of
the current functional impact of the person’s physical, per-
ceptual or cognitive abilities on their ability to take the test.
Recommended accommodations must be specific with a
detailed description of why they are needed and how they
will reduce the impact of the identified functional limita-
tion. The report must also establish the professional cre-
dentials of the evaluator that qualify him or her to make
the particular diagnosis, including information about
license or certification and specialization in the area of
the diagnosis. If no prior accommodations have been
provided to the individual in the past, the qualified profes-
sional should include a detailed explanation of why
accommodations are needed now and why they were not
needed in the past.
Detailed requirements similar to those of the National
Medical Education Board are also used by many institu-
tions of higher learning as well as other licensing organ-
izations, including state bar associations, in determining
whether to grant additional testing time, readers, and
other reasonable accommodations to qualified individ-
uals with disabilities (Gordon and Keiser 1998). The ADA
allows organizations to make good faith determinations
regarding the documentation provided when requesting
a reasonable accommodation. By specifying the types of
measures used and other aspects of the disability evalu-
ation, these organizations not only avoid spurious claims
but also are likely to save time and money, both for them-
selves by standardizing the myriad applications they
must review and for applicants by ensuring that appropri-
ate assessment protocols are used the first time. In add-
ition, these requirements reflect the need to have current
documentation of disability in a person applying for rea-
sonable accommodations under the ADA. Some individ-
uals applying for accommodations will not have a history
of prior accommodations and thus will be assessed for the
280 Civil law
first time for disability. More often, however, individuals
will have documentation from childhood and adolescence
regarding their level of functioning at that time and sup-
porting accommodations in other circumstances. These
records are not irrelevant as they may provide historical
support for current disability, but they are not sufficient to
document current functioning. (For example, a develop-
mental disorder such as a learning disability or attention
deficit disorder typically originates in childhood although
not necessarily diagnosed at that time; any information
which demonstrates a history of impaired functioning in
childhood would be useful.) In addition, eligibility for spe-
cial education services in high school may be more lax
than the technical requirements of the ADA, in part due to
the different policy underlying access to a ‘free, appropri-
ate public education’ under special education laws. For
example, a finding of a specific learning disability under
special education laws often requires only a significant dis-
crepancy between ability and achievement within the indi-
vidual. However, a specific learning disability under the
ADA must show significant impairment relative to the
general population. Thus, a person with an IQ of 130
(superior range) but with a reading achievement of 100
(average range) has a discrepancy of two standard devia-
tions and might meet eligibility for additional services and
accommodations under special education laws, but not
under the ADA as their average reading achievement is not
impaired relative to that of the general population.
The technical legal interpretations regarding the ADA
are likely to continue to evolve, both through the Courts
and legislation (for example, how Title II of the ADA
applies to states). Regardless of these changes, the underly-
ing principles of the ADA will likely remain the same. The
forensic examiner will not be asked to make the ultimate
determination of whether the individual is or is not an
‘individual with a disability’ within the technical limita-
tions of the law. Rather, the examiner’s role is to provide
the referring attorney or court with a diagnosis, the basis
of that diagnosis, an explanation of the severity of the per-
son’s symptoms, and a detailed opinion regarding the
functional limitations of that particular individual in ref-
erence to the specific situation involved.
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28 C.F.R. Part 35, Nondiscrimination on the Basis of
Disability in State and Local Government Services; Final
Rule.
U.S. Department of Justice, Office of the Attorney General,
28 C.F.R. Part 36, Nondiscrimination on the Basis of
Disability by Public Accommodations and in
Commercial Facilities; Final Rule.
U.S. Department of Justice, Office of the Attorney General.
1992: Technical Assistance Manual: Title II [Internet].
Available at: www.usdoj.gov/crt/ada/adahom1
(accessed May 25, 2001).
U.S. Department of Justice, Office of the Attorney General.
1992: Technical Assistance Manual: Title III [Internet].
Available at: www.usdoj.gov/crt/ada/adahom1
(accessed May 25, 2001).
U.S. Equal Employment Opportunity Commission,
29 C.F.R. Part 1630, Equal Employment Opportunity
for Individuals with Disabilities; Final Rule. (See also:
www.eeoc.gov/regs/index)

U.S. Equal Employment Opportunity Commission. 1992:
A Technical Assistance Manual on the Employment
Provisions (Title I) of the Americans with Disabilities
Act. (See also: www.eeoc.gov/docs and
www.eeoc.gov/policy/guidance)
Americans with Disabilities Act evaluations 281
U.S. Equal Employment Opportunity Commission. 1997:
Enforcement Guidance on the ADA and Psychiatric
Disabilities. (See also: www.eeoc.gov/docs and
www.eeoc.gov/policy/guidance)
World Health Organization website: www.who.int/icdh
 31
Sexual harassment

LIZA H. GOLD

INTRODUCTION expert witness testimony on such issues, forensic psych-

iatrists must have a familiarity with the issues involved
in sexual harassment. In addition, they must also have
Sexual harassment has become one of the most contro- an understanding of the complicated interface between
versial issues of our time. The Supreme Court confirm- these issues and the law.
ation hearings of Clarence Thomas and the Navy Tailhook
scandal propelled the subject of sexual harassment into
national consciousness in the early 1990s. Media attention
to these controversies and the many highly publicized DEFINITION OF SEXUAL HARASSMENT
cases involving sexual harassment since then, including
the charges brought by Paula Jones against President Bill
Sexual harassment is a new area of law which arose from
Clinton, has resulted in a well-documented increase in
the civil rights and women’s movement of the 1960s and
workplace sexual harassment charges and lawsuits. In 1991,
1970s. Title VII of the Civil Rights Act of 1964 prohibited
6883 charges of sexual harassment were filed with the
discrimination based on sex, as well as race, color, reli-
Equal Employment Opportunity Commission (EEOC).
gion or national origin. This act also established the
In 2001, 15 475 charges were filed, an increase of over
EEOC, which has the power of enforcing the federal
120 per cent (EEOC web site: http://www.eeoc.gov).
prohibitions against such discrimination and litigating
The costs and awards associated with sexual harass-
violations of Title VII.
ment cases have also risen dramatically. In Weeks v. Baker
Sexual harassment is distinct from flirtation, flattery,
& McKenzie (1994), a secretary who was harassed by a
requests for a date and other acceptable behaviors which
partner in a law firm recovered $50 000 in compensatory
occur in a workplace. Its essential component is that it is
damages from both the firm and the partner; $225 000 in
‘unwelcome conduct,’ which lacks the elements of choice
punitive damages against the partner; and $3.5 million in
and mutuality inherent in a normal relationship. It is a
punitive damages against the firm. In 1998, Mitsubishi
type of coercion that relies on the power of the perpet-
paid a record $34 million to settle a class action sexual
rator to affect a victim’s economic status and does not
harassment lawsuit brought by the EEOC, in addition to
necessarily involve physical force. Sexual harassment also
about $10 million paid in 1997 to settle similar charges
encompasses gender discrimination, which may not have
brought in a private lawsuit. Although these individual
sexual motivations but still may have powerful personal
cases reflect unusually high awards, the typical costs of
and economic effects. A universally accepted definition of
such litigation are also increasing. In 2001, monetary reso-
every behavior that might be considered sexual harass-
lutions of EEOC charges, not including those obtained
ment does not exist. The legal definition of sexual harass-
through litigation, totaled $53 million (EEOC web site:
ment has evolved through administrative and case law.
http://www.eeoc.gov).
In 1980, the EEOC published the first specific guide-
Psychiatrists, retained by both defense and plaintiffs
lines defining sexual harassment. The EEOC defined
attorneys, are frequently called upon to make evaluations
harassment as ‘unwelcome sexual advances, requests for
of claimants and offer expert witness testimony in sexual
sexual favors, and other verbal or physical conduct of a
harassment litigation (Gold 2003). Our ability to provide
sexual nature.’ This conduct constitutes illegal sexual
expert assessments encompassing issues of proximate
harassment when:
cause, psychological damage, work impairment, treat-
ment recommendations and prognosis is an invaluable 1 Submission to such conduct is made either explicitly
service in attempting to clarify what are usually very or implicitly a term or condition of an individual’s
complex allegations. To provide credible evaluations and employment.

2 Submission to or rejection of such conduct by an
individual is used as the basis for employment deci-
sions affecting such individual.
3 Such conduct has the purpose or effect of unreason-
ably interfering with an individual’s work perform-
ance or creating an intimidating, hostile or offensive
working environment [EEOC (1980) 29 C.F.R.
§ 1604.11(a)].
The EEOC delineated two types of sexual harassment. In
quid pro quo harassment, work conditions or job bene-
fits are explicitly or implicitly contingent upon or involve
the exchange of sexual favors. Hostile environment sex-
ual harassment takes the form of continuous, frequent,
or repetitive patterns of offensive and unwelcome behav-
ior which adversely affects the terms or conditions of
employment. Such behavior may not affect the employee’s
job, salary or benefits, and may not necessarily even be
sexual in nature. This category encompasses discrimin-
ation on the basis of gender alone, and can include behav-
iors such as sexually oriented joking or teasing, unwelcome
display of sexual images or objects, unwelcome touching
or propositions, or hostile treatment on the basis of gen-
der alone.
HISTORY OF SEXUAL HARASSMENT LAW
In Williams v. Saxbe (1976), a court found for the first
time that quid pro quo sexual harassment was a form of
illegal sexual discrimination under Title VII. Meritor
Savings Bank, FSB v. Vinson (1986) was the first Supreme
Court case to directly consider issues related to sexual
harassment, and established that hostile environment
sexual harassment was a violation of Title VII. In hostile
environment cases, the Court stated that incidents must
be so pervasive, repetitive or severe that they alter the
conditions of employment and create an abusive work-
ing environment. Meritor also established that voluntary
participation on the part of the plaintiff did not legally
establish that the defendant’s actions were welcome.
In Harris v. Forklift Systems, Inc. (1993), the Supreme
Court unanimously ruled that a victim is not required to
have suffered psychological harm, nor prove that she was
psychologically injured to win monetary damages. The
presence of psychological harm is relevant to determin-
ing whether the victim found the environment abusive,
but not necessary in establishing illegal discrimination.
The Court also defined some of the circumstances which
must be assessed in sexual harassment. These include
the frequency and severity of the conduct, whether it
was physically threatening or humiliating and whether
it unreasonably interfered with an employee’s work
performance.
In Oncale v. Sundowner Offshore Services (1998), the
Court ruled that same sex harassment could constitute
an illegal form of sexual harassment under Title VII. The
Sexual harassment 283
Court found that harassing conduct did not need to be
motivated by sexual desire in order to be discriminatory
on the basis of sex. In Burlington Industries, Inc. v. Ellerth
(1998) and Faragher v. Boca Raton (1998), the Supreme
Court established an affirmative defense against liability
for employers under certain circumstances. The Court
held that an employer is always liable for a supervisor’s
harassment if it culminates in a tangible employment
action. However, if no tangible employment action
occurred, the employer may be able to avoid liability or
limit damages by demonstrating the two elements that
comprise an affirmative defense. These elements are that:
• the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior; and
• the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportun-
ities provided by the employer.
Legal action based on sexual harassment may be brought
in one or more of four areas: (i) Title VII complaints;
(ii) criminal charges; (iii) workers’ compensation claims;
and (iv) civil tort actions. Civil complaints can encom-
pass a variety of charges, including battery, wrongful
termination, or intentional or negligent infliction of
emotional distress. Tort actions are the most common,
though multiple causes of action are the rule in sexual
harassment cases. Tort cases are often filed in addition to
Title VII complaints. Harris established that Title VII
claims do not require evidence of harm. Torts such as
infliction of emotional distress do require a showing of
emotional damage or harm. However, plaintiffs typically
offer evidence of emotional harm in both types of action,
since proving such harm can significantly affect damage
awards.
THE QUALIFIED EXPERT
Federal Rule of Evidence 702 describes an expert as a per-
son qualified by knowledge, skill, experience, training
or education. In addition, ‘Qualification as an expert
witness is not generic but rather issue specific. Licensure
as a physician who practices psychiatry, or even a board
certification in psychiatry, should not, in and of itself,
result in qualification as an expert’ (Shuman 1995). Courts
may rule that the opinions of unqualified psychiatrists
offering expert testimony in sexual harassment cases are
incredible or inadmissible. Sexual harassment evalu-
ations involve a number of complex issues with which the
psychiatrist must have familiarity to formulate a credible
opinion. These include:
1 Research on sexual harassment.
2 Women’s psychology.
3 Stress and trauma responses.
4 Legal issues in sexual harassment evaluations.
284 Civil law
Sexual harassment research
Although early research on sexual harassment had numer-
ous methodological flaws, it did provide a great deal of
preliminary information regarding the scope of sexual
harassment and other related aspects of the phenomenon.
More sophisticated recent studies have addressed many
of the flaws of the first-generation research. These studies
have confirmed that sexual harassment is a widespread
phenomenon. They have verified many of the early find-
ings and have expanded understanding of the causes and
outcomes of sexual harassment (Fitzgerald, Swan, and
Fisher 1995; Gutek and Koss 1996; Dansky and Kilpatrick
1997; Fitzgerald et al. 1997a; Fitzgerald et al. 1997b; Gruber
1997; Fitzgerald et al. 1998; Fitzgerald, Drasgow, and
Magley 1999).
The best examples of the early research are the survey
studies conducted by the United States Merit Systems
Protection Board (USMSPB) in 1980, 1987 and 1994. In
a representative sample of more than 20 000 federal
employees, the USMSPB (1995) found that 44 per cent
of women and 19 per cent of men reported that they
had experienced some form of unwanted sexual atten-
tion during the preceding two-year period. The 1994
survey also found that the rates of sexual harassment
had remained stable since 1980. The majority of people
reporting such experiences were women, and the major-
ity of alleged harassers were men. The less severe forms of
sexual harassment behaviors are the most prevalent; the
most severe behaviors occur the least often. Actual or
attempted rape or assault was reported by 4 per cent of
women and 2 per cent of men (also see Gruber 1997).
Research has indicated that men experience different
types of behavior as sexual harassment than do women,
and that same sex harassment of men by men is a more
significant problem than previously thought (Berdahl,
Magley, and Waldo 1996; Waldo, Berdahl, and Fitzgerald
1998; Magley et al. 1999).
The employees who appear to be at greatest risk are
those who work exclusively or mostly with people of the
opposite sex and who are supervised by members of the
opposite sex. Women who work in occupations that have
been dominated historically by men report higher inci-
dences of sexual harassment. By far the most likely sources
of unwanted sexual attention were persons other than
supervisors of the victims. In the USMSPB (1995) study,
79 per cent of individuals identified as sources of harass-
ment were co-workers, and 14 per cent were supervisors.
Studies also revealed that the most common response
to sexual harassment is to ignore or avoid it, and the least
common response is to formally report it. Studies consist-
ently find that 15 per cent or less of individuals who
report experiencing sexual harassment made formal
complaints. The most common reason given by victims
for not taking formal action was that they didn’t think
the offense was serious enough to warrant this response.
However, fears of adverse effects on work situation or
careers, beliefs that nothing would be done, and fears of
retaliation following a complaint are other reasons women
report not filing formal complaints (Fitzgerald, Swan, and
Fisher 1995; USMSPB 1995). Receiving poor work per-
formance evaluations or being transferred or terminated
after filing complaints are common experiences. Other
difficulties associated with pursuing a complaint include
financial costs, stress on family or marital relationships,
and career losses. Due to these difficulties, the emotional
costs of making a formal complaint can be higher than
those which ensue from the original harassment. Many
women reported choosing to leave their jobs or apply for
transfers rather than go through a formal complaint pro-
cess (Fitzgerald, Swan, and Fisher 1995; USMSPB 1995;
Gutek and Koss 1996; Fitzgerald et al. 1997a; Schneider,
Swan and Fitzgerald 1997).
Studies also indicate that many women report some
degree of physical or psychological distress associated
with experiences of sexual harassment. Anger, depressed
mood, shame, suspiciousness and mistrust, and impaired
concentration, sleep disturbances, and anxiety have been
reported. More severe psychological and work related
outcomes are correlated with more severe harassment
(Hamilton et al. 1987; Charney and Russell 1994; Lenhart
1996; Dansky and Kilpatrick 1997; Fitzgerald et al. 1997a;
Schneider, Swan, and Fitzgerald 1997). The most com-
mon psychiatric diagnoses reported in association with
sexual harassment are posttraumatic stress disorder
(PTSD), and any of the adjustment, mood or anxiety dis-
orders (Shrier 1996; Dansky and Kilpatrick 1997). Some
evidence that suggests an increased association between
experiences of sexual harassment and diagnoses of PTSD
and depression does exist (Dansky and Kilpatrick 1997).
However, no studies have found that sexual harassment
directly results in the development of any specific psychi-
atric disorder or diagnosis.
Women’s psychology
A new understanding of the psychology of women has
developed during the past twenty years. A full discussion
of this topic is beyond the scope of this chapter. Of note,
however, is that these psychological theories have moved
away from the traditional Freudian approaches, which
contain a variety of hidden gender biases and tend to
emphasize intrapsychic factors (Unger and Crawford
1996). Traditional psychiatric theory tends to interpret
reports of abuse or victimization as fantasy or evidence
of personality disorder. Similarly, in legal practice, reports
by women of experiences with which men have no analo-
gous experiences are often deemed to lack credibility or
to not be very serious (Schafran 1995).
Newer models of the psychology attempt to provide a
different framework for understanding the experiences
of women. This framework provides corrective features
that can minimize the hidden gender biases in traditional

theory. The cornerstone of the new psychology of women
is an appreciation for the power of relationship and con-
nection in women’s lives. The traditionally disadvantaged
status of women in our society and women’s difficulties
with expressing anger, when framed in the context of
the high value of relationships, adds an essential perspec-
tive to understanding the impact of sexual harassment
on women and their responses to it (Jordan et al. 1991;
Unger and Crawford 1996; Jordan 1997; Miller and Stiver
1997).
Stress and trauma responses
The diagnosis of PTSD is a preferred plaintiff ’s diagnosis
in sexual harassment litigation (Long 1994) because it
implies single causation, and because it focuses on the
event rather than the individual. Clinicians and forensic
evaluators frequently and mistakenly diagnose any stress
related response or symptom as PTSD (Rosen 1995).
Indeed, most people exposed to various types of trauma
do not develop PTSD: studies indicate that the average
incidence after exposure to trauma is between 10 and 25
per cent, although this can vary with the type of trauma
experienced. The highest risk of PTSD is associated with
rape (49 per cent), severe physical assault (31.9 per cent),
and sexual assault other than rape (23.7 per cent) (Breslau
1998).
However, research consistently indicates that only a
small minority of sexual harassment experiences involve
rape (see above). Most sexual harassment consists of less
severe behaviors, such as gender harassment and certain
forms of unwanted sexual attention including sexual
teasing, jokes, remarks or questions. Exposure to less
severe behaviors can be distressing and stressful, and may
result in a variety of psychological symptoms, some of
which may meet DSM-IV criteria for various diagnoses.
However, such experiences are unlikely to result in the
development of PTSD without the presence of some pre-
existing psychological vulnerability. This is consistent
with research findings that indicate that vulnerability fac-
tors often play a significant role generally in individuals
who develop PTSD (Davidson and Foa 1993; Green 1995;
Breslau 1998; Simon 1999).
Typically, the misuse or overutilization of the diagno-
sis of PTSD results from ignoring the DSM-IV criteria.
When these criteria are applied appropriately and object-
ively, the potential for an inaccurate use of the diagnosis
is minimized (Simon 1995). Even when a claimant’s
symptoms meet the DSM-IV criteria for PTSD, the
forensic evaluator must bear in mind that the alleged
sexual harassment is not necessarily the proximate cause.
Pre-existing or concurrent trauma, as well as other psycho-
social stressors, may be significant and must be evalu-
ated. When the stressor experienced is not outside the
range of common experience, the evidence often tends
to support a finding that it is not the proximate cause of
Sexual harassment 285
a PTSD diagnosis. Indeed, a very profound response to
what most would consider a minor stressor raises both
the issue of malingering and individual susceptibility to
psychiatric comorbidity.
Legal issues in sexual harassment
evaluations
Legal terminology which arises in the forensic evaluation
of sexual harassment claims includes the concepts of
‘welcomeness,’ ‘reasonableness,’ and ‘hypersensitivity.’
Psychiatrists are frequently asked to evaluate whether
the plaintiff ’s behavior or responses indicated that the
alleged conduct was welcome, whether she responded
reasonably, or whether the plaintiff overreacted to or mis-
perceived acceptable behaviors as sexual harassment due
to unusually heightened sensitivity. Typically, the evalu-
ation of these issues leads to the question of whether the
plaintiff had a preexisting personality disorder.
Just as plaintiff ’s experts favor a diagnosis of PTSD,
defense experts favor diagnoses which often include
borderline, narcissistic or histrionic personality disorder
(Long 1994). Although the diagnosis of a personality
disorder is intended to undermine the credibility of a
complainant, the constellation of personality traits and
coping responses associated with a personality disorder
diagnosis are clearly relevant in the evaluation of sexual
harassment. The question of an individual’s tendency to
invite, misinterpret, distort or overreact to the behaviors
of others is a critical part of a sexual harassment assess-
ment, whether due to borderline personality disorder or
any other psychological process, such as an underlying
psychosis.
Women who have experienced sexual harassment
often appear histrionic, angry or unstable on evaluation.
Commonly seen workplace responses to sexual harass-
ment include defensive, angry or self-defeating responses,
even in women with no evidence of pre-existing psychi-
atric disorders. Other common responses include denial,
which, if the harassment continues, may result in anger
and emotional flooding. These in turn can precipitate
disorganized behaviors, impulsive withdrawal from the
workplace, and disrupted interpersonal relationships.
These reactions can result in poor work performance
reviews, lack of advancement or termination, and dam-
aged relationships (Lenhart 1996). Such behaviors and
their consequences ultimately diminish a claimant’s cred-
ibility and are often considered evidence of a pre-existing
personality disorder.
The association of the personality disorders typically
diagnosed in sexual harassment cases with histories of
victimization has been well documented (Herman 1992;
Simon 1995; Zanarini 1997). Such women also are reported
to have an increased vulnerability to all types of revictim-
ization (Kluft 1990; Chu 1992; Messman and Long 1996).
Therefore, it is not uncommon for individuals bringing
286 Civil law
complaints of sexual harassment to meet the criteria for
a personality disorder. Indeed, women with pre-existing
personality disorders can develop PTSD as a result of
revictimization, including some forms of sexual harass-
ment. However, individuals with pre-existing personality
disorders typically have histories of chaotic lives and
problematic interpersonal relationships across all spheres
of functioning, including employment.
A credible diagnosis of a personality disorder should
be based on a history that reveals the sorts of patterns
consistent with lifelong, pervasive and inflexible patterns
of maladaptive coping. For example, repeated and fre-
quent misinterpretation of comments, reports of prior
unsubstantiated claims of inappropriate behavior, and
repeated interpersonal conflicts and employment com-
plaints might be evidence which supports a diagnosis of
a pre-existing personality disorder. Psychological testing
can provide valuable data in making this diagnostic
determination.
PSYCHIATRIC ISSUES IN SEXUAL
HARASSMENT CLAIMS
Psychiatric issues in sexual harassment litigation include:
causation; damages; diagnoses; psychological symptoms;
and treatment and prognosis. These determinations
require special attention to identifying specific disorders,
alternate causation, general characteristics of a person’s
functioning, and likelihood for recovery. Questions
regarding prognosis, with and without treatment, include
an assessment of the individual’s motivation for recovery.
All these elements are relevant to the determination of the
extent of psychological injury and legal damages.
Although we cannot assume that the plaintiff ’s reports
of harassment are true, we must also avoid assuming that
her current emotional state and level of functioning are
the cause rather than the result of the workplace situation.
Plaintiff ’s experts frequently stop at the alleged trauma,
and defense experts often stop at a diagnosis of personal-
ity disorder. A credible forensic evaluation must consider
that either explanation might be valid and look for evi-
dence which would support one conclusion or the other.
The forensic evaluator must consider the totality of the
situation by examining the type, degree and duration of
the sexual harassment, current disturbances which may
have been caused by the harassment, and pre-existing Axis
I or II disorders which may have exacerbated the individ-
ual’s response.
The severity and type of emotional, physical, interper-
sonal and economic consequences of sexual harassment
vary considerably. The outcome of sexual harassment
experiences is related to a combination of the character-
istics of the harassment, the responses of the institution
to the individual or the harassment, and the circum-
stances of the situation. The availability of support inside
and outside the workplace to the victim is also a highly
significant factor in outcome. Finally, the individual’s
resources, strengths, vulnerabilities and past history will
affect both the perception and the impact of sexual
harassment experiences on that individual. A complete
assessment of sexual harassment claims requires an exam-
ination of these factors as well as the effects of:
• litigation, commonly acknowledged to be extremely
stressful (Lenhart and Shrier 1996; Strasburger 1999);
• retaliation, which may be distinct clinically and legally
from the harassment;
• underlying medical conditions or medications which
may cause psychological symptoms;
• previous or concurrent trauma or stress; and
• the use of drugs and alcohol, frequently found in indi-
viduals responding to stress.
The issues of functional impairment, prognosis and
potential recovery are integral in damage assessments.
Rarely is any individual totally disabled, either mentally
or physically. A diagnosis, no matter how ominous, does
not imply a given level of impairment or potential for
recovery. Current level of impairment is assessed through
the claimant’s history, behavior and examination find-
ings. The claimant’s pre- and post-incident functional
capacities must be compared. Prognostic opinions must
be based on an assessment of functioning, the effects of
pre-existing and current psychiatric status, and the effects
of treatment. The natural history of the current psychi-
atric diagnosis and the effects of rehabilitation and treat-
ment form one element of the long-term assessment of
impairment.
The assessment of the claimant’s motivation for
recovery and willingness to enter treatment is another
critical element in prognostic assessment. Even minimal
impairment may lead to permanent disability when the
claimant is not motivated to recover. Motivation for treat-
ment can be particularly problematic in the context of
litigation. Although plaintiffs are legally obligated to try
to minimize damages, the ongoing presence of more
severe symptoms and functional impairment may result
in a better legal and financial outcome. Comparison of
the claimant’s personality, behavior and functioning
before and after the alleged incident is crucial in such
determinations (Simon 1995).
GUIDELINES FOR ASSESSMENT IN SEXUAL
HARASSMENT CLAIMS
Forensic evaluations in sexual harassment cases are sub-
ject to many types of bias: personal, social, political, pro-
fessional, those related to gender and those inherent in
participation in the adversarial system of justice (Gold
1998). Adherence to guidelines which promote good
principles of forensic practice can help the evaluator

minimize the effects of these biases and provide credible
assessments and testimony which will stand up under
cross-examination in fiercely litigated sexual harassment
cases (Simon 1996; Simon and Wettstein 1997). Suggested
guidelines include:
1 Maintain neutrality. Avoid making assumptions
about the facts of a case which can prejudice opinions.
In addition, the evaluator should avoid occupying
both the role of the treating clinician and the forensic
expert (Simon and Wettstein 1997). Sexual harassment
cases present difficulties in combining the two roles
beyond the usual problems associated with ‘wearing
two hats’ (Strasburger, Gutheil, and Brodsky 1997).
When a patient alleges sexual harassment, experi-
enced clinicians have recommended adopting an
initial treatment stance of assuming that the report
of harassment is true (Charney and Russell 1994;
Shrier and Hamilton 1996). This recommended clini-
cal stance and the necessarily neutral forensic stance
are obviously incompatible.
2 Review all available documents, including medical,
psychiatric, legal, and employment records. In cases
where civil charges are filed in conjunction with or
after the filing of criminal charges such as assault,
battery or rape, police records may be available. These
records may include the original complaint as well as
interviews of the complainant, the alleged perpetrator,
and witnesses, and should also be reviewed if available.
Attorneys will frequently try to minimize costs by
editing the material provided to the forensic consult-
ant for review. This can present credibility problems at
the time of testimony, and may well result in overlook-
ing data crucial to the formulation of an informed
opinion.
3 Assess mental status, diagnosis and functioning only
through personal contact with the individual in ques-
tion, in combination with record review. Such evalua-
tions may require interviews with significant others,
such as family members and friends.
4 Obtain as extensive a personal history from the
claimant and the records as possible. This includes
review of past and current sources of trauma, such
as childhood sexual abuse, domestic violence, and
assaults, and review of the claimant’s litigation history,
employment history, and history of interpersonal
relationships.
5 Decline any case in which the opinions being sought are
outside the area of the clinician’s expertise. Attorneys
will frequently push an expert into giving opinions
beyond the boundaries of his training and experience.
This may result in rendering his testimony inadmissible
under a Daubert (Daubert v. Merrell Dow Pharmaceut-
icals, Inc. 1993) challenge (McCandless and Schickman
1989; McDonald and Lees-Haley 1995; McDonald
1998). Sexual harassment cases present many opportun-
ities for the expert to cross this boundary.
Sexual harassment 287
6 Formulate opinions based on experience, training and
knowledge. The Daubert v. Merrell Dow Pharmaceut-
icals, Inc. (1993) and Kumho Tire Co. v. Carmichael
(1999) decisions require that expert testimony based
on scientific knowledge be methodologically sound
and defensible. This requires familiarity with the know-
ledge base behind one’s opinions, and its strengths
and weaknesses (McDonald and Lees-Haley 1995;
McDonald 1998).
7 Assess each case on its own merits, and be prepared to
defend opinions with specific facts and data. Daubert
also requires that the scientific expertise presented as
expert testimony be relevant. Only familiarity with
the specific facts of the case and the pertinent data can
ensure that the testimony is relevant to the case.
CONCLUSION
The behaviors described by the law as illegal employment
discrimination are only a subset of the wide variety of
behaviors that can be considered sexual harassment. The
complex nature of human relationships and behavior
defies the development of social or legal formulas defin-
ing when conduct is offensive, and when offensive con-
duct is illegal. In providing expert testimony, psychiatrists
are asked to evaluate the effects of many experiences
alleged to be sexual harassment. When doing so, we
should bear in mind that whether a behavior is ultimately
determined to be illegal employment discrimination is
the purview of the court.
Nevertheless, forensic psychiatrists can offer expert
opinions and testimony regarding the various legal and
psychological aspects of sexual harassment. Such testi-
mony can assist the court in clarifying the unusually com-
plex issues that arise in this type of employment litigation.
Reliable and admissible expert opinions must be grounded
in relevant literature and arrived at by employing accepted
forensic and diagnostic methodology (Jorgenson and Wahl
2000). Credible opinions, based on such expertise and
guided by forensic ethics and methodology, are of value
to the legal system and will withstand both Daubert chal-
lenges and cross-examination.
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Trauma-induced psychiatric disorders and
civil law
STUART B. KLEINMAN AND SUSAN B. EGAN
INTRODUCTION
Negligent behavior that produces harm to a person is
termed a ‘tort’ (Slovenko 1973). Society, represented by a
judge or jury, may award the injured party money in an
effort to make him or her whole. When psychiatric
injuries are alleged, the forensic examiner must deter-
mine whether the injury claimed is genuine rather than
malingered, and specify the nature, extent, and prognosis
of any harm suffered.
The Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV) (American Psychi-
atric Association 1994) specifies only four types of
psychiatric disorders as resulting from stressful external
events: posttraumatic stress disorder (PTSD); adjust-
ment disorder; acute stress disorder; and brief psychotic
disorder (with marked stressors). However, other disorders,
for example, panic disorder – if not caused by external
events – can at least be triggered or precipitated by them.
Moreover, compensable injuries are not limited to the
development of a psychiatric disorder, and may also
include disturbed occupational or social functioning, for
example, inability of a mother who witnessed a murder
and suffers from PTSD to take her four-year-old child
outside for walks due to anxiety regarding safety. Add-
itionally, trauma may induce fundamental changes in
an individual’s experience of him/herself and/or his/her
world, leading some to feel anxiously ‘weak’ and/or
depressively ‘bad,’ and to perceive the world as frighten-
ingly and/or despairingly ‘cruel.’
Compensation may also be awarded for psychiatric
injuries produced by workplace events that violate Federal
(or state) law; for example, Title VII of the 1964 Civil
Rights Act, or for failure to accommodate disabling psy-
chiatric disorders at the workplace when the Americans
with Disabilities Act (ADA) is contravened.
Prognostication of the course of psychiatric injuries is
often difficult, and includes evaluation of the effect of
32
anticipated monetary compensation as well as the litiga-
tion process itself. The ‘greenback poultice’ or compensa-
tion neurosis (Modlin 1986), which refers to the curative
effect of a wad of dollar bills upon a plaintiff ’s forehead,
remains a controversial issue.
Litigation is often driven by hurt, anger, avarice,
and/or pride, and may serve, often unwittingly, as a stage
for expression of both trauma engendered and displaced
wishes and conflicts.
DIAGNOSIS OF PTSD
Legal utility
Claims of PTSD are particularly popular in personal
injury actions. As one legal commentator stated wryly:
‘… if mental disorders were listed on the New York Stock
Exchange, PTSD would be a growth stock worth watch-
ing.’ (Lees-Haley 1986). Such claims are, in part, popular
because diagnosis of this condition indicates that an
individual experienced an extreme trauma, and ‘because
it [the diagnosis] creates a presumption of causation’
(Brown 1996). Determination of causation of PTSD and
responsibility for damages can, nevertheless, be complex,
especially when an individual has experienced more than
one traumatic event.
Predictors of PTSD
Many demographic, social, and psychiatric factors have
been associated with development and persistence of
PTSD (Simon 1999; Freedman et al. 1999; King et al.
1999; Saigh and Bremner 1999). These include:
• type of trauma;
• nature of symptoms;
• prolonged childhood separation;

• childhood abuse;
• age;
• gender;
• contemporary stressors;
• family psychiatric history;
• social support; and
• mental health treatment.
PTSD results from a complex interaction between a stres-
sor and a host of influences residing inside and outside
an individual. Higher ‘doses’ of a given stressor and prior
trauma are associated with a significantly increased risk
for development of PTSD, and peritraumatic dissociation
(Koopman, Classen, and Spiegel 1994) may herald its
onset or foreshadow its continuation (Shalev et al. 1996).
Breslau and Davis (1992) found that separation from
parents, family history of anxiety, pre-existing anxiety or
depression and neuroticism increased the odds for both
chronic and non-chronic PTSD, while family history of
antisocial behavior and female gender were specifically
associated with chronic PTSD. Breslau et al. (1998) also
determined that having a psychiatric history in and of
itself was a stronger predictor of PTSD than specifically
having a history of a mood, anxiety or substance abuse
disorder. Green et al. (2000) found that those who had
experienced multiple traumas suffered worse outcomes
than those who had experienced a single trauma, and
that those who had suffered interpersonal traumas were
more distressed than those who had suffered only non-
interpersonal events. In Green et al.’s study of 1909 college
students, 65 per cent had suffered at least one traumatic
event and 80–85 per cent of these individuals had experi-
enced at least one other traumatic event.
Neurobiological factors may increase the risk for devel-
opment of PTSD. One study (Gurvits et al. 2000) found
greater neurodevelopmental problems, for example,
learning problems, motor hyperreactivity, in those who
developed PTSD, while another (Resnick et al. 1995) found
that those at greater risk by virtue of exposure to prior trau-
mas also had lower cortisol levels shortly after being raped.
No one factor, or combination of factors, necessarily
leads to PTSD, and little remains understood about how
some individuals are able to tolerate even the most over-
whelming trauma. Prognosis is ultimately a clinical judg-
ment informed by examination data, records, and relevant
research findings. The heterogeneity and complexity of
PTSD make it unlikely that, particularly in forensic con-
texts, a single, reliable and valid biological or psychological
prognosticator will soon be developed.
The stressor criteria
PTSD and acute stress disorder (ASD) are the only diag-
noses in the DSM-IV that are defined as resulting from an
‘[extreme] traumatic’ event. Ever since PTSD was (offi-
cially) recognized as a diagnostic entity, efforts have been
underway to clarify the meaning of a ‘traumatic event.’
Trauma-induced psychiatric disorders and civil law 291
The DSM-III (American Psychiatric Association
1980) described the inciting PTSD stressor as outside the
usual range of human experience. That definition, in
part because disturbing events are common, was highly
problematic. Solomon and Davidson (1997), for exam-
ple, reported lifetime prevalence rates of trauma from 39
per cent to over 70 per cent.
In 1994, the stressor criteria were significantly modi-
fied. According to the DSM-IV (American Psychiatric
Association 1994), exposure to an ‘extreme traumatic
stressor,’ defined as ‘actual or threatened death or serious
injury, or a threat to the physical integrity of self or
others,’ that induces ‘intense fear, helplessness, or horror’
is necessary to develop PTSD.
Examples listed in the DSM-IV of ‘extreme traumatic
stressor(s)’ include:
• military combat;
• violent personal assault;
• being kidnapped;
• being taken hostage;
• terrorist attack;
• torture;
• incarceration as a prisoner of war or in a concentra-
tion camp; and
• natural or man-made disasters.
Sometimes, individuals develop PTSD-type symptoms
after confronting non-extreme stressors, for example,
repetitive nasty criticism or lewd language. Because
‘information’ generated by a life event, including events
which are not extreme, appears to be commonly pro-
cessed in a manner which generates oscillations between
intrusive/reliving and avoidance/numbing phenomena
(Horowitz 1986), and individuals may react intensely to
personally meaningful occurrences which objectively are
not seriously threatening, the presence of PTSD-type
symptoms is not a reliable indicator of the magnitude of
a precipitating life event.
Many factors determine the impact of an adverse life
event, including:
• nature of the event;
• perception of the event;
• an individual’s biological make-up; and
• response of an individual’s social milieu to the event
and the person who experienced the event.
Perception of an event is influenced by such (interrelated)
variables as personality and life history. Although signifi-
cant PTSD-type symptoms can be triggered by non-
extreme stressors, generally the more severe the life event,
the greater the resultant difficulties. Confronting immi-
nent death and/or sexual penetration, and witnessing
grotesque sights, for example, decapitation, mutilation,
are particularly likely to produce severe symptoms.
Lack of fulfillment of the diagnostic criteria for PTSD is
not commensurate with lack of significant distress. The
diagnoses of adjustment disorder, and particularly those of
292 Civil law
anxiety disorder not otherwise specified and/or depressive
disorder not otherwise specified, may be used to describe
meaningful pathology produced by non-extreme stressors.
Psychological fragility that creates or significantly com-
pounds a response to a life event does not bar recovery in
personal injury cases. According to the ‘eggshell’ or ‘thin
skull’ doctrine, which is based in common law, the wrong-
doer is obliged to take his or her victims as he/she finds
them, however frail they may be, and is liable both for
exacerbation of a pre-existing injury and any new injury.
Such liability, however, may not apply or be limited in
actions for compensatory damages for sexual harassment
under Title VII. In such cases, a plaintiff may not be
entitled to damages emanating from pre-existing fragility/
hypersensitivity unless the harassment also would have
(significantly) distressed the ‘ordinarily sensitive person,’
for example, McKinnon v. Kwong Wah Restaurant (1996). If
it is determined that it would have, the plaintiff can recover
for all of the damages associated with his or her ‘thin skull.’
Trauma history
Assessment of (psychological) causation can be complex.
When an individual has suffered past and contemporary
trauma, and symptoms comprising PTSD are present,
the examiner must determine whether:
• the PTSD is a new disorder caused by the recent trauma;
• the PTSD is a previously undiagnosed or undetected
condition caused by prior trauma;
• the recent trauma triggered certain symptoms which
emanate from PTSD caused by a prior trauma (more
likely if the prior trauma was of greater magnitude
than the recent trauma);
• interaction between the recent and prior traumas
caused the PTSD, or each of these traumas independ-
ently produced a PTSD.
Because knowledge of prior traumas is necessary for full
understanding of an individual’s response to a contem-
porary event, an examiner should take a complete trauma
history. Such a history includes exploration of whether
the claimant experienced physical or sexual abuse, or
witnessed domestic violence during childhood, and age
of onset, duration, frequency, nature and identity of the
perpetrator(s) of any such abuse. A neighbor once fondling
a child’s buttocks when the child was twelve years old, for
example, typically produces a significantly different effect
than a father repeatedly raping his daughter from the
time she was five to eleven years old.
When considering physical abuse, head injuries should
be particularly explored. Neurologic status may affect
development and prognosis of PTSD, and create diagnos-
tic issues, for example, whether an individual’s irritability
originates neurologically, psychologically, or both.
Another area of inquiry should be military experiences,
especially those of combat. It is important to determine the
nature and duration of combat activities, whether there
was involvement in atrocities, and whether friends were
killed. Involvement in long-distance reconnaissance, for
example, has been found to be associated with severe and
enduring PTSD (Wilson and Zigelbaum 1983).
A history of criminal victimizations, including how
any such events were perceived, should be obtained. The
meaning that an individual ascribes to an event mediates
its effect. For example, a mugging in which a middle-
aged woman is robbed by a young male with a knife may
be experienced in different ways. One woman may focus
upon the trembling hand holding the knife, interpret the
youth’s shaking as an indication of inexperience, con-
clude he is likely to bungle the mugging and panic, stab
and kill her, and be filled with terror. Another woman
may attribute his shaking to fear, interpret his youth as a
sign of lack of maliciousness – that is, ‘he is really just a
boy’ – conclude he does not intend to physically harm
her, and not be overwhelmed with fear. The extent to
which an individual believes that his or her life or phys-
ical well-being is threatened (by a genuinely endangering
event) correlates with development of PTSD.
Other life events that should be investigated include
human-made disasters, for example, accidental fires, nat-
urally occurring disasters, and serious automobile acci-
dents. When more than one individual has been involved
in a traumatic event, it is important to learn the nature of
the relationship of the examinee to the other individuals
and the meaning of the others’ injuries (or lack of injuries)
to him/her.
Malingering
Because of its legal utility, PTSD is particularly likely to
be malingered. One commonly used marker for detecting
malingering is discordance between affect and content.
A smiling, energetic disposition throughout a three-hour
interview, for example, suggests an absence of (severe)
depression.
Because some individuals with genuine PTSD may
dissociatively numb their pain, especially while recount-
ing their trauma, a lack of overt distress does not neces-
sarily reflect an absence of distress. The seeming paralysis
of affect which may immediately follow a traumatic event
and generate the impression that its victim is unaffected
was long ago termed ‘frozen fright’ by Symmonds (1982).
In 1991, Resick and colleagues found that rape victims
with PTSD may be less animated while discussing their
assault than rape victims without PTSD. Clinical judg-
ment must be carefully exercised in determining the
significance of discrepant affect.
Malingering may also be suggested by:
• recitation of all DSM-IV listed PTSD phenomena –
such recitation suggests memorization of the DSM-IV
diagnostic criteria;

• lack of nuanced description of PTSD symptoms –
certain PTSD symptoms, for example, nightmares,
tend to present in characteristic ways. Those malin-
gering PTSD typically do not possess symptom spe-
cific knowledge;
• inability to provide detailed examples of how PTSD
symptoms affect everyday activities;
• absence of spontaneous display of hyperarousal
symptoms; and
• reporting symptoms to be static – PTSD symptoms
typically fluctuate.
Nightmares are a prototypical PTSD phenomenon, but
are very difficult to verify. Bed partners may report the
presence of sleep disturbance and/or that the examinee has
complained of nightmares, but are generally not finan-
cially disinterested parties, and except in unusual circum-
stances depend on the examinee for knowledge of the
content of his or her dreams. Data suggest that PTSD
nightmares, unlike non-PTSD nightmares, may not occur
exclusively during rapid eye-movement (REM) sleep
(Hartmann 1984; Kramer, Schoen, and Kenney 1984; van
der Kolk et al. 1984). A sleep study might help detect such
nightmares. Wave tracings, however, cannot illuminate
the content of nightmares.
Psychologic testing
Psychologic testing may aid in the determination of
whether an examinee’s PTSD symptoms are malingered.
It may be particularly useful or indicated when:
• an examinee is highly guarded during face-to-face
interviews;
• malingering is strongly suspected or questioned;
• diagnosis is unclear; and/or
• an examinee’s reaction to the litigated event appears
to be distorted or exaggerated.
The Minnesota Multiphasic Personality Inventory-2
(MMPI-2) (Butcher et al. 1989) and the Million Clinical
Multiaxial Inventory-III (MCMI-III) (Millon, Davis, and
Millon 1994) can be very helpful. The Impact of Event
Scale (IES) (Horowitz, Wilner, and Alvarez 1979), a self-
report instrument which measures avoidance and intru-
sive symptomatology, and the Clinician Administered
Posttraumatic Stress Scale (CAPS) (Blake et al. 1990), a
structured interview for assessing PTSD, are useful research
tools, but offer limited assistance in forensic settings.
Data generated by psychologic testing should be con-
sidered within the context of all available information,
and the strengths and weaknesses of each test employed.
Of all tests used to evaluate PTSD, the MMPI-II is
likely the most widely administered and potentially the
most forensically helpful. It should, however, be used
with the understanding that its sensitivity and specificity
in detecting malingering of PTSD is not entirely clear.
One review found that it correctly identified real and
Trauma-induced psychiatric disorders and civil law 293
fabricated PTSD over 90 per cent of the time (Lating,
Zeichner, and Keane 1995), but another found that it did
so in only a little over 40 per cent of subjects (Perconte
and Goreczny 1990). Potentially problematic is its depend-
ence upon an examinee’s characterization of an event as
traumatic. An event which does not represent an extreme
stressor, but which is perceived as such, can erroneously
generate a diagnosis of PTSD. The CAPS, unlike the
MMPI-II, was explicitly developed to aid diagnosing
PTSD (Blake et al. 1995), but its forensic utility is limited.
Varying applications of its scoring system have led to wide
disparities in its rate of diagnosis of PTSD (Blanchard
et al. 1995), and its ability to detect malingering has been
inadequately assessed. The IES does not contain a validity
scale, can be readily malingered, and does not fully com-
port with the DSM-IV PTSD diagnostic criteria. The
MCMI-III contains a validity scale and may significantly
support evaluation of an individual’s mode of perceiving
and experiencing events. However, its ability to identify
PTSD is not as well studied as that of the MMPI-II and,
like the MMPI-II, it relies entirely upon an examinee’s
characterization of an event as traumatic.
Psychophysiologic testing
Psychophysiologic testing may be a useful adjunctive
technique for assessing PTSD, as those with this disorder
often suffer prominent physiological disturbances. Long
before the introduction of the diagnosis of PTSD in
1980, Kardiner (1941) recognized the hyperarousal experi-
enced by those with this condition, and labeled this
entity a physioneurosis. Measurement of heart rate, skin
conductance, and muscle contraction in response to a
standard or idiosyncratic provocative, usually auditory,
stimulus (Saigh and Bremner 1999) has been successfully
utilized to detect PTSD in Vietnam War veterans (Pitman
et al. 1987), Korean and World War II veterans (Orr et al.
1993), Israeli victims of rape and terrorism, Israeli com-
bat veterans, and Israelis involved in automotive accidents
(Orr and Pitman 1991; Shalev, Orr, and Pitman 1993). This
methodology, however, is problematic in a forensic set-
ting. Idiosyncratic testing relies upon scripts generated
from a subject’s descriptions of (actual) life events. After
a script is created, it is played back to the subject and the
subject is asked to imagine the life event as vividly as pos-
sible (Orr and Pitman 1993). An examinee could manipu-
late this process, for example, by misrepresenting the
source event. Particularly when the nature of an event is
disputed, reliance upon inadequately corroborated infor-
mation may create significant distortion. An examinee
could also undetectedly imagine a scene more disturbing
than the litigated event or focus on a fictitious trauma
and potentially produce a falsely elevated result. Some 25
per cent of subjects (Vietnam combat veterans without
PTSD) who were instructed to respond to their scripts as
if they had PTSD were misidentified as PTSD physiologic
294 Civil law
responders by Orr and Pitman (1993). Test takers with
greater motivation, for example, procurement of free-
dom or large amounts of money, might simulate PTSD
responses even more successfully. Additionally those with
antisocial personality disorder might conceivably fake
PTSD responses better than those without this condition.
However, because those with this disorder (or significant
features of this disorder) may respond in a physiologic-
ally muted fashion to anxiety inducing stimuli, their
ability to fool this test is quite unclear. Orr and Pitman
did not differentiate successful deceivers by personal-
ity type.
Because of the many difficulties associated with it, the
admissibility of psychophysiologic testing is unclear.
TRAUMA IN THE WORKPLACE
Sexual harassment
Injuries caused by sexually harassing conduct may be
actionable under Title VII of the Civil Rights Acts of
1964. Until the Civil Rights Act was amended in 1991, the
only remedies available under Title VII were equitable,
such as back-pay or reinstatement. The 1991 amendment
made it possible to also recover compensatory or money
damages, including punitive damages. To recover com-
pensatory damages for emotional distress, some courts,
to reduce the incidence of fraudulent claims (Sullivan v.
Boston Gas Company 1993), have required proof of a
physical manifestation of the emotional injury alleged.
Physical manifestations might include nausea, body
shakes and stomach pain (Bresnahan v. McAuliffe 1999).
Most courts, however, require only expert testimony sup-
porting the presence of emotional distress (Roling v.
Daily 1999).
Due to privacy concerns, courts may limit the data
available to the forensic examiner. Rule 412 of the
Federal Rules of Evidence, for example, may be used to
exclude from evidence information about an individual’s
prior sexual behavior. Inadmissibility of such evidence is
not intended to preclude its exploration during pre-trial
discovery, but may serve to restrict the scope of the
forensic psychiatric examination. Courts and psychiatrists
sometimes differently understand the relevance of par-
ticular information.
Title VII prohibits sexual harassment that is so object-
ively offensive as to alter the conditions of a victim’s
employment. The court in Oncale v. Sundowner Offshore
Services, Inc. (1998) stated:
Title VII does not reach genuine but innocuous dif-
ferences in the way men and women routinely inter-
act with members of the same sex and of the
opposite sex, and the statute’s prohibition of harass-
ment on the basis of sex requires neither asexuality
nor androgeny in the workplace, but forbids only
behavior so objectively offensive as to alter the con-
ditions of a victim’s employment.
The stressor giving rise to a sexual harassment claim
must be sufficiently severe to be significant to the ‘reason-
able person’ (Harris v. Forklift Systems, Inc. 1993). The ‘rea-
sonable person’ is a legal construct used by the courts to
identify the consensus of the community in which the event
took place regarding what conduct should be actionable.
The views of the ‘reasonable person’ are not those of a
particular plaintiff. To prevail, a plaintiff must not only
prove that she found the sexually harassing conduct to be
severe and pervasive, but that the ‘reasonable person’ also
would have done so (Ravitch 1995). Those who have
idiosyncratically perceived workplace conduct may not
be able to recover damages under Title VII, even if they
have experienced genuine and severe distress.
Some courts, on the theory that the ‘reasonable per-
son’ tends to be biased towards men (Ellison v. Brady
1991), apply a ‘reasonable woman’ rather than a ‘reason-
able person’ standard, for example, Brooks v. City of San
Mateo (2000). Most, however, do not.
The choice of standard for determining conduct
deemed sexual harassment may not be of great practical
importance. A study by Weiner et al. (1995) found that
the use of different standards did not result in signifi-
cantly different outcomes.
Disability
Damages for trauma-induced injuries may also be recov-
erable under the Americans with Disabilities Act (ADA).
The Equal Employment Opportunity Commission
(EEOC) Guidance on Psychiatric Disabilities (1997)
identifies PTSD, other anxiety disorders and major
depression as impairments which may qualify as disabil-
ities under the ADA.
Impairments which ‘substantially limit’ a major life
activity, such as working, are disabilities under the ADA.
Nonetheless, there are significant restrictions upon obtain-
ing relief under the ADA for PTSD and related difficulties.
Impairments which only temporarily substantially
limit a major life activity are not covered by the ADA. In
Hamilton v. Southwestern Bell Telephone Company (1998),
for example, the court dismissed the plaintiff ’s ADA claim
on the grounds, amongst others, that his PTSD had abated,
and that his work impairment was, thus, only temporary
(see also Rogers v. International Marine Terminals 1996).
Acute traumatic conditions that resolve are not covered
by the ADA.
Impairments that are rectified are also not actionable
under the ADA. In Sutton v. United Airlines (1999), the
Supreme Court held that the determination of whether
a disability is cognizable under the ADA must take into
account any corrective measures undertaken by the dis-
abled person. Consequently, trauma-induced injuries

that are compensated with medication and/or psychother-
apy are likely not covered by the ADA.
Even outside these exclusions, claims for PTSD and
related entities succeed only rarely under the ADA. The
PTSD sufferer, like those with other conditions, is often
unable to negotiate the Scylla and Charybdis of demon-
strating that his or her disorder is sufficiently severe to
impair a major life activity, but not so disabling as to
prevent him/her from working with an accommodation.
For instance, in one case, a teacher developed PTSD as a
result of being assaulted and threatened by students on
four separate occasions. The school expelled three of the
involved students and suspended another, and the school
board fired the teacher after she was hospitalized for
PTSD and did not return to work for months. The court
which heard her ADA claim (Fields v. St. Bernard Parish
School Board 2000) held that she was not entitled to the
protections of the ADA because she could not work with
or without an accommodation:
The School Board claims, and the Court agrees, that
the classroom is the workplace for a middle school
teacher and that a teacher who cannot come to
school is unable to perform any of the essential func-
tions of her job.
In contrast to Fields, the court in Hetreed v. Allstate
Insurance Co. (1999) dismissed the claim brought under
the ADA by an auditor who developed PTSD and/or
major depression as a result of being sexually harassed,
ruling that her diagnoses were enough to establish an
impairment under the ADA, but not sufficient to estab-
lish that she was substantially limited in the major life
activity of working. The only proof she offered regarding
the extent of her impairment was the diagnosis proffered
by her physician.
Interpretation of the ADA by the courts is rapidly
evolving. The Supreme Court recently ruled in University
of Alabama at Birmingham v. Garrett (2001) that there is
no cause of action against state defendants for money
damages in Federal court under the ADA. In dicta, the
court made several statements respecting the nature of
disability classifications entitled to equal protection. One
of the cases cited by the court in its opinion, Cleburne v.
Cleburne Living Center 1986, holds that it is not necessary
under the 14th Amendment for states to make special
accommodations for those with mental retardation as
long as their actions toward these individuals are rational.
IMPACT OF COMPENSATION AND
LITIGATION ON PROGNOSIS
In his 1961 Milroy lectures, Miller (1961a, 1961b)
described fifty individuals who had suffered accidental
head injuries and who had ‘gross neurotic symptoms’
which he termed accident neurosis. By two years after
Trauma-induced psychiatric disorders and civil law 295
settlement of their legal cases, 41 out of 45 of those pre-
viously employed had returned to their own or similar
work. This finding spurred Miller to conclude that symp-
toms and disability are likely to recede with resolution of
a claim for compensation, and to formulate five ‘truths’
regarding work-related injuries. Although these ‘truths’
have been largely repudiated [Fontana and Rosenheck
(1998); Smith and Freuh (1996); Mendelson (1995);
Binder, Trimble, and McNeil (1991a); Tarsh and Royston
(1985); Sprehe (1984); Kelly (1981a, 1981b); Kelly
(1975)], they continue to influence many examiners.
Unlike Miller, Mendelson, for example, found that 75 per
cent of 264 litigants who were not working at the time
their litigation concluded continued to be disabled an
average of twenty-three months later. Sprehe, who exam-
ined the effect of monetary settlement on psychiatric dis-
ability in workers’ compensation cases, similarly found
that ‘There was a high prevalence of cases in which the
settlement correlated with no improvement in employ-
ment status’ and concluded, ‘It would appear from this
preliminary correlational study that the “greenback
poultice” concept has little use as a prognostic theory.’
The litigation process itself may affect trauma related
symptoms in multiple ways. Adversarial proceedings,
particularly when highly antagonistic, can be very stress-
ful and trigger and interfere with resolution of traumatic
memories and associated symptoms. The meaning(s) an
individual ascribes to litigation may also influence its
emotional impact. To some, litigation represents a way of
obtaining recognition of (perceived or actual) injustice
and/or expressing rage in a socially acceptable manner.
Sometimes individuals misdirect, that is, transfer, to the
defendant a desire for vengeance originating from past
wrongs, and unwittingly attempt to use litigation to
assuage old wounds. Binder, Trimble, and McNeil (1991b)
provide examples of the import of the litigation process.
One woman, for example, stated regarding her settle-
ment, ‘I accomplished what I wanted; the rental company
no longer rents chainsaws to the public. There was a TV
show about my accident which alerted the public.’ Another
individual, in contrast, reported feeling humiliated and
becoming more distressed after a judge ruled that his
injury was self-inflicted.
MEMORY OF TRAUMA AND LITIGATION
AGAINST THERAPISTS
Few issues have inspired as much impassioned debate as
that of ‘recovered memory.’ One side argues that amnesia
for traumatic events is well documented, and invokes
dissociation and/or repression to explain preservation of
memories of forgotten trauma. Of dissociation, West
(1967) wrote, ‘For a period of time, certain information
is not associated or integrated with other information as
it normally and logically would be,’ and Yates and Nasby
296 Civil law
(1993) explained that it disconnects or separates one part
of memory from the other, that it is not ‘normal’ forget-
ting, and that dissociated information is ‘encoded but
cannot be retrieved.’
The other side notes that there is no compelling
‘biological or social evidence’ (Courtois 1999) which
indicates that memories of traumatic experiences can be
submerged and then recovered after many years, and that
there is an abundance of research indicating that events
that recur leave a greater rather than lesser memory trace
and are more rather than less likely to be remembered.
Also noted is the relationship between dissociation, and
hypnotizability and suggestibility, and that those with a
high dissociative capacity are at particular risk to con-
fabulate (Frankel 1990).
Admissibility of “recovered memory” into
evidence
Where evidence results from the use of novel scientific
theories or processes, it will be admitted in courts under
Frye v. United States (1923) only if the processes or theories
are generally accepted in the relevant scientific community,
and under Daubert v. Merrell Dow Pharmaceuticals, Inc.
(1993) only if deemed sufficiently supported by “science”,
that is, scientific methodology. If the theory which gave rise
to the evidence satisfies the applicable standard’s muster,
courts are prepared to presume the evidence has some
measure of reliability and leave it to the jury to determine
how much weight it should be given in reaching a verdict.
Because in the relevant scientific community there is
not general agreement that memories of past trauma can
be lost and later accurately retrieved, and the “scientific”
data undergirding this phenomenon are controversial,
“recovered memories” are, for the most part, not permit-
ted into evidence to prove allegations of past wrongful
behavior. As a result, lawsuits seeking damages for sexual
abuse recalled long after it allegedly occurred have been
often dismissed.
The debate held at the American Psychiatric Associ-
ation’s annual meeting in May 2000 regarding “recovered
memory” reflects the difficulties courts have in determin-
ing the admissibility of “recovered memory”. Dr. David
Spiegel, a proponent of “recovered memory” for the
debate, argued that ‘while “recovering” abuse memories
is not an automatic signal that the remembered events
actually occurred, or occurred in the way the person
recalls them, patients and others routinely repress these
memories and later “restructure the meaning of trauma”
in part as a form of protection.’ ‘Recovered memories of
trauma,’ he contended, ‘can be an important and appro-
priate part of the psychiatric treatment of trauma patients
and should not be dismissed just because a therapist does
not find them plausible.’
Dr. Paul McHugh, in contrast, stated that ‘the con-
cept of repressed memory and “recovered memories” [of
abuse] has been a clinical, intellectual, social and moral
disaster for our discipline,’ and that the studies support-
ing their validity have multiple flaws, ‘including inclusion
of individuals with neurological insults, children under
age five and patients who have particular agendas for
claiming they are victims of abuse.’
Such dichotomous views are prone to persuade courts,
for example, State v. Quattrocchi (1999) that the theories in
support of “recovered memory” have not gained general
acceptance. The courts which have allowed “recovered
memory” into evidence have used various legal theories to
do so. One approach has been to accept as a premise that
there is general agreement in the scientific community
about the concept of dissociation and widespread disagree-
ment only regarding the manner in which memories are
elicited, and submit to the jury the question of the impact
upon a memory’s reliability of the way it was ‘recovered.’
Somewhat similarly, one court, Moriarty v. Garden
Sanctuary Church of God (1999) acknowledged that there is
‘considerable debate’ within the scientific community
about “recovered memory”, but concluded, based upon the
inclusion within the DSM-IV of Dissociative Amnesia, that
“recovered memory” does, in fact, exist, and left the issue of
the reliability of such memories to the jury.
In contrast, the court in Logerquist v. McVey (2000)
held that when an expert gave his opinion about “recovered
memory” developed from inductive reasoning based on
experience, ‘observation or research,’ it was ‘pure opinion’
evidence. Such evidence, the court found, was not subject
to the same evidentiary rules as opinions respecting new
or novel scientific principles, formulae or procedures
developed by others.
Courts that permit testimony regarding “recovered
memory” seem to be concerned that excluding from evi-
dence the testimony of an expert to explain this phenom-
enon in general and a plaintiff ’s memories in particular
ensures that the plaintiff ’s suit will fail for lack of sup-
porting evidence.
Proponents of admitting “recovered memory” into
evidence argue that it is no more or less reliable than
ordinary memory, and that it should be treated like all
testimony concerning things remembered, that is tested
at trial via cross-examination and evaluation of any cor-
roborative testimony, and review of any evidence that the
plaintiff ’s claim is incorrect. The Court in Logerquist v.
McVey wrote:
We [the Court] believe, however, that the truth of
Plaintiff’s testimony that she actually and accurately
recalled or remembered the events as distinguished
from inventing them or having had them suggested
or implanted is for a jury to decide. While Defendant
contends the alleged loss of memory and consequent
delay in reporting make Plaintiff’s testimony unworthy
of belief, in this, as in other cases, Rule 702
allows Plaintiff to call expert witnesses to explain her
behavior following the events alleged and to help the
 Trauma-induced psychiatric disorders and civil law 297

jury determine whether Plaintiff’s memories are real Other courts also have permitted parents to pursue
and accurate or imagined. actions against therapists for allegedly having induced
their patients to ‘falsely’ recall incidents of abuse. In
Montoya v. Bebensee (1998), although the therapist ultim-
Statute of limitations
ately avoided liability on immunity grounds, the court
held that a duty was owed to a father accused of abuse by
Suits based on “recovered memory” frequently fail because
a therapist when she reported the child’s abuse claim to
of expiration of the applicable statute of limitations. State
county officials, urged the child’s mother to restrict visit-
and federal laws generally require that suits be instituted
ation by the father, and testified for the mother at a hear-
within a specific period of time after alleged harm has
ing on visitation rights. In Hungerford v. Jones (1998), the
occurred. If an individual does not recall alleged abuse
therapist used ‘imagery’ or ‘visualization’ as a technique
until many years after its occurrence, a court may dismiss a
that led the patient to recall experiences of childhood
suit as untimely unless it determines that a discovery excep-
sexual abuse. After these memories surfaced, the therap-
tion to the statute of limitations applies, for example, Grace
ist directed the patient to cease all contact with her father
v. Colorito (1999). In such instances, the statute of limi-
and to file a criminal complaint against him. The court
tations is tolled until harm has or could have been, with
found that the therapist owed a duty to the father when
reasonable diligence, discovered, for example, Doe v. Roe
the therapist took public action and encouraged his patient
(1998). Because it is very difficult to verify when memory
based on ‘false’ accusations of sex abuse.
of alleged abuse was “recovered” and to determine when an
One court has suggested that there may be a duty to
individual in the process of “recovering” memories should
third parties to investigate the ‘truth’ of patients’ claims
be considered on notice for harm she has allegedly suffered,
of abuse. In Caryl S. v. Child and Adolescent Treatment
there is widespread disagreement about application of the
Services (1994, 1997) the Court held:
discovery exception to “recovered memory”.
[A] determination must initially be made by the pro-
fessional that sexual abuse has in fact occurred and
Lawsuits against therapists
this determination is made not only about the child
but about the suspected abuser. When, based upon
Courts generally do not permit suits against therapists by
that determination, a course of action is thereafter
third parties on the grounds that a therapist owes no
embarked upon by the professional, it is intended to
duty of care to such individuals. A duty of care to third
and necessarily does, affect both the child and his or
parties – for example, a patient’s parents – potentially
her abuser, especially where a family relationship is
arises, however, when harm to third parties is foreseeable
involved. A suspected abuser surely has the right to a
and the burden of protecting third parties against false
reasonable expectation that such a determination,
accusations is determined to outweigh society’s interest
touching him or her as profoundly as it will, will be
in detecting, treating and/or reporting child abuse (e.g.,
carefully made and will not be reached in a negligent
Treer v. Sills 1999). Courts also must balance concern
manner.
regarding harm to third parties with protection of the
psychiatrist–patient privilege (e.g., Doe v. McKay 1998). Some courts appreciate the difficulty to therapists of
The case brought by Gary Ramona against his daugh- potentially having duties to both alleged abused and
ter’s treaters (Ramona v. Ramona 1994) illustrates how a alleged abuser. In Treer, the court observed:
therapist’s actions might produce liability. In consultation
The issue presented by a claim of a duty to the poten-
with her therapist, Holly Ramona underwent a sodium
tial ‘third party’ abuser is to what degree therapists
amytal interview. This procedure generated material
necessarily become insurers of the truth of any diag-
which, in the context of ongoing therapy, led her to believe
nosis of childhood sexual abuse by a parent. We say
she had been sexually abused by her father. Subsequently,
‘insurers’ because a moment’s reflection will demon-
in a meeting facilitated by her therapist, she confronted
strate the perilous position in which any such duty
her father regarding the abuse she recalled. After he was
would put the therapist. The therapist risks utter pro-
accused, Mr. Ramona lost his job and marriage, and sued
fessional failure in his or her duty to the patient if
his daughter’s therapists, claiming that he suffered harm
possible childhood sexual abuse is ignored. On the
as a result of negligent treatment. The court which heard
other hand, if the heinous crime of (recently dis-
this matter determined that therapists owe a duty to third
covered) childhood sexual abuse really is the cause of
parties to whom they direct their interventions and ruled
the patient’s disorders, then it is virtually inevitable
that he could proceed with his suit (Appelbaum 2001).
that the alleged abuser will suffer ‘harm’.
This case signals the peril of utilizing certain potentially
suggestive treatment tools, for example, amytal interviews, Under malpractice law, recovery is barred unless a
to determine the ‘truth’ regarding historical events, and patient can demonstrate that an injury directly resulted
of relying upon such ‘truth’ when actively involving a from a negligent act. Applying this principle to therapists
third party in a patient’s treatment. accused of creating ‘false memories,’ one commentator
298 Civil law

has argued that ‘to meet this burden of proof, the medical advocating, fact finding, and testifying, that are integral to
record must clearly show a repetitive and sustained a judicial proceeding (Tyner v. State Department of Social
scheme of indoctrination coupled with a personality and Health Services 1998). Immunity, however, does not
trait making the patient susceptible to this social influ- generally extend to provision of therapy. A court order
ence.’ (Scheflin and Brown 1999). Courts, however, have directing that therapy be rendered is not generally enough
focused on whether a duty is owed and/or the foresee- to create immunity for acts engaged in during it.
ability of harm to alleged abusers, and have tended to
find therapists liable without much discussion of how
treatment was negligent. In Hungerford v. Jones (1998) CONCLUSION
the court seemingly found the use of certain techniques
to be negligence per se. It wrote:
The prevalence of traumatic life events, changing attitudes
The duty of care to the accused parent is breached by and rules regarding the workplace, legal utility of PTSD,
the therapist when the publicized misdiagnosis results and difficulty sometimes verifying posttraumatic stress
from (1) the use of psychological phenomena or tech- symptoms fuel large numbers of claims alleging the pres-
niques not generally accepted in the mental health ence of PTSD. To conclude that a plaintiff suffers from
community, or (2) lack of professional qualifications. PTSD, it is necessary to define the initiating stressor, per-
form a thorough trauma history, and exclude other diag-
In March 2000, the American Psychiatric Association
noses which may more accurately reflect the plaintiff ’s
issued a new position statement on memories of child-
mental state. To fully understand a plaintiff ’s mental state,
hood physical and sexual abuse, making four recommen-
it is also necessary to consider the influence of the litiga-
dations to therapists:
tion process upon it.
Regardless of issues of childhood abuse, all patients
should receive a complete psychiatric evaluation.
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Neuropsychiatric assessments in toxic
exposure litigation
DANIEL A. MARTELL
This chapter provides a synopsis of the issues arising in the
forensic assessment of neurotoxicity. The perspective pro-
vided here is by necessity an overview due to the extensive
literature available on the topic of neurotoxicity, the sheer
volume of which far exceeds the scope of this chapter.
However, the forensic psychiatric evaluation of issues aris-
ing from neurotoxic exposure has received relatively little
attention in the literature. This chapter is intended to
guide the reader who is confronting this issue to relevant
resources and materials, and to facilitate a broad under-
standing of its forensic contours. The topics that will be
addressed include the scope of the problem, an introduc-
tion to the scientific reference literature, a review of the
forensic contexts in which neurotoxicity claims arise, and
an interdisciplinary model for forensic psychiatric evalu-
ation in neurotoxin exposure cases.
WHAT IS NEUROTOXICITY?
Broadly, neurotoxicity refers to a temporary or permanent
change in the function of the nervous system caused by the
deleterious effects of neurotoxic agents, either singly or in
combination. Of greatest concern to forensic psychiatry
are the cognitive, behavioral, and psychopathological out-
comes of such exposures as they arise in the law.
The notion that substances can have poisonous or toxic
effects on the human nervous system dates back over 450
years. Hartman (1995) notes Anglicus Bartholomaeus’
colorful description in 1535 of the neurotoxic effects of
mercury: ‘The smoke thereof is most grevous to men
that ben therby. For it bredeth the palsey, and quaking,
shakynge, neshynge [softening] of the synewes.’
A thorough understanding of human neurotoxic
poisoning requires an integration of the toxicological,
neurological, and general medical literature. However, the
primary causes of damage to the central and peripheral
nervous systems can be summarized to encompass both
33
neuropharmacological and neurodegenerative processes,
including: (i) anoxia; (ii) synaptic damage; (iii) cellular
damage; and (iv) neurochemical damage.
Because various substances affect the body in different
ways, there is no single generally accepted hypothesis for
the mechanism of action of neurotoxic agents. The link
between initial exposure and ultimate psychiatric and
behavioral outcomes depends on a complex chain of vari-
ables. These include the dose response relationship to the
level of exposure, the developmental status of the individ-
ual’s nervous system, the vulnerability of different cell
types to exogenous influence, and exigencies of the com-
plex network of cerebral interconnections underlying
mental processes within the brain that are not fully under-
stood. Damage may occur as a direct result of toxic insult
to specific neurons, or as the indirect result of damage to
other organ systems that in turn produces lesions within
the nervous system (Silbergeld 1990; Hartman 1995).
EXTENT OF THE PROBLEM
The Environmental Protection Agency’s register lists more
than 65 000 toxic chemicals in use in the United States
(Neurotoxicity 1990). People are exposed to these sub-
stances in products ranging from pesticides to drugs, food
additives, cosmetics, and industrial chemicals. Anger and
Johnson (1985) cite 850 toxic chemicals that are known to
cause neurobehavioral disorders (see also Chemical Regu-
lation Reporter 1986). Regulatory agencies such as the
Occupational Safety and Health Administration (OSHA)
and the Environmental Protection Agency have attempted
to promulgate standards for ‘safe’ exposure levels in the
workplace (for example the NIOSH Pocket Guide 1985),
yet only a fraction of potential neurotoxicants have been
studied or are well understood. Anger (1990) notes that
the National Institute for Occupational Safety and Health
(NIOSH) lists 36 chemical agents with known nervous
302 Civil law
system effects at low concentrations. OSHA sets standards
for only 588 chemicals, of which only 167 have been regu-
lated for their neurotoxic effects (Hartman 1985).
SOME SPECIFIC TOXIC AGENTS
Due to the sheer volume of neurotoxic substances, any
summary here is by necessity cursory. However, there are
some major categories of substances that are commonly
encountered and bear mention as likely candidates in
forensic cases.
1 Pesticides: these include organophosphates, chlorinated
hydrocarbons (DDT), and chlorinated cyclodienes
(‘Agent Orange’). Exposure is common among several
groups, including agricultural workers and Vietnam
era veterans, and accidental exposure has been reported
from misuse of home pesticides, contaminated drink-
ing water, and unwashed contaminated fruits and
vegetables.
2 Solvents: exposure to solvents such as toluene, styrene,
and acetone is common among workers who may be
accidentally or involuntarily exposed at work (World
Health Organization 1985; National Institute for
Occupational Safety and Health 1987). Still other
individuals are known to abuse solvents by sniffing or
‘huffing’ their concentrated vapors for the intendant
intoxication they can produce. However, the risk asso-
ciated with chronic low-level exposure to solvents
remains equivocal (Klinken and Arlien-Soborg 1993;
Williams and Lees-Haley 1996).
3 Metals: these represent a third major area of interest in
neurotoxicology. No single metal has received more
attention in this area than lead (Dyer 1998), particu-
larly involving children. Old paint is notoriously dan-
gerous in this regard, with over one-half of the homes
in America believed to be contaminated beyond safe
levels (United States Department of Health and Human
Services 1988). Other metals including mercury (Risher
et al. 1999), iron, copper, gold, aluminum, antimony,
and arsenic are also relevant here. The route of expos-
ure in adults is most commonly inhalation in the
workplace.
4 Gases: many gases such as carbon monoxide, butane,
propane, and ozone have well-described neurotoxic
effects. Exposure is often attributed to faulty heaters
and leaking from storage tanks and chemical plants,
such as the tragedy in Bhopal, India in 1984. Intentional
inhalation of some gases (e.g., nitrous oxide) is also
common as a means of getting ‘high,’ and inhalation
of carbon monoxide is well known as a method of
attempting suicide.
5 Other neurotoxic substances: finally, there are several
additional neurotoxic substances that do not fall neatly
into the categories above. For example, impairment
from chronic exposure to formaldehyde has recently
been described (Perna, Bordini, and Deinzer-Lifrak
2001), and Hartman (1995) reviews the literature on
over two dozen other additional neurotoxic substances,
ranging from hyperbaric nitrogen to jet fuels.
NEUROPSYCHIATRIC EFFECTS OF
TOXIC EXPOSURE
There are several major textbooks that address the neuro-
logical and neurobehavioral sequelae of neurotoxic expos-
ure in fine detail. The interested reader is encouraged to
consult excellent texts on behavioral toxicology (Wiess
1992), neuropsychological toxicology (Hartman 1995),
and neurological neurotoxicology (Bleeker and Hansen
1994).
A wide range of impairments arising from neurotoxic
exposure has been described, many of which overlap
significantly with or mimic more etiologically routine
psychiatric disorders. While some nervous system poisons
have fairly distinct neuropsychiatric signatures, others
remain ill-defined. All that having been said, one can con-
ceptualize neurotoxic pathology along several fundamen-
tal dimensions.
The first are neurological impairments, including
headaches, seizures, encephalopathies (acute and chronic),
ataxia, extrapyramidal movement disorders and tremor,
myelopathies, cranial neuropathies, optic neuropathies,
peripheral neuropathies, and muscle weakness other than
neuropathy (Valciukas 1991, as cited by Singer 1994). Some
researchers have described a pattern of irreversible neuro-
behavioral deficits labeled ‘chronic toxic encephalopathy’
resulting from prolonged exposure to organic solvents
(Baker 1994), although others dispute the voracity of this
finding (Lees-Haley and Williams 1996).
Second are major psychiatric impairments, most
commonly including symptoms of affective disorders
(depression, bipolar disorder), psychosis (hallucinations
and delusions), and organic brain disorder. For example,
organic delusional disorders are commonly seen in toxic-
metabolic processes (Cummings 1985), and generally fall
into one of four types: (i) simple persecutory delusions;
(ii) complex persecutory delusions; (iii) grandiose delu-
sions; and (iv) those associated with specific neurological
defects. A so-called ‘organic affective syndrome’ has been
associated with chronic solvent exposure, characterized by
fatigue, irritability, depression, anxiety, and apathy (Baker
and Fine 1986).
Personality and behavioral changes have also been
described, including irritability, social withdrawal, and
amotivation, sleep disturbances, chronic fatigue, and
sexual dysfunction (Singer 1990).
Finally, perhaps the greatest body of empirical literature
relates to symptoms of dementia and related neuropsycho-
logical impairment. Cognitive dysfunction including mem-
ory impairment, psychomotor retardation, pure motor
 Neuropsychiatric assessments in toxic exposure litigation 303
and visuomotor impairments, as well as impaired arousal,
vigilance, attention, concentration, motor speed, and
coordination are all common. Impairment is also seen in
cognitive efficiency and flexibility; lowered IQ, hyperac-
tivity and retardation in children; and fine motor control
(Hartman, Hessl, and Tarcher 1992).
It should be noted however, that some of the literature
on the effects of exposure to toxic agents, particularly
exposure to low doses, is equivocal with self-reports
vulnerable to functional and psychosomatic complaints
(Dunn et al. 1995; Lees-Haley and Brown 1992; Lees-
Haley and Williams 1996; Williams and Lees-Haley
1996).
EMERGING RELATED ISSUES
Under this heading are a number of phenomena, includ-
ing multiple chemical sensitivity, cancerphobia, chemo-
phobia, and sick building syndrome. These conditions,
while bearing some putative connection to environ-
mental toxicology, appear to have roots in functional
psychopathology and psychosomatics.
Multiple chemical sensitivity (MCS) is a fairly contro-
versial topic in this area, with battle lines drawn over
whether it is an organic or functional (psychological) dis-
order. Simon (1998) addresses the forensic psychiatric
evaluation of MCS in the greatest detail to date. It was
originally described by Cullen (1987) as a disorder charac-
terized by recurrent symptoms affecting multiple organ
systems that come and go predictably in reaction to expos-
ure to several unrelated chemical compounds in ultra-
low doses, with levels significantly below those known to
cause harm or symptoms in others. No single test is known
that can explain the symptoms. Most patients presenting
with MCS have been described as well-educated white
females of above average socioeconomic status (Black,
Rathe, and Goldstein 1990). They appear to be patients
with a profound aversion to psychiatry and extensive
medical histories with unsatisfactory outcomes (Gots et al.
1993), who are also highly litigious in seeking workers’
compensation and social security disability payments
(Hartman 1995).
Gots (1995) argues that this is a highly subjective
and psychosomatic disorder – a position supported by
research conducted by Witorsch et al. (1995), who found
MCS to be best characterized as a manifestation of any
one of several psychiatric disorders that involve somati-
zation as the primary psychopathologic mechanism. Still
others have attempted to explain MCS as a deficit in
immune regulation (Terr 1989).
Lees-Haley and Brown (1992) note that reactions to
chemical exposures can be colored by multiple factors,
including stories in the media, hysterical and hypochon-
driachal reactions, prior beliefs, influential others, and the
forensic context itself, all of which affect their self-reports.
Hartman (1995) divides the psychological explanations
for MCS into five areas:
1 Hysterical or somatoform disorders.
2 Posttraumatic stress disorder arising from a threaten-
ing near-poisoning experience.
3 Conditioning and generalization of autonomic and/
or neurotoxic abnormalities.
4 An iatrogenic condition arising from new-age ‘treat-
ments’ by clinical ecologists and holistic heath practi-
tioners.
5 Patients who represent a mixed group of psychiatric
disorders whose only commonality is a shared belief
that they have an environmental illness because some-
one in the medical community told them so.
Some patients develop irrational fears of chemicals
(chemophobia) or fears that chemicals in their environ-
ment will cause them to develop cancer (cancerphobia),
both of which can be debilitating psychiatric conditions
with forensic ramifications.
Yet another controversial new topic is sick building
syndrome. This is characterized by several non-specific
somatic and psychological complaints, including irritated
eyes, nose and/or throat, dermatological reactions, fatigue,
headache, and nausea, and can be differentiated from
known building-related medical illnesses related to poor
indoor air quality, for example legionellosis, asthma, or
humidifier mold spore reactions (Welch 1991; Hartman
1995). Similar to MCS, sick building syndrome may reflect
some unique admixture of biopsychosocial risk factors in
certain vulnerable individuals.
FORENSIC ISSUES ARISING FROM
NEUROTOXIN EXPOSURE
Neurotoxic exposure cases are most likely to present
themselves in forensic psychiatric practice in three areas:
civil litigation; criminal litigation; and administrative
litigation.
In civil litigation, such cases have earned the moniker
‘toxic torts,’ reflecting just how common such cases have
become in the contemporary legal lexicon (Lees-Haley
1993; Hartman 1999). In toxic tort litigation, like any
other tort action, three classic factors must be estab-
lished:
• that a duty existed between the parties;
• that the duty was breached due to the negligence of
the defendant; and
• that the damages suffered by the plaintiff arose as a
proximate cause of the negligent breach of that duty.
Legal issues in these cases include establishing general
causation (i.e., can substance X cause symptom Y), estab-
lishing legal liability (i.e., is defendant responsible for
exposing the plaintiff to the toxin), and establishing the
304 Civil law
extent of damages to the plaintiff (compensatory and
punitive). Forensic psychiatric evaluation is most often
sought on issues of causation and the damages to be
awarded given the disability incurred.
Examples include product liability cases involving
adverse reactions from drugs such as thalidomide or
benedictin (morning sickness) (Brannigan, Bier, and Berg
1992), wrongful exposure to toxins in the workplace, and
‘mass tort’ cases (injuries caused by a single product or
agent or event affecting a large population) involving sub-
stances such as lead paint, asbestos, ‘Agent Orange,’ or
catastrophic leaks from chemical plants as in Bhopal,
India (Gerson 1990). Fetal exposure is also an increas-
ingly relevant issue here (Karrh et al. 1981; Morris and
Sonderegger 1986). For example, the liability of an
employer for a mother’s or father’s exposure to a neuro-
toxic substance in the workplace that may have contrib-
uted to birth defects or subsequent impairments in their
offspring.
The second major arena in which neurotoxin exposure
becomes an issue for forensic psychiatry is in criminal liti-
gation. Here, neurotoxic impairment forms the basis for a
wide range of legal issues including competency to stand
trial, diminished capacities or diminished actualities in the
capacity to form criminal intent, and the insanity defense.
For example, Lemmen, Holden, and Benedek (1996) report
on a case of Prozac intoxication leading to murder. In
another case, uranium neurotoxicity was linked to murder
(Lucas 1989). Carbon monoxide poisoning has also been
raised as defense to homicide.
A final area where forensic psychiatric expertise
in neurotoxic exposure might be sought is workers’
compensation and/or disability determination cases
involving administrative courts and disability insurance
litigation.
Lees-Haley and colleagues have addressed a range of
forensic issues from establishing guidelines for judging
the quality of forensic evaluations of personal injury
claimants in toxic tort litigation (Lees-Haley 1997a), to
addressing the manipulation of plaintiffs by nefarious
attorneys in mass tort litigation (Lees-Haley 1997b), to
establishing base rates of various neurotoxic complaints
among personal injury claimants (Lees-Haley 1992;
Dunn et al. 1995).
FORENSIC PSYCHIATRIC EVALUATION OF
NEUROTOXIC COMPLAINTS
Forensic evaluations in this area can be extremely chal-
lenging and are often quite difficult. An interdisciplinary
approach is often beneficial, as consultation with other
professionals almost always bears fruit in reaching one’s
own opinions. Forensic psychiatry, forensic neurotoxicol-
ogy, and forensic neuropsychology each provide import-
ant contributions to the evaluation of these cases.
The second edition of the Federal Judicial Center’s
Reference Manual on Scientific Evidence (2000) provides
very useful guidelines for conceptualizing a legally rele-
vant forensic evaluation. The first step is to establish that
the substance in question is a known neurotoxin. Given
the plethora of substances that might come to be at issue
this will often involve some research, and consultation
with a neurotoxicologist is often helpful, if not crucial.
The second step is to establish that there was indeed
exposure, and if so, that the individual was exposed to
the substance in a manner that can lead to absorption
into the body. The third step is to establish that the level
of exposure was adequate to cause impairment at all.
Here again, consultation with a neurotoxicologist would
be a primary source of information. In some cases, it may
be possible to re-create the conditions of the exposure,
and take samples for quantitative analysis. These data can
then be compared with the research literature to establish
whether the exposure falls below the ‘no observable effect
level’ (NOEL), or above a threshold level at which the
individual is at risk for toxic effects (Goldstein and
Henifin 2000).
Toxicologists, epidemiologists, and risk assessors esti-
mate risk of exposure/extent of exposure. However, this
evidence is often open to Daubert and Kumho admissibil-
ity challenges, given the state of the science (Daubert v.
Merrell Dow Pharmaceuticals, Inc. 1993; Kumho Tire
Company v. Carmichael 1999; Rodricks and Rieth 1998).
Fundamental differences between the criteria of caus-
ation in the courts and in science pose significant prob-
lems, with the law being deductive and science being
probabilistic (Brennan 1987). Methodologies employed
to arrive at valid scientific standards for regulatory and
public health purposes are often different from those
used in the courtroom, and inadequate for that purpose.
However, no well-described alternative methodology is
currently available. Muscat and Huncharek (1989) pro-
pose an epidemiological evidentiary standard. Brannigan,
Bier, and Berg (1992) provide a statistical/probabilistic
model for establishing proof of injury based on level of
exposure. Henderson (1990) offers a definition and explan-
ation of liability with a focus on how expert witnesses
should utilize applicable medical and scientific data in
order to provide opinions regarding a causal relation
between exposure to a toxic substance and disease in an
individual case.
However, having established a reasonable foundation
for believing that a legally relevant toxic exposure has
occurred, it is then important to consider the content of
the forensic psychiatric examination. The first purpose of
the examination is to establish evidence of the presence
or absence of impairment, and its consistency with the
expected sequelae of the neurotoxic exposure. Do the signs
and symptoms obtained comport with the known toxico-
logical effects of the poison? Are the complaints specific, or
non-specific? The second purpose of the examination is
disability determination (Kennedy 1997). In preparation
 Neuropsychiatric assessments in toxic exposure litigation 305
for such an examination, it is critical to understand the
expected relationship between a given level of exposure
and subsequent neuropsychiatric disease. One needs to be
armed with such information in order to know what to
look for in the history and clinical presentation of the per-
son alleging the exposure.
Exposure, which may be to multiple agents, can have a
range of effects (both systemic and progressive) that are
quite difficult to tease apart from pre-existing conditions.
Also, there is such vast range of potentially hazardous
substances that patterns of neuropsychiatric sequelae may
not be known for many of them (Wasyliw and Golden
1985). Although animal studies may exist, extrapolation
to humans is often difficult. Certain agents or environ-
ments may lead to physical disorders such as chronic
obstructive pulmonary disease (COPD), which in turn
have neurobehavioral implications.
During the examination, it is critical to rule out a
number of confounding factors that could account for the
individual’s clinical presentation and complaints, before
reaching the opinion that exposure to the toxic substance
is to blame. A very thorough history must be obtained
to establish the individual’s level of premorbid function-
ing. It is obviously crucial to differentiate outcome effects
related to toxic exposure from pre-existing conditions.
Does the temporal relationship between the exposure and
the onset of symptoms support or refute causation?
Hartman (1995) cautions that job selection factors may
result in workers with innate (low functioning) deficits,
rather than recent, exposure-related deficits. Ironically,
workers with poor premorbid education and intellectual
functioning are often the workers who suffer the most
severe neurotoxic exposure due to the types of jobs they
are able to obtain.
In any forensic context, the issue of malingering must
also be addressed. The possibility of symptom exagger-
ation or fabrication for secondary gain through litigation
must be evaluated and ruled out. Finally, possible differen-
tial diagnoses should be addressed such as psychosomatic
disorders that must be considered and ruled out.
Adjunct medical and neurodiagnostic testing, includ-
ing blood tests, electroencephalography (EEG), magnetic
resonance imaging (MRI), computed axial tomography
(CAT), or positron emission tomography (PET) may be
indicated. However, quite often there will be a lack of cor-
roborating medical evidence from blood tests or brain
scans due to the fact that neurotoxic exposure often results
in medically subclinical impairments or findings (Singer
1994; Hartman 1995). Nonetheless, there are often signifi-
cant deficits that are observable neuropsychologically.
Hence, consultation with a forensic neuropsychologist is
advisable in almost every case. The neuropsychological
evaluation of neurotoxicity is discussed most thoroughly
in the landmark textbook by Hartman (1995), and has
also been addressed at various levels by Kurlychek (1987),
Leestma (1991), Valciukas (1995) and Wasyliw and
Golden (1985).
CONCLUSIONS
Evaluations of neurotoxicity present some of the most
challenging cases in forensic practice. They demand a
high level of preparation, interdisciplinary collaboration,
and clinical expertise in order to arrive at opinions that
will be both credible and probative in court. At the same
time, it is important to recognize and acknowledge the
limitations of current scientific knowledge in this area.
Ultimately, forensic psychiatric opinions regarding neu-
rotoxic claims will rise or fall on the quality of the
research conducted and the care taken in the examination
process.
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Civil competencies
J. RICHARD CICCONE
A fundamental human right is the right to make a choice
and to act on that choice. Actions not prohibited by
criminal law may be viewed as private rights, and civil
law is ‘concerned with civil or private rights and rem-
edies … .’ (Black, Nolan, and Connolly 1991). While gen-
erally a person is afforded the right to make a choice and
act on that choice, at times the civil courts are involved in
restricting such rights based on a person’s competence.
Forensic psychiatrists may assist the courts in making
such determinations.
Competence is specific; an individual may be competent
in one area but not competent in another. Therefore, while
the general steps necessary for the determination of com-
petence provide a useful template, the specific questions to
be answered are contextual – that is, they are related to the
particular civil competence under consideration. Since an
exploration of the requirements for legal competency to
exercise each possible civil right is beyond the scope of this
chapter, several civil competence examples are set forth
below that are illustrative of the general and specific prin-
ciples of a forensic evaluation of civil competence.
CONDUCTING A FORENSIC PSYCHIATRIC
EVALUATION OF CIVIL COMPETENCE
Along with understanding which competence is to be
evaluated, it behoves the forensic psychiatrist to consider
the following questions: (i) what ability and knowledge is
required to competently exercise a decision?; (ii) who is
seeking the evaluation?; (iii) for what purpose is the evalu-
ation requested?; (iv) who will receive the report?; and
(v) how will the report be used? The forensic psychiatric
evaluation may include not only a review of records but
also interviews with relevant individuals, such as rela-
tives, friends and caregivers.
The complexity of the individual’s potential illness
and disabilities may call for the assembly of a multi-
disciplinary team that has the capacity to adequately
explore the individual’s strengths and weaknesses.
34
The threshold question is whether the individual suffers
from a mental disorder. If the person does not suffer from
a psychiatric disorder, the expert does not generally pro-
ceed further. It may be useful to comment on competence,
because if the court decides that he or she suffers from a
mental disorder, the court will move to the question of the
individual’s competence regarding the issue at hand.
If the individual does have a mental disorder, the foren-
sic expert then turns to the question of whether the dis-
order significantly impairs his or her capacity to carry out
the specific civil function at issue. Roth, Meisel, and Lidz
(1977) suggested a decisional hierarchy of competency in
the context of informed consent to treatment. This hier-
archy is useful in a variety of civil competency evaluations.
While there is some disagreement about this effort to vary
competence with risk, on the whole it is useful to invoke a
direct relationship between the level of competence and
the magnitude of the risk or consequences of a decision.
In clinical settings, the evaluation of a person’s com-
petence may be called a ‘capacity evaluation’ in order to
underscore that the clinician is providing an opinion, but
only a court can decide a person’s competence. The evalu-
ation of a person’s competence by the forensic examiner
ultimately results in an expert opinion which will be con-
sidered by the court in arriving at its decision. The evalu-
ator should be familiar with the legal standard for the
competence being evaluated in the jurisdiction where the
issue is to be adjudicated.
The range of potential competence evaluations will
strain the knowledge and experience of the forensic exam-
iner or evaluator. Not only must the evaluator understand
the elements of the task but conduct an analysis of the rea-
sonableness of the decision. For example, the evaluation of
a 63-year-old man, who is suffering from the physical and
emotional sequelae of a stroke, and wishes to sell his half-
interest in a motel requires the evaluator to learn, from
appropriate sources, the value of the property, the benefits
of selling the property at this time, the tax consequences,
and other considerations involved in such a sale.
The presence of a mental disorder does not automat-
ically translate into incompetence, whether it is general

incompetence or specific incompetence. The central
question is how does the psychopathology – whether
a psychotic symptom, an affectively driven behavior or a
cognitive impairment (ranging from dementia to a frontal
lobe syndrome) – directly affect the decision; that is,
the making and carrying out of a plan? If the individual
appears subdued, is it the result of apathy secondary to
an anterior cingulate frontal lobe syndrome, the hopeless-
ness of depression, or a reflection of an enduring person-
ality trait?
In evaluating competence, examiners have supple-
mented, at times, their interviews with the Mini-Mental
State Examination or similar brief measures. Guilmette
and Krupp (1999) found that these measures lead to a
high misclassification rate when used to assess compe-
tence to give informed consent to treatment. Thus, these
brief measures should be used with caution when assess-
ing civil competence.
After determining whether the examinee suffers from
a mental disorder that impairs his or her ability to per-
form the specific task, it is necessary to assess the stability
of the impairment: Is it likely to be responsive to treat-
ment? Can the deficit be overcome by providing support?
Responses to these questions are useful components of
the expert’s opinion.
TESTAMENTARY CAPACITY
An example of a civil competence is testamentary capacity,
which refers to an individual’s competence to make a
will. A will takes effect after a person’s death and may be
changed at any time before their death. The law presumes
that an individual has testamentary capacity – that is, he or
she is of sound mind when executing or altering a will. To
have testamentary capacity, testators must have the ability
to know and understand three points: (i) that they are
making a will; (ii) the natural objects of their bounty and
claims upon them; and (iii) the general nature and extent
of their property (Black, Nolan, and Connolly 1991).
The forensic psychiatric evaluation of testamentary
capacity usually occurs after the testator’s death. Not being
able to examine the individual eliminates an important
source of information, and calls for a diligent examin-
ation of other sources. Despite the evaluator’s best efforts,
the unavailability of the testator may result in insufficient
data to arrive at a conclusion regarding the individual’s
testamentary capacity. If the expert witness is able to arrive
at an opinion, it will be important to report that the data-
base does not include examination of the testator. In those
instances where the individual’s attorney anticipates that
there may be a challenge to the will and, therefore, seeks
contemporaneous psychiatric evaluation of the testator,
it is useful to videotape the examination. Operational cri-
teria provide a framework for the psychiatric examination,
as well as a format for providing the information to the
Civil competencies 309
court. Did the individual suffer from a mental disorder at
the time of making a will? Did the disorder cause a signifi-
cant impairment in the individual’s rational understand-
ing that he or she was making a will? Who would usually
inherit? What is it they own?
Isaac Ray argued that there was a proper role for a
forensic psychiatrist in a will contest (Bromberg 1980).
Ray wrote that the psychiatrist had information relevant
to the court’s determination of the individual’s compe-
tence to make a will and information relevant in entering
the will into probate. Others have argued that psychiatric
expert witness testimony at will contests is little more
than a psychiatric ‘excuse’ to invalidate wills that do not
conform to conventional social norms (Szasz 1963). It is
further argued that the will contest itself robs a person of
the right to exercise one’s will.
History
In feudal times, fixed rules governed the inheritance of
real property. Ecclesiastical courts dealt with personal
property that the church might receive for ‘pious pur-
poses.’ Even when primogeniture, which gave the eldest
son the right to inherit his father’s estate, was the rule,
there were significant exceptions where local custom pre-
vailed. For example, in Kent, England, there was gravel-
kind tenure, which gave equal shares to sons (Friedman
1985). By the thirteenth century, wills became more
modern-looking instruments (Slovenko 1973). In 1572,
the English Statute of Wills provided everyone with the
right to make a will, to dispose of real (immovable) and
personal (moveable) property. Over time, the law was
amended to exclude ‘idiots’ or persons with ‘insane
memory’ (Brakel, Parry, and Weiner 1985).
Colonial America used a variety of approaches to wills.
New England colonies rejected primogeniture, except for
Rhode Island, although Massachusetts and Pennsylvania
gave a double share to the oldest son. Southern colonies
used primogeniture until revolutionary times (Friedman
1985).
American probate laws followed the English Statute of
Frauds of 1677, which called for a written, witnessed will
for real estate. The Wills Act of 1837 covered both real
property and personal property. In some states a holo-
graphic will – a will written, dated, and signed in the
dead person’s handwriting – may be entered into evi-
dence (Natale 1989). As the nineteenth century came to a
close, an increasing number of individuals left wills, and
this trend continues today, with most individuals having
their will written up by an attorney.
Will contest
The development of the rules regarding wills can be seen
as reflecting the evolution of the view that an individual
310 Civil law
should have the right to determine what is to be done
with his or her property.
Guidelines for a valid will developed: almost all states
require that a person be of sound mind when signing a
will (Brakel, Parry, and Weiner 1985); that is, a person
must appreciate the legal and binding nature of the will
and understand the personal, legal, social, and financial
ramifications.
Understanding that one is making a will requires
comprehension of the overall size and components of
one’s estate. While precise knowledge of the value of the
estate is not required for testamentary capacity, the indi-
vidual should have a reasonable approximation of its
overall worth. An individual must also know the natural
objects of one’s bounty; generally these are blood rela-
tives, though at times they may include close friends, and
occasionally a ‘faithful servant.’ The testator’s denial that
he or she has children based on symptom of mental
disorder, for example, a delusion or loss of memory, may
invalidate a will. However, ignorance of the existence of
blood relatives does not usually constitute a basis for
challenging a will. Likewise, the inability to read or write
does not invalidate a will.
Less than 3 per cent of wills are contested, and of
those that are contested only 15 per cent are successfully
overturned (Slovenko 1973). The source of the contest
may be a disappointed or disinherited heir who claims
unfairness. There are a number of conditions that can
invalidate a will, one of these being the person’s mental
condition.
In a will contest there is the presumption of testa-
mentary capacity, and the burden of proof that the
will should not be admitted to probate – that is, found
valid – rests with the party alleging deficiency. In most
jurisdictions ‘clear and convincing’ arguments must
be made before the will is invalidated. A previous adju-
dication of incompetency, for example, guardianship,
does not prevent establishing a valid will; however, the
burden of proof is then on the proponent of the will
to establish by clear and convincing evidence that the
will was made during a lucid interval (In re Will of Coe
1900).
The concept of lucid interval is based on the notion
that an individual with a major mental disorder may
have an interval of remission of symptoms, and during
such an interval may have the minimal abilities required
by law to fulfill the criteria for testamentary capacity.
Lucid intervals may be found in individuals who abuse
alcohol or drugs, unless the substance abuse has led to
some chronic, significant mental deterioration. At times,
the lucid interval doctrine has been extended to the indi-
vidual who is lucid for a few minutes. However, those few
minutes are usually insufficient for the individual to
assess and comprehend the factors involved in the distri-
bution of assets. In addition, the individual may be espe-
cially susceptible to undue influence during these few
minutes of lucidity.
Insane delusion
A testator suffering from delusions may appear well to
the psychiatrically untrained. The court is interested in
what is legally called an insane delusion, that is, a mis-
taken belief for which there is ‘no basis in reason, can-
not be dispelled by reason, and can be accounted for
only as the product of mental disorder’ (Am. Jur. 1975).
New York’s highest court dealt with the impact of an
insane delusion as follows:
If a person persistently believes supposed facts,
which have no real existence except in his perverted
imagination, and against all evidence and probabil-
ity, and conducts himself, however logically, upon
the assumption of their existence, he is, so far as they
are concerned, under a morbid delusion; and delu-
sion in that sense is insanity. Such a person is essen-
tially mad or insane on those subjects although he
may reason, act and speak like a sensible man.
(American Seaman’s Friend Society v. Hopper 1865)
To invalidate a will on the basis of the existence of a
delusion, most jurisdictions require proof not only that
the testator had delusional beliefs but also that the will
was a product of the delusions.
Insane delusions often involve demented individuals
who think that their spouses are having affairs. The
Estate of Coffin is a frequently cited case involving the
issue of insane delusion (In re Estate of Coffin 1968).
Coffin agreed to marry a woman who claimed that he
had fathered her child, although she had been with other
men. Shortly thereafter, they divorced and he had noth-
ing to do with this child. Forty-one years later, Coffin met
the child, now a man, for the first time. Based on resem-
blance, Coffin decided that this was indeed his son, but
before he could formally change his will, Coffin, Sr., died.
His son went to court to challenge the validity of the will,
which had been written at a time when Coffin, Sr., did
not believe he had a son. The lower court rejected the will
on the grounds that Coffin, Sr., wrote its provisions as a
result of an insane delusion that this woman’s child was
not his son. The appellate court dismissed this argument
and found that Coffin, Sr., did not have an insane delu-
sion when he wrote his will. There was information that
was sufficient for him to believe that this woman’s child
was not his; he was mistaken but not insanely deluded.
The court went on to write that the petitioner has the
burden to prove, by clear and convincing evidence, that
there were not facts to support the testator’s belief. The
judgment denying probate was reversed.
The following will contest had a different outcome.
Estoll’s will left the bulk of her estate to her only child, a
daughter. The codicil, executed four years later, left the
bulk of her estate to her sister without mention of her
daughter (In re Estoll 1968). The daughter opposed pro-
bate of the will and presented evidence that her mother
had a constant insane delusion that ‘the person who

would normally be the principal or only object of the
testatrix’s concern and bounty’ was trying to poison her.
The decedent told a number of people that the daughter
was trying to poison her. She also would not accept pills
or water from her daughter, but accepted them from her
sister. The codicil was set aside.
Undue influence
Undue influence is defined as manipulation or deception
in engaging the affections of the testator, significantly
impairing the ability of the testator to freely decide on the
distribution of his or her property. By its nature, undue
influence is often the result of concealed actions, and
therefore, it is difficult to determine. A noble purpose does
not justify or legitimize undue influence. Undue influence
must constitute more than friendship or insincere praise.
The courts look for evidence of ‘coercion, compulsion or
restraint,’ which led to a will that does not reflect the desires
of the testator. Some grounds for undue influence include
harassment to the point that the testator agrees in order
to get relief, threats to never return, and lies that result in
negative feelings toward a potential heir (Perr 1981).
A fiduciary relationship is one where the law recognizes
that an individual relies on and trusts another, for example,
attorney–client, doctor–patient, or guardian–ward. The
burden of proof is on a fiduciary who has been left an
inheritance to prove that no undue influence was exercised.
However, if the heir is not a fiduciary, the burden of
proof falls to the person challenging the will. Individuals
may be vulnerable to undue influence because of a chronic
progressive disorder such as cancer, cardiovascular disease
including strokes and heart failure, a variety of neurologic
disorders, chronic organ failure, massive trauma, or meta-
bolic disorders. These same ailments may be so severe that
the individual may also lack testamentary capacity. A less
severe physical ailment may result in the individual’s being
more vulnerable to undue influence while retaining testa-
mentary capacity.
While psychiatrists may not be able to arrive at an
opinion as to whether or not there was undue influence,
psychiatrists may nonetheless assist the court in under-
standing if the individual’s character structure – either
alone or in combination with a physical or mental condi-
tion – made the testator particularly gullible or suscep-
tible to the influence of others. A number of factors may
lead to a weakened ability to resist efforts at undue influ-
ence. The psychiatrist must consider intellectual func-
tioning, overall health and physical condition, as well as
the signs and symptoms of mental disorders that do not
reach the level of negating testamentary capacity.
When examining a testator, some clues that undue
influence may be present include (Redmond 1987):
1 The psychiatrist is assured by the person requesting
the examination that a competency statement is rou-
tine due to the testator’s age.
Civil competencies 311
2 The appointment is made by someone other than the
testator or his/her attorney.
3 The testator is brought to the appointment by some-
one who answers most of the questions for the testator
and is reluctant to allow the testator to be interviewed
alone.
4 Specifics about the will are not given, or the testator
seems unclear about specific items in the will.
5 There is reluctance to give information about poten-
tial heirs and their relationship with the testator.
Psychiatric assessment
An understanding of who has requested the assessment
and for what purpose provides the psychiatrist with a
framework in which to conduct the assessment. The psych-
iatrist should review all relevant records, which may
include medical, psychiatric, counseling, nursing home,
work, school, pharmacy details, as well as other mater-
ials. An independent accounting of the nature and value
of the testator’s estate should be available.
CONTEMPORANEOUS EVALUATION
When the testator is available for examination, the cus-
tomary psychiatric evaluation of an adult is appropriate
(American Psychiatric Association 1996). If attorneys are
to observe the interview, a one-way mirror allows for
observation without undue intrusion. It is useful to record
this examination on videotape (Spar and Garb 1992).
Indeed, a videotape may present compelling information
that may be relevant to a court’s effort, in the future, to
determine if the person possessed testamentary capacity
at the time of the psychiatric assessment. The nearer in
time to the assessment that the will is signed, the more
weight the court will give to the videotape.
A thorough mental status examination should be car-
ried out. If there are impairments noted in the mental
status examination that are difficult to define, then
neuropsychological testing should be considered. Upon
examining the testator, the psychiatrist should be alert to
secrets, anger, and other considerations. Medical prob-
lems cannot be ignored; disabilities secondary to medical
problems must be factored into the decision-making
process.
A number of conditions can interfere with any one of
the three components of the ‘sound mind’ required to
make a valid will. Significant mental disorders such as
schizophrenia, bipolar affective disorder, and organic brain
syndromes are one such cluster. However, evidence of the
existence of one of these conditions does not necessarily
lead to the conclusion that the person was incompetent.
Likewise, the fact that a testator committed suicide does
not automatically invalidate a will. The psychiatrist must
demonstrate that signs and symptoms of the illness from
which the person was suffering directly affected his or her
capacity to make a valid will. The individual with a mild
312 Civil law

dementia may have difficulty recalling new information and Ciccone 1984). The forensic report – which is a vehicle
but may nonetheless know his or her children, the approxi- for communicating with courts and attorneys – should
mate size of his or her estate, and that he or she wishes to include a statement of who requested the evaluation of
reward the child with whom he or she is living with a larger testamentary capacity. In addition, the report on an indi-
share of the inheritance. vidual’s testamentary capacity should include responses
Many medical disorders may affect an individual’s to the following questions:
testamentary capacity, including cardiovascular, neoplas-
1 Does the testator or did the testator suffer from a
tic and autoimmune diseases. The presence of a medical
significant psychiatric disorder?
disorder requires an assessment of its effect on the testa-
2 As a result of the psychiatric disorder, was there impair-
tor’s decision making, but it does not invariably lead to
ment of the testator’s rational understanding that he
an opinion of incompetence to make a will.
or she was making a will?
The evaluator can explore the specific components of
3 Did the psychiatric disorder impair the testator’s abil-
testamentary capacity by asking individuals what their
ity to understand the nature and extent of the estate?
understanding of a will is, and its purpose. Testators can
4 Did the psychiatric disorder impair the testator’s abil-
be asked to describe their property and estimate its value.
ity to identify close relatives and friends?
They can also be asked to describe the division of their
5 Were any delusions elicited or implied regarding the
estate and to talk about heirs and the reasoning under-
testator’s bounty or heirs?
lying their decision to include or exclude their potential
heirs. Since the question of testamentary capacity is often
linked with the issue of undue influence, examining for
signs of undue influence is usually a part of each phase of
GUARDIANSHIP
the assessment.
A guardian is a person to whom the courts have given the
RETROSPECTIVE DETERMINATION power and have charged with the duty of managing the
property and the rights of another person. In addition,
A psychiatrist usually undertakes an examination of some-
a guardian may also be charged with the duty to make
one’s competence to make a will after the person has died.
decisions regarding the physical needs of another person
This retrospective determination requires that the psychi-
who, ‘for defect of age, understanding, or self control, is
atric expert witness make clear to the court that the testa-
considered incapable of administering his own affairs’
tor was not examined. When undertaking a retrospective
(Black, Nolan, and Connolly 1991). A guardian has a
determination, the psychiatrist’s evaluation must rely on
fiduciary responsibility to manage the affairs of the per-
information from friends, relatives, and neighbors and a
son the courts have found incapable of managing his or
review of relevant records, for example, school, military,
her own affairs, and may be held accountable for errors in
work and medical counseling. It is helpful to review letters
the transaction of business affairs on behalf of the ‘ward.’
and notes written by the deceased. A visit to the home in
A guardian does not have title to property; this remains
which the deceased lived, if possible, may be useful (Perr
with the ward.
1981). If the deceased lived in a nursing home, a visit to the
There are different types of guardians. A testamentary
nursing home with interviews of the staff and the individ-
guardian is appointed for a child by a will and has respon-
ual’s physician can provide essential information.
sibility for both the child and the child’s estate until the
The decedent’s medical records may be disclosed, and
child reaches the age of maturity. A guardian ad litem is
the physician–patient privilege (where it exists) and con-
appointed by the court to protect the interests of a minor,
fidentiality requirements may be waived when the dece-
an incompetent, or a proposed conservatee in litigation to
dent’s medical condition is put into issue by the executor,
which he is a party. A special guardian, also known as a
surviving spouse, heir at law, next of kin, or any other
limited guardian or a conservator, has limited powers
party in interest.
and duties with respect to the ward; that is, managing a
The fact that an individual has had a guardian or
ward’s financial affairs. A general guardian has the add-
committee appointed does not deprive him or her of the
itional obligation to provide for the ward’s general personal
power to execute a valid will (Redmond 1987). However,
needs including housing, clothing, food, health care,
an order appointing a guardian or committee raises the
recreation, education, and other needs as appropriate.
inference, which the proponent of the will must over-
In the first part of the twentieth century, general
come, that the individual lacks testamentary capacity
guardianship was in favor, but in recent decades there has
(Bromberg 1980).
been a movement toward the establishment of specific
guardianships for specific purposes (Brakel, Parry, and
Communicating with the legal system Weiner 1985).
The evaluation of an individual regarding the need for
The legal system has recognized the utility of the medical a guardian follows the general principle of determining if
expert witness in the legal system’s mission (Clements the person suffers from a mental disorder, and describing

how the symptoms of that disorder impair a person’s
functioning. The nature of that assessment can include
eliciting a description of a typical day from the individ-
ual and conducting a home visit. (Melton et al. 1997).
History
Roman law included the procedure to preserve the
property of an incompetent individual. This tradition of
protecting the property of an incompetent individual
continued in English Common Law and in colonial
America. These efforts represent an attempt to preserve the
estate of the incompetent so that those who have rightful
claims against the estate, as well as those who could be
expected to be supported by the estate, would be protected
from having the estate dissipated by the incompetent.
It has been suggested that the parens patriae powers of
the state are derived from these property concerns, and
only in more modern times have concerns about the care
and well-being of the individual been included in the
parens patriae doctrine. Others hold that the feudal sys-
tem placed the lord of the manor not only in the role of
watching over the property interest of his charges but
also giving him significant responsibility for their overall
well-being, which gives the broader parens patriae doc-
trine a longer history.
In most jurisdictions, there is a presumption of com-
petency when adults enter into contractual arrangements
or make decisions as they live their lives. It is currently
accepted that the state has the authority to protect
incompetent individuals and to preserve their property.
This may be done by creating either a limited or a general
guardianship.
Limited guardian
In some jurisdictions the law provides for the creation of
a conservatorship, a mechanism to ensure the financial
well-being of an individual. A conservatorship does not
require that the person be found incompetent, just that
the person cannot care for him/herself, as the result of
physical and/or mental dysfunction. In New York State,
for example, a petition for a guardian of the person and/
or property may be filed by a relative or a friend; the mean-
ing of the word friend includes corporate bodies, public
agencies, or social service officials. If the proposed con-
servatee is in an institution, the officer in charge of the
institution may also file a petition. The petition must
contain the reasons for concern about the individual’s
ability to manage his or her affairs. The facts must
demonstrate the need for an appointment of a conserva-
tor to ‘insure the preservation, maintenance, and care of
the proposed conservatee’s income, assets, and personal
well-being, including the provision of necessary per-
sonal and social protective services to the conservatee’
(New York State Mental Hygiene Law).
Civil competencies 313
Due process rights require that notice of the petition
be served on the proposed conservatee as well as his or
her spouse and children. If no immediate family exists,
the conservatee’s distributee – a person entitled to a share
in the distribution of the estate – must be served. If none
exists, then notice must be served on the person/entity
with whom the conservatee resides. The conservatee may
be present and a guardian ad litem may be appointed to
represent the proposed conservatee’s interest. If after the
hearing a conservator is appointed, the court must set
forth a specific plan as to its duration and the directions
for maintenance of assets and social protective services
for the conservatee.
Many jurisdictions require that when the proposed
conservatee is unable to attend the hearing, a guardian ad
litem must be appointed unless the court believes that
the proposed conservatee’s interests are adequately pro-
tected by counsel chosen by the proposed conservatee.
Jury trial is available when any party contests the need for
appointment of a conservator.
Usually, a family member is appointed as conservator,
but a non-family member may be appointed, especially
when there are family disagreements. An eighty-four-year
old quadriplegic woman, who resided in a nursing home,
had a trust that could be invaded for her medical care
(In re Lyon 1976). At issue was the care that was keeping
Mrs. Lyon alive, which was both comprehensive and costly.
Her son considered her present care to be ‘squandering’
in view of her condition. However, in the opinion of
Mrs. Lyon’s physician, this care had been lifesaving. The
court did not appoint her son conservator. Family mem-
bers may not always have the best interest of the conserva-
tee in mind, especially when they stand to inherit the estate
that remains after the expense incurred by the conservatee.
Where there is no family member available – a more
frequent occurrence than is generally appreciated – the
court may appoint a non-profit corporation as conserva-
tor. It is possible for a Department of Social Services to act
as conservator, even if the conservatee does not receive
public assistance. A conservatorship, while charging the
conservator with the duty to look after the ward and sup-
plying his or her needs, does not empower the conservator
with the legal decision-making capacity regarding con-
sent to treatment; that requires the creation of a general
guardianship.
General guardian
A general guardianship, which in some jurisdictions is
called a committee of the person, involves a finding of
incompetence and the appointment of a committee.
Since this is a more drastic measure with far-reaching
consequences, it is more difficult to accomplish because
the courts have been reluctant to take from a person
his or her civil rights, particularly the right to manage
his/her own affairs. The law requires the person bringing
314 Civil law
the petition to state the facts showing incompetence and
to demonstrate why a conservatorship would be inappro-
priate. When any party disputes the need for a general
guardian, a jury trial is available, and the burden of proof
falls on the petitioner.
For the court to appoint a guardian for an individual
requires evidence that the conservatee suffers a substan-
tial impairment of his or her ability to manage his/her
property, or has become unable to provide for him/
herself or his/her dependents, due to a specified disability.
A showing that a person suffers from a mental disorder
alone is insufficient. There must be clear and convincing
proof of a substantial impairment of the proposed con-
servatee’s ability to manage his or her affairs (In re Baily
1974). Expert testimony is not required, but as a practical
matter it is usually employed. The physician – usually a
psychiatrist – who undertakes a competence evaluation
is not assessing competence in the abstract but rather
with respect to the ability to make specific informed
decisions. The specific criteria used in the creation of a
guardianship vary from jurisdiction to jurisdiction. If a
specific or general guardianship is to be created on the
grounds of the person having a mental disease or defect
that impairs his or her capacity to make requisite judg-
ments, then it is incumbent on the psychiatric expert
witness to support his or her opinion with appropriate
clinical data. However, the expert’s opinion is just that,
and it is not binding on the court.
Termination of guardianship
A ward who thinks that he or she is able to manage
his/her affairs would apply, in most jurisdictions, for a
hearing to have his/her competence restored. Some juris-
dictions call for a periodic review of incompetence, and
other jurisdictions (e.g., California) have provisions for
automatic restorations of competence unless the guard-
ian petitions for reappointment. If there is a finding of
restoration of competence, the individual regains his or
her right to make personal and financial decisions, and
the guardian is relieved of his/her duties.
As with the creation of a guardianship, the termin-
ation of a guardianship requires informing relevant indi-
viduals about the hearing. There is wide variation among
jurisdictions regarding who should be notified and who
must be present at the hearing regarding the termin-
ation of competence. This lack of attention to basic due
process rights, along with the vague standards of incom-
petence, has caused some to question the fairness of the
guardianship process. With the population of the United
States aging and deinstitutionalization a reality in most
of the country, guardianship issues will become increas-
ingly important. The psychiatric expert witness evalu-
ating an individual in preparation for a guardianship
hearing will want to be mindful of the potential abuses of
guardianship. Information about who has raised the issue
of the individual’s need for a guardian, why it is being
sought, and what will be the effect of a specific or general
guardianship is important to a careful evaluation.
As symptoms fluctuate, so too may capacity. The psy-
chiatric examiner should consider whether treatment or
the introduction of social support services will allow a
person to remain independent. In this way, the psychiatric
expert witness is able to provide the court with clinically
relevant and legally useful information about an individ-
ual’s ability, in varying contexts, to make and communi-
cate decisions regarding one’s self and property.
Contractual capacity
Contractual capacity refers to the individual’s capacity
to enter into agreements; society places a great deal of
importance on the sanctity of the contract. Pettit (1999),
in reviewing the evaluation of contractual rights and the
mentally ill noted, ‘the most striking change is that the
mentally disabled are now allowed to contract at all.’
As with the evaluations of other civil competence, the
context of the request is important. The determination of
the presence of a mental disorder and the nature of the
resulting impairments is essential to arriving at an opinion
regarding an individual’s capacity to enter into a contract.
Of course, capacity may vary over time. One consideration
is the nature and complexity of the contract and the sever-
ity of the individual’s illness at the time he or she enters
into the agreement.
In a 1963 seminal case, Faber v. Suite Style Manufac-
turing Corporation, Faber contracted for land at White
Lake in the Catskills, against the advice of his attorney.
Faber planned to use the property to build a 400-room
hotel with a marina and a golf course. At the hearing, the
expert witnesses agreed that Faber was in the manic phase
of his manic depressive illness at the time he entered
into the contract. The court found Faber incompetent to
enter into the contract because he acted ‘under the com-
pulsion of a mental disease or disorder but for which the
contract could not have been made.’
In the Ortelere v. Teachers’ Retirement Board case
(1969), the court examined the kinds of mental incompe-
tency which may void the contractual agreement. Ortelere,
while under psychiatric care, changed her retirement option
to a maximum allowance which extinguished all interests
upon her death. Her husband sued claiming she was not
mentally competent to enter into this agreement. The court
found that Mrs. Ortelere suffered from an involutional
psychosis, melancholia type (now called major depres-
sive disorder, severe with psychotic features) on the date
she entered into the contract. Determining that the cogni-
tive rules for incompetence were too restrictive, the court
expanded the grounds of incompetence to include affec-
tively driven behaviors resulting from a psychosis. The
court went on to find the contract void because the indi-
vidual entering into the contract was laboring under a

mental defect that prohibited the individual from acting in
a reasonable manner and the other party had knowledge of
the defect. In this case, the Board of Education knew the
impairment because Ortelere’s mental illness led to her
leave of absence.
As with testamentary capacity, contractual capacity
provides a mechanism for society to provide protection
to incompetents. A judicial determination of compe-
tency speaks to the individual’s incompetence at the time
of the hearing and, in many jurisdictions, there is no
retroactive effect. Some have argued that the fact that a
person has a guardian should mean that, as a matter of
law, the ward’s action (e.g., entering into a contract) is of
no legal consequence (Meiklejohn 1988). Those holding
this view assert that the ward has been found incompe-
tent, and in order for the guardian to protect the ward’s
estate, the guardian has to be able to have control over it.
The opposing view argues that the order establish-
ing a guardianship creates a rebuttable presumption of
incapacity to enter into a contract; the hearing resulting in
guardianship may be flawed since many of these hearings
are short and summary in character. They further argue
that the state has an interest in upholding contracts, and
those dealing with the ward may not have had construct-
ive notice of the guardianship and may have acted in
good faith. They assert that contractual competency pro-
vides the government with another opportunity to inter-
fere with an individual’s decisions.
Most jurisdictions take a middle position, providing
grounds for an individual to be found incompetent to
enter into a contract but requiring the person requesting
that the contract be voided to carry the burden of proof.
To be found lacking contractual capacity, the court must
be convinced that the individual had a significant mental
disability that impaired his or her capacity to understand
the character of the transaction and act in a reasonable
manner. In some jurisdictions, it must be shown that the
other party knew of the incompetency or acted in bad
faith. At times, the ‘fairness’ of the contract will deter-
mine if it will be upheld by the court.
REFERENCES
79 Am. Jur. 2d Wills, 341 (1975).
American Psychiatric Association. 1996: Practice Guidelines.
Washington, DC: American Psychiatric Association.
American Seaman’s Friend Society v. Hopper, 33 N.Y. 619
(1865).
Black, H.C., Nolan, J.R., Connolly, M.J. 1991: Law Dictionary.
6th edition. St. Paul, MN: West Publishing Co.
Civil competencies 315
Brakel, S.J., Parry, J., Weiner, B. 1985: The Mentally
Disabled and the Law. Chicago: American Bar
Association.
Bromberg, W. 1980: The Uses of Psychiatry in the Law.
New York: Plenum.
Clements, C.D., Ciccone, J.R. 1984. Ethics and expert
witnesses: the troubled role of psychiatrists in court.
Bulletin of the American Academy of Psychiatry and
the Law 12, 127–36.
Faber v. Suite Style Manufacturing Corporation, 242
N.Y.S.2d 763 (Sup. Ct. 1963).
Friedman, L. 1985: A History of American Law, 2nd
edition. New York: Simon & Schuster.
Guilmette, T.S., Krupp, B.H. 1999. The role of mental
status measures in civil competence determinations.
Journal of Forensic Neuropsychology 1, 1–16.
In re Bailey, 362 N.Y.S.2d 226 (Sup. Ct. 1974).
In re Estate of Coffin, 246 A.2d 489 (N.J. App. Div. 1968).
In re Estate of Estoll, 291 N.Y.S.2d 411 (App. Div. 1968).
In re Lyon, 382 N.Y.S.2d 833 (App. Div. 1976), aff’d, 364
N.E.2d 847 (N.Y. 1977).
In re Will of Coe, 62 N.Y.S. 376 (App. Div. 1900).
Meiklejohn, A.M. 1988. Contractual and donative capacity.
Case Western Reserve Law Review 39, 307–87.
Melton, G.B., Petrila, J., Polythress, N.G., Slobogin, C.
1997: Psychological Evaluations for the Court, 2nd
edition. New York: Guilford Press, 338–45.
Natale, K.R. 1989. A survey, analysis, and evaluation of
holographic will statutes. Hofstra Law Review 17,
159–201.
New York State Mental Hygiene Law, Article 81.
Ortelere v. Teachers’ Retirement Bd., 250 N.E.2d 460
(N.Y. 1969).
Perr, I.N. 1981. Wills, testamentary capacity and undue
influence. Bulletin of the American Academy of
Psychiatry and the Law 9, 15–22.
Pettit, M., Jr. 1999. Freedom, freedom of contract and
the ‘Rise and Fall’. Boston University Law Review 79,
263–354.
Redmond, F.C. 1987. Testamentary capacity. Bulletin of
the American Academy of Psychiatry and the Law 15,
247–56.
Roth, L., Meisel, A., Lidz, C. 1977. Tests of competency to
consent to treatment. American Journal of Psychiatry
134, 279–84.
Slovenko, R. 1973: Psychiatry and Law. Boston: Little,
Brown and Company.
Spar, J.E., Garb, A.S. 1992. Assessing competency to
make a will. American Journal of Psychiatry 149,
169–74.
Szasz, T. 1963: Law, Liberty and Psychiatry. New York:
Macmillan.

Death, dying, and the law
NORMAN L. CANTOR
Ever since the 1960s, when medical science first became
capable of prolonging the dying process beyond bounds
that many patients would find acceptable, people have
sought ‘death with dignity,’ or ‘a natural death,’ or ‘a good
death’ (Webb 1997). Once debilitation from a fatal afflic-
tion has reached a personally intolerable point, dying
patients have sought to control the manner and timing
of death via diverse techniques. Some dying patients have
sought disconnection of life-sustaining medical inter-
ventions such as respirators and dialysis machines.
Beyond freedom from unwelcome interventions, some
patients intent on avoiding suffering have sought access
to pain relief medication – even in dosage posing some
risk (perhaps even certainty) of hastening death. To
avoid unbearable suffering, other dying patients have
sought access to deep sedation, even knowing that they
would never emerge from the resultant unconsciousness.
Still other patients have sought to hasten an impending
death by voluntarily refusing to eat or drink or to accept
artificial nutrition and hydration. Finally, some suffering
patients seek the more expeditious route of assisted sui-
cide (via a prescription of lethal medication) or even
active euthanasia (via a lethal injection at a physician’s
hand).
From the outset, a variety of forces have sought to cir-
cumscribe the human wish to shape the dying process.
Religious sources sometimes opposed a patient’s preroga-
tive to control the timing of death on the ground that
only God should have dominion over life and death.
Medical practitioners sometimes resisted patient preroga-
tives because of professional dedication to principles of
cure and preservation of human life or a conviction that
medical professionals are better suited to make end-of-
life decisions than distraught patients or families. Some
social observers invoked sanctity of life as a sacrosanct
principle and viewed life-shortening measures as incon-
sistent with that principle. Other observers feared
exploitation of vulnerable populations if life and death
decisions were allocated either to stricken patients or
their surrogates. Advocates for disabled persons resented
the distasteful message supposedly broadcast when an
35
afflicted person ends life support on the basis that the
debilitated existence is intolerable.
Starting in 1976, with the Quinlan case in New Jersey,
courts and legislatures have outlined the legal bounds
governing medical conduct in the dying process (In re
Quinlan 1976). Certain principles have become hallmarks
of death and dying jurisprudence. Competent persons
have a broad legal prerogative to decide how to respond
to fatal afflictions – how much to struggle, how much to
suffer, how much bodily invasion to tolerate, and how
much helplessness and indignity to endure. They can
resist life-sustaining medical interventions even if that
step will precipitate their deaths and even if the personal
values underlying the choice seem idiosyncratic or fool-
ish. Suffering patients can have access to palliative inter-
ventions, even if such interventions pose a risk of hastening
death. Even after competence is lost, conscientious sur-
rogates may exercise end-of-life options on behalf of the
formerly competent patient. For example, a conscientious
surrogate can seek an end to artificial life support where
the now-incompetent patient previously expressed a desire
to reject life support in the situation now at hand. In
some jurisdictions, a surrogate can seek withdrawal of life
support where a judgment can be made that the patient,
if competent, would choose this course, or where the
burdens of continued existence so outweigh the benefits
that death can fairly be deemed to be in the patient’s best
interest. Assistance to suicide and active euthanasia are still
forbidden. This chapter will describe in detail the contours
of permissible medical response to the dying patient’s
pursuit of death with dignity.
Because a competent patient enjoys considerable
decision-making prerogatives, a lot hinges on the deter-
mination of competency. The term competency here
means mental capacity to make the particular medical
decision at hand. (A person is legally incompetent for all
purposes and dependent on a legal guardian only after a
formal judicial declaration; such a judicial proceeding is
undertaken in relatively few instances.) Adult patients
are generally presumed capable of making their own
medical decisions, though in the context of end-of-life

care, some patients may be so debilitated that they lack or
lose decision-making capacity. When a patient’s capacity
is in doubt, attending medical personnel must make an
assessment and, if the determination is against capacity,
must seek a surrogate decision maker on behalf of the
patient. Usually, that surrogate will be a relative or friend
of the patient who has shown interest in the patient’s
welfare. If the patient previously designated a surrogate
decision maker, that choice should be respected unless
the surrogate exhibits unfaithfulness to the patient’s
wishes or welfare.
While psychiatrists or psychologists are often enlisted
in making an assessment of a patient’s decision-making
capacity, there are no simple formulae or tests for making
that assessment. Decision-making capacity means the
mental capability to understand and act upon the nature
and consequences of the contemplated courses of action.
For a decision entailing possible fatal consequences, a
patient has to be capable of understanding the nature of
the affliction and the meaning of death as well as being
able to weigh the alternative treatment or non-treatment
courses and their likely consequences. No universal cri-
teria govern assessment of these issues, leaving room for
subjectivity and variations in professional determinations
of competency. Experts can and do differ in their assess-
ments. Also, the competent patient’s decision does not
have to be sound and well considered. A patient is entitled
to make a foolish decision and medical personnel are not
permitted to find incapacity just because they vigorously
disagree with a patient’s determination. A practitioner
can withdraw from a case where the patient’s chosen course
offends the practitioner’s conscience, but the patient can-
not be abandoned without referral to a healthcare provider
who can cooperate with the patient.
Depression poses a particularly difficult problem in
assessing capacity. Dying patients are frequently depressed.
The presence of depression does not, by itself, preclude
competency. Only when the depression is at a level that
significantly distorts the patient’s ability to weigh medical
options can incapacity be found.
COMPETENT PATIENTS
The legal foundation
As noted, Quinlan in 1976 set the pattern for succeeding
death and dying jurisprudence. Karen Ann Quinlan was
twenty-one years old when a mix of alcohol and drugs
caused brain damage that left her in a permanently
unconscious state. Her biologic functions were maintained
by a respirator and artificial nutrition and hydration
(ANH). Her devoted father sought judicial appointment
as Karen’s legal guardian with authority to remove the
respirator. Opposition to the father’s petition was
grounded primarily on claims that detachment of the
respirator would constitute murder and that courts should
Death, dying, and the law 317
not interfere with her physician’s professional judgment
favoring continued life support. The New Jersey Supreme
Court unanimously upheld the father’s petition. That court
posited that Karen, if competent, would be constitutionally
entitled to resist life-sustaining medical intervention.
Her entitlement flowed from the 14th Amendment to the
Federal Constitution and its protection of liberty. In light
of Karen’s incompetence, her loving father could exercise
the liberty right on his daughter’s behalf. The court repu-
diated any notions of murder or improper interference
with medical judgment. According to the court, the imple-
mentation of a patient’s constitutional prerogative could
not be deemed unlawful homicide. Improper interference
with medical judgment would not ensue because medical
ethics recognized patients’ entitlement to choose their own
course of treatment (and to have a surrogate choose once
the patient has become incapacitated).
Succeeding courts have accepted the Quinlan premise
that a competent patient may reject life-sustaining
medical intervention. A number of state courts echoed
Quinlan and grounded the patient prerogative in the
constitutional protection of liberty. Other courts stressed
a non-constitutional basis – the common-law principle
that a medical practitioner must secure informed consent
before initiating medical treatment. To treat without
such consent is a tort, an unconsented touching. Still
other courts used both the Constitution and the common
law as the legal foundation for the patient’s prerogative.
A strong majority of jurisdictions have case law uphold-
ing a competent individual’s rejection of artificial life
support (Gasner 1990).
In 1990, the U.S. Supreme Court reinforced the notion
that the Constitution’s protection of liberty encompasses
rejection of life-sustaining medical intervention. In the
context of a permanently unconscious patient, the Court
noted that many state courts had upheld a patient’s
prerogative (implemented by a surrogate) to reject treat-
ment and the Court ‘assumed’ for the sake of argument
that a competent patient would have a constitutional
right to reject treatment (Cruzan v. Director, Missouri
Dept. of Health 1990). Further, the Court followed state
court precedents in assuming that the patient could resist
ANH as well as other forms of medical treatment. Seven
years later, the U.S. Supreme Court reaffirmed a patient’s
constitutional right to reject life-sustaining medical
intervention, but refused to extend the patient’s protected
options to include ingestion of a poison, i.e., assisted sui-
cide (Washington v. Glucksberg 1997). That 1997 decision
focused on the patient’s liberty interest in bodily integrity,
meaning freedom from unwanted bodily invasions, as
opposed to a broader prerogative to control the manner
and timing of death.
State court decisions upholding a competent patient’s
liberty to reject life support have relied on both patient
autonomy – i.e., self-determination in deciding how and
if to respond to a fatal affliction – and bodily integrity.
The autonomy interest has prevailed even when the
318 Civil law
prospective bodily invasions have been rather slight, as in
the case of refusal of a life-sustaining blood transfusion.
Those same decisions have considered and rejected pos-
sible governmental interests opposing the patient’s pre-
rogative. The cases acknowledge a legitimate governmental
interest in promoting sanctity of human life, but they
also tend to find that a patient’s liberty interests (self-
determination and bodily integrity) simply outweigh
the abstract interest in sanctity of life (In re Conroy 1986;
Fosmire v. Nicoleau 1990). The courts note that upholding
a dying patient’s decision to reject treatment exalts self-
determination rather than deprecating sanctity of life.
Similarly, courts acknowledge a legitimate government
interest in preventing suicide, but refuse to equate rejec-
tion of treatment with suicide. The main distinction is
that suicide involves initiation of a self-destructive course
(e.g., ingesting a poison or shooting oneself), while
refusal of treatment involves letting a fatal affliction fol-
low its natural course. Sometimes, there is also a state of
mind distinction between suicide and rejection of life
support. That is, a patient rejecting medical intervention
may not desire to die, but only to avoid an offensive bod-
ily invasion. Yet that state of mind distinction does not
always hold up, as some patients rejecting treatment find
their quality of life intolerable and indeed intend to die.
Other conflicting governmental interests have also
not curbed the competent patient’s prerogative to refuse
treatment. Efforts to assert a countervailing government
interest in upholding medical judgment and medical
ethics have met the same fate as in Quinlan – a finding
that professional ethics recognize a patient’s prerogative
to determine his or her medical fate. While the courts
acknowledge a healthcare provider’s interest in main-
taining personal scruples or conscience, the judicial solu-
tion is to allow the conscientious provider to withdraw
(while referring the patient to another provider), but not
to override the patient’s preference to forgo treatment.
Occasionally, government has asserted an interest in pro-
tecting the lives and well-being of dependents of the
patient rejecting life support. In at least one early case, in
1964, a court used that rationale to help justify its author-
ization of medical intervention against a patient’s wishes
(Georgetown College 1964). More recent cases have gone
the other way, upholding the patient’s decision to reject life
support so long as the dependents will not be totally
abandoned, i.e., so long as there will be a surviving spouse
or relative to care for the dependents (Fosmire v. Nicoleau
1990).
Scope of the competent patient’s
prerogative
TYPES OF MEDICAL INTERVENTIONS
AND PROXIMITY OF DEATH
Early discussions of a patient’s right to reject life-sustaining
medical intervention considered possible limitations on
that prerogative. One notion was that ‘extraordinary,’ but
not ‘ordinary,’ medical means could be withdrawn at
a patient’s behest. That dichotomy originated in Roman
Catholic doctrine defining extraordinary means as par-
ticularly complex, invasive, or expensive treatments. Under
such a framework, a respirator would be deemed extra-
ordinary and therefore expendable, but a blood transfusion
would not. The extraordinary/ordinary distinction has
not prevailed in legal doctrine. A patient’s right to resist
bodily invasions encompasses all medical techniques from
the simplest aspirin tablet to the most elaborate machine.
In the early 1980s, some commentators sought to dif-
ferentiate among medical interventions and to exclude
the withholding of ANH as a medical option. Their con-
tention was that provision of ANH constitutes feeding,
and that such feeding reflects a basic human obligation
and symbolizes the nurturing spirit of medicine. The
courts have almost uniformly rejected this effort to dif-
ferentiate between ANH and other forms of medical
intervention. The judicial position has been that the need
for ANH is prompted by disease or other pathology, and
that the patient is as entitled to control ANH as any other
medical response to bodily dysfunction. Some state legis-
latures, usually in the context of regulating advance
medical directives, have been more sympathetic with the
effort to distinguish between ANH and other medical
means. This sympathy, though, has only generated a
requirement in several states that the declarant in an
instruction directive specifically mention ANH if the
declarant wants to reject such treatment. The vast majority
of jurisdictions still allow rejection of ANH, most of them
without a requirement of separate mention of ANH.
Early cases also hinted that a patient’s prerogative to
reject treatment might be confined to end-stage care, i.e.,
when unavoidable death is near at hand. Those cases sug-
gested that the government interest in preserving life might
prevail against the patient’s autonomy interest unless life
could only be temporarily sustained – when ‘the issue is
not whether, but when, for how long and at what cost to
the individual his life may be briefly extended’ (Satz v.
Perlmutter 1978 at 162; Superintendent of Belchertown
State School v. Saikewicz 1977). More recent cases clarify
that the patient’s prerogative to resist medical interven-
tion is not confined to the end-stage of a dying process
or even to unavoidably terminal conditions (In re Peter
1987). This means that a patient can refuse treatment
even at an early stage of a degenerative disease process
and even in situations where the patient is salvageable to
a healthful existence. (This last situation occurs primarily
when, for religious reasons, a patient declines a potentially
life-saving medical intervention.)
Note that cardiopulmonary resuscitation (CPR) is
governed by principles similar to those applicable to other
forms of life-sustaining medical intervention. That is, a
competent patient is entitled to dictate that CPR not be
performed in the event of cardiac or respiratory arrest.
Most hospitals have protocols for obtaining a debilitated

patient’s (or, where appropriate, a surrogate’s) consent
to a do-not-resuscitate (DNR) order that is then entered
in the patient’s chart and signaled to medical personnel
in some other fashion. Many states have also adopted
protocols for honoring DNR orders in out of hospital
settings. In addition, medical personnel may refrain from
CPR where such intervention is highly unlikely to suc-
ceed in restoring continuous cardiorespiratory function.
MEDICAL FUTILITY
That a competent patient can accept or reject proffered
medical treatment does not mean that the patient is
entitled to receive every medical treatment that the patient
demands. Medical futility is a term often used to express
an ultimate limitation on what services patients can
demand. That term has aroused considerable dispute.
Some sources assert a general medical prerogative to
refuse to offer or supply services that are ‘not medically
indicated’ or ‘futile.’ Other sources view the concept of
medical futility as an attempt to reassert provider control
of medical services and to undermine the patient’s pre-
rogative to shape medical care (Rubin 1998).
The issue of medical futility is complex. A healthcare
provider may legitimately assert a prerogative to assess
the physiological utility of possible treatments. That is, a
physician’s professional judgment includes an assessment
of the potential effectiveness of treatments, including a
conclusion that a treatment modality will not have an
impact on the patient. A conclusion of physiological futility
permits a physician to withhold the treatment modality,
subject only to two constraints. To avoid malpractice, the
physician in judging treatment effects must meet profes-
sional skill standards. And the physician ought to inform
the patient about the judgment of futility, so that the
patient can obtain a second opinion.
Where the issue is not physiological futility, but rather
the appropriateness of sustaining a severely deteriorated
life, the scope of professional judgment is limited (Jecker
and Schneiderman 1993). Whether the quality of a remain-
ing existence warrants continued medical treatment is
largely a value judgment reserved for the competent patient
or the patient’s representatives (in conjunction with
medical staff) and is not an issue for unilateral medical
judgment. A healthcare provider in an institutional context
can ask for an ethics consult in the hope of clarifying the
medical picture and inducing a patient or representative
to alter course. A healthcare provider may also voice con-
scientious objections to continued medical intervention
and may seek to withdraw from the case – with referral
to a more cooperative clinician. But the provider cannot
unilaterally terminate life support for a deteriorated but
preservable patient.
Very few cases speak to the concept of medical futility,
especially in its qualitative sense involving a judgment
that the remaining existence is not worth preserving. In a
well-known Minnesota case, a hospital went to court
Death, dying, and the law 319
seeking a change of guardian when a husband insisted on
continued respirator support for his permanently uncon-
scious spouse (In re Wanglie 1991). The judge refused to
oust the husband as guardian – since the husband pur-
ported to be implementing his wife’s wishes – and the
life support continued. In a Massachusetts case called
Gilgunn, the daughter of an elderly deceased patient
sued Massachusetts General Hospital for having discon-
nected life support from the then-comatose patient,
in contravention of the daughter’s instructions (Capron
1995). In that instance, the attending physician had
secured an ethics consult and received endorsement,
from the head of the hospital ethics committee, for
removal of life support. A jury refused to award damages
against the hospital. That jury verdict does not represent
a general legal acceptance of a medical prerogative to
unilaterally determine qualitative futility. Indeed, when a
hospital sought judicial authorization to withhold ‘futile’
treatment to an anencephalic infant over the mother’s
objections, the court declared that the hospital’s failure
to provide the requested life-extending services would
violate a federal statute requiring stabilizing treatment
for any emergency medical condition (Matter of Baby K
1994). In sum, a healthcare provider can only hope to
invoke the futility concept and to overturn a conscien-
tious surrogate’s insistence on continued life support
when the surrogate’s course is abusive – i.e., when the
patient is being subjected to pointless suffering or when
the surrogate’s course seems aberrant in diverging with-
out explanation from what the vast majority of people
would want (Cantor 1996a).
PALLIATIVE CARE: FROM RISKY ANALGESICS
TO TERMINAL SEDATION
Provision of effective pain relief is increasingly viewed
as an integral part of medical responsibility to patients. In
recent years, the medical profession has moved rapidly to
increase education about pain control, to establish guide-
lines for practitioners engaged in treating intractable
pain, and to eliminate perceived barriers to use of opioids
as part of palliative care (Rich 2000). This increased sen-
sitivity to palliative care probably comes in reaction to
two phenomena: (i) studies showing that a high percent-
age of dying patients experience significant pain despite
major advances in analgesic techniques; and (ii) claims
by advocates for physician-assisted suicide (PAS) that
unrelieved suffering of some dying patients necessitates
resort to PAS.
From a legal perspective, there is no question that
healthcare providers are allowed to furnish effective anal-
gesic relief, even when the pain medication poses some
risk of hastening a patient’s death. The professional
imperative to mitigate suffering justifies some risk of
hastening death. The matter is analogous to a risky open-
heart surgery; the prospect of a patient’s major gain in
quality of life justifies the risk involved in the surgery.
320 Civil law
Of course, professional guidelines exist for administration
of pain relief, and healthcare providers must conform to
them in order to avoid malpractice liability or professional
discipline. Those guidelines dictate that risky pain relief
be necessary – i.e., that the pain be intractable, that no
less dangerous analgesic exist, and that dosage be titrated
upward in a careful fashion.
The conventional wisdom in medico-legal circles says
that a healthcare provider can lawfully give a risky dose
of analgesics as long as the impetus is a patient’s severe
suffering and the provider’s specific intention is to ease
suffering rather than to cause death. The New York State
Task Force on Life and the Law observes:
It is widely recognized that the provision of pain
medication is ethically and professionally acceptable
even when the treatment may hasten the patient’s
death if the medication is intended to alleviate pain
and severe discomfort, not to cause death. (N.Y. Task
Force 1992)
This focus on the palliative care provider’s intention
seeks to transpose the doctrine of double effect to the
medico-legal context. Under that doctrine, a proportion-
ately good effect (relief of suffering) may overcome a
foreseeable bad effect (causing death) so long as the actor
does not intend to accomplish the bad effect. The effort
to use the doctrine of double effect, with its focus on a
physician’s intention, seems inconsistent with traditional
legal doctrine. Traditional doctrine establishes that it is
criminal homicide to knowingly cause death, even if the
actor’s motive or intention is to relieve suffering. Mercy
killing has always been prohibited in the Anglo-American
system.
The better explanation for the legality of aggressive
palliative care is found in criminal law principles of reck-
lessness and justification that allow a measure of medical
risk-taking. A physician is justified in incurring some risk
of death (but not a certainty of death) in order to relieve
a patient’s unbearable suffering (Cantor and Thomas
2000). No criminal responsibility is incurred unless the
palliative care provider is reckless and departs grossly
from professional standards. Current professional stand-
ards authorize risky analgesics where necessary to relieve
intractable suffering. ‘The risk of death is justified, not
because it is unintended but because there is no alterna-
tive approach that makes the risk of death less likely and
the alleviation of suffering possible’ (Fleischman 1998 at
261). The fact that the physician administering pain relief
is creating a risk of death rather than certainly precipitat-
ing death also helps differentiate legitimate pain relief
from euthanasia.‘We view the administration of morphine
to reduce suffering not really as killing but as an act of
risking death to secure pain relief, analogous to risking
death by submitting to a potentially life-saving operation’
(Wennberg 1989 at 105).
Another form of aggressive pain relief is deep seda-
tion rendering an egregiously suffering, dying patient
unconscious or stuporous during the remainder of a
dying process. The medical objective is to relieve a variety
of intractable physical or emotional conditions some-
times accompanying the dying process. Refractory phys-
ical suffering can be engendered by pain or discomforts
such as nausea, vomiting, or dyspnea. Emotional suffer-
ing can be associated with respiratory distress, agitation,
fatigue, incontinence, or helplessness. In the small per-
centage of cases in which customary palliative care does
not adequately relieve suffering, deep sedation becomes a
possible course. This is known as terminal sedation (TS),
where the patient is likely to expire while still sedated.
Most forms of deep sedation are clearly lawful under
the principles of recklessness and justification discussed
above. For example, deep sedation is frequently used
as an adjunct to withdrawal of life-sustaining medical
machinery such as extubation of a ventilator-dependent
patient. To avoid any suggestion of criminality, care
providers are expected to use sedative dosages commen-
surate with keeping the patient unconscious, but not
killing them. Any modest risk that the sedatives will has-
ten death is justified by the need to relieve suffering. The
same legal rationale applies to TS that is used when an
egregiously suffering patient is within hours or days of
death. Because the patient is near death, it is impossible to
know definitively whether the sedation hastens death. But
as long as the sedation is administered in quantity geared
to maintaining unconsciousness, the risk that death
might be hastened is justified by the palliative necessity.
A problematic element sometimes connected with
deep sedation is the simultaneous withholding of ANH.
Some commentators contend that cessation of ANH serves
as a gratuitous means to hasten the sedated patient’s
death (via dehydration) – a gratuitous means assertedly
akin to euthanasia because the relief of suffering is
already accomplished by deep sedation (Orentlicher
1997). Withholding of ANH does not seem to pose a
serious legal problem in the typical case, where the deep
sedation is instituted only during the last few days of a
patient’s dying process. The patient is already gravely
debilitated and may well have naturally cut back on food
and fluid intake, so it is impossible to establish that with-
holding of ANH causes death. Moreover, there is often a
palliative justification – such as avoidance of pulmonary
edema – for withholding ANH as part of end-stage care.
The problematic aspect of TS surfaces if withholding of
ANH takes place at an earlier point in the dying process,
perhaps many weeks before the patient would normally
die from the underlying disease. In that instance, death
from dehydration might plausibly be shown. There is no
real legal precedent, so analysis of this long-term TS
accompanied by withholding of ANH must be tentative.
One perspective is that once relief of suffering is achieved
via deep sedation, withholding of ANH has no palliative
function and therefore risking death by dehydration has
no legal justification. As the patient may well intend
that the rejection of ANH hasten death, overtones of

suicide are present. If a healthcare provider contemplating
administration of long-term deep sedation knows that the
patient will reject ANH and therefore knows that the
patient will die of dehydration, initiation of deep sedation
knowingly sets in motion a fatal chain of events and might
arguably be regarded as facilitation of a suicide – a step
which raises some ethical, if not legal, qualms. A contrary
perspective is that the patient voluntarily choosing long-
term TS is exercising legitimate prerogatives that the care
provider ought to respect. Certainly, deep sedation is a
legitimate palliative step. A patient then resisting ANH is
invoking an important interest in bodily integrity – a pre-
rogative to resist bodily invasions long recognized in death
and dying jurisprudence. For example, a dying patient is
probably entitled to stop eating and drinking even though
the result is to hasten death. And a dying patient resisting
ANH has an important self-determination interest in
avoiding the indignity of lingering indefinitely in a deeply
sedated state. In a sense, long-term TS can be regarded as
part of a natural dying process; a fatal pathology causes
egregious suffering, necessitating deep sedation and that
sedation, in turn, shuts down the natural alimentation sys-
tem. This matter of long-term TS accompanied by with-
holding of ANH is legally uncharted territory.
PHYSICIAN-ASSISTED SUICIDE (PAS) AND
VOLUNTARY ACTIVE EUTHANASIA (VAE)
Advocates of death with dignity are not fully satisfied
with the options currently available to the dying patient,
such as rejection of life-sustaining medical intervention,
access to analgesics, stopping of eating and drinking,
or terminal sedation (in its clearly lawful forms). Each
option usually entails some period of lingering in a
highly debilitated or helpless state, and therefore offends
the dignity that these advocates are intent on preserving.
They therefore push for more expeditious means of has-
tening death – particularly PAS (giving a competent patient
access to a lethal poison).
Only Oregon has legalized PAS. Virtually all the remain-
ing states treat assistance to suicide as a crime, either by
statute or by common-law. Supporters of PAS have sought
to overcome that legal hurdle by popular referendum, by
proposed legislation, and by constitutional attack. Except
in Oregon, the referendum/legislative route has thus far
failed. Indeed, a significant number of states have in the
last several years adopted legislation clarifying or reiter-
ating opposition to PAS. Nor has the constitutional route
to legalizing PAS succeeded to date. In 1996, two federal
courts of appeals upheld constitutional attacks on the
Washington and New York bans on PAS as applied to
competent, suffering, terminally ill patients. But in 1997,
in appeals from these decisions, the U.S. Supreme Court
rejected the constitutional challenges to laws punishing
assistance to suicide (Washington v. Glucksberg 1997;
Vacco v. Quill 1997). State courts have similarly rejected
constitutional challenges to laws barring PAS.
Death, dying, and the law 321
Proponents of PAS contend that it – as confined to a
suffering, terminally ill patient – is morally and practically
indistinguishable from other forms of hastening death
that states have accepted. The ‘other forms’ reference is to
medical withdrawal of life support at the patient’s behest
and to medical use of risky analgesics or sedatives. The
proponents’ constitutional attacks have focused on the
claimed arbitrariness of state policy in barring PAS while
accepting these other forms of hastening death.
The Supreme Court in 1997 forcefully repudiated the
constitutional challenge to laws banning PAS (Washington
v. Glucksberg 1997). Chief Justice Rehnquist’s opinion
acknowledged a patient’s 14th Amendment liberty right
to choose death by rejecting life-sustaining medical inter-
vention. But he viewed the constitutional liberty interest
in rejecting life support as grounded in bodily integrity
rather than autonomy to choose how and when to die.
He also saw a rational distinction between rejection of
medical intervention and ingestion of a poison. The former
involves letting a dying process take its natural course
while the latter involves a self-initiated precipitation of
death. (Although a physician’s withdrawal of life support
is in one sense an action precipitating death, it simply
removes previously instituted obstacles to a natural dying
process.) Chief Justice Rehnquist also referred to medical
ethics as providing a plausible basis for distinguishing
PAS. Many medical professional groups regard assistance
in killing – such as the provision of a poison – as incom-
patible with the traditional medical role of curing and
comforting. Finally, the Rehnquist opinion perceived
certain hazards supposedly accompanying PAS as legit-
imate bases for the prevailing legal ban. The principal
hazard cited was abuse of vulnerable populations. Dying
patients are notoriously distressed and depressed, sub-
ject to influence or manipulation; moreover, elderly or
minority patients might be subject to provider prejudice
and therefore be particularly prone to manipulation.
All these concerns about legalization of PAS are under-
standable but highly debatable. The Supreme Court made
clear that states are free to resolve the public policy
debate either by maintaining the status quo or changing
direction, as did Oregon. The ultimate direction of pub-
lic policy is hard to gauge. The killing/letting die distinc-
tion that is used to justify the continuing ban on PAS
seems quite fragile. The notion that the ban on PAS sym-
bolically reinforces sanctity of life is eroded by the public
perception that both medical withdrawal of life support
and administration of risky analgesics (in high, probably
lethal dosage) are legally accepted forms of killing. Medical
ethics also provide a fragile foundation for the ban on
PAS. Although major professional organizations declare
that assistance to suicide is incompatible with the medical
role, goodly numbers of healthcare professionals perceive
relief of a dying patient’s unbearable suffering – even by
a poison, if necessary – as consistent with a palliative
medical role where curative and restorative measures are
no longer realistic.
322 Civil law
Fear of abuse of vulnerable populations looms as the
most enduring obstacle to legalization of PAS. However,
the purveyors of fear will have to explain why compar-
able abuses of vulnerable populations have not surfaced in
other end-of-life contexts such as withdrawal of life sup-
port and use of risky analgesics. Hazards associated with
depression, prejudice, and financial pressure potentially
affect removal of life support just as they would affect
PAS; yet no widespread abuse of vulnerable popula-
tions has occurred. Experience in Oregon and in The
Netherlands will help determine whether the specter of
abuse will continue to block legalization of PAS. It is too
early to tell about Oregon, though early reports find no
abuse there. The data regarding The Netherlands is con-
troversial, with both pro and anti PAS observers finding
support for their positions in the Dutch experience (com-
pare Griffiths, Boud, and Wegers 1998 with Gomez 1991).
INCOMPETENT PATIENTS
When the Quinlan case was pending in 1976, some com-
mentators issued dire warnings about allowing discon-
nection of life support from incompetent, helpless persons.
The cry was that detachment of Karen Ann Quinlan’s
respirator would constitute murder and that its approval
would lead to involuntary euthanasia of senile and other
debilitated human beings. Yet the New Jersey Supreme
Court resisted the in terrorem arguments. The court
understood that requiring medical maintenance of all
incompetent, dying persons, no matter how hopeless and
deteriorated their condition, would impel inhumane and
unwanted medical intervention. It ruled that Karen Ann
Quinlan, if competent, would have a right to resist con-
tinued life support. In light of her incapacity, her right
could be exercised by a conscientious guardian such as
her loving father. Protection against abuse would be
assured by the presence of attending medical personnel
and by the scrutiny of a prognosis committee which had
to be consulted.
Most jurisdictions have followed the pattern fixed
by Quinlan. That is, most states allow a conscientious
guardian (usually, but not always, a close family member)
to make end-of-life medical decisions on behalf of an
incompetent, terminally ill patient. As will be explained
below, the precise decision-making criteria and proced-
ures vary from state to state. Many of the cases deal with
permanently unconscious patients, like Ms. Quinlan,
who obviously cannot benefit in any meaningful fashion
from continued medical intervention. But a number of
cases and statutes authorize withdrawal of life support
from some persons still capable of relating to their envir-
onment. A small number of jurisdictions, fearing exploit-
ation of helpless persons, exclude surrogate decisions
ending life unless the now-incompetent patient has pre-
viously given clear indication of desiring such a course
(In re Martin 1995; Edna M.F. v. Eisenberg 1997).
The thrust of most statutes and cases relating to dying,
incompetent patients is to honor prospective autonomy –
that is, they instruct surrogate decision makers to repli-
cate, to the extent possible, what the formerly competent
patient would want done in the circumstances at hand.
That respect for following the formerly competent patient’s
wishes pervades both the legislation governing advance
medical directives and the case law and statutes applicable
when no advance directive has been issued. The details
follow.
Advance medical directives
Every state allows a competent person to provide in
advance for resolution of future medical issues in a post-
competence dying process. One device is to appoint a
healthcare agent who will be responsible for directing
medical personnel regarding any post-competence issues.
(This agent may be known by diverse titles, such as proxy,
surrogate, or conservator.) Having a healthcare agent,
especially one who is familiar with the patient’s wishes, has
obvious benefits. The agent will be functioning according
to up-to-date information about the patient’s condition
and prognosis rather than trying to anticipate circum-
stances months or years in advance of their occurrence.
The agent can also act as an advocate and enforcer of the
patient’s wishes in the event of resistance from healthcare
providers. The relevant statutes instruct the appointed
agent to follow the now-incompetent patient’s wishes
as reflected in prior expressions or in other indicia of
the patient’s values and preferences regarding end-of-life
decisions. In the absence of discernible patient prefer-
ences, the agent is generally instructed by statute to follow
the patient’s best interests.
Whether or not a person appoints an agent, he or she
can seek to control post-competence medical interven-
tion by issuing advance instructions, sometimes called
an advance directive, instruction directive, or living will.
In this chapter, the term advance directive will be used
(hereinafter AD). Some commentators doubt the utility
or efficacy of ADs. At the moment of drafting an AD,
a declarant must anticipate a multitude of possible post-
competence medical scenarios. Moreover, the declarant
must project how he or she will feel in a variety of inher-
ently unknowable incompetent mental states. Some com-
mentators also argue that the values or preferences of a
previously competent declarant do not matter once the
patient is gravely debilitated and cannot appreciate the
deviation from his or her prior instructions (Dresser and
Robertson 1989).
These objections do not obviate the importance of
an AD. While a declarant may be unable to anticipate the
precise scenario to be faced, that person may have well-
developed and enduring notions of dignity, religion, and
consideration for loved ones that the person wants to shape
future medical handling. Personal values and preferences

reflected in an AD can be important even if their viola-
tion will not be sensed in the person’s future debilitated
state. People care mightily whether their cherished val-
ues, including dignity, will ultimately be respected in the
dying process. Accordingly, virtually all jurisdictions
provide that a person’s articulated wishes contained in
an AD should be honored.
Note that an AD may accompany the appointment of
a healthcare agent and even form a single document both
naming and instructing a healthcare agent. The agent is
then charged with implementing the AD as part of his or
her responsibility to fulfill the declarant’s wishes. Note also
that appointment of a healthcare agent and instructions
contained in an AD become effective only when a person
has lost capacity for medical decision making. While still
competent, a patient retains decision-making control
though the patient could choose to share decision making
with others or even delegate responsibility to others.
Certain intrinsic difficulties of ADs preclude their ever
being a panacea regarding end-of-life decision making.
Perhaps because thinking about the dying process is
generally distasteful, only a modest percentage of people
(usually estimated at 20 per cent) prepare ADs. Even
when an AD is present, physicians sometimes insist on
following their own treatment preferences rather than
those of the declarant – particularly if the physician per-
ceives that the advance instructions conflict with the
current best interests of the now-incompetent patient.
Sometimes, a designated healthcare agent or other sur-
rogate becomes distraught or guilt-ridden and unable to
implement the advance instructions. Medical uncertainty
also poses an unavoidable obstacle to the implementa-
tion of ADs. A document may provide for cessation of
life support when there is no longer a ‘significant’ or ‘real-
istic’ chance of ‘recovery’; yet physicians may not be able
to say definitively whether the patient will recover or
whether any prospective recovery will be accompanied
by serious impairments. All these factors impede the
effective utilization of ADs.
The biggest obstacle, however, is the imprecision or
vagueness frequent in ADs. A common model contains
one operative sentence instructing a surrogate decision
maker: ‘If I [the declarant] should be in an incurable or
irreversible mental or physical condition with no reason-
able expectation of recovery, I direct my attending phys-
ician to withhold or withdraw treatment that merely
prolongs my dying.’ Such language is presumably intended
to avoid a lingering, undignified demise, but it does not
elucidate the particulars of debilitation or indignity that
would be intolerable to the declarant. An AD ought to
provide more meaningful guidance by focusing on the
elements of indignity – such as mental deterioration,
immobility, or helplessness – that the declarant deems
personally intolerable. Certain ADs allow specification
of personally intolerable levels of deterioration (Cantor
1998 at 646–52), but the bulk of ADs continue to be
vague and uninformative.
Death, dying, and the law 323
Statutes in some jurisdictions purport to limit the
effectiveness of ADs to where the patient is in a ‘terminal
condition,’ variously defined. If strictly applied, such
statutory provisions would impede implementation of
ADs at early stages of degenerative dying processes or
where the deteriorated, incompetent patient is maintain-
able for a substantial period. In most instances, though,
the governing statute contains a saving provision saying
that the statutory framework does not derogate from the
existing common-law prerogatives of the declarant. Those
common-law prerogatives probably encompass a right to
dictate in advance withholding of life-sustaining treat-
ment even if the now-incompetent patient has not yet
reached the end-stage of a dying process or a statutorily
defined ‘terminal condition.’
Decision-making standards binding
surrogates
As noted, most people do not provide advance instructions
regarding end-of-life medical treatment. The states vary
widely in the judicially or statutorily defined standards or
criteria that are then supposed to govern surrogate deci-
sions on behalf of incompetent, dying patients. The follow-
ing material sketches the divergent legal approaches.
CLEAR AND CONVINCING EVIDENCE
Courts in a small number of states, most notably Missouri
and New York, have ruled that surrogates (aside from
designated healthcare agents) can only end life support
where the patient previously left clear and convincing
evidence that he or she would want that course followed
under the circumstances now at hand (Westchester Medical
Center 1988; Cruzan v. Harmon 1989). This position is
grounded in the apprehension that helpless patients
would otherwise be abused by insensitive quality of life
decisions on the part of prejudiced or self-interested
decision makers (Fitzgerald 1997). The hesitance about
surrogate conduct is not entirely unfounded. There have
indeed been some instances when parents and healthcare
providers made imprudent terminal decisions resulting
in the deaths of disabled infants. Perhaps the most
notorious case was Infant Doe in 1982 (Note 1983), when
parents ordered withholding of life-sustaining inter-
vention from a Down’s syndrome newborn because they
projected that any such handicapped child must have an
unhappy life (Filene 1998 at 109–10).
Although well-intended, the requirement of clear and
convincing evidence of the now-incompetent patient’s
wishes to withdraw life support represents a harsh and
inhumane constraint on end-of-life decision making. Very
few people articulate their prospective wishes with the
precision demanded by these few courts. The consequence,
under the clear and convincing evidence approach, is that
many individuals will be forced to linger in gravely
324 Civil law
debilitated states (such as permanent unconsciousness)
that they would almost surely have wished to avoid
(had they expressed their preferences). For the never-
competent patient, the person who has always been
severely developmentally disabled, the result is presum-
ably that all possible life-maintenance must be continued,
as such a person could not have given clear and convincing
evidence of a wish to die. Again, the result is harsh as
patients would have to be sustained no matter how much
suffering or debilitation was being endured.
Though the clear and convincing standard is harsh and
imprudent, it is constitutional. In 1990, the U.S. Supreme
Court considered a challenge to the Missouri policy pre-
cluding withdrawal of life support from a patient absent
clear and convincing evidence of previously expressed
wishes. The challenge came from parents who sought
removal of a nasogastric tube from their adult daughter
who had been reduced to a permanently unconscious state
by a traumatic injury (Cruzan v. Director, Missouri Dept.
Health 1990). A majority of the Supreme Court ruled that
Missouri’s approach was constitutionally defensible as a
means of protecting helpless, incompetent persons against
abuse at the hands of surrogates who might find the
patients’ continued existence to be burdensome or incon-
venient. Fortunately, the vast majority of jurisdictions trust
surrogates, in conjunction with healthcare providers, to
make end-of-life medical decisions for incompetent
patients in circumstances beyond those of clearly articu-
lated prior wishes. Those alternative approaches follow.
SUBSTITUTED JUDGMENT
In the mid-1970s to mid-1980s, when death and dying
jurisprudence was largely being shaped, a number of
courts proclaimed that an incompetent patient should
enjoy ‘the same panoply of rights’ as a competent person
(Superintendent of Belchertown State School v. Saikewicz
1977; In re Colyer 1983; John F. Kennedy Hospital v.
Bludworth 1984). This would include the competent
patient’s right to reject life-sustaining medical interven-
tion. The notion of ‘the same panoply of rights’ honors
autonomy by indicating that a person’s personal values
and preferences ought to govern medical treatment even
after competence is lost. A surrogate can seek to implement
the patient’s autonomy right by choosing the course that
the patient would choose for himself or herself if able.
Substituted judgment is one name for the decision-
making standard that strives to implement the now-
incompetent patient’s previous wishes regarding
end-of-life treatment. The surrogate decision maker is
instructed to replicate what the now-incompetent patient
would choose if that patient were miraculously competent
and aware of all the circumstances confronting the patient.
A number of jurisdictions explicitly adopt a substituted
judgment approach (e.g., Superintendent of Belchertown
State School v. Saikewicz 1977; In re Estate of Longeway
1989). Under that approach, the patient’s previously
expressed wishes or preferences – in the form of an AD or
otherwise – would govern the surrogate’s decision.
The surrogate’s task may be easy enough where an
explicit AD exists, where the patient has left oral instruc-
tions, or where the patient adhered to religious or philo-
sophical positions that dictate the course that the patient
would follow in the circumstances. The problem occurs
in the many instances when the now-incompetent patient
has not left clear indicia of end-of-life treatment prefer-
ences. Some jurisdictions employ a loose substituted judg-
ment approach and expect the surrogate to extrapolate
the patient’s likely choice based on whatever knowledge
is available about the patient’s previous values and pref-
erences. That approach is especially common where the
patient is in a permanently unconscious state (In re Jobes
1987). Some sources are skeptical, however, of a surrogate’s
capacity to project the now-incompetent patient’s likely
choice where there are no clear-cut prior expressions
regarding end-of-life care. They are fearful that the sur-
rogate will project the surrogate’s own values and prefer-
ences rather than the patient’s (Wicclair 1993 at 56–60).
Many jurisdictions view the subjective or substituted
judgment approach – seeking to discern the patient’s
actual wishes – as only a starting point in a decision-
making spectrum (Pollock 1989). In the absence of
meaningful indicia of the patient’s preferences regarding
end-of-life treatment, the surrogate is expected to shift
to a best interests of the patient approach (In re Conroy
1986). That approach acknowledges the possibility that
the burdens of continued existence might outweigh the
benefits, i.e., that the incompetent patient might be
better off dead than alive. That standard has its own dif-
ficulties, now to be considered.
BEST INTERESTS OF THE PATIENT
While public policy respects autonomous choice, a now-
incompetent patient’s actual preferences about end-of-
life treatment often cannot be reliably determined. Many
jurisdictions – either by statute or case law – then pre-
scribe that the patient’s best interests should guide surro-
gate decision making on behalf of the incompetent patient.
The best interests approach is supposed to be an objective
one geared to promotion of the patient’s well-being.
Well-being usually means continued existence, yet there
may be circumstances where the burdens of continued
existence outweigh the benefits, i.e., where the incompe-
tent patient would be better off dead than alive. In those
instances, surrogates may, consistent with best interests,
seek removal of life support. This approach sounds simple
enough, but significant difficulties occur either in defin-
ing the relevant burdens or in measuring them vis-à-vis
the benefits of continued living.
The overall object of the best interests approach helps
define the components of best interests – the relevant
burdens and benefits to be assessed. The basic object is to
treat people the way they would want to be treated and,

in the absence of definitive indicia of their actual prefer-
ences, the assumption is that incapacitated patients want
to be treated the way most people would want to be treated
in the circumstances. Thus, the components of best
interests are formulated according to perceptions of what
the average person (sometimes known as the reasonable
person) would deem to be critical factors in end-of-life
decisions (Wicclair 1993; Strasser 1995 at 778). This means
a starting presumption favoring maintenance of life (as
most people, even those grievously ill, want to keep living)
and an accompanying principle that extreme suffering
is intolerable (given people’s common aversion to extreme
pain). Again, the hope is to implement the patient’s likely
choice by having the surrogate act according to the fac-
tors and criteria most people would choose for them-
selves. (Keep in mind that this approach does not ignore
the patient’s personal preferences. Any discernible, com-
petently expressed wishes govern the patient’s medical
fate – either because an inquiry into subjective preferences
precedes resort to best interests or because a person’s self-
defined best interests count in the best interests calculus.)
While severe suffering is a relevant burden in any best
interest approach, assessment of that element of burden
can be a daunting task. In many instances, the extreme
debilitation of the incompetent patient prevents effective
communication of feelings and therefore impedes under-
standing of the patient’s experiential reality. Those sur-
rounding the dying patient then must struggle to interpret
cryptic clues – including enigmatic sounds, gestures,
facial expressions, and non-verbal behavior (Dresser
1994 at 666–91). Do moans and tugging at tubes reflect
unbearable suffering or just reflexive response to an
annoyance? Does a smile reflect pleasure or just gratitude
for a kind, but futile, gesture by a care provider? To what
extent does the patient’s incomprehension increase the
anxiety and fear accompanying medical interventions?
In short, problems of measurement or assessment plague
any surrogate seeking to determine the level of suffering
of an incompetent patient, or the relative weights of suf-
fering and satisfaction. ‘The real burdens and benefits
of life in extremely debilitating circumstances are often
beyond our ability to know confidently or comprehend
fully’ (Peters 1989 at 942; Strasser 1995 at 744–5).
Some uncertainty about the component elements of
best interests also plagues application of that standard.
A prime example is the well-being of the incompetent
patient’s surrounding loved ones. Can the surrogate deci-
sion maker consider the emotional and financial impact
on the patient’s loved ones in fixing the medical course
to be followed? One perspective is that most people would
include loved ones’ emotional and financial well-being in
defining their own best interests in end-of-life situations
(President’s Commission 1983). Most people do not want
to become a burden to their families and therefore want
the impact on loved ones to be considered. Accordingly,
a few cases mention family interests as a legitimate factor
within a best interests approach to surrogate decision
Death, dying, and the law 325
making. A contrary perspective is that injection of non-
patients’ interests entails a balancing of the value of one
person’s life against the financial and emotional strains
upon others. This kind of utilitarian calculus has always
been anathema in the context of individual end-of-life
decision making due to the incommensurability of a life
contrasted with other people’s burdens and to revulsion
toward Nazi efforts to apply a utilitarian calculus to
helpless medical patients. An alternative, intermediate
approach would allow consideration of family or care-
giver interests only if the patient either stipulated that
such factors should be considered or if the patient’s con-
sistently expressed values embraced such an altruistic
approach. In the meantime, no consensus exists regarding
the role of family interests within a best interests formula.
Another controversial component of the best interests
formula is quality of life. The 1983 President’s Commission
listed ‘quality as well as the extent of life sustained’ as a
major element of the best interests standard (President’s
Commission 1983 at 135). This is fully consistent with
the underlying object of identifying factors that a reason-
able person would deem to be part of best interests. Most
people care mightily about the quality of life, particularly
extreme mental deterioration, in a post-competence stage
of a dying process (Singer, Martin, and Kelner 1999). Not
surprisingly, courts that embrace a best interests standard
frequently mention quality of life (in the form of elements
such as loss of function, humiliation, dependence, and
loss of dignity) as a relevant consideration for a surrogate.
The trick, though, is to identify a level of deterioration so
demeaning and distasteful for the reasonable person that
life becomes worse than non-existence (Arras 1988).
Some sources criticize use of quality of life as a factor
within best interests. They regard quality of life as an
imprecise, value-laden notion lacking a consistent content
and subject to exploitation by surrogates indifferent or
hostile to the fate of debilitated, vulnerable patients. This
concern over abuse of quality of life determinations was
in large part responsible for the narrow approach, previ-
ously described, prevailing in New York, Missouri, and
a few other jurisdictions. That approach excluded sur-
rogate removal of life support absent clear and convinc-
ing evidence of actual patient preferences. An alternative
approach to surrogate decision making is available – an
approach which acknowledges people’s common pre-
occupation with dignity in end-of-life care and recognizes
the difficulty of assessing the current feelings of deeply
demented patients, yet precludes arbitrary or abusive
quality of life determinations.
CONSTRUCTIVE PREFERENCE AS A GUIDE TO
DEATH WITH DIGNITY
I suggest a surrogate decision-making standard, called
constructive preference, that promotes the central mis-
sion of both the substituted judgment and best interests
formulae – replication of what the now-incompetent
326 Civil law
patient would want done in the circumstances con-
fronting the dying patient (Cantor 1996b at 1257–72).
The premise of constructive preference is that the vast
majority of people care about indignity in the dying
process, and that common preferences about intolerable
levels of indignity can be ascertained and used to guide
surrogate decision makers. At least as to certain commonly
occurring end-of-life scenarios, strong majority prefer-
ences can be objectively determined and used as default
presumptions (in the absence of actual, competently
expressed preferences) guiding surrogates. The societal
importance of avoiding indignity in the dying process is
patent. People fear that grave debilitation will entail
embarrassment and/or frustration stemming from help-
lessness, dependence, and incapacity. Even if these dis-
tasteful feelings might not materialize, people care about
the image and recollections that they will leave behind,
images in the minds of loved ones that may be soiled by
the patient’s extreme mental and physical deterioration
during the dying process. These common preoccupations
with indignity in the dying process are readily observ-
able in the context of competent patients contemplating
their prospective medical fates – in decisions to reject
life-sustaining medical intervention, in advance medical
directives, and in attitudinal surveys showing ‘paramount
importance [attached to] … functional independence and
the maintenance of mental faculties’ (Danis et al. 1988;
Moller 1990 at 20).
Of course, many commentators express concern about
the possible imprecision and subjectivity of the dignity
concept in end-of-life decision making. Sanford Kadish
remarks: ‘The difficulty is that we have no way to make
confident judgments about how far cognitive and phys-
ical deterioration must go before life ceases to be worth
living, because the value judgments implicit in such a
conclusion are in sharp contention in our society’
(Kadish 1992 at 882). To avoid arbitrariness and abuse,
then, dignity-based guidelines must be grounded in reli-
able measures of what most people deem to be intolerable
indignity in the dying process.
The tools do exist for assessing common attitudes about
indignity in the dying process. Two primary sources of
data about competent persons’ preferences about their
own medical fates are advance medical directives (viewed
in bulk) and surveys regarding prospective medical hand-
ling. Some advance directives – particularly where the
declarant has completed a values profile – communi-
cate patients’ visions of intolerable indignity in the dying
process (Cantor 1998). Many surveys scrutinize people’s
preferences regarding end-of-life decisions and highlight
attitudes toward elements of indignity often encountered
in dying patients, such as incapacity to feed or dress oneself,
incontinence, and severe dementia. Those sources can pro-
vide definitive guidance as to prevailing attitudes toward
certain commonly confronted end-of-life scenarios.
Some implications of a constructive preference
approach to surrogate decision making are apparent. For
example, permanent unconsciousness is an intolerably
undignified status under contemporary societal standards.
Public surveys, judicial decisions upholding surrogate deci-
sions, and legislative enactments all confirm that indefinite
maintenance in a permanently insensate, immobile status
is intolerably demeaning to the vast majority of people
contemplating their own medical fate. Because of this
overwhelming majority sentiment, the presumption
under a constructive preference standard would be that a
permanently unconscious patient would prefer death to
an existence devoid of all sensation or feeling. A surrogate
would be expected to seek removal of life support from
any such patient unless the surrogate presented signifi-
cant indication that the particular patient deviated from
the strong majority sentiment about permanent uncon-
sciousness. A similar presumption might ultimately be
extended to dying persons who are so demented as to be
unable to recognize and interact with other people. Many
people regard such an existence as intolerably undigni-
fied for themselves. Depending on how prevalent that
personal preference is – a question to be resolved by
ongoing inquiry – a surrogate would either be expected
to allow such a patient to expire without further medical
intervention (if a strong majority of persons generally
desire such a course for themselves) or the surrogate would
have the discretion to end life support. Such surrogate
discretion would exist if a substantial percentage (but less
than a strong majority) of persons find the profoundly
demented status to be intolerably undignified.
The precise content of constructive preference pre-
sumptions would evolve over time as more data becomes
available about people’s end-of-life preferences. The
approach applies only to previously competent persons
who never provided explicit guidance or clear-cut indi-
cations about end-of-life treatment preferences. As to such
patients, it makes sense to ascertain what most people
would want in similar circumstances and to treat the now-
incompetent patient accordingly. As long as constructive
preference’s default presumptions are anchored in object-
ive data concerning what competent people consider an
intolerably undignified existence for themselves, those
default principles would effectively restrain surrogates’
arbitrary or subjective visions of what lives are worth
preserving.
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Cir. 1964).
Arras, J.D. 1988. The severely demented,
minimally functional patient: an ethical analysis.
Journal of the American Geriatric Society
36, 938–48.
Cantor, N.L. 1996a. Can heath care providers obtain
judicial intervention against surrogates who demand

medically inappropriate life support for incompetent
patients? Critical Care Medicine 24, 883–7.
Cantor, N.L. 1996b. Discarding substituted judgment
and best interests: toward a constructive preference
standard for dying, previously competent patients
without advance instructions. Rutgers Law Review
48, 1193–272.
Cantor, N.L. 1998. Making advance directives meaningful.
Journal of Psychology, Public Policy and Law
4, 629–52.
Cantor, N.L., Thomas, G.C., III. 2000. The legal bounds
of physician conduct hastening death. Buffalo Law
Review 48, 83–173.
Capron, A.M. 1995. Abandoning a waning life. Hastings
Center Report 25, 24–6.
Cruzan v. Director, Missouri Dept. Health, 497 U.S. 261
(1990).
Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1989).
Danis, M., Patrick, D.L., Southerland, L.I., Green, M.L.
1988. Patients and families’ preferences for medical
intensive care. Journal of the American Medical
Association 260, 797–802.
Dresser, R. 1994. Missing persons: legal perceptions
of incompetent patients. Rutgers Law Review
46, 609–99.
Dresser, R., Robertson, J. 1989. Quality of life and
non-treatment decisions for incompetent patients:
a critique of the orthodox approach. Law,
Medicine and Health Care 17, 234.
Edna M.F. v. Eisenberg, N.W.2d (Wis. 1997).
Filene, P. 1998: In the Arms of Others: A Cultural History
of the Right to Die in America. Chicago, IL: I.R. Dee.
Fitzgerald, W.A. 1997. Engineering perfect offspring:
devaluing children and childhood. Hastings
Constitutional Law Quarterly 24, 833–61.
Fleischman, A.R. 1998. Commentary, Ethical issues in
pediatric pain management and terminal sedation.
Journal of Pain and Symptom Management 15, 260–1.
Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990).
Gasner, M.R. 1990. The unconstitutional treatment of
Nancy Cruzan. New York Law School Journal of
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Gomez, C.F. 1991: Regulating Death: Euthanasia and the
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Griffiths, J., Boud, A., Wegers, H. 1998: Euthanasia and
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In re Colyer, 660 P.2d 738 (Wash. 1983).
In re Conroy, 486 A.2d 1209 (N.J. 1986).
In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989).
In re Jobes, 529 A.2d 434 (N.J. 1987).
In re Martin, 538 N.W.2d 399 (Mich. 1995).
In re Peter, 529 A.2d 419 (N.J. 1987).
In re Quinlan, 355 A.2d 647 (N.J. 1976).
In re Wanglie, PX-91-283 (4th Judicial Dist. Minnesota
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Death, dying, and the law 327
Jecker, N.S., Schneiderman, L.J. 1993. Medical futility:
the duty to treat. Cambridge Quarterly of Health
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John F. Kennedy Hospital v. Bludworth, 452 So.2d 921
(Fla. 1984).
Kadish, S.H. 1992. Letting patients die: legal and
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Matter of Baby K., 16 F.3d 590 (4th Cir. 1994), cert.
denied 115 S.Ct. 91 (1994).
Moller, D.W. 1990: On Death Without Dignity: The Human
Impact of Technological Dying. Amityville, NY:
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New York State Task Force of Life and the Law. 1992:
When Others Must Choose: Deciding for Patients
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infants: ‘Infant Doe’ postmortem. 59 Notre Dame
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Orentlicher, D. 1997. The Supreme Court and terminal
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Quarterly 24, 947.
Peters, P.G. 1989. The state’s interest in the preservation
of life: from Quinlan to Cruzan. Ohio State Law
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Problems in Medicine. 1983: Deciding to Forgo
Life-Sustaining Treatment.
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Satz v. Perlmutter, 362 So.2d 160 (Fla. Dist. Ct. App. 1978).
Singer, P.A., Martin, D.K., Kelner, M. 1999. Quality
end-of-life care: patients’ perspectives. Journal of the
American Medical Association 281, 163.
Strasser, M. 1995. Incompetents and the right to die:
in search of meaningful standards. Kentucky Law
Journal 83, 733–99.
Superintendent of Belchertown State School v. Saikewicz,
370 N.E.2d 417 (Mass. 1977).
Vacco v. Quill, 521 U.S. 793 (1997).
Washington v. Glucksberg, 521 U.S. 702 (1997).
Webb, M. 1997: The Good Death: The New American Search
to Reshape the End of Life. New York, NY: Bantam Books.
Wennberg, R.N. 1989: Terminal Choices: Euthanasia,
Suicide, and the Right to Die. Grand Rapids, MI:
W.B. Eerdmans Publishing Company.
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Wicclair, M.R. 1993: Ethics and the Elderly. New York:
Oxford University Press.
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 PART
5
Family law and domestic
relations

36 Role of the psychiatric evaluator in child custody disputes 331

Stephen B. Billick and Steven J. Ciric

37 Termination of parental rights and adoption 348

Shashi Elangovan and Stephen B. Billick

38 Childhood attachment, foster care and placement 366

Lisa R. Fortuna and Stephen B. Billick

39 Forensic evaluation of physically and sexually abused children 377

Rodrigo Pizarro and Stephen B. Billick

40 Juvenile delinquency 389

Roy H. Lubit and Stephen B. Billick

41 Posttraumatic stress disorder in children and adolescents: clinical and legal issues 396
James E. Rosenberg and Spencer Eth

42 Forensic aspects of suicide and homicide in children and adolescents 407

Peter Ash, Richard J. Gersh and Stephen B. Billick

43 The child as a witness 419

Robert Suddath

44 Violent adolescent offenders 441

Roy J. O’Shaughnessy

45 Adolescent sexual offenders 455

Meg S. Kaplan and Richard B. Krueger

46 Neuroimaging in child and adolescent psychiatry 463

Stephen B. Billick and Stephen P. Sullivan
This page intentionally left blank

Role of the psychiatric evaluator in child
custody disputes
STEPHEN B. BILLICK AND STEVEN J. CIRIC
The role of the psychiatric evaluator in child custody
cases continues to be challenging, as both the need for
such evaluations remains high, and the decision-making
process in determining custody is increasingly more com-
plex. The demand for competent psychiatric evaluators
in part has been driven by the rising divorce rate. Levy
(1985a) cited an increase of 200 per cent in the divorce
rate in the United States from 1960 to 1977. Amato and
Keith (1991) stated that 40–50 per cent of children will
experience the divorce of their parents. The American
Academy of Child and Adolescent Psychiatry (1997) pro-
vided a more contemporary estimate, consistent with data
from the National Center for Health Statistics (1997),
that one in two marriages ends in divorce. This affects
about one million children each year, and approximately
10 per cent of divorces involve custody litigation. In add-
ition, the American family continues to change. Consider
remarriages, co-habitation, single parent and alternative
families, and issues such as reproductive technologies and
DNA testing for paternity. This has contributed to the
growing number and complexity of child custody disputes.
IMPACT OF DIVORCE ON CHILDREN
The psychological impact of divorce on both children and
parents can be far-reaching and may further contribute
to the need for a psychiatric evaluator, who may be able to
diminish future ill effects. The sequelae of the divorce
process on children are dependent on many factors and
are not automatically pathogenic. Most controlled research
(e.g., a comparison non-divorced group, or controlling for
degree of pre-divorce psychological problems) finds that
children from divorced and married families differ little,
and underscores the resilience of most children to ‘bounce
back’ from the stress of divorce (Emery and Coiro 1995;
Hetherington and Stanley-Hagan 1999). However, other
36
evidence possibly points to a greater risk for psychologi-
cal problems among children of divorced families. For
instance, Wallerstein, Lewis, and Blakeslee (2000) cited
national studies which demonstrate that children from
divorced families have more depression, learning and inter-
personal problems, and utilize more mental health ser-
vices into adulthood than their peers from intact families.
Re-analyzing three decades of data from the New York
Longitudinal Study of Chess et al. (1983), Shaw, Emery,
and Tuer (1993) conducted a prospective examination
of parental functioning and children’s adjustment before
divorce, and found no consistent differences between
children from to-be-divorced and always-married fam-
ilies. However, they did find that a consistent predictor
of the children’s poor adjustment following divorce was
parental conflict prior to divorce. They also found that
boys showed more post-divorce behavioral difficulties
than girls did, consistent with prior research (e.g., Zaslow
1988; Wallerstein 1991). They suggested that this might
involve the boys’ loss of daily contact with the same-
gender parent, as the non-custodial parent is usually the
father. Wallerstein (1991) suggested that the observed gen-
der difference may involve a ‘sleeper effect’ for girls, who
go on to experience interpersonal problems in young
adulthood. Lahey et al. (1988) reported a significantly
higher incidence of parental antisocial personality dis-
order in divorced families with boys who developed con-
duct disorder, giving rise to the consideration that a child’s
post-divorce psychiatric problems might not be due to the
divorce itself. Instead, there may be a genetic component
to the dysfunction in some parents and their offspring
that variously contributes to both the pre-divorce marital
hardship and deficient parenting, as well as the post-
divorce maladjustment in the child. This viewpoint has
found support in subsequent research (Jocklin, McGue,
and Lykken 1996).
The adverse effects of divorce on children have been
discussed extensively by Wallerstein and Kelly (1980) and
332 Family law and domestic relations
Wallerstein, Lewis, and Blakeslee (2000). In 1971,
Wallerstein and her colleagues originally selected 131
children and their parents from sixty middle-class families
in Marin County, California who were going through
separation and divorce. The subjects were referred by their
family law attorneys on the basis of their willingness to
participate in the study (neither randomized nor con-
trolled). The children had to be developmentally normal
and free of psychiatric problems. Follow-up interviews and
studies took place at eighteen months, five years, ten and
finally twenty-five years post separation. They report that
about half of the children have difficulties during the
first year after divorce, and identify factors associated
with prolonged post-divorce maladjustment. The most
notable factors are high levels of parental discord, parental
mental illness, poor pre-divorce parenting, and a custodial
parent burdened by emotional, physical, social or eco-
nomic stresses.
Wallerstein and Kelly described that younger children
may experience regression, neediness, increased aggression,
low self-esteem, and a feeling of responsibility for their
parents’ separation. Middle school-aged children may
suffer a disrupted sense of identity, multiple somatic
complaints, depression, anger, anxiety, or fear. They also
may feel responsible for the divorce, or have fantasies of
reconciliation. There may be conflicts of loyalty for one
parent over the other. Teenage children of divorcing par-
ents may have anxiety about the success of their own
future relationships, and they may be disturbed by sud-
denly changed perceptions of their parents. They may
also attempt to cope with the stress of the divorce through
social withdrawal or through accelerated individuation
and separation from their parents. Wallerstein, Lewis,
and Blakeslee (2000) observed that the children from the
divorced families in the California study, now adults,
have experienced great difficulty and worry in seeking
out partners of their own. They described that many of
the children demonstrated an apparent resiliency in
adjusting to the divorce, in some instances actually tak-
ing on increased responsibilities in attempting to care for
their distressed parents. However, the adverse impact of
the experience is seen over time, on identity and person-
ality, so that by adulthood the ‘children of divorce’ have
the most difficulties, with trust, relationships, and coping
with change.
In another study, further evidence suggests that when
a divorce is associated with a move to a less stressful
situation, children in divorced families are similar in
adjustment to intact families with non-distressed marital
relations (Hetherington 1999). Unfortunately, the psy-
chiatric evaluator, in a custody dispute context, is more
likely to see high-conflict families. The psychiatric evalu-
ator can be of great help to both children and their par-
ents by educating all involved about the types of stresses
that may be experienced by the children. The evaluator
should also address the effects of divorce on the separat-
ing parents. Parents often feel a sense of loss that can lead to
depression, anger, or a desire for revenge against the
other parent. Levy (1985a) has noted that these feelings
may play a role in a parent’s motivation for seeking custody.
A psychiatric evaluator, who can help clarify these feelings
and motives for parents, may have a profound effect on
the decision of custody.
HISTORICAL PERSPECTIVE
Changes in custody decision-making have been influ-
enced by many factors, including evolving recognition of
the rights of children and women, shifting legal emphasis
toward individual rights and equal protection, and research
in child development and attachment. Derdeyn (1976)
wrote that in ancient times ‘the father had absolute con-
trol over his children and could will or condemn them to
death with impunity.’ For many years in England and in
the United States there was little question as to who would
have custody of children, since children were considered
to be chattels, the property of the father (Sadoff and Billick
1981; Solnit and Schetky 1986). The father assumed cus-
tody usually without involvement of the state. In many
ways this was in the best interests of the child, since in
those times the father was generally best able to provide
for the children. Little concern was given, however, to the
rights of children, for they had none.
The tender years
Following the British Act of 1839 advanced by Thomas
Noon Talfourd, the ‘tender years doctrine’ eventually
became the primary standard for determining child cus-
tody (Kelly 1994). This doctrine is based on the presump-
tion that there is a unique relationship between mothers
and infants in their ‘tender,’ early years, that is presumed
to foster optimal development of the infant. Sadoff and
Billick (1981) have discussed how the ‘tender years doc-
trine’ introduced the psychiatrist and psychologist into
the domestic relations court to present expert testimony
regarding parent–child relationships, emotional needs of
developing children, and predictions of outcome of vari-
ous parent–child arrangements. The application of this
doctrine led to the change of usual custody resolutions,
and mothers gained custody in greater proportion to
fathers. Also, the ‘tender years doctrine,’ which originally
referred only to infants, was later expanded to include
young children (e.g., less than seven years old), and even
later to virtually all children. Kelly (1994) notes that by
the 1920s, the maternal preference in custody determin-
ations had replaced the earlier paternal preference. The
widespread use of this doctrine by the courts in part was
made possible by concurrent changes in views espoused
by the women’s rights movement of the late nineteenth
and early twentieth centuries. As women gained the rights
to vote, own property, receive alimony and child support,
and as they developed new educational and employment
 Role of the psychiatric evaluator in child custody disputes 333
opportunities, they were much better able to assume cus-
tody of their children. The ‘tender years doctrine’ also
found support in developing psychoanalytic theory, which
emphasized the mother’s role as unique, and in earlier
infant attachment theory (Kelly 1994).
The best interests of the child
The ‘best interests of the child’ standard, which guides
most custody decisions today, has grown with the increas-
ing recognition of the rights of children and in the context
of changing attitudes of the courts. In the landmark case
of Painter v. Bannister (1966), the Iowa Supreme Court
held in a custody dispute between a child’s father and
maternal grandparents that ‘the primary consideration is
the best interest of the child.’ The justices determined that
the child, whose Iowa-born mother had died in a car acci-
dent, was to remain in the custody of his stable and mid-
Western grandparents rather than return to his remarried,
California-born, and ‘Bohemian’ father. In Watts v. Watts
(1973), a New York State Family Court held that maternal
preferred custody statutes (embodiments of the ‘tender
years doctrine’) violated fathers’ equal protection rights
under the Fourteenth Amendment (Kelly 1994).
The model Uniform Marriage and Divorce Act, pro-
posed by the American Bar Association in 1970, further
established the notion and language of the ‘best interests
of the child’ standard that was subsequently adopted by
most states. The Act also stated that a court should con-
sider continuity in parenting, the quality of the parent–
child relationships, the physical and emotional health of
all parties involved, and a child’s wishes if he or she is
deemed to be of sufficient age and capacity to form an
intelligent preference. Ash and Guyer (1984) have dis-
cussed how the ‘best interests’ standard, by focusing more
on psychological questions than previous standards, con-
tributes to an increased use of psychiatric evaluators by the
court. This focus on the child’s rights, and healthy devel-
opment was consistent with changes already taking place
in the areas of compulsory education, child labor laws,
and child abuse protection laws in the twentieth century.
The application of this standard was the focus of
Goldstein, Freud, and Solnit’s Beyond the Best Interests of
the Child (1979). They suggested the less sanguine language
of a ‘least detrimental alternative’ as a more realistic stand-
ard that appreciates the inevitable harm to a child in
any divorce. Other criticism of the ‘best interests’ standard
is that it is too vague, and apt to be variably interpreted
through the lens of judicial bias. Also, precisely because it
theoretically allows for an equal opportunity for both
parents to secure custody, it may foster acrimony and the
adversarial quality of divorce litigation. Although concern
has been raised that the standard may force women to trade
off spousal and child support to secure custody, research
has not demonstrated this disadvantage (Kelly 1994).
The ‘best interests’ standard mandates that custody
is granted to the party who is most capable, or least
obstructive, in providing for the ‘best interests’ of the
child. This standard places the rights of the child above
the rights of parents in custody determinations. Its main
purpose is to ensure an optimal environment for the
physical and psychological development of the child. The
focus on the child’s needs should theoretically also elim-
inate judicial discrimination on the basis of a proposed
custodian’s gender, sexual orientation, and physical or
psychiatric disability (to the extent that these factors do
not bear on the individual’s relationship to and ability to
care for the child). Decisions are less formula-driven and
are to be made on a case-by-case basis. They rely even
more on psychological factors than previously, taking
into account all of the child’s important relationships,
the emotional stability of parents, and the child’s devel-
opmental needs. As a result, the ‘best interests’ standard
allows judges more flexibility. The increased flexibility,
however, comes with an increased judicial inclination to
consider the psychological impact of custody decisions.
Judges today are more likely than before to look to the
psychiatric evaluator for information and guidance.
WHEN AND HOW PSYCHIATRY BECOMES
INVOLVED IN CUSTODY DISPUTES
Sources of requests for evaluations
The psychiatric evaluator may be asked to give an
opinion related to child custody at various points in the
separation/divorce process. The evaluator may also be
asked to give an opinion on related issues such as visit-
ation, or the need for psychiatric treatment for either
parent or child to help cope with the divorcing process.
Sometimes an evaluator may be requested by parents to
help with custody decisions before either party has taken
any legal action. This is a clinical consultation that is to be
distinguished from the legal process of mediation, a form
of alternative dispute resolution (see below). According to
Levy (1985a), parents who favor the consultation room
over the courtroom may be more amenable to reaching a
mutual agreement. The courts generally uphold these
decisions when both parents are in agreement, rather
than investigate further. This supports the legal precedent
to protect parental autonomy in child rearing (consider
Parham v. J.R. 1979), as opposed to the power of the state
to impose its will on the family. According to Despert
(1953), courts in general have acquiesced to parental
agreement: the parents consent and the state assents.
At other times, only one parent in a custody dispute
may request a psychiatric evaluator at the recommenda-
tion of his or her attorney. Under these conditions, it is
always advisable that the evaluator request to interview
both parties involved. One should be aware, however, that
the other parent might be uncooperative out of fear that
the psychiatrist is biased and on the side of the spouse who
334 Family law and domestic relations
first requested the evaluator. The other parent may obtain
his or her own psychiatrist to conduct a separate evalu-
ation. The evaluator should be aware of pressures from the
requesting party and her/his attorney for a favorable deci-
sion. Under these circumstances, the attorney may choose
not to use an evaluation in court that does not favor the
requesting parent. The opposing attorney, however, may
subpoena the psychiatric evalu-ator to present the results
of that evaluation in court. When this happens, it is advis-
able that the evaluator first requests a court order to testify
before risking any breach of confidentiality with the origi-
nal, requesting party. Residency training in child and ado-
lescent psychiatry teaches the child psychiatrist to be
‘child-centered and child-oriented’ rather than parentally
driven. The child psychiatrist is uniquely trained and func-
tions in the ‘best interests of the child’ in nearly all of the
clinical settings, not just in child custody evaluations.
Psychiatrists without specialty training may have difficulty
resisting parental or attorney influence. Judges, like attor-
neys, have been trained in the adversarial system and are
client-oriented. It is more difficult for them to adjust to the
non-client model where the child is not their client, but
the parent is. This is particularly true when so-called child
advocates do not take an active role.
When the court orders a psychiatric evaluation, or when
two opposing attorneys agree to an evaluation by one psy-
chiatrist, the evaluator is faced with new advantages and
disadvantages. One of the most consistent disadvantages is
that these cases are usually the most difficult, as the parents
may be less amenable to a mutual decision than when one
or both parents request a psychiatric evaluation on their
own. One advantage, however, is that it is easier to maintain
parental neutrality when representing the court and not
one attorney or the other (see Figure 36.1). In this way one
is less pressured by attorneys and the adversarial system
of court law and more easily represents the ‘best interests
of the child.’
Yet another way that a psychiatric evaluator may
become involved in child custody decision making is
when he or she is asked by a guardian ad litem, an attor-
ney appointed by the court to represent the child and not
one parent or the other. In custody cases the judge often
believes that he/she represents the ‘best interests of the
child,’ but since he or she only hears from parental attor-
neys in most instances, he/she might pay more actual
Judge
Father's
Psychiatrist Father
Attorney
Children
Figure 36.1 Traditional view
attention to parental concerns. An active guardian ad litem
who requests a psychiatric evaluation is in the best pos-
ition to utilize the psychiatrist’s recommendations in court
to truly ensure a decision that is in the child’s ‘best inter-
ests.’ There is some evidence that the role of the mental
health evaluator is indeed influential. Ash and Guyer (1984,
1986) found a high rate of concordance between the judge’s
decision and the psychiatric evaluator’s recommendation
for custody: 85–92 per cent for custody, and 89–93 per cent
for visitation. An analysis by Kunin, Ebbesen, and Konecni
(1992) of 282 court records of disputed child custody
cases revealed only two factors that statistically predicted
judicial decision: the recommendation of a family court-
appointed counselor in the majority of cases, followed by
the child’s preference in cases without a recommendation.
The evaluator’s role of child advocate is best maintained
under these circumstances that take advantage of a
guardian ad litem (see Figure 36.2).
One of the most difficult situations an evaluator may
face is when he or she is asked by a child-care agency
to provide a psychiatric evaluation in a custody case. The
American Psychiatric Association (1982) task force report
on Child Custody Consultation discusses the special
problems these cases may pose for the evaluator. Such
evaluations are usually court-ordered and often involve
accusations of abuse or neglect. Foster parents, as well as
natural parents, may be interested in custody. In addition
to the usual post-divorce issues, these cases may involve
the decision to terminate parental rights or allow for
Judge
Father's Mother's
Father
Attorney Attorney
Mother
Guardian
Psychiatrist
ad Litem
Children
Figure 36.2 Preferred situation
Court-
Appointed
Psychiatrist
Mother's
Mother Psychiatrist
Attorney
 Role of the psychiatric evaluator in child custody disputes 335
adoption of the child by a foster parent or other involved
adult, which can further complicate the evaluation.
Mediation
Psychiatric evaluators also may be asked to assist with
divorce mediation procedures. The psychiatrist often has
the same advantages discussed earlier, when he or she is
asked by both parents to carry out an evaluation before
they have taken legal action. Mediation is a legal process,
however, and usually involves one attorney and one psy-
chiatric evaluator. Both are expected to be impartial to
the needs of the parents and do not advocate for one par-
ent over the other. The psychiatrist, of course, maintains
the position of child advocate. Ruman and Lamm (1985)
have described mediation as an alternative forum for
parents where all parties are expected to work together
to reach a mutual resolution of the legal and emotional
issues of divorce, in lieu of the traditional adversarial
approach. They also discuss how in recent years mediation
has become increasingly utilized and encouraged by the
legal community. They cite a California ruling (California
Code of Civil Procedure 1984) mandating that all divorces
involving custody conflicts first attempt to resolve custody
decisions through mediation before going to hearing.
As an alternative to litigation, mediation can decrease the
burden on the judicial system. Some researchers also feel
that mediation is more sensitive to the emotional needs
of parents and child than is the adversarial trial.
Dillon and Emery (1996) surveyed parents nine years
after random assignment to mediation or litigation. The
mediated families saw increased visitation, interparental
communication, and non-custodial parent involvement.
Emery, Matthews, and Kitzmann (1994) followed families
for one year after random assignment to mediation or
litigation. They found that fathers were more satisfied
with mediation, but mothers more satisfied with litiga-
tion. Fathers who mediated were more likely to cooper-
ate with child support payments. The authors speculate
that men are more likely to use custody litigation as a
means to contest an unwanted divorce. The authors also
note that over 90 per cent of the litigated custody cases
ended in an award of sole maternal custody. This finding,
along with the fact that the study was conducted in a
jurisdiction without a statutory preference in favor of joint
physical custody, might account for why the mothers
were more satisfied with litigation. Also, not all mediation
programs mediate financial issues of spousal and child
support. Another criticism of mediation is that the process
is not bound by the ‘best interests’ standard and may
therefore be more sensitive and responsive to the parents’
wishes than the needs of the child.
Visitation
In addition to making recommendations for custody deci-
sions in court or in mediation procedures, the psychiatric
evaluator also is often asked to make recommendations
regarding visitation. When joint custody is not possible,
visitation becomes especially important as a means of
ensuring that a child has appropriate access to both par-
ents. Visitation can help minimize the child’s sense of loss
that comes from divorce and can encourage the natural
affectionate bonds of children with both parents. When
visitation decisions are complicated by accusations of
abuse or neglect, the evaluator has the additional respon-
sibility of assessing the validity of the accusations and the
extent of the abuse (discussed later in this chapter). The
evaluator may need to consider restriction or denial of vis-
itation when doing so would be in the child’s best interests.
CONDUCTING THE PSYCHIATRIC EVALUATION
Training
In order to conduct a thorough and competent psychi-
atric evaluation in child custody disputes, one must first
have had adequate training in this specialized area of
psychiatry. This training may begin in the general psych-
iatry residency, where increased exposure to child psych-
iatry, forensic psychiatry, and family court would be very
helpful. Child psychiatry residencies also should devote
sufficient time toward training in this area. Though the
child psychiatrist is usually the best equipped to conduct
the psychiatric evaluation, adequately trained general
psychiatrists or forensic and other pertinent subspecialty
trained psychiatrists can also do these evaluations. In
areas where child psychiatrists are in short supply, this
may be essential. In addition to training in residency and
fellowship programs, the American Psychiatric Association
(APA 1982) has also recommended that future evaluators
first sit in on several child custody trials to observe the
process thoroughly before beginning one’s own evalu-
ations. The APA (1982) has also recommended that the
general psychiatrist consult with a child psychiatrist, when
available, to help with the evaluation. The psychiatrist
should have knowledge of basic family law, including
statutes and court cases in the jurisdiction of the evalu-
ation, and learn if there are any relevant legal standards
that may apply in that jurisdiction (e.g., presumption in
favor of joint custody) (AACAP 1997). If provided with
adequate training, any psychiatrist doing a competent
and thorough psychiatric child custody evaluation, regard-
less of the source of payment, should arrive basically at the
same final decision.
Role as evaluator
Solnit and Schetky (1986) have described how the psych-
iatrist must always remember to maintain his or her role
as the advocate for the child’s best interests and not slip
into the role as therapist for a given party. The evaluator
needs to maintain parental neutrality and should be
336 Family law and domestic relations
aware of pressures by parents to attend to issues of fair-
ness to adults over the best interests of the child. The
evaluator should tell both parents and children that he or
she is only concerned with what is in the best interests of
the child. When acting as child advocate, the evaluator
also should remember that he or she does not necessarily
support what the child wants, but what the child needs. In
this sense, the psychiatrist maintains an objective stance
as forensic evaluator, and applies the examination data
to the appropriate legal standard (i.e., what is in the best
interests of the child). It should be clear that the evaluator
makes clinical recommendations based on psychiatric
training, not legal decisions of custody, which are always
made ultimately by the court. Finally, as child advocate,
the evaluator also must try to conduct as prompt an evalu-
ation as possible, as an unnecessarily protracted evalu-
ation can bring further stress on the child. AACAP (1997)
estimated that it might take one to three months to com-
plete an evaluation and report, although other delays
may exist before the case actually presents before a judge.
The interviews
A large part of the psychiatric evaluation in child custody
cases consists of a series of interviews, where one takes
careful parental histories and the child’s history, gathering
as much information from these primary sources as pos-
sible. Before beginning the interviews, the evaluator may
obtain a signed waiver of confidentiality from all parties to
be interviewed. This waiver, which further distinguishes
this work from the psychiatrist’s other work of therapy,
may be necessary since the evaluator may be making dis-
closures to opposing attorneys. Disclosure in court before
the judge also may be required. Usually, the interviews that
need to be conducted include an interview of each parent
individually, each child alone, and the child with each
parent individually. The interviews also often include
the parents together without the child, the child together
with both parents, or the child with his or her siblings.
Conducting so many interviews can be time consuming,
and the use of a team approach has been advocated (Ash
and Guyer 1984; Weiner, Simons, and Cavanaugh 1985).
This is not always possible, however, and many psych-
iatrists do successfully conduct the evaluation alone.
The examination
According to the American Psychiatric Association (1982),
there are three major questions that should be addressed
during the course of the evaluation:
1 What is the quality of the reciprocal attachment
between parent and child?
2 What are the child’s needs and the adults’ parenting
capacities?
3 What are the relevant family dynamics at play?
Levy (1985a) added a fourth primary question to be
addressed, which is, ‘What is the child’s preference, if any,
for custody?’ These questions can be answered during the
interview process, as well as with supplemental informa-
tion from other sources.
When assessing the quality of the reciprocal attach-
ment between parent and child, the evaluator first must
inquire about the extent of involvement each adult has
with the child. One can also obtain valuable information
from direct observation of the interactions of parent with
child. It is important to establish who has the major
role of ‘psychological parent’ for the child; that is, whom
the child considers to be his or her parent, protector, or
provider (Goldstein, Freud, and Solnit 1979; APA 1982).
This person may or may not be the genetic parent.
Indeed, current research in attachment theory suggests
that a child’s early ties to a primary caregiver who is not
the originating genetic parent result in a superior bio-
logical bond between that caregiver and child dyad (see
discussion in Chapter 38). Also, the role of the ‘psycho-
logical parent’ is usually shared by more than one person.
For example, this might be both genetic parents or one
genetic parent and another adult, such as a step-parent or
grandparent. The evaluator may use projective tests, such
as drawings, or pose hypothetical questions to the child,
to help determine whom the child relies on most and in
what circumstances.
One may also ask the child directly if he or she has a
preference for custody, though one should do so with
great sensitivity. The reliability of the child’s answer is
age-related. A younger child may express the preference
of a parent that he/she is afraid of alienating, rather than
express his/her own preference. Adolescent children are
more capable of expressing their true desire for custody
arrangements, but they too may fear answering and
thereby alienating or hurting the feelings of the parent
not chosen. AACAP (1997) wrote that judges may give
more weight to a stated preference when the child is
12 years of age or older, and that some states actually
require the evaluator to ask about a child’s preference.
Billick (1986) indicates that the average 12-year-old has
achieved the Piagetian stage of concrete operations and
Kohlberg’s stage of conventional morality, levels of func-
tioning compatible with the overwhelming majority of
adults in even a literate society. He suggests that juveniles
between the ages of 11 and 14 years should be accorded
greater latitude in formulating decisions. If asking a child
for his or her custody preference, the evaluator may allay
some of the child’s anxiety by reminding him/her that
the court – not the child – will make the final custody
decision. One may also choose not to ask the children
directly what their preference is for custody, and instead
infer this preference through observations of the children.
When assessing the child’s needs and the involved
adults’ parenting capacities, one should be concerned par-
ticularly with the developmental needs of the child and
the parents’ capacity to promote the healthy development
 Role of the psychiatric evaluator in child custody disputes 337
of the child. Children of various ages and developmental
levels have different needs, which one or another parent
may be better able to satisfy. One also should assess the par-
ents’ understanding of these developmental needs. During
the interview with child and parent, one can assess the par-
ent’s ability to set limits, provide support and nurturing,
and allow appropriate separation and individuation. One
can assign specific tasks and observe how parent and child
work together on these tasks. Often each parent will have
a different set of strengths and weaknesses, and there is
no clear-cut distinction as to who has the better parent-
ing skills and can best meet the needs of the child. When
joint custody is not possible, the evaluator may be forced to
make a value judgment as to which parent provides for
the most important needs of the child. One must be careful
to focus only on what is relevant to the child’s development
and avoid being swayed by irrelevant biases from attorneys
or from within oneself. Avoiding such biases may be of
particular importance when a non-genetic, mentally ill,
or homosexual parent is involved.
When assessing the family, the psychiatrist also must
analyze the family dynamics at play. These dynamics may
influence parental motives for seeking custody. Parents
may not always be aware of the source of their motives;
for example, anger toward the other parent, depression,
or a desire for revenge. The evaluator can help parents to
separate marital conflicts and divorcing issues from par-
enting issues. The evaluator can also help the adults to
subjugate parental feelings and needs to the superiority
of the child’s needs. The evaluator should also assess the
potential custodial parent’s ability to promote the relation-
ship of the child with the non-custodial parent, which
would favor a positive post-divorce outcome for the
child. Knowledge of the personal and family history of the
parents is often helpful in fully assessing family dynam-
ics. Finally, the evaluator should be aware of the child’s
potential involvement in family dynamics. A child’s wish
for the reunion of the parents may lead to manipulation
of the parents by the child, influencing the behavior and
desire for custody by the parents.
In addition to the above considerations, the American
Academy of Child and Adolescent Psychiatry (AACAP)
approved their ‘Practice Parameters for Child Custody
Evaluations’ (1997). According to the parameters, the
evaluator should examine for the presence of parental
alienation (i.e., where the child has notable negative feel-
ings toward one parent), the sensitivity of each parent to
the gender role-model needs of the child, each parent’s
parenting and disciplinary styles, and each parent’s hand-
ling of conflict resolution. The evaluator should consider
each parent’s work schedule and strategy for day care,
and each parent’s educational plans for the child. Other
areas of inquiry include sibling relationships, each parent’s
physical and psychiatric health, finances, social supports
and relatives in each household, and differences in cultural,
religious and individual beliefs and values between each
parent. It also recommends obtaining a history of the
marriage and separation, each parent’s own social and
marital history, and family of origin history. How each
parent was raised, his or her childhood experiences of
divorce, and how those experiences possibly impact the
parent’s perception of the relationship with his or her own
children may be important. The evaluator should explore
any allegations parents make against each other, but also
note whether a parent spends most of the session attacking
the other parent at the expense of focusing on the child.
Collateral sources of information
When conducting the psychiatric evaluation, one may also
use a variety of other sources of information, in addition
to the previously described interviews. Home visits, where
the evaluator can observe the behavior of child and par-
ents in a naturalistic setting, can be very informative. This
behavior can differ strikingly from that in the formal
office interview setting. The evaluator should also not
forget that both attorneys involved in the custody battle
might have useful information. Other secondary sources
of information include teachers, grandparents, pediatri-
cians, or other mental health professionals working with
the child or with the parents. The evaluator, however,
should maintain a clear distinction between information
from secondary sources and information that is gained
from direct observation, as the courts usually place more
confidence in primary sources of clinical data.
Confidentiality issues
Malmquist (1994) examined the question of how the
courts regard the issue of confidentiality in custody dis-
putes where one or both parents (or the child) have been,
or are presently, in psychiatric treatment. The answers are
myriad and diverse, depending on the jurisdiction. For
example, in some jurisdictions, simply entering into a
custody dispute essentially puts a party’s mental health at
issue and automatically waives privilege. In other instances,
the court remains guided by the best interests of the child
standard and looks to a guardian ad litem or independent
psychiatric expert to assess whether particular treatment
records contain material potentially harmful to the child.
Still other courts guided by precedent or state statute have
chosen to not interfere at all with doctor–patient priv-
ilege, to waive that privilege only in cases where there is
an allegation of parental unfitness, or to rely on an inde-
pendent psychiatric examination without delving into
private treatment records. In the often-cited case of In
re Lifschutz (1970), Malmquist noted that the California
Supreme Court held that ‘the psychotherapist could be
held to answer questions directly relevant to the subject of
the suit (emphasis added).’ If courts move in the direction
of automatic waivers, Malmquist wondered if clinicians
will be expected to provide informed consent in the form
of a quasi-Miranda type of warning before engaging in
338 Family law and domestic relations
treatment with patients who are, or may become, parents.
Malmquist recommended a compromise: in cases where
the parties cannot agree on an independent psychiatric
evaluator, the disclosure of private treatment records
should be limited to instances where not only an allegation
of parental unfitness is made, but where the records sought
bear directly on such parental competency standards rather
than on the best interests of the child standard.
The Court of Appeals of Maryland, in the case of
Laznovsky v. Laznovsky (2000), upheld a parent’s right to
assert doctor–patient privilege in a child custody dispute
(Caracansi and Billick 2000). The opinion stated that
maintaining this privilege serves public policy by protect-
ing the psychotherapeutic process and respecting a consti-
tutional right of privacy. However, the court left open the
possibility for family court judges to make exceptions.
The ruling essentially reads that a parent who claims fit-
ness does not automatically waive their doctor–patient
privilege ‘without more.’ The language ‘without more’ is
not clearly defined in the written opinion, and guidance
is not provided as to what standard a court should follow
when considering waiver of privilege (e.g., best interests
of the child, parental competency, etc.). However, the
Laznovsky opinion mentions the usual exceptions to
doctor–patient privilege, including the circumstance where
a parent voluntarily waives it. Also, the court recognized
that in disputes where only one parent waives privilege,
the other parent might be at a disadvantage, but indi-
cated that a trial court can order a current, independent
evaluation.
Children in therapy
When the evaluator finds that the children in the divorcing
family are already in therapy, this is a wonderful source of
additional material to be utilized and understood. If the
therapist is adept, he or she may be willing and able to
testify, if needed, on behalf of the child’s best interests.
Many therapists, child psychiatrists included, are not
comfortable with this, and they should not be forced to
testify unless essential. Sometimes one of the divorcing
parents may see the therapist as supporting the other
parent. The disheartened parent may try to sabotage or
discontinue the child’s therapy. Every attempt should be
made to avoid the disruption in the child’s psychological
support system, including obtaining judicial interven-
tion safeguarding the therapeutic continuation.
Psychological testing
The psychiatrist may wish to consult with a psychologist
who is experienced and capable in testing procedures in
child custody disputes. AACAP (1997) suggested that psy-
chological testing might be most useful when the psychi-
atric health of a parent or child is a legitimate issue.
The MMPI-2 is considered the most commonly used
assessment instrument in the evaluation of child custody
litigants (Ackerman and Ackerman 1997; Strong et al.
1999). Medoff (1999) cautioned that while a body of
research on the MMPI-2 in this population has shown a
pattern of elevations on validity scales L and K, addi-
tional studies do not necessarily support the traditional
view that such elevations are to be interpreted as normal
in the context of child custody examinations. He pointed
out that the well-established elevations on these validity
scales do not generally reach clinical significance (i.e., a T
score of 65 or greater). Therefore, it may be appropriate
to attribute clinically significant scores on scales L and K
to empir-ically associated personality characteristics
(e.g., neurotic defensiveness, an unrealistic self-image,
and an excessive reliance upon denial). Although it may
be common sense that parents want to present themselves
in the best possible light when faced with custody mat-
ters, this expectation should not necessarily explain away
meaningful test findings that can alert the clinician to
possible underlying psychopathology.
Consistent with normative data for the MMPI-2 in
child custody litigation (e.g., Bathurst, Gottfried, and
Gottfried 1997), a study by Strong et al. (1999) on 412
child custody litigants showed a mean test profile that was
within normal limits. Only 26 per cent of their sample pro-
duced a T score greater than or equal to 65 on any clinical
scale. The authors describe a method of data analysis with
the MMPI-2 that may help distinguish between deliberate
attempts to create a positive social image (Impression
Management) and the unintentional concealment of
symptoms and areas of maladjustment (Self-Deceptive
Positivity). This might assist the psychologist in discerning
whether elevations on various underreporting and validity
scales represent a situation-specific (and perhaps under-
standable) desire of the custody litigant to put his or her
best foot forward, or an intrinsic and enduring feature of
his or her personality. The psychiatric evaluator should be
able to critically examine any interpretations arising from
psychological testing, and be aware of the limitations of
such procedures. Testing data should be used as an adjunct
to the comprehensive clin-ical and forensic evaluation, and
not be relied upon in a rote fashion when offering opin-
ions about parental fitness and child custody.
Referrals for treatment
As part of the psychiatric evaluation in child custody
cases, one is also usually obliged to assess the need for
psychiatric treatment for any of the parties involved. This
is to help assure a favorable adjustment by the child after
the divorce is complete. One may wish to refer the child or
parents to other therapists, rather than perform ongoing
treatment oneself, since it may be difficult to change roles
from evaluator to therapist. When recommending further
treatment, one must be realistic as to available treatments
and approaches, especially if such treatment is considered
a requirement for custody or visitation rights. Unrealistic
 Role of the psychiatric evaluator in child custody disputes 339
expectations that interfere with the parent–child relation-
ship will be detrimental to the child.
MAKING RECOMMENDATIONS
The report
Usually, the psychiatric evaluator is requested to organize
his or her findings and recommendations for custody in
a written report. The APA guidelines (1982) recommended
that it is always important to remember when writing
this report, however, that the content is not confidential
and may be used as evidence in court. Early in the report
it is recommended that the basic circumstances in which
the evaluation has been conducted be mentioned. This
would include the means of referral, a description of the
interviews and other clinical procedures, as well as any
use of secondary sources of information.
The focus of the body of the report should be to answer
clearly the basic questions addressed in the custody case.
As discussed previously, this would be a description of
the reciprocal attachment between parent and child, a
description of the child’s needs and the adults’ parenting
capacities, and a description of the relevant family
dynamics. After this description of the findings, the evalu-
ator should clearly state a recommendation for custody
and the evidence in the report should decidedly support
this recommendation. In those cases where the evaluator
finds it impossible to make a firm recommendation, he
or she should state this and perhaps explore the advan-
tages and disadvantages of different decisions. When an
evaluator cannot make a firm recommendation, however,
the report is less useful to the court, and one should try
to avoid this situation. An account of the history of any
prior custody of the child, when relevant, should be
included. When writing the report it is important that it
be free of professional jargon and theoretical discourse,
which may be irrelevant and confusing to the court. One
may need to discuss particular psychiatric diagnoses,
however, when they apply to an involved party in the
custody battle. Either the relevance or the irrelevance of
such diagnoses to the development of the child should be
explained. The report should rely on objective and descrip-
tive data from direct observation of parents and child,
and direct quotes from either are often useful. It is also
important to state the child’s preference, when a prefer-
ence exists, and explore the reliability of this preference.
Custody recommendation
When formulating an opinion on custody, it is recom-
mended that joint custody be the first considered dis-
position. Several authors (Galper 1978; Ilfeld, Ilfeld, and
Alexander 1982; Luepnitz 1982; Ware 1982) have written
about the added benefits that joint custody may pro-
vide. Wallerstein and Kelly (1980) have emphasized the
importance of a continuing relationship with both parents
in helping children recover from post-divorce trauma.
They also have written that children cope better with the
stress of divorce when there is less anger and conflict
between parents after divorce. Thus, when both parents
are able to negotiate joint custody, this in many ways is
in the best interest of the child. Parents must be agreeable
and capable of such negotiation, however. It is debatable
whether one can legislate this level of cooperation onto
unwilling parents and expect joint custody always to be
effective. One can emphasize to parents during the evalu-
ation process that they may divorce legally, but in reality
they may be brought together again and again in the future
through their children. They may see one another and
have to deal with one another at birthdays, graduations,
confirmations, bar mitzvahs, or later, similar events with
grandchildren. Cooperation from the start with joint cus-
tody may be beneficial for all. Joint custody may not be in
the best interest of the child, however, when one parent
significantly undermines the authority of the other parent,
or the child’s relationship with the other parent.
The most common alternative to joint custody is sin-
gle custody by one parent with visitation rights for the
other parent. The custodial parent should have the capacity
to help the child continue a positive relationship with the
non-custodial parent. The evaluator usually considers the
best fit between parent and child, but sometimes may
be forced to choose the least harmful fit. When custody
disputes are between a genetic parent and a non-genetic
parental figure, legal precedent has dictated that the genetic
parent has the right to custody unless proven unfit. Often
the term ‘biological’ is used to support the genetic parent.
Research is demonstrating that attachment behavior is
also ‘biological,’ leaving the question to chose between
two biological parents. The ‘best interests’ standard allows
for questioning of this precedent for genetics, and the
evaluator may wish to take advantage of this flexibility
when it would benefit the child.
Custody decisions can become more complicated in
disputes between the state and a parent where allegations
of abuse or neglect exist. In these cases, the potential con-
flict between parents’ rights and the state’s responsibility
to protect the child may arise. The APA (1982) has cau-
tioned evaluators involved in such cases to remember a
number of special problems that may arise. When relatively
easy entry into the foster-care system for these children
is coupled with the difficulty of terminating parental rights,
children may be caught in limbo between the two. In these
cases there may be strong impetus for the focus of the
trial to be on parental rights. The psychiatric evaluator thus
has the greater challenge of directing the focus of custody
decision onto the child and his or her rights and needs.
Potential pitfalls
When making recommendations, the evaluator should be
aware of potential pitfalls that can be avoided. Evaluators
340 Family law and domestic relations
need to remember that parents’ characters, behaviors,
and life-styles are theoretically relevant only insofar as
they affect the child. The evaluator may need to be con-
sciously aware of avoiding influences of his or her own
personal biases. Also, the evaluator may be faced with the
results of an adversarial system that has brought out the
worst in parents, for example, encouraged the parents to
use the children as a bargaining chip against a house, car,
bank accounts, and so forth. In order to achieve the best
post-divorce outcome for the child, the evaluator needs
to help parents put aside marital conflicts so that they
may comply with the recommendations. The evaluator
needs to choose the best or least disadvantageous custody
option existing at the time of the evaluation, rather than
focus on future possibilities. It may not be possible to
predict the needs of the child in the future, or the par-
ents’ future capacities to meet these needs. In order to get
the best choice for the child, the evaluator should also try
to be clinically flexible when regarding alternative living
arrangements for custody, for example, with a single par-
ent, gay parent, or father versus mother. Lastly, it is possible
in certain cases to make custody recommendations after
having interviewed only one parent, though this is not
ideal. This situation may arise when one parent refuses to
be interviewed. A recommendation can be made if one
can assume that the other parent is normal, and there is
still compelling reason to recommend sole custody to the
parent interviewed based on positive evidence from the
child and the evaluation. It is also possible sometimes to
infer aspects of the non-participating parent from the
children’s descriptions. Particularly with older children,
they may be reliable reporters of pathology or destructive
parenting in the nonparticipating parent. The American
Academy of Psychiatry and the Law (AAPL) has established
Ethics Guidelines For the Practice of Forensic Psychiatry
(1987, rev. 1995). AAPL recognized that the role of an
expert witness, the child custody evaluator, may include
making expert opinions from collateral sources alone,
requiring of course clear documentation of this aspect.
Informing the parties involved
After making a recommendation and completing the writ-
ten report, the evaluator must next inform the involved
parties. It may be helpful for an evaluator, who has had
access to examine both litigants and reached a conclusion,
to meet with each parent separately to explain his or her
reasoning for the opinion. This may help to diffuse parental
disappointment or anger. This can be accomplished in an
interpretative interview with the parents where the evalu-
ator reviews the recommendation for custody and the
reasons behind the recommendation. The evaluator may
also include the involved attorneys in this interview or
discuss the recommendations separately with the attor-
neys. The evaluator should also explain the recommenda-
tion to the child. Ash and Guyer (1986), who have studied
the different functions of the psychiatric evaluation in
child custody cases, have shown that the most frequent use
of the evaluation was as a bargaining chip. They report in
their sample that in 71 per cent of the cases, after hearing
the evaluator’s recommendation, the parties either stopped
litigation or negotiated an agreement, using the evaluator’s
report as a bargaining beginning point. For example, the
party for whom custody is not recommended may con-
cede to this decision in exchange for a concession by the
other party in a different area of dispute. During the inter-
pretative interview, the evaluator can help the parents
understand the reasons for the recommendation and may
help them come to a negotiated agreement on custody.
Actual litigation would thus be avoided.
Testifying in court
Once the evaluation is complete and the involved parties
have been informed of the recommendation for custody,
the evaluator may need to prepare to testify in court. This
is not necessary in most cases. Ash and Guyer (1984, 1986)
found evaluators were asked to testify in court in only
4–5 per cent of the cases. When the evaluator is called to
testify in court, he or she should prepare for this by first
discussing the recommendation and how it will be pre-
sented in court with the guardian ad litem or attorneys.
One must prepare for the pressures of cross-examination,
avoid being swayed by extraneous information, and
attempt to testify only on what is relevant to the child’s
best interests. The best preparation for court is to have a
firm recommendation and evidence that clearly supports
that recommendation. Lawyers are trained and educated
to manipulate, distort, confuse, and obfuscate on cross-
examination. The psychiatrist needs to clarify, document,
and be logical.
SPECIAL ISSUES IN CHILD CUSTODY DISPUTES
Joint custody and father custody
Levy (1985b) has advocated that fathers and mothers
be considered equally for custody, and has questioned
whether sexism exists in child custody decision making.
Ploscowe, Foster, and Freed (1973) have estimated that
the mother gains sole custody in 80 per cent of cases, the
father in 10 per cent, and that joint custody occurs in
10 per cent of cases. Ash and Guyer (1984) have reported
recommending custody to mothers in 50 per cent of
cases, to fathers in 31 per cent, joint custody in 15 per
cent, and to others in 4 per cent. However, they cited in a
random sample of cases from the local jurisdiction that
father custody is granted in only 5 per cent of cases.
Meyer and Garasky (1993) suggested that the figure for
father custody might be closer to 15 per cent based on
survey and census data. Kelly (1994) reviewed that there
 Role of the psychiatric evaluator in child custody disputes 341
has been a trend towards joint legal custody, and that the
most common arrangement in the United States is joint
legal with sole maternal physical custody. In other words,
both parents retain rights and powers to make decisions
regarding the child’s health, education, and welfare, but
only one parent has residential custody of the child, usu-
ally with visitation by the other parent.
In the atmosphere of equal rights protections in the
1970s and 1980s, the provision of joint physical custody
(i.e., where the child resides with each parent for a por-
tion of the year, or even in alternating years) became an
increasingly popular family court disposition. This shift
also sprang from child development research into the
importance of children’s attachment to their fathers.
In 1979, California (which followed the nation’s first
‘no-fault’ divorce law in 1970) enacted the first joint cus-
tody statute, to be followed by over 40 states by 1991 (Kelly
1994). Some state laws actually specify a presumption for
joint custody, not simply that it be considered (Derdeyn
and Scott 1984). Joint custody has been regarded as a
means to reduce the negative impact of divorce on the
child, by maintaining the child’s contact with both par-
ents. However, AACAP (1997) noted that for this arrange-
ment to be successful, it likely requires parents who are
psychologically healthy and cooperative.
Kelly (1994) noted that some feminist groups have
responded to the emphasis on joint custody by advancing
the concept of a primary caretaker standard. The primary
caretaker is usually the mother, who spends the most time
managing the daily needs of the child. This bears similar-
ity to the ‘tender years doctrine.’ Kelly wrote that a primary
caretaker standard, however, ignores the quality of the
parent–child relationship and emotional attachment, in
favor of counting childcare hours and concrete behaviors.
Although it is still not usual, granting sole custody to
a father has become less uncommon in recent years.
There are factors that have made paternal custody more
likely. One of these factors is the gender-neutral ‘best
interests of the child’ standard. Also, the changing social
roles of men and women have distributed parenting roles
more equally between the sexes. Many fathers now spend
more time as child caretaker at home, and many mothers
are now working out of the home as much as fathers are.
Also, due to much recent research in the area, it is now
known about the importance of both the father and the
mother in child development. Lamb (1997) and Fitzgerald
and McCread (1981) have discussed evidence that shows
infants are strongly attached to both mother and father
by the second half of the first year of life. Levy (1985b) also
cited multiple other studies that describe the importance
of the father throughout a child’s development. A recent
APA resource document on child custody issues indicates
that the literature provides some evidence that boys tend
to do better in father custody and girls in mother custody,
all other factors being equal (Binder 1998).
When conducting a psychiatric evaluation for child cus-
tody, it is important to use the same criteria to evaluate
men and women when assessing parenting capacities. One
should recommend custody to a single male if it is clinically
indicated, rather than be moved by a sexist bias to recom-
mend something that would not be in the child’s best inter-
ests. Individual’s parenting capacities vary, whether they
are male or female, and a good clinical evaluation will rec-
ommend custody to the person who can best meet the
child’s needs.
Gay and lesbian parents
It is estimated that between 6 and 14 million children have
at least one gay or lesbian parent (Binder 1998). In the past,
when gay men and lesbian women were involved in child
custody cases, they were generally denied custody based
solely on their sexual orientation. In recent decades there
have been slow changes in the way society views homo-
sexuals, as well as changes in how psychiatry views gays
and lesbians. In 1973, the APA trustees voted to eliminate
homosexuality per se as a mental disorder and, after exten-
sive scientific debate, the members of the APA upheld this
decision by referendum (APA 1974). Since DSM-III-R
(APA 1987), homosexuality has no longer been classified as
a psychiatric disorder of any kind. Despite these changes,
unfortunately, sexual orientation is still a confounding
issue in child custody cases today, and some attorneys may
contest custody decisions based solely on this issue.
Hutchens and Kirkpatrick (1985) discuss three stereo-
types that have led courts to hesitate to grant child custody
to gay parents. The first stereotype is that gays are psy-
chologically or sexually maladjusted and not mentally fit
to raise children. The second is that children raised by
gay men or lesbians will grown up to be gay or have gen-
der identity problems. The third stereotype is that chil-
dren raised by a gay parent will be stigmatized by the
custodial parent’s sexual orientation. The authors, how-
ever, cited numerous psychiatric and psychological stud-
ies that scientifically refute all three of these stereotypes,
demonstrating that being raised by a gay parent does not
compromise child development. These studies confirm
that gays’ and lesbians’ psychological functioning and
parenting skills are not inferior to those of heterosexuals.
Freedman (1971) has proposed that gay men and women
may actually have better autonomous ego functioning
because they were forced to be more independent-
minded when growing up.
The 1998 APA resource document prepared by the
Subcommittee on Child Custody Issues further reviewed
the relevant literature (Binder 1998). The evidence pre-
sented is that there are no significant differences in
parenting between divorced lesbian and heterosexual
mothers, and that there are no identifiable differences
in the emotional and intellectual development and peer
relationships between their children. Also, children of
lesbian and gay parents show no statistical increase in
the incidence of homosexuality, and there have been no
342 Family law and domestic relations
reported cases of pedophilia committed by gay parents
or their partners on their children (dispelling a prejudi-
cial fear expressed by some courts).
Because of these and other findings, Hutchens and
Kirkpatrick (1985), as well as others (Sadoff and Billick
1981; Herman 1990b), encouraged psychiatrists to evalu-
ate gay and lesbian parents the same as any other parent.
One must evaluate the child–parent relationship, the
child’s needs, and the parent’s ability to meet these needs,
without being biased by unfounded stereotypes. The
evaluator should confront these stereotypes when neces-
sary and educate the court about such stereotypes. The
evaluator should clearly state the relevance or irrelevance
of a parent’s sexual orientation as it applies to the child.
In this way one can best ensure that a child custody deci-
sion is based on what is in the child’s best interests and is
not based on prejudice.
The mentally ill parent
When evaluating parents who carry a psychiatric diagno-
sis, one should be aware that such a diagnosis does not
automatically mean incompetence as a custodial parent.
There are millions of psychiatric admissions for inpatient
treatment every year in the United States. These patients
do not have their parental rights abrogated routinely solely
by virtue of having a serious mental illness. Herman
(1990b) cited examples of psychotic parents who are either
capable or incapable custodians. One first evaluates these
parents as one would other parents, assessing their capacity
to meet the best interests of the child. In addition, one
needs to evaluate the parent’s psychiatric condition, for
example, insight, adequacy of treatment, and compliance
with treatment. Also, it may be necessary to evaluate if
the decision for divorce is a product of a psychiatric ill-
ness, for example, psychosis or a psychotic depression. In
one case example that one of the present authors (S.B.B.)
encountered, a mother sought divorce during the course
of a psychotic depression. The father, who did not have
a psychiatric illness, opposed the divorce. During the
course of the custody evaluation, the 14-year-old son
told his mother’s lawyer that in a divorce he would prefer
custody with the father, but that instead he felt the
mother should be hospitalized rather than be divorced.
She was hospitalized and had successful inpatient psychi-
atric treatment. No divorce occurred, and the family
remained intact.
Herman (1990b) also noted that both true and false
allegations of psychiatric illness, for example, alcoholism
or depression, are common in child custody disputes. The
evaluator always needs to verify these diagnoses for one-
self and not take diagnoses from others a priori. One also
should be aware of personality disordered parents, or
even delusional parents, whose motives for custody may
be influenced by their pathology, rather than the best
interests of their child.
Grandparents and other third parties
Schowalter (2000) observed that there is probably more
interaction between grandparents and their grandchildren
in our current society than ever before. Contributing to
this are increased longevity, air travel, and grandparents
assuming a surrogate parenting role as some mothers
continue their careers, and as other mothers remain
incapable of assuming care for their children, by virtue
of AIDS, substance abuse, or being practically children
themselves. The U.S. Bureau of the Census (1997) docu-
mented that 13.5 per cent of African-American children,
6.5 per cent of Latino, and 4.1 per cent of white children
are in the care of relatives. As noted by Schowalter, there
exist plenty of studies showing that grandparent custody
is usually a quite satisfactory arrangement.
The U.S. Supreme Court, in Troxel et vir. v. Granville
(2000), affirmed a decision by the Washington State
Supreme Court, finding unconstitutional a statute per-
mitting visitation by any non-parental third party ‘at any
time’ if a court determines such visitation to be in the
best interests of the child. A 6–3 decision written by Justice
O’Connor opined that the statute violated the Fourteenth
Amendment Due Process rights of a custodial mother, Ms.
Granville, to make decisions concerning the care, custody,
and control of her daughters. The opinion stated that
the Fourteenth Amendment has a substantive component
meant to provide heightened protection against govern-
ment interference with certain fundamental liberty rights
and interests, including the right of a parent to make deci-
sions concerning the care, custody, and control of his or
her children. The Court cited precedent in a number of
cases, including the landmark case Parham v. J.R. (1979),
where the U.S. Supreme Court held that parents should
‘retain a substantial, if not dominant, role in the decision
[to civilly commit a minor], absent a finding of neglect or
abuse.’ The Court also stated that there is a common law
tradition to presume parental fitness and that in the case
of Ms. Granville, there were no allegations to the contrary,
and that she had even agreed to limited visitation by the
grandparents (although less than the Troxels wanted). The
Court decried that the Washington statute actually weighed
the visitation right of the grandparents as more important
than ‘perhaps the oldest of the fundamental liberty inter-
ests recognized by this Court.’
Some jurisdictions already place the burden on a third
party to not only show that visitation would be in the
child’s best interest, but to show potential harm to the
child were such visitation denied. For instance, grand-
parents may need to show that they have been heavily
involved in the care of the child prior to the controversy,
and that they have been actively pursuing continued
contact. The U.S. Supreme Court in Troxel declined to
explicitly weigh in on such ‘heightened harm to the child’
standards. The Court held only that the Washington
State statute in question swept too broadly by permitting
any person to petition for visitation, with the only
 Role of the psychiatric evaluator in child custody disputes 343
requirement that the visitation serve the best interests
of the child. Nevertheless, the ruling in effect raises an
already high threshold for third parties to seek visitation
rights (and by extension custody) and puts other courts
and lawmakers on notice. Schowalter agreed with the
Troxel ruling, indicating that grandparent visitation forced
on an unwilling custodial parent by the court places the
child in an acrimonious and untenable situation. However,
it is likely that most children can separate obvious vitu-
perative comments made by grandparents against parents
as false, and focus on their own relationships with their
grandparents, independent of their grandparents’ rela-
tionship with the parent. This is of course easier to do for
older children than it is for younger ones. The forensic
psychiatric expert in custody and visitation disputes may
be called upon to also address potential harm to a child,
in cases where a third party is seeking rights relative to a
parent. The evaluator may need to balance this consider-
ation with the usual assessment of parental competence
and the child’s best interests.
Allegations of child sexual abuse
Both true and false allegations of child sexual abuse occur
in custody battles. The evaluator must be prepared to assess
the validity of such allegations and discuss how they affect
custody and visitation recommendations. While Guyer and
Ash (1986) reported an incidence for allegations of child
sexual abuse of 33 per cent in 400 court-ordered custody
evaluations, a study of 9000 families in custody/visitation
disputes by Thoennes and Tjaden (1990) yielded a figure
of about 2 per cent, replicated by McIntosh and Prinz
(1993) who examined 603 family court cases. Thoennes
and Tjaden found a similar incidence of false allegations
in custody dispute and non-custody dispute situations,
whereas Green and Schetky (1988) emphasized that false
allegations of child sexual abuse more commonly arise in
the context of a custody battle. Gardner (1987) stated that
the majority of children professing sexual abuse in custody
situations are actually brainwashed to believe it, as part
of the controversial parental alienation syndrome.
Benedek and Schetky (1985), with a sample of eighteen
custody dispute cases, found an incidence of 55 per cent
for unfounded allegations. However, studies with larger
sample sizes yielded more conservative figures. A survey
of general child sexual abuse cases reported to a child
abuse agency, found that 6 per cent of allegations could
not be substantiated (Goodwin, Sahd, and Rada 1978).
Although some have found that 8 per cent of allegations
were false, Thoennes and Pearson (1988) 14 per cent, and
McGraw and Smith (1992) 16.5 per cent. Penfold (1995)
remarked that some authors believe that child sexual
abuse may actually be more frequent in divorce (e.g., the
stress of the divorce triggering vulnerabilities in a parent,
or ongoing abuse coming to light for the first time). She
also wrote that some jurists believe that virtually all such
allegations in the custody context are false, a ploy on the
part of the mother to besmirch the father. Raising an alle-
gation of child sexual abuse (whether true or false) may
actually jeopardize the accuser’s chances of securing cus-
tody. In a related vein, raising the issue of spousal abuse,
Shalansky, Ericksen, and Henderson (1999) provided ref-
erences documenting that Canadian courts mostly do
not recognize domestic abuse of women as having any
bearing on child custody disputes or the abuser’s rela-
tionship with his children. The psychiatric evaluator
needs to remain objective, but also aware of the impor-
tance of carefully examining the validity of these allega-
tions. False allegations can have a potentially harmful
impact on the child.
Green and Schetky (1988) have described how one can
evaluate the child in such cases and assess the reliability
of the child’s disclosure. One must first assess the child’s
ability to separate reality from fantasy and his or her abil-
ity to verbally express and recall past events. Both will be
a function of the child’s developmental level. In general,
according to these authors, false denials by children are
relatively common, but false disclosures of sexual abuse
by children are relatively rare. False disclosures can occur,
however, in a variety of special settings. They may be seen
in a child who has been ‘brainwashed’ by a vindictive
parent who seeks revenge or desires to end all contact
between the child and the other parent. They also may be
seen when a delusional parent has influenced a child.
Occasionally a child may give a false disclosure based on
the child’s sexual fantasies, rather than reality. A child may
also falsely accuse a parent for revenge or retaliation. False
disclosures tend to be characterized by a variety of fea-
tures. They may be expressed more readily and without a
significant change in affect than are true disclosures. Such
children may appear outspoken, non-defensive, and may
use adult terms, possibly learned from a coaching parent.
True disclosures, however, usually are delayed, conflicted,
and slow to be revealed, if revealed at all. They may be
stated, retracted, and then restated again. They are usually
accompanied by appropriate negative affect.
When assessing accusations of child sexual abuse, the
evaluator also should observe the interactions of the child
with each parent. One can observe whether there is a
fearful or a loving relationship when the child is alone
with the accused parent. One can also observe whether
this relationship changes when the accusing parent joins
them. In false allegations one may observe the child look-
ing for approval from the accusing parent while the child
displays hostile behavior toward the accused parent. Then
after the accusing parent leaves, the child’s behavior may
revert to being friendly toward the accused parent. In
cases of true allegations the child’s behavior is usually
more consistently fearful toward the accused parent. A
young sexually abused child who does not understand
the deviant nature of the molestation, however, may dis-
play learned seductive behavior toward the accused par-
ent, rather than display fearful behavior.
344 Family law and domestic relations
The evaluation of a child who may have been sexually
abused can be supplemented with play therapy with dolls
or with drawings. Though such techniques can be very
informative, they are not 100 per cent reliable. A child
may be well educated in adult sexual behavior from
watching television, listening to older siblings talk, or
observing farm animals and household pets. Such chil-
dren without a history of sexual abuse can demonstrate
explicit sexual play with dolls.
When making recommendations for custody and vis-
itation in cases where one is in doubt about allegations of
sexual abuse, it is best to be conservative, yet construct-
ive. One may recommend chaperoned visitation and/or
further psychiatric evaluation and treatment for the par-
ent or child. Joint therapy may be possible and helpful.
One should be careful not to refuse visitation automat-
ically. This could lead to painful sequelae for both the
child and the parent, if a well-established bond is severed
permanently. It is rarely required to completely block vis-
itation of any kind, without the consideration of further
treatment.
Parental kidnapping
Parental kidnapping, the abduction or withholding of a
child by one parent from the other parent, may occur in
a variety of contexts related to divorce. Katz (1981) has
described parental kidnapping to occur before a divorce
is finalized by a parent who fears losing custody. Katz has
also described its occurrence after divorce by the non-
custodial parent, who flees to another state with the child
to seek a new custody decision, or simply to hide from
the custodial parent. Also, after a divorce is finalized, the
custodial parent may disappear with the child in an
attempt to deny the non-custodial parent visitation (Back
and Buxton 1983). Other motives may include an attempt
to protect the child from an abusing parent, a desire to
blame and punish the left-behind spouse, a desperate
effort to effect a reconciliation, or even paranoid delu-
sions, sociopathy, and other mental disorders on the part
of the abducting parent (Johnston, Girdner, and Sagatun-
Edwards 1999).
Goodman (1976) estimated that between 25 000 and
100 000 cases occur annually. Lewis (1978) estimated that
60–70 per cent of cases occur before custody has been
decided and go unreported. A national household survey
conducted by Finkelhor, Hotaling, and Sedlak (1991)
showed that over 350 000 families in 1988 saw one parent
take unilateral action to deprive the other parent of con-
tact with the child. About one-half of these cases involved
actual concealing of the child or flight from the state or
country.
Schetky and Haller (1983) have discussed the traumatic
effects that parental kidnapping may have on the child.
The child’s trust in the kidnapping parent may be
damaged with a detrimental effect on the child’s future
relationship with the parent. The child may blame the
other parent for not preventing the kidnapping and may
feel angry if that parent cannot rescue him or her. The
child may be further traumatized by the kidnapping par-
ent’s irrational behavior. The parent’s disregard for the
law may lead the child to feel vulnerable and without
protection. Common symptoms that may be seen in these
children include difficulty in trusting others, withdrawal,
poor peer relations, school problems, regression, anxiety,
or depression.
Johnston, Girdner, and Sagatun-Edwards (1999) com-
pared fifty families that had experienced a parental
kidnapping in the context of a child custody dispute, iden-
tified by district attorney case records, to a comparison
sample of custody litigating families that also expressed
high levels of anger and distrust, but without an abduction
event. They described several risk factors for the abduc-
tion cases, namely allegations of child abuse, narcissistic/
sociopathic personality traits, unmarried relationship
status, low socioeconomic, and minority ethnic status. The
latter two factors may be mediated by the reduced likeli-
hood that these families will have the resources or cultural
experience to settle their disputes in a legal forum. The
authors proposed that the courts need to have policies in
place to effect rapid decisions or restrictive measures in
high-risk situations.
Due to the potential harm to the child, strict criminal
sanctions against parental kidnapping should be imposed.
The legal system has been taking steps to try to decrease
its occurrence, reflected in the prohibition on parental
kidnapping in both United States federal law and the
Hague Convention (Haller 1987). The National Conference
of Commissioners on Uniform State Laws drafted the
Uniform Child Custody Jurisdiction Act (UCCJA) in
1968. It has become law in nearly all states. According to
Schetky and Haller (1983), this act has been helpful in
reducing the likelihood of a kidnapping parent gaining
custody of a child through a new custody decree in a dif-
ferent state. Prior to this act, one state was not obligated
to honor a custody decision granted in another state.
They have also described the addition of further legisla-
tion in the 1980s, where an increasing number of states
have made child kidnapping a felony, and how this has
been useful to some extent as a deterrent. Even with
implementation of these laws, however, parental kidnap-
ping continues to be a significant problem.
Harassment of psychiatric evaluators
Of final note as a special issue that may be encountered is
the harassment of the psychiatric evaluator. The psychi-
atric evaluator should be warned that attorneys are trained
to manipulate, coerce, confuse, intimidate, and distort as
part of the adversarial system of the court. An attorney,
if losing in court, may attack the evaluator professionally
and personally in a vain attempt to discredit the logical
 Role of the psychiatric evaluator in child custody disputes 345
or irrefutable facts of testimony. Some marriage/divorce
attorneys may take the adversarial system to new extremes.
They may attempt character assassination or other dis-
crediting tactics, ignore the merits of the case, lodge ethical
complaints, call regulatory agencies, or harass the evaluator
in other ways, in order to persuade the evaluator either to
come to a decision that favors their party, or to abandon
the case entirely. There have even been instances where
an attorney has lied over the phone, pretending to be
someone else, in order to try to covertly get information
from one of our authors who was involved in a custody
battle for one of the attorney’s clients. Because of the
pressures placed on evaluators, many psychiatrists refuse
to perform child custody evaluations, which unfortunately
is detrimental to children who need their expertise.
Herman (1990a) pointed out that the psychiatrist also
may receive personal threats from parents unhappy with
the recommendations of the evaluator. Evaluators may
be vindictively reported to state licensure boards or pro-
fessional ethics boards by angry, hostile parents. Issues
surrounding child custody elicit deep emotions within
parents. Such feelings in a parent for whom custody is
not granted may lead to unwarranted attacks on an evalu-
ator, regardless of how well intentioned or reputable the
evaluator may be. The evaluator should also be aware of
the possibility even of violence when working with bitter,
vengeful, dissatisfied parents. It is remarkable and fortu-
nate that competent child psychiatrists subject them-
selves to this undeserving abuse, in order to guide and
protect children from being further victimized by the
divorcing process of their adult parents.
SUMMARY
Certainly, conducting a psychiatric evaluation in a child
custody dispute is difficult, time-consuming, and emo-
tionally draining. The evaluator must carry out extensive
interviews and effectively work with the child, parents,
attorneys, and other adults significant to the child. The
evaluator must make a recommendation that may have a
profound effect on the rest of the child’s life, even when
there may be no clear-cut best recommendation. When
formulating his or her recommendations, the evaluator
must strive not to be biased by personal prejudice or the
persuasive influence of attorneys. He or she must make
a decision that is rooted in the evidence of the evaluation
and is based only on what is in the best interests of the
child. Throughout this process the evaluator needs to
maintain his or her stance as advocate for the child’s
needs. The evaluation process may be painful for the
child, the family, and the psychiatrist. The emotional and
psychological rewards, however, are great. The evaluator
may help provide the potential for a happy, healthy envi-
ronment for the development of the child, a foundation
for later life.
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Termination of parental rights and adoption
SHASHI ELANGOVAN AND STEPHEN B. BILLICK
HISTORICAL AND LEGAL PERSPECTIVES
The basic concepts of ‘parental rights’ and the ‘interests
of the child’ have gone through evolutionary changes.
Until the nineteenth century, the parental rights issue was
relatively simple. Under Roman and early English law,
the term ‘parent’ referred to the biological (i.e., genetic)
father, and children were treated as property of their par-
ents, particularly the father. Because wealth and property
was considered an extremely important matter, the rights
of inheritance were carefully protected and rigorously
addressed in the legal system. This created an extreme
imbalance between the rights of the parents and those of
their offspring.
The term parens patriae had its origin in English Law
where the king was considered the father or the parent of
the citizens of the land. The United States government
and its individual States function as a parent when it
exercises its power of guardianship over persons with
disability, such as minors, incompetents, and the men-
tally ill. Such power is not exercised by the States unless
the person under disability has been deprived, for what-
ever reason, of non-governmental protection and sup-
port of an adequate degree.
The twentieth century was the beginning of a new
interest in delineating rights and the interests of the
children over the rights and interests of the father, and
of both parents. Child labor laws were enacted in the
beginning of the twentieth century to further protect
children. In re Gault (1967) is a pivotal landmark U.S.
Supreme Court case regarding children’s rights. The
Supreme Court upheld a need for timely and adequately
specific written notice, the right to counsel, the right to
confrontation and cross-examination, and protection
from self-incrimination. The need for a transcript and
the right to appeal were not ruled upon. The majority
opinion written by Justice Fortas traced the long history
of differences between juvenile and adult cases and
offered juveniles many rights similar to that held by
adults.
37
The social movement of the 1960s, with its emphasis on
civil rights, influenced the parent–child law. Children were
increasingly viewed as real people with specific rights, and
society began to take interest in the well-being of minors;
hence the ‘best interest of the child’ concept evolved. As
the sociopolitical atmosphere changed again during the
1980s, various rights continued to be re-examined. The
rights of parents and children were not viewed as equal by
the law. The U.S. Supreme Court, in a series of cases, noted
that the biological relationship, although not the exclusive
consideration, is in fact, unique, and often prevailing.
Constitutional law holds that the rights of parents
to raise their children in a manner they see fit constitutes
‘family privacy’ (Lochner v. New York 1905). This suggests
that the law allows great latitude to parental actions or
inaction toward their children. However, parental
rights are not infinite. In the U.S. Supreme Court case
of Prince v. Commonwealth of Massachusetts (1944), the
court stated, ‘the state, as parens patriae, has a wide range
of power for limiting parental freedom and authority in
things affecting the child’s welfare.’
In Roe v. Wade (1973) the court pointed out that, when
the state intrudes upon a fundamental protected right
(family privacy and parental rights), strict scrutiny must
be observed by the court. Such a high level of review is
mandated to ensure that fundamental constitutional rights
have not been abridged.
Parental rights, as recognized by law, include the basic
right to custody of their children unless the parents are
proven unfit. Parents have authority to control their chil-
dren until they reach majority, or are being emancipated.
The child has no right to leave the parental home for
another, although the law recognizes that parental control
decreases with the child’s increasing age, especially in later
adolescence.
In the issue of discipline, the court gives parents wide
latitude in the disciplining of children. The parent has
the right, authority and power to discipline the child, if it
is viewed as being for the child’s benefit. Corporal pun-
ishment is included, while abusive punishment is not. In
general, if parental discipline is administered with good

intent and there is no physical injury, the law will not inter-
vene; however, if malice or serious physical injury results,
the parental rights may have been exceeded (American
Jurisprudence 22 § 22, 1987).
Parents have the right to send their children to pri-
vate, parochial, or the school of their choice. However,
this is a limited right, because the schools must conform
to guidelines and standards established by the state edu-
cational boards (Pierce v. Society of Sisters 1925). Home-
based schooling programs following primary school were
allowed in the Amish group, as illustrated in the Supreme
Court case (Wisconsin v. Yoder 1972).
Parents have a limited right to bring up their child in
a reasonable religion, though inculcating Satanism and
human sacrifice would be unacceptable. Religious practices
that may affect a child’s compulsory school attendance
must be a part of an established religion to be acceptable,
rather than a mere philosophy or a secular belief.
Parents have the right to hospitalize their children
involuntarily for psychiatric evaluation and treatment. An
independent medical authority must concur the need for
hospitalization. In many states, the minor child, however,
has the right to a judicial review for involuntary hospital-
ization (Parham v. J.R. 1979).
In other areas of medical care, the law gives parents
broad discretion with limits. A child may be considered
neglected if the parents fail to provide proper and neces-
sary medical care (In re Green 1972). One of the prom-
inent issues in this area has been the refusal by Jehovah’s
Witnesses to allow blood transfusion. All states that have
ruled in this matter have ordered the blood transfusions
if it has a reasonable likelihood of saving the life of the
child. The courts have held that adults have the freedom to
exercise full religious beliefs for themselves, but cannot
exercise unlimited religious beliefs for their child.
In the Matter of Faridah W., 1992, a New York case, the
court declared a sixteen-year-old female who was born
with spina bifida and had a neurogenic bladder to be a
medically and emotionally neglected child, because her
mother refused to permit her to undergo an enterocysto-
plasty. The court stated that,‘A parent has a non-delegable
affirmative duty to provide a child with adequate medical
care, which has been determined to be that degree of care
exercised by ordinary, prudent, loving parents who are
anxious for the well-being of the child.’ The court further
noted that the critical aspects of the parents’ failure to
obtain medical assistance must be to the extent that the
child’s mental, medical, or emotional health is adversely
affected or in imminent danger of being adversely affected.
In this case, the mother allegedly refused to comply with
the medical expert’s opinion and failed to provide a rea-
sonable alternative to the proposed treatment. She also
failed to visit her daughter during most of her lengthy
hospitalization.
Parents have a right and the authority to determine
their child’s social activities and how best to meet their
child’s physical, emotional, and relationship needs. In
Termination of parental rights and adoption 349
parent–child relations, after granting custody to one
parent, the other parent usually has the vested right to
visitation. The Uniform Marriage and Divorce Act (1991)
requires clear and convincing evidence that parental
contact seriously endangers the child’s physical, mental,
or emotional well-being to justify termination of the
right to visitation.
In many states, it was formerly assumed that an unmar-
ried father had no claim to parental rights and their
permission, therefore, was not required for third-party
adoption of their biological child. The Supreme Court,
in the case of Stanley v. Illinois (1972), addressed a land-
mark due process case regarding parental rights. It was
uncontested that Stanley was an unwed father who was
seriously interested in his offspring. He had maintained a
relationship, provided support payments, and held him-
self out as a father. The Illinois state law presumed an
unwed father to be an unfit parent per se, with no oppor-
tunity to rebut the unfit determination. However, Illinois
law required notice, hearing, and proof of unfitness
before neglect proceedings could lead to termination of
parental rights. Stanley had no hearing. The court found
that Stanley’s private interest involved companionship,
care, custody, and management of the children he has
‘sired and raised.’ The court concluded, ‘It is cardinal that
the custody, care, and nurturance of the child reside first
in the parents, whose primary function and freedom
include preparation [of the child] for obligations the
state can neither supply nor hinder.’ The court went on to
state that the integrity of the family unit was protected by
the due process, equal protection, and ‘the rights retained
by the people’ clauses of the Constitution (Griswold v.
Connecticut 1965), and that the law has not refused to
recognize family relationships not legitimized by mar-
riage. In Stanley, the court stated that while the state has a
duty ‘to protect minor children through a judicial deter-
mination of their interest in a neglect proceeding,’ unwed
fathers have a due process and equal protection right to
have a hearing on fitness when state law declares a mar-
ried, divorced, or unmarried mother to be presumed fit.
Stanley was given a due process hearing and declared
unfit to parent his child for other reasons.
TERMINATION OF PARENTAL RIGHTS (TPR)
The law does not view parenting as indigenous to the
person, but rather something with which the family is
vested by the state. The state assumes it is the parent’s
responsibility to understand, implement, and perpetuate
the values of society. It assumes that a parent has the innate
ability to balance rights and responsibilities, to relinquish
absolute power for the good of the developing child, and
treat progeny in such a manner so as to maximize devel-
opmental potential. When a parent abdicates, neglects, or
abuses this responsibility, the state engenders the doctrine
350 Family law and domestic relations
of parens patriae to break into the delicate parent–child
relationship, expose it to the legal and psychiatric com-
munity, and to ask the court’s determination as to the
appropriateness of terminating an assumed inalienable
right of the individual – namely to parent one’s own chil-
dren (Mnookin 1978).
Out of the cruelty to animal laws and the child labor
laws, emerged early social legislation protecting children’s
rights. Then came the concept of ‘the best interest of the
child’ (Goldstein, Freud, and Solnit 1973). The best interest
standard is a well-established principle of law in areas of
child custody and termination of parental rights (Ameri-
can Jurisprudence 2d § 974, 1983). The concept of ‘best
interests’ however tends to be vague. Some states have
attempted to make the issue of best interest clearer and
more specific. The District of Columbia (District of
Columbia Code, 1981 § 16-2353) has codified that the
best interest of a child includes factors that consider:
1 The child’s need for continuity of care and caretakers,
and for timely integration into a stable, permanent
home.
2 The relationship of the physical, mental, and emotional
health of all persons involved to the welfare of the child
and his needs.
3 The quality of relationship of the child with his sibling,
caretakers, foster parents, and natural parents.
4 Whether a child has been left unclaimed in the hospital
ten days after a medical determination that he could
be safely discharged.
5 The child’s opinion of his best interests to the extent he
is able to express them.
6 Evidence of continued drug-related activity in the
parental home after interventional services have been
provided (Armitage 1994).
In the state of California (California Civil Code 226(a),
1991), the court must consider the age of the child, the
bonding or potential to bond with natural parents or the
adoptive parents, and the ability of the parents to pro-
vide adequate and proper care and guidance to the child.
In the state of Michigan (Child Custody Act, 1970),
factors relating to determination of best interests in cus-
tody cases include:
1 The love, affection and other ties between the child and
the parents competing for custody.
2 Capacity and disposition of competing parents to give
the child love, affection, guidance, and education.
3 The capacity to provide necessary or any special med-
ical care or remedial care required for the child.
4 Length of time the child has lived in a satisfactorily
stable environment.
5 Permanence as a family unit of the proposed custo-
dial home.
6 The moral fitness of competing parties.
7 The mental and physical health of the competing
parties.
8 Home, community, and school record of the child.
9 Reasonable preference of the children if they are of
sufficient age.
In Connecticut (as In re Bernard Pecor 1992), the
court held that a child’s best interest involving termination
of parental rights cases must be met by considering:
• the timeliness, nature, and extent of services offered
by the state to help parents reunify (the presumption
being that parental rights are important);
• the terms of any court order or agreement between an
agency and the parents, and the extent to which the
agreements were complied with;
• feelings or emotional ties between the parent and
the child, related to the concept of psychological
parent;
• age of the child;
• whether mental or behavioral disorders prevent the
parents from changing their conduct, behavior, or cir-
cumstances that could be injurious to the child in the
foreseeable future; and
• whether any governmental agency or party prevented
the parent from developing a relationship or that the
lack of a relationship was based purely on economic
circumstances.
Congress determined that Native American parents and
children were a special class requiring special protections.
Federal law gives deference to the parental rights of Native
Americans who are members of a recognized Indian tribe.
The Indian Child Welfare Act of 1978 requires a finding
by evidence ‘beyond a reasonable doubt’ that allowing an
Indian child to remain with the parent or parents would
be likely to result in serious emotional or physical damage
to the child. This law requiring a higher standard of proof
was enacted because there was substantial evidence indi-
cating that state social workers and others unfamiliar with
Native American tribal child-rearing practices (including
leaving the child for prolonged periods with other mem-
bers of the tribe who are considered as ‘extended family’),
inappropriately recommended termination of parental
rights.
Schetky and Slader (1980) believe that the law must
consider termination of parental rights as it relates to
infringement of the rights of children: (i) the right to the
maintenance of a parent–child relationship – that is, the
right to have someone to call ‘parent’; (ii) freedom from
physical, sexual, or psychological mistreatment; and (iii)
the right to have ‘primary emotional needs for continuity,
consistency and identity’ met by being a part of a family.
Definition of TPR
Termination of parental rights means the adjudication that
a child is free from the custody and control of either or
both his/her living genetic parents by means of court order
that completely severs and extinguishes the parent–child

relationship (American Jurisprudence 2 & § 34, 1987, pp.
172–3). It has, therefore, a profound and serious finality.
Standards of termination
Constitutional law provides minimal standards that
must be met in order to terminate parental rights. In
Santosky v. Kramer (1982), the U.S. Supreme Court held
that before a state can completely and irrevocably sever
parental rights, due process requires that evidence pro-
vided by the state be clear and convincing to support its
allegation for termination.
The minimal constitutional standard must be met but
can be exceeded by state law. Some states currently require
‘beyond reasonable doubt’ standards of proof for termin-
ation of parental rights.
Due process in termination proceedings requires fun-
damental fairness under the legal and factual circum-
stances of a case. The U.S. Supreme Court invoked the
Mathews v. Eldridge (1976) elements as rules applicable
to deciding what due process requires. These elements are:
(i) the private interest at stake; (ii) the government’s inter-
est; and (iii) the risk that the procedures used will lead to
erroneous decisions.
Legal criteria or grounds for termination of parental
rights vary among jurisdictions. However, the grounds/
criteria must be supported by competent, relevant, clear,
and convincing evidence. Common grounds for termin-
ation of parental rights include:
1 Voluntary abandonment: (NY SSL 384-b). A child is
abandoned by his or her parent if such a parent
evinces an intent to forego his or her parental rights
and obligations as manifested by his or her failure to
visit the child and communicate with the child or
agency, although able to do so and not prevented or
discouraged from doing so by the agency. In the
absence of evidence to the contrary, such ability to visit
and communicate shall be presumed.
2 Permanent neglect: this means a child who is in the
care and custody of an authorized agency and whose
parent or guardian has failed for a period of more
than one year (after foster placement) to substantially
and continuously or repeatedly and consistently main-
tain contact with or plan for the future of the child
although physically and financially able to do so, not-
withstanding the agency’s diligent efforts to encour-
age and strengthen the parental relationship when
such efforts will not be detrimental to the best interest
of the child. It is important to note that a visit or com-
munication by a parent with the child, which is of such
character as to overtly demonstrate a lack of affection-
ate and concerned parenthood, shall not be deemed a
substantial contact.
3 Mental illness: this means an affliction with a mental
disease or mental condition which is manifested by a
disorder or disturbance in behavior thinking, feeling or
Termination of parental rights and adoption 351
judgment to a such an extent that if the child were
placed in or returned to the custody of the parent, the
child would be in danger of becoming a neglected
child.
4 Mental deficiency: this means sub-average intellectual
functioning, which originates during the developmen-
tal period and is associated with the impairment in
adaptive behavior to such an extent that if the child were
placed or returned to the custody of such parent, the
child would be in danger of becoming a neglected child.
5 Physical/sexual abuse.
6 Substance abuse: when the parental substance abuse
leads to danger of neglect or abuse of the child.
When the state interferes with parental rights as in invol-
untary termination of rights, it must carefully follow legal
procedures and substantive law that reflects the grounds
and criteria for termination. These procedures can vary
among jurisdictions. In most cases, circumstances that
take place in a child’s life warrant interference by state
agencies to take temporary custody of the child, as in
cases of neglect, abandonment, or abuse by the parents
or legal custodians. The child is initially removed on an
emergency basis by a state agency such as child protective
services. Hearings on this action are required and there
must be substantive evidence of neglect or abuse based
on preponderance of evidence.
The court then mandates the state agencies to make
diligent efforts to assist the parent toward reunification
with the child unless reunification is not possible, or is
not indicated. All jurisdictions allow for waiver of reuni-
fication attempts under certain circumstances. When legal
criteria and grounds for termination are met, a termination
hearing is ordered following a petition by the state. The
grounds for parental unfitness and termination must be
stated and must be proved by clear and convincing evidence.
The next procedural requirement is to prove that ter-
mination is in the best interest of the child by clear and
convincing evidence.
Testimony of a child psychiatrist is frequently used
in termination of parental rights cases. In addition to the
prominently accepted principle of the ‘best interest of
the child,’ the concept of ‘least detrimental alternative’ has
been applied in some cases.
Clinical issues related to TPR
All clinical issues and evaluation must be viewed within the
context of the legal grounds and criteria for termination.
MENTAL DISORDERS AND MENTAL ILLNESSES
Psychiatrists and psychologists are called to provide evi-
dence in TPR proceedings when mental illness or defi-
ciency is a proffered ground for termination. In New York,
a parent’s right can be terminated on the grounds of
mental illness if the suffering parent is rendered incapable
352 Family law and domestic relations
of caring for the children. The state is not required to make
efforts to strengthen the parental relationship, nor is it
required to show that efforts to strengthen the parental
relationship would be detrimental to the child (In re
Demetrius F. et al. 1991).
All clinical evaluations must be viewed within the
context of the legal grounds for termination. Involuntary
hospitalization for the mental disorders, combined with
other factors that are offered, as evidence that the hos-
pitalized parent may be dangerous to the child is a fre-
quently recognized ground. A diagnosis of schizophrenia
per se may not be accepted as evidence for unfitness. The
schizophrenia must have an adverse impact on the ability
to parent by interfering with the individual’s thinking,
perception, behavior and judgment. Other associated
problems such as poor or non-compliance with medica-
tion and recommended treatment, refusal to participate
in parenting skills training and erratic parent–child
interaction during visitation are also important areas of
assessment.
A borderline personality disorder has been accepted
as a diagnosis of ‘mental illness or disorder’ and deemed
by the court to be a long-term condition allowing for
termination, if termination is in the best interest of the
child, because such a parent was not considered capable
of performing proper parental duties. The same parent
did not comply with a court-ordered rehabilitation plan
for reunification, which the court held as an independent
reason, in addition to the mental disorder, to terminate
parental rights (In re the Interest of B.M. v. L.M. 1991).
PARENTAL INCARCERATION
Criminal incarceration of a parent as a factor in TPR varies
among jurisdictions. Parental incarceration is a growing
problem that needs accommodation in the current time-
driven model of permanency planning. Child welfare agen-
cies need to recognize the importance of maintaining
parent–child relationships, even when a parent is incar-
cerated, and to develop creative approaches for dealing
with the unique challenges of parental incarceration.
Over the past fifteen years, the population of female
prisoners has increased by almost 400 per cent, while the
male prison population has increased by more than 200
per cent (U.S. Department of Justice 1995). Two-thirds
of the female prisoners in the U.S. had one or more chil-
dren under the age of 18 years. In 1991, 72 per cent of
incarcerated mothers had minor children who had lived
with them before entering prison. Approximately 50 per
cent of the incarcerated fathers had lived with their chil-
dren prior to imprisonment (Snell 1994). In the survey of
1991, 71 per cent of the children of incarcerated mothers
and 13 per cent of the children of incarcerated fathers were
with grandparents or other non-parent relatives (Snell
1994). These data show that incarcerated mothers must
rely on non-parent caregivers for childcare to a much
greater extent than incarcerated fathers. Some 90 per cent
of the children of incarcerated fathers were cared for by
their mothers (Johnston 1995), but only 25 per cent of the
children of incarcerated mothers were cared for by their
fathers (Snell 1994).
Parental imprisonment does not change the basic legal
requirement governing permanency planning. Agencies
have a legal obligation to make ‘reasonable efforts’ to pre-
serve and strengthen the relationship between incarcerated
parents and their children. The definition of reasonable
efforts varies from jurisdiction to jurisdiction. For exam-
ple, New York state law defines diligent efforts to incarcer-
ated parents as including: making suitable arrangements
with a correctional facility and other appropriate persons
for an incarcerated parent to visit the child within the
correctional facility, if such visiting is in the best interest
of the child. Such arrangements shall include, but shall
not be limited to, the transportation of the child to the
correctional facility, providing social or rehabilitation
service to resolve or rectify problems which can impair
the incarcerated parent’s ability to maintain contact with
the child other than incarceration itself [NY SSL 384-b
(7) (f) (5)]. The most obvious challenge to the agency is
the facilitation of a continued parent–child relationship
relating to lengths of sentencing and distance.
The length of sentencing is likely to increase in the
future as legislative efforts to eliminate or seriously limit
parole result in more time served. At the same time,
mandatory sentencing laws for certain crimes will lead to
the imprisonment of even more parents. Distance is the
other problematic issue affecting the ability of agencies
to provide services to an incarcerated parent. Womens’
prisons are often located in rural areas, and inaccessible by
public transportation. Despite these obstacles, the agen-
cies must generally attempt to overcome them and assist
the parent and child to maintain a meaningful relation-
ship. Parental rights are not absolute, and in inappropri-
ate cases, where diligent efforts are not in the best interest
of the child, the state may go to court to seek TPR. To do
so, the state must prove the parent is ‘unfit’ (Stanley v.
Illinois 1971; Santosky v. Kramer 1982).
The parent’s ‘fitness’ must be measured by the parent’s
ability to ‘maintain a place of importance in the child’s
life’ (In re Adoption of Sabrina 1984). Recognizing the
principle that parental incarceration does not automat-
ically amount to unfitness, New Jersey’s Supreme Court
has articulated the factors that must be examined in TPR
evaluations of incarcerated parents:
1 Parent’s performance before incarceration.
2 The extent to which children were able to rely on
their parent.
3 Parent’s efforts to remain in contact with the children
since incarceration.
4 Parent’s ability to communicate and visit with their
children.
5 The effect of parental communication and visitation
on the children.
6 The ability to provide nurturance and emotional
support to their children.

7 Risks posed to the children by the parent’s criminal
actions.
8 The extent of the parent’s rehabilitation during
incarceration.
9 The need of the children for permanency and stabil-
ity and whether continuation of the parent–child
relationships will undermine that need.
10 The effect that the continuation of the parent–child
relationship will have on the psychological and emo-
tional well-being of the children.
The trend toward incarceration of greater numbers of peo-
ple for longer periods of time shows no signs of abating.
As a result, increasing numbers of out-of-home caseloads
will involve children of incarcerated parents. Effective fam-
ily work in cases involving parental incarceration requires
significant expenditure of time and resources. The child
protective agencies should identify the cases where efforts
would be successful in maintaining and strengthening
viable parent–child relationships. In such cases, agencies
must develop new permanency approaches, consistent
with the requirements of the Adoption and Safe Families
Act (ASFA 1997), for families in which a parent is incar-
cerated. For many children of incarcerated parents, the
best permanency plan is one in which the parent continues
to play a significant role in the child’s life (Genty 1998).
Clinical issues and the role of child
psychiatrist in TPR evaluation
As numerous studies have documented, many children
languish in foster care with little or no efforts being made
to make permanent plans for them, in spite of the fact
that their biological parents may be failing to progress
towards the goal of reintegrating them into the family.
Although foster care is thought of as a temporary place-
ment, studies have shown that once a child is in place-
ment, he or she has a fifty per cent chance of remaining
there for three years or longer (Wald 1976).
In terms of assessing the child’s needs in this situation,
there appears to be few clear-cut guidelines, and the avail-
able studies usually either relate to divorce (Malmquist
1968; Benedek 1972; Derdeyn 1976; Derdeyn 1978) or
concentrate on legal aspects of such decisions (Foster and
Freed 1964). Goldstein, Freud, and Solnit (1973) intro-
duced the concept of ‘psychological parent,’ and urged the
court to make decisions based on the children’s needs,
interests, and the time perspectives. Schetky et al. (1979)
directed their study toward a broader group of parents
who failed to meet their children’s needs and also had
their parental rights terminated by the court. Their study of
fifty-one parents whose rights were terminated revealed
that the TPR cases were primarily cases of neglect rather
than abuse. Most deal with abandonment or neglect.
Less than 10 per cent of all court cases involve physical
abuse. In most cases, parents’ backgrounds were notable for
severe social, economic, and educational disadvantages,
leading to family disruptions, problems with parent–child
Termination of parental rights and adoption 353
relationships, and out-of-home placements. Many were
victims of neglect, physical, and sexual abuse. These par-
ents were marginally functioning with interpersonal dif-
ficulties, unstable marriages, social mobility and isolation
and difficulty finding employment.
Many displayed low self-esteem, impulsivity, poor judg-
ment, and difficulty planning ahead. The parents had ser-
ious deficiency in the capacity for empathy and an inability
to put their children’s needs before their own. They viewed
their children as existing to satisfy their needs. Parents were
deficient in their own role models for parents and
had impaired object relations. Emotional illness in mothers
often contributed to the neglect of the child. Mental illness
in mothers was frequent: some 40 per cent of mothers
had psychiatric illnesses, were hospitalized for treatment,
or sought outpatient treatment at some point. Fathers
were notable for the absence of psychosis, but presence
of serious personality disorders, antisocial personality dis-
order (ASPD) being most frequent. Neglectful parents
are harder to reach and help than abusive parents. One pos-
sible reason is the fact that neglect is more insidious and
more difficult to detect. A study of children languishing in
foster care showed that many were experiencing develop-
mental delays, had symptomatic behaviors, problems in
response to visitation and delays in academic performance.
In spite of the above findings, many children were doing
well in long-term foster care and eventual adoptive homes.
At the time of termination, all children had formed posi-
tive attachments to foster parents. It is important to stress
that age, mixed race, presence of minor behavior problems
and duration of time in foster care were not barriers to
finding adoptive homes for these children.
Fanschel (1976) noted that psychiatrists, in their evalu-
ation of parents and children, and all parties pertinent to
the case, should search for: (i) covert aggression; (ii) role
reversal where the child has inappropriately become the
parent of the parent, or is serving so many psychologi-
cal needs of the parent that it amounts to serving in a
parental role; (iii) indications that the child is being drawn
into the marital dysfunction; and (iv) the existence of age-
inappropriate expectations of the child often combined
with little appreciation of the child’s own feelings and
needs as separate from the parents, or lack of knowledge
of developmental norms. In addition to a variety of factors
considered in light of the legal criteria, clinical issues such
as the severity and duration of the parent’s abnormal men-
tal or emotional condition or conduct must be evaluated.
The likelihood of the parents changing their abnor-
malities, allowing reintegration of the child into the
home within a reasonable period of time consistent with
the current ASFA requirements, must be addressed. The
issue of whom the child truly views as his or her parent,
that is, who is the psychological parent of the child, must
be assessed. Finally, the psychiatrist should also consider
options for placement of the child and the ‘least detrimen-
tal alternative’ when making a recommendation, bearing
in mind the problems of children in prolonged foster
placements.
354 Family law and domestic relations
Although the ‘best interest of the child’ is a universally
applied principle in most jurisdictions, the concept of
‘psychological parent’ and the ‘least detrimental alterna-
tive’ has also been heavily relied upon as important in
many jurisdictions.
CLINICAL CRITERIA FOR TPR
The information in this kind of evaluation must be
weighed for and against termination of parental rights
with a precision that exceeds the legal criteria, for the
legal criteria in themselves are not very specific and not
well defined to make an easy recommendation:
1 Basic aspects of the evaluation should include exami-
nation of the child individually with both biological
parents and foster parents. All participants should be
informed of the limits of confidentiality or lack of
confidentiality in the evaluation.
2 Review of all records from ancillary sources such as
child’s school, medical records, psychiatric treatment,
child protective service, or agency records should be
carried out to obtain history and factual information.
3 A thorough evaluation of the child’s stated parental
preference must be explored in the context of a child
psychiatric evaluation.
4 The child’s perception of the parent’s abuse, neglect,
and unavailability should be assessed.
5 Evaluation of the child’s development, including
medical examinations, developmental milestones, and
psychological testing.
6 Assessment of parental attitudes, knowledge of par-
enting skills, the parents own development and emo-
tional maturity (development).
7 Determination of how parents coped with stressors/
demands during their child’s development.
8 Evaluation of the parent’s perspective as to their own
difficulties and alleged reasons for termination of
parental rights.
9 Psychiatric mental status examination of all parents
to assess psychopathology.
10 Assessment of child–parent interaction in an unstruc-
tured play setting is useful in detecting covert hostil-
ity, anger, and detachment.
Additional range of criteria or guidelines include:
1 The parental availability to provide continuity and
consistency of care.
2 Parental empathy and their ability to recognize the
child’s needs as different from their own.
3 Parental affection, warmth, and nurturance toward
their children. It may be helpful to explore the parent’s
own history of nurturance during their development if
relevant, as many neglectful parents have a history of
having been neglected or deprived themselves.
4 Parents’ intelligence in terms of their ability to man-
age daily practical affairs in their own lives and its
effects on their parenting availability.
5 Parental ability to utilize help from professional and
personal supports, as well as community supports.
6 Parents’ ability to successfully rehabilitate. Has there
been parental improvement enough to keep pace with
the child’s developmental needs? Is the parent able to
apply her/his knowledge of parenting skills to the child?
7 What special needs does the child have? Have they
been met in order to foster satisfactory development?
8 The quality and intensity of the child’s attachment to
the natural parents as well as surrogate parents.
9 The parental ability to set limits with the child help the
child develop internal controls and effectively inter-
act with her/his environment.
10 Long-term or permanent availability of surrogate par-
ents as well as the adoptability of the child.
11 Evaluation of the parental separations or absences with
appropriate comments on their implication on the
child.
12 Parent’s inability to take care of him/herself either
when the child was at home or placed out of the home.
13 The limitations of psychiatric treatment with cer-
tain psychiatric disorders (e.g., personality disorders,
organic brain syndromes, severe developmental dis-
orders).
14 The parent’s refusal to use treatment that could be
beneficial.
15 The gains made by children while living in foster care.
In summary, this comprehensive approach to evaluation
involves a progression from assessment of the parental
conduct or condition, to the parent–child relationship,
to the effects of the parent’s conduct on the child, to the
child’s relationship with the surrogate parent, and finally,
the child’s needs. This may also satisfy the court’s need
to protect parental rights and focus on parental fault in
terms of the effects on the child and his/her development
(Schetky et al. 1979).
Ethical issues and expert testimony
in forensic child psychiatry
Termination of parental rights evaluation is a sensitive
issue, and it is at this delicate interface of societal values,
parental rights, and children’s rights that the psychiatrist
is asked to render an expert opinion.
The role of a psychiatrist in such evaluations is to
assume the position of evaluating appropriate parenting
skills and behavior rather than to make pure diagnostic and
clinical statements. Weighing competing interest poses an
ethical dilemma even when guided by the universally
applied principle ‘best interest of the child.’ There is a ter-
rible finality to termination of parental rights. Common
ethical dilemmas that can potentially arise in TPR evalu-
ations include:
• Will the parent improve with giving him/her one more
chance?

• How does termination affect the parent’s mental health?
• Are there educational and social class biases that may
affect our recommendations?; and
• How do we balance the interest of the child who is
thriving well in foster care with the concern for the
child’s impoverished mother who has shown minimal
improvement?
Therefore a psychiatrist’s participation in TPR evalu-
ations runs headlong into the basic value system funda-
mentally ingrained in the teachings of psychiatry – namely
professional neutrality, clinical tolerance to a wide range
of life styles, the family’s right to privacy, and dependent
decision-making, and the belief that intact family is the
cornerstone of our social, emotional, and developmental
matrix. Finally, the ultimate decision of termination pre-
sents not only the parents’ personal failure in adequately
providing for their children, but also the failure of soci-
ety’s ability to rectify through all means, including psy-
chiatric intervention, the basic flawed parenting styles
that brought the family to professional attention in the
first place. It is imperative that the courts understand the
limit of our current expertise in defining appropriate or
adequate parenting skills and our limits in facilitating
these virtuous qualities in parents who are grossly inad-
equate or negligent in assuming parental responsibility
(Schoettle 1984).
Psychiatrist’s testimony on clinical issues of TPR evalu-
ations should also include history of parental absences
and separations from their child, the parent’s failure to
rehabilitate or change, even with professional assistance,
and their inability to utilize help in planning for the return
of their children. Limitations of psychiatric treatment for
several diagnostic categories such as organic brain syn-
drome, mental retardation and severe personality disorders
must be acknowledged. It is important to document evi-
dence that the child has made clear developmental gains
while in foster care and/or any reversal of developmental
delays or abnormalities which the child previously
revealed while under the parent’s care and custody.
PERMANENCY AND ADOPTION: FEDERAL
REGULATIONS AND LEGAL PERSPECTIVES
Bill of Rights for foster children
This was ratified in Congress Hall, Philadelphia, on April
28, 1973, and comprises the following points:
• Even more than for other children, society has a respon-
sibility along with parents for the well-being of foster
children. Citizens are responsible for acting to insure
their welfare.
• Every foster child is endowed with the rights inher-
ently belonging to all children. In addition, because of
the temporary or permanent separation from and loss
Termination of parental rights and adoption 355
of parents and other family members, the foster child
requires special safeguards, resources, and care.
Every foster child has the inherent right:
• Article of the first: to be cherished by a family of his
own, either his family helped by readily available ser-
vices and supports to reassume his care, or an adoption
family, or by plan a continuing foster family.
• Article of the second: to be nurtured by foster parents
who have been selected to meet his individual needs
and who are provided services and supports, including
specialized education, so that they can grow in their
ability to enable the child to reach his potential.
• Article of the third: to receive sensitive, continuing help
in understanding and accepting the reasons for his own
family’s inability to take care of him, and in developing
confidence in his own self-worth.
• Article of the fourth: to receive continuing loving care
and respect as a unique human being … a child grow-
ing in trust in himself and others.
• Article of the fifth: to grow up in freedom and dignity
in a neighborhood of people who accept him with
understanding, respect, and friendship.
• Article of the sixth: to receive help in overcoming
deprivation or whatever distortion in his emotional,
physical, intellectual, social, and spiritual growth may
have resulted from his early experiences.
• Article of the seventh: to receive education, training,
and career guidance to prepare him for a useful and
satisfying life.
• Article of the eighth: to receive preparation for citizen-
ship and parenthood through interaction with foster
parents and other adults who are consistent role models.
• Article of the ninth: to be represented by an attorney-at-
law in administrative or judicial proceedings with access
to fair hearings and court review of decisions, so that
his best interests are safeguarded.
• Article of the tenth: to receive a high quality of child
welfare services, including involvement of the natural
parents and his own involvement in major decisions
that affect his life.
June 20, 1972 was an important day for the foster child
in New York State. It was the first day that a Section 392
foster care review hearing was held at family court,
New York County, with Judge Edith Miller presiding.
Prior to the enactment of Section 392 of the social serv-
ice law, there was no court review of the thousands of
children in foster care. It was thought that because of lack
of court review many children in foster care remained in
foster care needlessly and many more should have been
adopted, while others should have returned home to
their natural parents.
Section 392 of the SSL mandates that once a child has
been in foster care for a continuous period of eighteen
months, the authorized agency charged with the care of the
child must file a petition in family court seeking review
356 Family law and domestic relations
of the child’s status. The petition must set forth the dis-
position sought (that is, return of the child to his or her
natural parents, continuing foster care, or initiating
the proceedings to free the child for adoption), and the
grounds or reasons for such disposition. All interested
parties such as the authorized agency, the natural parents
and the foster parents are given notice by mail of the
hearing. The court has the power to direct the agency to
undertake diligent effort to encourage and strengthen
the parent–child relationship when it finds such efforts
will not be detrimental to the best interest of the child.
Finally, the family court that has continuing jurisdiction
and may rehear the matter when it is deemed necessary
but within twenty-four months [as in Matter of Sheila G
(61 N.Y.S 2d 368, 474 N.Y.S 2d 421)]. The family court
is vested with continuing jurisdiction over the child until
there has been a final disposition of custody. After the
child is returned to the natural parent by the Social
Service agency the family court loses its jurisdiction [as
in Matter of Lucinda G (122 MISC 2d 416, N.Y.S 2d 736
(1983))].
The Adoption and Safe Families Act (ASFA)
of 1997
The ASFA of 1997 amended the 1980 Adoption Assistance
and Child Welfare Act (P.L.96-272), the federal statute that
provided for partial federal reimbursement to states for
child welfare and out-of-home care expenses. To qualify
for reimbursement, state child welfare and out-of-home
care plans must comply with the requirements of the 1980
statute, as amended by ASFA.
In the provisions of the 1980 act was the requirement
that state child welfare agencies make reasonable effort to
preserve families by avoiding unnecessary out-of-home
care placements and, where out-of-home care placements
could not be avoided, by reunifying families as quickly as
possible. ASFA modifies this ‘reasonable efforts’ require-
ment in some respects. First, the statute establishes
‘health and safety of the child’ as the most important con-
sideration in determining what family preservation and
reunification efforts are required.
ASFA also sets forth three exceptions to the reasonable
efforts requirement:
1 If the agency alleges that there are ‘aggravated circum-
stances’ defined as severe or repeated child abuse, which
may include abandonment, torture, or physical and or
sexual abuse.
2 If the parent has been convicted of murder or
manslaughter of a sibling or half-sibling of the child,
or a felony assault resulting in serious physical injury
to the child or another child of the parent.
3 If the parental rights of the parent to a sibling have been
terminated involuntarily via termination of parental
rights proceeding, as opposed to a voluntary surrender
[ASFA § 101(a) (15) (D)].
In addition to modifying the reasonable efforts require-
ment, ASFA also imposes new requirements for expedited
filing of termination of the parental rights proceeding.
The statute requires a state to file a petition for termination
of parental rights for all children who have been in foster
care for 15 of the most recent 22 months, including all
children already in care.
The TPR petition is to be immediately filed for chil-
dren for whom ‘aggravated circumstances’ (e.g., severe or
repeated child abuse) has been found or whose parent or
guardian has an enumerated serious criminal conviction
(Santosky v. Kramer 1982, at 455).
US 745 (1982) requires a higher burden of proof in a
termination based on repeated abuse. The statute pro-
vides exceptions to the requirement to file termination of
parental rights petition where:
• The child is in kinship care.
• The agency documents ‘compelling reasons’ which may
include: (i) a lack of sufficient grounds for a petition
to terminate parental right; (ii) inappropriateness
because the child is in placement as a juvenile delin-
quent or person in need of supervision (PINS);
(iii) has a permanency goal other than adoption;
and/or (iv) refusal of a child over the age of fourteen
years to consent to adoption.
• The agency has not provided reasonable efforts to
reunify the family, although legally required to do so.
The other significant amendments include criminal back-
ground checks for prospective foster and adoptive parents
(42 USC 671[a] [20] [A]). The federal statute further
provides that a prospective foster or adoptive parent must
be denied placement of a child if the background check
reveals:
• a felony conviction at any time for child abuse or neg-
lect, spousal abuse, or violent crimes, including homi-
cide, sexual assault, or rape; and/or
• a felony conviction within the past five years for assault,
battery, or a drug-related offense.
The federal act additionally provides that the state must
hold an initial permanency hearing for foster children
within twelve months of the date the child entered foster
care (42 USC 675 [5] [c]). The date the child entered foster
care is defined as the sixty days after the child was removed
from his or her home. At this permanency hearing, the
court determines the appropriateness of the child’s per-
manency plan, including whether and when the child
should be returned to the parent, placed for adoption,
referred for legal guardianship, or placed in another
planned permanent living arrangement.
These amendments were made to expeditiously tran-
sition foster-care children into suitable permanent homes.
It was felt that foster care should serve mainly as a tem-
porary safe haven for children – a secure setting where
they can live while suitable permanent homes are being
located for them.

The Adoption 2002 Report, a federal government
undertaking in response to President Clinton’s initiative
on adoption and foster care, has outlined several import-
ant assumptions in its memorandum, including:
1 Every child deserves a safe and permanent family.
2 Children’s safety and health is of paramount concern
and must guide all child welfare services.
3 Children deserve prompt and timely decision making
as to who their permanent care givers will be.
4 Permanency planning begins when a child enters fos-
ter care.
5 Adoptive families require support after the child’s adop-
tion is legalized.
6 The diversity and strengths of all communities must
be tapped.
7 Quality services must be provided as soon as possible
to enable families in crisis to address problems.
DEFINITION OF ADOPTION
The Child Welfare League of America defines adoption as
the method provided by law to establish the legal relation-
ship of the parent and child between persons who are not
related by birth. Adoption is the legal proceeding whereby
an adult person takes another adult or minor person into
the relation of child and thereby acquires the rights and
incurs the responsibilities of parent with respect to said
adult or minor (Section 110 of the N.Y. Domestic Relations
Law).
LEGAL ASPECTS OF ADOPTION
Adoption occurs either through a public agency (which is
legal in all states) or through private or independent source
(which is legal in all but five states). Adoption can be
‘closed,’ with virtually no contact between biological and
adoptive parents; or ‘open,’ with varying degrees of contact
between parties. Adoptions today are not restricted to two-
parent heterosexual couples. Single parent and other non-
traditional family structures such as homosexual couples
also adopt children. Regardless of the route or type, the
adopted child has the same legal status with respect to his
or her adoptive parents, as do any biological children. Once
adoption is final, the biological parents no longer possess
legal rights to the child. However, statutory laws may vary
on the timing and specifics of these legal issues.
Permanency and adoption: an overview
FAMILY PRESERVATION BEYOND THE BEST
INTEREST OF THE CHILD
Family preservation should not compromise the well-
being of children. When parents cannot be rehabilitated, or
when parents’ problems are too complex to be resolved
in the short term, children bounce between the bio-
logical family and foster care, drifting from foster home
Termination of parental rights and adoption 357
to foster home. In such cases, the best interests of the
children are not served.
The current foster-care system is overburdened and the
number of available, qualified foster parents has steadily
diminished since the 1980s. This diminution is partly due
to the increased needs of children traumatized by poverty,
physical and sexual abuse, drug and alcohol exposure, and
emotional maltreatment at the hands of both parents.
Because traditional foster care was not designed to meet
these special needs, specialized and therapeutic foster-
care homes have become available. For many children,
foster care remains a viable option for reducing risk.
Kinship foster care also works in the interests of family
preservation by allowing a relative to become a foster par-
ent. The federal government has funded several projects
to examine the practice elements in kinship adoptions.
Evidence available suggests that the likelihood of kinship
adoption of foster children depends, in great part, on the
ethnicity of the children. Evidence also suggests that kin-
ship adoptive families look vastly different than other
adoptive families and are poorer, less educated, older, and
more likely to be single than non-kinship adopting families
(Barth 1994).
The foster-care system has provided invaluable assist-
ance to children at risk. It deserves enhanced financial sup-
port, especially at a time when so many birth families are
struggling to survive and may need to temporarily relin-
quish their child. Residential care facilities should be seen
as positive alternatives for children in need. Residential
facilities can fulfill a need for order, discipline, and rooted-
ness in many young lives. They provide non-parental, well-
qualified and committed mentors who can turn around the
lives of many youngsters who might wrongly be considered
as hopeless cases. Residential care can be introduced into a
child’s life on a short-term basis at various points according
to their needs, and can enhance family preservation, foster
care, and adoption services. Young adolescents who can be
taught fundamental principles such as ‘do no harm’ and
can benefit from the constructive adult guidance can expe-
rience the structure of residential care as liberating (Post,
Frutig, and Bennett 1997).
RE-ENTRY AFTER REUNIFICATION
Terling (1999) described the correlates of re-entry into
child protective services for abused and neglected children
reunited with their families. The correlates of re-entry
included:
1 Type of abuse: neglect cases are the most common type
of cases among both the family reunification cases and
the re-entry cases. Among fifty-nine cases of children
who were examined after returning home, four had
been repeatedly and severely physically and/or sexually
abused, and previous documentation of risk of repeat
abuse was present in those cases. Therefore, the mere
presence of the severity of abuse warrants close atten-
tion during evaluation.
358 Family law and domestic relations

2 Previous referrals: the presence of previous referrals to the effects of long-term foster care have all concluded that,
a child protective agency is a strong indicator of the ‘Adoption, when available as an option, should be generally
risk of re-entry. Also, inability of the parent to change pursued rather than long-term foster care’ (Mather 1999).
after prior interactions with child protective services
is a good indicator of the risk of re-entry. Of the
re-entry cases, approximately 67 per cent had previous
Mental health issues in adopted children
referrals, versus 12 per cent of non-re-entry.
The emotional and behavioral adjustment of adopted
3 Substance abuse: some 50 per cent of re-entry cases
children has received a great deal of attention as a result
involved substance-abusing parents, as opposed to 20
of the alleged over-representation of adopted children in
per cent for non-re-entry. Two important issues about
mental health settings. The over-representation of adopted
substance abuse re-entry included: (i) presence of a
children and adolescents in clinical population research
substance-abusing partner not in treatment; and (ii)
has varied widely. Several researchers have also suggested
time allowed for recovery for the substance-abusing
that the age of the child is an important factor; the older the
parent. Therefore in evaluating risk, importance should
child when placed in an adoptive home, the more likely
be given to perpetrators, partners, and their treatment
the child is to have emotional and behavioral problems.
and the length of recovery in caregivers needs to be
A study conducted by Borders et al. (1998), using a
monitored for longer periods of time (months versus
nationally representative sample of children in the United
years).
States found no significant differences between adopted
4 Parental competence is the presence or absence of
and non-adopted children on a range of adjustment vari-
parental ability to provide an environment that is safe
ables. Brand and Brinich (1999) also concluded that a vast
and healthy for the child to grow and develop. Parental
majority of adopted children showed patterns of behavior
competence can be impaired in: (i) parents with low
similar to those of non-adopted children.
levels of intellectual functioning, thus possessing a
The over-representation of adopted children in mental
deficit in their ability to process information and
health settings found in earlier studies might be attribut-
make decisions; and (ii) parents who lack insight and
able to the presence of small groups of severely troubled
do not understand or accept the agency’s identifica-
adopted children in clinical samples. For the small group
tion of their lifestyle and parenting as inappropriate.
of severely troubled children and adolescents who had
This lack of understanding interferes with their par-
extensive behavior problems and were seen more fre-
enting skills and renders them incapable of changing
quently at the mental health centers, a better understand-
their lifestyle/parenting to get their children back.
ing of the factors that make these children vulnerable is an
5 Social isolation and negative relationships such as an
area of future research. Many factors such as: (i) genetic
abusive spouse or a high level of family conflicts are sig-
predisposition to emotional and behavioral problems;
nificant predictors of re-entry.
(ii) prenatal substance abuse by birth mothers; and (iii)
pre-adoption experiences such as neglect, abuse, or mul-
There was less correlation of re-entry to parental income,
tiple placements may be contributing factors. This point
child protective risk assessment by caseworkers, compli-
needs to be emphasized because of the concerns that an
ance, and family functioning assessment.
error in interpretation could lead to pathologizing a very
It is estimated that, despite efforts by Child Protective
effective intervention for children. Most adopted children
Services to rehabilitate abusive and neglectful parents/
behave much like their non-adopted peers, and adoption
families and make them suitable for the children, over
remains a valuable and important social response to a
one-third of these children return to the system due to
complicated set of placement problems for children.
additional maltreatment. The rate of children returning
seems to be excessively high when dealing with the lives
and future well-being of the children. Therefore, identi- Role of child psychiatrist and medical
fying for re-entry serves as a useful tool for practitioners practitioner in adoption assessment
and policy makers. Future research is needed to better
understand the ‘whys’ behind the successes and failures in Like all other parents, potential adopters need to have a
order to develop policies and practices that do more than thorough description of the children’s past medical prob-
help some of these children, some of the time. lems, their current health status, and their likely future
Research shows that although adopted children can needs. A comprehensive assessment of the child should be
have difficulties after placement, in the long run they carried out to include the child’s physical, emotional,
progress well through their remaining childhood and into developmental, and social status. Medical practitioners and
adult life. They tend to fare better than children brought up child psychiatrists involved in adoption work assessments
by their own parents in an abusive or neglectful environ- should have knowledge of the long-term consequences
ment, or in institutions, and are considerably better than of child abuse and neglect. They should have an under-
children who have remained in long-term foster care. standing of genetic illnesses that can be inherited from the
Several studies conducted in different countries to assess birth parents, and of the long-term consequences of the
 Termination of parental rights and adoption 359

parental life styles that may have involved exposure to
alcohol, substance abuse, high-risk behaviors and domestic
violence. They should also be able to make recommenda-
tions on these children, and most often should be involved
in considerable liaison with other health professionals,
social services, foster parents and adopters. It is important
to recognize that if adoption is a real option for a group
of very disturbed or disadvantaged children, then appro-
priately trained medical advisors with experience and
knowledge in pediatrics and child mental health must be
available to support this service.
Special issues and considerations
TELLING A CHILD ABOUT BEING ADOPTED
Telling a child about their unique route of entry into the
family is a challenging process. In modern times it is
recognized that children adapt more easily when they
are aware of their birth circumstances. Therefore parents
are now advised openly to discuss adoption, not only with
the child but also with relatives and friends. Then comes
the question of when and how to discuss adoption. A
seven- to eight-year-old child who possesses characteris-
tics of logical thinking could more easily absorb and
understand the adoption process than a younger child.
Yet waiting until a child turns seven years old is not rec-
ommended because:
• children ask questions earlier, and the parents would
be forced to cover up or lie in some fashion;
• sometimes children may inadvertently overhear com-
ments about their adopted status from their relatives
or friends;
• children who look different from their parents often
generate comments or questions from public; and
• health care providers ask questions regarding family
history frequently in front of children.
The timing and substance of conversations about the
child’s adoption are challenging issues for both parents and
providers. Most experts agree that open, life-long, and
middle ground communication is the key to improving
ego identity, smoothing the adaptation process and build-
ing a child’s positive self-image. One excellent method is
to have a photo album of the child, beginning with the
photographs of the adoptive mother and father going
to the agency. Another photograph of the parents’ first
contact with the child, along with a photograph of the
mother carrying the child through the door into the new
home. This provides a life-long continuity for the child’s
understanding of the adoptive ‘birthing’ process into the
adoptive home (Table 37.1).

Table 37.1 Stages of understanding adoption

Child’s adoption-related
Stage Questions tasks Goals for parents and child

Infants and ‘How do we begin?’ Adjusting to the transition To become comfortable

toddlers (0–2)
Preschool (3–7) ‘Where do babies come
from?’
‘Where do I come from?’
‘Why or how did you
choose me?’
‘Why don’t I look like you?’
‘If you are in an adoptive
family, can your birth
parents or another family
take you away?’
to a new home
Developing secure
attachments
Learning about birth and
reproduction
Adjusting to initial
information about adoption
Recognizing physical
differences within the
family
discussing adoption with others
To use positive adoption
language
To become familiar with
resources, support groups, books
To recognize child’s egocentric
thinking style
To begin communicating about
different ways children enter
families
To realize that despite the child’s
ability to parrot story, no
abstract or conceptual
understanding occurs yet
To answer every question as
faithfully as possible with
positive adoption language
To recognize physical
differences but focus on
similarities between child
and the family
To alleviate fears of losing
adoptive parents by reassuring
adoption is permanent
(continued)
360 Family law and domestic relations

Table 37.1 (continued)

Child’s adoption-related
Stage Questions tasks Goals for parents and child

Middle ‘Why was I placed for Understanding the meaning
childhood adoption?’ and implications of adoption
(7–11) ‘Why didn’t they keep me – Searching for answers
didn’t they like me?’ regarding origin and reasons
‘If you are adopted can you for relinquishment
be un-adopted?’ Coping with physical
‘If they didn’t know how to differences with the family
take care of me, why didn’t Coping with the stigma of
someone teach them?’ adoption
‘If they were poor why didn’t Coping with peer reactions
someone give them money?’ to adoption
‘Who do I look like?’ Coping with adoption-
related losses
Adolescence ‘Who am I?’ Exploring the implications
(12–17) and meanings of being
adopted
Connecting adoption to
one’s sense of identity
Coping with racial identity
Possibly searching for the
biological family
Coping with adoption-
related losses
Young adult ‘I want to meet my Considering searching
(⬎18) birth parents’ for biological family
Exploring implications
of adoption as it relates
to development of intimacy
Coping with adoption-
related losses
To acknowledge sadness, anger
and grief associated with loss
of biological parents
To assure child they are not bad
or defective by offering actual
reason for adoption
To refrain from making
negative comments about
biological parents
To offer factual information
without embellishment
To reassure that adoption is
not a second choice
To provide support groups and
services for child
To recognize child’s abstract
thinking style
To recognize identity
difficulties of dealing with
biological and adoptive parents
To share adoption papers
To continue use of support
groups and services for child
and parents
To help child seek
biological family
To minimize parent’s feelings
of rejection
To continue use of support
groups and services for child
and parents

Adapted from Brodzinsky, Singer, and Braff (1984); Smit (1996).

TRANSRACIAL ADOPTION
The definition of ‘transracial’ is changing with an increase
in placement of mixed parentage children and in recruit-
ment of mixed parentage substitute families. It then
depends on which categorization of race/ethnicity is used
to define both parents and grandparents.
These questions have significance in practice with
regard to finding a matched placement and for research
when establishing entry criteria to a transracial sample.
In addition to racial/ethnic heritage, whether the child
is visibly different from the new parents is likely to be a
consideration in trying to achieve a match. Furthermore,
a transracial placement may, to varying degrees, involve a
transition across social class.
Historians of transracial placement in the U.S. generally
agree that its occurrence was extremely rare up to World
War II (Silverman and Fiegelman 1990; Simon 1994).
Initially, it occurred on a moderately large scale as a
form of inter-country adoption from the 1960s to the
mid-1970s. First, U.S. military involvement in the Far East
was the background to the adoption of Japanese, Chinese,
and subsequently Korean and Vietnamese children by
Caucasian Americans. The adoption of Hispanic children
from Latin America has also been considerable (Feigleman
and Silverman 1983). Second, liberal child welfare regu-
lations actively promoted transracial placement as a
means of assisting disadvantaged African-American chil-
dren by finding alternatives to institutionalization. Third,
Caucasian families were willing to accept placement of
African-American children and were then seen as pro-
gressive in being prepared to withstand stigma for the
sake of principle, as many were motivated by the ideal of
a more racially integrated society.
However, opposition arose against transracial place-
ment. Concerns in both Native and African-American
communities were based on the view that their culture

was threatened with depletion if their children were
placed away from home into Caucasian families. The rise
of the civil rights and African-American consciousness
movements took child welfare practice into the political
arena, and the increasingly confident voice of some
African-American professionals was raised in criticism
of the adoption establishment. Transracial placement
became emblematic of wider historical and political
injustices. Such views were understandable in light of the
lack of prior involvement and consultation with the
African-American professionals and their community
about the placement of African-American children in
care. Hence, there followed a sharp decline in such place-
ments after 1976.
Some reviewers have disputed that this opposition was
justified and maintain that ‘transracial placement’ is a
viable means of providing stable homes for waiting chil-
dren. Identity is one of the concepts most used by anti-
transracialists. It is crucial to child development, but its
meaning remains less resolved. Some authors present
‘a positive sense of racial identity’ as a unified achievable
goal (Maximé 1986), whereas others stress its fluidity and
context dependency (Katz 1995). It has been defined as
having overlapping parts such as personal identification
and feelings about the self, as well as the degree of identi-
fication with various social groupings (Richards 1994).
The process of transracial adoption seems to produce
children whose self-esteem is at least as high as that of
non-adopted children, and whose adjustment appears to
be more than satisfactory (Silverman and Feigelman 1990,
p. 199).
Tatara (1993) reported that thirty-two states provided
data for fiscal year 1989 on children being cared for by
public agencies. There were about 34 per cent African-
American children out of the 380 000 children in out-of-
home placement. Other studies and estimates also suggest
that African-American children remain in out-of-home
placement significantly longer than Caucasian before being
adopted (NABSW 1991). Only about 1 per cent of all adop-
tions were by white families adopting African-American
children.
THE BABY BYRON CASE
This is a custody case that had considerable media cover-
age. This case highlights the problems most commonly
raised in the transracial adoption debate. Byron, an
African-American infant born addicted to heroin and
cocaine, had been raised since July 1992 – from the age of
six days – by a Caucasian couple. This family had been
selected to provide shelter for Byron on an emergency
basis because his birth mother was unable to care for
him. The foster family had their own biological child and
two other adopted children. They were owners of a print-
ing company. Byron’s father was reportedly killed in an
automobile accident in 1992. Byron’s mother had four
children who were cared for by two other families
Termination of parental rights and adoption 361
because she reportedly had neglected her children in the
past. When Byron was a five-month-old, child protective
officials tried to remove him from care of the Caucasian
family and place him with an African-American foster
family. The Caucasian family objected, and the judge left
the child with them on a short-term basis. When Byron
was eleven months old, the judge once again ruled that
Byron should continue to stay with the Caucasian family
who expressed desire to adopt him. When Byron was
seventeen months old the judge ruled that he should be
returned to his biological mother, which in the judge’s
opinion was in the best interest of the child. In referring
to criticism of his decision, the judge felt it was racist
to conclude that an African-American woman was no
good, and then to give Byron to the ‘nice, white, suburban
couple.’ Byron was then returned to his biological mother
who was reported to have undergone treatment for her
substance-abuse problems and was living in a residential
drug treatment center. The foster family reportedly felt
that race was very much an issue in this case. They sug-
gested that if the court had considered only the child’s
best interest, had visited Byron, and considered the birth
mother’s history of drug addiction, the decision would
have been different. Some commentators argued that chil-
dren are best reared in families where they will be taught
coping skills. Others suggested it was important for any
baby to be kept with his or her own race. However, in
June 1994, the judge removed Byron from his biological
mother after she admitted using drugs.
It is important to be mindful of the concepts of bond-
ing and psychological parenting in the context of many
adoption disputes where there might be considerable
bonding or a unique affective connection between the child
and the caregiver.
Silverman (1993) reviewed transracial adoption
research studies published in the past ten years, focusing
on outcome in adolescence and adulthood. This included
a comparison group; and they had their subjects placed
for adoption at an early age. These studies assessed fam-
ily integration, self-esteem, school performance, racial
identity, and overall adjustment of the transracial
adoptees.
The first of the studies in this group carried out by
McRoy et al. (1984) reported that family integration and
general adjustment were successful; and their self-esteem
and academic performance were satisfactory. Marked dif-
ferences emerged in the area of racial identity. The in-racial
adoptees referred to themselves as black, and 56 per cent
of the transracial adoptees referred to themselves as mixed
or part white. McRoy and her colleagues saw this racial
group orientation among the transracial adoption children
as problematic.
Simon and Alstein conducted the longest running study
between 1971 and 1991 (Simon and Alstein 1981; Simon
1994). There were again no impressive differences among
the groups in regard to family integration, academic
performance, self-esteem, and general adjustment. Most
362 Family law and domestic relations
children were under the age of three years at the time of
adoption in this study. During adolescence and later as
adults, the transracial adoptees were aware of, and com-
fortable with, their racial identity. There was clear vari-
ability in their reference group orientation, however, as
many of them dated Caucasian and preferred Caucasian
friends.
It is important, therefore, for forensic experts or
evaluators who participate in the transracial adoption
context to make clear to the court the limitation of
scientific-based data in this area. At the same time, the
expert should tell the court what is known about parent–
child bonding and the outcome of transracial adopted
children. Undoubtedly, there will continue to be consider-
able disagreement about whether the best way to assure a
promising future for an African-American child needing
a permanent home is to seek qualified adoptive parents
without regard to race. A thoughtful framework needs
to be kept in mind as psychiatrists participate in this
passionate debate of transracial adoption, which is of
national importance.
SUBSIDIZED ADOPTIONS
When financial aid is given to adoptive parents after the
adoption of a child, it is called subsidized adoption. The
intent of such adoptions is to insure permanent homes
for children who would otherwise remain in foster care
until they were adults. The amount of monthly payments
and the length of time the subsidy is granted are left to
the discretion of the social services commissioner, and can
vary. A voluntary agency that has a child in foster care and
wishes to recommend to the local department of social
services adoption by the foster parents, with subsidy, may
do so. The social services department may accept such rec-
ommendations, which include the amount of subsidy to
be provided in the first year. After the adoption, the family
is like any other family and is independent of the agency,
except for annual evaluations of the need for continued
subsidy.
OPEN ADOPTION
The court has power under the N.Y. Domestic Relations
Law, Section 111, not only to grant an adoption but also
to grant the natural parents visitation rights even after
the adoption, if it is in the best interest of the child. This
is referred to as an open adoption.
Parental visitation after adoption
Visitation with a natural parent after adoption should be
considered:
1 If there is a solid parent–child relationship, visitation
after adoption should be explored and, if beneficial,
implemented with consent of all parties, including the
child.
2 The court should not force visitation after adoption
without the consent of the adoptive parents and the
child.
3 If visitation is provided, the court should retain juris-
diction and modify or vacate visitation where appro-
priate.
Grandparents visitation after adoption
The paramount concern of the court in making its final
decision as to grandparent’s visitation must be the ‘best
interests of the child.’ The child’s rights and wishes can
be best considered if counsel represents them, and if the
judge interviews the child as to his/her preferences. No
petition for grandparent visitation should be dismissed
without a hearing where the petition alleges that a rela-
tionship existed between the grandparent and the child.
Prior to the hearing, a law guardian should be appointed
to represent the interests of the child and his/her prefer-
ences with the best interests of the child as a controlling
factor. Several factors to be considered in the decision
making include:
1 The relationship between the grandparent and the
child.
2 The age of the child, and his/her wishes.
3 The benefit to the child of a continued relationship
with a grandparent.
4 The recommendation of the law guardian.
5 The contention and wishes of the adoptive parents.
6 The extent to which visitation with grandparents could
interfere with the new relationship of the child and
the adoptive parents.
7 Clinical assessment by a child psychiatrist should be
considered in complex cases.
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Childhood attachment, foster care
and placement
LISA R. FORTUNA AND STEPHEN B. BILLICK
INTRODUCTION: THE ROLE OF THE CHILD
PSYCHIATRIST IN PLACEMENT ISSUES
During the past decade, child and adolescent forensic
psychiatry has emerged as a sub-specialized area of
increased activity, complexity, and utilization. This chap-
ter examines the role of the child psychiatrist in foster-care
placement in the advent of new legislation supporting
more permanent placement for children. Child perman-
ency planning arose through recognition that psycho-
logical harm is done to children who drift in and out of
care, moving perhaps from their original family to foster
parents or to children’s homes (Black and Wolkind 1991).
A number of studies conducted during the 1970s, which
collectively came to be known as ‘permanency-planning
projects,’ showed that goal-oriented case plans and assertive
case work, combined with intensive services to a child’s
birth parents, could facilitate family reunification and
permanent planning for children (Rosenfeld et al. 1997).
In 1980, the Federal government passed Public Law 96-272,
the Adoption Assistance and Child Welfare Act, which
was designed to: end the drift of children in foster care;
encourage planning for permanency for each child within
a hierarchy of desirable options rather than long-term
foster care; provide for oversight to move cases through
the child welfare system; and develop preventative services
to avoid family breakdown when children are temporarily
removed from the home (Fein 1991).
Subsequently, Congress passed Public Law 105-89, The
Adoption and Safe Families Act of 1997 (ASFA), the first
major reform of federal child welfare policy since 1980.
Enactment of this new law and the need for requisite
changes in State laws and policy have continued to gen-
erate significant discussions among policy makers, ser-
vice providers, child welfare experts, and judicial officers.
In addition, year 2000 guidelines were designed by the
Federal government as part of the president’s initiative on
permanency for children, in order to provide legal options
38
Table 38.1 Increasing permanency of placement
Low permanency Return to genetic parents after
temporary kinship foster care
Return to genetic parents after
temporary non-kinship foster care
Extensive contact with genetic
parents with foster care with tenure
Contact with genetic parents with
permanent guardianship to new
custodian
Contact with genetic parents with
new adoptive parents
High permanency New adoptive parents with no
contact with genetic parents
and recommendations for the States (US Department of
Health and Human Services Guidelines 1999). These can
be used to identify legal questions that need to be addressed
and to facilitate clear policy choices to help achieve per-
manence for children. The guidelines describe specific
placement options and take into consideration multiple
child and family situations and factors. Options range from
temporary kinship foster care to adoption and a potential
range of originating parental involvement is delineated
(Table 38.1).
The child psychiatrist has an essential role as an expert
in child development, and brings knowledge of biological
and psychosocial understanding critical for the care and
planning for children in the foster-care system under these
guidelines. The child psychiatrist can evaluate families
and parents in the context of placement planning. When
children are known to local authority services and are
received into care, child psychiatrists are asked to comment
upon the suitability of various placement options open
to the local authority itself, or to the court already con-
cerned with the child. It is important that the child psych-
iatrist knows these options and is familiar with recent
policy issues regarding children in foster care.

Ultimately, any clinical assessment of a foster child
will require that the psychiatrist understand the child, the
genetic parents, the foster parents and the context of the
agency. In other words, he or she will become involved in
a complex system that has many components. This chap-
ter is a discussion of the developmental issues important
in providing appropriate recommendations for children
in foster-care placement. This includes a discussion on
attachment theory and the latest in biological research
regarding attachment. A discussion on the evaluation and
definition of parenting is also provided. These are then
followed by a discussion of policy issues affecting children
in foster care and the role of the child psychiatrist in the
complex efforts to provide stability for these youth.
The goals of the chapter are to:
• Increase awareness about the developmental issues
important to consider when performing evaluations
and providing recommendations for children in the
foster-care system.
• Provide an overview of attachment theory and attach-
ment research and relate it to policy and practice regard-
ing establishing permanency for children.
• Highlight some of the recent policies regarding child
placement, foster care, parental termination and the role
of the psychiatrist.
• Highlight areas of particular concern to child and ado-
lescent psychiatrists within the child welfare system.
DEFINING AND EVALUATING PARENTING
A child psychiatrist’s involvement in the foster-care sys-
tem is important, as he or she presents unique skill to the
evaluation of families and children. In addition, the evalu-
ation of both individuals and families must utilize what
is available from legal, social, biological, and psychological
constructs. This section focuses on a basic understanding
of what is the role of parenting and what are the rights
of parents who possess a variable degree of competence.
There are two important questions to begin with:
1 What is a parent, and what constitutes good parenting?
2 What legal rights does the state give to parents, and
how do these relate to parental termination issues?
In Smith v. OFFER (1977), the Supreme Court held that
the right of genetic parents to custody of their children is
a ‘constitutional recognized liberty interest that derives
from blood relationships, state law sanction, and basic
human right’ (Schetky 1992). The court also noted that the
importance of the familial relationship to the individual
and society stems from the emotional attachments that
derive from the intimacy of daily association. Therefore,
the court acknowledges that a deeply loving and inter-
dependent relationship between an adult and child may
exist in the absence of a blood relationship. However, the
Childhood attachment, foster care and placement 367
court usually accepts the family to be the primary blood
relation kin involved in the young person’s life.
Parenting is the task of raising children, providing them
with the necessary material and emotional care to further
their physical, emotional, cognitive, and social develop-
ment. Parental responsibility in law is conferred on both
parents if married to each other, and on the mother alone
if not. The term ‘parent’ embraces all the powers and
duties of parents and guardians of a child’s person and
the child’s estate as recognized in common law (Schetky
1992). A father who is not married to the mother may
acquire parental responsibility by formal agreement with
her or by application to a court. In return, the responsi-
bilities of the parents are to provide for the child his or
her basic needs and to maintain the safety and healthy
development of that child.
Parents of course come with different levels of compe-
tency, strengths and disabilities. These disabilities and
impairments can range from mental illness to physical
illness, to issues of personality disturbance and substance
abuse. Of course, the role of the child psychiatrist is to
assess to what level these impairments affect a child’s well-
being either through parental acts or omissions.
In addition, it is important to remember that parent-
ing is rarely a function of one individual alone, and wider
social supports are also relevant. With greater isolation of
the parents and the more the parental responsibility weighs
on two individuals alone (without social support), the
more likely that parental disabilities will adversely affect
the capacity to parent. In addition, there are many instances
where the primary parenting responsibilities are taken
over by alternative individuals such as grandparents. In
some cases a foster-care parent may have been the one
consistent adult in a child’s life.
The child’s contribution is also important. Thus, at
different ages children need different things from their
parents. The parenting needs of a mentally or physically
handicapped young child are very different from those of
a disturbed teenager. A child’s temperament may also play
a part in rendering him or her difficult to parent, calling
for unusual qualities in the caretaker. In addition, children
with insecure attachment behavior may be more vulner-
able to separation from parents. It must also be noted
that children may have significant attachment to a parent
despite a history of abuse on the part of that parent.
Children – especially young ones – may blame themselves
for any separations and may feel that they are not worthy
of a parent’s love, even an abusive parent. They may ideal-
ize their parent in this way because the alternative –
recognizing that their parents are bad – is a hopeless one.
In court, one is often dealing with value judgments
held by other people rather than objective information
about a person’s ability to be a parent. Thus, terms such
as ‘mentally retarded,’ ‘schizophrenic,’ ‘drug addict,’ ‘alco-
holic,’ ‘psychopathic,’ ‘personality disordered’ may be
used to suggest that a parent is inevitably incompetent or
unsuitable. The child psychiatrist’s role often may be to
368 Family law and domestic relations
translate these value-laden labels into everyday language.
The child psychiatrist will need to explain and evaluate
issues such as the following:
• Physical abuse
• Sexual abuse
• Munchausen’s syndrome by proxy
• Neglect
• Cruelty
• Emotional abuse
• Abandonment
• Gross emotional or behavioral disturbance in the child
• Gross developmental delay in the child
• Failure to thrive/deprivation dwarfism
• Parental mental illness
• Parental personality disorder
• Parental addiction
• Parental mental handicap
• Parental lifestyle (e.g., prostitution, multiple caretakers)
• Parental competence to care and protect
• Divorce proceedings
• Placement decisions when the child is already in alter-
native care.
Parenting capacity in itself is not assessed by one interview
or by references from one parent or other individual
regarding another parent. It requires a full assessment of
the influence of current circumstances and the parent–
child relationship. It is important to remember that, given a
change for the better, individuals with the most unpromis-
ing backgrounds can prove themselves to be ‘good enough
parents.’ The alternative to this is in cases where rehabilita-
tion is questionable and a child is already placed with
a good foster parent. The stability of this alternative
‘parent–child’ bond must be preserved to the best of the
foster-care system’s ability. The standard of ‘the child’s best
interest’ has been accepted as a guiding principle in custody
decisions and one that takes precedence over parental
interests. With the emphasis on permanency, the parental
rights may need to be terminated in order that the alterna-
tive parent–child bond can become stable and permanent.
In assessing a parent the following are considerations:
1 Is the parent currently able to meet the child’s needs?
2 What is the parent’s current level of functioning,
and does this represent an arrest in development or
regression?
3 Is the parent’s condition treatable and, if so, is the parent
motivated to change and willing to accept treatment?
4 What is the parent’s record with respect to following
through with recommendations for treatment?
5 If the parent is treatable, will help improve the parent
sufficiently in time to meet the child’s needs within
the child’s time perspective?
6 What is the impact of the parent’s pathology or conduct
on the child? What ameliorating social support factors
might be present such as the protection of the child by
other parental figures (e.g., a spouse or a grandparent)?
7 Does the child have special needs or problems that
require exceptional parenting skills?
8 Why does the parent want to regain custody?
Many of the issues, which will follow in this text, discuss
the balancing of legal rights of parents, determining fam-
ily and attachment issues to be considered in determin-
ing the best interest of a child. How does one consider
attachment as it relates to child development when con-
sidering placement issues? Recent research in attachment
theory and its biological constructs are worth consider-
ing as we attempt to balance the rights and needs of par-
ents, children, and the state.
ATTACHMENT
Psychiatrists may be asked to comment on or measure the
child’s attachment to their family of origin. In evaluating
a family situation it is useful to distinguish between secure
and insecure attachments. Young or emotionally immature
children may be strongly attached to an abusive parent.
There will also be a need to evaluate the current circum-
stances when the child is in a foster home and a need
to consider attachments developed to foster parents or
step-parents. The child psychiatrist may not only have to
describe a child’s current attachment, but may also have
to comment on the capacity for developing new attach-
ments. This is a task based on developmental lines look-
ing at the child’s current maturity as well as deficits.
In the 1970s, Goldstein and his colleagues Anna Freud
and Solnit (1973, 1979) published two highly influential
books that asserted forcefully that a child’s relationship
to the psychological parent is more important than blood
ties. Furthermore, they felt that the parent–child relation-
ship had to be permanent and exclusive to count as
psychological parenting. Multiple placements and foster
homes that lasted for years without a firm commitment to
continuity deprived children of their fundamental need for
emotional constancy (Rosenfeld et al. 1997).
A great deal of our understanding in regards to infant-
ile attachment comes from the studies of Bowlby (1958,
1969/1982, 1973, 1980). In his work on attachment, Bowlby
observed that children experience intense distress when
separated from their mothers, even if they were fed and
cared for by others. He rejected two widely accepted the-
ories of the time that offered explanations for the child’s
ties to his or her mother as being related to secondary
drives. Psychoanalytical and social learning theories alike
proposed that the infant’s relationship with the mother
emerges because she feeds the infant. Bowlby was aware
of evidence from animal studies that refute these theories.
For example, Bowlby noted the reports by Harlow and
Harlow (1935) showing that rhesus monkeys in times
of stress preferred not wire-mesh ‘mothers’ that provided
food, but cloth-covered mothers that afforded contact
comfort. Soon, systematic observations of human infants
 Childhood attachment, foster care and placement 369

were made, and it became evident that babies also became a bond as loving someone, and losing a partner as
attached to people who did not feed them. Bowlby incorp- grieving over someone. Similarly, threat of loss arouses
orated discussions with colleagues from such fields as anxiety and actual loss gives rise to sorrow; whilst
evolutionary biology, ethnology, developmental psych- each of these situations is likely to arouse anger. The
ology and cognitive science and control systems theory. unchallenged maintenance of a bond is experienced
There are several concepts that Bowlby brings to an initial as a source of joy. (Bowlby 1979, p. 81)
understanding of infantile attachment.
In summary, Bowlby describes a complex set of behav-
1 There is a biological basis for attachment behavior. iors related to attachment that are perhaps biologically
Bowlby proposed that selection favored attachment rooted in our species and elegantly incorporated into the
behaviors because they increased the likelihood of normal socialization of the human infant. This socializa-
child–mother proximity, which in turn increased tion and development of self under the guidance and
the likelihood of protection and provided survival security of a primary attachment figure is essential for a
advantage. healthy child. Bowlby’s ideas have been further expanded
2 Attachment behavior is part of an organizational system and supported by biological research.
with a variety of attachment behaviors. The behaviors
chosen in a specific context are the ones the infant
Biological models of attachment and
finds most useful at that moment. Thus, a non-mobile
social buffering
child may cry and reach out to contact its mother, but
a mobile child may crawl instead. Children will adapt
More than 25 years of research on the antecedents of
behaviors to different situations.
attachment security now begins to answer the question:
3 There are two classes of factors that contribute to acti-
Is parental sensitivity, the ability to sense a child’s needs
vation of the attachment system. One relates to condi-
including exploration and support, indeed an important
tions of the child (such as illness, fatigue, hunger, pain),
condition for the development of a secure attachment
whilst the other relates to conditions of the environ-
relationship? A meta-analysis by De Wolff (1997) notes
ment such as the presence of threatening stimuli;
that parental sensitivity is not the exclusive or most
particularly important are the location and behavior
important factor in the development of attachment.
of the mother.
Mutuality and synchrony between child and parent are
4 Bowlby proposed that the organization of the
quite strongly associated with attachment security as
attachment behavioral system involves cognitive com-
are stimulation, positive attitude, and emotional support
ponents – specifically, mental representations of the
(De Wolff 1997). Social supports are important for the
attachment figure, the self and the environment – all
well-being of an individual.
of which are largely based on experience and help chil-
Social psychobiology research, and particularly research
dren make predictions about the future. Lack of a stable
on affiliations, has also increased dramatically during the
mental representation may be destabilizing and result
past 25 years. For one, the loss or absence of valued social
in behavioral problems.
companionship is a well-known risk factor for depression.
5 Whereas nearly all children become attached, not all
Patients with major depression show exaggerated corti-
are securely attached. Secure attachment occurs when
sol responses to supraphysiological, maximal and sub-
a child has a mental representation of the attachment
maximal doses of adrenocorticotropic hormone (ACTH)
figure as available and responsive when needed.
(Levine and Lyons 1997). Adrenal hyperresponsiveness
6 Infants are thought to form more than one attachment.
to ACTH is a state-dependent outcome that subsides
By the end of the first year an infant has a ‘small hier-
with clinical recovery. De Wolff (1997) found that social
archy’ of major caregivers, which may include grand-
separations in squirrel monkeys can induce long-lasting
parents, day-care providers, aunts, uncles, etc.; however,
increases in cortisol similar to those in human depression,
they strongly prefer their mother or primary care-
whereas companionship can result in social buffering.
giver, usually the mother.
These findings are consistent with neuroendocrine inter-
7 It is important to note that an infant does not treat all
actions hypothesized to occur during major depressive
attachment figures alike. They are not interchangeable;
disorders in humans, and point to the importance of
rather, an attachment hierarchy exists. Children have
affiliations, which are related to human bonding.
a tendency to ‘choose’ a special caregiver.
Gunner and Connors (1998), in their studies of adreno-
8 Perhaps most importantly, according to Bowlby,
cortical activity and behavioral distress in human new-
emotions are strongly associated with attachment.
borns, note that stress reactions of the adrenocortical
He writes:
system (persistent increases in cortisol) are triggered by
Many of the most intense emotions arise during the sudden changes in demands on the organism that the
formation, the maintenance, the disruption, and the organism is not prepared to meet. At the very least, devel-
renewal of attachment relationships. The formation opmental and physical status would influence the experi-
of a bond is described as falling in love, maintaining ence of increased demand: the coping behavior initiated
370 Family law and domestic relations
also would be expected to vary with the nature of the
demand, among other factors.
In studies of psychological and physiological responses
to stress, it has been found that trauma and re-experiencing
of trauma may be associated with dysfunction of the
locus coerulus, amygdala and hippocampal systems, as
well as result in dissociation of the hemispheres (Henry
1993; Nachmias and Gunner 1996). Right hemispheric-
damaged children lose critical social skills, and in adults
the related sense of familiarity critical for bonding is lost.
Such loss of social sensibilities may account for the lack
of empathy and difficulties with bonding found in socio-
pathy and borderline personality disorder – conditions
now believed to result from repeated trauma during devel-
opment (Lyons-Ruth 1996). If one considers separation
from parents and abuse as trauma, such findings have
potentially significant implications.
Biological research continues to study how bonding
and social affiliation affect the individual, and are medi-
ated. Bowlby initiated an understanding of the import-
ance of attachment and bonding as it relates to normal
development. The importance of a secure and supportive
environment and social support for a child is indisputable,
and yet our understanding of the role of separation and
trauma in the future functioning of the individual is still
in need of further examination. Clearly, a child who has
had a primary caregiver for years other than the bio-
logically originating parent (such as a foster parent) can be
expected to have a far stronger and superior attachment
with the primary caregiver rather than the originating
genetic parent. This means that both the primary care-
giver and the originating parent are to be understood as
being the biological parents of the child, simply through
different mechanisms.
PUBLIC POLICY AND STATE LEGISLATION
GOVERNING PERMANENCE FOR CHILDREN
An understanding of attachment brings an awareness
that America’s foster children spend far too long waiting
for, and are deprived of, the permanent and stable homes
necessary for their healthy development. The Guidelines
for Public Policy and State Legislation Governing Perman-
ence for Children were developed as one of several action
steps undertaken by the Federal government in response
to Adoption 2002, President Clinton’s Initiative on
Adoption and Foster Care. It is a technical assistance docu-
ment designed to help States review their own laws and
develop statutes and policies that reflect the best prac-
tices in child welfare today. The Guidelines are intended
to assist the States as they focus on critical issues affecting
child welfare practice and the courts. The Guidelines par-
ticularly focus on the courts and legal processes involved
in decisions affecting children and families; they were
written for a broad audience of stakeholders in the public
policy arena, including State legislators and their staffs,
judges, public child welfare officials, and other State-
level policy makers and program managers (USDHHS
Guidelines 1999).
Several important assumptions are articulated in the
Adoption 2002 report. The child psychiatrist involved in
forensics needs to be aware of these policies and assump-
tions as he or she will be intimately involved with them
when involved in the foster-care system. They are as
follows:
• Every child deserves a safe and permanent family.
• Children’s health and safety is a paramount concern
that must guide all child welfare services.
• Children deserve prompt and timely decision-making
as to who their permanent caregivers will be.
• Permanency planning begins when a child enters foster
care; foster care is a temporary setting.
• Adoption is one of the pathways to a permanent family.
• Adoptive families require supports after the child’s
adoption is legalized.
• The diversity and strengths of all communities must
be tapped.
• Quality services must be provided as quickly as pos-
sible to enable families in crisis to address problems.
PERMANENCY FOR CHILDREN
‘Permanency’ means that a child has a safe, stable, custo-
dial environment in which to grow up, and a life-long
relationship with a nurturing caregiver. The concept of
permanency has assumed a central place in American
child welfare law and policy because permanency estab-
lishes the foundation for a child’s healthy development.
The basic needs of children include safety and protection;
a sense of identity; validation of themselves as important
and as valued persons; stability and continuity of care-
givers; an opportunity to learn and grow cognitively,
physically and emotionally; and a protected custodial
environment that is legally secure.
The literature shows that children do better in a stable
family. When their own family cannot be rehabilitated,
children do better in stable placement, and do better than
children who are returned to an unstable home. Except
for certain judicial proceedings, children per se are not
afforded any rights under the United States Constitution.
However, under case law, in face of abuse, neglect, or
abandonment the ‘right of family integrity’ must yield to
the State’s interest in protecting children. The rights of a
child to his or her psychological home, to some home, or
to a home free of abuse are in potential conflict with the
rights of the biological originating parent to possess the
child. The interest of society is not served when children
are mistreated, grossly neglected, or allowed to languish
in the limbo of foster care. The Adoption Assistance and
Child Welfare Act of 1980, was the first federal statute to
discourage excessive reliance on foster-care placement and

promote greater use of services to assist and rehabilitate
families, discouraging out-of-home placements. It intro-
duced the concept of permanency planning and incorp-
orated specified time frames for decision making for
children and families. Other legislative initiatives to sup-
port or promote permanency include the Family Preser-
vation and Family Support Services Program (FPFS) (P.L.
103-66) established in 1993 and amended in 1997, the
Multiethnic Placement Act of 1994 (P.L. 103-382) with its
1996 Interethnic Placement Provisions (P.L. 105-89), and
the Adoption and Safe Families Act (P.L. 105-89) enacted
in November of 1997.
The legislation that established the Family Preservation
and Family Support Services Program focused primarily
on the front-end of the child welfare system by providing
additional funding for preventive services and crisis ser-
vices for children and families at risk. Implementation
required active involvement of the broad community of
stakeholders to focus on needs and services for children
and families. In response to major concerns about the
extended length of stay and poor outcomes for minority
children and the prevalence of racial preference in place-
ment, the Congress enacted the Multiethnic Placement
Act (MEPA), and the Interethnic Placement Provisions
(IEP), enacted in 1994. MEPA outlawed discriminatory
practices which will be discussed further later in this text.
Ultimately, preventing the breakdown of these fam-
ilies will require a wide array of services. Services need to
include housing assistance, securing services of a home-
maker, nursing care and respite care as well as traditional
social, psychological and psychiatric care. The recently
authorized Adoption and Safe Families Act of 1997
(ASFA), enacted as an amendment to titles IV-B and
IV-E, comprehensively addresses critical permanency
issues in child welfare and the law. Safety is the paramount
concern that must guide all child welfare services.
ASFA clarifies the reasonable efforts requirements by
identifying those circumstances in which States are not
required to make reasonable efforts to keep the child
with the parents. Cases in which a parent has been con-
victed of murdering a child have resulted in having their
rights to another child involuntarily terminated. Similarly,
a parent who has committed a felony assault resulting in
serious bodily injury to a child, or when a court has found
that the child has been subjected to aggravated circum-
stances such as abandonment, torture, or chronic abuse,
parental rights have been terminated. This requires crim-
inal record checks on the backgrounds of prospective
foster and adoptive parents.
To ensure that the system respects a child’s develop-
mental needs and sense of time, the law reaffirms reuni-
fication as a viable option for children whose families can
provide them with a safe, nurturing environment. The
law strongly promotes the timely adoption of children who
cannot return safely to their own homes, and radically
changes the time frames for decision making for children.
ASFA requires that if families cannot be reunited, efforts
Childhood attachment, foster care and placement 371
be made to find families for children who are legally free
and waiting for permanent placement. ASFA establishes
adoption incentive payments for States to increase the
number of children who are adopted, leading to a doub-
ling of the annual number of children adopted by the
year 2002. It authorized pre- and post-adoption services
to support adoptive families and supported activities to
expedite the adoption process.
Innovative approaches are needed to achieve the goals
of safety, permanency, and well-being. To allow for serious
consideration of new ways to serve children and families,
the law expands Federal authority to support projects
for the examination of issues, and the demonstration
and evaluation of program improvements related to child
welfare.
Case examples
A seven-year-old boy was removed at birth from his
physically abusive cocaine-using mother and placed in
foster care for seven years with a kinship foster mother.
The natural originating mother maintained superficial
weekly visits and requested a return of the child when she
became drug free. The child adamantly refused to go and
asked that the ‘maternal visits’ should cease. Assessment
of the child clearly demonstrated that the foster mother
was the child’s primary caregiver and primary attachment
figure. The biological nature of genetics was thus pitted
against the biological nature of maternal attachment. This
is an example of how legal reform and updating need to
be implemented in order to easily and quickly support a
child’s reasonable request.
Clinical issues
The child psychiatrist’s role is to keep the foster-care child’s
best interest primary in regards to the policy. One of the
guiding principles is that the independent evaluator
must bring to light what it is like to become a foster-care
child.
Most children have been placed suddenly for their
protection. Frequently, the children cannot be prepared in
advance and are confused and traumatized in the earliest
hours of separation. Many children who enter foster care
have been deprived and abused before this, which makes
the toleration of extreme stress even more difficult for
them. Many children become anxious, and some regress
(e.g., become enuretic). Others with pre-existing psychi-
atric and emotional problems cannot adjust and are moved
to other placements. Children miss their parents – even
those that abused them. Parent-like children who have
helped care for their younger siblings are often upset
because placement interferes with their job/role and
attachment.
Because foster children are separated from their bio-
logical originating parents – often against their will –
they very often feel angry and deprived, and long to be
372 Family law and domestic relations
reunited with their parents. To keep loyalty to the natural
parents intact, the child may need to be emotionally dis-
tant from and oppositional toward his or her new foster
parents, which makes the child less endearing. Children
have fantasies of being ‘thrown away’ or ‘bad,’ and at times
idealize their abusive parents in retaining their hope in
the ‘good parent.’ If adoption is planned or imminent but
the child has not agreed emotionally, he or she may act
out to disrupt the plans.
Children who have experienced repeated placements
often become standoffish as a way of protecting them-
selves from future losses. A history of past and present
attachments will often help to differentiate what is a defen-
sive posture from the inability to attach. If a child cannot
attach and is placed in a pre-adoptive home, the pre-
adoptive parents are likely to become discouraged and
feel as if they have failed. Both children and parents (ori-
ginating, foster or pre-adoptive), would benefit from con-
current psychotherapy to address these important issues.
These and other issues should involve a full evaluation
by a child psychiatrist, and should be considered when
making recommendations for a child. In addition, the
child psychiatrist who interfaces with the system can
assist in developing a better understanding of the child’s
behaviors and potential barriers to successful placement.
The child may require some assistance in adjusting to the
discomfort of the foster-care system and potential perman-
ent placement and adoption. Some severely disturbed
children may need a period of emotional grooming in
therapeutic foster care before they are adoptable.
Again, safety is the paramount consideration and if
services for parental and family rehabilitation are not suc-
cessful, then transition to free the child for adoption should
be inevitable. Special consideration for permanent place-
ment and adoption needs to be made for a long-term
foster-care family for which the child has adjusted to or
has been in since infancy.
SPECIAL CONSIDERATION OF MULTIETHNIC
AND RACIAL ISSUES
Although they comprise only 35 per cent of the general
population, children of color account for over 64 per
cent of the children in foster care, according to the most
recent data available (USDHHS, Children’s Bureau 1997).
When a family is reported for suspected child abuse and
neglect, minority children, particularly African-American
children, are more likely than white children to be placed
in foster care rather than receive in-home services – even
when the children share the same problems and charac-
teristics (USDHHS, Children’s Bureau 1997). African-
American and Latino children tend to remain in temporary
foster care twice as long as white children and, once legally
free for adoption, wait longer to be adopted than do white
children. Similarly, despite the Indian Child Welfare Act,
Native American children also are significantly over rep-
resented in the foster-care population.
Therefore, the overrepresentation of children of color
who have been placed in foster care because of suspected
child abuse and neglect is a particularly troubling phe-
nomenon. Like race, ethnicity, and culture, socioeconomic
status also correlates with entry into foster care. Close to
60 per cent of foster children come from families receiv-
ing government support. More than half (at least 52 per
cent) of the children in foster care come from families
that are title IV-E eligible; that is, these families are at the
lowest end of the family income scale (Lindsay 1991).
Parents’ inadequate income best predicts foster-care
placement rather than the actual severity of abuse. These
families with inadequate income were less likely to be
provided supportive services.
Recent legislation is targeted at providing equal services.
Lack of a same-race foster-care placement is no longer an
acceptable reason for delay.
Clinical issues
Representatives of culturally divergent communities often
feel that ‘eurocentric’ prejudice interferes with agencies
making serious efforts to engage the original parents so
that children can be returned to their care, or so that they
can receive services. Family perceptions and frustrations
need to be considered.
The clinician should ensure that a full and culturally
sensitive evaluation of all families occurs. Care should be
taken in ensuring that reunification and rehabilitation
are not overlooked in certain populations. In order to
look into feasible alternative approaches to treatment,
one must be aware of psychosocial issues involved in
lower socioeconomic status communities. This includes
an awareness of limited resources and the risk factors for
substance abuse. Strengths should be supported in order
to increase the potential for improvement. These strengths
may include family networks and support, education and
parental motivation for treatment services as appropriate.
As always, emphasizing the child’s safety and well-being
are the paramount concern.
ADOPTION
Adoption remains the placement of choice when a child
cannot be returned to his or her birth family. This gives
the child a new, permanent, legal family with the same
legal standing and protection as a family created through
birth. Adoption is the permanent transfer of all parental
rights and responsibilities concerning a child to the adopt-
ive parents (see Adoption Guidelines in Table 38.2).
Children may be adopted by relatives, step-parents, foster
parents, or persons previously unrelated or unknown to
them. The Federal government now recommends that

Table 38.2 Federal guidelines for adoption
a. Adoption is irrevocable, even if the post-adoption
contact agreement is violated, modified, or set aside.
b. A birth parent’s voluntary relinquishment of parental
rights may not be set aside if a post-adoption contact
agreement is violated, modified or set aside.
c. The court may approve the post-adoption contact
agreement only if the parties, including a child over
the age of 12 years, agree and the court finds that the
agreement is in the best interests of the child.
d. The court may approve post-adoption contact ranging
from occasional exchanges of cards, photographs and
information to regular personal visits in whatever
level of detail the parties agree to and the court
deems appropriate as supported by the record.
e. Any party to the post-adoption contact agreement
may petition the court to modify the agreement,
order a person to comply with the agreement,
or to void the agreement.
f. The court may order compliance, modify, or void the
contact agreement only if the parties agree or
circumstances have changed and it is in the best
interests of the child. The court may use its contempt
power to enforce compliance as appropriate.
State law authorize a court to terminate parental rights
or grant adoption for a child in foster care, to approve an
agreement by the adoptive parent or parents to allow
post-adoption contact between the child and a birth par-
ent, sibling, grandparent, or other relative or individual
who has a significant emotional tie to the child. State law
should provide for the legal enforcement of this agree-
ment for post-adoption contact, while maintaining the
supremacy of the adoption.
In addition, State laws should authorize judicial appro-
val and enforcement of agreements for post-adoption
contact in appropriate circumstances. Birth parents, when
given a chance, can be tremendous resources in planning
for their children, and their participation can have positive
outcomes for adoption. For many years, certain adoption
agencies have placed children in adoptions where birth
parents maintain contact and exchange information. States
could encourage birth parents’ involvement in planning
for relinquishment of parental rights and adoption of the
child (USDHHS Guidelines 1999).
Clinical issues
Adoption brings forth the issue of termination of parental
rights. There is very little in the literature regarding assess-
ing parents in regards to termination of parental rights,
and even less so on issues of maintaining contact when
the child is placed outside of the home. In considering
maintaining contact, one has to consider the parent–child
relationship and the ability of the child to manage issues
of loyalty to the biological parent without disturbing the
integrity of his or her new family unit. There may be
Childhood attachment, foster care and placement 373
pitfalls to maintaining ties between birth parents and their
children after the children have been placed into new
permanent homes. For example, birth parents might only
reluctantly accept the new placement and may later try
to disrupt or undermine it. The child may be fearful or
resistant to continuing contacts. Determining whether
an individual child needs a permanent placement with
ongoing birth parent–child contacts or contacts with
siblings or members of the extended family is a subtle
and sophisticated task.
Adoption with contact will be most successful when
all of the parties to the contact agree: (i) that the contact
should occur; (ii) what type of contact should occur;
(iii) how or where the contact will occur; and (iv) how
frequently the contact will occur. Such agreements should
be flexible enough to accommodate the changing needs
and abilities of all. Contact should not be allowed if
the child is fearful of the parent or fearful that he or
she will be removed from the adoptive home and
returned to the parent. This is important when the child
has had many placements and does not have strong ties
to the parent, or if there is evidence that post-adoption
contact will undermine the integrity of the adoptive
relationship.
Attachment and identification issues are critical. New
federal policy guidelines state that ‘The court may approve
the post-adoption contact agreement only if the parties,
including a child over the age of 12, agree.’ Some children
may have trouble making the decision to terminate their
parents’ rights to them and may feel guilt in doing so.
Clinicians need to be sensitive to this and give recom-
mendations to help the child through this process.
Capacity for object relations remains a major criterion
for placement in an adoptive home. The most difficult chil-
dren to place are those with severe behavioral problems,
including children who are acting out sexually. One must
always consider the risk of failed adoption with these chil-
dren, and the devastating effect of yet another rejection.
At times adoption may not be the best choice. The fol-
lowing case example demonstrates this idea:
The child psychiatrist and the children’s therapist
recommended against placing the children in adop-
tive homes but were not heard. An adoption worker
was assigned to the children and pursued life history
books with them. The children’s behavior regressed
severely and they became almost unmanageable
around the adoption worker’s visits. A team review was
held six months later. The consulting child psychiatrist
and both therapists reiterated the need for long-term
placement of the children in their present foster
home. Plans for adoption were dropped; the children
were told they would remain with their foster parents,
and their behavior improved. The foster parents were
willing to keep the children, but were understandably
reluctant to adopt, given the extent of the children’s
behavior problems.
374 Family law and domestic relations
For situations like this, the Federal government has
provided guidelines for the alternative to adoption –
permanent guardianship.
GUIDELINES FOR PERMANENT
GUARDIANSHIP
The term ‘legal guardianship’ means a judicially created
relationship between child and caretaker which is intended
to be permanent and self-sustaining, as evidenced by the
transfer to the caretaker of the following parental rights
with respect to the child: protection; education; care and
control of the person; custody of the person; and decision
making. The term ‘legal guardian’ means the caretaker in
such a relationship (ASFA, Public Law 105-89).
Federal guidelines want State courts to award per-
manent guardianship to an individual or couple who will
serve as permanent caregivers of a child without ongoing
State supervision. Although this is not full adoption, some
transfer is in the child’s best interest. Permanent guardians
should have legal custody and control of the child, includ-
ing the power to make major decisions. Genetic parents
may retain some ongoing contacts with the child and may
retain the obligation to pay child support.
Suitable relatives should be initially preferred for
all placements, including placements for permanent
guardianship. In a contest for guardianship there should
be a presumption that the best interests of the child are
served by placement with a relative unless a person com-
peting for permanent guardianship has already an estab-
lished custodial relationship having had custody of the
child for twelve of the past eighteen months. In that case,
the court shall evaluate the competing potential guardians
on an equal basis with no presumption and should award
custody based on the best interests of the child.
Because the goal of permanent guardianship is to create
a permanent family for the child, guardians should be adult
individuals or couples, rather than public or private agen-
cies. Once a permanent guardianship is established, there
should be no need for ongoing court review or agency
supervision of the guardianship. It should be permanent.
Clinical issues
Adoption is a serious step, but missing the opportunity
for adoption can be a grave error as it provides the greatest
stability. The following should be provided before adoption
is overlooked:
• Skilled counseling to enable the child to grieve and
accept the possibility of adoption is necessary such as
when the child is older and/or unwilling to cooperate
with adoption.
• Aggressive efforts should be made to secure an adoptive
family including the use of adoption exchanges and
other adoption recruitment efforts.
• All interested inquirers should be considered as pos-
sible adoptive parents, regardless of race or geographic
location of the inquiring families.
• Counseling should be provided to potential guardians
about the benefits of adoption.
• The social service agency should engage in efforts to
eliminate other possible systemic barriers to adoption
such as availability of services to enable independent
living for children with developmental disabilities.
• A limitation to adoption may be seen in the child living
with a relative or caregiver who is committed to be a
party to a legal guardianship and agrees to raise the
child to adulthood but is not willing to support ter-
mination of parental rights and expects to secure a
voluntary relinquishment.
GUIDELINES FOR STANDBY GUARDIANSHIP
It is recommended by Federal guidelines that State statutes
provide for the legal option of Standby Guardianship,
which allows a chronically or terminally ill parent to
authorize another adult person to serve as guardian of
a child when the parent dies or becomes temporarily or
permanently incapacitated. This is much like a healthcare
proxy or advance directive.
Clinical issues
The child and family should receive support and guid-
ance in preparation for the loss of the parent. One should
also address whether guidance is provided for the selected
guardian to offer a reasonable transition and continuity
of care. Adequate funds need to be set aside for child
support and education. For parents who have sizeable
estates, money can be placed in a trust fund. The child
should get to know the guardian in the context of the
parent in order to facilitate the attachment transition.
GUIDELINES FOR PLANNED LONG-TERM
LIVING ARRANGEMENTS WITH A
PERMANENT FAMILY
The Federal government recommends that the States
should authorize courts to approve long-term living
arrangements with a specific and identified permanent
family for a child who will not return to his or her family
of origin. This less-formal arrangement is the Planned
Long Term Living Arrangement (PLTA) or the so-called
‘foster care with tenure.’ In this case, adults caring for the
child have considerably less authority or decision making,
and for this reason it is the least preferred choice among
the permanent placement options. It should be permit-
ted only under strictly limited circumstances. State law

should authorize long-term living arrangements with a
specified family only upon a court finding that one of the
following two situations exists:
1 Older child, stable foster home, with ties to birth fam-
ily. That is, there exists a documented, positive, and
ongoing relationship between the child and birth rela-
tives or other caregivers. Alternatively, there exists a
stable foster-care placement that is predicted to last
until the child leaves foster care or reaches majority;
and the child has attained the age of fourteen years
and agrees to the plan or achieves majority.
2 Child with serious and profound disability. Where the
child has serious and profound physical, emotional,
or mental disabilities, foster parents may not want
guardianship or adoption, i.e., a very permanent situ-
ation. Adequate services for these children may vary
with time, necessitating a change in placement. None-
theless, the best results are achieved whenever a long-
term stable relationship can be maintained.
In these extended long-term living arrangements the court
should find by clear and convincing evidence that the usu-
ally preferred permanent placement options of adoption
and guardianship are not available or appropriate for this
child.
Clinical issues
Many of these children may not be adoptable or may resist
adoption because of loyalty binds or the wish to maintain
some contact with the parent. ‘Foster care with tenure’
allows them to experience stability and permanency with-
out fears of having their ties disrupted. Such an arrange-
ment often works well for foster parents who may be
reluctant to adopt because of the extent of a child’s med-
ical or emotional problems or because they cannot afford
the cost of raising another child. If appropriate, the child
may have contact with the birth family. Once again, the
child’s experience of the visits and issues of loyalty con-
flicts, separation and developmental stage must be con-
sidered. In addition, the child with developmental and
behavioral disability must be ensured adequate services
including mental health and should be explicit in recom-
mendations and follow-up.
REFERENCES
Adoption and Safe Families Act, Public Law 105-89,
§ 101(b), 42 U.S.C. 675(7).
Black, D., Wolkind, S. 1991: Placement Issues in Child
Psychiatry and the Law, 2nd edition. Royal College
of Psychiatrists Press, 53–62.
Bowlby, J. 1958. The nature of the child’s ties to his
mother. International Journal of Psychoanalysis
39, 350–73.
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Bowlby, J. 1969/1982: Attachment and Loss: Volume 1.
Attachment. New York: Basic Books.
Bowlby, J. 1973: Attachment and Loss: Volume 2.
Separation. New York: Basic Books.
Bowlby, J. 1979: The Making and Breaking of Affectional
Bonds. London: Tavistock.
Bowlby, J. 1980: Attachment and Loss: Volume 3. Loss.
New York: Basic Books.
De Wolff, M.S. 1997. Sensitivity and attachment: a
meta-analysis on parental antecedents of infant
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Forensic evaluation of physically and
sexually abused children
RODRIGO PIZARRO AND STEPHEN B. BILLICK
Child abuse can present as physical abuse, emotional
abuse, sexual abuse, and neglect. There are special forms
of abuse, such as Munchausen syndrome by proxy and
fetal abuse (Finkelhor 1994). Because so much abuse
remains undisclosed, researchers usually use retrospec-
tive information from adults to make inferences about
the incidence and prevalence of abuse. Authors agree that
adult reports are probably underestimates due to a num-
ber of methodological problems. Adding confusion to the
literature is the fact that the definition of abuse can vary
among papers and that in certain cases the report of abuse
may be fabricated due to ulterior motives or may later be
found unsubstantiated.
DEFINITIONS
The physical and sexual abuse of children may be catego-
rized as follows:
• Physical abuse: this is the physical injury of a child
under 18 years of age by a person who is responsible
for the child’s welfare.
• Emotional abuse: this includes close confinement, ver-
bal or emotional assault and other forms of abuse
(US Department of Health and Human Services 1988).
Close confinement is the restriction of movements such
as tying a child’s arms or legs together or binding a
child to a chair, bed, or confining a child to an enclosed
area (such as a closet) as a means of punishment. Verbal
or emotional assault is the habitual pattern of belittling,
denigrating, scapegoating, or other non-physical forms
of overtly hostile or rejecting treatment, as well as
threats of other forms of maltreatment. Other forms of
emotional abuse include overtly punitive, exploitative,
or abusive treatment and includes attempted or poten-
tial physical or sexual assault, deliberate withholding of
food, shelter, sleep, or other necessities, as a form of
39
punishment, economic exploitation, and unspecified
abusive reactions.
• Neglect: this is an act of omission perpetrated by care-
takers who fail to fulfill their obligations towards the
children they are caring for (Giovannoni 1988). Neglect
can be classified as physical neglect, educational neglect
and emotional neglect (US Department of Health
and Human Services 1988). Physical neglect includes
refusal of healthcare, delay in healthcare, abandonment
(desertion of a child without arranging for reasonable
care and supervision), expulsion (refusal of custody),
inadequate supervision, inattention to avoidable haz-
ards in the home, inadequate nutrition, clothing, or
hygiene, and other forms of reckless disregard of the
child’s safety and welfare. Educational neglect includes
permitted chronic truancy, failure to enroll and failure
to attend to special education needs. Emotional neglect
includes providing inadequate nurturance/affection,
exposing a child to chronic or extreme spouse abuse,
permitting a child to abuse drugs or alcohol, permit-
ting other maladaptive behavior, or refusing a child
psychological care.
• Child sexual abuse: this is the use of a child under eight-
een years of age as an object of gratification for adult
sexual needs or desires (Green 1996). A sexual rela-
tionship between a child and adult in which there is
no coercion is also regarded as abusive because the
child lacks the capacity to consent to sexual activity.
A parent or a caretaker who allows another person to
have sexual contact with a child is also deemed sexually
abusive. Incest refers to the sexual exploitation of a child
by another family member. The most common forms
of sexual abuse encountered by girls are exhibitionism;
fondling; genital contact; masturbation; and vaginal,
oral or anal intercourse by a male perpetrator. Boys
are usually subjected to fondling, mutual masturba-
tion, fellatio, and anal intercourse. Finkelhor has distin-
guished between contact and non-contact sexual abuse
378 Family law and domestic relations
(Loue 1998). Contact sexual abuse is the touching of
the sexual portions of the child’s body (genital or anus)
or touching the breasts of pubescent females, or the
child’s touching the sexual portions of a partner’s body.
It can involve penetration (penile, digital and object
penetration of the vagina, mouth or anus) or not
(fondling, touching or kissing). Non-contact sexual
abuse includes exhibitionism, voyeurism, verbal sexual
propositions, or harassment.
• Munchausen syndrome by proxy: this is a disorder in
which a person persistently fabricates symptoms of
illness on behalf of another, so causing that person to
be regarded as ill (Forsyth 1996). In instances involv-
ing children, it is almost exclusively their mothers
who are fabricating the illness. The term was coined by
Meadow in 1977, and it is considered a special form of
abuse.
• Fetal abuse: this is the ingestion of substances during
pregnancy that may have serious consequences for the
developing fetus. States vary in their approach to this
problem, some seeking criminal charges in order to
place the woman in a controlled environment for the
protection of the fetus. However, some have argued that
confinement in prison does not necessarily protect
the child.
INCIDENCE
The exact incidence of child abuse and neglect in the
USA is unknown due to reporting limitations. The 1986
National Incidence and Prevalence Study of the National
Center on Child Abuse and Neglect estimated that 22.6
per 1000 children were maltreated that year. Some 64
per cent of the cases involved neglect. The rate of reported
physical abuse was 4.9 per 1000 children (Kaplan 1996).
Also, the exact incidence and prevalence of sexual abuse
are unknown, but community and college surveys indi-
cate that 20 per cent to 40 per cent of adult women, and
almost 10 per cent of adult men, were abused as a child
(Green 1996). The true prevalence of Munchausen
Syndrome by Proxy and fetal abuse remains unknown.
PRESENTATION AND FINDINGS
Physical abuse
Green (1994) described the typical history of a case of
physical abuse as follows:
1 There is an unexplained delay in bringing the child
for treatment following the injury.
2 History is implausible or contradictory.
3 History is incompatible with the physical findings.
4 There is a history of repeated suspicious injuries.
5 The parent claims that the injury was self-inflicted,
or blames it on a sibling or third party.
6 The child had been previously taken to different
hospitals for the treatment of injuries.
7 The child accuses the parent or caretaker of injuring
him or her.
8 The parent has unrealistic and premature expecta-
tions of the child.
9 The parent demonstrates a lack of concern about the
injury, or minimizes it.
10 The parent has a prior history of abuse as a child.
The usual physical findings are more severe than those
that could reasonably be attributed to the alleged cause.
Physical signs include bruises and welts on areas that are
not easily exposed to natural accidents such as the face,
lips, mouth, ears, and eyes. These signs form regular pat-
terns that often resemble the shape of the article used to
inflict the injury. For example, cigarette burns can be
present on the soles, palms, back, or buttocks. Immersion
burns are stocking or glove-like on extremities, but
doughnut-shaped on buttocks or genitals. Fractures of
the skull, ribs, nose, facial structures, or long bones, fre-
quently present as multiple or spiral fractures in various
stages of healing. The examiner can also find lacerations
or abrasions, rope burns on wrists, ankles, neck, torso,
mouth, lips, eyes, ears, or external genitalia, and bruises
of the abdominal wall. In addition, the child may present
with intramural hematoma of the duodenum or pro-
ximal jejunum, intestinal perforation, ruptured liver,
pancreas, or spleen, ruptured blood vessels, kidney, or
bladder. Subdural hematoma, retinal hemorrhage, or
subarachnoid hemorrhage can also be present.
The usual psychiatric/behavioral findings include
wariness of adults. The child may appear anxious and
frightened in the presence of the abusive parent. He or
she may become more anxious closer to the discharge
date (if she/he is in the hospital), or may express fears
regarding returning home. The psychiatric symptoms
include anxiety symptoms (such as sleep difficulties, night-
mares, psychosomatic complaints, separation anxiety,
self-mutilation); avoidance; mistrust; depressive symp-
toms (such as low self-esteem, suicidal ideation, suicidal
attempts); impaired impulse control (leading to aggres-
sion, conduct disorder, attention deficit); substance abuse;
speech, learning and cognitive problems; and limited
social competence. In addition, the victim of abuse can
also present as a perpetrator of abuse.
Emotional abuse
Even though there are no characteristic physical findings,
the child may present with sad or angry expression. The
psychiatric/behavioral findings include generalized fear-
fulness, impaired social competence, conduct problems,
separation anxiety, and sleep disturbances.
 Forensic evaluation of physically and sexually abused children 379
Neglect
The usual physical findings include malnutrition, pica,
limited hygiene, inadequate clothing. In addition, there
might be evidence of medical neglect, such as lack of
immunizations, absence of dental care, eyeglasses, or hear-
ing aids, and discharge against medical advice. Develop-
mental delays and failure to thrive may also be a result of
neglect.
The psychiatric/behavioral findings vary according
to the child’s developmental stage. Children can be easily
irritable, less flexible, present more difficulties in terms of
affect regulation and dealing with frustration. They are
more dependent, less enthusiastic, have low self-esteem and
can present with depression, withdrawal, social isolation
and aggressive behaviors. They can also present with anx-
iety, sleep disturbances, and psychosomatic complaints.
Child sexual abuse
The usual physical findings include lacerations,
hematomas, petechiae, edema and contusions of genital
areas. Signs of penile penetration include hymeneal tears,
scar tissue and adhesions that distort the shape of the
hymeneal membrane, clefts or bumps in the hymeneal
membrane, labial adhesions, widening of the hymeneal
orifice and rounding of the hymeneal edge. Signs of anal
trauma include hematomas, prolapse of anal tissue, fis-
sures, anal skin tags, pigmentation and scar tissue. Pene-
tration can also produce changes in the tone of the anal
sphincter.
Different authors have proposed different ways of
classifying the findings according to the degree of speci-
ficity or certainty (Bays and Chadwick 1993). The findings
can be classified as diagnostic findings (e.g., pregnancy);
findings consistent with sexual abuse (e.g., presence of
Trichomonas); findings sometimes following sexual abuse
but also other causes (e.g., bacterial vaginosis); findings
unlikely to be due to abuse (e.g., Candida albicans
dermatitis).
The usual psychiatric/behavioral findings characteris-
tically found in child sexual abuse can be categorized in
different ways:
1 No symptoms: not all the children who are victims of
abuse present psychiatric symptoms. In addition, if the
child has been progressively groomed and seduced
into sexual activity that has been pleasurable and non-
violent, the only indication of abuse may be a height-
ened sexual arousal.
2 Acute symptoms: anxiety symptoms (sleep distur-
bances, nightmares, insomnia), somatic complaints,
phobias (for example to males), and symptoms of
posttraumatic disorder (re-experiencing the abuse,
avoidance, and autonomic hyper-arousal).
3 Long-term symptoms: avoidance and mistrust of
adults, depression, suicidal behavior, anger, guilt,
low self-esteem, aggression and poor impulse control,
hysterical and dissociative symptoms, early signs of
borderline personality disorder, substance and alco-
hol abuse, abnormal sexual behavior, disturbances in
sexual identity and sexual object choice, inadequate
social skills, and difficulties in social relationships.
4 Adult survivors: anxiety symptoms (chronic tension,
sleep difficulties), somatic complaints, feelings of
detachment, sexual dysfunction, depressive symptoms
with suicidal behavior, borderline personality disorder,
dissociation and multiple personality disorder, and
alcohol and substance abuse.
The long-term consequences of sexual abuse can be
divided into posttraumatic stress disorder (PTSD), cog-
nitive distortions, emotional pain, avoidance, impaired
sense of self and interpersonal difficulties (Briere and
Elliot 1994). In PTSD there are intrusive, avoidant and
arousal symptoms, including sensory phenomena that are
similar to those experienced during the assault. It is also
common to find re-enactments or repetition of abusive
behavior, repetitive thoughts, intrusive thoughts or mem-
ories of the abuse. Thoughts revolving around the themes
of danger, humiliation, guilt and badness, and nightmares
are also common. Due to cognitive distortions there is
an overestimation of danger and adversity in the world,
underestimation of their own self-efficacy or self-worth.
There are also chronic self-perceptions of helplessness,
hopelessness, impaired trust and low self-esteem. It is also
common to find hyper-reactivity to real, potential or
imagined threats. Emotional distress presents with depres-
sion, anxiety, sexual problems and anger. It is also asso-
ciated with behavioral problems in children, such as
aggression, bullying, attacking or molesting other chil-
dren. Individuals develop an impaired sense of self and an
inability to soothe or comfort themselves whenever facing
adversity. This explains the overreaction to stress, the
separation anxiety, the difficulties understanding others
as independent and separate from them, and therefore
results in an inability to define appropriate boundaries
when interacting with others. Those features can also result
in increased suggestibility, inadequate self-protectiveness
and greater likelihood of being victimized or exploited by
others. Children use avoidance in order to protect them-
selves from painful memories of abuse. In addition,
victims of abuse usually use dysfunctional behaviors as
tension-reducing activities. These activities may help
transiently to reduce the anxiety but can result in increased
psychopathology later. Some of the avoidant behaviors
include dissociation, substance abuse and suicidal
attempts. Dissociation is a disruption in the usually inte-
grated functions of consciousness, memory, identity and
perception of the environment. This disruption seems to
serve the purpose of reducing psychological distress and
can present as depersonalization, excessive day dreaming,
alterations in bodily perception, emotional numbing,
amnesia, and multiple personality disorder. Substance
380 Family law and domestic relations
abuse can be used to numb painful internal states. Suicide
attempts can also be interpreted as avoidant behavior.
Tension-reducing activities include compulsive and indis-
criminate sexual activity, bingeing, and self-mutilation.
The difficulties in interpersonal relationships due to
decreased social competence and the difficulties managing
fear, anger, aggression, and sexual arousal can both result
in decreased ability to develop intimate relationships.
Munchausen syndrome by proxy
The usual physical findings include the presence of multi-
systemic illnesses of varying course and symptomatology.
The most frequent symptoms are bleeding (from differ-
ent sites), seizures, apnea, diarrhea, vomiting, and fever.
The usual psychiatric/behavioral findings include col-
lusion of children with their mothers in the fabrication of
the symptoms, or passively tolerating medical procedures.
Mothers who perpetrate this type of abuse usually have
some experience with the medical field, are extremely
attentive, and spend long periods of time in the hospital
but appear less worried about their child’s health than the
medical staff. In addition, it is common that the symptoms
take place always in the mother’s presence and are non-
responsive to treatment. Infants and toddlers can present
feeding disorders, while pre-schoolers can present with-
drawn, hyperactive or oppositional behaviors (Forsyth
1996).
LONG-TERM CONSEQUENCES OF ABUSE
Despite the fact that adolescents cannot be diagnosed,
as per DSM-IV, with a personality disorder, the psycho-
logical and behavioral functioning of adolescents with
psychiatric disorders and history of abuse resembles that
of patients who suffer from borderline personality dis-
order (Grilo et al. 1999). In addition, persons with docu-
mented childhood abuse or neglect were more than four
times as likely as those who were not abused or neg-
lected, to be diagnosed with personality disorders during
early adulthood. Of the twelve categories of DSM-IV per-
sonality disorder symptoms, ten were associated with
childhood abuse or neglect (Johnson et al. 1999).
BIOLOGICAL CORRELATES OF ABUSE
Despite the definitional issues that make this type of
study difficult, more literature is starting to point at bio-
logical correlates in children who have history of abuse.
Studies of cerebral blood flow show that the recollection of
traumatic events was accompanied by increases in regional
blood flow in the anterior paralimbic regions. In addition,
those with history of trauma and symptoms of PTSD
also show increases in blood flow in the orbitofrontal
cortex and anterior temporal pole (Shin et al. 1999).
In addition, in children who have been abused and are
depressed, there seems to be a dysregulation of the sero-
toninergic system evidenced by increases in the secretion
of prolactin following the injection of L-5-HTP
(Kaufman et al. 1998). This serotoninergic dysregulation
could be the cause of many of the symptoms previously
described.
THEORIES EXPLAINING ABUSE AND
FAMILIES AT RISK
Various models have been put forth to explain why abuse
occurs. Some have proposed an ecological model, whereby
typically non-abusive parents could behave abusively
under certain circumstances. Others propose that it is
necessary to look into parental attitudes, history, person-
ality characteristics and ideology (Jackson et al. 1999).
Tomkiewicz states that in order to perpetrate abuse, the
abuser has to believe that the victim is subhuman and
that society or even the victim will eventually benefit
from the abuse. This model is supported by studies that
have found cognitive distortions in perpetrators of abuse
(Tomkiewicz 1998). One of the models explaining the
behaviors of the perpetrators is that of the generational
transmission of abuse: between 47 and 70 per cent of
mothers with a history of severe physical abuse currently
abuse their children. The sexual abuse model is some-
what different, because in the majority of those cases the
perpetrator is a male, but 24–42 per cent of mothers who
have been sexually abused, end up in relationships where
the male partner of the mother abuses her children.
Green described that the factors contributing to gener-
ational transmission of maltreatment are trauma-induced
repetitions, pathological object relationships, impaired
mother–child attachments, the use of dissociation and
the failure to verbalize one’s own maltreatment (Green
1998). The trauma-induced repetitions explain the reen-
actment of the perpetrator’s own victimization. One
potential explanation for this phenomenon is that the
abuse results in stress, which in turn results in increased
secretion of glucocorticoids, which in turn damage the
hippocampal neurons,finally impairing memory processes.
This leads to fragmented memories that are not inte-
grated and are therefore prone to be repeated and reen-
acted. The pathological object relationships result from
the incorporation of a working model of the aggressor–
victim dyad. Children may then identify with the aggres-
sor, or with the victim, displaying sadistic behaviors that
serve as a defense against helplessness or masochistic
behaviors that elicit more victimization. Some children
identify with the non-protective parent and go on to
allow their children to be a victim of sexual predators.
The impaired mother–child attachments are due to the
mothers’ history of poor early relationships with their
own caretakers. The use of dissociation obliterates the
memory link between the parents’ own childhood abuse
 Forensic evaluation of physically and sexually abused children 381
and the maltreatment they inflict upon their children.
Also the use of other defenses such as avoidance, distanc-
ing, hypervigilance, denial, projection and splitting pre-
vent the mother and child victims from integrating their
painful memories and affects, making them more likely
to reenact the abuse. In addition mothers who reenact
abuse, have been unable to talk about their experience.
Crittenden (1996) described the characteristics of each
family according to the type of abuse. He stated that
families with physical abuse are usually low-income, have
young parents with little education, and present larger
than usual number of closely spaced children. They tend
to have unstable relationships with mothers being unmar-
ried, divorced or separated. They depend on public welfare
and most parents were abused or neglected. Abusive fam-
ilies interact less frequently and are more negative, often
presenting covered hostility. Members of these families
may respond more negatively to aversive communications
and attribute negative intent to positive communications.
The families with neglect are usually poor, large and struc-
tured around the mother and her children. There is little
interaction among family members. Children perceive
their parents as unavailable, and themselves as powerless.
Children are often listless and apathetic and suffer from
developmental delays. The families are chaotic with little
structure, few rules and occasional outbursts of anger and
frustration. Families with sexual abuse result sometimes
from blurred interpersonal boundaries, high levels of anx-
iety, and fear of abandonment. In some cases, sexual abuse
is a way of soothing anxiety rather than a pure sexual dys-
function. In other cases it is the result of a sexually deviant
form of arousal or a cognitive distortion. In many cases,
after admitting to the abuse, the perpetrators claim that
the child enjoyed it and invited them.
Child physical abuse has been correlated with substance
abuse, low self-esteem, poor impulse control, antisocial
behavior, and poor knowledge of child development in
the parent. Families usually suffer from social isolation
and dissatisfaction with social supports, present low use
of community resources, and limited involvement in com-
munity activities. In addition, there is usually a family his-
tory of marital problems and spouse abuse. The children
in these families are young and present delayed develop-
ment, aggression, non-compliance and difficult tempera-
ment (Swenson and Spratt 1999). In general, authors have
agreed that child abuse is widespread and crosses class bar-
riers. However, others state that the evidence suggests that
the prevalence among the poor is higher and that classless-
ness is just a myth (Drake and Zuravin 1998).
CHARACTERISTICS AND TREATMENT
OF SEXUAL OFFENDERS
There is no defined offender psychological, class, ethnic or
racial profile. There are those who have a normal sexual
history but act impulsively or opportunistically to perform
a single deviant act, and those who present a consistent
deviant sexual interest. Many or most offenders have more
than one category of deviant sexual behavior. In addition,
a significant percentage of child abusers start to abuse as
juveniles. It is also important to recognize that most of
what is known about offenders is based on incarcerated
offenders but this knowledge may not apply to undisclosed
or unreported abuse.
A study of a large sample of interviewed non-
incarcerated sexual offenders showed that offenders can
engage in both incestuous and non-incestuous molest-
ation and may target children of both genders (Abel et al.
1988). Another study reported that 66 per cent of a sam-
ple of male juvenile sex offenders had been victimized
either physically (19 per cent) or sexually (49 per cent)
(Johnson and Shrier 1985). Juveniles may offend against
their peers, against younger children, or against adults.
Most of them are male and in the most common scenario
they chose as a victim a seven to eight-year-old whom
they knew. Usually, these offenders also present interper-
sonal deficits, learning problems, and poor impulse con-
trol. They usually come from unstable homes and have
witnessed sexual activity and/or family violence.
Finkelhor (1984) stated that four factors are necessary
in order to reach the point of child molestation: (i) the
adult needs to find emotional satisfaction in relating to
children; (ii) the adult needs to experience a physical reac-
tion to the presence of children; (iii) the adult is blocked
in his ability to get his needs met by an adult; and (iv)
the individual may have poor impulse control or may use
substances that lower impulse control.
In terms of treatment for offenders, most studies pre-
sent methodological problems. However, there has been
an increase in the number of facilities that provide treat-
ment for sexual offenders, some in residential setting but
most in outpatient community-based settings. Treatment
goals include lack of recidivism, decreasing deviant sexual
arousal, increasing non-deviant sexual arousal, improving
interpersonal skills, anger management, stress control and
eliminating substance abuse (Becker 1994). In order to be
considered amenable to treatment, the offender must rec-
ognize the offense, must consider the offending as a prob-
lem behavior, and must be willing to participate fully in
treatment. The different approaches to treatment include
biological therapies, family therapy, cognitive-behavioral
therapy and relapse prevention. Medications include
antiandrogenic medication to decrease sexual drive and/or
antidepressants to increase impulse control. Family ther-
apy is indicated for those cases where there has been incest
or intra-familial abuse. Cognitive-behavioral therapies
aim at teaching individuals to recognize and change their
inaccurate beliefs and to increase impulse control. Relapse
prevention aims at identifying the molester’s cognitive and
behavioral patterns that are precursors to the sexual abuse.
The recidivism rates reported by different studies vary.
It is necessary to develop controlled treatment outcome
studies with long-term follow-up.
382 Family law and domestic relations
REPORTING ISSUES IN CHILD ABUSE
California enacted the nation’s first child abuse reporting
law in 1963. By 1967, every state had followed suit (Pence
and Wilson 1994). All states accept calls from anyone
with information about suspected child abuse. Many
states place a special reporting requirement on selected
professionals such as doctors, nurses, teachers and law
enforcement agencies. Some of the states have criminal
penalty for those mandated professionals who fail to do
so (usually a misdemeanor). The report usually triggers
an investigation that may result in different outcomes.
Potential outcomes include keeping the child at home
and closing the case, keeping the child at home but man-
dating treatment for the family and instituting a moni-
toring system, removing the child from the house, and at
times, pressing criminal charges against the perpetrators.
Court proceedings usually result in mandated physical
and psychiatric evaluations. Some hospitals or agencies
have Child Advocacy Centers where multidisciplinary
evaluations are performed (social worker, pediatrician,
psychologist or psychiatrist, police officer and district
attorney) so that multiple interviewing does not become
traumatic per se.
Cases can be substantiated (cases that are opened for
service after the investigation) or unsubstantiated (cases
that are closed). The reasons to fail to substantiate are often
insufficient information, inappropriate referral, absence
of current risk and false allegations (Zellman and Faller
1996).
INVESTIGATION AND PROSECUTION
OF CHILD ABUSE
Only 40 per cent of all allegations are ultimately substan-
tiated through investigation. Substantiation is determined
by evidentiary standards. Some states require ‘some cred-
ible evidence,’ some require ‘credible evidence,’ some
require ‘preponderance of evidence,’ and some use the
term ‘material and substantial evidence’ (Pence and
Wilson 1994). It is always easier to prosecute when there
is material evidence of the abuse. It is however important
to remember that a normal physical examination in a
child that has been sexually abused is not uncommon.
Reasons for lack of physical findings are delay in seeking
a medical examination, difficulties in finding semen or
evidence of ejaculate after 72 hours from the episode,
lack of ejaculation or physical damage to tissue, and elas-
ticity of the sphincters and hymen (Zellman and Faller
1996). After a preliminary investigation, if the report
appears to have basis, a hearing will be held. This kind of
case can be heard both in civil or criminal courts. The
civil court or family court attempts to protect the child
and to arrange the best living situation for him or her.
The criminal proceeding tries to determine whether the
accused is guilty and, if so, to punish him or her. Both
courts have different standard of proof (clear and con-
vincing versus beyond reasonable doubt, respectively)
(Nurcombe and Partlett 1994).
Child abuse is a crime that is difficult to prosecute
(Myers 1994) because in the majority of the cases the only
witness is the victim. However, before a child is permit-
ted to testify in court, the judge must be convinced that
the child is competent to do so. Testimonial competence
requires that the child be able to observe and remember
events, understand the difference between lie and truth,
and appreciate the need to tell the truth in court. How-
ever, competence is not the same as credibility, since a
competent and accurate witness may not be credible. In
addition, concerns about deliberate lying, coaching and
indoctrination, and flawed, distorted interviewing are
the most important issues facing professionals working
to protect children. To make matters more difficult, legal
protections in prosecution of criminal acts make testi-
mony more difficult since children are put in the position
of describing the abuse a few feet away from the alleged
perpetrator. Closing the courtroom is possible, but not
always done.
Usually after the initial report there is an investigation,
often as a joint effort by Child Protective Services and Law
Enforcement agencies. As stated above, the child is now
frequently taken to a Child Advocacy Center for a multi-
disciplinary evaluation. The next step is the decision
by the prosecutor whether to file formal criminal charges
or not. In many cases the strength of the evidence
depends on the child’s ability to testify. Pre-school chil-
dren are often seen as unreliable witnesses. On the other
hand, adolescents are often viewed as willing participants
in the abuse. Therefore, most successful prosecutions
involve children aged seven to twelve years. Charges are
also more likely when there is material evidence. Once
charges are filed, prosecutors engage in plea bargaining
with the defense attorneys. In many cases, the defendants
pleas guilty to a less serious offense than originally
charged. Most of the charges result in guilty pleas before
trial. In some jurisdictions the prosecutors divert selected
defendants away from prosecution into treatment.
Approximately only 10 per cent of cases are tried in
court. Conviction may result in prison or in probation
with mandate for treatment for sexual abuse. Certain
states now have sexual registration laws that maintain
local registries of all the sexual offenders in an area. Other
states have also passed laws allowing for involuntary inpa-
tient commitment of offenders who have finished their
prison sentences. Minors can be either victims or perpet-
rators. Minor perpetrators are usually under the jurisdic-
tion of Juvenile Courts. As in criminal litigation, most
cases do not proceed to trial but the minor remains under
the supervision of the court. Allegations of sexual abuse
can also occur in the context of custody and visitation
litigation. A number of these cases are fabricated to give
advantage to one parent in the litigation.
 Forensic evaluation of physically and sexually abused children 383
THE ROLE OF CHILD ADVOCACY CENTERS
These centers permit a multidisciplinary evaluation.
Health professionals, workers for child protective agencies
and law enforcement officers work together attempting
to maximize the amount of information and the quality
of the data and to minimize trauma. Usually, a trained
professional interviews the child while other professionals
watch from a one-way mirror. This type of team approach
helps to coordinate the different agencies involved, min-
imizes fragmentation and neutralizes ‘splitting.’ The final
outcome is the facilitation in accomplishing the necessary
goals, either the strengthening of the family, pursuing
termination of parental rights (Westman 1996) or crim-
inal prosecution.
PSYCHIATRIC EVALUATION OF THE
CHILD VICTIM
Studies indicate that an alarming number of child victims
do not reveal incidents of abuse. Significant reasons for
this reticence on the part of the victims are the profound
and lasting repercussions that often accompany disclosure
(Diaz and Manigat 1999). Although some families respond
appropriately to the disclosure of abuse, many do not.
As a result, victims face a risk of not being believed, losing
support from their own family, being re-victimized, being
displaced from their home, or a combination of those.
If displacement takes place, their future becomes less
certain, as they enter the foster-care system. On the other
hand, if the perpetrator is removed, they may fear his/her
return. If the perpetrator is the breadwinner of the
family, the removal places the family at risk of financial
hardship. There are also psychological repercussions that
increase the burden on the victims that disclose abuse.
For example, if they are female they are at risk of being
accused by the mother of having ‘seduced’ the perpetra-
tor or having willingly participated in the abuse.
The phenomenon of recanting previously disclosed
abuse may be due to all these factors, and therefore makes
the interview of the victim more complicated. In addition,
the recantation could truly indicate that the abuse did not
take place and that the original disclosure was due to other
motives, such as parental pressure from one of the spouses.
Therefore the interviewer should be careful and mindful
that the interview should not contaminate the evaluation
and should be performed with an open mind. Courts are
placing more importance to the quality of the interview
and the training of those who perform the interviews.
There are differences between a clinical versus a foren-
sic interview. Clinicians generally assume that their clients
are telling the truth. Moreover, because information col-
lected in a clinical setting is not intended specifically for
legal purposes, clinical interviewing is often aided by tech-
niques that lack scientific validation (e.g., free drawing) or
that require subjective interpretation. In contrast, the
forensic interview is characterized by skeptical neutrality
on the part of the interviewer, techniques that are
grounded in research on the development of memory
and language, concern about the possibility of inter-
viewer influence, and the collection of data that require
minimal interpretation (Poole and Lamb 1998).
In addition to these concerns about the differences
between forensic and clinical interviews, problems in
evaluating children include the issues of credibility, sug-
gestibility and accuracy in children. Accuracy refers to
the amount of correct versus incorrect information in
children’s answers. Suggestibility refers to errors that
arise when witnesses are exposed to information that is
false, or to social pressures that encourage particular
types of answers. Credibility is the believability that one
assigns to a witness’s testimony. A judgment about cred-
ibility is a subjective reality that is not necessarily based
on reliability or consistency but rather on its apparent
plausibility. Reports that are highly reliable may be judged
as not very credible. Research has shown that younger
children are often more vulnerable to suggestion than
older children, that children often resist suggestions about
significant events that involve their own bodies better
than they resist suggestions about other details or events
(although pre-schoolers can misreport inappropriate
touching). Misinformation is most likely to produce
erroneous responses to specific or misleading questions
and factors that impair memory (including delays between
events and presentation of misinformation) also increase
suggestibility (Bruck, Ceci, and Hembrook 1998).
It has also been studied that certain conditions can have
a damaging effect on the accuracy of children’s testimony.
Interviewers who have a bias and use an accusatory tone
tend to elicit more false information. On the other side,
non-suggestive techniques do not guarantee that children
will provide accurate narratives when they have been pre-
viously exposed to misinformation.
The research on suggestibility and results of evaluations
according to the type of questioning has led to considering
the need for developing interview protocols.
GUIDELINES FOR FORENSIC EVALUATIONS
OF ABUSED CHILDREN
Different organizations have published guidelines of the
forensic interview of children who may have been sexually
abused. The American Academy of Child and Adolescent
Psychiatry (Bernet et al. 1997) and other organizations
have published guidelines for such evaluations, and also
about the use of anatomical dolls. In general, the guidelines
require that the professional performing the evaluations is
a person in search for unbiased truth rather than a child
advocate or therapist. The American Psychological Asso-
ciation also published guidelines for psychological evalu-
ations in child protection matters (Board of Professional
384 Family law and domestic relations
Affairs, Committee on Professional Practice and Standards
1999). The American Academy of Child and Adolescent
Psychiatry recently published practice parameters for the
assessment of children and adolescents who are sexually
abusive of others (Shaw et al. 1999). All these guidelines
share some common recommendations that are summa-
rized below.
The interview setting
Usually, authors recommend that interviewers gather
information about the case before meeting with the child.
Information can be obtained from child protective agen-
cies, police and medical records and from adults involved
in the case. The information can also help in building
rapport during the interview. It is also helpful to gather
information about the quality and number of previous
interviews, and the training of prior interviewers. It is also
important to know the context and possible motivations
for false allegations. Ideally the room will have an adjacent
room with a one-way mirror and videotaping capabilities.
The rooms should be child-friendly. Most authors agree on
the need to interview children alone. If a companion is
authorized in the room it is better to delineate his/her role
prior to the interview and prevent the person from making
any statements. It is generally recommended to use one
interviewer, but if there are going to be more than one
interviewer it is necessary to appoint one in advance to do
most of the questioning and the other to take notes and to
suggest additional questions at the end of the interview.
Regarding the use of drawings and dolls, they can be
used in different ways. Drawings can be used to facilitate
rapport, as projective tests and to facilitate the description
of a certain event. Anatomically correct drawings are also
used to request for details in case of investigation of sexual
abuse. The use of drawings to facilitate rapport is a widely
used tool that allows children to perform an activity that is
familiar to them when being interviewed by a non-familiar
person. However, the question of whether drawings pro-
vide a significant yield for obtaining information about
family interactions and specific events is highly contro-
versial. The same applies to anatomically correct dolls.
Authors agree that anatomically correct drawings and dolls
should only be used when the child has already made a
disclosure, and for clarification purposes only. The use of
anatomically correct dolls is controversial because children
that do not have a history of abuse may show sexualized
behavior when presented with a sexually stimulating
object. To date there is no agreement about clear behav-
ioral markers for normal play and exploratory behavior
and abnormal sexualized behavior (Poole and Lamb
1998).
Interviewing techniques
Given the legal need for truth, the developmental limita-
tions of children in terms of memory, suggestibility and
credibility, the phenomenon of recantation and the ser-
ious implications in the lives of children after allegations
of abuse take place, there is a clear need for formal ways
of assessing these allegations. Different groups have pro-
posed different types of protocols to conduct these inter-
views. None of these interviews has yet been validated,
and there is no universal agreement about the superior-
ity of one model over the other. In general, it is accepted
that the protocol should aim at minimizing the probabil-
ity of retraumatization of the victim and at maximizing
the amount of information elicited. Some of the model
interviews proposed include the Cognitive interview,
the Step-Wise interview, and the NICHD protocol (Poole
and Lamb 1998). In addition, others have categorized
interviewing styles and questions based on the level of
coercion and suggestibility.
The cognitive interview was designed to improve the
quality of police interviews with adult eyewitness. The
structure of the interview consists of five stages including
introduction, open-ended narration, the probing stage
(during which the interviewer guides the witness to
exhaust the contents of memory), the review stage, and the
closing. This technique has been modified for the use with
children, but the studies on the use of this interviewing
technique are not conclusive. The Step-Wise interview was
developed by Yuille. The overall format involves rapport
building, requesting recall of two specific events, explaining
the need to tell the truth, introducing the topic of concern,
encouraging a free narrative, asking general questions,
asking specific questions, using interview aids (if neces-
sary and only after the child has disclosed an event), and
concluding the interview. In addition to the interview,
Yuille has developed a procedure to analyze the statements
elicited during the interview, as well as a validity checklist
that allows the interviewer to arrive at a conclusion regard-
ing the likelihood of abuse actually taking place. The state-
ment analysis takes into consideration factors such as
internal coherence, level of detail, contextual embedding,
peculiarities of the content, motivation related contents
and offense-specific elements. The validity checklist takes
into consideration the child’s language, knowledge, affect,
gestures, susceptibility to suggestion, drawings, and behav-
iors. It also takes into consideration the availability of other
evidence (Yuille 1987; Yuille 1991). The National Institute
of Child Health and Human Development developed a
similar interview protocol. As we can see, the protocols
have common features that emphasize the need for neu-
trality and the use of more open-ended questions at the
beginning, but with more closed-ended questions and use
of ancillary techniques at the end of the interview.
Faller (1998) has categorized the type of questions
generally used in assessing children in a continuum from
open-ended questions to closed-ended questions, with
open-ended questions being more reliable. Examples that
she has coined about the different types of questions are:
1 General question: Why did you come to see me?
 Forensic evaluation of physically and sexually abused children 385
2 Focused question about people: What kind of guy is
your dad?
3 Follow up question: What happened next?
4 Multiple choice question: Did it happen in the day-
time or the night-time?
5 Direct question: Did your daddy do something to your
pee pee?
6 Leading question: Your mom makes you suck her
breasts, doesn’t she?
7 Coercion: You cannot leave until you tell me what
happened.
The evaluator should make the best attempt to interview
the child and determine whether the allegation of abuse
is consistent with the available evidence, the statements
during the interview, and our knowledge about child
development and child normal behaviors. However, the
validation of an allegation of abuse may not be possible.
The forensic evaluator should remember that he or she
is neither the trier of fact nor an unquestioning advocate
for the child’s allegations, and should be aware of the
limitations of his/her own interview.
SPECIAL TOPICS: FALSE ALLEGATIONS,
PARENTAL ALIENATION SYNDROME
AND RECOVERED MEMORIES
There has been an increase in the number of allegations
of sexual abuse in the context of custody disputes. Even
though a majority of the allegations of abuse are still
true, the number of false allegations is rising. The problem
of this type of allegation is that most courts, when facing
such allegation, will prevent the alleged perpetrator from
seeing his/her child in order to protect the child. This
usually gives more time to the custodial parent for develop-
ing a stronger relationship with the child, distorting and
influencing later the outcome of the custody dispute. The
evaluator needs to be aware of this possible situation.
Evaluators tend to view abuse as more likely when there
are multiple prior reports of abuse rather than a situation
in which the allegation of abuse only takes place after the
beginning of a custody dispute. Gardner defined parental
alienation syndrome (PAS) in 1985 to describe a situ-
ation in which one parent attempts to alienate the child
from the other parent. The purpose is to force the other
parent out of the child’s life, and with time the child adopts
that negative view about his/her parent and rejects
him/her. Although not in the DSM-IV it is a useful con-
cept to consider in any evaluation. Since allegations of
sexual abuse may be the first step in a campaign of brain-
washing leading to the PAS, certain authors argue that in
those cases the custody of the child should be awarded to
the non-alienating parent. However, others argue that the
concept of PAS puts children in danger of being placed
under the care of truly abusing parents. There are no
specific tests, scales or validated protocols to avoid these
pitfalls while performing abuse evaluations. It is impera-
tive to be mindful of the whole picture and one’s own
biases (Gould 1998). PAS is less prevalent in children aged
nine years and older.
Child abuse treatment has led to the highly controver-
sial issue of treatment in adults who claim recovered
memories of child abuse. This has led to highly politicized
positions, since patients began to take their claim to courts
and other settings, with consequent disruption of families
and at times significant media involvement. A recovered
memory is the emergence of an apparent recollection of
childhood sexual abuse of which the individual had no
recent previous knowledge. A false memory is the recollec-
tion of an event which did not occur but which the indi-
vidual subsequently strongly believes. If the presence of a
false memory becomes the center of a person’s identity and
interpersonal relationships, the individual has developed a
condition called ‘false memory syndrome.’ The problem is
that memory is a reconstructive rather than a reproductive
process and is therefore vulnerable to suggestion (Brandon
et al. 1997). Because of the high potential for misuse, some
researchers recommend that forensic evaluators testifying
to these issues have extensive current scientific knowledge
on memory when discussing the false memory syndrome
(Freyd 1998). In addition, professional organizations should
consider the development of guidelines for the treatment
of adults who were abused or possibly abused as children.
The guidelines should include the obligation to practice
within an established code of ethics, develop special knowl-
edge and competence in the area, maintain awareness of
transference and counter-transference issues, adopt a stance
of supportive neutrality, not automatically assume sexual
abuse from a set of symptoms, be open to the possibility of
other childhood trauma besides sexual abuse, not recom-
mend family alienation on the basis of recovered memory,
contract for no unplanned/impulsive disclosures, con-
frontations or legal initiatives, not encourage or suggest
law suits, and encourage the use of forensic experts when
necessary (Courtois 1997).
TREATMENT ISSUES IN CHILD ABUSE
As discussed previously, children with a history of abuse
and neglect may present with a broad range of symptoms
and disorders. One of the problems that arise when trying
to evaluate the outcome of treatment in children who have
suffered from abuse is that the literature does not use
uniform terminology. Abuse is an experience, and not a
disorder or syndrome. It can lead to a disorder but it is
not in itself a disorder. Children can also be symptomatic
or asymptomatic. When symptomatic, the manifestations
can be diverse, but in asymptomatic children one issue is
whether there are any ‘sleeper effects’ (symptoms that sur-
face years later). Reviews of the literature agree on the fact
that certain symptoms are more difficult to treat than
386 Family law and domestic relations
others (sexualized and aggressive behavior) and that long-
term follow-up is necessary (Finkelhor and Berliner 1995).
In order to design appropriate treatment programs to
address the consequences of sexual abuse, it would be
necessary to isolate the specific consequences of sexual
abuse and the interaction between sexual abuse and psy-
chopathology. However, abuse occurs many times in the
context of other stressors, such as poverty, drug abuse,
unemployment, lack of education and pre-existing psychi-
atric pathology. Sexual abuse may be just one of many
traumas to which a child is exposed. Assessing those fac-
tors and targeting deficiencies in the support network can
be extremely helpful in preventing further victimization,
and increasing resilience without necessarily addressing the
abuse per se. Once those factors are evaluated it is import-
ant to determine the characteristics of the abuse that are
usually associated with poor outcome, such as severity of
abuse, abuse involving force or violence, and a close and
emotional relationship with the offender. Afterwards it is
necessary to establish the age of onset of abuse and the
duration and type of abuse and also the post-abuse envir-
onment, since victims of abuse who encounter a support-
ive non-abusive network do much better. It is important to
address the psychiatric symptoms of the non-offending
parent, since the disclosure and the consequent disruption
caused by the disclosure of the abuse can lead to symp-
toms of anxiety and depression in the non-offending par-
ent, more often the mother, that can impair her ability to
be supportive. Sexual victimization increases the long-
term risk of developing widely different patterns of symp-
toms and behavioral patterns. Nevertheless, many children
are symptom-free at the time of the assessment. There is
no single or specific pattern of symptoms or problems that
arise from a common history of being sexually abused
children. Certain symptoms may develop only gradually
over time. Many victims develop somatic complaints
rather than classic psychiatric symptoms, such as depres-
sion, anxiety and hyperactivity. Unfortunately, most treat-
ment studies reported are naturalistic and lack appropriate
controls. Deblinger and her colleagues have reported pos-
itive findings with the use of cognitive-behavioral pro-
grams for the alleviation of symptoms of posttraumatic
stress disorder. Emerging data indicate that the involve-
ment of the non-offending parent may enhance the out-
come (Beutler, Williams, and Zetzer 1994). Other authors
also support the use of cognitive behavioral therapy for
sexually abused pre-schoolers rather than the use of non-
directive supportive psychotherapy (Cohen and Mannarino
1997). Others have reported on the use of medication
management of the symptoms of hyper-arousal, aggres-
sion and insomnia in PTSD with clonidine, a presynaptic
alpha 2-adrenergic agonist (Harmon and Riggs 1996).
A challenge for the incoming decade will be the implemen-
tation of well-designed treatment studies and the use of
ecological theories to understand, prevent and treat psy-
chopathology in the victims of maltreatment (Kaplan,
Pelcovitz, and Labruna 1999).
CONCLUSIONS
The legal structure and the administrative agencies in
charge of child services are reactive rather than proactive.
Therefore, despite the increasing knowledge about risk fac-
tors, there is a failure to provide power to providers and
agencies to refer children and families for intervention
prior to the detection of the abuse. The legal system focuses
on secondary prevention or preventing the recurrence of
the abuse that has already taken place.
This leads to an emphasis on the need for training
of medical and non-medical personnel in the detection of
warning signals for abuse. In addition, the phenomenon of
recanting, the serious consequences of disclosure of abuse
in a child’s life and the difficulties generated by multiple
interviewing are also reasons to emphasize the importance
of the training of personnel in charge of interviewing chil-
dren in cases of alleged abuse.
Another important issue is the fact that there are no
established clear guidelines in terms of what training is
necessary to perform a forensic evaluation in cases of
alleged abuse, and there is no consensus regarding the
superiority of any given interviewing protocol. Issues of
suggestibility, accuracy, credibility and re-victimization
need to be taken into account when designing any such
protocol. It is difficult to accept that even with the best,
most complete and well-executed evaluation, it may not be
possible to determine whether abuse has occurred, or not.
There is also a lack of clarity of when to treat and what
type of treatment to provide to children who have been
abused.
In summary, despite abundant literature being available
on child abuse, the basic questions about how to evaluate
allegations of abuse and how to treat abused children have
still not yet been definitively answered.
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and neglect matters. Child Psychiatry and Human
Development 26, 221–34.
Yuille, J.C. 1987. Statement validity analysis: a systematic
approach to the assessment of children’s allegations of
child sexual abuse. British Columbia Psychologist,
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Yuille, J.C. 1991. The Step-Wise Interview: A Protocol for
Interviewing Children. Unpublished manuscript,
University of British Columbia.
Zellman, G., Faller, K. 1996: Reporting of child
maltreatment. In Briere, J., Berliner, L., Bulkley, J.,
Reid, T. (eds), The APSAC Book on Child Maltreatment.
Thousand Oaks, London, New Delhi: Sage Publications,
359–81.

Juvenile delinquency
ROY H. LUBIT AND STEPHEN B. BILLICK
INTRODUCTION
Juvenile delinquency is a serious societal problem for
which the cost is enormous in terms of property damage
and victims’ lives lost; processing, trying and jailing
offenders; and for the delinquents’ lives and futures.1
This chapter will begin by defining juvenile delinquency.
It will discuss the magnitude of the problem, theories of
juvenile delinquency and the structure and origin of the
juvenile justice system. The chapter concludes with the
psychiatrist’s role in the system and treatment of juvenile
offenders.
A juvenile delinquent is someone under eighteen years
of age who has committed an act that would be a crime
if it had been committed by an adult. This is in contrast
to a juvenile who has committed a status offense. Status
offenses are crimes only because of the young age of
the individual. They would not be crimes for adults,
and include truancy, running away, incorrigibility, and
alcohol use.
In most states, juvenile courts have jurisdiction until
an individual reaches eighteen years of age. Children can,
however, be waived to adult courts under a variety of
circumstances.
RATES AND TRENDS
It is estimated that nearly 2.9 million juveniles were
arrested in 1997, accounting for 19 per cent of all arrests.
One-third of these were released immediately, leaving
1.8 million cases to be handled by the court (Stahl et al.
1999). Approximately 100 000 children were in residen-
tial facilities for juvenile delinquency (Moone 1997a;
Moone 1997b; Snyder and Sickmund 1999).
After rising sharply during the 1980s and early 1990s,
juvenile crime significantly decreased during the mid to
1
A good reference site is http://virlib.ncjrs.org/JuvenileJustice.asp
40
late 1990s. From 1984 until 1993, the number of juvenile
homicide offenders increased from 1266 to 4172, a rate
increase from 8.5 per 100 000 to 30.2 per 100 000 (FBI
1976–99). In 1999, the number of juvenile homicide
offenders had dropped to 1674, a rate of 10.7 per 100 000
(FBI 1976–99). This six-year decline in murders by
teenagers brought the 1999 homicide arrest rate for juven-
iles down 68 per cent from its 1993 peak to the lowest
level since 1966. The arrest rate of juveniles for four
major violent crimes – murder, rape, robbery, and aggra-
vated assault – declined 36 per cent from its 1994 peak to
1999, reaching the lowest point since 1988. Rape by juven-
iles was down 31 per cent from 1991 to 1999, to the low-
est level since 1980. Robbery was down 53 per cent from
1994, the lowest rate since 1980. Aggravated assault was
down 24 per cent from 1994, the lowest since 1989. The
juvenile arrest rate for weapons crimes fell by 39 per cent
from 1993, to its lowest since 1988. Non-violent crime
also decreased: burglary was down 60 per cent from
1980; larceny-theft was down 23 per cent from 1997; and
auto theft was down 52 per cent from 1990. Two juvenile
arrest rates that had climbed during most of the 1990s
began to drop more recently. Drug abuse violations fell
13 per cent, and curfew and loitering violations dropped
17 per cent from 1997 to 1999 (CNN 2000a).
A number of reasons have been suggested for the sig-
nificant decrease in juvenile crime. The demand for crack
cocaine abated during the mid-1990s, and the gangs that
peddled it either eliminated their competition or made
peace with it. The police targeted gang members, traced
illegal guns, and aggressively confiscated guns. A boom-
ing economy also helped, as this permitted cities to spend
greater funds on policing, crime prevention, incarcer-
ation, recreation and after-school programs (CNN 2000a).
An additional factor fostering the decrease in juvenile
crime may be the decline in the adolescent population.
There are other reasons for optimism. Most adolescents
arrested do not continue to offend into adulthood, and
most adolescents arrested for violent offenses do not
engage in further violence. Most adolescents diagnosed
390 Family law and domestic relations
with conduct disorder do not develop antisocial person-
ality disorder.
THEORIES AND ETIOLOGY
The etiology of juvenile delinquency is complex, with
biological, sociological and psychological factors each
playing a role. Attention deficit hyperactivity disorder
(ADHD) and learning disabilities (LD) are significant
predisposing factors. Between 20 and 60 per cent of
adolescents with ADHD engage in antisocial behavior
compared with a normal occurrence of 3–4 per cent
(Goldstein 1999). In addition, one study showed that
35–65 per cent of juvenile delinquents have a learning
disability (Ingalls and Goldstein 1999). The connection
between learning disabilities, ADHD and juvenile delin-
quency are multi-factorial. One factor is impulsivity and
poor judgment resulting directly from the disorders. This
not only predisposes children into committing offenses,
but makes them more susceptible to being caught than
peers without these difficulties. Another factor predis-
posing to delinquent behavior is the poor self-esteem
and stress secondary to the disorders that predispose to
criminal activity. Moreover, the difficulties of parenting
a child with ADHD contribute to parental stress and often
to suboptimal parenting behavior.
A variety of sociological theories have been posited
for the origin of juvenile delinquency. Robert Merton
built on Durkheim’s concept of ‘anomie’ and argued that
strain arises when an individual’s goals go beyond the
institutional means available to the individual for attain-
ing them (Merton 1938). In society, the mass media often
promote goals for material wealth, but for children in
poor communities, poor schools and poor job availabil-
ity make it very difficult to achieve the goals fostered
by mass media. The emotional distress caused by the
mismatch tends to lead adolescents either to ‘retreat’ into
drug abuse or to ‘innovate’ and go into crime. Thrasher
wrote about the importance of peer behavior, arguing
that playgroups turn into gangs as they come into con-
flict with each other. Gangs lead adolescents into crime
unless there are alternative activities to direct their ener-
gies toward. He provided a fascinating story of a gang
terrorizing a business until it became involved in scout-
ing, and then began to protect it (Thrasher 1936). Edwin
Sutherland argues that delinquent behavior is learned,
primarily within intimate personal groups. The individ-
ual who goes into crime learns not only criminal tech-
niques but also that criminal behavior is acceptable. The
family and other close relationships are key to this learn-
ing. A higher frequency of association with criminals
increases the likelihood that one will engage in criminal
activities oneself (Sutherland 1956). George Mead noted
the importance of explaining not only why many people
become juvenile delinquents, but also why others who
are exposed to the same factors do not. He argued that
what role the juvenile decides to accept depends upon
how it fits with his self-concept (Mead 1918). Albert
Cohen, echoing some of the ideas of Merton, wrote that
adolescents who are unable to compete in middle-class
society reject its standards; moreover, they find identity
validation through gang membership (Cohen 1955).
Contributing psychological factors arise from a com-
bination of biological predisposition and the sociological
environment to which the individual is exposed. From a
classical psychoanalytic point of view, one can note that
there are problems with superego development in those
who turn to delinquent behavior. Erik Erikson asserted
that failure to achieve self-identity played a role (Erikson
1968). Learning theory holds that family role models,
and family reaction to the child’s actions, are key to his
or her avoiding versus engaging in delinquent activities
(Bandura and Walters 1963). McCord, McCord, and Zola
(1969) argued that both lax and erratic discipline predis-
poses to delinquency, whilst Gottfredson and Hirschi
(1990) argued that parental attachment and supervision
are necessary for an individual to learn self-control. With-
out self-control, people dislike environments requiring
discipline and therefore turn to the streets (Gottfredson
and Hirschi 1990). Reiner and Kaufman (1959) suggested
that parents with antisocial personality disorders some-
times act out their own unconscious wishes through their
children.
Juvenile delinquency is a symptom that can arise from
a variety of factors including biological, sociological and
family ones. It is a common endpoint for a variety of psy-
chological issues. Understanding the etiology is helpful,
because the prevention, treatment and prognosis will
vary significantly depending upon the etiology.
ORIGINS OF JUVENILE JUSTICE SYSTEM
Historically, juveniles were adjudicated by the adult just-
ice system with the same rules as adults. In 1899, the first
juvenile justice system was created in Illinois. Other
states followed suit, with all but three states having juven-
ile courts in 1920. Two primary factors drove the change:
(i) children were increasingly seen as different from
adults; and (ii) juries were letting children go free after
committing crimes rather than put them behind bars
with adults. As a result of the work of Rousseau and
Pestalozzi in Europe and John Dewey in the US, children
were increasingly seen not simply as little adults, but as
psychologically different. As a result, the English com-
mon law concept of parens patriae became applicable to
juveniles in legal difficulties. The state had a responsibil-
ity to act in a parental role to further the well-being and
development of minors in trouble. Juveniles were seen as
malleable, in need of treatment not punishment, and not
fully accountable for their behavior.

The juvenile court emphasized guidance, protection
and rehabilitation instead of punishment. The child
guidance clinic movement arose, and many child psych-
iatry clinics were established to help meet the needs of
the new juvenile justice courts. A new vocabulary was
used, i.e., ‘state in the interests of child.’ Children were no
longer housed along with adults, and children aged under
twelve years could no longer be committed to a jail or to
a police station.
Because the juvenile judicial proceedings were non-
adversarial, and the court was seen as acting in the juven-
ile’s interests, juveniles were not seen as needing due
process protections. Judges were given broad discretion.
The loss of due process protections, however, led to
serious problems.
CRITICAL LEGAL DECISIONS
Over time, concern grew about the result of lack of due
process. Increasing criticism arose in the 1950s, both of
excessive leniency and harshness.
Kent v. US (1966) was the first US Supreme Court
case concerning the juvenile court system. A sixteen-
year-old was accused of housebreaking, robbery and
rape, and his case was waived to adult court without due
process. He was convicted on six counts of housebreak-
ing and robbery, and received 30 to 90 years in prison.
On appeal, the US Supreme Court ruled that waiver was
a critical stage of proceedings requiring representation
by counsel, inspection of all records by the defense, and
a statement of reason for the court’s decision. The court
went on to say ‘We do hold that the leaving must hold
up to the essentials of due process and fair treatment.’
Moreover, ‘There may be grounds for concerns that the
children receive the worst of both worlds; he gets neither
the protection accorded adults, nor the solutions, care,
and regenerative treatment postulated for children.’
In re Gault (1967) concerned a fifteen-year-old who
was committed until age twenty-one to an industrial
school after being found delinquent of making a lewd
telephone call. He reportedly called his neighbor and
asked if she had ‘big bombers.’ The complainant called
the police to complain, but did not appear in court; more-
over, no other witnesses were sworn and no transcript
was made. The maximum sentence for an adult con-
victed for this crime would have been two months
in jail or a $50 fine. The US Supreme Court ruled that
Gault’s rights had been breached by ‘a kangaroo court.’
The court ruled that ‘Neither the Fourteenth Amendment
nor the Bill of Rights is for adults only.’ The court upheld
the rights of a juvenile to notice of charges, counsel,
confrontation and cross-examination of witnesses, and
privilege against self-incrimination. The Gault case
markedly strengthened safeguards in the juvenile court
when liberty is at risk.
Juvenile delinquency 391
Subsequent court cases served to further define the
nature of the juvenile court. As a result of In re Winship
(1970), ‘beyond a reasonable doubt,’ rather than the civil
court’s ‘preponderance of the evidence,’ became the stan-
dard of proof in delinquency proceedings. The parens
patriae model continues, however, albeit in a weakened
form. Specifically, trial by jury was deemed not to be neces-
sary for children as a result of McKeiver v. Pennsylvania
(1971). Moreover, the court held in Schall v. Martin (1984)
that juveniles could be held without bail for the protec-
tion of themselves and society. The logic behind these
decisions limiting children’s rights was that children are
not free and are always in the custody of their parents,
the state, or an appointed guardian.
During the 1990s there has been a move toward a more
punitive model, and it is now easier to waive juveniles to
adult court. In some states there is automatic transfer for
homicide. Moreover, although Thompson v. Oklahoma
(1988) held that the 8th and 14th Amendments pro-
hibited execution for first-degree murder for defendants
aged fifteen years and under, Stanford v. Kentucky (1989)
and Wilkins v. Missouri (1989) held that capital punish-
ment of sixteen-year-olds did not violate the constitu-
tion. Between 1973 and 2000, seventeen men were executed
for crimes committed as juveniles, and 74 offenders were
on death row for crimes committed before the age of
eighteen years. Twenty-three of the 38 states that have the
death penalty permit execution for youthful offenders,
but only seven have actually carried out such executions.
Only six other nations executed individuals for crimes
as minors during the 1990s (CCN 2000b). The US and
Somalia are the only UN members who have not ratified
the UN’s Convention on the Rights of the Child which
forbids execution or life imprisonment without parole
for offenses committed as minors.
PROCEDURES IN JUVENILE COURT
Unlike adult court, juvenile court has intake, adjudica-
tion and disposition rather than pretrial, trial and sen-
tencing. The term ‘adjudicated delinquent’ is used, rather
than guilty. At intake, various things can happen including:
dismissal; admonishment and dismissal; informal super-
vision by probation staff; referral to a community agency
for mental health services; or continuation in juvenile
court. If a juvenile confesses to an act, and it did not
involve violence, he or she may be diverted from the
court to seek counseling and make restitution. Juvenile
court is closed to spectators, and records are not public.
Trial is solely before a judge, rather than a jury. If at the
adjudication hearing there is a finding of delinquency,
a probation officer investigates the juvenile’s environ-
ment (school behavior, family support, circumstances of
the behavior, parents’ ability to provide supervision and
guidance) and presents a report to help the judge in
determining disposition.
392 Family law and domestic relations
WAIVER
A crucial issue concerning minors is whether they will be
tried in a juvenile court or an adult court. Waiver depends
upon the seriousness of the crime and the perceived
rehabilitatability of the juvenile. Adult courts, in which
juveniles are often first time offenders, sometimes treat
them more leniently than juvenile courts where they may
be recidivists.
There are three types of waivers. The most common
is judicial waiver, in which a hearing is held and the
juvenile court judge decides whether the adolescent will
be dealt with in an adult or juvenile court. In some states,
both adult and juvenile courts have jurisdiction for certain
crimes committed by juveniles of a given age. As a result,
the prosecutor has the discretion to select whether trial
will occur in juvenile or adult court. Statutory exclusion –
also known as legislative waiver – entails a mandatory
waiver for certain crimes committed at certain ages.
Half of the states have no minimum age for waiver,
but most that do have a minimum age use fifteen years. In
the federal system the minimum age for waiver is fifteen
years unless a firearm was used in a violent offense, in
which case it is thirteen years.
Crucial issues concerning waivers include consistency/
fairness of waivers, their deterrent effect, and their effect
upon recidivism. A study by Bishop et al. (1966) matched
2738 juveniles prosecuted as adults with an equal num-
ber who stayed in the juvenile justice system. They were
matched for age, race, gender, current charges, and past
criminal record. The study found that within two years of
release, 30 per cent of those prosecuted by adult courts
were rearrested, while only 19 per cent of those handled
by juvenile courts were rearrested. In addition, those
handled by the adult system were arrested for more seri-
ous offenses.
PSYCHIATRIST’S ROLE IN JUVENILE
JUSTICE SYSTEM
When working in juvenile court, psychiatrists need to be
alert to several issues. All individuals who will be inter-
viewed need to be warned that the normal confidentiality
of a psychiatric examination will not apply. The psychia-
trist will rely more on collateral sources for background
data and verification of interview material than with
adults. The specific questions the court wants addressed
need to be clear. Denial of psychiatric symptoms by the
juvenile is a significant problem, but it can partially be
evaluated by the degree of denial of other aspects of his
or her history. Most youngsters facing delinquency, how-
ever, prefer to appear bad rather than psychiatrically ill.
The evaluation should include a description of antisocial
activities and a detailed mental status evaluation.
Waiver
A psychiatrist could be asked to advise on a potential
waiver to adult court. Crucial issues will include treat-
ability and dangerousness. The psychiatrist should address
whether the child is amenable to any type of psychiatric
intervention and, if so, then specific recommendation for
services should be made. Moreover, one should describe
the clinical indicators for good or poor prognosis in rela-
tionship to treatment and dangerousness.
Prediction of violence remains difficult. Factors
affecting the likelihood of future violence include the fre-
quency and seriousness of acts; greater variety of situation
and types of victims; and early onset of antisocial acts,
i.e., before the ages of ten to twelve years. Moreover, one
should address cognitive, affective, and situational factors
related to violence.
Understanding of Miranda Rights
A psychiatrist may be asked to evaluate if a juvenile who
waived his or her Miranda Rights understood what he or
she was doing, and therefore whether a confession that
was given will stand up in court. In People v. Lara (1967)
the court established the ‘totality of circumstances doc-
trine,’ saying that not only age but intelligence, education
and comprehension need to be considered when deciding
if a suspect competently received their Miranda Rights.
To evaluate the juvenile’s ability to understand their
Miranda Rights, one can present each of the four parts
of the Miranda Rights and ask the juvenile to say what it
means in his/her own words. The Rights are: the right
to remain silent; anything he/she says can be used against
him/her in a court of law; right to an attorney; if an
accused cannot afford an attorney, one will be appointed
by the court prior to any questioning if he/she so wishes.
The ability to understand one’s Miranda Rights is only
one step, and the psychiatrist must evaluate a number of
other issues (Ackerman 1999):
1 Did the juvenile understand he/she was waiving rights?
2 Did the juvenile have the capacity to understand the
options?
3 Was the juvenile, tricked, coerced, unable to say no to
authority, or overly suggestible?
4 What was the situation around the waiver? Were the
parents present? Was the juvenile hungry or ill or tired?
How were the rights presented? What was his or her
emotional state? Was he or she intoxicated?
Data gathering involves interviews of the juvenile and of
others. In the interview of the juvenile, one should ask
what is recalled of the interrogation, what choices did the
youth feel he or she had, and what did the youth think
would happen as a result of signing the waiver? Other
sources of data include interviews with the parents, review

of mental health records, school records, legal records, and
the police report.
Research has shown that children aged fourteen years
and under have much less ability to understand Miranda
Rights than older children. Moreover, fifteen- and sixteen-
year-olds with IQs below 80 often have impaired under-
standing of their Miranda Rights. Research showed that
many understood ‘the right to remain silent’ to mean that
‘they should remain silent until they were told to talk’
(Grisso 2000).
Competency to stand trial
In evaluations for competency to stand trial, Dusky v. US
(1960) is generally the standard, as it is with adult defen-
dants. The individual needs to be able to work with a
lawyer, and to have a rational and factual understanding
of the proceedings.
In carrying out evaluations, one should focus on:
present ability, and not past ability; capacity not willing-
ness; cognitive functioning not mental illness; and rea-
sonable understanding, not complete comprehension.
Moreover, the issue is not pre-existing knowledge, but
ability to learn about court process. The juvenile needs
to know what the charges are against him or her, be able
to describe them in his/her own words, and to know the
potential penalties. In terms of court procedures, he or
she needs to know the roles of the major court officers
(defense attorney, prosecutor, judge and jury), under-
stand the need to behave appropriately in court, under-
stand the meaning of guilty and not guilty, be able to
testify on his/her behalf, and be able to work with his/her
attorney to challenge witnesses that he/she believes are
lying. In terms of working with his or her attorney,
he/she needs to be able to trust that the attorney is trying
to act in his/her best interests, to describe the circum-
stances leading to the arrest, to ask his/her attorney
questions about things he/she does not understand, to
understand the basics of plea bargaining and wish to be
acquitted or obtain the lightest penalty possible.
Potential questions that one should ask in order to
obtain the relevant information include (Ackerman 1999):
1 What do various people do (judge, lawyer, prosecu-
tor, you)?
2 Do you think your attorney is trying to help you?
3 How do you think you will plead?
4 What other choices do you have?
5 Would it matter if there were no witnesses?
6 What will happen if you are found guilty?
7 What does it mean to be placed on probation?
8 Tell me about your last meeting with your attorney.
9 Talk about any prior experiences in court.
Of note, one could be competent to stand trial in a
juvenile court, but not be able to stand trial in an adult
court, which has a more adversarial process.
Juvenile delinquency 393
DISPOSITION AND TREATMENT
The treatment of delinquent youths is a major challenge
for our profession. The results of treatment programs have
generally been poor, as treatment efforts are countered
by a strong peer culture that serves to maintain the delin-
quent behavior. Even programs, which attain some short-
term success, have generally failed to document long-term
success in reducing recidivism.
In designing treatment for juvenile delinquents one
cannot use a ‘one type fits all’ approach. It is crucial to
match juveniles not only to an appropriate program but
also to tailor the treatment modalities used in the pro-
gram to the individual’s needs and environment. Specific
behavioral goals should be sought, rather than vague
objectives and unstructured discussion. One should help
the juvenile to develop skills to deal with peer pressure
and help parents to develop limit-setting capabilities
(Gordon and Arbuthnot 1987; Trojanowicz, Marsh, and
Schram 2001).
Psychodynamic psychotherapy is only helpful when
reserved for carefully selected juveniles. In using this
approach, one hopes to achieve beneficial changes in
attitudes. The traditional stance of providing a neutral
stance and open-ended discussions can be helpful for
individuals who internalize their issues, are inhibited and
have problems with anxiety and guilt. However, those
who externalize their problems and have low levels of
inhibitions against impulses are not likely to benefit
from resolution of internal unconscious conflicts. On the
other hand, the opportunity to internalize the image of a
stable, warm adult can be beneficial. This is complicated,
however, by the delinquent’s relative lack of ability to
trust, and therefore inability to form a bond with the
adult figure. The adult is likely to represent an alien
middle-class world into which the juvenile will probably
never be able to find access and with which he or she may
be at war. Moreover, the pull of the gang is likely to be
stronger than that of the therapist. In addition, lack of
support by the family for the therapy may further ham-
per it. Nevertheless, therapy can be useful if the therapist
can create an atmosphere in which the juvenile can
develop trust. The therapist and juvenile can examine
destructive patterns of behavior and incorrect percep-
tions of the world, and explore more adaptive modes of
living and having one’s needs met (Aichhorn 1964;
Holmes 1964; Trojanowicz, Marsh, and Schram 2001).
Reality therapy focuses on the present rather than the
past. It states that irresponsible behavior, rather than the
past, is the major obstacle to the juvenile feeling posi-
tively about him/herself. The therapist provides expect-
ations and defines the limits of acceptable behavior.
The therapist expects the juvenile to behave appropri-
ately, and provides considerable support for doing
so, but does not reject the juvenile for falling down
(Glasser 1965).
394 Family law and domestic relations
Cognitive therapy focuses on confronting destructive
behavior patterns and the irrational beliefs that may under-
lie them. The therapist can also help the individual to
develop decision-making skills, social skills, and the abil-
ity to understand others. Juveniles learn to think through
the consequences of their action, before they act, and to
take responsibility for them. They learn non-aggressive
solutions to problems and how others’ behavior is often a
reaction to their behavior. Role playing to practice skills
may be helpful. This approach has shown considerable
promise (Ross and Fabiano 1985; Kazdin et al. 1987;
Hains and Hains 1988; Guera and Slaby 1990; Lester and
Van Voorhis 1997; Trojanowicz, Marsh, and Schram 2001).
Vocational counseling can be helpful in changing a
juvenile’s attitudes toward work and helping him or her
find work at which he/she can succeed and from which
he/she will gain some satisfaction. It is very important
that the job opportunities selected should be ones with
opportunities for advancement. The juvenile should
also seek his General Equivalency Diploma (GED).
Status and opportunities for advancement are very
important in decreasing recidivism. The juvenile is also
likely to benefit from assistance in adjusting to the work
world (Trojanowicz, Marsh, and Schram 2001).
Group counseling, sharing of concerns, problems and
experiences, can be an important addition to individual
therapy. Special attention should be given to juveniles
who are passive or dependent so that the group does not
make them scapegoats. Role-playing can be a useful way
to practice skills and to see what it is like to be in some-
one else’s shoes.
Family therapy can be helpful if it focuses on improv-
ing communication, development of parental decision-
making skills, and teaching parents discipline skills
(Romig 1978).
Project ‘Back on Track’ is an after-school diversion
program that uses a multi-modal approach for the treat-
ment of early-career juvenile offenders. The program
consists of participation in a four-week cycle of treatment
consisting of group and family therapies, parent groups,
educational sessions, community service projects, and
empathy-building exercises. These youths attend the pro-
gram for 2 hours per day, four days a week, allowing for
32 hours of contact with the program per cycle. Parents
attend the program for 15 hours per cycle. Most youths
were referred for violent offenses and met criteria for
conduct disorder. The results have been promising, with
those who completed the program being significantly
less likely than matched controls to have committed sub-
sequent criminal offenses after twelve months. In addition,
they had significantly fewer subsequent criminal charges
at nine- and twelve-month follow-up intervals than the
control group (Myers et al. 2000).
Some have argued that no treatment works, one
problem having been a failure to separate adolescents
into groups. Finding the crucial variables affecting who is
amenable to treatment, and what treatment is most likely
to be helpful to a given individual is needed.
In general, community-based treatment is better than
institutionalization. Structured training is helpful; indeed,
the most promising psychosocial treatments for youths
with conduct problems include problem-solving skills
training, parent management training, functional fam-
ily therapy, and multi-systemic therapy. Anger replace-
ment training and community-based interventions are
examples of other approaches that have demonstrated
merit. There is a modest positive effect based on treatment
intensity and duration. Finally, certainty of punishment
is more important than severity of punishment.
SUMMARY
There are many differences between the field of juvenile
delinquency and that of adult crime. The juvenile court
system, based in the concept of parens patriae, is very dif-
ferent from that of the adult system. There are many roles
for the psychiatrist in juvenile delinquency, including
evaluating juveniles’ ability to stand trial, whether their
Miranda Rights were observed, and whether they are
amenable to treatment. There is a need for psychiatrists
to provide clinical treatment for juvenile delinquents.
Finally, research must be carried out to establish the best
treatment and corrective methods for the different
causes of juvenile delinquency.
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Bandura, A., Walters, R.H. 1963: Social Learning and
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Bishop, D.M., Frazier, C.E., Lanza-Kaduce, L., Winner, L.
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CNN. 2000a: 17 Americans executed for crimes committed
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Posttraumatic stress disorder in children and
adolescents: clinical and legal issues
JAMES E. ROSENBERG AND SPENCER ETH
Alan A. Stone, M.D., wrote that, ‘No diagnosis in the his-
tory of American psychiatry has had a more dramatic
and pervasive impact on law and social justice than post-
traumatic stress disorder … ’ (Stone 1993). His thoughts
are particularly poignant as we survey the changing land-
scape of child and adolescent forensic psychiatry. The
practitioner must be attuned to the strengths and limita-
tions of his or her own qualifications, ethical obligations,
and the current research and controversies that uniquely
define the field. Cook (1996) summarizes the issues
thus: ‘as new visitors (to the legal system), they must be
alerted to old tricks familiar to adult forensic psych-
iatrists. The art and science of forensic psychiatry is both
slowly evolving and rapidly changing. The practitioner
must not only be clinically competent, but be wary of the
multiple agendas of society, the law, and adversarial
lawyers.’
The fundamental approach or focus of the child and
adolescent forensic psychiatrist differs from his or her
adult counterpart. According to Ash and Derdeyn
(1997), ‘The forensic evaluation of an adult generally
emphasizes providing data for the court, without any
duty of care toward the person evaluated. For the three
forensic issues that child psychiatrists most commonly
face – child custody in divorce, disposition in abuse/neglect
proceedings, and assessment of delinquents for juvenile
courts – what is best for the child remains a central
concern … quasi-therapeutic orientation.’ As reviewed
in this chapter, the skill and knowledge base required to
evaluate posttraumatic stress disorder (PTSD) in chil-
dren and adolescents is highly specialized, and cannot
be provided by analogy to adults. There is furthermore
an increasing emphasis on the use of quantitative data,
properly designed research studies, and standardized
evaluation techniques in providing authoritative rather
than impressionistic expert opinions in the courtroom
(Ash and Derdeyn 1997).
41
PTSD in children has been an area of psychiatric focus
since only the 1970s. Newman’s paper on the Buffalo Creek
disaster (1976), and in particular, Terr’s detailed study
of the 1976 Chowchilla kidnapping incident (1979) were
landmark articles, and set the stage for a new era of
inquiry into the psychiatric sequela of emotional trauma
from infancy through adolescence. Prior to the Vietnam
War, the assessment and formulation of psychic trauma
in adults occurred largely within a Freudian framework
(Boehnlein 1989). The American Psychiatric Association’s
original Diagnostic and Statistical Manual (DSM) in 1952
referred to ‘gross stress reaction,’ while the DSM-II in
1968 employed ‘transient situational disturbance’ (Brett,
Spitzer, and Williams 1988). The term ‘posttraumatic
stress disorder’ was formally introduced into the psychi-
atric nomenclature with the publication of DSM-III in
1980. The DSM-III significantly differed from earlier edi-
tions by specifying a chronic PTSD syndrome. The
United States Department of Veterans Affairs accepted
the DSM-III diagnosis of PTSD, delayed type, allowing
veterans for the first time since World War I to apply for
service-connected disability a year or more after their
periods of military service had expired.
No specific reference to traumatized children was made
until DSM-III-R, which was published in 1987 [American
Psychiatric Association (APA) 1987]. In the DSM-IV,
acute stress disorder was introduced as a short-term,
early-onset disorder in response to emotional trauma,
with an emphasis on dissociative symptoms (APA 1994).
In 2000, the American Psychiatric Association published
the DSM-IV-TR in which the diagnostic criteria of men-
tal disorders, including PTSD and acute stress disorder,
remain unchanged while the accompanying text has
been updated to reflect changes in the field (APA 2000).
A ‘Familial Pattern’ component has been added to the
PTSD section to highlight research suggesting a genetic
predisposition to the disorder.
 Posttraumatic stress disorder in children and adolescents: clinical and legal issues 397
DIAGNOSTIC CRITERIA
Despite the cautionary statement at the beginning of
the DSM-IV (APA 1994), and now the DSM-IV-TR (APA
2000), regarding the use of the text and its diagnostic
criteria in legal proceedings, the DSM remains the virtual
standard throughout forensic psychiatry and psychology.
The DSM-IV diagnostic criteria for PTSD are independ-
ent of the subject’s age, though features particular to
children and adolescents are noted in the text and as
annotations to the criteria (APA 2000).
The diagnosis of PTSD requires that the individual
first meet a threshold criterion of having suffered or
experienced a traumatic event (Criterion A), followed by
a triad of re-experiencing, avoidance and numbing, and
hyperarousal symptoms (Criteria B, C, and D, respect-
ively). To qualify as an emotional trauma, ‘the person
experienced, witnessed, or was confronted with … actual
or threatened death or serious injury, or a threat to the
physical integrity of self or others … the person’s response
involved intense fear, helplessness, or horror.’ The authors
note that, in children, the response to trauma may consist
of disorganized or agitated behavior (APA 2000).
The nature of the emotional trauma for a child may
extend beyond the boundaries of the momentary acci-
dent or act of violence, both in its duration and com-
plexity. For example, the child victim may be forced to
remain at the side of his or her injured or dead parent
until help arrives. The direct impact of the trauma to the
child may be extended by fears for the safety of loved
ones who are not immediately accessible at the scene.
Children may thus feel frightened, overwhelmed, or help-
less long after the discrete ‘trauma’ has passed (Pynoos,
Steinberg, and Goenjian 1996).
Criterion B of the PTSD criteria in DSM-IV requires
that the subject re-experience the traumatic event in at
least one of several possible ways. Symptoms include intru-
sive, repetitive recollections; nightmares; re-experiencing
the event as happening again in real time, e.g., flashbacks;
intense psychological distress in response to trauma-
related cues; or intense physiologic activation in response
to such triggers or reminders (APA 2000).
In children, re-experiencing phenomena can be develop-
mentally quite distinct from those encountered in older
teens and adults. Recollections may take the form of joy-
less, repetitive play that symbolizes some element of the
trauma. Within a matter of weeks, nightmares can gener-
alize into frightening dreams about monsters or other
generic threats rather than preserve the trauma-specific
content. Re-enactments of the traumatic experience, or
some component thereof, can take the place of flashbacks
(APA 2000). Alternatively, children may suffer intrusive,
repetitive daydreams about the trauma during periods of
relaxation or calm, such as at bedtime (Terr 1991).
Criterion C involves three or more of the avoidance
and numbing symptoms of PTSD. Possible symptoms
include cognitive avoidance of thoughts, feelings, or
recollections that trigger heightened anxiety or negative,
intrusive posttraumatic sequela; physical avoidance of
people, places, or things that similarly rekindle some
element of the posttraumatic anxiety syndrome; psy-
chogenic amnesia for part or all of the traumatic event;
loss of interest or pleasure in previously satisfying activ-
ities, i.e., anhedonia; lack of emotional connection or
affection to significant others; loss of emotional range,
e.g., loving or cheerful feelings; and fears or expectations
of a truncated future (APA 2000). Clearly, the avoidance
and numbing symptoms of PTSD overlap considerably
with those of major depression, a common comorbid
condition. In children, many of the elements of Criterion
C can be difficult to elicit directly from the younger child,
and necessitate an increased reliance on third-party
sources of information, such as parents and teachers.
As noted in the DSM-IV-TR, the sense of a foreshortened
future may take the form of feelings by the child that he
or she will never reach adulthood or other major mile-
stones. They may engage in ‘omen formation,’ i.e., magi-
cal beliefs in having the ability to predict negative future
events. Physical symptoms of anxiety, such as indigestion
or headaches, are common in this age group (APA 2000).
Criterion D requires the presence of two or more of five
symptoms of autonomic hyperarousal: sleep disturbance;
irritability or temper outbursts; subjective difficulties with
distractibility or reduced concentration; hypervigilance;
and increased startle reaction to commonplace sounds,
such as the phone or doorbell ringing (APA 2000).
In addition to the core features of PTSD in the DSM-
IV-TR, viz., the threshold criterion of the traumatic event
followed by the triad of re-experiencing, avoidance and
numbing, and hyperarousal symptoms, the diagnosis
entails a number of supplemental and associated fea-
tures. The symptoms of Criteria B, C, and D must last at
least one month, and cause significant distress or impair-
ment in functioning. The available specifiers include an
‘acute’ course of less than three months; a ‘chronic’ con-
dition lasting three months or more; and ‘delayed type’ in
which the onset of symptoms is at least six months post-
trauma (APA 2000). In a variety of contexts, the subject’s
PTSD may be further described as mild, moderate, or
severe in duration (e.g., McDermott and Cvitanovich
2000). This specifier appears to be borrowed from the
nomenclature for major depression. Strictly speaking,
it is not available for PTSD within the DSM-IV-TR.
The basic backbone of any mental disorder within the
DSM-IV and DSM-IV-TR framework, including PTSD,
is a constellation of symptoms that cause marked distress
or impairment in one or more major domains of function.
This criterion is not required for a diagnosis of PTSD in
the tenth revision of the International Classification of
Diseases (ICD-10) by the World Health Organization
(WHO 1992), which in turn leads to a significantly higher
percentage of individuals being diagnosed with PTSD
398 Family law and domestic relations
under ICD-10 than DSM-IV (Peters, Slade, and Andrews
1999).
Interestingly, PTSD is relatively unique among the
major mood, anxiety, and psychotic disorders in lacking
an exclusion criterion that the disorder has not been
caused by a substance or underlying general medical
condition. However, the differential diagnosis includes
adjustment disorder; attention-deficit hyperactivity dis-
order (ADHD); acute stress disorder; a variety of mood,
anxiety, and psychotic disorders; and conditions refer-
able to a substance or medical condition (APA 2000).
Another consideration of particular relevance to the
forensic expert is, of course, malingering.
In considering diagnostic alternatives, two interesting
scenarios arise under DSM in subjects who meet only
partial criteria for PTSD (McNally and Saigh 1993). If
the subject suffers a stressor of lesser severity than an
emotional trauma, as described under Criterion A, but
goes on to exhibit re-experiencing, avoidance and numb-
ing, and hyperarousal symptoms, the correct diagnosis
would be adjustment disorder or anxiety disorder not
otherwise specified (NOS). On the other hand, an indi-
vidual who suffers a full-blown emotional trauma, but
only responds with a partial syndrome of fear and avoid-
ance, would most properly be classified with a specific
phobia.
With regard to other formulations of PTSD, Terr
bifurcates the disorder into Type I and Type II based
upon the characteristics of the trauma history. In Type I
traumas, the subject experiences a single traumatic
event, such as a car accident or violent crime, followed by
the classic Criteria of PTSD as outlined above. In con-
trast, Type II traumas occur on a chronic or repetitive
basis, such as years of childhood physical or sexual abuse.
The predominant symptoms appear to be more geared
towards physical and psychological survival: denial,
repression, dissociation, and anger. Some victims may
present with a hybrid of Types I and II (Terr 1991).
Blank (1993) has described the marked variability
in the onset, course, and proportions of symptoms in
PTSD. In addition to acute, chronic, and delayed types,
Blank has identified intermittent and recurrent forms.
The re-experiencing, avoidance and numbing, and
hyperarousal symptoms vary with the individual, the
trauma, and over time in a particular case. The so-called
‘dose–response’ relationship between severity, proximity,
and duration of the emotional trauma only partially cor-
related with the genesis of PTSD and its natural history
(Blank 1993). While the onset and course of the disorder
can be quite variable, symptoms resolve in roughly 50
per cent of cases within three months, with the remainder
of patients having more chronic or waxing and waning
symptoms (APA 2000).
Despite these considerations, acute stress disorder
must be contemplated as a distinct disorder from PTSD;
a significant proportion of individuals who ultimately
develop PTSD never qualified for a diagnosis of acute
stress disorder or only had a partial, subsyndromal ver-
sion. For example, Harvey and Bryant (1999) followed
automobile accident victims for two years post-event to
ascertain the precursors and frequency of PTSD. Initially,
in the early post-accident period, 13 per cent of victims
met diagnostic criteria for acute stress disorder, and
another 21 per cent had a subsyndromal version. At two
years, 63 per cent of the patients with acute stress dis-
order had progressed to PTSD, whilst 70 per cent of the
subjects who had only partially met criteria for acute
stress disorder developed full-blown PTSD. An additional
13 per cent met the diagnostic criteria for PTSD without
previously having elements of acute stress disorder.
Within the differential diagnosis of PTSD, particular
attention should be paid to the question of ADHD given
the potential overlap in behavioral manifestations and
the markedly different treatment approaches required
for the two conditions. McLeer and colleagues compared
sexually abused to non-abused children who presented
to a psychiatric clinic. In both groups, ADHD was the
most common diagnostic entity. However, 42.3 per cent
of the subjects in the sexually abused group also met
criteria for PTSD (McLeer et al. 1994).
The impulsivity, hyperactivity, and interpersonal
problems encountered in PTSD can be misinterpreted
as ADHD (Weinstein, Staffelbach, and Biaggio 2000).
The treatment for PTSD and ADHD are substantially
different such that a misdiagnosis of one as the other can
lead to either ineffective or even deleterious therapy. For
example, inadvertently treating PTSD with psycho-
stimulants, the first-line medications for ADHD, would
potentially worsen problems with anxiety, irritability,
autonomic activation, and insomnia. In children with
pre-existing ADHD, a comorbid PTSD can be more
severe than otherwise expected given the traumatic event
and other factors (Martini et al. 1990).
EPIDEMIOLOGY
According to community-based studies, the overall life-
time prevalence of PTSD has been estimated at 8 per cent
(APA 2000). Among 8098 respondents who participated
in the National Comorbidity Survey, 60.7 per cent of
men and 51.2 per cent of women reported having
experienced at least one traumatic event in their life-
times. Most subjects in fact had suffered two or more
such incidents. The risk of developing PTSD varied sig-
nificantly with the type of trauma. Females more com-
monly experienced all three types of traumas that carried
the highest incidence of consequent PTSD – rape, child-
hood physical abuse, and childhood neglect (Kessler et al.
1999). The National Comorbidity Study has, however,
been criticized for artifactually raising the prevalence
of PTSD by collecting data only from subpopulations
with prior histories of mental illness (Deykin 1999).
 Posttraumatic stress disorder in children and adolescents: clinical and legal issues 399
According to epidemiologic studies, PTSD commonly
occurs in conjunction with one or more other psychiatric
disorders. In adults, the highest comorbidities were
observed between PTSD and depressive, substance use,
and other anxiety disorders (Brady et al. 2000).
Having laid a foundation for epidemiologic data
regarding PTSD in adults, the overall prevalence of the
disorder in children and adolescents is uncertain. Widely
varying estimates have been given, depending upon the
nature of the trauma and other risk factors, from 5 per
cent to 75 per cent (Dulcan and Martini 1999). While
these discrepancies are no doubt in part due to differen-
tial risk factors for developing PTSD, the research litera-
ture has also been plagued by problems with sampling
methods, interview techniques, psychometric instru-
ments, and other methodologic weaknesses and incon-
sistencies (Eth 1990). Garmezy (1986) has reviewed
concerns regarding research issues in childhood PTSD,
including generalizability of limited results to other races
and communities.
RISK FACTORS
In addition to the threshold traumatic event, several
other putative risk factors may affect the likelihood that a
particular trauma victim will go on to develop PTSD.
Those factors include victim characteristics, the specifics
of the trauma, environmental factors, and the availability
of social and family support systems (Pfefferbaum 1997;
Deykin 1999). A meta-analysis of risk factors in adults,
including the significant contributions of childhood and
adolescent antecedents, has been meticulously reviewed
(Brewin, Andrews, and Valentine 2000).
According to the DSM-IV-TR, genetics may consti-
tute a risk factor in the genesis of PTSD (APA 2000). For
example, in a study of veterans by True and Lyons, herit-
able elements accounted for about 30 per cent of the risk
of developing re-experiencing, avoidance and numbing,
and hyperarousal symptoms as compared to environ-
mental factors. The one exception was DSM-IV criterion
B(1) – intrusive memories – which was largely environ-
mental in origin, i.e., in the range of 90 per cent (True
and Lyons 1999).
Physical and emotional proximity factors are significant
characteristics of the traumatic event itself. An event that
is physically closer to the individual, all else being equal,
is more traumatic, as is an event that impacts the subject or
a loved one as opposed to a stranger (Pfefferbaum 1997).
This phenomenon is eloquently illustrated by the study
of the sniper attack on an elementary school playground
by Pynoos et al. (1987). Students who were closest
to the gunfire were most likely to manifest symptoms of
PTSD. Those individuals who were further away but still
developed PTSD tended to have additional risk factors.
Other students with little or no exposure to the traumatic
event who had close relationships with pupils who were
injured or killed, also experienced an increased risk of
PTSD. On the other hand, proximity to the danger carries
less weight when the perceived threat is vague or intangible,
as in the case of Three Mile Island (Handford et al. 1986).
Traumas of human origin, such as rape, are con-
sidered to be more potent triggers of PTSD than natural
disasters, such as a hurricane or earthquake (APA 2000).
Simon (1995) suggests that, ‘The injured person usually
feels that a man-made stressor is preventable, whereas
natural disasters are unavoidable acts of God.’
In her review of the literature, Pfefferbaum found
mixed, inconsistent results regarding the effect of gender
on the likelihood of developing PTSD. Some studies
reported a higher rate in females, others a higher rate in
males, and a third group of studies concluded that boys and
girls developed PTSD with equal frequency (Pfefferbaum
1997). As noted earlier, the National Comorbidity Survey
reported that the types of traumas that were most strongly
linked to the development of PTSD occurred more often in
females (Kessler et al. 1999).
The National Women’s Study was a prospective,
multivariate analysis of the risk factors in 3006 women
for rape, sexual assault, and for the development of
PTSD as a result of sexual or physical assault (Acierno et
al. 1999). A set of risk factors was identified for each of
the four groups: rape victims; physical assault victims;
PTSD secondary to rape; and PTSD due to physical
assault. Factors that appeared to increase the rate of
PTSD in rape victims included a history of an affective
disorder, alcohol abuse, or the presence of bodily injuries
inflicted by the perpetrator.
In addition to gender, qualitative differences are seen
in how various pediatric age groups respond to emotional
trauma and express PTSD symptoms. Older children and
adolescents are more likely to develop re-experiencing
and hyperarousal symptoms, while younger children are
more inclined to present with avoidance symptoms
(Schwarz and Kowalski 1991). Furthermore, teens may
utilize aggressive or other acting-out behaviors to exter-
nalize stress and anxiety, which can lead to school, family,
substance use, sexual, and legal problems (Luthar and
Zigler 1991; Deykin 1999). As addressed above, the text
and diagnostic criteria of DSM-IV-TR discuss several
ways in which younger children manifest PTSD symp-
toms differently from older children, adolescents, and
adults (APA 2000).
The comorbidity of substance use disorders and
PTSD in teens has received attention as a problem of
increasing importance. For example, Deykin and Buka
(1997) studied 297 adolescents in a residential drug
treatment program. Roughly 75 per cent endorsed a his-
tory of significant emotional trauma, and about 30 per
cent qualified for a diagnosis of PTSD. However, striking
gender differences emerged. In boys, high-risk substance-
related behaviors led to being victimized in emotionally
traumatic events, in turn placing them at risk for PTSD.
400 Family law and domestic relations
In contrast, adolescent girls were more likely to first suf-
fer the trauma, which then led to later substance abuse or
dependence as a means of self-medication or perhaps as
part of a pattern of high-risk behaviors secondary to pre-
existing PTSD. Thus, in civil litigation, drug abuse in a
traumatized teen may be a second, distinct and poten-
tially far-reaching injury caused by the event in question.
For many years, the issue of whether intelligence served
as a protective factor against PTSD remained controver-
sial. More recent studies suggest that cognitive deficits may
increase the risk of developing PTSD in at least two ways.
Cognitively impaired individuals often manifest poor
judgment, which renders them more likely to be exposed
to an emotionally traumatic situation. Furthermore, such
individuals may have limited resources to process and
cope with the trauma and its psychiatric sequela com-
pared with the average victim (Orr and Pitman 1999).
Cultural and racial factors may be influential in the
genesis and natural history of PTSD in various popula-
tions, but have not been adequately studied. For example,
Latino children and adolescents are at increased risk for
PTSD and other psychiatric disorders due to such adver-
sities as forced immigration from war-torn or impover-
ished homelands; high rates of economic hardship, gang
violence, and pregnancy; problems with school truancy
and dropout. Interestingly, the psychosocial impact of
immigration and acculturation in Latino youths depended
most upon how well their mothers appeared to handle the
same stressors (Garrison, Roy, and Azar 1999).
In general, the resilience and coping styles of parents
in response to emotional trauma dictate to a substan-
tial degree the psychiatric outcomes in their children.
In McFarlane’s classic study of the Australian bushfire
disaster, he found that parental factors were more pre-
dictive of chronicity of PTSD symptoms in the child
victims than the degree of exposure (McFarlane 1987).
Similarly, psychopathology in the parent, particularly the
mother, was found to significantly affect the outcomes
of traumatized children in studies of pediatric cancer
(Stuber et al. 1997) and automotive accidents (de Vries
et al. 1999).
In civil litigation, this finding can serve to the advan-
tage of either plaintiff or defendant. On the one hand, the
child’s emotional problems may be found to be related
more to pre-existing maternal psychopathology rather
than the event at issue. On the other hand, concomitant
traumatization of both the child and mother may have
far-reaching benefits to the plaintiff ’s case if the child’s
recovery is slowed or even damaged by the mother’s own
symptoms that have rendered her unable to provide
essential nurturance and support.
As noted earlier, the type and severity of the traumatic
event significantly affect the genesis and course of PTSD
in children and adolescents. Childhood sexual abuse
illustrates this principle; a number of factors influence
whether PTSD, or an array of other psychiatric disorders,
will emerge in response to this dark trauma. The types of
sexual abuse that are most likely to trigger PTSD include
the application of physical force by the perpetrator, geni-
tal contact, or if the offender is a male authority figure
in the victim’s life, such as the father. In fact, sexual abuse
by a significant other, such as a family member, places the
child at greater risk than perpetration by a stranger
(Browne and Finkelhor 1986).
A number of studies have considered whether child-
hood sexual abuse leads to prostitution. Using a series of
logistical models, Brannigan and Gibbs Van Brunschot
(1997) examined an array of potential risk factors.
Negative home life and sexual precocity increased the
likelihood of both prostitution and adolescent run-away
behaviors. Sexual abuse was not a separate risk factor.
The rate of PTSD is elevated among populations of
foster-care children. A recent study compared three
groups: victims of physical abuse; sexual abuse; and no
history of abuse. The group that had suffered sexual abuse
had the highest risk of PTSD, viz. 64 per cent, whilst 42 per
cent of children who had experienced physical abuse quali-
fied for a diagnosis of PTSD. Of note, 18 per cent of the
non-abused children also had PTSD, presumably due to
other types of emotional trauma, such as witnessing gang
or domestic violence (Dubner and Motta 1999).
With regard to other types of traumatic situations
of medico-legal relevance, the risk of childhood PTSD in
motor vehicle accidents has been studied. In one report,
using a prospective cohort study paradigm, researchers
found that 25 per cent of youths qualified for a diagnosis
of PTSD, akin to that seen in victims of violent crimes
(de Vries et al. 1999). Interestingly, the risk for develop-
ing PTSD correlated better with older age or a parent
with PTSD rather than such factors as physical injury in
the child.
PSYCHOPHYSIOLOGIC STUDIES
As Stone observed, part of the appeal of PTSD to the
plaintiff ’s attorney is the opportunity to forge, for the
sake of jury impact, the impression of a physical disorder
from the emotional; medical rather than psychological
(Stone 1993). The latest PTSD literature indeed bristles
with an array of biologic studies, searching for markers
to confirm PTSD or, conversely, to detect malingering with
the medical authority of electrophysiologic tests in neurol-
ogy or structural imaging in orthopedics. In assessing the
value of quantitative electroencephalogram (QEEG) or
functional imaging studies, for example, the prejudicial
value to the jury of brightly colored images and technical
jargon must be weighed against concerns of research
shortcomings and lack of specificity. In any case, it appears
that the future of PTSD-related civil litigation and crimi-
nal defenses rest with whoever will find the ‘magic bullet,’
i.e., the truly definitive biochemical, electrophysiologic, or
imaging study of high specificity and sensitivity.
 Posttraumatic stress disorder in children and adolescents: clinical and legal issues 401
A wide assortment of psychophysiologic research
modalities has been utilized. Putative abnormalities have
been found in such varied domains as the autonomic ner-
vous system, a variety of event-related potentials, multiple
neurotransmitters, the hypothalamic-pituitary-adrenal
axis, neuropsychological studies, immune responses, and
structural and functional imaging. Of note, findings part-
icular to children with PTSD have also been reported,
including possible alterations in neuroendocrine markers,
the limbic cortex, and brain electrical activity (van der Kolk
1997; Glaser 2000).
One of the most promising areas of research regard-
ing biologic markers for PTSD involves exploiting the
increased physiologic responsiveness of the victim to
trauma-related cues, i.e., DSM-IV criterion B(5) (APA
2000). However, a number of factors confound its use.
Individuals with the appropriate specific phobia or a past
history of PTSD, now resolved or in remission, may
demonstrate the same reactivity. Responsiveness to the
test also varies as a function of symptom severity, losing
sensitivity in mildly symptomatic subjects (Orr 1997).
Structural and functional imaging studies are avail-
able, primarily in the adult literature. For example,
Bremner et al. (1997) have reported the results of a pre-
liminary study of magnetic resonance imaging (MRI)
findings in adults with histories of PTSD secondary to
childhood abuse. Compared to matched controls, sub-
jects with PTSD had reduced volumes in the left hippo-
campus, which could have particular implications for
memory disturbances in PTSD.
The significance of past PTSD in producing a false-
positive test has also been encountered in other settings,
such as psychophysiologic markers of adult survivors
of childhood trauma. Three groups of women who had
been sexually abused as youths were compared, using
measures of heart rate, skin conductance magnitude,
and skin conductance habituation: current PTSD;
prior history of PTSD with no current symptoms; and
no history of PTSD. Similar derangements were found
in the subjects with current and past PTSD, suggesting
that the heightened reactivity may either represent a
biologic predisposition to PTSD or a permanent physio-
logic change following the onset of PTSD (Metzger
et al. 1999).
ASSESSMENT
Standards and guidelines have been published pertaining
to the clinical examination of children and adolescents
with regard to the issue of PTSD [Newman, Kaloupek,
and Keane 1996; American Academy of Child and
Adolescent Psychiatry (AACAP) 1998; Perrin, Smith, and
Yule 2000]. A wide array of assessment instruments are
available to assist the evaluator, including parent and
teacher questionnaires, clinician-administered check-
lists, self-report inventories, and structured personality
assessment, e.g., the MMPI-2 (Newman, Kaloupek, and
Keane 1996). The AACAP clearly states that such tools
are appropriately used only as adjuncts, and are not
substitutes for careful, detailed face-to-face interviews
(AACAP 1998). Drake, Bush, and Van Gorp (2001) have
recently reviewed the sophisticated use of such instru-
ments, as part of a multimodal evaluation approach.
One of the most dramatic ways in which younger chil-
dren can differ from adult subjects with PTSD is with
regard to the pattern of symptom expression. The num-
ber and proportion of re-experiencing, avoidance and
numbing, and autonomic hyperactivity symptoms in the
child can vary substantially (AACAP 1998). Functionally,
a partial PTSD syndrome in children may ultimately
prove to be indistinguishable from those individuals who
meet full DSM-IV criteria.
The forensic examiner faces a number of hurdles,
including risk of genuine or perceived bias, possessing
and maintaining proper qualifications, the scope of the
examination, and the availability of sufficient corrobora-
tive third-party sources of information. A particular pit-
fall also faces the treating child psychiatrist who agrees
to serve as expert witness, i.e., the issue of double agency
(Strasburger, Gutheil, and Brodsky 1997). The psychia-
trist who provides clinical evaluation and treatment
brings the perspective of advocate who largely accepts
the patient’s subjective perceptions and statements at
face value. In contrast, the forensic expert, by virtue of
education, training, and experience, supposedly brings a
more objective, unbiased approach to the courtroom,
emphasizing the value of additional sources of informa-
tion. These databases may include third-party collateral
interviews, structured paper-and-pencil testing, exten-
sive records from a number of settings, and even surveil-
lance videotapes.
Quinn (1995) has specifically addressed the issue of
forensic examination of the child or adolescent regarding
PTSD. She emphasizes a number of highly cogent points,
such as the array of PTSD features that are unique to
younger children; the details of the forensic examination
process, particularly the importance of employing a
developmental perspective; and the need to possess
adequate qualifications and training to properly proceed
with such specialized assessments.
Quinn also reviews the several ways in which faulty
or deficient evaluation procedures can lead to artificially
exaggerated or understated rates of detection of emo-
tional trauma, and in turn, PTSD. Factors that reduce the
rate of diagnosis include ignorance, denial, or minimiza-
tion by teachers, parents, and other adults, and the lack
of expressiveness in child subjects, especially younger, less
verbally sophisticated individuals. In contrast, examples
of factors that may lead to over-reporting of emotional
trauma and PTSD are poor implementation or standards
for state mandatory reporting requirements, and incom-
petence or bias of some so-called ‘trauma therapists’
(Quinn 1995).
402 Family law and domestic relations
PTSD AND MEMORY
Posttraumatic stress disorder involves two fundamental
disturbances in memory. The traumatic event primes the
individual to experience repetitive, intrusive memories
and other re-experiencing phenomena. In addition, some
PTSD patients suffer from psychogenic amnesia in which
partial or complete information regarding the trauma is
rendered inaccessible to recall, despite an intact memory
apparatus (McNally 1997). Ruminative thinking, hyper-
arousal, and other factors can also lead to non-specific
impairments in the attention and concentration required
to encode new information presented after the trauma.
Quinn reviewed the literature regarding childhood
trauma and memory as it pertains to examination by
the forensic child psychiatrist. She discusses a number of
dysfunctional memory processes seen in the pediatric
population, including omission of memory segments
about the most traumatic element of the perceived
threat; alterations in the details of the traumatic event;
the use of omens or premonitions; denial, minimization,
and repression; and dissociation (Quinn 1995).
The neuroanatomical correlates of intrusive, unpleas-
ant memories of a past emotional trauma have been stud-
ied using positron emission tomography (PET) in women
with childhood histories of sexual abuse. Matched subjects
with and without PTSD were provided with neutral and
trauma-related cues during imaging. Compared to the
control sample, females with PTSD showed alterations in
brain glucose metabolism in several sites in response to
triggering stimuli: medial prefrontal cortex, visual associa-
tion areas, and the hippocampus (Bremner et al. 1999).
Ash and Derdeyn (1997) analyzed the mental health
literature with regard to the validity of child victim testi-
mony in cases involving allegations of sexual abuse. They
conclude that, in general, children are able to adequately
recall what happened to them, with the caveat that
younger children are particularly susceptible to sugges-
tion and manipulation by adults. The authors also sound
a cautionary note that other factors may also lead to dis-
tortions in the child’s testimony, such as the conflicting
goals and motivations in a child custody dispute or the
effects of multiple individual or group interviews in
reshaping the victim’s perception of the facts.
Indeed, the manner in which the forensic examiner or
attorney questions the child while under stress can lead
to significant problems with suggestibility or further
emotional disturbance for the victim. The child may fall
victim, for example, to misleading questions, intimidation,
questions involving false premises, or the use of jargon or
overly adult vocabulary (Goodman, G.S., et al. 1999). The
process of testifying in a civil or criminal case can even be
an additional source of emotional trauma for the already
suffering or damaged child witness/victim (Eth 1988).
The presence of a significant psychiatric disorder, such
as PTSD, schizophrenia, or other conditions furthermore
does not per se invalidate the veracity of witness or victim
testimony. Goodman, L.A., et al. (1999) studied a variety
of adult victims of violent crimes who also had active
major mental illness. In general, when proper examin-
ation protocols were followed, reliable information regard-
ing the traumatic event could be elicited. Corroboration
with additional sources of data, as in any good forensic
evaluation, is of course encouraged.
TREATMENT ISSUES
In civil litigation, the forensic psychiatrist may be called
upon to comment upon a number of treatment-related
issues in the child or adolescent with PTSD. They include
the role of inadequate or inappropriate treatment of a
pre-existing disorder in mitigating damages; the contribu-
tory effects of therapist bias, adverse medication side
effects, and other treatment complications; and an esti-
mate of future treatment needs, costs, and long-term
prognosis. Pfefferbaum (1997) has noted that chronic
PTSD in children can have far-reaching effects in disrupt-
ing the normal cascade of developmental milestones.
Treatment issues can also be an important aspect of
expert evaluation and testimony in a criminal case, such
as a matter involving an adolescent with PTSD who has
been accused of a violent offense. The trier of fact may be
receptive to reasonable testimony regarding the role of the
defendant’s PTSD that had been left untreated or inad-
equately treated, particularly in penalty phase. A carefully
outlined, comprehensive treatment plan with adequate
monitoring and safeguards may lead to better success in
obtaining probation instead of incarceration in select cases.
A panoply of treatment interventions are available in
PTSD, though most are better established in adult popu-
lations. First-line modalities that may be used alone
or more typically in combination include cognitive-
behavior psychotherapy, family and psychosocial inter-
ventions, eye movement desensitization and reprocessing
(EMD/R), and drug therapies. Preliminary research
regarding pharmacotherapy in adults suggests that selec-
tive serotonin re-uptake inhibitors (SSRIs) are the pre-
ferred medications for PTSD, associated depressions and
other comorbid conditions. Other agents include benzo-
diazepines, monoamine oxidase inhibitors (MAOIs), and
clonidine. Unfortunately, the safety and efficacy of med-
ication treatments for children and adolescents with
PTSD, particularly in younger children, remain largely
unexplored, and are built mainly upon analogies bor-
rowed from the adult literature (Donnelly, Amaya-Jackson,
and March 1999).
LEGAL ISSUES
A variety of issues pertinent to the legal aspects of PTSD
in children and adolescents have already been touched
 Posttraumatic stress disorder in children and adolescents: clinical and legal issues 403
upon in the course of explicating the available informa-
tion regarding the epidemiology, risk factors, phenome-
nology, evaluation, and treatment of individuals in this
unfortunate population. The child forensic psychiatrist
must have considered and be familiar with a number of
key issues that span the evaluation and opinion process.
First, as noted earlier, and discussed by Quinn (1995),
particular expertise by virtue of education, training, and
experience is required, particularly with prepubertal age
children. Knowledge and skill in the subspecialties of
clinical and forensic assessment in this population is
essential, unless the expert is simply offering opinions
about one specific area, such as psychopharmacology,
without addressing broader issues.
In accepting the case referral for a civil or criminal
consultation, a number of other considerations surface
in addition to adequate expertise. The expert must assure
that there is no conflict or question of bias with regard to
prior relationships with the parties involved. The attor-
ney’s expectations, timelines for each step of the process,
and expectations regarding fees and payment must also
be made explicit. The expert has a responsibility to
consider early and discuss with the attorney the need
for adequate corroborative third-party records, psycho-
logical testing, collateral phone interviews, and other
important sources of information that help distinguish
the forensic assessment from the clinical–therapeutic
evaluation.
As discussed previously, the expert must have an
appreciation for the variability of the presentations in
PTSD in children and adolescents, based upon age,
developmental phase, nature of the traumatic event, and
other characteristics. A rigid, uncritical application of
the DSM-IV criteria for PTSD that fails to address the
fluctuations in re-experiencing, avoidance and numbing,
and hyperarousal symptoms is a disservice to the subject.
A partial PTSD syndrome may lead to the same degree of
functional impairment as a complete disorder by DSM-
IV standards (AACAP 1998), which has implications for
civil damages. Moreover, the role of common comorbid
depressive, anxiety, substance use and other disorders
must be evaluated with regard to the degree of emotional
distress, impairment, treatment needs, and prognosis.
Plaintiffs can also recover monetary damages for emo-
tional injury that does not meet the criteria for a specific
DSM-IV disorder.
PTSD can become a central issue in a wide array of
criminal, civil, and administrative matters. Although some
are less relevant to children and adolescents, they include
criminal defenses during guilt phases; penalty phase issues
of mitigation; workers’ compensation; fitness for duty in
law enforcement; administrative evaluations of lawyers,
physicians and other licensed professionals; and of course,
civil tort law in psychic personal injury claims. PTSD
could also potentially be an issue in civil and criminal
competencies, such as the capacity to give a voluntary and
honest confession or plea.
In the criminal arena, PTSD can be offered affirma-
tively as an insanity defense, or as part of heat of passion,
imperfect self-defense, or mens rea defense in which a
specific element required for the crime may be negated.
The use of PTSD in the insanity defense is severely
limited, both by the relative paucity of states that allow a
volitional component, and the restrictions and limita-
tions imposed by those few states that do with regard to
issues of what constitutes a serious mental illness, evi-
dence of planning or preparation for the crime, and other
factors (Melton et al. 1997).
The retrospective examination of a defendant’s men-
tal state at the time of an alleged criminal offense is
always problematic, but can be particularly difficult in
the case of PTSD. Such individuals may have relatively
few or no mental health treatment records around that
time compared to a schizophrenic or bipolar patient.
Despite advances in imaging and other studies of bio-
logic markers, the examination remains largely based
upon subjective, self-serving statements by the defen-
dant. Psychometric testing is likewise less robust for
PTSD than for major mood and psychotic disorders.
Intervening periods of substance abuse, other stressors,
and malingering further obscure the evaluation process
(Melton et al. 1997).
In the arena of civil litigation, personal injury suits,
including those involving mental health factors, are mat-
ters of tort law. A tort is a civil wrong committed by one
party towards another, other than breach of contract
(Gutheil and Appelbaum 2000). There are four elements
to the tort: a duty owed by one party towards another;
a breach of that duty; the breach caused injury to the sec-
ond party; and the breach was a proximate (or similar
formulation) cause of that injury. Torts can involve
intentional infliction of emotional distress, negligent
infliction of emotional distress, or strict liability, for
example, in defective product cases (Melton et al. 1997).
Stone has reviewed the ways in which the diagnosis of
PTSD has revolutionized the psychiatric personal injury
litigation for the plaintiff ’s attorney (Stone 1993). As
noted earlier, it renders ‘scientific’ and ‘medical’ the pre-
viously intangible, unappealing notions of some sort of
mental injury or process. Since PTSD is incident-specific,
the re-experiencing symptoms can implicitly solve the
issue of causation. In cases of intentional infliction of
emotional distress, expert testimony can be offered regard-
ing the ‘outrageousness’ of the defendant’s conduct; it
had to be outrageous in order to rise to the level of causing
an emotional trauma and PTSD. In civil cases alleging
negligent infliction of emotional distress, PTSD has been
used by plaintiffs’ attorneys in attempts to push back the
zone of danger doctrine from physical injury to physical
contact to zone of danger to indirect contact with no
potential for physical harm. This in fact accords with the
broader formulation of what constitutes a trauma in
DSM-IV (APA 1994) and DSM-IV-TR (APA 2000), as
well as key case studies in the child PTSD literature in
404 Family law and domestic relations
which loved ones, school peers, and other indirect victims
have developed PTSD symptoms.
On the other hand, the shift in criteria from DSM-III-R
(APA 1987) to DSM-IV (APA 1994) has also had a the-
oretical negative impact for plaintiff ’s litigation. In the
threshold criterion for the traumatic event, the DSM-
III-R specified that the event be ‘markedly distressing
to almost anyone.’ This potentially solved the issue of
foreseeability in claims of intentional infliction of emo-
tional distress, but has been dropped in DSM-IV.
Negligent infliction of emotional distress primarily
arises in product liability and bystander recovery cases
(Melton et al. 1997). In the majority of states, the
bystander/plaintiff must be in the ‘zone of danger’
imposed by the defendant, and must be a family member
or relative of the victim. However, in some jurisdictions,
the plaintiff need not be present at the time of the inci-
dent, and in other states, the requirement that the
bystander/plaintiff be related to the victim is dropped.
An example of the former would be a parent running out
into the street to find that his or her child had been
struck down by an automobile. States impose limitations
on plaintiff recovery, e.g., the resulting psychiatric dis-
order must be substantial and result in verifiable symp-
toms, which can be particularly problematic with PTSD
(Melton et al. 1997).
CONCLUSION
Posttraumatic stress disorder is a fascinating, complex
and rapidly changing field of inquiry. It poses both sig-
nificant rewards and potential pitfalls to the forensic exam-
iner. The expert must be properly qualified, take care at
each step to avoid issues of bias or deficiency, and have an
adequate appreciation of the clinical and forensic factors
that are relevant to PTSD in general and specific to the
disorder in youths, especially in prepubertal children.
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Forensic aspects of suicide and homicide
in children and adolescents
PETER ASH, RICHARD J. GERSH AND STEPHEN B. BILLICK
Homicide and suicide are, respectively, the second and
third leading causes of death for adolescents aged fifteen
to nineteen years (National Center for Health Statistics
2001). Society often expects psychiatry to be able to accu-
rately predict and effectively prevent suicide and homi-
cide, despite realistic limitations in these areas. In a
treatment context, clinicians must recognize the children
and adolescents most at risk for violence and take appro-
priate steps. In a forensic context, cases of homicide and
suicide are frequently the focus of court scrutiny, and
forensic psychiatrists frequently play a role in the adjudi-
cation of such cases.
SUICIDE
Epidemiology and demographics
During the past few decades, adolescent suicide rates have
been quite variable, tripling from 1955 to 1979 (Brent et al.
1988), then increasing slowly to a peak in 1991, before
falling back to the rates of the 1980s (National Center for
Health Statistics 2000). It is unclear why adolescent sui-
cide rates increased through the early 1990s and then
declined, although these changes roughly parallel the
directions of changes in youth homicide rates and rates
of suicide in the elderly. Data from the National Center
for Health Statistics (2001) indicate a 1999 rate of 8.2 per
100 000 for 15- to 19-year-olds, representing 1615 sui-
cides in the United States. Rates for younger adolescents
were much lower, averaging about one-seventh of the
older adolescent rates, and rates for pre-adolescents are
much lower still. Male adolescents are about five times as
likely to commit suicide as females. This difference is
explained, in part, by the means of suicide employed:
teenage males tend to use more lethal methods, such
as firearms and hanging, rather than less dangerous
42
methods often used by females, such as poisoning (e.g.,
carbon monoxide or pill overdose) or wrist cutting
(Trautman and Shaffer 1989; Brent and Kolko 1990). In
decreasing prevalence, common methods of suicide
include firearms, hanging or suffocation, carbon monox-
ide poisoning, jumping, and overdose. By contrast, the
most common method among unsuccessful attempts is
overdose, followed by wrist cutting (Holinger 1990; Low
and Andrews 1990). Some 90 per cent of suicide attempts
in the young – over 300 000 cases annually – are inten-
tional poisoning (Trautman and Shaffer 1989).
Historically, white adolescents have been about twice
as likely as African-Americans to commit suicide, but
over the past ten years this ratio has been falling.
In a study comparing adolescent suicide victims to a
control group of non-suicidal adolescents, there was no
significant difference found in socioeconomic status
(Shaffer and Craft 1999). Some 40 per cent of gay and
lesbian youths have been reported to have a history of
suicidal ideation (Proctor and Groze 1994), but this
appears to be a consequence of increased risk for mood
disorder and other mental health problems which are risk
factors for suicide (Fergusson, Horwood, and Beautrais
1999), rather than related directly to stressors of stigma-
tization (Shaffer et al. 1995).
Suicidal ideation and attempts are much more fre-
quent than completed suicide. McKeown et al. (1998)
found a one-year incidence rate for attempts of 1.3 per
cent (approximately 100 times the rate for completed
suicide). Estimates of suicidal ideation range from 7 per
cent to 60 per cent (Harkavy Friedman et al. 1987; Joffe,
Offord, and Boyle 1988; Garrison et al. 1991) and show
different demographic patterns from completed suicide.
Suicidal ideation is over four times as common in girls,
and suicide attempts are three times as common when
compared to boys (Joffe, Offord, and Boyle 1988).
Although completed suicide is rare in prepubertal children,
self-destructive thoughts and behavior are frequent in this
408 Family law and domestic relations
young age group. Those in this age group, and those that
express suicidal ideation are more likely to have symptoms
of psychiatric illness and are more likely to evidence sui-
cidal behavior later in adolescence (Pfeffer 1997).
Risk factors and precipitants
Predicting suicide in an individual case is clouded by the
fact that completed suicide is rare when compared with
clinical presentations of suicidal ideation and suicide
attempts. Similar to the adult population, there are no
studies which demonstrate factors which allow a clinician
to accurately predict which adolescents will commit sui-
cide. Research has therefore focused on risk factors, those
characteristics which appear at greater frequency in the
population of those who have completed suicide when
compared to other groups. Since many youths who com-
plete suicide were not previously in treatment, research
assessment of those who have committed suicide is most
commonly carried out utilizing psychological autopsy.
The suicide risk factor literature is complex, reflecting
changing rates and patterns of suicide, significant age
and sex differences, and different sample populations,
comparison groups, and statistical methods. Many differ-
ent factors have been identified as increasing risk when
compared to normal subjects. Risk factors commonly cited
in the literature appear in Table 42.1.
Clinically, suicidal ideation, especially when coupled
with a plan involving lethal means, or a recent attempt,
Table 42.1 Summary of leading risk factors
Individual factors
Previous suicide attempt
High intent/lethality of method
Psychopathology
Major depression
Bipolar disorder
Substance abuse comorbid with other
psychopathology
Schizophrenia
Conduct or personality disorder, especially with
impulsive characteristics
Helplessness and hopelessness
Demographic factors
Over age 14, risk increases with age
Male
White
Unwed/unwanted pregnancy
Family and environmental factors
Firearm in the home
Family pathology/discord
Abuse (physical or sexual)
History of violence
Recent stressors
Separation
Arrest/legal problems
are most often the trigger to a judgment of imminent
danger requiring hospitalization. In psychological autopsy
studies, previous attempts have been found to be the
strongest risk factor for boys, increasing the risk about
thirty times over the normal population (Shaffer et al.
1996; Brent et al. 1999). Multiple past attempts increase
the risk. Individuals who attempt suicide make further
attempts at a rate of 6 per cent to 15 per cent per year.
The time of greatest risk for another suicide attempt is
within the first three months to two years following an
initial attempt.
Retrospective risk factor studies have consistently
found affective disorder to be a potent risk factor for
adolescent suicide (Shafii et al. 1985; Rich, Young, and
Fowler 1986; Shaffer et al. 1996; Brent et al. 1999). One
longitudinal study found that 4.4 per cent of children
diagnosed with major depression committed suicide in
the following ten years (Rao et al. 1993). Affective disorder
appears to pose a risk of over nine times that of the nor-
mal population. Two well-controlled studies (Brent et al.
1993b; Shaffer et al. 1996) both found high rates of psy-
chiatric disorder, around 90 per cent, in suicide com-
pleters. Major depressive disorder was the most prominent
finding, and poses the most risk. Bipolar disorder and con-
duct disorder were also found to elevate risk. Substance
abuse was an especially potent risk factor when comorbid
with affective illness, and may account for more attempts
(Gould et al. 1998a) and for higher suicide rates in older
adolescents (Brent et al. 1999). Substance abuse also sig-
nificantly raises risk when comorbid with disruptive
disorders (Renaud et al. 1999). While the majority of
completers had longstanding symptoms, in one study
(Brent et al. 1993b) about one-third of the depressed
group had developed symptoms in the previous three
months. Conduct disorder appears to be a potent risk
factor for boys, but not for girls. Patients suffering from
schizophrenia are at considerably increased risk for sui-
cide, but schizophrenia has a low incidence in children
and adolescents. In the absence of clear psychopathology,
suicide is associated with recent legal or discipline prob-
lems, interpersonal loss or conflicts, and the presence of
firearms (Brent et al. 1993c; Marttunen et al. 1994).
Axis II psychopathology is also found in many sui-
cide completers. Cluster B (impulsive-dramatic) and C
(avoidant-dependent) were found to be more common
in suicide victims than in controls (Brent et al. 1994a).
Antisocial personality disorder traits are significant risk
factors (Brent and Kolko 1990; Low and Andrews 1990;
Marttunen et al. 1991). A history of past violence or
aggressivity toward others has been correlated with
increased suicidality (Morewitz and Morewitz 1991). In
these individuals, violence directed toward themselves
may be an expression of vengeance toward others, or may
be a method of relieving pent-up tension. Impulsivity is
often a characteristic, along with poor frustration toler-
ance and difficulty delaying gratification. Another com-
mon characteristic is a history of interpersonal difficulties.
 Forensic aspects of suicide and homicide in children and adolescents 409
Self-poisoning is more common in this group (Brent and
Kolko 1990). Females with learning disabilities have been
found to have twice the risk for suicidal behavior and
violence, in comparison to peers (Svetaz, Ireland, and
Blum 2000). Some biological factors have been impli-
cated, including genetic factors through twin studies
(Roy, Segal, and Sarchaipone 1995) and preliminary
findings of cerebrospinal fluid (CSF) monoamine meta-
bolite abnormalities similar to suicidal adults (Kruesi
et al. 1988).
Family stressors constitute a second domain of risk
factors for suicide. Factors that have been identified
include family member suicide attempts (Brent et al.
1996), not living with both parents (Groholt et al. 1998),
family history of depression and substance abuse (Brent
et al. 1988), intrafamilial abuse (Shaunesey et al. 1993;
Brown et al. 1999), and parent–child discord (Brent
et al. 1994b; Gould et al. 1996). Parental divorce does not
appear to be a potent risk factor (Gould et al. 1998b).
A family with psychiatric complications increases the
emotional stress in the household and may weaken the
child’s support system. Those completing suicide are
more likely to have experienced rejection by their fathers,
and have often experienced the death of their mother by
suicide (Husain 1990). Children and adolescents also
react strongly to the suicide of a family member. Pfeffer
et al. (1997) found that in 40 per cent of families that had
a suicide, a child developed moderate PTSD, and in 31
per cent of families, a child developed suicidal ideation,
although none made suicide attempts.
Beyond the family, environmental factors can influ-
ence suicidality. Personal contact with a suicide victim
can lead to increased suicidal behavior, such as a cluster
of incidents in a single community. Media coverage of
suicide – factual or fictional – has been associated with
transient increases, especially among younger adolescents
(Holinger 1990). Imitation seems most likely to occur
among adolescents with pre-existing risk factors (Shaffer
et al. 1990). Widespread societal issues, particularly the
economy, war, and population shifts, have also been cor-
related with changes in suicide rates (Holinger 1990).
Many, but by no means all, suicides have a clearly
identified precipitant, although a stressor in the absence
of pre-existing vulnerability likely does not cause suicide.
Marttunen, Aro, and Lonnqvist (1993) identified a pre-
cipitant in 70 per cent of a series of cases. Of those, half
occurred in the 24 hours preceding the suicide. Interper-
sonal problems, particularly separations, were the most
common stressor. Among those who complete suicide,
conflict is most commonly with a parent (Brent et al.
1988). Among those who attempt suicide, other precipi-
tants include physical or sexual abuse, family discord,
unwanted pregnancy, and parental psychiatric illness
(Brent and Kolko 1990; Morewitz and Morewitz 1991).
Nearly 75 per cent of adolescents report feeling angry
rather than sad at the time of a suicide attempt
(Trautman and Shaffer 1989). Of particular interest to
forensic psychiatrists, arrest is a risk factor as a precipi-
tant for suicide. In one study (Brent et al. 1993a), among
that minority of adolescents who did not appear to have
a psychiatric disorder, 43 per cent had legal problems or
discipline in the prior year.
Firearms are the most common method of commit-
ting suicide, and firearms, particularly handguns, in the
home are associated with a four-fold increase in risk for
suicide (Brent et al. 1993c).
Between 30 per cent and 50 per cent of adolescent sui-
cide victims have had prior contact with a mental health
professional (Blumenthal 1990), but there is a lack of evi-
dence showing that interventions affect statistical suicide
rates (Holinger 1990; Shaffer et al. 1990). Few victims
were in active treatment at the time of a suicide, and
non-compliance with outpatient treatment is correlated
with increased risk for a recurrence of suicidality
(Greenhill and Waslick 1997).
Assessment
Asking about depressive feelings and symptoms, suicidal
ideation, and a history of attempts of self harm should
be a routine part of the initial evaluation of any adoles-
cent or depressed child. The assessment of suicidality
generally focuses on the risk and protective factors iden-
tified above, and information from sources such as
parents and prior psychiatric records, when available,
should be sought. Information from sources other than
the identified patient should be considered seriously, as
individuals with suicidal ideation may be unlikely to
reveal their true feelings (Shaffer et al. 1990). A patient
with a constellation of risk factors which does not
include moderate to high intent or a recent suicide
attempt generally does not require hospitalization on the
grounds of suicidality because of the low power of such
risk factors to predict in the short-term future (although
the youth’s condition may warrant hospitalization on
other grounds). The threshold issue is generally the pres-
ence of thinking about suicide or a recent attempt.
Characteristics of attempts with high intent include
lethality of method, gestures of saying ‘goodbye,’ such as
giving away belongings, leaving a note, writing a will, and
efforts to minimize or prevent discovery and rescue.
Pfeffer (1998) has proposed a decision tree for interven-
tions for suicidal tendencies, and the American Academy
of Child and Adolescent Psychiatry has developed prac-
tice parameters for the assessment and treatment of
suicidal behaviors (American Academy of Child and
Adolescent Psychiatry 2001). The severity of suicidal
ideation needs to be assessed. This involves evaluating the
nature of the youngster’s thinking, whether he or she has
formulated a plan, the lethality of the plan, access to
means, the youth’s level of helplessness and hopelessness,
and the details of any recent attempts. Interviews with
family members and medical and school records may
410 Family law and domestic relations
provide useful additional data. Once suicidal thinking has
been identified, other risk factors take on added signi-
ficance. It is important to pay attention to the dynamic
factors, including which stressors have precipitated suici-
dal thinking or past attempts, and to assess the likelihood
of such stressors recurring.
In evaluating protective factors, the clinician needs to
look to the nature of available social support, especially
from the family; internal resistances to suicide, such as
religious objections; the extent to which stressors in the
environment can be ameliorated; and the usefulness of
the family in monitoring the youngster’s thinking and
behavior.
Treatment
Unfortunately, no particular treatment has been shown to
be especially effective in suicidal youths, despite a variety
of individual, institutional and community programs
(Greenhill and Waslick 1997; Shaffer and Craft 1999).
Until research on effective treatment becomes available,
clinicians will need to rely on accumulated clinical wisdom.
Treatment encompasses four major components: protec-
tion of the patient; continuing assessment of risk; amelio-
rating risk factors; and enhancing protective factors.
Protection of the patient is the first consideration.
In outpatient treatment, it is important to involve the
family in monitoring and supporting the patient, making
firearms and lethal medications unavailable to the
patient, and forging an alliance for supporting continu-
ing treatment. The family must feel comfortable with the
outpatient plan and agree to accept some of the respon-
sibility for the patient’s safety. One important method of
assessing a patient’s capacity to be treated as an outpa-
tient is to simply ask what he or she would do if stressors
recurred. No-suicide contracts are often used in treat-
ment, but whether such a contract provides much pro-
tection remains unclear (Reid 1998). If the outpatient
plan does not appear likely to manage the suicide risk,
the youth is generally hospitalized. Involuntary hospital-
ization may be required if the parents refuse voluntary
admission of their child. While hospitalized, an appro-
priate level of observation should be maintained. During
periods of active suicidal or self-destructive ideation,
patients may require continual monitoring until such
impulses have resolved.
Treatment should include addressing and diminishing
those characteristics that constitute dynamic risk factors,
including the treatment of underlying psychopathology.
Depression in children and adolescents may not present
with the classic diagnostic features found in adults. The
American Academy of Child and Adolescent Psychiatry
has published practice parameters for the assessment and
treatment of several conditions which elevate the risk
for suicide, including depression (AACAP 1998) and
bipolar disorder (AACAP 1997). Medication is frequently
utilized, and the clinician should consider the possibility
the patient will overdose and either arrange for parental
control of the medication or prescribe non-lethal
quantities.
Psychotherapy plays an important role in treatment in
providing information about continuing risk, delineat-
ing how the youth thinks about suicide, addressing
underlying psychopathology, helping the adolescent
cope with such stressors as may be present, and enhanc-
ing protective factors such as more adaptive defenses or
coping strategies. Some factors are best dealt with in a
family context, including ameliorating disruptive or
stressful family patterns and eliminating access to firearms.
Unfortunately, parental compliance with a recommenda-
tion to remove firearms is fairly low, even when parents
are provided with considerable information about the
risks and strong recommendations (Brent et al. 2000).
Working to increase family support is an important com-
ponent of enhancing protective factors.
Legal considerations
In an outpatient treatment context, when the clinician
determines the adolescent is at serious suicide risk, he or
she will probably want to hospitalize the patient. In most
jurisdictions, the consent of a parent is sufficient for
hospitalizing a minor, even over the minor’s objections.
State laws vary as to the age at which an adolescent may
object, the procedures available to an objecting minor,
and whether certain youths, such as ‘mature minors’ are
able to give consent as though they were adults. If the par-
ents do not consent to hospitalization or are unavailable,
then involuntary hospitalization is available provided that
the youth meets the state’s commitment criteria. In treat-
ing a child or adolescent depressed patient, one dilemma
which can arise is the extent to which the adolescent’s
confidentiality should be broken and the parents informed
of the patient’s status. It is useful at the outset of treat-
ment to discuss with the minor patient the conditions
under which the therapist will communicate informa-
tion to the parents. When the clinician feels the need to
discuss his or her patient’s condition – for example, if a
youth becomes more depressed and the therapist wishes
to advise the parents to remove firearms from the home –
it is preferable, when possible, to raise the need to talk to
the adolescent’s parents with the adolescent and obtain
his or her assent. If the adolescent objects, but the ther-
apist has significant concerns about the youth’s safety, the
therapist generally may discuss these issues with the par-
ents over the adolescent’s objections. This is allowable
because in most cases the parents legally speak for the
child and control access to information about treatment.
In rare instances, such as when the minor is an emanci-
pated minor or has ‘mature minor’ status in a state which
recognizes such a status, such a breach may not be possi-
ble, and the clinician then has fewer options. If the
 Forensic aspects of suicide and homicide in children and adolescents 411
opportunity to involve the adolescent’s support system is
limited, the threshold for hospitalization is decreased.
Forensic psychiatrists are sometimes involved in deter-
mining whether the manner of death was unintended
autoerotic asphyxiation (Sheehan and Garfinkel 1988),
other accident, or suicide. The techniques employed in
such analyses are similar to those utilized for adults.
A completed suicide by a patient in treatment may
give rise to a malpractice action against the treating
psychiatrist. When an outpatient commits suicide, a central
question is likely to be whether the suicide was reason-
ably foreseeable, under the theory that if so, there was a
duty to protect the patient, generally by hospitalizing
him or her. Other issues which may come into play include
whether informed consent was obtained for certain com-
ponents of the treatment, whether the parents were suffi-
ciently informed and involved in managing the patient,
and whether the psychiatrist made available the means
for suicide, as when an adolescent overdoses on anti-
depressant medication (less common now with reduced
use of tricyclic antidepressants), or any other defects which
rendered the care below the standard of practice. In mal-
practice litigation involving an adult who committed sui-
cide, the degree to which the adult was responsible for his
or her own acts, and thus a contributor to the outcome,
is often important. When a minor commits suicide, the
presumption that minors are not as competent as adults
often reduces the responsibility of the minor for his or
her actions. As is typical in malpractice cases, the psych-
iatrist’s notes in the chart will be carefully scrutinized.
When assessing a suicidal youth who is going to be
treated as an outpatient, it is therefore very important
from a risk management perspective to document care-
fully the assessment process, noting which risk factors
and protective factors were assessed. The assessment
process is an ongoing one, and documentation of the
continuing assessment of risk is useful. In those cases in
which the patient is not hospitalized, it is useful to detail
the clinician’s reasoning about how the risk factors were
weighed in devising the treatment plan. The most diffi-
cult patients from a risk management perspective are
those who are at chronic risk for suicide, for whom long-
term hospitalization is not a reasonable option, but
where the clinician is aware that there is significant risk
that at some point an attempt may miscarry and result in
a lethal outcome. In cases in which the clinician believes
that his or her treatment plan carries significant, but jus-
tified, risk, one of the best risk management strategies is
‘when in doubt, shout’ (Rappeport 1984) – have another
clinician evaluate the patient and document his or her
findings. In the event of an unexpected adverse outcome,
the test will be whether the psychiatrist acted reasonably,
and having the report of a second reasonable clinician who
evaluated the patient can strongly counteract the retro-
spective analysis of a plaintiff’s expert who was not there.
In a malpractice case following an adolescent com-
mitting suicide on an inpatient psychiatric unit, the two
most common issues are completeness of the assessment
of the patient’s suicidality by the doctor and hospital
staff, and the adequacy of the measures to protect the
patient. Again, the quality of the continuing assessments
and the extent to which they are documented are very
important. One common issue is whether the attending
psychiatrist was aware of clinical findings by the staff.
Managed care has increased the threshold of severity
necessary to justify inpatient hospitalization, and an
increasing percentage of inpatients are hospitalized
because of concerns about their suicidality. Therefore,
the presence of some risk factors is quite common among
inpatients. Once suicidal risk is noted, a central issue will
be the level of monitoring of the patient, and whether
decreasing the level of monitoring was justified. Matters of
self-destructive and suicidal behavior are likely to heighten
the anxiety of the patient’s relatives, opening the door to
questioning and scrutinizing the psychiatrist’s treatment.
One risk is that the psychiatrist’s own reaction to a
patient’s suicidality will lead to neglect of basic good prac-
tice (Simon 2000). Psychiatrists need not be intimidated
by the complexities and uncertainties of dealing with sui-
cidality. It is helpful to keep in mind that courts, peer
reviewers, and managed care agencies ordinarily accept
clinical decisions that are in keeping with a community’s
general standard of care, based on a rational consideration
of the documented facts, and made in the service of the
patient’s welfare and well-being (Simon 1987).
HOMICIDE
Epidemiology
Homicide is currently the second leading cause of death
for adolescents after automobile accidents (National
Center for Health Statistics 2001). In 1999, the overall
rate of homicide for 15- to 19-year-olds was 10.6 per
100 000. Homicide at age fourteen years and below is
much less common. Rates for males are much higher
than rates for females, and, for black males aged 15–19
years, homicide was the leading cause of death, at a rate
approximately triple that of motor vehicle accidents.
Death rates from homicide rate for 15- to 19-year-olds
were fairly flat at about 10–12 per 100 000 from 1976
until 1987 when, within the next four years, the homicide
rate more than doubled to reach a peak of over 20.7 per
100 000 in 1993. The rate then declined significantly
through 1999, returning to a rate of about 16.6 per
100 000 (National Center for Health Statistics 2001).
A similar pattern is seen in the FBI statistics (2001)
pertaining to juvenile homicide offenders. In 1997, juve-
niles were determined to have committed approximately
1400 murders of the 18 200 murders in the United States.
While homicide is the most accurately reported crime,
in approximately 38 per cent of murders, the age of the
412 Family law and domestic relations
offender cannot be determined. In extrapolating, it
appears that approximately 2400 murders (or 13 per
cent) involved at least one offender who was under the
age of 18 years at the time of the crime. This represents a
decrease of about 45 per cent from the peak in 1994. Of
murders involving a juvenile, 31 per cent also involved an
adult, and 13 per cent involved another juvenile. In all,
44 per cent of all murders involving a juvenile involved
more than one perpetrator. The vast majority (93 per cent)
of the known juvenile homicide offenders were male, and
more than half were African-American.
It is not clear why the homicide rate accelerated so
quickly, nor why it has come back down. What is clear is
that the increase was due almost entirely to an increase in
firearm use among youth (Snyder and Sickmund 1999).
Rates of intrafamilial homicide and homicide with other
weapons have stayed flat since the early 1980s. Blumstein
and Cork (1996) hypothesized that the increase followed
a rapid increase of involvement of adolescents in the
drug trade, which in turn led to increased gun carrying
by youths. More recent data have provided further sup-
port to this hypothesis (Cork 1999), though why the
rates subsequently declined, however, remains unclear.
What is clear is that these changes in homicide rates
mirrored a similar pattern of changes in rates of violent
crime in the adult population, although the magnitude
of increase was far greater among juveniles, and, interest-
ingly, in youth suicide rates.
Snyder and Sickmund’s analysis of FBI data (1999)
shows that the likelihood of being a juvenile offender
increases through adolescence. Murder victims were more
likely to be acquaintances of the juvenile than strangers:
in 1997, 56 per cent of juvenile murder victims were
acquaintances, 34 per cent were strangers, and approxi-
mately 10 per cent were family members. Girls made up
only 7 per cent of the known juvenile homicide offenders,
and girls were more likely than boys to use a knife or
means other than a firearm.
Types of juvenile homicide
Homicide is a heterogeneous phenomenon among ado-
lescents: the shooter who has been ‘dissed’ outside a club,
the adolescent girl who kills her stepfather because he has
been sexually abusing her, and the psychotic adolescent
who opens fire on his classmates at school represent very
different pictures in terms of offenders, motivations, and
victims. Studies of juvenile murderers have tended to be
either interview studies of a convenience sample seen by
the author (Lewis et al. 1988; Benedek and Cornell 1989;
Myers et al. 1995) or analyses of FBI crime statistics. It is
difficult to blend together these two different levels of
analysis. There is a considerable literature on juvenile vio-
lence and its development, and homicide may present as
the peak in severity of a violent career. Unlike suicide,
it does not appear that juvenile homicide is primarily
caused by mental health problems – although most offend-
ers have psychiatric disorders – and many juvenile killers
had not received psychiatric attention prior to offending.
Cornell, Benedek, and Benedek (1987) proposed a typol-
ogy of three types of juvenile homicide: arising out of
conflict; a psychotic perpetrator; and homicide commit-
ted during the course of another crime. Findings over the
past fourteen years suggest it is useful to subdivide the
conflict group into street confrontation, intrafamilial,
and other, and to consider school shootings with multi-
ple victims as a rare, but separate group. In addition,
there are even less common subgroups, such as sexual
homicide (Myers 1994), which have their own distinct
characteristics.
Street homicides
Street violence is the most common form of juvenile homi-
cide. Statistics often do not distinguish very clearly between
street homicides occurring during the commission of
another felony and street homicides arising out of conflict
between youths. Between 1980 and 1997, when juveniles
killed other juveniles, firearms (usually handguns) were
used 77 per cent of the time (Snyder and Sickmund 1999).
Gun-carrying among adolescents is a major risk
factor for homicide, as confrontations quickly escalate in
lethality when one of the participants is armed. In many
instances, the distinction between aggravated assault and
homicide turns more on chance factors affecting the path
of the bullet than on the intent of the shooter. When ado-
lescents are asked about their reasons for carrying guns,
keeping oneself safe is by far the most commonly cited rea-
son (Sheley and Wright 1993; Ash et al. 1996). Although
some adolescents report that they derive an enhanced sense
of power or self-respect from carrying a gun, few claim that
they carry a gun for the purpose of committing a crime.
Gun-carrying by adolescents appears to be reactive in
nature and is done because they fear harm on the street or
at school. Youths, particularly in minority groups, do face a
much higher risk of victimization than the population at
large. According to data from the FBI’s Uniform Crime
Reports (FBI 1999) in 1997, 17-year-old African-American
males were murdered at a rate more than seven times
higher than their white peers, and ten times higher than the
national average for all ages. Adolescents who feel unsafe –
especially those who live in inner-city neighborhoods
where there is an ‘ecology of danger’ – are more likely to
arm themselves for protection. Although the effectiveness
of this strategy is debatable, handguns increase the likeli-
hood of a violent confrontation. Whether fatal or non-
fatal, street shootings heighten the overall level of fear in
a community, which in turn leads to rising levels of fear
that encourage even more gun-carrying (Blumstein and
Cork 1996).
There are three key points in the chain of events that
precedes almost every street shooting: first, the decision
 Forensic aspects of suicide and homicide in children and adolescents 413
to acquire a handgun; second, the decision to carry it;
and finally, the decision to use it. These are also the three
key points for intervention. Most adolescents who become
involved with guns acquire their first firearm in early
adolescence (Ash et al. 1996; Brener et al. 1999). The
majority receive their first gun from someone else, whether
from a parent giving a child his first hunting rifle as a
Christmas gift, or a teenager giving his best friend an
illegally acquired handgun for protection. By middle to
later adolescence, when delinquent boys are more likely
to be arrested, they have begun to actively obtain hand-
guns from a variety of sources, including buying from a
drug dealer or an adult ‘straw purchaser,’ borrowing from
a friend or acquaintance, or theft.
In an altercation between two inner-city youths, at
least one of whom is armed, issues of respect and tough-
ness – ‘being the man’ – are very important, and perceived
attacks on identity can rapidly escalate to lethal violence.
In an analysis of transactions leading to inner city street
shootings, Fagan and Wilkinson (1998) emphasize the
importance of a drug and alcohol context. Drug use
worsens judgment, and the drug trade itself provides fer-
tile ground for disputes over territory and payment. Fagan
and Wilkinson emphasize the need to maintain hierarchy
and respect in ways which feed into maintaining a violent
identity. The threat of gun violence introduces new com-
plexities for development of social identity, resulting in the
paradox that creating a ‘safe’ social identity may require
the use of extreme forms of violence.
In Myers et al.’s (1995) series of juvenile murderers
who were seen for mental health evaluation, those juven-
iles who committed homicide during the course of
another crime were found to have very high (⬎95 per
cent) rates of family dysfunction, disruptive behavior
disorders, previous violence towards others and prior
arrests, and high (⬎70 per cent) rates of school failure,
family violence, and learning disabilities. Benedek and
Cornell (1989) reported consistent findings, but gener-
ally lower rates of disorder. In both groups, fewer than
25 per cent had received prior mental health treatment.
Fendrich et al. (1995) found that about one-third of
juvenile murderers were using substances, primarily alco-
hol, at the time of the offense – a rate that was lower than
all but the oldest group of adult offenders.
Intrafamilial homicide
Rates of killing a family member have been holding steady
or decreasing over the past twenty years, and in 1997
accounted for 10 per cent of juvenile homicides (Snyder
and Sickmund 1999). Parricide – killing a parent – is the
most common form, is generally found in the context of
abuse (Heide 1995), and is usually committed by older
and depressed adolescents (Dutton and Yamini 1995). In
many cases, unlike with street homicides, the adolescent
does not exhibit a prior history of delinquency. The
criminal defense of these youth often emphasizes the
abuse victim status of the killer as a mitigating circum-
stance of the killing.
Psychotic motive
While psychotic motive overlaps the other categories, it is
frequently dealt with separately because it has different
implications with regard to criminal disposition and
treatment. In criminal justice statistics, psychotic motive
is not broken out as a separate category, so overall rates
are unclear, but even in series referred to mental health
professionals psychosis is uncommon, accounting for
less than 7 per cent of cases (Benedek and Cornell 1989;
Meloy et al. 2001). Myers et al. (1995) found no psychotic
youth in their sample, although they found a history of
psychotic symptoms in 71 per cent of subjects. Psychotic
juvenile defendants may be found not criminally respon-
sible and referred for treatment of their psychosis.
School mass shootings
Statistically, schools are a safe place to be, but between
1996 and the school shootings in Littleton, Colorado in
1999, there were eight highly reported cases of multiple
shootings at school by students, including two instances
in which two students participated in shooting at
classmates (for descriptions, see Verlinden, Hersen, and
Thomas 2000). These cases have generated enormous
amounts of media coverage and grave concerns about
school safety. The clustering of the shootings in such a
brief period strongly suggests a contagion effect. Such
shootings, while fortunately very rare, nevertheless create
a climate of fear in schools which has an impact on stu-
dents’ emotional well-being, their readiness to learn, and
the hiring and retention of teaching staff.
Detailed psychiatric information about school shoot-
ers is difficult to obtain: some of the killers committed
suicide immediately after the shootings, and some are
protected by the confidentiality of the juvenile court.
Therefore, most information about them has been
limited to publicly available data. Verlinden, Hersen, and
Thomas (2000) identified a number of individual offender
commonalities, including prior threats of violence, hav-
ing a detailed plan, blaming others for problems, having
a history of regression, uncontrolled anger, depression,
troubled family relationships, poor coping and social skills,
alienation from peers, fascination with weapons and
explosives, preoccupation with violent media and music,
and attack-related behavior such as an interest in tar-
geted violence, and social-environmental factors such
as access to firearms. Consistent findings were found by
Meloy et al. (2001) in a study of juvenile mass murderers.
In all cases, there was a failure of peers to report threats
of serious violence to others and to consider the threats
seriously.
414 Family law and domestic relations
Legal issues
When a therapist is aware that a patient is dangerous
to others because of mental illness, he or she will most
commonly hospitalize the patient, involuntarily if neces-
sary. In many states, therapists now have a Tarasoff-type
duty to protect third parties, though the precise nature of
the duty varies from state to state. The laws with respect
to civil commitment and protection of third parties
embody the same principles for adolescents as for adults.
Many states responded to the wave of juvenile vio-
lence in the early 1990s by passing laws which make it
easier to try an adolescent in adult court, either by enact-
ing discretionary waivers, which give the prosecutor dis-
cretion as to whether to waive the adolescent defendant,
or mandatory waivers, laws which require that adoles-
cents over a certain age and charged with certain crimes
be tried in adult court. Homicide, being the most serious
offense, heads the list of crimes for which waivers are
invoked. Therefore, many youth arrested for homicide
are tried as adults. In adult court, issues of competency to
stand trial and insanity defense can be considered. The
issue of competency to stand trial, when applied to juven-
iles, is complex and not well worked out. While many
middle to later adolescents make decisions similar to
adults, the determination of a younger adolescent’s
competency may turn on complex developmental issues.
Grisso (1997, 1998) has discussed some of the specifics of
assessing these defendants. Adolescents whose competency
is seriously diminished will often be remanded to juven-
ile court. In addition to competency to stand trial, com-
petency to confess may also be at issue. For homicide, in
some jurisdictions the death penalty is a possibility. The
Supreme Court has held that execution for a crime com-
mitted at age fifteen years is unconstitutional (Thompson v.
Oklahoma 1988), but is allowable for crimes committed
at age sixteen years (Stanford v. Kentucky 1989).
If the juvenile is not automatically waived to adult
court, the issue of possible judicial waiver to adult court
needs to be considered. In some states, competency to
stand trial is now required also to be tried in juvenile
court. Younger adolescents are more likely to be found
incompetent to stand trial on developmental grounds. If a
juvenile defendant is found incompetent to stand trial,
the question of how their competence is to be ‘restored,’
when what may be needed is time for them to cognitively
mature, poses knotty problems for interim disposition.
Prevention
Psychiatry is fairly weak at predicting violence towards
others, and most of the mental health research carried
out has focused on adults, particularly psychiatric inpa-
tients. It is unclear the extent to which the principles
developed for adults generalize to adolescents, particu-
larly since psychosis and substance abuse play a smaller
role in adolescent violence. If a patient expresses homi-
cidal intent, a clinician has good grounds to intervene,
but in the absence of expressed intent, risk factors such as
a prior history of violence are so non-specific as to be
of little help in most individual cases. Homicide which
occurs impulsively, without prior threats or expressed
ideation, is therefore essentially unpredictable. Most
threats by adolescents are first heard by peers, and then
may be brought to the attention of school or law enforce-
ment personnel, and psychiatrists may be asked to help
evaluate their seriousness. Threat research has largely
grown out of law enforcement work focused on adults,
but there is reason to think similar principles apply to
adolescents. Threat evaluation has moved away from
profiling the subject towards evaluating pathways that
lead to violent action. Put another way, look less at the
characteristics of the subject, and more at recent behav-
ior which suggests he or she is moving on a path towards
violence (Borum et al. 1999). Threat assessment proced-
ures first developed for the Secret Service are now being
implemented by law enforcement (Fein and Vossekuil
1998). These emphasize that attack is the consequence of
an understandable and discernable process of thinking
and behavior. Attack following threat is targeted, not
impulsive or spontaneous. Evaluation emphasizes situa-
tional variables, such as the likelihood of interaction
between attacker and victim, stress, and the current
situation. Recent behaviors such as planning and making
preparations (obtaining weapons, etc.) lead to a conclu-
sion of high level threat. The FBI protocol developed
for evaluation of threats reported to school personnel
(O’Toole 1999) embodies these principles.
The widely fluctuating rates of juvenile homicide over
the past decade, and the difficulty in identifying prospec-
tive murderers, suggest that interventions at the commu-
nity level are likely to have the most effect in reducing
mortality. Juvenile homicide is the tip of the iceberg of
youth violence, and reducing youth violence generally is
likely to reduce the juvenile homicide rate. The report of
the Surgeon General on youth violence reviews the effec-
tiveness of strategies to reduce violence (Satcher 2001).
Given that most homicides are firearms-related, reduc-
ing the carrying of firearms appears among the most
promising strategies targeting juvenile homicide. While a
sense of need for protection is the leading factor moti-
vating gun-carrying, fear of being caught with a gun is
the strongest deterrent (Ash et al. 1996; Freed et al. 2001).
The federal Youth Handgun Safety Act (1996) makes it
illegal for juveniles to carry a handgun. Several jurisdic-
tions have implemented promising programs to deter
gun-carrying by juveniles (Office of Juvenile Justice and
Delinquency Prevention 1999). Some pilot strategies
which appear useful are enhanced prosecution of gun
offenders (Seattle), directed police patrols aimed at deter-
ring illegal gun carrying (Kansas City, MO), parental
consent for police to search a juvenile’s room and confis-
cate any firearms found there (St. Louis), and holding a
 Forensic aspects of suicide and homicide in children and adolescents 415
gang responsible for the actions of individual members
(Boston). There is encouraging evidence that gun-carrying
by adolescents is on the decline, in tandem with adoles-
cent homicide rates (Ash and Kellermann 2001). There is
ample, albeit indirect, evidence that if an area is per-
ceived as safe and well-policed, young people are less apt
to bring guns there. Schools are one clear example of this.
A recent report from the US Departments of Justice and
Education finds that rates of gun-carrying on school
property have been falling and that youths feel safer in
school than previously (Kaufman et al. 2000). It is
unclear whether teenagers decline to carry guns to school
because they feel that they are unlikely to encounter an
armed rival or because they fear detection by vigilant
teachers, classmates, or school security technology and the
penalties of ‘zero tolerance’ policies. What is clear, how-
ever, is that the collective impact of these interventions has
been positive. Unfortunately, a similar level of effort has
not been expended to help adolescents feel safe in their
community, despite the fact that a teenager is much more
likely to be killed on the street than at school.
CONCLUSION
Adolescent violence, directed against self or others, exacts
an enormous toll on its victims, their families, and
society. Forensic psychiatrists are frequently consulted to
assess cases involving youth – primarily adolescents –
who are either thought to be at risk for killing themselves
or others, or have already done so. Because of the high
stakes involved, such cases generate great anxiety and
concern for evaluators, patients, and families. While a
good deal of group data about these juveniles has been
developed, our ability to predict accurately which indi-
viduals will carry out such violence remains severely lim-
ited. Clinical approaches for assessment and intervention
have been developed. While psychiatric intervention has
no doubt benefited many at-risk patients, rigorous research
has so far not demonstrated a consequent significant
decrease in death rates. This may in part reflect that many
youth who kill themselves or others never see a mental
health professional. Family and community interven-
tions may have the most effect in reducing mortality.
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The child as a witness
ROBERT SUDDATH
INTRODUCTION
A child may be a witness to a wide variety of events,
may be a crime victim, or may be accused of committing
a crime. In any of these circumstances, the child may
be asked to provide eyewitness testimony for a court or
other legal procedure. Before providing testimony, the
child may be questioned by professional investigators
as well as a variety of people with no special training in
forensic interviewing including family, school staff, and
medical professionals. These interactions, the passage of
time, and a wide variety of other factors may affect the
accuracy of a child witness. Because children are continu-
ously developing both cognitively and physically, their
ability to recall and, at a more basic level, to understand
events that they witness changes as they grow older.
Further, the response of children to factors that may
influence their memory of events changes as a child
matures. Younger children, in general, are less reliable
witnesses and more susceptible to factors that alter the
accuracy of their accounts of events. As children develop,
their memory improves and their susceptibility to sug-
gestion lessens. By adolescence, they are difficult to dis-
tinguish from adults, and like adults, they continue to
exhibit some memory errors and remain susceptible to
some degree of suggestion.
Psychiatrists may be involved with child witnesses in
several ways. Following an event, a psychiatrist may be
consulted regarding the most appropriate way to inter-
view a child witness, or may be asked to interview the
child to obtain their account of events. Psychiatrists may
be asked to offer an opinion regarding a child’s compe-
tency to testify or whether the child’s testimony has been
distorted in some way. Additionally, psychiatrists may
help guide the court regarding the impact of testifying on
a child and the most appropriate ways for a child to test-
ify. When a child does provide testimony, psychiatrists
may consult with investigators, attorneys, and judges
regarding the most appropriate way to interview the child,
43
particularly the way to obtain the most complete and
accurate information possible while minimizing trauma
to the child.
HISTORY OF CHILD WITNESSES
Early English and American history
The most famous cases in early American history that
involved child testimony were the Salem witch trials. In
these seventeenth century trials, child witnesses, aged five
to seventeen years testified to a variety of bizarre events
including observing the defendants flying on broom-
sticks (Starkey 1969). Nineteen defendants were executed
and several other defendants confessed to avoid execu-
tion (Trask 1975). For some, these events demonstrated
the risks of relying on child witnesses, while others have
interpreted these events as products of the children’s
social or religious environment (Hill 2000). Some authors
have described specific modern prosecutions involving
child witnesses as ‘witch hunts,’ drawing parallels to the
Salem trials; however, there are limits to this analogy
because many children have actually been abused and
have accurately reported their abuse.
Under English common law, children under age seven
years were not allowed to take the oath to testify (Goodman
1984). In 1770, an English court held that there was no
minimum age for children to be competent to testify
(Myers 1993). Some nineteenth century US courts were
reluctant or categorically refused to consider the testi-
mony of children; however, in 1895 the US Supreme
Court considered the issue of whether a child could
testify as a witness (Wheeler v. United States 1895). The
court found that an individual evaluation to determine
the competency of the child witness was appropriate.
Current US court practices, which allow individual deter-
minations regarding the competency of child witnesses,
began more than two centuries ago in English common
420 Family law and domestic relations
law and have been continuously refined and re-evaluated
since.
Early research relevant to child
testimony
The beginnings of psychology and psychiatry in the nine-
teenth century led to research focused on child develop-
ment and child psychology beginning in the early twentieth
century in both Europe and the United States. A major
early researcher in child cognitive development was
Alfred Binet who pioneered intelligence testing in chil-
dren. Binet documented both poor comprehension and
impaired critical review of information in children as
compared with adults; however, he also reported super-
ior memory ‘retention’ in children (Binet, Simon, and
Terman 1980). These authors additionally observed the
importance of the social context in which children are
questioned, noting distortions and attempts by children
to conform their opinions to those of adults (Binet
1900). As a student working in Binet’s laboratory, Jean
Piaget observed consistencies in the errors children made
on intelligence tests. By focusing on children’s reasoning
process and its interaction with their perceptions, Piaget
was able to describe child cognitive development in an
orderly, sequential manner (Piaget 1962). Notably, he
described characteristics of the thought process of devel-
oping children including several distortions (lack of
understanding of causality, egocentrism, animism) that
may directly affect their ability to observe, understand, or
report events (Piaget 1954). Piaget’s theory of develop-
mental stages may underestimate the abilities of young
children, and has been replaced by modern developmen-
tal psychologists with a continuum of development.
Until recently, there was minimal interaction between
the judicial system and child psychological research; how-
ever, some early investigators did study children’s abilities
as witnesses. Beginning in 1900, William Stern and his
wife carefully documented their own children’s cognitive
developments, paying particular attention to their recall
of events and factors that influenced their recall (Stern,
Stern, and Lamiell 1999). The Sterns reported several find-
ings that have been replicated using modern methodolo-
gies, including the limited quantity but superior accuracy
of free recall and the tendency of children to alter their
reports based on their expectations. They additionally
reported individual differences in children’s suggestibil-
ity and described circumstances that could minimize the
risk of suggestibility. Another European psychologist,
Varendonck, was an expert witness in a murder trial in
which the defendant was identified by a child following
suggestive questioning. To provide evidence for the trial,
he conducted studies using suggestive questioning of
several seven-year-old children. His results demonstrated
that all but a few of the children had incorporated some
of the suggested information into their accounts of events
(Varendonck 1911).
The child sexual abuse pre-school
cases of the 1980s
Beginning in the early 1980s there was a series of highly
publicized cases of alleged organized sexual abuse of large
numbers of pre-school children. The primary witnesses
in these cases were the alleged child victims. In many
cases testimony was provided by older children who were
asked to recall what had happened to them years earlier
when they attended a pre-school or day-care center. These
cases brought up questions about the credibility of the
child witnesses and further questions about the relation-
ship between interviewers, therapists, and children’s
suggestibility.
Perhaps the most well-known case involving multiple
allegations of child sexual abuse was the McMartin Pre-
School case. The case began in 1983, when a woman, who
eventually developed symptoms of paranoid psychosis,
reported that her child had been sexually abused at the
McMartin Pre-School in Manhattan Beach, California.
The parents of other pre-school children were sent a let-
ter from the police department asking them to interview
their children regarding sexual abuse. The District Attorney
eventually retained a sexual abuse ‘expert’ who testified
before congress that out of hundreds of cases of reported
abuse by children, she knew of only two who had incor-
rectly reported sexual abuse (United States Congress
1985). The children were interviewed repeatedly, and the
sexual abuse expert instructed the children’s other inter-
viewers in means of breaking down the children’s resist-
ance to overcome alleged threats by the defendants.
The McMartin Pre-School investigation and trials were
both expensive and controversial. Allegations against
the pre-school’s staff included systematic ritualized sexual
abuse of a large number of pre-school children as a part
of satanic cult worship. At the time of the initial investi-
gation there was very limited scientific knowledge about
children’s memory, suggestibility or the best way to inter-
view them. Ultimately, the juries were unable to convict
the defendants in the McMartin case. In part, this may
have been due to the jury’s lack of faith in the testimony
of the children; however, it was also clear that the children
had been interviewed with highly suggestive techniques
that might prevent the truth from ever being known. The
case consumed years of the defendants’, the victims’ and
their families’ lives, and factions of angry parents remain
convinced that their children were victims.
Additional, similar, well-publicized cases included:
Wee Care Day Nursery (1985, Maplewood, NJ), Little
Rascals Day Care (1989, Edenton, NC), and Wenatchee WA
(multiple prosecutions across the community: 1994).
These cases and other cases involving alleged organized
ritualized sexual abuse and an increasing frequency of
claims of abuse arising in the context of divorce and child
custody proceedings led to several studies of children’s
eyewitness memory and child interviewing in the 1980s
and 1990s.

U.S. SUPREME COURT CASES AND LAWS
PERTAINING TO CHILD WITNESSES
The first issue to be addressed by the US Supreme Court
pertaining to child witnesses was their competency to
testify. In the first three cases described below, the stand-
ards and procedures for determining competency were
clarified. These standards are reflected in the current
criminal and evidence codes of most states. Once chil-
dren were allowed to testify as witnesses, numerous other
issues became apparent. The remaining cases discussed
below attempted to balance the protection of child wit-
nesses and the optimal means of obtaining testimony
with the rights of the accused.
The competency of child witnesses
to testify
In Wheeler v. United States (1895), the defendant appealed
his murder conviction and death sentence on several
bases including the fact that the 5 1⁄2-year-old son of the
victim was allowed to testify. The court affirmed the con-
viction, allowing the child’s testimony. The decision indi-
cated that the child had stated he would tell the ‘truth’
and that if he lied a ‘bad man would get him’ or he would
‘go to jail.’ The opinion stated, ‘… the boy was not by rea-
son of his youth, as a matter of law, absolutely disquali-
fied as a witness … there is no precise age which determines
the question of competency. This depends on the cap-
acity and intelligence of the child, his appreciation of the
difference between truth and falsehood, as well as of his
duty to tell the former.’ This decision further defined the
process of defining competency: ‘The decision … rests
primarily with the trial judge, who sees the proposed wit-
ness, notices his manner, his apparent possession or lack
of intelligence, and may resort to any examination which
will tend to disclose his capacity and intelligence, as well
as his understanding of the obligations of an oath.’
The procedure for evaluating competency of child
witnesses was the major issue in Kentucky v. Stincer
(1987). The defendant was convicted of sodomy with three
victims, aged five, seven, and eight years. The seven- and
eight-year-old victims testified during the trial after they
were found competent in a hearing involving the judge,
the prosecutor, and the defense counsel. The questions
asked at the competency hearing involved determining
whether the children were ‘capable of observing and rec-
ollecting facts … narrating those facts to a court or jury,
and whether the child has a moral sense of the obligation
to tell the truth.’ The defendant appealed his conviction
based on his exclusion from this competency hearing,
which he stated, violated his Sixth and Fourteenth
Amendment rights. The Supreme Court upheld the trial
court’s conviction. The court found that the defendant’s
right to confront his accuser had not been violated because,
during the trial, ‘the two girls were cross-examined in
The child as a witness 421
open court with respondent present and available to assist
his counsel.’ Additionally, the court found that the defend-
ant’s due process right to be present at critical stages of a
criminal proceeding was not violated because ‘of the par-
ticular nature of the competency hearing, whereby ques-
tioning was limited to competency issues and neither girl
was asked about the substantive testimony she would
give at trial.’
The hearsay testimony of a 21⁄2-year-old child was the
key issue in Idaho v. Wright (1990). The defendant was
convicted of two counts of lewd conduct with her two
daughters ages 21⁄2 and 51⁄2 years. She appealed only the
conviction involving her 21⁄2-year-old daughter because
she believed that the child’s hearsay testimony was
not trustworthy or reliable. The younger daughter was
excluded from testifying based on a competency evalua-
tion that found her not ‘capable of communicating with
the jury’; however, a pediatrician was allowed to testify to
her statements under the state’s hearsay exception. The
US Supreme Court affirmed a lower court’s reversal of
the conviction. The court specifically found that the
pediatrician’s interview technique ‘lacked procedural
safeguards.’ Possible procedural safeguards discussed by
the court included the use of ‘videotape for preservation
and perusal by the defense.’ Importantly, the court refer-
enced research findings and concluded that ‘blatantly
leading questions were used’ and that the interview ‘was
performed by someone with a preconceived idea of what
the child should be disclosing.’ This decision is of par-
ticular relevance to clinicians who may give testimony in
court regarding interviews with child witnesses.
Uniform guidelines regarding the competency of
child witnesses were established through the Federal
Rules of Evidence (1984), which were enacted in 1975.
These rules broaden competency standards – ‘every person
is competent to be a witness except as otherwise provided
in these rules.’ Further, no ‘mental or moral qualifications
for testifying as a witness are specified’ and the notes
elaborate: ‘a witness wholly without capacity is difficult
to imagine. The question is one particularly suited to the
jury as one of weight and credibility.’ The majority of US
states have adopted these rules of evidence either expli-
citly or in some modified form in state law. For example,
California Evidence Code (California Codes 1995) states:
‘Except as otherwise provided by statute, every person,
irrespective of age, is qualified to be a witness and no
person is disqualified to testify to any matter,’ explicitly
allowing child witness testimony. New York Consolidated
Laws (1970) prohibit testimony of a child less than twelve
years old, ‘unless the court is satisfied that he understands
the nature of an oath,’ but allows for ‘unsworn evidence if
the court is satisfied that the witness possesses sufficient
intelligence and capacity to justify the reception thereof.’
Although the specifics vary, Federal jurisdictions and most
state codes allow hearsay evidence of children provided
their statements were obtained as a part of medical eval-
uation or treatment (Myers, pending publication).
422 Family law and domestic relations
Protection of child witnesses, the best
interests of a child and the right to
confront your accuser
The balance between protecting the privacy of child
witnesses and the rights of the media was the key issue
addressed in Globe Newspaper Co. v. Superior Court (1982).
Massachusetts law provided that for sexual crimes with
child victims, ‘the presiding justice shall exclude the
general public from the court room, admitting only such
persons as may have a direct interest in the case.’ A news-
paper publisher challenged this statute asserting that it
violated the First Amendment (United States Constitution)
by limiting an informed ‘discussion of governmental
affairs.’ The US Supreme Court recognized an interest in
‘safeguarding the physical and psychological well-being
of a minor’; however, it found that the Massachusetts law
was not constitutional because it was a ‘mandatory clos-
ure rule’ that applied indiscriminately to all cases. The
court’s opinion further stated that the state’s interest in
protecting a minor ‘could be served just as well by requir-
ing the trial court to determine on a case-by-case basis
whether the State’s legitimate concern for the well-being
of the minor victim necessitates closure.’
As in Globe Newspaper Co. v. Superior Court (1982),
the protection of child witnesses was a central issue in
Coy v. Iowa (1988); however, in this case the US Supreme
Court considered the issue of whether protective measures
interfered with the defendant’s right to a fair trial. The
defendant was convicted of two counts of lascivious acts
with a child. During his trial, the victims, two thirteen-
year-old girls, testified from behind a screen which shielded
the witnesses from the defendant’s sight ‘but allowed him
to see them dimly and to hear them.’ The defendant
appealed his conviction, asserting that the use of the
screen had violated his Sixth Amendment (United States
Constitution) right to ‘be confronted with the witnesses
against him.’ The court found that the defendant’s ‘consti-
tutional right to face-to-face confrontation was violated,’
reversing and remanding the lower court’s judgment. The
court found that there was ‘no merit to the State’s asser-
tion that its statute creates a presumption of trauma to
victims of sexual abuse that outweighs appellant’s right
to confrontation.’ The court did indicate that there was a
possibility for exceptions based on ‘individualized findings
that these particular witnesses needed special protection.’
Just two years after the decision in Coy v. Iowa (1988),
the US Supreme court again considered the balance
between a defendant’s Sixth Amendment rights and the
state’s interest in protecting child witnesses. In Maryland
v. Craig (1990), the defendant was accused of several
counts of sexual abuse of a six-year-old girl who attended
the defendant’s kindergarten and pre-kindergarten cen-
ter. Based on expert testimony that the victim would suf-
fer ‘serious emotional distress such that (they could not)
reasonably communicate,’ the victim testified through
a ‘one-way’ closed-circuit television. This arrangement
allowed her to be questioned in a separate room and
observed from the courtroom during her testimony. The
defendant was convicted, but appealed arguing that the
closed-circuit procedure violated the Sixth Amendment
right to face-to-face confrontation with witnesses (United
States Constitution). The US Supreme Court considered
an Amicus Curae brief from the American Psychological
Association that suggested a ‘case-by-case’ evaluation of
the potential trauma to the child and the child’s ability to
provide accurate courtroom testimony. The Supreme
Court vacated a lower court’s reversal of the defendant’s
conviction. The Supreme Court declined ‘to establish, as a
matter of federal constitutional law, any such categorical
evidentiary prerequisites for the use of the one-way tele-
vision procedure.’ Additionally the Court’s opinion stated
‘so long as a trial court makes such a case-specific finding
of necessity, the Confrontation Clause does not prohibit
a State from using a one-way closed-circuit television
procedure for the receipt of testimony by a child witness
in a child abuse case.’ In this case the Supreme Court
effectively allowed trial courts to make a case-by-case
determination of the specific need for protective meas-
ures like closed-circuit television.
The use of closed-circuit technology has been incor-
porated into the statutes of some states. California
(California Codes 1995) allows closed-circuit testimony
of children aged thirteen years and younger limited to
‘a recitation of the facts’ of an alleged violent or sexual
criminal act. The statute places the burden on the state to
show ‘by clear and convincing evidence’ that the minor
would be ‘unavailable as a witness unless closed-circuit
television is used.’ Texas law places fewer restrictions on
the use of closed-circuit testimony from child victims of
violent or sexual crimes, allowing a motion for closed-
circuit testimony to be initiated by either party (The
Texas Statutes 1965). This law provides broad guidelines
for the trial courts to use in determining the use of
closed-circuit technology: ‘the court may set any other
conditions and limitations on the taking of the testimony
that it finds just and appropriate, taking into consider-
ation the interests of the child, the rights of the defendant,
and any other relevant factors.’ Following Maryland v.
Craig, most states have established some mechanism to
allow for closed-circuit testimony of child witnesses; how-
ever, the use of this technology remains relatively rare.
MODERN RESEARCH ON CHILDREN’S
COGNITIVE DEVELOPMENT AND
MEMORY
A child’s basic ability to be a witness to an event depends
on many factors. A simplified view of these factors
begins with the child’s perception of the event, and
progresses through organization and storage of event
information. Finally, the child must retrieve the stored

information and express it in some manner. Memory
is important at almost every stage of these inter-related
processes, and has been the subject of several studies.
Memory may be the weakest link in this chain of events,
with limitations on how much can be remembered, how
long information can be remembered, and numerous
problems with retrieval of information. A child’s mem-
ory of events takes place in the context of the child’s level
of development, significantly shaping their report of
witnessed events.
Cognitive development
Children’s development progresses continuously with
development occurring in motor, cognitive, language
and other skills in a simultaneous and inter-related man-
ner (Volkmar 1995). An infant or toddler with a very
limited vocabulary cannot fully describe what they have
witnessed. Even if they were able to express themselves
using non-verbal communication, their understanding
of the world, including basic concepts such as causality,
may not be adequately developed. A very young child’s
thought processes differ from an adult’s thought processes
in several major ways including distortions and inaccur-
acies in their perceptions of their environment. Magical
thought, egocentrism, animism, and focusing on a single
dimension are some characteristics of pre-school age
thought (Inhelder and Piaget 1958) that could signifi-
cantly affect a child’s account of events. For example, a
child who equated a person’s size with their height might
inaccurately report the size of a perpetrator, focusing on
the person’s height alone and ignoring all other dimen-
sions. Importantly, this child may have never encoded
complete information about the perpetrator’s dimen-
sions (weight, proportions, etc.), making it impossible
for an investigator to learn additional information from
the child. Although this example over-simplifies a young
child’s cognitive abilities, it illustrates the essential inter-
actions between development, memory, and recall.
Many interviews with young children utilize props
such as drawings or dolls to assist the child in relating
information. The ability of a child to correctly use the
props requires the child to have developed the ability to
think symbolically. DeLoache tested the ability of 21⁄2-
and three-year-old children to use pictures or models
to represent a room where a toy had been hidden. The
younger children were more successful using the pictures
(80 per cent) than using a scale model (20 per cent)
(DeLoache 1995). Follow-up studies suggested that the
younger children found the scale room intrinsically
interesting, and had difficulty understanding that it also
symbolized a real room. Extending this research to the
use of dolls, children were asked to demonstrate where
an experimenter had touched them using a doll or using
their own body. When using a doll, 21⁄2-year-olds reported
only slightly more than half as much accurate information
The child as a witness 423
as when they used their own bodies. Four-year-old chil-
dren were more accurate than 2 1⁄2-year-olds at using
dolls, but still provided considerably more information
when asked to demonstrate on their own bodies. These
findings cast doubt on the use of intrinsically interesting
props such as dolls when interviewing young children
who may not have fully developed the ability to use them
as symbolic representations of other objects.
Concerns about a child’s ability to distinguish
imagined events from real events have been expressed both
historically and by prominent developmental psycholo-
gists (Piaget 1962). A limited number of studies have exam-
ined developmental changes in children’s imagination in
a forensically relevant way. One approach involved asking
younger and older children to imagine both common
(a cup) and unreal (a monster) items (Harris et al. 1991).
Both four- and six-year-old children were able to distin-
guish real from imagined items. When questioned after-
wards, a proportion of the younger children (aged three
to four years) indicated that they were afraid of the imag-
ined monster or believed that the imagined monster
could become real, in spite of reassurances from the experi-
menters that the creatures were not real. Although even
young children were able to differentiate imagined events
from real events, the authors concluded that some younger
children might be ‘tempted to believe in the existence of
what they have merely imagined.’
Another process that has been described in develop-
mental terms is moral development. Kohlberg described
a progression of children through stages of moral
development (Kohlberg, Levine et al. 1983). Although
Kohlberg’s theories have been widely criticized and have
not been consistently replicated, the moral development
that he described may be relevant to children’s court-
room testimony. An important element of a child’s com-
petency to testify is their understanding of the difference
between lying and telling the truth. Sometimes, a child is
additionally expected to demonstrate a moral obligation
to tell the truth. These concepts may be understood by
young children only in terms of punishment or other
anticipated direct effects on the child; it may not be devel-
opmentally appropriate to expect them to demonstrate a
more sophisticated understanding. The development of
an understanding of truth and lies was investigated in a
study of four-, eight- and eleven-year-old children’s abil-
ities to categorize statements as lies or truths (Bussey 1999).
The results demonstrated improved ability to categorize
truth and lies with increasing age and a similar develop-
mental progression of ability to differentiate antisocial
lies from ‘white lies.’
Children’s memory
Memory researchers have described the process of mem-
ory in sequential stages including encoding, storage, and
retrieval. Information can be lost or altered at any stage,
424 Family law and domestic relations
and each stage is completely dependent on the prior
stage. Information that is encoded may be lost during
storage, and normally only a subset of the information
that is stored is retrieved. Because children have already
encoded the information that they have witnessed, research
that is relevant to a child’s testimony relates to informa-
tion storage and retrieval. These components of memory
can potentially be enhanced or altered in some way after
a child has witnessed an event.
A major and consistent finding in memory research
for both children and adults is that ‘repetition facilitates
performance’ (Brainerd and Ornstein 1991). The improve-
ment in performance observed with repetition assumes
that the repeated information is accurate and not influ-
enced by variables such as leading questions. Investigators
evaluating ways to improve the storage of information
have found that ‘across session repetition generally delays
forgetting for subjects of all ages’ (Poole and White 1995).
These general findings suggest that a child’s memory for
a witnessed event can be improved through some form of
practice occurring after the event.
Studies have examined specific ways to enhance chil-
dren’s memory using different types of repetition or
practice, typically using follow-up sessions in which they
were interviewed or questioned about a previously wit-
nessed event. Studies have demonstrated improvement
in recall three to eight weeks after an event for children
who were interviewed within the first few days of the
event (Dent and Stephenson 1979; Baker-Ward, Hess,
and Flanagan 1990). In a related study, investigators
re-tested children interviewed at one week or more after an
index event and found no improvement in subsequent
recall (Goodman et al. 1991a). These results suggest that
there may be a critical period following the initial expos-
ure to the information in which repetition may have to
take place for there to be a benefit to a child’s memory.
The benefits of practice interviews may not be limited to
improving recall. Repetition through ‘neutral’ question-
ing, soon after an event, has even been reported to
‘reduce susceptibility to suggestion for both children and
adults’ (Warren and Lane 1995).
Both children and adults perform better on memory
tasks involving information that they understand and is
relevant or interesting to them. A developmental progres-
sion has been reported in children’s memory of repeated
events that they have participated in. Younger children
(age 2 1⁄2 years) rely most on causal relationships, and
gradually develop the ability to organize events tempor-
ally or hierarchically over the next three years (Price and
Goodman 1990). Goodman et al. (1990) evaluated effects
of participation in an activity on children’s recall and
reported that ‘children are more resistant to suggestions
about personally significant actions than one would pre-
dict based on previous research.’ In this study, four- and
seven-year-old children who participated in a play activ-
ity or simply watched the activity demonstrated similar
free recall of events; however, the children who participated
were more resistant to suggestive questioning (Rudy and
Goodman 1991).
When pre-school age children are asked to recall
events, using open-ended questions, in general they pro-
vide accurate information. Unfortunately, pre-schoolers’
accounts of events typically contain very limited and
incomplete information (Fivush et al. 1991). Repeated
interviews of children using open-ended questions con-
tinue to demonstrate generally accurate accounts of
events, but very limited information. Importantly, the
information recalled on second or third interviews, while
still accurate is often different from the information ini-
tially recalled: ‘pre-school children seem to recall differ-
ent but still accurate information each time they recall an
event’ (Fivush and Shukat 1995). These results could sug-
gest that one way to obtain more complete accounts of
events using open-ended questions would be to conduct
multiple interviews. In spite of this potential advantage
of multiple interviews, the children being interviewed
would be susceptible to suggestion and other intervening
variables during periods between interviews. In practice,
these risks outweigh the possible benefits of multiple
interviews, with most interviewers attempting to min-
imize the number of interviews of child witnesses.
Due to the very limited information obtained from
young children who are asked to recall witnessed events,
researchers have studied the use of more directed ques-
tioning. The use of directed questions has a greater
potential to be leading or suggestive, but may elicit infor-
mation that a child will not volunteer with free recall
(Dent and Stephenson 1979). This research is relevant
for court procedures in which attorneys and investigators
routinely use directed questions when interviewing child
witnesses. Directed questions may simply provide con-
text, or may be much more leading, asking a child to
choose from a group of answers or to limit their response
to yes or no (Peterson and Biggs 1997). Depending
on the type of directed questioning, these techniques
have the potential to dramatically increase (more than
double) the amount of correct information that children
recall. This improvement in recall comes at a significant
cost, with most studies demonstrating a simultaneous
increase in inaccurate information provided (Poole and
Lamb 1998).
The accuracy of children’s accounts of events decreases
with time, and this finding has been described in many
ways including ‘memory fade,’ ‘omission,’ or simply ‘for-
getting’ (Brainerd, Kingma, and Howe 1985; Howe and
Brainerd 1989; McGough 1994; Fivush and Shukat 1995).
Test–re-test designs have demonstrated that the accounts
of school age children contain up to 10 per cent inaccur-
ate information when questioned within the first week
following a witnessed event. When re-tested at several
months, up to two years, the proportion of inaccuracies
may double and has been reported at approximately
20 per cent (Flin et al. 1992; Poole and White 1993). This
increase in inaccurate information recalled has not been

reported in adults who maintain a consistent 10 per cent
rate of inaccuracies over time.
Many of the events that children may be asked to pro-
vide eyewitness testimony for may have been stressful or
even traumatic experiences. To study the effects of stress
on children’s memory, researchers have used designs that
incorporate naturally occurring stressful events such as
medical or dental examinations and procedures (Peters
1991). The effects of stress caused by blood draws and
inoculations on children’s memory were investigated in
a series of studies by Goodman et al. (1991b). In these
studies, three- to seven-year-old children demonstrated
similar recall for stressful and non-stressful events, except
for very highly stressed children who demonstrated
enhanced recall and reduced suggestibility. Saywitz et al.
(1991) compared children’s memories of medical examin-
ations with and without a genital exam. Children who
experienced a genital exam failed to report this exam
unless they were specifically asked about it. None of the
children who did not experience a genital exam falsely
reported genital touch, even when using anatomically
detailed dolls; however, a small number of the children
made incorrect reports in response to direct questions.
To study the effects of more invasive, painful, and poten-
tially traumatic events on memory, Goodman et al. (1994)
studied children undergoing voiding cystourethrogra-
phy, a procedure which involves urethral catheterization
and infusion of fluid into the bladder. Age effects on the
children’s memory of the procedure were prominent,
with older children recalling more correct information,
making fewer errors, and demonstrating more resistance
to suggestion than younger children. These age differ-
ences were most prominent when the youngest children,
aged three to four years, were compared with the older
children, aged up to ten years. Additional interesting
findings reported in this study included: none of the chil-
dren developed amnesia for the procedure; younger chil-
dren who endured multiple medical procedures had
poorer recall; and children who had nightmares about the
procedure were more suggestible than the other children.
Some researchers have suggested that children’s mem-
ories of traumatic events such as physical or sexual abuse
interact with emotional factors in a complex but pre-
dictable sequence to produce variability in their reports
(Summit, Miller, and Veltkamp 1998). Some experimen-
tal support for this hypothesis has been reported in
studies of abused children in psychotherapy who demon-
strated initial denial followed by active disclosure and
subsequently recantation of reported abuse (Sorensen and
Snow 1991). Other studies have used samples of abused
children involved with a child protection agency and
reported that most (78 per cent) children simply disclose
without going through other stages (Bradley and Wood
1996). Although abused children may not all go through
particular stages, some proportion of these children will
fail to report and may even deny memory of being
abused during certain periods following the abuse.
The child as a witness 425
Children are asked to provide information in a wide
variety of contexts. The most visible of these places are
courtrooms, which have the potential to be intimidating
and stressful. Some jurisdictions have implemented pro-
grams to familiarize child witnesses with courtrooms to
reduce possible deleterious effects of stress on their testi-
mony (Saywitz 1995). In a study comparing differences
in recall of eight- to ten-year-old children in a mock
court or a classroom setting, children experienced sig-
nificantly more stress in the court setting (Saywitz and
Nathanson 1993). Children’s recall was impaired in the
court setting for open-ended questions, but was similar
in both settings for directed questions. Additionally, it
was reported that children’s perception of strong social
support was correlated with lower anxiety. The effects of
a conventional legal interview were compared with a more
developmentally appropriate interview in a study of five-
to seven-year-old children (Carter, Bottoms, and Levine
1996). The study demonstrated significantly reduced
accuracy when children were questioned in ‘legalese,’ and
increased susceptibility to misleading suggestions when
children were interviewed in an intimidating manner.
These studies suggest that children may be able to provide
more complete or more accurate information when they
are questioned with developmentally appropriate language
in a less stressful environment with social supports.
FACTORS THAT MAY INFLUENCE
CHILDREN’S MEMORY
The fact that children’s reports of witnessed events may
be less accurate and less complete than those of adults
does not fully explain other deficits that have been
reported in children’s accounts of events. Several studies
have reported that children may be more readily misled
or susceptible to suggestions of inaccurate information
than adults. This susceptibility of children has been
reported for a wide variety of interventions, including
directly misleading questioning, and more subtly mis-
leading interventions such as simply repeating questions
or using forced choice questioning.
Numerous studies of children’s memory have added
some suggestive or misleading questions into the testing
of recall to allow evaluation of the effects of leading ques-
tions. In one study, nine-year-old children were found
to be significantly more suggestible than adults when
questioned about central events in a video they watched
(Warren and Lane 1995). In a study comparing four- and
seven-year-olds who were questioned about an activity
that they had observed or participated in, children were
described as relatively resistant (approximately 90 per
cent accurate) to suggestions that might be associated with
abuse (Rudy and Goodman 1991). Younger children were
more suggestible than older children; however, no age dif-
ferences were found in children’s responses to misleading
426 Family law and domestic relations
questions that implied sexual abuse. In a study of chil-
dren receiving inoculations, younger children (aged three
to four years) were significantly more suggestible than
older children (aged five to seven years) in response to
questions about the inoculation (Goodman et al. 1991b).
The children were in general less suggestible regarding
actions than information about the persons involved,
and very few of the children were susceptible to leading
questions suggesting sexual abuse.
In order to study the effects of multiple leading ques-
tions, some studies have randomly assigned children to
be interviewed in a consistently leading or non-directive
way regarding a witnessed event. In a study of five- to
six-year-old children who were either questioned in a
neutral manner or ‘interrogated’ using multiple leading
questions, the interrogated children ‘uniformly’ changed
their accounts of events to match the interviewer’s sug-
gestions (Thompson, Clarke-Stewart, and Lepore 1997).
These altered accounts persisted when the children were
subsequently interviewed in a non-leading manner. In a
study of suggestive interviewing with children aged three
to six years, the younger children were described as ‘sig-
nificantly more vulnerable to suggestion’ than the older
children (Ceci and Huffman 1997). The investigators
noted that suggestions of false-negative, sexual, or salient
information were more difficult to implant in children’s
statements; however, once implanted, the children
resisted attempts to ‘debrief ’ them. Interestingly, this
study presented videotaped interviews to mental health
professionals who were unable to distinguish the false,
suggested accounts from true accounts.
The timing of leading, suggestive or misinformation
has been investigated using a variety of designs. In a
study of six- and nine-year-old children, misinformation
was presented two weeks after the children participated
in an activity. Both age groups showed similar interfer-
ence effects with the misleading information reducing
the accuracy of their reports of the event (Schwartz-
Kenney and Goodman 1999). Lindsay et al. (1995)
demonstrated that ‘children were especially influenced
by suggestions presented immediately before the test
rather than two days earlier’ and that ‘children may find
it difficult to escape the effects of misleading suggestions,
even when the interviewer warns the children against
them.’ Ceci et al. (1996) and others have described ‘source
misattribution’ as a mechanism explaining the suggest-
ibility of pre-school children. Source misattribution is a
process in which children recall being presented with
false information but, in retrospect, are unable to deter-
mine the source of the information and incorrectly recall
this information as a real event. This mechanism was
demonstrated in a study of forty children aged three to
six years in which younger children were disproportion-
ately more likely ‘to claim that they remember actually
experiencing events that they only thought about or were
suggested by others’ (Ceci et al. 1994). In a study in which
children were presented with false information about a
medical procedure that took place an average of more
than three years earlier, almost three-fourths of the
younger (three- to five-year-old) and half of the older
(six- to eight-year-old) children assented to a medical
procedure that had never occurred (Quas et al. 1999).
When these assenting children were provided with a
detailed description of the false procedure, most of the
children subsequently denied experiencing the procedure.
Children may provide false accounts of events in
response to interviewing techniques that are not appar-
ently suggestive. For example, the use of specific ques-
tions to interview children has been demonstrated to
significantly reduce the accuracy of children’s reports.
In a study of children’s reports of treatment in an emer-
gency room, open-ended questions produced 91 per cent
accurate information compared with specific questions,
which provided only 45 per cent accuracy (Peterson and
Bell 1996; Peterson and Biggs 1997). Simply repeating
questions or repeating interviews may have suggestive
effects on children. A child who responds to a repeated
question may believe that they made an error when they
first responded to the question, and may change their
response in an attempt to please the interviewer or to
guess the correct answer. Effects of repeated questioning
were evaluated in a study comparing the accuracy of infor-
mation elicited from four- to eight-year-old children and
adults (Poole and White 1991).
Younger children were more likely than older children
and adults to change their responses to yes–no questions.
In a follow-up study, the same children were asked ques-
tions about the event they had witnessed two years
earlier (Poole and White 1993). Only 50 per cent of the
children’s responses to yes–no questions were the same
as their responses two years earlier – a performance that
is no better than chance. The role of questions repeated
across interview sessions is not clear. Research has
demonstrated that repeated neutral interviews can main-
tain the accuracy of children’s and adult’s memories, but
few studies have examined discrepancies in information
obtained with repeated interviews. In a study of three-
and five-year-old children interviewed about an event
they participated in at both three days and one year after
the event, information that children produced at both
interviews was reliable. Importantly, information that
was introduced for the first time at the second interview
was almost always inaccurate (Salmon and Pipe 1997).
A biased interviewer with inaccurate preconceptions
about the events that a child has experienced can influence
the accuracy of a child’s report. This may take place as an
interviewer inadvertently rewards responses that are con-
sistent with the interviewer’s bias and ignores responses
that are inconsistent with their bias. The effects of an
exculpatory, an accusatory or a neutral interview on chil-
dren aged five to six years were evaluated using multiple
interviews following a witnessed event in which a janitor
handled some dolls. Following a biased initial excul-
patory or accusatory interview, most children provided

inaccurate accounts that were consistent with the inter-
viewer’s bias (Thompson, Clarke-Stewart, and Lepore
1997). The majority of the children, whose second inter-
viewer had a contradicting bias, reversed their accounts
and fit them to the interpretation provided by the second
interviewer. A similar study used blinded social workers
to interview pre-school children about a game they had
played a month earlier (Ceci and Bruck 1995). The social
worker was provided with a one-page report containing
both correct and incorrect information about what
might have happened during the game, and was asked to
interview the children about the game. For children who
were interviewed by a social worker who was inaccur-
ately informed, 34 per cent of the three- to four-year-old
and 18 per cent of the five- to six-year-old patients incor-
porated false events into their accounts. These results
were extended by providing the social worker’s interview
notes to another interviewer who re-interviewed the
children three months later. At this follow-up interview,
children continued to incorporate the previously sug-
gested errors into their accounts and became more confi-
dent of the incorrect information.
Most studies investigating children’s suggestibility
have limited the use of suggestive techniques to test the
effects of a particular technique. These designs may not
accurately mimic forensic interviews in the community
in which children may be subject to multiple suggestive
influences. In two studies designed to evaluate the effects
of multiple suggestive interview techniques on child wit-
nesses, Garven et al. (1998) used techniques drawn from
the McMartin Preschool investigation to interview chil-
dren about a stranger’s visit to their day-care center.
Interview techniques used included suggestive question-
ing, verbal reinforcement and punishment, peer pressure
and requests for children to think about their answers
or to pretend that something happened. Children who
were interviewed with multiple suggestive techniques
were less accurate (43 per cent compared with 83 per cent)
and made more false accusations (58 per cent compared
with 17 per cent) than children who were interviewed
using suggestive questions alone. This study was subse-
quently replicated using a subset of the suggestive tech-
niques, reinforcement and peer pressure (Garven, Wood,
and Malpass 2000). The investigators reported a higher
rate (35 per cent compared with 12 per cent of controls)
of false accusations against a visitor, and a higher rate
(52 per cent compared with 5 per cent in controls) of false
reports of ‘fantastic’ events (being taken from the school
in a helicopter) in the children who were interviewed using
reinforcement and peer pressure. In a subsequent non-
suggestive interview, the children who had undergone
the brief, ten-minute suggestive interviews continued to
make false allegations against the visitor.
Some authors have reported that an analysis of the
interaction between children and their interviewers can
provide a uniform explanation for findings of children’s
suggestibility. Meyer (1997) reviewed a variety of research
The child as a witness 427
on suggestibility in children and suggested that an under-
lying principle is the response of children to authority.
This effect was documented in adults in a series of classic
experiments by Milgram (Milgram 1963; Milgram 1965)
in which experimental subjects gave what they believed
were dangerous electrical shocks to other subjects simply
because they were told to do so by an authority figure.
These results have been partially replicated in children.
In a courtroom or other legal interview situation, chil-
dren may place a higher value on pleasing the authority
figure than on the accuracy of their testimony.
In a review of literature on children’s memory and
suggestibility, Bruck and Ceci (1999) concluded that in
spite of selected strengths and individual variability, there
are clear age-related differences in children’s suggestibil-
ity. Specifically, children’s memory becomes more com-
plete, more accurate, and less susceptible to suggestion
as they grow older. Across a variety of studies, the differ-
ences are most profound between pre-school and school
age children, although differences have been reported
across all ages of children. The authors described chil-
dren’s desire to please adults – a critical skill that they
learn from an early age – as a major factor leading to chil-
dren’s acquiescence to adult’s suggestive interviews. In
another review of literature on children’s eyewitness
testimony, Goodman and Schaaf (1997) focused on
methods of interviewing children. These authors con-
cluded that there is a continuum of questions from
open-ended to leading or suggestive questions. Although
open-ended questions produce the most accurate infor-
mation with the lowest risk of suggesting erroneous
information, at times it may be best to use carefully for-
mulated leading questions to obtain specific information
that children might not otherwise volunteer.
COURT TESTIMONY OF CHILDREN, RISKS,
BENEFITS AND THE JURY
Child witnesses in court
A confrontational cross-examination in which a child vic-
tim is asked to recount details of sexual abuse in front of a
courtroom full of observers, including a previously trusted
family member/perpetrator has abundant potential to
be traumatic to the child. This risk to the child, combined
with the risk that the child’s testimony will suffer due to
stress, has led to proposals to reduce the stress on child
witnesses, distance them from the proceedings, or to avoid
having children appear in court at all. It may not be pos-
sible to study the effects of testifying on a child using a
randomized, controlled design; however, a limited num-
ber of studies have investigated the psychiatric effects of
providing courtroom testimony.
In an early study of the effects of court involvement
on children involved in sexual abuse investigations and
428 Family law and domestic relations
litigation, questionnaires were sent to administrative
and clinical staff of child protection agencies (Tedesco
and Schnell 1987). The survey results indicated that the
majority of the involved children found the investiga-
tions ‘helpful’ and only 21 per cent found the process
harmful. Helpfulness was not related to interventions
such as the use of videotape or the presence of a support
person. In a more elaborate design, seventy-six children
aged six to seventeen years who were involved in child
protection proceedings were assessed when referred to
the study and then five months later (Runyan et al. 1988).
All of the children demonstrated a ‘high degree of dis-
tress’ at the initial assessment, with prominent high
scores on measures of anxiety and depression. After five
months, average scores improved for all subjects; how-
ever, the improvement was much greater for children
who had been involved in court proceedings compared
with children who were still waiting for court proceed-
ings to begin (30 per cent versus 17 per cent improve-
ment). Children who had testified in juvenile court
demonstrated an even greater improvement in measures
of psychiatric distress (42 per cent). The authors con-
cluded that juvenile court testimony was beneficial to
children; however, this conclusion may only apply to the
extent that court testimony resolved some of the already
high anxiety that the children were experiencing as par-
ticipants in child protection proceedings. In a recent
study of eighty-one children who were sexually abused
by a family member, measures of the children’s stress
were compared with the social service interventions that
they had received (Henry 1997). The number of inves-
tigative interviews was positively correlated with stress,
while a trusting relationship with a professional was nega-
tively correlated with stress. The investigators found no
relationship between stress and testifying in court.
Studies that have evaluated children testifying in
criminal court have generally described poorer outcomes
than studies of children testifying in civil court. In a
study of more than 200 children aged four to seventeen
years who were referred by prosecutors, the level of
behavioral disturbance was evaluated following initi-
ation of prosecution, after disposition and at three and
seven months after testifying (Goodman et al. 1992).
Children who testified evidenced greater behavioral dis-
turbance seven months after testifying, but significant
differences were not found for other intervals. Before
testifying, children were most likely to report being fearful
of facing the defendant in court. Children who were fear-
ful of facing the defendant had more difficulty respond-
ing to questions and were more likely to subsequently
report that testifying had been traumatic. Younger chil-
dren who had been severely abused were the most ser-
iously affected by testifying. In a subsequent multi-site
study of 256 child victim witnesses in criminal courts,
the psychiatric symptoms in four- to seventeen-year-olds
whose cases were referred for prosecution were evaluated
(Whitcomb and National Institute of Justice (U.S.) 1994).
Children who had been sexually abused were described
as ‘highly distressed’ when initially evaluated, but eight
months later the majority had demonstrated improve-
ment in their symptoms. Testifying in court was not sig-
nificantly related to the severity of symptoms; however,
those children who testified multiple times or who ‘experi-
enced a lengthy or harsh cross-examination’ demonstrated
significant adverse effects. At the follow-up interviews,
an inventory was used to score the stress that the children
had experienced from court interventions (Runyan et al.
1994). Testifying in court was ranked as significantly more
stressful (score ⫽ 111) than placement in foster care
(score ⫽ 100) or interviews with police or social workers
(scores ⫽ 50 and 35, respectively).
Most studies of children undergoing court proceed-
ings report very high levels of psychiatric symptoms, par-
ticularly stress, both for children who testified and those
who did not testify. It may be impossible using naturalis-
tic designs to define the precise contribution of court testi-
mony to the already devastating life stress that many of
the children were experiencing. It could be argued from
available data that courtroom testimony may contribute
to the resolution of some stressors and thus may be bene-
ficial. Alternatively, it could be argued that confrontational
court testimony has the potential to create long-lasting
trauma to child witnesses. The American Academy of
Child and Adolescent Psychiatry’s position paper on
‘Protecting Children Undergoing Abuse Investigations
and Testimony’ warns of ‘serious stress and potential
trauma’ to children involved in court proceedings (AACAP
1989). The document recommends expedited handling
of a variety of investigative and court procedures involv-
ing children, the use of child psychiatrists to assist in a
variety of aspects of investigation and court procedures,
special procedures to make the courtroom less stressful,
and changes in evidentiary requirements to allow hearsay
statements from children.
Jury perception of child witness testimony
A decisive factor in many court cases is the jury’s assess-
ment of the witness’s credibility. Studies have failed to
demonstrate that children are consistently perceived as
either more or less credible than adults. Instead, most
studies suggest that jurors evaluate the credibility of a
child witness in a larger context. The earliest study
designs questioned jurors about mock case ‘transcripts’
or videotaped testimony in which the age of witnesses
was experimentally varied. In a series of studies compar-
ing jurors perceptions of six-, ten- and thirty-year-old
witnesses, the ten-year-old witness, and to a greater
extent the six-year-old witness, were perceived as less
credible that the adult witness (Goodman, Goldings,
and Haith 1984). In subsequent studies, Goodman et al.
(1987) demonstrated that a mock jury’s confidence
about the credibility of a child witness was related to the

child’s age, confidence and attractiveness, but was not
related to the accuracy of information conveyed by the
child. Interestingly, in some situations, in which the child
was considered naive such as sexual abuse, younger chil-
dren were rated more credible than adults. Using more
than 600 simulated jurors who read simulated criminal
cases, Leippe and Romanczyk (1989) reported that
younger witness age was associated with lower perceived
credibility, particularly in cases that required a strong
memory.
Although most studies of juror perception of child wit-
nesses have demonstrated lower credibility for child
witnesses, some studies have demonstrated no relation-
ship between witness credibility and age. In a study in
which mock jurors rated the non-scripted testimony of
child (ages eight to twelve years) and adult witnesses who
had witnessed a staged abduction, Wells, Turtle, and Luus
(1989) reported no significant relationship between the
age of the witness and their perceived accuracy. The vari-
able most closely related to jurors’ perceptions of accur-
acy was the confidence of the witness. This finding was
replicated in a study by Leippe, Manion, and Romanczyk
(1992) that reported an over-reliance on witness confi-
dence by mock jurors attempting to judge the accuracy
of children’s testimony. In a series of studies examining
jurors’ perceptions of the child witness in sexual assault
cases, Bottoms and Goodman (1994) reported that
younger witnesses were perceived as more credible than
older witnesses. The authors explained these conflicting
findings as a result of an interaction between the per-
ceived competence and perceived trustworthiness of the
witness. In general, children are regarded trustworthy
but not competent, leading jurors to consider their testi-
mony less credible, particularly when the testimony
requires complex memory or cognitive skills. In cases in
which the witness could be deceptive, children’s lack of
cognitive sophistication makes jurors perceive them as
less capable of deception and more credible. In cases
involving sexual abuse, in which children are presumed
to have limited sexual knowledge, the presence of sexual
knowledge may be interpreted by jurors as evidence of
sexual abuse, enhancing the child’s credibility.
Interventions designed to protect a child witness
from the stress of providing courtroom testimony may
have unintended effects on the credibility of the child’s
testimony. Using an elegant and elaborate design involv-
ing a simulated abuse of child victims aged five to nine
years, the effects of the victims testifying using closed-
circuit technology were investigated in simulated jury
trials (Goodman et al. 1998). Both advantages and dis-
advantages of using closed-circuit technology were
reported. Children were less anxious and less likely to
refuse to testify using closed-circuit technology; however,
with some exceptions children’s testimony was more
accurate when closed-circuit technology was used. The
use of closed-circuit technology did not bias the jury
against the defendant as the defendant had argued it
The child as a witness 429
might in Maryland v. Craig (1990); however, the artificial
nature of the study and the minor nature of the ‘crime’
could explain this finding. Importantly, closed-circuit
testimony did bias the jurors against the child witnesses
who perceived them as less credible than child witnesses
who testified in the courtroom. The authors concluded
that the use of closed-circuit technology ‘may be benefi-
cial for some child witnesses,’ but they warn that it ‘may
also limit the impact of children’s testimony on juror’s
initial decisions.’
INTERVIEWING CHILD WITNESSES:
PRACTICAL CONSIDERATIONS AND
SPECIFIC SUGGESTIONS
Preparation for interviewing a
child witness
In many cases, a child witness may disclose information
to a medical professional as a part of routine evaluation
or treatment, making it impossible to adequately prepare
for an interview. Disclosures that take place in this con-
text not only initiate investigations but also may be import-
ant evidence for court proceedings. Every state has laws
requiring professionals to report suspected child abuse to
the state’s child protective agency. When a child discloses
abuse, a natural instinct of many professionals is to
attempt to further question the child, both to clarify the
child’s statements and to attempt to gather information
for law enforcement. Attempting to conduct an extensive
forensic interview without preparation and immediately
after a child makes a disclosure of abuse has numerous
risks. The most important of these risks is the failure to
preserve an adequate record of the interview, exposing
any prosecution related to the child’s allegations to criti-
cisms of bias and suggestive interviewing resulting in
false allegations. Unless a medical professional has the
experience and the resources necessary to interview a
potential child witness, the interview should be limited
to determining that the threshold for reporting abuse has
been met and that enough information is available to
allow the child protective agency to determine what must
be done to protect the child. Subsequent interviews
should be arranged by a child protection agency. Of course,
all of the information that the child provides at any point
should be carefully documented, including exact quotes
of both the interviewer’s questions and the child’s
responses whenever possible.
Children’s statements and other behaviors pertaining
to abuse, when obtained during a purely investigative
interview may be considered hearsay and not admissible
as evidence (McGough 1994). Children’s disclosures of
abuse, when they occur in the context of medical evalu-
ation or treatment, are hearsay, but may qualify for
the ‘medical diagnosis and treatment’ exception to the
430 Family law and domestic relations
hearsay rule allowing medical professionals to testify to a
child’s statements. The probability that a child’s state-
ments will qualify for the hearsay exception is enhanced
if the child’s statements are pertinent to their medical
evaluation, if the child understands that one purpose of
the evaluation is to obtain medical treatment, and if
information pertaining to the accuracy of the child’s
statements is documented. Statements that do not qual-
ify for the ‘medical evaluation and treatment’ exception
to the hearsay rule may still qualify for an ‘excited utter-
ance,’ ‘residual,’ or ‘child’ hearsay exception provided that
the statements were spontaneous or if there is other evi-
dence of the reliability of the statements (Myers, pending
publication). The American Academy of Child and
Adolescent Psychiatry’s Practice Parameters for the
Forensic Evaluation of Children and Adolescents Who
May Have Been Physically or Sexually Abused suggests
that clinical and forensic evaluations must be separate to
assure clear role definitions (Bernet 1997). The use of
distinct evaluators to some extent may control for the
effects of interviewer bias, but may effectively exclude
any hearsay testimony from the forensic evaluator,
potentially requiring the child to testify and participate
in additional interviews.
When a child will be interviewed in an investigative
interview or in court, it is often possible to prepare for
the interview. Perhaps the first concern of an interviewer
should be the timing of the interview. The interview
should take place as soon as possible to minimize forget-
ting, and the risk that the child’s testimony will become
contaminated in some way (Poole and Lamb 1998). The
duration of the interview may need to be adjusted to
the child’s endurance, motivation, and capacity to pay
attention (Poole and Lamb 1998). Even when a child is
given breaks, it may be necessary to conduct multiple
interviews to maximize the information the child is able
to convey (Walker and Hunt 1998). Although multiple
non-leading interviews may strengthen a child’s memory
of events through repetition, this process may also intro-
duce errors through strengthening incorrect memories,
increasing the risk of intervening suggestions, and increas-
ing the risk that the child will change their responses in
an attempt to please the interviewer.
The importance of videotaping the investigative inter-
view cannot be over-estimated. This process preserves a
record of the child’s testimony and allows the interview
to be evaluated by both the prosecution and the defense
to protect against allegations that the interviewer influ-
enced the child witness. Standards for videotaping have
been proposed and include: the use of unbiased interview-
ers; no editing; the use of developmentally appropriate
language; the use of questions that evaluate a child’s
competency and the completeness of the account; and
questions that probe whether the child could have been
influenced by others (McGough 1994). Although the
American Academy of Child and Adolescent Psychiatry’s
Practice Parameters for the Forensic Evaluation of
Children and Adolescents Who May Have Been
Physically or Sexually Abused simply states ‘if possible,
audiotape or videotape the interview’ (Bernet 1997), fail-
ing to videotape the interview may fall below community
standards of practice for interviewers who have had time
to prepare or who are conducting forensic evaluations.
Interviewers should be familiar with state laws defining
standards for videotaped interviews to assure that the
tape will be admissible as evidence.
Prior to an interview, reviewing available records to
learn about the child’s development and obtain detailed
knowledge of the allegations or other information that
the child is being questioned about, can help an inter-
viewer to work at the child’s level and guide the inter-
viewer’s questioning (Saywitz and Camparo 1998). Some
authors have suggested that interviewers should be
blinded to the allegations to avoid bias; however, at this
time blind interviewing is not commonly used and will
require additional research to determine its role (Saywitz
and Camparo 1998). It may be valuable for an inter-
viewer to obtain questions from all interested parties
before initiating an interview so that both prosecuting
and defense attorneys’ questioning can be accomplished
in a single interview. An extension of this practice allows
both prosecution and defense personnel to observe the
interview and provide the interviewer with follow-up
questions during breaks or through some non-intrusive
means of communicating with the interviewer (McGough
1994). This approach further minimizes the number of
interviews, interviewers (Poole and Lamb 1998) and the
risk of distorting the child’s testimony.
Children should be interviewed in an appropriate set-
ting to minimize their anxiety and maximize their ability
to provide complete and accurate information. An ideal
setting would be comfortable, free of distracting stimuli,
and may be familiar (Saywitz and Camparo 1998). The
presence of intriguing toys or other objects, while invit-
ing, may be distracting, particularly for pre-school chil-
dren or children with attention deficits. The interviewer’s
clothing and other objects such as badges, clipboards,
and microphones may increase the perceived authority
of an interviewer, making the child more suggestible
(Meyer 1997). The presence of an adult support person
may reduce a child’s anxiety, and in some cases children
may refuse to separate from a family member to speak
to an interviewer. Family members may be potential
defendants, may be strongly biased, or may even com-
municate their own anxiety to the child, interfering with
an interview. Because of the unpredictable effects that a
support person may have on a child witness, it is gener-
ally recommended that children be interviewed alone
(Poole and Lamb 1998). Although interviewers may be
able to control the setting of an investigative interview,
very little can be done to control the setting when chil-
dren give courtroom testimony. Experts may advise the
court regarding courtroom interventions such as the
presence of a support person or a toy and closed-circuit

testimony for situations in which a child’s testimony
may be seriously impaired due to the courtroom
environment.
Questioning a child witness: interview
technique
The first task that a child interviewer must accomplish
is an assessment of the child’s developmental level,
including their ability to understand and communicate.
Children’s vocabulary, grammar, and ability to compre-
hend complex or abstract concepts improves as they
develop. Child interviewers should use a limited vocabu-
lary (minimize polysyllabic words) with simplified sen-
tence structures that emphasize action and minimize
the use of the passive voice. Pre-school children may not
understand pronouns, and interviewers should substi-
tute more precise words (Saywitz 1995). Younger chil-
dren may not have fully developed concepts of time or
distance and may be unable to accurately provide infor-
mation about dates, locations, or measurements (Saywitz
and Camparo 1998). These abilities may be evaluated
during the initial minutes of the interview to guide the
developmental level of the remainder of the interview.
Because children are often uncomfortable with strangers
and unlikely to disclose personal information, the pri-
mary goal of the initial phase of an interview is to build
rapport. It is important during the building of rapport
to avoid topics that may suggest interviewer bias to the
child. To minimize the child’s anticipatory anxiety, the
purpose and the structure of the interview should
be communicated to the child in general terms, carefully
avoiding any suggestion of information that should be
disclosed. Topics of conversation used to facilitate rap-
port should be limited to neutral topics such as the
child’s favorite television program or foods (Saywitz and
Camparo 1998). The interaction during this initial phase
may set the tone for the remaining interview and the
interviewer should use open-ended questions and be
patient and attentive to the child without evaluating the
content of what the child says (Sternberg et al. 1997).
Following establishment of rapport between the
interviewer and the child, the child’s competency to test-
ify should be informally evaluated. The child’s compe-
tency to testify may be formally evaluated before the
child testifies in court; however, an evaluation of the
child’s competency to testify before an interview will add
credibility to any data obtained during the interview. A
child’s competency to testify may be evaluated by asking
the difference between telling the truth and lying, asking
the child for examples, and asking the child what will
happen if they lie. This procedure requires young chil-
dren to define somewhat abstract concepts and may lead
an interviewer to erroneously conclude that a young
witness was not competent (Poole and Lamb 1998).
More appropriate questions for young children ask, using
The child as a witness 431
age-appropriate language, whether simple and concrete
statements are lies or the truth (McGough 1994). Lyon
and Saywitz (1999) evaluated the competency to testify
of ninety-six four- and five-year-old children using an
illustrated identification task. Some 69 per cent of the
four-year-olds and 80 per cent of the five-year-olds were
able to correctly identify which illustrated characters had
told the truth or lied, and an even higher proportion of
each group of children (73 per cent and 87 per cent,
respectively) were able to identify accurately which illus-
trated characters had done something ‘bad’ or would get
‘in trouble.’ The study also demonstrated that the major-
ity of the children were unable to ‘define’ truth or lie.
These data suggest that the majority of five-year-old chil-
dren are competent to testify, and that the most appro-
priate way to evaluate their competency is with concrete,
identification tasks rather than questions that require
children to define terms.
After evaluating the competency of the child to testify,
several instructions regarding the interview are normally
provided. The instructions that are provided to the child
regarding the rules of the interview play an important
role in preparing the child for the main portion of the
interview (Walker and Hunt 1998). The child should be
told to describe everything that happened and not to
leave out anything. It should be emphasized that the
child should only tell the truth, should not guess or lie,
and that it is all right to say they do not know. The child
should be told to correct the interviewer if he or she says
something wrong because the interviewer does not know
what happened.
Before questioning a child about the event(s) of inter-
est, many researchers suggest (and several interview
protocols incorporate) a practice task (Yuille et al. 1993;
Fisher and McCauley 1995; Lamb, Sternberg, and Esplin
1998; Poole and Lamb 1998). A commonly suggested
practice task would be to ask a child to describe a recent
event such as birthday party, holiday celebration, or
school outing. The practice task allows the interviewer
to evaluate the child’s abilities, and to provide feedback
to the child. The child has the opportunity to practice
providing complete and detailed responses to open-
ended questions, and also to learn what will be expected
later in the interview. Interviewers should refrain from
using directive or specific questions during the practice
task to maintain the child’s expectation of providing
elaborate narrative responses to questions. During the
practice task, interviewers should emphasize the accu-
racy and completeness of the child’s account, praising
children for their effort, but carefully avoiding reinforc-
ing specific answers (Saywitz and Camparo 1998).
The crucial importance of the introductory minutes
of an interview were demonstrated in a study that com-
pared the effects of using either open-ended or direct
rapport building styles on the information that alleged
child abuse victims provided during an initial forensic
interview (Sternberg et al. 1997). The open-ended and
432 Family law and domestic relations
direct styles consisted of scripted interviews that were
used to introduce the interview to the child; each script
required approximately 7 minutes to complete. The con-
tent of the interviews was similar, but the open-ended
script called for predominantly open-ended prompts
rather than focused questions. In response to the same
initial substantive question, children whose interviews
began with the open-ended style produced more than
twice as much information as children whose interviews
began in the directed style. Children in the open-ended
condition continued to provide more information in
response to interviewer’s subsequent questions.
When entering the substantive portion of the inter-
view, interviewers must continuously monitor themselves
because the manner in which children are questioned
can significantly alter both the amount of information
obtained and the accuracy of the information obtained.
The use of questions that contain suggestions, implica-
tions of fact, or that are threatening, blaming, or other-
wise emotionally laden (separate from the content of the
question) should be avoided. The best way to introduce
the topic of interest to the interviewer is to allow the child
an opportunity to volunteer information. For example, an
interviewer may ask if the child has anything they want
to tell, may ask the child to tell why they are being inter-
viewed (Poole and Lamb 1998), or may ask if anything
has happened to them (Bernet 1997). This approach is
often unsuccessful with very young children, requiring
interviewers to introduce the topic of interest with some
sort of leading question. There is no agreement among
experts or researchers regarding the best way to do this;
however, there is agreement that the interviewer should not
repeat a child’s prior allegation. An interviewer may begin
by asking a child to describe some known aspect of the
crime, such as the crime scene [National Institute of Justice
(U.S.) 1992]. Other approaches include discussing the
child’s body parts and any injuries, asking about problems,
safety or people that the child does or does not like to be
with (Saywitz and Camparo 1998).
Once a child begins to describe an event of interest,
they should be allowed to continue without interruption,
and with the interviewer patiently tolerating the child’s
descriptions of peripheral or irrelevant information
(Walker and Hunt 1998). Perhaps the most important
decisions regarding the method of subsequently ques-
tioning children pertain to the use of and timing of
open-ended and leading or directed questioning. The
inevitable conclusion of a review of current research on
questioning children is that a dichotomous view of open-
ended versus directed questioning does not apply. Each
technique has strengths, and the best interview technique
will incorporate both styles, normally beginning with
predominantly open-ended questions and progressing to
more direct, but not leading questions. Some questions
contain or imply much more information than others,
and some questions incorporate greater bias than others.
The amount of information implied in an interviewer’s
questions may have to be increased to elicit information;
however, the interviewer should not alter their questions
to suggest answers to questions or other biasing informa-
tion, such as the interviewer’s belief that the child was
sexually abused. The precise use of this continuum of
questioning styles must be applied to the individual child,
the interview setting, and the known circumstances of
each case (Goodman and Schaaf 1997).
Open-ended questions have the advantage of intro-
ducing a minimal amount of potentially suggestive or
misleading information to the child. Further, a response
to an open-ended question may contain more detail or
provide a fuller picture of what happened than responses
to narrowly phrased questions. When interviewers are
restricted to using open-ended questions with young
children, less information is obtained than could have
been obtained by using a combination of open-ended
and directed questions (Lamb, Sternberg, and Esplin
1998). In effect, children tend spontaneously to provide
very few details, and pre-school children may have prob-
lems even organizing the information that they recall with-
out the context provided by directed questions. Another
reported risk of open-ended questioning is failure to
provide enough information for the child to correctly
place the event of interest. In this situation, the child’s
responses may describe events that occurred at a different
time, involved different individuals, or places or perhaps
had little or nothing to do with the events of interest.
Directed questioning of children has been demon-
strated to produce much more complete information
than open-ended questioning techniques (Poole and
Lamb 1998). Careful, directed questioning provides con-
text and directs the child to recall specific information
without suggesting an answer. In practice, it is impossible
to avoid suggestions with directed questions. For exam-
ple, the rather neutral question ‘what did the man do?’
clearly suggests that ‘the man’ may have done something
(Goodman and Schaaf 1997). Particularly when using
more directed questions, it is important for an inter-
viewer to remind children that the interviewer does not
know the answer to the questions and that it is alright for
children to say that they don’t know, but that they should
not guess or provide incorrect information.
A logical approach to questioning children is to begin
interviews with open-ended questions and progress to
increasingly directed questioning. Initial questions should
be no more than prompts for the child to elaborate,
provide more detail, to describe what happened next, or
to clarify information. This approach should be con-
tinued as long as it is productive. When more specific
information is required, the risk of suggestion may be
lessened when the context of the directed questioning
can be based on the information the child has already
provided. At the end of an interview, it may be beneficial
to ask a child to repeat parts of their narrative for clarifi-
cation. A concluding open-ended question asking if there
are other things the child would like to talk about may

allow a child to disclose further or clarify information
(Poole and Lamb 1998).
Some investigators have combined techniques and
research findings to produce interview protocols. The
Step-Wise Interview (Yuille et al. 1993) begins with
establishing rapport and practice topics, and progresses
from free narrative to increasingly leading questioning
followed by the use of interview aids, if necessary. This
interview is integrated into the American Academy of
Child and Adolescent Psychiatry’s Practice Parameters
for the Forensic Evaluation of Children and Adolescents
Who May Have Been Physically or Sexually Abused
(Bernet 1997). Another protocol, the Cognitive Interview
was developed to maximize accurate recall from adult
witnesses and has been adapted for and studied with
child witnesses [National Institute of Justice (U.S.) 1992].
Features of the Cognitive Interview include creating
context, accepting partial information, encouraging
varied paths of information retrieval, reducing distrac-
tions, and guided imagery. This interview has several
conceptual advantages including practice, multiple sens-
ory path retrieval, and the use of a flexible approach in
a distraction free environment. In a study comparing
children interviewed with the Cognitive Interview or a
standard interview, children interviewed with the Cogni-
tive Interview recalled 20–50 per cent more accurate
information (Fisher and McCauley 1995). Some investi-
gators warn that some components of the Cognitive
Interview, such as guided visual imagery, have not been
adequately studied and have the potential to be suggestive
(Poole and Lamb 1998).
Although the methods of questioning children that
are most effective can readily be presented to interview-
ers or integrated into protocols, it may be difficult for
interviewers to integrate them into their practice (Poole
and Lamb 1998). Part of the difficulty is the uniqueness
of each child who must be interviewed and the imprecise
nature of establishing and maintaining rapport with
children. Additionally, it is possible that the open-ended
techniques that are the most effective for interviewing
children are quite different from the techniques that are
routinely used in day-to-day communication with chil-
dren, making it difficult for interviewers to substitute
new techniques. In a study that demonstrated signifi-
cantly improved recall when interviewers asked a child a
scripted open-ended question, interviewers shifted their
style to more focused questioning immediately following
the scripted portion of the interview (Sternberg et al.
1997). In this study, the children’s improved performance
on open-ended questions had no effect on the interviewer’s
tendency to ask more directed questions.
Special considerations for physical
and sexual abuse
The majority of the available child witness-related scien-
tific literature pertains to children who are victims or
The child as a witness 433
witnesses in physical or sexual abuse proceedings.
Although laboratory research studies cannot simulate
abuse, many designs involve suggestions of possible abuse,
a medical procedure, or an event that simulates some
element of abuse such as touching. The majority of the
available child witness data is relevant to child witnesses
in general; however, there may be specialized concerns
for child witnesses who have been physically or sexually
abused. The American Academy of Child and Adolescent
Psychiatry has created both guidelines and a policy state-
ment specifically for evaluation of these populations
(AACAP 1988; Bernet 1997). Both of these documents
describe professional qualifications of evaluators and
standards of practice, including evaluation techniques
and the need to protect the children involved. Evaluation
of alleged sexual abuse may be complicated by social
norms prohibiting discussion of sexuality by children.
In a study of five- and seven-year-old girls who underwent
an examination involving genital touch, few children
spontaneously revealed information about the genital
exam in response to open-ended questions. The majority
of the children failed to reveal genital touch until they
were asked directly about it (Saywitz et al. 1991). Another
factor that may be associated with child abuse is the use
of threats by the perpetrator to prevent disclosure or to
compel a child to lie or conceal information. Pipe and
Goodman (1991) reviewed literature on secrecy in chil-
dren and reported that threats may occur in almost half
of some samples of sexually abused children. Studies of
children who were asked to keep a secret or conceal infor-
mation in a laboratory setting have demonstrated that
children were willing to keep secrets to protect strangers
for minor reasons, leading the authors to state ‘we can
only speculate on how much more potent a promise to a
significant relative to remain silent, perhaps under threat
of physical harm or disruption to family unity might be.’
Alleged physical abuse and sexual abuse – particularly
when it occurs in a family setting – may be chronic,
taking place in several episodes over months to years. A
research finding that may be related to multiple episodes
of abuse was reported in a study of children undergoing
voiding cystourethrography. The memory of younger chil-
dren who had endured multiple procedures was no differ-
ent from children who had endured a single procedure;
however, the memory of the younger multiple procedure-
exposed children was more susceptible to suggestion
(Goodman et al. 1994).
The most controversial interview techniques for chil-
dren who have been sexually abused involve the use of
props including anatomically detailed (dolls with repre-
sentations of external genitalia) dolls and drawing mater-
ials. The American Academy of Child and Adolescent
Psychiatry’s policy statement Protecting Children Under-
going Abuse Investigations and Testimony recognized
the use of dolls and drawings as ‘communication aids’ for
the courtroom (AACAP 1989). The Guidelines for the
Clinical Evaluation of Child and Adolescent Sexual Abuse
434 Family law and domestic relations
state that ‘it is not necessary to use anatomically detailed
dolls,’ but goes on to describe the role of the dolls in
assessments in which they ‘may be useful for eliciting the
child’s terminology for anatomic parts and for allowing
the child who cannot tell or draw what happened to
demonstrate’ (AACAP 1988). The Practice Parameters
for the Forensic Evaluation of Children and Adolescents
Who May Have Been Physically or Sexually Abused
reviewed literature on the use of anatomical dolls,
described limited uses for them, and cautioned against
using them to ‘instruct, coach or lead’ or use them as a
‘short cut to a more comprehensive evaluation’ (Bernet
1997). The use of anatomically detailed dolls has gener-
ated so much controversy that some states have incorp-
orated guidelines (New York State Consolidated Laws
1970) or prohibitions into their statutes or case law, requir-
ing professionals to be aware of any relevant local rules.
Although there have been several studies involving
anatomically detailed dolls, the results have been difficult
to interpret due to conflicting findings and the absence of
standardized protocols or norms. Anatomically detailed
dolls may facilitate communication for children whose
vocabulary does not include words for sexual organs or
behaviors. However, it has been suggested that the pres-
ence of sexual organs on the dolls, combined with a
child’s curiosity and exploratory behavior, may lead to
sexualized play and reports of sexual behavior in chil-
dren who have not been abused. It is also possible that
the use of dolls, or props of any type, influences chil-
dren’s testimony by distracting them or encouraging their
imagination.
Several studies have evaluated the use of anatomically
detailed dolls in interviewing normal children. In a study
comparing three- and five-year-old children’s accounts
of events with anatomically detailed dolls, regular dolls
and no dolls, some improvement in recall was demon-
strated using both types of dolls for the older children
and using regular dolls for the younger children
(Goodman and Aman 1990). The authors also reported
‘the use of anatomically detailed dolls in and of itself did
not increase the chances of obtaining a false report of
abuse.’ In a similar study using four- and six-year-old
children, no statistically significant differences in the
amount of accurate information recalled were found for
children interviewed with anatomically detailed dolls,
anatomically neutral dolls, or no dolls (Samra and Yuille
1996). All of the children were described as ‘extremely
resistant to the abuse-related leading question.’ The authors
reported that children who were interviewed with either
type of doll demonstrated consistent, but not statistically
significant, enhanced recall of detailed information.
Some studies have evaluated the use of anatomically
detailed dolls in children who had been sexually abused
or who had experienced potentially traumatic medical
procedures. In a retrospective study, twenty-four case-
matched videotaped interviews of alleged sexual assault
victims (average age seven years) with and without
anatomically detailed dolls were compared (Lamb et al.
1996). Although children interviewed with and without
dolls provided an equivalent number of details, the chil-
dren interviewed without dolls gave longer and more
detailed responses to open-ended questions. In order to
evaluate the effects of anatomically detailed dolls on
interviews of children undergoing a painful medical pro-
cedure involving genital contact, forty-six three- to ten-
year-old children were interviewed following a voiding
cystourethrogram (Goodman et al. 1997). Children were
much more likely to report genital contact when demon-
strating with an anatomically detailed doll than in a free
recall session. Five-year-old and older children recalled
more correct information when using the anatomically
detailed dolls than when using free recall; however,
younger children actually made more errors when they
used anatomically detailed dolls. The performance of the
younger children using anatomically detailed dolls was
so poor that the amounts of correct and incorrect infor-
mation provided were not statistically different.
In a review of research on the use of anatomically
detailed dolls, a working group of the American Psycho-
logical Association warned against the use of anatomi-
cally detailed dolls in pre-school children because of
their ‘greater tendency toward suggestibility and difficul-
ties with symbolic representation’ (Koocher et al. 1995).
The review concludes that research supports the limited
use of anatomically detailed dolls ‘as a communication or
memory aid.’ Ceci and Bruck (1995) reviewed more than
twenty studies involving anatomically detailed dolls in
both abused and normal children. These authors con-
cluded that anatomically detailed dolls should not be
used diagnostically, and described a ‘potential for serious
misuse’ that could result in ‘implantation of false memo-
ries.’ The authors supported this conclusion with their
own study of normal three-year-old children who were
interviewed just minutes after a physical examination.
Some 50 per cent of the children inaccurately reported
being touched on the genitalia in response to a leading
question and a prompt to ‘show on the doll.’ A child
interviewer wishing to use the most conservative approach
to the use of anatomically detailed dolls should simply
avoid their use until research more clearly defines indica-
tions for their use and interpretation of findings (Everson
and Boat 1997). If anatomically detailed dolls are used,
it should be because other methods of interviewing have
failed, and the older than pre-school aged child being
interviewed is having difficulty verbally expressing spe-
cific anatomic details about the abuse. Sexual play with
anatomically detailed dolls should not be considered
diagnostic of sexual abuse (McGough 1994; Koocher et al.
1995; Poole and Lamb 1998).
The use of children’s drawings in the evaluation of
children who may have been abused has been less con-
troversial than the use of anatomically detailed dolls.
Drawings do not contain genitalia for children to interact
with (unless the child creates them as parts of the drawing)

and are not intrinsically sexually stimulating. Further-
more, a child who spontaneously draws explicit sexual
behavior, even if never abused, must have been exposed
to sexual behavior in some form in order to create the
drawing. American Academy of Child and Adolescent
Psychiatry guidelines and practice parameters describe
drawings of persons, families, or events as ‘helpful’ in the
evaluation of sexually abused children (AACAP 1988;
Bernet 1997). The results of the limited number of stud-
ies evaluating the utility of drawings in investigative
interviews of children are inconclusive and have reported
benefits, no effect, and in some cases distraction of chil-
dren (Poole and Lamb 1998).
Court testimony of a child: the role of
a mental health professional
When circumstances require that a child provide court
testimony, a mental health professional may be involved
in a variety of capacities (AACAP 1989). The child’s
competency to testify may be a crucial issue, and a men-
tal health professional may be asked to provide an opin-
ion on this issue. Once a child is considered competent to
testify, a mental health professional may be asked to pro-
vide an opinion on the best way for a child to testify,
specifically addressing the risks to the child of appearing
in court compared to testifying using closed-circuit tech-
nology. Attorneys may use a mental health professional
to assist them in preparing to interview a child witness,
maximizing accuracy, minimizing trauma and taking
into consideration effects on the jury. Finally, a mental
health professional may be involved in the treatment of a
child’s anxiety both before and after court testimony, and
may be asked to recommend appropriate interventions
for the child following a court appearance.
In the majority of cases, the competency of a child to
testify is determined by the trial judge, but in some cases
a mental health professional may be asked to make such
a decision. Guidelines for evaluating a child’s compe-
tency to testify are similar to standards for adults and
have been described (Myers 1993). Competency to testify
requires the capacity to observe, remember, communi-
cate, and distinguish truth from lies. Additionally, the
person testifying must have an understanding of the
obligation to tell the truth. The ability to observe or per-
ceive events is present in virtually every potential wit-
ness, and this requirement almost never interferes with a
child’s testimony. Children’s capacity to remember has
been studied using a variety of designs that have demon-
strated some deficits as well as some situations when a
child’s capacity may be comparable with that of an adult.
This capacity should be evaluated using both free recall
and recognition tasks because children often perform
better using recognition, providing a more representative
sample of their capabilities. A child’s capacity to commu-
nicate may be readily underestimated by an interviewer
The child as a witness 435
who uses language that is not developmentally appropri-
ate. A child’s communication abilities may be more than
adequate when language that is understandable to the
child is used. A child, who communicates effectively one-
on-one, may become fearful and unable to communicate
when testifying in court. The ability of a child to distin-
guish truth from lies is often evaluated by asking the
child for examples. Even very concrete responses nor-
mally qualify. An evaluation of the child’s understanding
of the obligation to tell the truth commonly involves ask-
ing the child what will happen if they lie. Responses that
suggest something bad will happen or the child will get in
trouble normally satisfy this requirement. An innovative
approach to evaluating competency in children using
developmentally appropriate picture tests has demon-
strated the potential to increase the number of children
who are considered competent to testify (Lyon and
Saywitz 1999; Gibeaut 2000).
Evaluators must distinguish the competency of a
child to testify from the credibility of their testimony.
A child who has been interviewed with highly suggestive
techniques and reports impossible or highly improbable
events may still be competent to testify. The scrutiny of the
court process including other evidence, cross-examination
and expert testimony are used to assist the jury in deter-
mining what value to place on the child’s testimony.
Court procedures and standards that are specific to
children recognize both potential deficits in child wit-
nesses and the state’s interest in protecting children from
being traumatized by investigative and court procedures.
A mental health professional may be the best-qualified
person to make a determination regarding the impact of
court procedures on children. An evaluation of this type
is necessarily specific to the individual child and their cir-
cumstances. Child-specific factors that must be consid-
ered include the pre-existing mental health of the child,
the presence or absence of a supportive family structure,
and the child’s cognitive abilities and emotional matur-
ity. Perhaps the most important situational factors that
an evaluator must take into account are the specifics of
the court proceedings. A child witness whose role was sim-
ply to testify that they had seen a stranger in a store could
reasonably be expected to experience less anxiety about
testifying than a child who was expected to testify as a
victim of multiple incidents of forcible rape perpetrated
by family members. A child who is aware of the conse-
quences of their testimony may experience significant
anxiety about testifying. For example, a child testifying in
a trial in which their parents have been charged with
abuse or neglect, may be acutely aware of the direct
impact that their testimony will have on their future rela-
tionship with their parents.
The most commonly reported responses of children
to court procedures are anxiety and depression; however,
these symptoms are not observed in all children. A child
who is distraught, crying or otherwise traumatized dur-
ing a forensic interview could reasonably be expected to
436 Family law and domestic relations
respond similarly when testifying to the same informa-
tion in a courtroom in the presence of a defendant. Chil-
dren who develop anxiety symptoms such as sleeplessness,
nightmares or somatic complaints that worsen as a court
date approaches are candidates for some type of treat-
ment or intervention. First-line interventions include
psychiatric treatment of the disorder and/or an educa-
tional program that may familiarize the child with court
procedures. If these interventions fail, alternative means
of testifying including the use of closed-circuit technol-
ogy, testifying with a support person, or in severe cases
recommending against the child testifying, may be con-
sidered. A recommendation against testifying should be
considered very carefully because some studies have
demonstrated improvement in anxiety after testifying and
because failure for the child to testify could result in a
failure to convict a guilty defendant, potentially re-uniting
the child with a perpetrator. When a decision is made to
use closed-circuit testimony, a mental health professional
may also advise the court regarding whether two-way (wit-
ness can see the defendant) or one-way (witness cannot see
the defendant) closed-circuit technology should be used.
A mental health professional may also play a role as
a consultant or an advisor to attorneys or other court
personnel involved with child witnesses. Attorneys may
benefit from instruction about how to question a child
in a developmentally appropriate way, including strategies
to obtain the most accurate testimony. Attorneys should
be advised to elicit information in the same way that
other child witness evaluators should; starting with age-
appropriate open-ended questions and carefully using
directive questions as needed, always using age-appropriate
language. After a child has testified or has been involved
in other court proceedings, mental health professionals
may be asked to recommend or provide psychiatric treat-
ment. When a family member has been involved in the
court proceedings, a mental health professional may be
asked to make recommendations regarding future con-
tact with an alleged perpetrator.
Expert testimony pertaining to the
testimony of a child witness
An expert witness may be asked to give testimony to sup-
port or cast doubt on testimony provided by a child,
or simply to provide background information regarding
child development, interviewing techniques and testimony
(McGough 1994). As with any forensic evaluation, an
expert should remain neutral, avoiding one-sided state-
ments that indicate children are always correct or incor-
rect. Balanced expert testimony will describe children’s
strengths and weaknesses and then apply this informa-
tion to the specifics of the child’s case. An expert should
be prepared to support his or her conclusions with rele-
vant research, but also be able to explain how the research
applied or did not apply to the situation in question.
The most common areas in which there is controversy
are children’s memories and the risk of false allegations
through suggestible interviewing. A summary of four
general recommendations for experts testifying on these
issues has been suggested by Ceci and Bruck (1995). First,
an expert should advise the court that ‘there are reliable age
differences in children’s suggestibility with pre-schoolers
being more vulnerable than older children.’ Second, young
children can provide accurate reports, but they may pro-
vide erroneous reports of incidents involving even very
salient events involving their own bodies when influ-
enced by suggestive interviewing. Third, an expert should
describe measures that can be used by interviewers to
minimize suggestibility such as minimizing the number
of interviews and the use of suggestive questions. Finally,
an expert should describe the variability and complex
interrelationships between the factors affecting a child’s
testimony, urging caution in applying research findings.
A complete description of factors that may influence a
child’s testimony will include factors related to both the
child, the context of the interview, and other social fac-
tors. Important child-specific variables are the child’s age
and development. Less easily quantified variables include
the child’s memory capabilities, their susceptibility to
suggestion, and their level of anxiety or other psycho-
pathology. Interview variables that may influence the
accuracy of a child’s testimony include the timing and
type of questions used, the expectations style or biases of
the interviewer, and the appropriateness of the interview
setting. Other variables that may be important include
the availability of social support and the possibility of
witness coaching or other influences such as threats. It is
important for an expert who identifies variables that
could have caused a child to make a false allegation to
point out to the court that the presence of these influ-
ences has no relationship to what actually happened. The
presence of suggestive interviewing does not support the
innocence of a defendant; it simply provides an alterna-
tive explanation for a child’s allegation.
CONCLUSIONS, FUTURE RESEARCH AND
UNANSWERED QUESTIONS
A consistent finding in child witness research is that chil-
dren, including pre-school-aged children, often have
accurate memories of events and have the potential to
provide valuable information. Unfortunately, children’s
abilities to understand, retain, and relate information are
not fully developed. Furthermore, children relate their
accounts of events in an interactive social context that
has the potential to alter the child’s accounts of events
through suggestion and attempts by the child to please
the interviewer. It is not appropriate to ask whether or
not particular children have memory deficits, are poor
historians, or are suggestible. Both children and adults

demonstrate deficits in all of these areas, and there is
substantial variability in these deficits at any age. A more
appropriate group of questions involve more precisely
defining children’s weaknesses and defining strategies to
improve their performance.
Children’s ability to testify – like the majority of their
abilities – lies on a developmental continuum, with the
most significant deficits consistently evidenced in pre-
school-aged children. Research has focused on pre-
school and school-aged children, perhaps because they
demonstrate the greatest deficits, or perhaps because this
is the period when the most relevant cognitive and emo-
tional development is occurring most rapidly. Studies
evaluating memory or suggestibility in older children
sometimes demonstrate abilities that are similar to adults;
however, typically they demonstrate some deficits com-
pared with adults. The abilities and deficits of adolescents
have not been adequately studied and have not been well
defined. Although most studies suggest that adolescents
are quite similar to adults, it is possible that factors such
as peer pressure, sexuality and response to authority may
play different roles in interviews of adolescents.
A major area of research on child witnesses has
focused on defining the best ways to obtain information
from children. There are ways to approach a child witness
to maximize their memory performance and minimize
the risk of altering their accounts. The findings of these
studies consistently underscore the importance of devel-
opmentally appropriate interview techniques. A profes-
sional who interviews children cannot rely on a single
format for interviewing. Instead, the professional will
have to learn a variety of interview techniques for the dif-
ferent ages and developmental levels of the children who
are interviewed. These techniques cannot be applied
blindly based on the child’s age or measured intelligence;
instead, they must be used in an interactive way based on
the developmental level of the child being interviewed
and the child’s behavior during the preceding portions of
the interview. Further complicating the task of inter-
viewing children is the finding that open-ended ques-
tioning may be counter-intuitive and that apparently
innocuous questions or behavior may adversely affect
the account of the child. These factors require a child
interviewer to be continuously vigilant of their questions
and behavior in a setting that is often so emotionally
charged that makes it difficult for even experienced
interviewers to remain neutral. Although research is
available to provide interviewers broad guidelines for
questioning children, there is little or no specific infor-
mation available to guide interviewers during the substan-
tive phases of interviewing. Additionally, the majority of
studies of interviewing child witnesses have focused on
alleged victims of sexual assault; there is very little infor-
mation available describing interviews of child witnesses
in other criminal or civil matters.
Legislative and judicial trends increasingly allow the
admission of testimony from children. To reduce the risks
The child as a witness 437
associated with allowing more children and younger
children to testify, there is an increasing role for mental
health professionals to advise the court regarding both
the appropriateness of allowing the testimony and the
best way to obtain the testimony. When a child does pro-
vide testimony, a mental health professional may advise
the court regarding the strengths and limitations of the
child’s testimony. Additionally, there is increasing recog-
nition of an interest in protecting child witnesses from
the trauma of interviews and testifying. Again, a mental
health expert may advise the court regarding the risks of
testifying for the child and the appropriateness of inter-
ventions to reduce these risks. Together, these legal trends
support an increased role for mental health professionals
with an expertise with child witnesses.
Many studies of children’s suggestibility, while gener-
ally reporting some resistance to suggestion for person-
ally relevant events, have indicated that one subject or a
very small number of subjects were highly suggestible.
These children not only endorsed interviewer’s sugges-
tions but also were described in some cases as elaborating
and spontaneously inventing details. Future studies to
help to identify and characterize this group of children
are needed. Another important area for future research
will involve studies of the eyewitness testimony of chil-
dren with psychiatric illnesses or developmental disabil-
ities. These studies may be particularly important
because children who provide eyewitness testimony are
often victims. These victims may be at an increased risk
of developing a variety of psychiatric disorders including
depression, anxiety disorders, and dissociative disorders.
It is important for new studies to begin to define how the
presence of a psychiatric disorder affects a child’s mem-
ory and suggestibility. A controversial extension of research
on the suggestibility of children involves the longitudinal
course of patients who have been interviewed with sug-
gestive techniques. What happens to children’s real or false
traumatic memories as they age into adulthood is currently
unknown.
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Violent adolescent offenders
ROY J. O’SHAUGHNESSY
INTRODUCTION
Violence in our society is rapidly developing into a major
public health problem. Exact rates of violent behavior are
not completely known due to the under-reporting of vio-
lent crimes to police agencies. We have witnessed varying
rates of violent behavior by adolescents during the past
two decades. Between the mid-1980s and mid-1990s,
there was a marked increase in the rate of juvenile vio-
lence, though this rate seems to have reduced in the past
few years. The rate increases have been postulated as
being affected by the number of juvenile gangs, access to
weapons, including guns, use of drugs (especially crack-
cocaine), as well as other local factors that influence rates.
Adolescents and young adults are the most likely groups
to commit violent offenses, and are also the most likely
groups to be victims of assaultive acts. Dietz (1987) ana-
lyzed crime reports of violent behavior and found that
86–89 per cent of the offenders committing aggravated
assault or simple assaults were male. Of these offenders,
20 per cent were aged less than twenty-one years. Likewise,
rates of victimization were higher for males, with the
highest age-specific victimization rates falling in the 16-
to 19-year-old group. Homicide victimization rates show
similar trends, with a sharp increase in rates in adolescence
and peaking in the 20- to 29-year-old group. Historically,
males in the 16- to 25-year-old age group have shown the
highest frequency of violent behavior.
The office of Juvenile Justice and Delinquency
Prevention has presented research from the Program of
Research on the Causes and Correlates of Delinquency
(Hawkins et al. 2000). The populations from the Denver
Youth Survey and Pittsburgh Youth Study document the
interconnection between delinquent activity and being a
victim of violent crime (Loeber and Hay 1996; Loeber and
Farrington 1998). As the rate of delinquency increased, the
rate of victimization also increased, with 10–20 per cent of
the two cohorts having been victimized. The studies also
examined predictors of victimization, and noted that
youth which participated in gang fights, carried a weapon
44
or had committed a serious assault themselves were more
likely to be victims of crime and assaults. Likewise, sell-
ing drugs and associating with delinquent peers increased
the risk of being a victim of violence. The authors con-
clude that identification and management of those fac-
tors leading to serious delinquent and violent behavior
also may reduce victimization in that same cohort.
It is beyond the scope of this chapter to examine all the
factors leading to violent behavior. There are excellent
reviews of studies available in the psychiatric, psycho-
logical and sociological literature (Robbins 1966; Wolfgang
1972; McMannus, Alessi and Grapefine 1984; McMannus
et al. 1985; Dietz 1987; Burrowes, Hales, and Harrington
1988; Moffitt and Silva 1988; Travin, Cullen, and Melella
1988; Moffitt, Mednick and Gabrielli 1989; Moffitt 1993;
Farrington and Loeber 2000). What is clear from these
studies is that violence – like all other complicated
behaviors – is multi-determined and is generally
regarded as resulting from the interaction of a number
of intrapsychic, interpersonal, biological, and social
factors (Farrington and Loeber 2000).
Psychiatrists are frequently asked by juvenile court
judges to assess adolescents who have committed violent
crimes. While issues of the adolescent’s competency to
stand trial (Grisso, Miller, and Sabos 1987) or his/her men-
tal state at the time of the offense are occasionally raised,
the courts are generally more interested in what treatment
or interventions are available to reduce future likelihood
of violent behavior (Wizner 1991). The psychiatrist will
be asked to evaluate whether a psychiatric disorder is
present, how the disorder relates to the violent behavior
before the courts, and what type of treatment or other
disposition may be effective. In cases of severe or chronic
violent behavior, the courts will often ask for an assess-
ment to determine if the youth shall be tried as an adult
rather than a juvenile, thus exposing the adolescent to
much lengthier sentences or the death penalty. Most waiver
statutes require an evaluation of amenability to treatment
and prediction of future likelihood of violent behavior
(Barnum 1987). There are substantial scientific and eth-
ical limitations on the ability of adequately determining
442 Family law and domestic relations
future violent behavior, especially in adolescents. In the
past few years, however, there have been a number of lon-
gitudinal studies following youth into early adulthood
that have increased our knowledge base regarding factors
that predict for future violent behavior (Rutter and Giller
1983; Farrington et al. 1988; Farrington 1989; Loeber and
Hay 1996; Rutter, Giller, and Hagell 1998). As noted
below, however, there needs to be careful consideration
of utilizing such predictions in a court setting where the
potential consequences are grave and where prospective
studies have not yet been determined.
The forensic psychiatric evaluation of adolescents in
juvenile court is described elsewhere in this text. The psy-
chiatric evaluation of individuals who have committed
violent acts demands a true bio-psychosocial assessment.
When examining a youth charged or convicted with a
violent offense, the examiner needs a clear understand-
ing of the interaction between the predisposing social,
psychological and biological vulnerabilities with the pre-
cipitating events, including interpersonal interactions,
motivations, goals and provocations preceding the actual
violent behavior. This assessment, by its nature, requires
examination not only of the youth alleged to have com-
mitted the violent act but also an evaluation of his family
and sociocultural background. Information regarding
previous psychiatric and medical assessments and treat-
ments, prior conflicts with the law, current police reports,
and victim and witness statements is essential to complete
an assessment.
To adequately assess an individual charged with a
violent offense, the examiner must have a wide know-
ledge of the psychiatric, psychological and criminological
research into violent behavior. Data derived from groups
of violent individuals provide a reference point for the
assessment of the individual, as well as assisting the
examiner in areas of investigation that may be fruitful.
More importantly, rough measures of prognosis, future
risk and possible responsiveness to treatment may be
estimated by comparing the individual to known outcomes
of similar groups. A number of long-term outcome stud-
ies are now available.
LONGITUDINAL STUDIES OF DELINQUENCY
Outcome studies of juvenile offenders show an increasing
confluence of data regarding baseline rates of offending
and patterns of behavior. Virtually all studies in North
America and Europe describe a close association between
violent behavior and persistent or serious criminal offend-
ing. Higher rates of both persistent offending and violence
are found in males from socially deprived backgrounds
who also have a history of family dysfunction with expos-
ure to domestic violence. Family studies note high rates
of criminal behavior, mental health difficulties and sub-
stance abuse in the parents of seriously delinquent youth.
While delinquent behavior by itself is a relatively common
phenomenon, the majority of delinquent acts are rela-
tively minor and the majority of offenders do not persist
in offending past adolescence.
A number of studies have identified subgroups of delin-
quents who can be considered either persistent or chronic
offenders whose prognosis is decidedly different from
less severe delinquents. In Wolfgang’s (1972) classic early
study of delinquents, he noted a subgroup defined by
committing five or more offenses. Although this group
comprised 6 per cent of the youth population, they were
responsible for over 50 per cent of all criminal offenses.
Farrington (1989), in England, noted that 77 per cent of
youth committing three or more offenses went on to
become chronic adult offenders with at least four subse-
quent convictions. Robbin’s earlier studies (1966) noted
that childhood antisocial behavior was virtually a pre-
requisite for serious adult antisocial behavior. She noted
that those more likely to become persistent offenders
began offending early, and had a high childhood fre-
quency of antisocial behavior in a variety of different set-
tings. The Epidemiological Catchment Area (ECA) study
(1991) also noted the same predictors for adult antisocial
personality disorder. In the ECA study, 71 per cent of
individuals showing eight or more symptoms of conduct
disorder prior to the age of six years went on to subse-
quently meet the criteria for antisocial personality dis-
order in adulthood. By contrast, 48 per cent of youth
with eight or more symptoms that began after the age
of twelve years went on to meet Antisocial Personality
Disorder criteria.
Virtually all longitudinal studies of persons committing
antisocial acts indicate that violent criminals commit
more of every other type of crime than non-violent
criminals. In the Danish cohort study (Moffitt, Mednick,
and Gabrielli 1989), the mean number of violent crimes
in a criminal career varied directly with the age of first
arrest for any crime. Farrington (1989) noted that violence
was part of a more serious criminal tendency and the
predictors for violence were similar to the predictors for
general criminal behavior.
The recognition that there were a small number of
juveniles who committed the large proportion of offenses
and violent offenses has spawned increasing research to
more thoroughly study this subpopulation. The office of
Juvenile Justice and Delinquency Prevention convened
researchers under the direction of Drs. Loeber and
Farrington, who summarized the data and research on
predictors of violent offending in juveniles. Utilizing meta-
analysis, the group described predictors in five separate,
but related, domains. Within individual psychological
factor domain, the traits of hyperactivity, impaired con-
centration and risk taking/reckless behavior was highly
correlated with subsequent violent behavior, as was aggres-
sive behavior in the pre-teen years, with ongoing prediction
through adolescence into adult years. Likewise, early
initiation of other violent behavior seemed to identify

a subgroup that was more likely to continue engaging in
violent acts. As noted above, Farrington also noted the
increased rate of violent behavior in those who had com-
mitted antisocial, but non-violent, acts. Attitudes and
beliefs were also noted to be predictive in those individ-
uals who affirmed antisocial orientation or who accepted
violence as an instrument that could be used to effect
desired ends. Anxiety symptoms in general seemed to be
negatively correlated with subsequent violence.
Family factors were highly correlated with juvenile vio-
lence in some studies, although Moffat found contrasting
results. Most studies have affirmed a linkage between
juvenile violence and poor parenting skills marked by
inconsistent parenting or lack of discipline or punitive dis-
cipline behaviors (Kazdin et al. 1987; Lahey et al. 1988a;
Lahey et al. 1988b; Lewis et al. 1989). The studies have also
affirmed increased delinquency and violence in those
families where there is frequent conflict and poor bond-
ing. Lack of parental involvement in the child’s life also
seems to increase the future risk of violent behaviors.
Social factors have also been implicated in increasing risk
of violent behavior in youth. Poverty, lack of cohesive-
ness in the community, as well as ready availability of
drugs and firearms have all been linked to increasing rates
of violence. Further, exposure to violence, as well as racial
prejudice has been demonstrated in past studies to
increase subsequent violent behavior. Likewise, peer
group influences have clearly been documented to
increase rates of crime and violence in youth. Delinquent
peers or affiliation with youth gangs or a delinquent sub-
culture substantially increases the rates of delinquent
and violent behaviors. The last domain, school factors,
has been identified as viable predictors. Youth who do not
have any affiliation to a regular school or those who have
difficulties with academic achievement have higher rates
of violent behavior. Further, most individuals who engage
in delinquent and violent acts by their earlier teens also
have a high rate of truancy and school dropout, which fur-
ther impedes their abilities to obtain vocational training,
which can be seen as an alternative to criminal offending.
Schools in areas of high delinquency often have a conta-
gion effect for other youth and, subsequently, a higher rate
of criminal behavior and violent behavior is found.
In reviewing various longitudinal studies of antisocial
and aggressive behaviors, a number of conclusions can
be drawn. Antisocial behavior and aggression are stable
traits over time (Olweus 1979), with serious aggressive
offending increasing from the mid-teens to mid-twenties.
Early onset and frequency of symptoms of conduct dis-
order predict subsequent antisocial and aggressive behav-
ior in adolescents and adults, and presence of mental
health symptoms and/or multiple drug abuse identifies
the most disturbed, multi-problem youth that also have
the highest rate of antisocial and violent activity. While we
are able to make relatively accurate predictions of criminal
and violent behavior by identified subgroups of antisocial
youth, there is sufficient movement by individuals into
Violent adolescent offenders 443
and out of these groups so that individual prediction of
future violent behavior is not precise. Nonetheless, the
early-onset pathway defined by Patterson and colleagues
(1989), or Moffitt’s (1993) life course persistent models of
conduct disturbances certainly identify subgroups that
carry a high risk of ongoing violent and non-violent
offending. This may have significant implications for Court
assessments of such youth, as well as community response
to management and treatment of these subgroups.
CLINICAL CORRELATES WITH VIOLENCE
The assessment of the individual charged with a violent
offense begins by an analysis of the behavior itself. There
is some clinical utility in borrowing concepts from ani-
mal models of aggression, such as dividing violence into
‘predatory’ types versus ‘affective’ or ‘expressive’ types.
This entails an analysis of the apparent goals and motiv-
ations both consciously and unconsciously, the amount of
premeditation and planning, the use of carried weapons
or weapons found at the scene, and the behavior before,
during, and after the violent act. Evidence of any provo-
cation from slight to severe, real or imagined, may have
significant impact on the final clinical judgment, as can
an examination of the level of violence used especially if
there is grossly excessive violence.
The youth who coldly plans a robbery and kills the
victim for monetary benefit paints a very different clin-
ical picture from the boy who erupts impulsively follow-
ing a perceived slight and subsequently inflicts multiple
stab wounds upon his victim. Unfortunately, talking in
detail about the offense may not be possible, especially in
waiver hearings, as the youth’s lawyer may advise against
such disclosures. In such circumstances valuable infor-
mation may not be available and what actually happened
can only be inferred from witness statements, police inves-
tigation, or autopsy reports.
The evaluation of the youth must focus on the bio-
logical, psychological, and social factors relevant both to
the criminal’s behavior and to his or her general function-
ing. Although the majority of adolescent violent offenders
are diagnosed with conduct disorder, the examiner must
look past the offending behavior to rule out other symp-
toms of psychopathology.
Although past studies have identified various clinical
entities in association with violent behavior, there is no
single biological or psychiatric disorder that can explain
any more than a small percentage of violent behaviors. In
some adolescents, however, psychiatric illness may play a
significant role in the expression of violent behavior.
Attention deficit hyperactivity disorder (ADHD) fre-
quently coexists with conduct disorder, and numerous
studies have shown increased rates of antisocial behavior
and substance abuse in youth with ADHD (Gittelman
et al. 1985; Cantwell and Baker 1988; Lahey et al. 1988a;
444 Family law and domestic relations
Lahey et al. 1988b; Mannuzza et al. 1988; Cantwell and
Hanna 1989). The core symptoms of hyperactivity, impul-
sivity, and poor attention span render these youth vulner-
able both academically and socially (Weiss 1985; Weiss
and Hechtman 1986; Tailor et al. 1996). The traits of
impulsivity and hyperactivity have long been associated
with violent behavior. Symptoms of impulsivity may per-
sist through adolescence and into adulthood, even when
signs of hyperactivity have faded. Youth with ADHD,
who are comorbid for disruptive behavior disorders pres-
ent a subgroup that carries a much worse prognosis for
both substance abuse and criminal and violent behaviors
later in life (Vitacco and Rogers 2001).
There was considerable debate in the literature as to
whether ADHD with conduct disorder is the precursor
of ‘psychopathy’ in adults (Lynam 1998). There is fairly
clear evidence that impulsivity, as a trait, predicts
strongly for conduct disturbance and ‘psychopathy.’ This
area of research is still in need of more data and longi-
tudinal studies but, certainly, the role of impulsivity in
violent behavior is well established and may assist the
clinician both in assessment and subsequent manage-
ment of serious offenders.
Treatment outcome studies of ADHD indicate that
roughly 75 per cent of patients show significant improve-
ment with sympathetic agents such as methylphenidate
(Cantwell 1985a; Cantwell 1985b; Jacobvitz et al. 1990;
Klorman et al. 1990; Green 1991; Cantwell 1996). It is
encouraging to note that methylphenidate produces a
reduction in aggressive behavior, as well as an improve-
ment in general interpersonal functioning (Barkley et al.
1989; Gadow et al. 1990; Kaplan et al. 1990). The results
are less dramatic in the adolescent population than in
children, but the improvements warrant a therapeutic
trial in any adolescent with ADHD. Unfortunately,
methylphenidate is a drug that is easily abused, and gen-
erally should not be prescribed in drug abusers. Given
that a sizeable portion of serious offenders are also poly-
drug abusers, alternative treatments such as clonidine or
indipramine may be considered (Hunt, Mindera, and
Cohen 1985; Green 1991).
Current clinical practice recommends that multi-
modal treatment is the preferred management of ADHD
(Jensen 1999). This basically combines both chronological
and psychosocial interventions to optimize outcome. This
has significant implications also for violent youth, in that
the multimodal treatment for ADHD shares elements
in common with multisystemic treatment that has been
proven effective in seriously delinquent and violent youth.
Improving parental functioning through parent manage-
ment training, improving school functioning through
intervention and placement, as well as individual training
to improve social skills and control of impulses has signifi-
cant benefit, not only for youth with ADHD but also for
those with comorbid conduct disorder.
Neuropsychiatric disorders have been linked with ado-
lescent violence in a number of studies. Lewis et al. (1982,
1989; Lewis, Mallough and Webb 1989) found evidence
of symptoms of partial complex seizure disorder in eleven
of ninety-seven incarcerated delinquents and presence of
paranoid thinking, hallucinations and thought disorder
in many others. Lewis and colleagues found a greater
number of such symptoms in the more violent youth.
McMannus and colleagues (1984, 1985) noted conflict-
ing findings in their study of seventy-one incarcerated
delinquents, 70 per cent of whom were violent. In this
study, gross neurological findings were uncommon and ‘soft
signs,’ although present, were not related to severity of vio-
lence. McMannus et al. did note a high percentage of
borderline personality disorder in their sample, and this
subgroup had a greater number of violent offenses. This
group was characterized by intense anger, impulsivity and
self-injurious behavior. Although most studies of violent
adolescents describe severe dysfunction with self-injurious
behavior, distant and disturbed interpersonal relation-
ships, emotional liability, and substance abuse, the pres-
ence of psychiatric disorders is relatively uncommon.
During the past decade, there has been increasing evi-
dence that some types of violent behavior have been asso-
ciated with alterations in neurotransmitters. Reduced levels
of 5-hydroxyindoleacetic acid (5-HIAA) in cerebrospinal
fluid (CSF) has consistently been found in adults with
impulsive violent behavior directed both toward self
and others (Linnoila et al. 1983; Linnoila, DeJong, and
Virkkunen 1989; Virkkunen et al. 1989a; Virkkunen et al.
1989b). Adults who were impulsively violent had signifi-
cantly lower 5-HIAA levels than adults who had planned
or premeditated their violent acts, and impulsive offend-
ers who had also attempted suicide had the lowest
5-HIAA levels (Linnoila et al. 1983). Lower 5-HIAA levels
were found in those who had committed multiple violent
acts versus those with only one offense. Studies of CSF
5-HIAA levels are more difficult to perform in children
given ethical and practical limitations, but Kruesi and
colleagues (1990) have found similar findings in a group
of children with disruptive behavior disorder. In this
study, measures of aggressive behavior were inversely
correlated with CSF 5-HIAA levels. Although no control
group was available, the levels of CSF 5-HIAA in these
children were significantly lower than a contrast group
of children with obsessive compulsive disorder. In the
follow-up study, Kruesi et al. (1992) found that low CSF
5-HIAA levels significantly predicted severity of physical
aggression, even after a multi-varied analysis control for
other clinical measures.
Halperin et al. (1994) performed fenfluramine chal-
lenges in a conduct disordered population, but lacked
a control group. He too found evidence of a different
response to fenfluramine by the aggressive than by the
non-aggressive group, but was unable to tell whether
the aggressive group had a lower response or the non-
aggressive had a simply higher response. He concluded
that serotonin dysregulation appears to be a factor, but
the exact mechanism is unknown. In contrast, Pine et al.

(1996) did not find an association between boys with and
without disruptive behavior disorders in the serotonin
receptor density on platelets. In a follow-up study using a
fenfluramine challenge, Pine, Copland, and Wasserman
(1997) found an increase prolactin response consistent
with Halperin et al.’s findings, and postulated that there
may be developmental changes in the relationship between
serotonin levels and aggressive behavior in the develop-
ment from childhood to adult years. These authors also
found a correlation between prolactin response and poor
parent–child interactions, and also postulated a possible
genetic environmental interaction that could work in
tandem to affect brain chemistry.
There have been promising findings in the treatment
of impulsive/aggressive behavior in adults with serotonin
uptake inhibiting antidepressant medications (Coccaro,
Kavoussi, and Hougar 1997), though as yet these have
not been duplicated in youth.
Studies of the family environment of seriously anti-
social and aggressive adolescents have yielded consistent
results (Robbins 1966; Rutter and Giller 1983; Quay and
Werry 1986; Boyle et al. 1987; Offord et al. 1987; Lahey
et al. 1988a, 1988b; Robbins 1991; Rutter, Giller, and Hagell
1998). Family dysfunction with evidence of marital dis-
cord and severe and erratic disciplining practices is fre-
quently associated with severe delinquency. Domestic
violence in which the child is either the victim of phy-
sical abuse or frequently views violence in the home is
described in the development of violent adolescents.
Parental criminal behavior, especially in the mother, is
highly predictive of serious adolescent antisocial behav-
iors. Rutter and coworkers (1990) reviewed the literature
on genetic predisposition to antisocial behavior. Both
adoptive studies and twin studies have shown a genetic
influence in prediction of adult antisocial behavior, with
monozygotic twins of antisocial adults showing consis-
tently higher rates of antisocial behavior than dizygotic
twins. Of note are the higher rates of antisocial behavior
in the dizygotic twins of antisocial adolescents than in
dizygotic twins of antisocial adults, which points to a
greater role of the family environment shared by siblings
in the adolescent population. Equally interesting is the
finding that genetic factors appear to be more influential
for chronic, minor antisocial behaviors than for major or
violent offenses.
Patterson, Chamberlain, and Reid (1982) describe
family dynamics frequently seen in aggressive adolescents.
Coercive interaction patterns are established over long
periods of time. The aggressive child provokes aggressive
responses in the parent, who often reinforces the behav-
ior by becoming frustrated and giving in to the child’s
demands. Promising results in the reduction of aggression
have been shown in controlled studies utilizing parent
management training. The parent is taught to establish
consistent rules to reward appropriate behavior with
positive reinforcement and to use only mild punishment
to suppress negative behaviors. Although this approach
Violent adolescent offenders 445
appears effective, the best results occur with prolonged
treatment, but this is expensive and difficult to access.
Poor results are seen in families with excessive marital
discord or psychopathology.
Kazdin (1987) and Kazdin et al. (1987) evaluated the
effectiveness of combined parent management training
with cognitive problem-solving social skills training.
After one year these adolescents showed significantly less
aggressive and externalizing behaviors and better overall
adjustment.
There is now a widespread belief that abusive and
aggressive adolescents and adults are violent because they
themselves were the victims of violence in their families
of origin. The majority of studies comparing violent with
non-violent adolescents show significantly higher rates
of child abuse in the violent group. Widom (1989) car-
ried out an extensive review of the literature on the rela-
tionship between child abuse and subsequent violence,
and found multiple methodological flaws in the majority
of the studies. The findings of many studies indicated a
high level of subsequent violence in some abused chil-
dren, but the majority of abused children did not subse-
quently become violent. Violent offenders had a higher
rate of abusive histories than non-violent adolescents and
adults, but the majority of violent persons did not have a
history of being abused. The effects of emotional abuse
and neglect were difficult to separate from the effects of
physical abuse. Widom concluded that the empirical
evidence indicating that childhood physical abuse leads
to subsequent violence is sparse.
In their review of the literature, Lewis, Mallough,
and Webb (1989) opined that severe child abuse does not
invariably lead to subsequent violent behavior. However,
severe child abuse is associated with subsequent violence
if there is concurrent psychological or neurological dys-
function leading to poor impulse control, mood regula-
tion, or reality testing.
In addition to evaluation of individual psychological
and biological functioning and family dynamics, violent
behavior must also be assessed within its sociocultural
context. Rates of violent behaviors differ significantly
across geographical and cultural boundaries. Wolfgang,
Figho, and Sellin (1972) coined the phrase ‘the subculture
of violence’ to define a sociodemographic pattern of vio-
lence. In Wolfgang’s model, groups differ in their base rates
of violence because their members accept and encourage
violent behavior that would be socially discouraged by
other groups. In this context, violence is seen as the nor-
mal response to minor provocations or as an acceptable
method of dealing with disputes. Although it is unclear if
this phenomenon is found in large demographic groups,
it is certainly common among certain subgroups such as
youth gangs and in certain violence-plagued urban socially
deprived areas.
The cognitive distortions and rationalizations associ-
ated with ‘the subculture of violence’ are also seen in youth
who are violent. Among many adolescent peers violence
446 Family law and domestic relations
quickly gains acceptability, especially in an environment
where ‘macho’ values dominate. Among many adolescent
peer groupings, violence instills fear and a misguided
notion of respect and envy at the power that a violent
individual may enforce over others. In this context, vio-
lent behavior is powerfully reinforced. Many juvenile
institutions, filled with antisocial aggressive youth, are
breeding grounds to learn that violence is an effective
tool for self-protection and advancement with rewards of
power, control, and domination (Poole and Regoli 1983;
Jacobvitz et al. 1990; Mutchnick and Fawcett 1990).
Psychiatrists must realize that placing youth in such an
environment is likely to have negative effects. Arguably,
only those youth who are a persistent risk to the commu-
nity should be sentenced to these types of secure custo-
dial environments.
The concept of psychopathy, which was first described
by Cleckley (1976), and subsequently operationalized by
Hare (1991), has gained significant interest in the assess-
ment and management of adult violent offenders.
During the past few years, there has been increasing
interest in the measure of ‘psychopathy’ in adolescents,
utilizing a modified version of the Psychopathy Checklist
(PCL) developed by Hare. Although the published man-
ual was not in print at the time of the writing of this
chapter, there have been a number of studies utilizing the
PCL-Youth Version (PCL-YV) that demonstrate good
inter-rater reliability in assessing psychopathy in adoles-
cents. The preliminary studies indicate that those youth
who have a high score on the PCL-YV have much greater
rates of institutional infractions, violations of probation
orders, and are also much more likely to re-offend both
violently and non-violently than those youth with low
PCL scores. PCL scores have been utilized in a number of
risk assessment instruments for adult violent behavior,
and as a single factor the PCL is the most robust in pre-
dicting future criminal behavior and violent activity in
adults. Whilst it is likely that PCL scores in youth will also
be quite predictive, the data are still preliminary and
examiners must be cautious in their interpretation of
PCL scores, given that the negative impact from such
interpretations may be quite profound on a particular
youth. This is understandably not without ethical concern
and debate and, certainly, full disclosure as to the limita-
tions of such instruments must be provided if examiners
are to use them in any court-related procedure.
Psychiatrists are often asked by the courts to offer a
risk assessment of an adolescent that can be used in court
proceedings to determine if they should be transferred to
an ordinary (adult) court or kept in juvenile courts. This
is an area that has been widely developed in adult criminal
forensic psychiatry, in which a combination of clinical
and actuarial factors to predict future behavior has become
the standard procedure. A number of such instruments
are now available with benefits and limitations that are
beyond the scope of this chapter. To date, there have not
been any risk assessment instruments for adolescent
offenders that have been adequately researched in the liter-
ature. In our own clinic, we have been testing a prototype
instrument that utilizes a combination of actuarial and
clinical variables that, in turn, have been demonstrated to
be predictive for violent behavior and persistent offend-
ing. These variables were derived from the longitudinal
studies noted above. Refinement of the instrument will
occur with prospective studies that will hopefully assist a
differential weighing of each of these variables to develop
a more reliable measurement of future behavior. In the
interim, however, the clinician is well advised to be
extremely cautious in the area of such predictions. One
can use the existing longitudinal data in a generic fashion
to offer rough guides to the court as to which youth pre-
sent with a greater or lesser risk of re-offending (Lipsey
and Derzon 1998; Loeber and Farrington 1998; Hawkins
et al. 2000). While it is fairly easy to separate the very low-
risk from the very high-risk youth, the group in between –
or the majority of offenders – are less easily distinguished
and the reli-ability of predictions in this area is suspect.
TREATMENT
Kazdin (2000) has summarized the existing literature for
psychosocial treatment of severely conduct disordered
or delinquent youth. Parent management training, multi-
systemic treatment and cognitive problem solving skills
training have all been shown to have benefit in severely
conduct disordered youth (Borduin et al. 1995). These
have now been well established as efficacious interven-
tions, but with both replication of results and controlled
trials supporting their benefit. What is still unclear is to
which of these three treatments would be indicated for a
particular individual. Further, there is no clear indication
as to what potential interactive benefit may be achieved
by combining psychosocial interventions with medically
based and pharmacological interventions. Further research
needs to be offered in these areas. What is clear however
is that treatments focused specifically on deficits which
had been identified as criminogenic in young offender
populations are the preferred interventions.
Over the years, numerous pharmacological interven-
tions have been conducted on individual patients, and
there are many anecdotal reports from clinicians as to a
particular agent being useful or not. Large-scale controlled
studies, however, are not readily available, though there is
a suggestion of efficacy in four broad areas of pharmaco-
logical intervention. The first is the use of antipsychotic
medications, most notably the use of novel antipsychotics
in those individuals with a high degree of irritability and,
in particular, in conjunction with psychotic illnesses. The
second area where clear treatment benefit has been indi-
cated is the ADHD spectrum, as noted above. The third
area of promise are those medications which directly
address impulsivity issues and, in particular, the use of

serotonin uptake inhibiting antidepressants in impulsive
personality disordered adults, and possibly in youths.
The fourth area of interest has been in mood stabilizers,
where evidence has shown both lithium and divalproex
sodium to be effective in the management of patients
with mood lability or explosive temper difficulties
(Campbell, Perry, and Green 1984; Campbell et al. 1995;
Campbell, Kafantaris, and Cueva 1995; Donovan et al.
1997; Donovan et al. 2000). It should be noted that, in
virtually all the drug studies a relatively small number of
cases is available, and so it is difficult to generalize. It is
equally clear that violent behavior is not a unified con-
struct, such that the use of pharmacological agents must
be based on the particular traits of the patient. Much like
psychosocial interventions, it is necessary that this phar-
macological intervention is tailored to those factors
which seem directly related to the aggressive behavior,
whether it be psychotic symptoms, impulsivity disorder,
explosive mood changes or hyperactivity and impulsivity
associated with ADHD.
ADOLESCENT SEXUAL OFFENDERS
Adolescents charged with sexual offenses present the
psychiatric examiner with unique challenges. During the
past twenty years, there has been an increased interest in
research on assessment, treatment and outcome of ado-
lescent sexual offenders. There has been a growing aware-
ness that adolescent sexual offenders commit a substantial
number of crimes, with official reports estimating that
adolescents commit approximately 20 per cent of rapes
and approximately 30 per cent of child molestations. The
interest in adolescent offenders has been accompanied
by a rapid growth in the number of treatment programs
(Freeman-Longo et al. 1995) such that, by approximately
1993, an estimated 800 programs had been established.
Within the past ten years, a number of descriptive stud-
ies have been published that assist the examiner in assess-
ing adolescent offenders (Becker, Cunningham-Rathier,
and Kaplan 1986; Fehrenback et al. 1986; Kavoussi,
Kaplan, and Becker 1988; Blaske et al. 1989).
The definitions of sexual offenses vary among juris-
dictions such that it is more helpful in this chapter to
talk of behaviors rather than crimes. The issue facing the
examiner is to determine if the behavior underlying the
criminal charge indicates likely serious pathology, or may
be part of experimentation and sexual discovery by an
immature youth. At times, the boundary between appro-
priate and inappropriate behavior is not clear, especially
in ‘courtship disorders.’ It is clear, however, that sexual
behavior involving the use of force or violence or focused
on prepubescent children is not part of any normal sexual
development, and generally indicates significant under-
lying pathology.
Many clinicians accept the general rule that an offender
who is sexually involved with a victim more than four years
Violent adolescent offenders 447
younger than the offender shows evidence of pedophilia.
Although this general rule has great utility, it should not be
inflexible, as it is not rare to find immature older adoles-
cent boys interested in younger adolescent girls who have
reached puberty and demonstrate comparative maturity.
A more important issue indicating likely pathology is the
offenders’ sexual interest in prepubescent boys or girls who
have no evidence of secondary sexual characteristics.
General descriptions of adolescent sexual offenders
indicate that the majority of offenders are male, and the
majority of their victims are female. Most of the victims
are under twelve years of age. Assaultive behaviors may
vary from non-touching type offenses, such as exhib-
itionism, all the way through violent rapes with penetra-
tion and physical violence. Between 46 per cent and
70 per cent of offenders will acknowledge a past history
of other sexual offences at the time of assessment.
Descriptive studies can be subcategorized into three
areas of traits. The first is whether or not there is a sexual
deviation present. The second group pertains to general
antisocial orientation or behavior, and the third pertains
to more generalized psychological dysfunction or problems
managing in the community. Considering findings in these
three main areas assist the clinician in assessing the adoles-
cent offender and, in particular, covering some of the issues
that have been identified as related to offense behavior.
Deviant sexual arousal has been long noted in studies of
adult offenders. In a number of these studies, adult offend-
ers acknowledge that they began their deviant sexual inter-
ests and behaviors in their adolescence. Abel, Mittlem, and
Becker (1985) described an adult sexual offender popula-
tion in which the majority of the adults acknowledged the
onset of deviant sexual arousal in adolescence, and 50 per
cent of them admitted to sexually offending while still in
their teens. While there is little doubt that many persons
with paraphilic disorders have initial deviant arousal in
their teens, it is unclear as to how many adolescents
who commit a sexual assault actually have an underlying
deviant sexual arousal. Most studies of adolescent sexual
offenders show behaviors similar to their adult counter-
parts, and many offenders will acknowledge deviant
sexual arousal when asked. Likewise, the limited studies
on phalometric examination of adolescent offenders also
suggest the presence of deviant arousal, even though these
results are not completely comparable to adult studies
(Becker et al. 1989; Becker, Kaplan, and Kavoussi 1993).
Numerous studies of adolescent sexual offenders docu-
ment an increase in antisocial orientation in this group.
Many demonstrate similar traits to other delinquents who
do not commit sexual offenses, such that conduct disorder
has been diagnosed in over half the samples. Correspond-
ingly, they show many traits commonly seen in delinquent
populations, such as high rates of family instability and
psychopathology, impaired peer relationships, substance
abuse and a history of general and other violent offending.
Likewise, follow-up studies of adolescent sexual offenders
show high rates of both general offending and violent
448 Family law and domestic relations
offending in their early adult years (Basta and Davidson
1988; Smith 1988; Gretton et al. 2001).
The traits of general psychological dysfunction have
been found in numerous studies. The rates of physical,
social and emotional abuse have varied markedly across
different studies, with estimations of physical abuse in
between 25 per cent and 50 per cent of sexual offenders.
Rates of sexual abuse are difficult to evaluate given the
tendency to minimize such abuse by some offenders, or
possibly magnify the level in those offenders who per-
ceive such a history to possibly assist them in receiving
less punishment for their offences. The exact linkage
between any sexual abuse and subsequent paraphilic
disorder is unclear and, certainly, most authors are of
the view that this is a very complex interaction. It should
be noted that most individuals who have been sexually
abused do not become sexual offenders and, rather, show
high rates of anxiety disorders, personality disorders and
substance abuse problems.
Assessment of adolescent sexual offenders is most com-
monly requested at a post-adjudication phase of proceed-
ings to assist the court in both understanding the behavior
and recommending possible treatment as part of a sen-
tence. Pre-adjudication evaluations are inherently prob-
lematic and should be avoided. In the pre-adjudication
assessment, the role of a psychiatrist as helper becomes
bluffed with a police function and produces an ethical
dilemma that is not easily solved. On a more practical note,
the examiner is unlikely to obtain the cooperation and
candor needed for a competent assessment if the adoles-
cent knows that admissions may be used against him.
The post-adjudication assessment requires data not
normally obtained in the psychiatric assessment of the
non-sexual offender. To fully examine the sexual offender,
the examiner must obtain data regarding sexual fantasies
and interests, extent of sexual drive as measured by fre-
quency of sexual thoughts and masturbation, as well as
sexual history and sexual behaviors. These types of data
demand an effective therapeutic alliance that is difficult
to achieve in sexual offenders, who are frequently highly
resistant. In our clinic we routinely ask detailed questions
regarding sexual fantasy, and in particular, questions about
deviant fantasies.
If the youth denies deviant fantasy or behaviors, we
generally will stop with the inquiry and educate the youth
about the nature of paraphilia disorders. We inform him
of the high risk that without treatment he will likely
re-offend and injure others, as well as put himself at risk
for incarceration for a lengthy period. We indicate that we
will provide treatment with his consent that will hope-
fully, although not necessarily, help him control and redir-
ect his sexual fantasies and thereby reduce his likelihood
of further offending. We then explain that he will know
if he has a paraphiliac disorder if he experiences deviant
sexual fantasies or behaviors. After a period of reflection,
many resistant offenders will acknowledge the deviant
fantasies and a therapeutic alliance can be forged.
Despite the best clinical efforts, many offenders will
continue to deny their behavior. Information from police
reports and victims’ statements, as well as past records,
are helpful to confront the youth regarding his behavior
and to make general inferences as to motivations under-
lying his conduct. Information obtained from family, pre-
vious therapists, and social workers can generally provide
further corroboration.
The actual behavior in the offense gives clues to under-
lying sexual arousal patterns. The offender’s object choice
can be inferred from the age and appearance of the vic-
tims. The use of force, coercion, or threats – especially if
it exceeds that needed to gain compliance of the victim –
may indicate that aggression is part of the sexual arousal
pattern. Evidence of planning of the crime is strong
inference that the offender has rehearsed it in fantasy if
not on previous offenses, and points to a well-established
deviant fantasy pattern.
When confronted by the details of the crime, a large
number of offenders will acknowledge their behavior and
underlying problems. Indeed, it is common for offenders
to experience some relief at disclosing. The examiner
should seize the moment to encourage the offender to tell
his parents, with the examiner’s support, and to immedi-
ately plan subsequent treatment.
Sexual physiological assessment, or phelometry, is fre-
quently used in adult offenders (Travin, Cullen, and
Melella 1988; Becker et al. 1989), but is much less com-
monly used in adolescent population because of ethical
concerns and pragmatic difficulties. We have routinely
used phalometric assessments in our juvenile sexual
offender program for fifteen years and have had no sig-
nificant difficulties arising from this procedure. We restrict
the process to treatment assessment and planning and do
not release the findings to any external agencies, in par-
ticular, to courts, as the techniques do not have sufficient
validity to be used in court and may mislead the court
as to the nature of the youth’s psychiatric difficulties.
Although highly intrusive, sexual physiological assess-
ment is not noxious if performed tactfully and sensitively
with adequate explanation as to its utility and limitations.
The technique, limitations, and ethical issues related to
sexual physiological assessment are given in Chapter 73.
Ethical issues are even more acute when using this assess-
ment with adolescents. A fully informed consent by both
the youth and his parents obtained without coercion is
mandatory. Limiting the results to treatment planning
and not including the results in court reports assists
compliance and reduces the likelihood of false negatives.
Compliance for subsequent treatment is also enhanced
by openly discussing the results of the assessment with
the youth and emphasizing the importance of treatment
in reducing any deviant drive demonstrated.
Adolescent sexual offenders are more similar than dif-
ferent from adult offenders. Treatment programs for adult
offenders have emphasized cognitive behavioral techniques
and/or anti-androgen medications. Similar programs

for adolescent sexual offenders are now implemented in
many clinics. Behavioral therapies such as covert sensi-
tization or masturbatory satiation have shown benefit in
reducing or controlling deviant sexual drive and fantasy.
Group therapy focusing on mutual confrontation or cog-
nitive distortions and rationalizations as well as focusing
on underlying motivations and the psychological needs
of offenders has become standard. Follow-up treatment
emphasizing relapse prevention strategies has been util-
ized in many programs (Becker and Hunter 1997; Becker
and Murphy 1998; Becker and Johnson 2001).
Anti-androgen medications have not been used to a
large extent in adolescent offenders. In our clinic we utilize
them in a small number of cases and find these medica-
tions extremely helpful, especially in youth who have
failed to respond to cognitive behavioral techniques. Anti-
androgens are controversial in adolescents and should
only be used with the fully informed consent of both the
youth and his parents. In the United States, medroxyprog-
esterone acetate (MPA) is the most commonly employed
anti-androgen, whilst cyproterone acetate is also avail-
able in Canada and Europe and generally has fewer side
effects than MPA. Luteinizing hormone releasing hor-
mone (LHRH) analogues have recently been used for the
treatment of paraphilic disorders. These medications had
previously been used in children suffering from precocious
puberty, and no serious side effects were reported. In our
clinic, we employ both cyproterone acetate and Lupron
(an LHRH analogue) with the aim of reducing sexual drive
to the point where the youth can control their behavior,
although still have some degree of sexual functioning.
We utilize these medications with great caution, given
that there are no long-term studies in youth, coupled
with the fact that most youth are reluctant to continue
with such medications for any prolonged period of time,
given the impact it has on their sexual functioning. For
those youth, however, who have severe difficulties in con-
trolling sexual impulses, these medications can provide
substantial relief and, in general, we have been pleased
with the clinical results on an individual case basis.
In the recent literature, there has been suggestion that
paraphilia may be part of a compulsive spectrum disorder
(Bradford 2001). There have been studies demonstrating
the efficacy of serotonin uptake-inhibiting antidepres-
sant medications in adults with paraphilia (Greenburg
and Bradford 1997), but these have not been replicated in
adolescent population. Anecdotally, our experience is that
youth with mild to moderate difficulties may achieve
some benefit with serotonin uptake-inhibiting antidepres-
sants, but individuals with marked difficulties in impulse
control or strong sexual drives will generally require anti-
androgen medications.
The assessment of long-term outcome of adolescent
sexual offender therapies is hampered by methodological
difficulties. Most studies rely on official recidivism rates
which, by nature, tend to under-report actual offending
and, as a result, do not accurately reflect true rates of
Violent adolescent offenders 449
recid-ivism. Of those programs where there has been fol-
low-up, the actual rate of recidivism seems to be lower than
comparative adult programs. This has intuitive logic, in
that adolescent offenders have not developed as strongly
an ingrained behavioral pattern as have adult offenders
and have not reinforced their underlying deviant drive
through repeated fantasy and behavior. Further, many
adult offenders preclude development of more normal-
ized sexual functioning by pursuing their deviant inter-
ests, while adolescents are still at a flexible stage in which
treatment programs can assist them in attaining more
developmentally normal and appropriate sexual behaviors.
Moreover, adolescents are more easily engaged in terms
of programs that may assist the development of social and
interpersonal skills that have been noted to be deficient
in many adult sexual offenders.
While most sexual offender treatment programs utilize
a cognitive behavioral model that was initially used for
adult offenders, there is one small study utilizing multi-
systemic therapy that has shown promise. Although this
study would not address any underlying deviant sexual
arousal patterns, multisystemic therapy certainly does
address some of the other criminogenic factors that are
also associated with juvenile sexual offenders. The ques-
tion as to which program may be best suited for a
particular sexual offender remains open, as insufficient
data are available to suggest a clear direction. As with the
approach for violent offenders, it is imperative that the
assessment process identifies those factors that have been
associated with risk for sexual offending and minimizes
them through intervention. Risk assessment of adoles-
cent sexual offenders has become a major focus on
research for adult offenders. There are now multiple
actuarial-based risk assessment instruments currently
used by mental health professionals to assist the court in
risk assessment of adult sexual offenders but, at present
there are no validated risk assessment instruments avail-
able for juvenile offenders. We have recently completed a
study utilizing the PCL-YV in juvenile sexual offenders
who had completed treatment in our sexual offender
program. Prior to treatment, 70 per cent of the sample
acknowledged a prior history of committing sexual
assaults, and 22 per cent had a history of violent non-
sexual assaults. At follow-up, 15 per cent of the group
had gone on to commit a further sexual offense, 30 per cent
a violent offense, and 51 per cent had committed non-
violent criminal offenses. The offenders with high
PCL-YV scores were statistically significantly more likely to
commit sexual assaults, violent assaults and non-violent
offenses than those with low scores. Also of interest is
that the group who had both high PCL scores and
deviant sexual arousal, as measured by phalometry, formed
a subgroup which showed even higher rates of both vio-
lent and general offending.
Although no adult risk instruments would be appro-
priately used on adolescents, data have been produced
from Hansen and Brussier’s (1996) meta-analysis that
450 Family law and domestic relations
gives the clinician some assistance in reviewing those fac-
tors that have been associated with recidivism. In Hansen’s
review, the strongest predictors for re-offense included
sexual deviance, prior sexual offenses, a victim who is a
stranger, as well as antisocial personality disorder. Failure
to complete treatment also predicted for re-offending.
Whether these traits will hold true in prospective studies
of adolescents is unclear, but one must be cautious in uti-
lizing these data in those situations where there may be a
profound impact on the young offender.
At the present time there is no hard evidence to estimate
which offenders are likely to go on to develop chronic
paraphilia disorders, and which offenders will benefit
from treatment. Based on our experience, it is clear that
even after completing treatment programs there will be a
significant number of adolescents who continue to mani-
fest denial of their difficulties and to experience deviant
sexual fantasies and behaviors. From clinical experience,
adolescents with more profound antisocial traits and/or
adolescents with greater arousal to sexual aggression tend
to do less well in treatment. The subgroup of adolescents,
who are extremely aggressive sexually as well as demon-
strating aggression and violence in other areas, is the
most disturbed and appears to have the worst prognosis.
Hence, long-term follow-up of both treated and untreated
adolescents is required.
CONCLUSIONS
The assessment and treatment of physically or sexually
violent adolescents presents both exciting opportunities
and tremendous risks. The early identification of youth
who are at high risk of becoming serious and chronic
violent offenders offers the ethical therapist an oppor-
tunity to interview therapeutically, with the hope that
future violent behavior can be reduced. It also creates an
ethical dilemma in which high-risk youth may be subject
to longer incarceration in either juvenile or adult institu-
tions where little, if any, treatment may be offered. We are
now at the point where we can identify risk factors and
prognostic indicators, and can make general predictions
of outcome for large groups of violent adolescents. We
are not, however, able to make precise predictions of
outcome for individual adolescents who are violent, and
so must confine ourselves to estimations of risk factors.
Given that violence committed by adolescents continues
to increase, there will likely be further pressure placed on
psychiatrists to predict violent behavior.
Treatment of violent adolescents shows some promise,
though unfortunately many programs are poorly funded
and inadequate to meet the needs. It is difficult to attract
psychiatrists to programs treating violent adolescents,
and often there is little time or funding to conduct research
within these settings. By the same token, however, studies
on violent behavior in general point to early identification
and intervention programs as being most likely to be
effective. Logically, these interventions should be available
to adolescents within the high-risk environments out-
lined in this chapter. Although most violent behavior is a
direct product of an aversive social environment that will
not be altered without significant social changes, some
violent individuals have treatable disorders. Research into
the biological underpinnings of ‘expressive’ violent behav-
ior shows great promise. Likewise, removing a child from
a noxious environment or intervening to reduce emotional
and physical abuse and exposure to violence has been
shown to be beneficial. Treating co-occurring disorders
such as attention deficit hyperactivity disorder, mood
disorders, or other neuropsychiatric syndromes may sig-
nificantly reduce future violent behaviors. In this respect,
the need for further clinical research is great.
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in a Birth Cohort. Chicago: University of Chicago Press.

Adolescent sexual offenders
MEG S. KAPLAN AND RICHARD B. KRUEGER
The problem of sexual assaults committed by adolescents
is serious and widespread. It is estimated that juveniles
account for up to one-fifth of all rapes and almost one-
half of all cases of child molestation committed each year.
In addition, youth under the age of 18 years have accounted
for 10 per cent of the sexual assault/murders since 1976
(Greenfeld 1997). To avoid using ‘he/she’ pronouns
throughout the text, a single pronoun is sometimes used.
Since most known offenders are male, ‘he’ is primarily
used; however, when there are gender differences, this is
clearly stated. Otherwise we are speaking about both
genders.
ETIOLOGY
Although a variety of theories have been proposed to
explain the etiology of sexually inappropriate interests
and behavior, there is a paucity of empirical support for
these theories (Kobayashi et al. 1995; Ryan and Lane 1997).
The National Task Force on Juvenile Sexual Offending
(1988) identified fourteen different theoretical perspec-
tives of juvenile sexual offending. This task force later
developed basic assumptions upon which treatment is
based (National Task Force 1993). Although there are
many theoretical perspectives, the behavioral and cogni-
tive theories have predominated in the field of juvenile
sex offender treatment; some of the other models will also
be discussed below.
Social learning theory
Numerous researchers cite social learning approaches
as important contributing factors to the development
and maintenance of atypical sexual interest (Laws and
Marshall 1990). This model suggests that atypical sexual
behaviors are learned in the same manner by which other
individuals learn sexual behavior and expression, and can
be changed by learning a new pattern (McGuire, Carlisle,
45
and Young 1965). Laws and Marshall (1990) posit that
sexual patterns are acquired and established through
Pavlovian and operant conditioning, learned from
observation and modeling and shaped through differ-
ential reinforcement. Masturbatory fantasy and orgasm
increases higher-order conditioning and reinforces the
behavior so that it is made more powerful and refined.
Biological factors
Recently, biological factors have been postulated as play-
ing a role in the development of paraphilias. There is a
paucity of such studies in either adolescents or adults. No
direct biological measurements have been made in ado-
lescents. Berlin (1988) has commented on the difficulty
in performing such measures in adults. Most approaches
have relied on examining the efficacy of the selective
serotonin reuptake inhibitors in adolescence (Bradford
1993). One recent case study (Galli et al. 1998) described
the case of an adolescent male with multiple paraphilias,
obsessive compulsive disorder and bipolar type II dis-
order, who responded to treatment with fluoxetine, a
serotonin reuptake inhibitor, after failing to respond to
long-term residential treatment. This area of research
shows promise.
Additional theories
Psychoanalytic theory views perversion as symptomatic
of unresolved childhood conflicts (Stoller 1986). Socio-
biological theory sites evolutionary perspectives (Ellis
and Symons 1990). Money (1984) has theorized that a
paraphilia is a mental template or a ‘love map that grows
awry … by the displacement of original elements’ (Money
1984, p. 178).
Another factor that has been identified to help explain
the development of inappropriate sexual interest is a his-
tory of physical and/or sexual abuse. A history of physical
abuse has been found in 20–30 per cent of adolescents
456 Family law and domestic relations
who have committed sexual offenses and a history of sex-
ual abuse has been found in 40–80 per cent of sexually
abusive youth (Hunter and Becker 1999). Although hav-
ing been abused may be a factor, it is not in itself explana-
tory since many juvenile and adult offenders were not
sexually abused and most children who were victimized
do not go on to abuse others.
Exposure to family violence has been cited as a vari-
able which may play a role in the behavior of the adoles-
cent sex offender (Lewis, Shankok, and Pincus 1979) as
well as dysfunctional family background (Loeber and
Stouthamer-Loeber 1998; Caputo, Frick, and Brodsky
1999) and exposure to community violence (Johnson-
Reid 1998).
Becker and Kaplan (1988) have described a model by
which deviant sexual behavior and the development of
deviant sexual arousal patterns may be explained. This
model incorporates individual characteristics, family vari-
ables, and social environmental variables as possible pre-
cursors to the commission of an adolescent’s first deviant
sexual act. They posit that following the first sexual
offense, there are three paths an adolescent might follow:
1 The dead-end path, in which an adolescent never
commits any further deviant sexual behavior. These
adolescents are likely to be the ones who suffer from
the most negative consequences for the behavior or
for whom the behavior may have been exploratory in
nature, lacking in violence and related to the lack of a
peer partner or as a copycat offense (modeling).
2 The delinquency path, in which an adolescent may
commit further deviant sexual acts as part of the gen-
eral antisocial personality pattern.
3 The sexual interest pattern path, in which an adoles-
cent commits further sexual crimes and develops a
paraphilic arousal pattern. These adolescents are
likely to be those who found the behavior to be very
pleasurable, to have experienced no or minimal con-
sequences, to have experienced reinforcement of the
deviant sexual behavior through masturbation or
fantasy, and also who have deficits in their ability to
related to age appropriate peers. These cases may
represent cases of early onset pedophilia.
CHARACTERISTICS
There has been a distinction made between adolescents
who molest children and those who target peers or
adults. Research has shown that, in general, as with adult
offenders, juvenile child molesters tend to have deficits in
self esteem and social confidence (Awad and Saunders
1989; Monto, Zgourides, and Harris 1998), whereas
those who assault peers or adults are more likely to have
other criminal histories and are generally delinquent and
conduct disordered and display higher levels of violence
and aggression (Kaufman et al. 1998).
Clearly, to date there is no one theory that will explain
the development of sexually inappropriate interests and
behavior. Abel and his colleagues (Abel, Mittelman, and
Becker 1985) found that in a group of 411 adults with para-
philias, 58 per cent had begun interest in paraphilias
between the ages of 13 and 18. This points to adolescence as
the time period during which paraphilias have their onset.
As with adult sex offenders, juvenile sex offenders are a het-
erogeneous group; it is likely that many factors influence
the etiology of the offender and that it is multicausal in
nature.
ASSESSMENT
Assessment of the adolescent sex offender requires sensi-
tivity and expertise with particular attention to the fol-
lowing areas.
Forensic issues
There are numerous sources of referral and reasons to con-
duct a specific sexual offender evaluation; therefore, it is
of utmost importance that prior to the evaluation it is made
clear what the referral source is requesting. For example,
there is no empirically validated ‘profile’ of an adolescent
sex offender. Nor can an assessment determine if a specific
crime has been committed. Often, assessments are con-
ducted to determine treatment amenability, treatment
needs and risk as an outpatient. Regarding risk assessment,
clinicians are frequently asked to make predictions. Again,
there is to date no empirically validated risk assessment for
adolescent offenders. A number of risk assessment instru-
ments have shown promise. One of these is a juvenile sex
offender protocol (JSOP) (Prentky et al. 2000).
Confidentiality
Prior to beginning any assessment, the juvenile and his or
her parents or legal guardian should read and sign con-
sent forms. Limits of confidentiality should be discussed,
as well as what the assessment will consist of, any negative
effects that could occur, such as anxiety or depression, as
well as who the assessment report will be sent to. In addi-
tion, release forms should be signed at that time, giving
permission to send the report to various other interested
individuals, such as the adolescent’s individual therapist.
Many adolescents are mandated to receive an assess-
ment and are therefore reluctant to talk about sexual
issues and behavior. Most sex offenders do not reliably
self-report their deviant thoughts and behavior (Kaplan
et al. 1990). In addition to these difficulties, since many
assessments are for the legal system, the adolescent does
not trust the evaluator.
Within the field of specialized sex offender treat-
ment and evaluation, there are guidelines for evaluation

(Association for the Treatment of Sexual Abusers 1997)
and a 21-factor guide to assessment (Ross and Loss 1991;
Ryan and Lane 1991). These guidelines advise that evalu-
ation should be conducted post-adjudication because if
evaluations are conducted pre-adjudication, juveniles are
then placed in a position where, if they reveal informa-
tion, it may be used against them in a report going to the
court (Hunter and Lexier 1998).
Prior to an assessment, there should be a review of
materials. Information should be obtained wherever pos-
sible from outside sources, such as court reports, police
documents, victim’s statements and collateral interviews
with family members. In addition, any psychiatric or psy-
chological records should be reviewed.
The clinician should also be sensitive to and have an
understanding of ethnic, religious, sociological and cul-
tural backgrounds of the youths they evaluate. An evalu-
ation should include a general diagnostic assessment as
well as a specialized battery of tests for sexual interest and
behavior. The structured interview collects information
concerning demographic characteristics, family back-
ground, criminal history, social history, drug and alcohol
history, a history of all sexual behaviors including all
deviant sexual behaviors and fantasies and a history of
sexual and/or physical abuse. A detailed assessment for
adolescent sex offenders has been described (Becker and
Kaplan 1988). In addition, the clinical interview should
include a detailed description of the sexual offense
including what the adolescent’s thoughts and feelings
were prior to and following the offense. The assessment
should also include the following.
Psychiatric history
A number of adolescent sex offenders present with comor-
bid psychiatric problems which may respond favorably
to pharmacological interventions. Several studies have
found high rates of conduct disorder (Kavoussi, Kaplan,
and Becker 1988; Galli et al. 1999), depressive and psy-
chotic symptoms (Lewis, Shankok, and Pincus 1979), and
mood disorders and attention deficit with hyperactivity
disorder (Galli et al. 1999). It is also important to assess for
psychopathology, peer relations, anger impulse control,
behavioral problems, intelligence and cognitive ability.
Family assessment
Areas of concern in family assessment which should also
be evaluated are over-involvement, isolation, intergener-
ational sexual and/or physical abuse, emotional depriv-
ation, abuse of power, family members’ perceptions of
sexual abuse and reaction of family to disclosure
(Thomas 1997). In assessing the family, it is also import-
ant to assess the current living arrangements in order to
determine if the offender has access to his or her victim.
Adolescent sexual offenders 457
Self-report measures
In addition to a general psychological assessment, specific
sex offender instruments have been developed for assess-
ment. These are:
1 The Adolescent Cognition Scale (Hunter et al. 1991).
This is a true–false test developed to determine if the
adolescent has any faulty beliefs regarding sexual
behavior. An example would be ‘if a young child does
not tell others about having sex with me, it means
they really like it and want to keep doing it.’ Research
has suggested that sexual offenders develop belief sys-
tems which support continued sexual behavior with
children.
2 The Adolescent Sexual Interest Card Sort (Becker and
Kaplan 1988) is a self-report test with sexual vignettes
which the adolescent rates as arousing or not arousing
on a five-point scale. The card sort gives the patient an
opportunity to indicate deviant sexual interests with-
out having to disclose them verbally to the interviewer
(Hunter, Becker, and Kaplan 1995).
Other general assessment instruments that are used with
this population are the following:
• MMPI-A (Archer 1997).
• Child Behavior Checklist (Achenbach, McConaghy,
and Howell 1987).
• The Beck Depression Inventory (Beck et al. 1961).
• Matson Evaluation of Social Skills in Youngsters
(Matson, Esveldt-Dawson, and Kazdin 1983).
• The Multiphasic Sex Inventory (Nichols and Molenda
1984).
Adjunctive assessment tools that are used to assess this
population are the polygraph and the plethysmograph.
Plethysmography is used to measure sexual arousal
by measuring erection responses to erotic stimuli (audio-
tapes or slides) in the laboratory. In general, this assessment
is used with youth over age 16 years, who report multiple
paraphilic interests and who have extensive sexual
offending histories in order to help develop treatment
needs (Becker et al. 1992; National Task Force 1993).
Regarding polygraphy, to date there are few empirical
data available on the use of the polygraph with juvenile
sexual offenders, the procedure being used more often
with adult offenders (Blasingame 1998; Ahlmeyer et al.
2000).
TREATMENT
In recent years, many specialized programs have been
developed to treat the adolescent offender (Knopp 1982).
Research indicates that treatment should be highly
structured and designed specifically for sexual offenders
(Ryan and Lane 1997). Peer groups are the preferred
458 Family law and domestic relations
method of treatment by 98 per cent of juvenile and adult
sex offender programs (Knopp 1982).
Various treatment modalities have been utilized
with adolescent sexual perpetrators. Freeman-Longo and
his colleagues (1995) surveyed the main treatment
models used with juvenile offenders by providers. The
models reported in this survey were cognitive-behavioral
(41 per cent), relapse prevention (36 per cent),
psychosocio-educational (14 per cent), psychothera-
peutic (5 per cent), family systems (2 per cent), sexually
addictive (1 per cent), and psychoanalytic (1 per cent).
Currently, the most accepted form of treatment is
cognitive behavioral therapy with relapse prevention.
Behavioral literature for adult offenders utilizes three
principal approaches to the treatment of paraphilic
behavior, which have been incorporated and modified
for the treatment of adolescents. These are:
1 Decreasing atypical arousal through covert sensitiza-
tion and satiation (Barlow, Leitenberg, and Agras
1969).
2 Increasing arousal to peers.
3 Teaching appropriate peer related skills by social skill
training, sex education and assertiveness training
(Tollison and Adams 1979; Barlow and Abel 1976).
Specific behavior therapies
The primary goal of each of the following techniques is
to help the offender reduce his sexual arousal to inappro-
priate sexual fantasy. Preliminary research from one
study indicates that a deviant sexual arousal pattern is
common among adolescent offenders who have molested
young boys and who have a history of sexual victimiza-
tion themselves (Becker 1988; Becker, Kaplan, and Tenke
1992).
A cognitive behavioral outpatient treatment program
for adolescent sexual offenders has been described by
Becker, Kaplan, and Kavoussi (1988) and Becker and
Kaplan (1993) in which they examined the utility of a
seven-component cognitive behavioral weekly outpatient
treatment program. The components of this program
include:
• Covert sensitization: This is a form of therapy origin-
ally used with an adult offender population (Abel
et al. 1984). It is a behavioral technique that is used to
pair deviant sexual urges with highly negative social
consequences by teaching the adolescent offender to
associate and anticipate real life negative consequences
of the sex offense with the urge to offend. By frequent
pairings of the deviant fantasy and a negative event,
the fantasy acquires negative images and becomes less
pleasurable.
It is common for male adolescents to believe that the
offending ‘just happened.’ This technique also teaches the
adolescent his specific chain of events and the steps that
occurred from the beginning of the offenses to the end to
help him identify the earliest aspects of the deviant act in
order to be able to stop before his urges get out of con-
trol. Each adolescent develops his own script of: (i) risk
factors; and (ii) negative consequences in therapy. After
the script has been developed with the therapist, the
adolescent then in private records his verbalization
of this script, which the therapist then reviews with him.
Each successive audiotape builds on the previous one,
including more and more details and emotional material
as the adolescent becomes aware of it. In the audiotape,
first the risk factor script is verbalized and then the ado-
lescent says the word ‘switch’ to transition into the nega-
tive consequences script, which is then verbalized. An
example would be: (i) risk factor ‘I am feeling really
angry that I have to baby-sit, I want to be out partying.
I think I will play wrestling with this little boy and teach
him a lesson.’‘Switch.’ (ii) consequences,‘I am really scared
sitting here in jail. I want to go home. All of this is
happening because I took my anger out on the little boy
I was baby-sitting for.’
• Verbal satiation: Satiation is a technique used to
reduce sexual arousal to inappropriate fantasy. This
procedure has been modified from the technique used
with adult offenders called masturbatory satiation
(Abel et al. 1984). Verbal satiation teaches the adoles-
cent offender how to use inappropriate fantasies in a
repetitive manner to the point of boring himself or
satiating his own fantasies. This procedure has been
found to be effective with a group of adolescent sex
offenders (Kaplan, Becker, and Tenke 1991).
• Cognitive restructuring: When adolescents engage in
deviant sexual behaviors, they develop beliefs or
faulty cognitions in order to rationalize their behav-
ior. Cognitive restructuring is a process of confronting
and changing these rationalizations or distortions.
This treatment was originally conducted with adult
offenders (Abel et al. 1984) and has been modified for
adolescents.
Additional behavioral methods that are used to help ado-
lescents rehearse methods of coping with deviant urges
are thought-stopping and rehearsal of the positive conse-
quences of non-offending.
Non-sexual components of treatment
Treatment programs also incorporate other modalities
aside from the above-mentioned behavioral methods.
These include:
• Social skills training: The interpersonal skills of the
adolescent perpetrator are an important factor in
treatment. Deficits in these skills may result in alien-
ation and a lack of appropriate peer-aged relation-
ships. The goals of this treatment component are to

help the juvenile develop pro-social skills. Many ado-
lescent offenders are under-socialized, while others
have adequate social skills but use them to manipulate
others. Topics covered in this component of treatment
are effective ways of communication, listening skills,
initiating conversations, body language and sharing
feelings.
• Anger control and assertive training : Failure to manage
anger in a constructive way increases the likelihood
of the juvenile perpetrator displacing his aggressive
impulses onto a victim. The goal of this component of
treatment is to help the adolescent recognize his feelings
and to develop alternate appropriate responses that
are socially acceptable. Many adolescents either react
to anger by responding aggressively or by being pas-
sive rather than assertive. Many adolescents have diffi-
culty recognizing their own anger. This component of
therapy addresses these problems.
• Sex education: Adolescent offenders have been shown
to have deficits in sexual knowledge, beliefs and atti-
tudes (Kaplan, Becker, and Tenke 1991) and to believe
in many myths regarding human sexuality. The purpose
of this component of therapy is to help adolescent
sex offenders better understand themselves by focus-
ing on social, sexual and health issues currently
facing them. The goals of this component of therapy
are to: (i) increase knowledge about adolescent sexual
development, anatomy and physiology; (ii) broaden
knowledge about sexual myths and learn ways to pre-
vent unwanted pregnancy and sexually transmitted
diseases; and (iii) to become more aware of attitudes
and clarify values about sexuality. Additional factors
that should also be addressed are distorted beliefs
about appropriate sexual behavior and sexual know-
ledge, values, and attitudes. A study by Rotheram-Borus
and her colleagues (1991) found that adolescents in a
male adolescent sex offender population scored sig-
nificantly lower than male adolescent runaways in
general knowledge about AIDS and were not able to
discriminate safer sexual behaviors from those that
were less safe. Since HIV is a threat in our society
and to the adolescents being treated, it is suggested
that AIDS education be added to any sex education
curriculum.
• Victim empathy: Empathy has been identified as an
important factor in sexual offenders (Marshall,
O’Sullivan, and Fernandez 1996). However, there is
little empirical research on empathy training for ado-
lescent offenders. One recent study (Way 1999) sug-
gested that unresolved maltreatment issues may be
associated with lower empathy for victims. Victim
awareness and increased understanding of negative
impact of abuse may help motivate these adoles-
cents to work on treatment. According to Ryan (1999)
and Barbaree, Hudson, and Seto (1993), treatment
in a developmental/contextual perspective allows the
juvenile to recognize the needs of others.
Adolescent sexual offenders 459
Additional therapies
The following section will briefly describe the most popu-
lar of the non-cognitive behavioral treatments. However,
there is little or no empirical research that supports
their use.
• Psychodynamically oriented psychotherapy: Although
group treatment is recommended for all sexual per-
petrators (National Task Force 1993), many adolescents
may also benefit from individual therapy which can
help them deal with their own victimization as well as
personality problems and interpsychic conflicts.
• Family systems therapy: Here, the emphasis is on
family therapy and family dynamics. According to
Thomas (1997), who proposes a five-stage model, one
pre-requisite must always be that the sexually abusive
youth is also in a specific therapy. Thomas states that
for adolescent perpetrators, the goals of family ther-
apy are to provide support for the sexually abusive
youth, to help them continue in treatment, to identify
and interrupt the family patterns that allowed or sup-
ported the sexual abuse, to improve family relation-
ships and to maximize family strengths, and provide
information for relapse prevention (Thomas 1997).
• Sexual addiction model: According to a survey by the
Safer Society (Freeman-Longo et al. 1995), only four
programs that were surveyed (1 per cent of the total)
identified the addiction or 12-step program model as
being used primarily with adolescents. This model
proposes that an adolescent is ‘addicted to sex.’ The
treatment is similar to the 12-step programs used by
alcoholics and drug users (Carnes 1991; Carnes 1992).
• Relapse prevention model: Relapse prevention (Pithers
1990; Laws, Hudson, and Ward 2000) is helpful in the
final stages of treatment. In this component, the ado-
lescent identifies high-risk situations and thinking
and develops methods of coping with them and under-
standing his or her sexual abuse cycle. The adolescent
also identifies specific situations to avoid.
TREATMENT OUTCOME
There are many different recidivism rates in the sex
offender field, which have led to confusion and pessim-
ism. Part of this has to do with treatment methods which
vary from study to study. There are widely disparate
populations (prison populations versus outpatients).
Much research is preliminary in nature with imperfect
statistical design.
Becker and Kaplan (1988) reported one year post-
treatment follow-up data which indicated that treatment
is effective according to self-report, rearrest and plethys-
mographic data. Of the first 300 adolescents evaluated,
68.3 per cent (n ⫽ 205) entered treatment, although only
460 Family law and domestic relations
27.3 per cent (n ⫽ 56) attended 70–100 per cent of the
scheduled therapy sessions. Recidivism rates of one-year
post-treatment were low. According to self-reports and
reports from parents and criminal justice agencies only
9 per cent had recommitted sexual crimes (Becker 1990).
In a more recent study Hunter and Figueredo (1999) found
that up to 50 per cent of juveniles in an outpatient pro-
gram were expelled during their first year, but only 4.9
per cent for sexual delinquency. Lower levels of denial at
the intake predicted compliance with treatment.
In a recent review of treatment outcome studies
Alexander (1999), in examining studies of 1025 juvenile
sexual offenders, found a recidivism rate of 7.1 per cent
of treated subjects. In examining recidivism rates by type
of intervention, she found that group behavioral treat-
ment had a 6.8 per cent recidivism rate, and relapse pre-
vention a 9.8 per cent recidivism rate. When separating
juveniles treated in prisons from those treated in hos-
pitals, the former subgroup had a 6.9 per cent recidivism
rate, those from hospitals an 8.5 per cent rate, and those
from outpatient clinics a 6.3 per cent rate. Recidivism
rates rose over time for juveniles. According to these data,
juveniles responded well to treatment: ‘The demon-
strated efficacy of juvenile offender treatment programs
is a strong argument for their continued existence.’
(Alexander 1999, p. 110).
CONCLUSION
There is increasing awareness of the need for early spe-
cialized therapeutic intervention with adolescent sexual
perpetrators. Cognitive behavioral therapy appears to
be the most effective treatment for these youth, and the
most available treatment in the United States. Early
intervention, while adolescents are in the early stages of
the development of their sexually aggressive behavior, is
critical, since patterns of such sexual interest and behav-
ior become ingrained at this time. Not only can these
aggressive patterns be addressed and treated through
such early intervention, but further victimization can
also be prevented.
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Neuroimaging in child and adolescent
psychiatry
STEPHEN B. BILLICK AND STEPHEN P. SULLIVAN
FORENSIC CONSIDERATIONS IN
NEUROIMAGING
The advances in structural and functional brain imaging
techniques has permitted the investigation of the human
brain in vivo, allowing for real-time delineation of neural
processes unimaginable to investigators formerly restricted
to research on animals and humans with brain lesions.
While neurologists and neurosurgeons were the principal
beneficiaries of the information provided by computed
tomography (CT) and magnetic resonance imaging
(MRI), psychiatrists now anticipate equally impressive
gains from functional brain imaging techniques of
positron emission tomography (PET) and single photon
emission tomography (SPECT). Already, there exists a
significant accumulation of imaging data on adult neuro-
psychiatric disorders. While there exists much less simi-
lar research on the pediatric population (due in part to
complications involving informed consent, risk/benefit
ratios secondary to the use of radiation and anesthesia),
recent advances in neuroimaging technology present new
opportunities in the study of neurodevelopmental and
psychiatric disorders in children. An important aspect of
such research will be the longitudinal study of children
at risk for a disorder compared to normal controls. This
new technology will create new scientific markers for
disease and symptoms.
The potential uses of brain imaging for the forensic
psychiatrist are only now beginning to be ascertained.
Given the evolving nature of brain imaging research and
techniques, consideration must be given to the protocols
concerning the admission of scientific evidence in the
courts. While the U.S. Supreme Court’s 1993 review of
Daubert v. Dow Pharmaceuticals resulted in greater
latitude for expert testimony, it also re-defined the court’s
role as that of a ‘gate-keeper’ regarding the suitability and
relevance of such evidence. Admissibility of scientific evi-
dence is no longer contingent exclusively upon whether the
46
theory or techniques has been subjected to peer review
and publications, but whether underlying principles and
methodologies giving rise to such evidence have been
judged by the court as scientifically sound. An important
question to be answered is to what extent the variable
standards utilized in neuroimaging research will under-
mine their potential use by forensic psychiatrists as they
seek to meet the court’s pre-conditions for admissibility
of evidence. Presently, in current imaging research, there
exists no standard method agreed upon by researchers
regarding the acquisition or measurement of the images,
nor is there a common database of normal controls.
Different studies by different investigators use different
techniques even when the imaging technology (CT, MRI,
SPECT, PET) is the same.
The expert witness’ effective use of neuroimaging
results will certainly depend on his or her ability to appre-
ciate the wide variability of ‘normal,’ as well as the con-
stantly evolving standards. Indeed, perhaps those most
effective in utilizing neuroimages in the courts will be those
who appreciate the subtle overlap that can exist between
pathology and ‘normal.’ Such knowledge places the clin-
ician in a better position to affirm or refute claims that
a given image supports an actual clinical correlation with
a diagnosis. Whether it provides any clinical correlation
with a legal standard (fitness for trial, not guilty by reason
of insanity) requires the additional clinical assessment
of diagnosis and temporal circumstances. Executive
functioning relating to specific behavioral control issues
cannot yet be delineated solely with neuroimaging.
One must be mindful not to confuse an image’s asso-
ciation with a particular disorder as representing the dis-
order’s etiology. The forensic expert needs to differentiate
between findings that are pathognomonic and those that
are only correlated or consistent with a diagnosis. Neuro-
imaging, like many radiographic studies, are more likely
to fit with the latter. Clinical psychiatry, like clinical medi-
cine, creates a setting of findings that, when taken as
464 Family law and domestic relations
a whole, can create a compelling picture of a diagnostic
condition. More often than not, neuroimaging will be
but one of the factors that contribute to the forensic
expert’s opinion. Given the paucity of, as yet, neuro-
images which indeed represent a psychiatric disease state
pathognomonically, experts cannot currently use brain
imaging in replacement of a thorough history of illness,
mental status exam, and collateral sources. Clinical uses
of neuroimaging rule out other causes of psychiatric
symptoms other than the presumed clinical assessment,
such as occupying lesions, encephalopathies and classical
patterns of certain diseases such as AIDS and multi-
infarct dementia.
The intent of this chapter is to review the most cur-
rent findings and relate what scientific consensus exists
on neuroimaging in specific psychiatric disorders in child-
hood and adolescence. Also provided is an explication
of the various imaging technologies. It is hoped that this
review will be of particular assistance to forensic psych-
iatrists who intend to make use of such imaging studies
in the court, providing a concise guide regarding what
claims may or may not be made in their use. For a more
complete overview, the reader is referred to the reviews
on the subject by both Hendren and colleagues (2000)
and Peterson (1995).
IMAGING TECHNIQUES
Provided herein is an overview of instrumentation and
techniques used in brain imaging. For a more comprehen-
sive review of these issues, the reader is directed to standard
texts (Adams and Victor 1997; Kaplan 2000).
Computed tomography
Computed tomography (CT), which was first introduced
in 1972, revolutionized diagnostic neuroradiology by
allowing the imaging of the structural components of
living brain tissue. In CT, a focused source of external
radiation is transmitted along several trajectory lines
through varying angles within a single plane of a subject’s
head. As the X-rays pass through the brain tissue, they are
attenuated secondary to their collisions with tissue mol-
ecules. These interactions involve both partial absorption
by tissue molecules (Compton scattering) and complete
absorption (photoelectric). The degree of energy absorbed
by different tissues is proportional to their individual
electron and physical densities. Attenuation values can
be measured for various tissues, such as brain, cerebral
spinal fluid (CSF), and bone. CT scanners take a series of
head X-ray images over 360 degrees around the patient’s
head. The amount of radiation that passes through (not
absorbed) each angle is then digitalized. Using matrix
algebra calculations to assign a specific density to each
point within the head, the computer then displays the
information as a set of two-dimensional pictures.
Several important limitations are noted with the use
of CT, often necessitating the use of MRI. Because bony
structures absorb high amounts of irradiation, they tend
to obscure details of contiguous structures. This can cause
considerable difficulty in studying brainstem structures,
which are surrounded by the skull base. Furthermore,
while CT can effectively reveal the border between gray
and white matter, the minimally different absorption
properties of each prevent detailed study of gyral pat-
terns. Calcifications in the brain, which may be invisible
on MRI, is the only brain component better visualized
on CT.
MRI
MRI was developed in the 1950s to measure the atomic
constituents of chemical compounds. When it was sub-
sequently combined with CT, it provided a powerful
imaging technique by its ability to distinguish different
biological tissues because of their distinct chemical com-
positions. When odd-atomic weight elements, such as
hydrogen, are exposed to a static magnetic field of sufficient
strength, their nuclei behave like spinning magnets,
developing a net alignment of spin along the direction
of the first applied magnetic field. This spin alignment
can be disturbed by a brief radio wave pulse, which tips
the spinning nuclei away from this parallel orientation.
After the pulse is terminated, the nuclei return to their
original position, releasing radio wave energy in the
process. The frequency of the radio wave emitted is dis-
tinct for different atomic species as well as for a given
nucleus in a distinct chemical/physical environment.
Thus, the nuclei act as radio waves transmitters with sig-
nature frequencies.
Different nuclear species absorb energy from radio
waves of a particular frequency. After absorbing energy
from the externally applied radio waves, the atomic nuclei
release this absorbed energy in a signal fashion as they
return to a lower energy state. Relaxation refers to the
rate at which the nuclei return to this lower energy state,
described as a time constant (T). In MRI, there are two
types of relaxation: spin–lattice relaxation (T1); and
spin–spin relaxation (T2). Relaxation times vary from
compound to compound for a particular atom. For
example, hydrogen’s relaxation time is significantly
shorter in fat than in water. Relaxation times also vary
secondary to particular tissue conditions. The relaxation
of water’s hydrogen nuclei in CSF is distinct from its
relaxation in brain parenchyma. For example, T1 images
best differentiate gray from white matter, while CSF
is greater enhanced using T2. Dense bone, which con-
tains little water, is invisible. Since relaxation times are
influenced by local tissue conditions, images can either
emphasize normal tissue of various compositions or

pathology by focusing on the two conditions’ respective
relaxation times.
Functional MRI
A new sequence, T2*, detects levels of oxygenated hemo-
globin in blood. Since neural activity within the brain
causes local increase in blood flow, it increases the level of
hemoglobin to those active areas. This change in activity
can be detected virtually in real time with the T2*
sequence. This process is the basis for the technique of
functional MRI (fMRI). fMRI has been particularly
useful in localizing neuronal activity to a specific lobe or
subcortical area. Investigators can also often localize neur-
onal activity to a specific gyrus. fMRI measures tissue
perfusion, in contrast to PET, which measures neuronal
metabolism. Unlike CT and MRI, fMRI is more highly cor-
related with brain function as opposed to brain structure.
PET
PET renders images of brain function that have revolution-
ized the study of cognitive processes and neurological/
psychiatric pathology. Emission tomography represents
the distribution in brain tissue of an injected isotope that
emits radiation. The positron (an electron with a positive
charge) travels through the tissue before colliding with
a negatively charged electron. The resulting annihilation
of the two particles results in the production of two high-
energy photons, which are simultaneously emitted 180
degrees to each other. The resulting particles penetrate the
brain and skull and are subsequently measured by external
radiation-detection devices. The process requires elem-
ents with low atomic numbers, such as nitrogen or
hydrogen, that are common to biological compounds.
Because of their longer half-lives of decay, radioactive
isotopes of carbon (11C), nitrogen (13N), or oxygen (15O)
are chosen, and are substituted in the structure of the
compound to be investigated.
Louis Sokoloff pioneered one of the most powerful
applications of PET. He studied specific active popula-
tions of nerve cells by taking advantage of the fact that
the activity of neurons is related to glucose utilization.
More specifically, the glucose analogue 2-deoxyglucose
is taken up by neurons and phosphorlyated by hexoki-
nase in the same manner as glucose. This phosphorylated
deoxyglucose cannot be further metabolized, thus accu-
mulating within the active cells. By covalently bonding
the positron-emitting isotope of fluorine-18 to deoxyglu-
cose, 18F-labeled deoxyglucose (FDG) is generated. The
creation of such a tracer molecule makes it possible to
measure glucose metabolism in small, specific regions
of the brain. Important structures are simultaneously
differentiated, in that gray matter uses much more
glucose than white. Different regions of gray matter gener-
ate unique patterns of metabolism. Particularly important
Neuroimaging in child and adolescent psychiatry 465
in psychiatry, neurotransmitters, their precursors, and
receptor ligand molecules can also be radioactively labeled.
For example, 11N-methylspiperone, a ligand that prefer-
entially binds to dopamine receptors, has been used to map
dopamine receptor locations throughout the brain.
SPECT
SPECT, which has evolved from PET, uses isotopes that
do not require a cyclotron for their production. The first
use of SPECT on patients was in 1989 (Peterson 1995).
The decay half-lives of the species used in SPECT are sig-
nificantly lower than those employed with PET, allowing
the radioisotope to be produced at a central location and
be distributed to multiple imaging centers. As in PET,
the isotopes (commonly those of iodine) are incorporated
into active biological systems, with their distribution then
measured and plotted. The labeled molecule is injected
intravenously and the lipophilic molecules cross the
blood–brain barrier. Uptake in the brain is proportional
to cerebral profusion. SPECT imaging cameras detect the
data in a 360-degree circle around the brain and generate
a three-dimensional image that can be displayed in coro-
nal, transaxial, or saggital cuts 1–1.5 cm thick. Although
more cost-efficient and thereby more readily available
than PET, SPECT has some disadvantages when com-
pared to the information that can be obtained from PET.
Because the decay of a SPECT radiopharmaceutical
involves the emission of a single photon directly from
that radioisotope itself, the emission is typically of a lower
energy than that of PET. PET’s simultaneous emission
of two photons results in a higher energy emission. Com-
pounding this relative weakness is the fact that the
emissions of the radioisotope are attenuated as they pass
through tissue. SPECT is therefore less helpful with deeper
brain structures, such as subcortical areas.
Magnetic resonance spectroscopy
Magnetic resonance spectroscopy (MRS) provides a non-
invasive means by which to study biological molecules
in vivo. MRS differs from MRI in its ability to provide
information about the molecules in which the identified
nuclei reside. MRS utilizes the difference in frequency
of same atomic species protons when bound to different
cell-associated structures. It measures the inherent mag-
netic behavior of a nuclear species contained naturally
in biological compounds. The measure of this chemical
shift thus does not require the use of radiation as it does
with PET/SPECT. The resulting information character-
izes the chemical milieu of cells. One unique advantage
of MRS is its ability to measure multiple chemical species
simultaneously. MRS is not limited only to organic com-
pounds and, as such, can provide important information
that is not available via PET/SPECT. For example, it
can monitor both lithium and fluorinated pharmaceut-
icals (e.g., trifluoperazine and fluoxetine), making it an
466 Family law and domestic relations
important tool in monitoring pharmacokinetics. A
notable drawback with this investigative tool is the
inability to acquire a detectable signal in certain tissue
molecules, as the signals of the nuclei studied in MRS are
fundamentally weak.
BRAIN IMAGING STUDIES IN PEDIATRIC
PSYCHIATRY
Attention-deficit hyperactivity disorder
Attention-deficit hyperactivity disorder (ADHD), deter-
mined to be among the most common cause of behavioral
disturbances in schools (particularly in school-aged boys),
is characterized by considerable problems of awareness and
poor impulse control. The prevalence of this disorder is
such that it constitutes a major proportion of patients in
the clientele of pediatric psychiatrists and neurologists.
Although no consistent values of incidence/prevalence
exists, some estimates report an incidence of 3–5 per
cent, with a clearly male dominance (Barkley 1990).
Earlier studies of this disorder in children (and adults)
utilizing data obtained from brain imaging studies have
delineated both structural and functional abnormalities
as compared to normal controls. Giedd et al. (1999)
compared eighteen boys with diagnosed ADHD with
another eighteen matched for age, weight, Tanner pubic
hair stage, and handedness using 1.5 Tesla MRI images.
In the group diagnosed with ADHD, the rostrum and
rostral body of the corpus callosum were found to be sig-
nificantly smaller than those of the controls.
Semrud-Clikeman et al. (1994) performed a similar
study with fifteen males, but failed to replicate the find-
ings of Geidd. Instead, she found that the males with
ADHD had significantly smaller posterior elements of
the corpus collosum. O’Tauma and colleagues (1999),
in reviewing these two studies, speculate that the above
differences in results may only be technical, in that the
thickness of the MRI scans were different for the two
investigative teams.
An important investigation of structural abnormal-
ities in those with ADHD in terms of number of patients
studied is that of Castellanos et al. (1996). His team ana-
lyzed brain MRIs of 57 patients, again comparing the
results with those of 57 healthy matched controls. Their
findings demonstrated that those boys with ADHD had
significantly smaller volumes of total cerebrum and cere-
bellum, and of right globus pallidus and right anterior
frontal lobe. Also noted was loss of volume in the right
caudate nucleus greater than that in the left, representing
a reversal of the right greater than left volume asymmetry
believed by Castellanos to represent normal. Filipek
(1995) however, believes that left greater than right
pattern of caudate asymmetry represents normal
development.
Another study by Castellanos (Castellanos, Giedd, and
Elia 1997) contemporaneous with the one previously cited,
investigated structural relationships between twenty-six
boys diagnosed with ADHD, fourteen boys diagnosed
with both ADHD and Tic Disorder, and thirty-one nor-
mal controls. In contrast to the previous study, no signifi-
cant differences in anterior frontal regions between the
three groups were discerned.
Clearly, much has yet to be confirmed. O’Tauma et al.
(1999), however, suggested that a reduction in size of the
right globus pallidus would presumably decrease gamma-
aminobutyric acid (GABA)-ergic inhibition of the ventro-
lateral thalamus, thereby increasing ventrolateral thalamic
excitation of the motor cortex, ultimately resulting in
physical/behavioral hyperactivity.
These morphometric investigations of ADHD have
been complemented by functional imaging studies utiliz-
ing PET and SPECT. In 1990, Zametkin et al. employed
PET during the processing of auditory attention tasks
in twenty-five non-medicated hyperactive adults who
had never received medication and were also the biolog-
ical parents of hyperactive children. It was found that for
these patients, global cerebral glucose utilization was
8.1 per cent lower than that of controls. The hyperactive
adults had substantially reduced metabolism in approxi-
mately half of specified brain regions. The greatest reduc-
tions were in the premotor cortex and superior prefrontal
cortex – areas, as noted by O’Tauma et al. (1999), which
were known to be involved in the control of attention
and motor activity.
A later, but similar investigation compared twenty
adolescents diagnosed with ADHD with nineteen nor-
mal controls. Here, the global cerebral glucose meta-
bolism rate in the female subjects with ADHD was
15 per cent lower than that of normal control females.
Interestingly, no such difference was observed between
the studied boys. A still later investigation by Ernst
(1997), however, confounded the findings of his earlier
work: ten adolescent females diagnosed with ADHD
demonstrated central glucose metabolism rates similar
to those of the normal female controls, although those
with ADHD showed some decreased rates in the left
hemisphere – a reversal of what Ernst observed in the
normal controls.
Lou, Henriksen, and Bruhn (1984), while studying the
brains of patients with ADHD employing SPECT, con-
sistently demonstrated hypoperfusion of the striate and
periventricular structures of the central frontal lobes.
Interestingly, these areas were accompanied by somewhat
hyperperfused occipital lobes and sensorimotor cortical
areas. The findings tended to reverse after the adminis-
tration of methylphenidate. The authors postulated that
ADHD is a dysfunction of the basal ganglion’s modu-
lating function, resulting in dysinhibition and increased
sensorimotor activity. Results from more recent studies
again suggest frontal irregularities, noting decreased
activity in the left frontal and parietal lobes in children

with ADHD. Amen and Carmichael’s 1997 study dis-
cerned decreased blood perfusion in the prefrontal cortex
in those diagnosed with ADHD as compared to normal
controls.
O’Tauma et al. (1999), in reviewing such studies, com-
mented that brain imaging studies of ADHD are remark-
ably concordant in identifying the frontal lobes, basal
ganglia, and their functional relationship as a major
potential site of the dysfunction in ADHD, with pre-
frontal and striatal connections being of paramount
importance.
Tourette’s disorder
Tourette’s disorder (Gilles de la Tourette syndrome, or TS)
is comprised of multiple motor tics and at least one vocal
tic that may present concurrently or at different periods
during the illness. Tics are defined in DSM-IV as an invol-
untary, sudden, rapid, recurrent, non-rhythmic stereo-
typed motor movement or vocalizations. Hallmarks of
the disorder also include distractibility, impulsivity, hyper-
activity, obsessions and compulsions. The median age
of onset for TS is seven years old, with the majority of
children exhibiting symptoms before the age of fourteen
years. Of note, approximately 50–60 per cent of those suf-
fering from TS also demonstrate the symptoms of ADHD
(Kaplan 2000).
Interestingly, some investigators employing structural
neuroimaging techniques to study this disorder have found
similarities to the imaging findings of patients with ADHD,
specifically to abnormalities found in the basal ganglia.
Indeed, even prior to neuroimaging applications, clinical
correlations pertaining to some hyperkinetic movement
disorders led some to hypothesize that the pathology of
TS and ADHD occur in the basal ganglia. Singer et al.’s
(1993) volumetric MRI study reported significant differ-
ences for measurements of symmetry in the putamen
and the lenticular region for those with TS versus right-
handed normal controls. Controls demonstrated a left-
sided predominance of the putamen, whereas in thirteen
of the thirty-seven TS subjects, a right-sided predominance
exceeded that of any control. Furthermore, statistical
comparison of the eighteen TS subjects with comorbid
ADHD in comparison to controls suggested to Singer
et al. that the presence of ADHD in TS is associated with
changes in volume of the left globus pallidus. Moriarty,
Costa, and Schmitz (1995) demonstrated decreased cere-
bral blood flow in the left dorsolateral prefrontal cortex,
anterior cingulate, and left caudate. The most dramatic
hypoperfusion was observed in the left caudate, thus
implicating the striatum (known to regulate the initiation
and execution of movement) and, in general, the basal
ganglia.
MRI studies by Hyde, Stacey, and Coppola (1995)
showed that in ten monozygotic twin pairs sharing the
diagnosis of TS but of differing severity, the more severely
Neuroimaging in child and adolescent psychiatry 467
affected twins showed a relative decrease in right caudate
and left lateral ventricular volume. Peterson, Riddle, and
Cohen’s (1992) structural MRI study of fourteen indi-
viduals with Tourette’s disorder demonstrated a relative
decrease in volume of the left lenticular nucleus and an
absence of the ‘normal’ left greater than right basal ganglia
asymmetry. As discussed in the previous ADHD section,
however, debate exists concerning which asymmetry
(L ⬎ R, R ⬎ L) represents normal development. Peterson
noted that the severity of motor tic symptoms did not,
however, correlate with the measured degrees of volume
differences. However, Castellanos et al. (1996) (as dis-
cussed in the previous section) was unable to demon-
strate any volume differences in those children diagnosed
with both ADHD and co-morbid Tourette’s. Moreover,
in stark contrast to the results of Peterson and colleagues,
Castellanos reported that these subjects demonstrated a
decrease – and even a reversal – of a right greater than left
globus pallidus asymmetry, the standard used by this
group for normal development.
By employing SPECT, George et al. (1992) investigated
twenty unmedicated individuals with Tourette’s disorder,
and demonstrated increased right frontal and visual cor-
tex metabolism in those individuals in fifty patients with
Tourette’s disorder as compared with fifty normal controls.
The severity of tics related to the degree of hypoperfu-
sion of the left caudate, cingulate, and medial temporal
areas. While both Peterson and George and colleagues
were attempting to correlate the severity of tic symptoms
with specific neuroimages, George et al.’s use of SPECT
proved most successful. It provides a good example of
how much of an advantage functional imaging can have
over structural imaging in explicating phenomenon.
Autism
Autistic disorder (infantile autism), classified as one of
the pervasive developmental disorders in the DSM-IV,
is characterized by significant impairments in reciprocal
socialization, disturbed abilities in communication, and
stereotypical patterns of behavior. Onset usually occurs
before the age of three years and is hallmarked by a fail-
ure to develop both language and appropriate related-
ness to parents. Over two-thirds of those diagnosed with
autism are attributed with a retarded level of mental
function. The prevalence rate as measured by Lotter in
1966 approximated 4.5 in 10 000 children. However,
more recent surveys, and especially those conducted in
Japan, have reported a prevalence of over 13 in 10 000
children (Kaplan 2000).
Significant research employing various neuroimaging
techniques has been conducted on this disorder, though
results remain inconclusive. One group (Courchesne
et al. 1988) reported abnormal findings on MRI of the cere-
bellum in afflicted children. In their initial investigation,
they compared eighteen subjects diagnosed with autism
468 Family law and domestic relations
not complicated by severe mental retardation or other
significant pathology, with twelve normal controls.
Courchesne et al. found significantly smaller neocerebellar
vermal lobules VI–VII in those patients with autism, and
believed the abnormality to be the result of developmental
hypoplasia as opposed to deterioration of fully developed
cerebellar tissue. This was postulated on the basis of an
absence of sulcal widening in the vast majority of affected
individuals. In a later investigation, collaborating with
Murakani et al. (1989), Courchesne et al. found a general
decrease in cerebellar size. A subsequent study by
Hashimoto et al. (1995) also found decreased cerebellar
size associated with autism. Their findings of abnormal-
ities in lobules I–V, VIII–X, however, unlike those of
Couchesne et al., supported a wider spectrum of cerebellar
abnormalities in the disease. More recently, Courchesne
et al. (1994) have identified two subtypes of cerebellar
abnormalities associated with autism: the already-
mentioned neocerebellar hypoplasia (87 per cent) and neo-
cerebellar hyperplasia (13 per cent). A 1997 investigation
by Piven et al. (1992), however, challenged the data of
Courchesne et al. When comparing thirty-five autistic
subjects with thirty-six normal controls, Piven et al. found
no abnormalities in size of the cerebellar lobules VI–VII in
autistic subjects; rather, these authors found an increased
total cerebellar volume associated with the disease.
Other MRI studies of autism have suggested other brain
abnormalities. Gaffney et al. (1987) found enlarged fea-
tures of the lateral ventricles, while Jacobsen et al. (1988)
found enlarged third ventricles. Piven’s 1995 study also
reported significantly increased total lateral ventricular
volume in those with autism compared with normal
controls. In a review of neuroimaging studies to date
on the subject, Courchesne (1991) commented that 15 per
cent of those diagnosed with autism demonstrated some
enlargement of some portion of the lateral ventricles.
Studies utilizing PET and SPECT have also resulted in
ambiguous findings. Using FDG PET, Horwitz et al. (1988)
measured resting regional cerebral metabolic rates for glu-
cose in fourteen healthy autistic patients. These authors
demonstrated functionally impaired interactions between
frontal and parietal regions and the neostriatum and
thalamus. This differed from an earlier investigation by
Rumsey et al. (1985), who found few group differences in
cerebral metabolic rates between autistic subjects and nor-
mal controls. In an initial study using SPECT, Zilbovicius
et al. (1992) showed no regional cortical dysfunction in
primary autism, though in a later study this group demon-
strated transient frontal hypoperfusion in autistic children.
Filipek (1995) posited that much of the differences in
these results might be largely due to technical variation
as the collective autistic cohorts were heterogeneous
with respect to age, gender, IQ, neuropsychological, and
behavioral parameters. The collective studies represented
vastly differing protocols for MRI scanning, including
variable MRI slice thickness, orientation and position.
Later, O’Tauma et al. (1999) commented on the variability
of the imaging studies, hypothesizing that such differ-
ences were not surprising given the dramatic variability
both in autism’s clinical expression and in the extent
of its associated cognitive abnormalities. Autism may
indeed represent a syndrome, the net result of etiologi-
cally separate encephalopathies sharing the ability to
impose themselves on the developing central nervous
system at a particular moment in gestation.
Major depression
Diagnosing a mood disorder in children can often prove
challenging for the clinician. Cognitive and expressive
ability can vary greatly in children, even of the same age,
and can frustrate the psychiatrist as he or she attempts to
diagnose pathology via the template of symptom criteria.
For example, a child who cannot yet comprehend the
concepts of future and guilt is less likely to demonstrate
hopelessness and guilt – two telling symptoms of major
depression. The debate continues as to whether a sub-
grouping of symptoms in mood disorder for children
can be found for different age groups. While certain symp-
toms, such as sad mood, decreased concentration, insom-
nia, and suicidal ideation appear independent of age, some
investigators believe that sad appearance, low self-esteem,
somatic complaints decrease with maturation in chil-
dren. Despite methodological problems collecting infor-
mation, the consensus is that the prevalence of mood
disorders varies with the age group studied. For major
depression, non-clinical samples of pre-school children,
those aged nine years, and adolescents showed preva-
lences of 0.3 per cent, 1.8–2.5 per cent and 4.5–6 per cent,
respectively (Kaplan 2000). Since the clinical picture of
mood disorders in children can be ambiguous and var-
ied, it would be helpful if neuroimaging could identify
common structural or functional abnormalities. Such
studies could equally serve as a baseline for further
studies. Findings could be used to determine the degree
to which pathology discovered in children predicted later
development of psychiatric illness.
To date, however, very few imaging studies of mood
disorder in children have been performed. Hendren et al.
(1991) investigated the relationship between brain path-
ology and psychiatric illness in thirty-seven psychiatric
inpatients aged between 5 and 14 years, by using MRI scans
on a 1.5 Tesla superconducting magnet. Of the three chil-
dren carrying the diagnosis of major depression, neuro-
radiologists (who were blinded to the subjects’ diagnosis)
identified two of the three MRI scans as abnormal. While
due comment was made regarding the extremely small
sample size, it was noted that the two abnormal findings
revealed relative enlargement in the right ventricles. In
1996, Steingard et al. reported significantly reduced frontal
lobe/total cerebral volume ratios in sixty-five children and
adolescents diagnosed with depression as compared to
eighteen hospitalized controls without depression.

Significant research of major depression in adults
employing brain-imaging techniques, however, has been
conducted. Several studies employing SPECT have revealed
some consistent findings. Abnormal regional blood flow
is most frequently discerned in the temporal, prefrontal,
frontal, and parietal lobes. Studies employing PET have
also implicated reduced glucose metabolism in prefrontal
brain regions. Indeed, Buchsbaum et al. (1997), by using
FDG PET, found increased brain metabolism in response
to sertraline treatment in depressed patients. Some inves-
tigators, such as Mayberg et al. (1994) questioned whether
reduced perfusion to the frontal cortex indicates decreased
activity of the lateral orbitofrontal circuit. These authors
further speculate as to whether this specific hypoperfu-
sion was responsible for the decreased cognitive ability
(poor concentration) in depression. In addition, the ques-
tion was raised as to whether this hypoperfusion was in
some way responsible for a decrease in behavioral control,
enabling suicidal behavior.
Schizophrenia
Early definitions of childhood-onset schizophrenia (COS)
were often too broad, causing the inappropriate inclusion,
at times, of such disorders as autism. More current, restrict-
ive guidelines for the diagnosis in children now emphasize
those criteria applied to adults. Considerable challenge
remains, however, for the clinician attempting to accu-
rately discern delusions and formal thought disorders
in children whose cognitive processes are not fully
developed. What approach can the practitioner use to
distinguish play and fantasy from psychosis? While the
varied diagnostic criteria have complicated the collection
of epidemiological data on COS, its onset is certainly
considerably less than that of adults.
Consistent neuroimaging findings associated with adult
schizophrenia have been well documented. CT studies
by several investigators have demonstrated enlarged ven-
tricles and increased sulcal widening, though debate con-
tinues as to whether this represents a failure of brain tissue
to develop or subsequent loss of tissue. MRI studies have
evidenced decreased cortical gray matter, especially in
the temporal cortex, decreased volume of limbic system
structures and increased volume of basal ganglia nuclei.
Functional imaging studies have demonstrated abnor-
malities in glucose metabolism and blood flow in certain
cognitive tasks. For example, Wolkin et al.’s (1992) study
employing PET investigated the possible association of
frontal lobe dysfunction with negative symptoms. These
authors found that in twenty non-medicated chronic
schizophrenics, there existed a close relationship between
negative symptoms and prefrontal hypoperfusion, par-
ticularly in the right dorsolateral convexity.
Schultz et al. (1983) described ventricular enlargement
in fifteen teenage subjects diagnosed with either schizo-
phreniform disorder or schizophrenia compared to
Neuroimaging in child and adolescent psychiatry 469
normal, similarly aged controls. Woody et al.’s (1987) later
investigation of a pre-pubertal schizophrenic also demon-
strated ventricular abnormalities: ex-vacuo enlargement
of the lateral ventricle, dilation of the third ventricle, as
well as cerebellar abnormalities. Woody et al. questioned
whether the structural changes observed in their patients
and other schizophrenic patients provide any long-term
prognostic significance, but noted that the observed
changes might indicate that parenchymal alterations on
the brain occur early during the course of the illness.
In 1996, Frazier et al. published results from a study
using MRI, and reported significantly reduced total cere-
bral volumes in twenty-one adolescents with COS com-
pared to thirty-three controls. In 1997, Rapoport et al.
reported a significantly decreased total cerebral volume
and increased ventricular volume in sixteen children and
adolescents (all having a history of neuroleptic use) as
compared to twenty-four normal controls.
Jacobsen et al. have noted irregularities in temporal
lobe structures associated with COS. They reported in
a 1996 study that twenty-one children demonstrated
increased volumes of the superior temporal gyrus and
generally larger temporal lobe volume. A follow-up study
by Jacobsen et al. in 1998 on ten original cohorts revealed
yet greater decreases on right temporal, bilateral
superior, and posterior temporal gyri. Also noted were
reduced right anterior superior temporal gyrus and left
hippocampal volumes. Rapoport (1999) subsequently
continued to examine fifteen of this same original cohort
and reported a decrease in frontal parietal and temporal
gray matter.
After employing FDG-PET, Gordon reported that in
twelve neuroleptic naive children with COS, decreased
right parietal metabolism was noted as subjects engaged
in auditory continuous performance tasks. A later study
by Jacobsen however did not note this hypofrontality in
sixteen adolescents with COS as they performed similar
auditory continuous performance tasks.
Hendren and colleagues (2000), in a review of neuro-
imaging in children, summarized that studies on COS
intimate that brain changes are first hallmarked by asym-
metries, reductions in both the basal ganglia and overall
brain size which are associated with negative symptoms.
Later, in adolescence, the reductions in frontal and tem-
poral structures, as well as increased ventricular enlarge-
ment, correspond to positive symptoms.
Obsessive compulsive disorder (OCD)
Fewer data exists on this disorder. Rosenberg et al.’s study
(1997a) on nineteen children and adolescents diagnosed
with OCD demonstrated significantly reduced striatal
volumes with correspondingly increased third ventricle
volumes as compared with nineteen normal controls.
A subsequent study by Rosenberg et al., revisiting in
part the cohort from the earlier study, revealed increased
470 Family law and domestic relations
anterior cingulate volumes in those children with OCD.
In yet another study, Rosenberg et al. (1997b) detected
significantly enlarged corpus callosum volumes in those
children diagnosed with OCD. Interestingly, these authors
believed that such increased volumes corresponded to
OCD symptom severity.
Hendren and colleagues (2000), in reviewing these
and other single case studies, summarized that OCD in
the pediatric population is associated with reduced basal
ganglia volumes, and considered that further involve-
ment with the prefrontal cortex, striatum, and thalamus
suggested a frontal–striatal mechanism. Consequently,
the degree of corpus callosum enlargement might bear a
direct functional relationship to the degree of symptom
severity in the disease.
Eating disorders
The starvation/restriction characteristic of anorexia ner-
vosa (AN) was associated with significant reductions in
total gray and white matter volumes in Katzman’s study
(Katzman et al. 1996) of thirteen affected adolescent
females when compared with eight controls. Interestingly,
when Katzman later rescanned six of the original cohorts
after their subsequent successful treatment and weight
recovery, white matter volumes normalized, while signifi-
cant gray matter deficits and increased CSF ventricular
volumes persisted as compared to healthy controls.
Golden et al.’s (1996) MRI study on twelve females with
AN confirmed Katzman’s data. Kingston et al.’s (1996)
MRI investigation of forty-six hospitalized patients with
AN noted that, when those patients who had regained 10
per cent of their body weight were rescanned, their greater
ventricular size was commensurate with their lower weight,
and not with their duration of illness. Lower weight also
corresponded to poorer performances on certain memory/
flexibility/inhibition assessing instruments. It is sug-
gested that the combination of starvation and hyper-
cortisolism in AN generates persistent gray matter loss,
and, perhaps, deficits in cognition.
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 PART
6
Correctional psychiatry

47 The history of correctional psychiatry 475

Peter N. Barboriak

48 Standards for the delivery of mental health services in a correctional setting 484
B. Jaye Anno

49 The structure of correctional mental health services 489

Joel A. Dvoskin, Erin M. Spiers, Jeffrey L. Metzner and Steven E. Pitt

50 Administrative and staffing problems for psychiatric services in correctional and forensic settings 505
Robert T.M. Phillips and Carol Caplan

51 Issues in the prevention and detection of suicide potential in correctional facilities 513
Gerald Landsberg and Pamela Morschauser

52 The psychosocial basis of prison riots 519

Phyllis Harrison-Ross and James E. Lawrence

53 The right to refuse treatment in a criminal law setting 526

Michael L. Perlin

54 Psychiatric ethics in the correctional setting 533

Jay E. Kantor
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The history of correctional psychiatry
PETER N. BARBORIAK
The number of incarcerated persons in the United States
reached an all time high in 1999. The United States
Department of Justice indicated that federal, state, and
municipal governments incarcerated a total of 2 026 596
individuals by the end of 1999 (Beck 2000). A significant
proportion of these incarcerated individuals suffers
from major psychiatric disorders or substance abuse, or
requires psychiatric intervention. Inadequate mental
health services to mentally ill criminal offenders remain
an urgent problem despite a long history of psychiatric
service to prisoners (Metzner 1997a).
Correctional psychiatry refers to the practice of psych-
iatry in the correctional setting including lock-ups, jails,
detention centers, juvenile correctional institutions,
prisons, and community corrections programs. Histor-
ically, correctional psychiatrists have engaged in treatment
and rehabilitation of prisoners (Travin 1994). Prisoners
with legally recognized emotional or mental disorders have
been identified as mentally disordered offenders. Certain
mentally disordered offenders, however, are not in the cus-
tody of a correctional institution (Halleck 1987; Wettstein
1998). This chapter focuses on the historical develop-
ment of correctional psychiatry in the United States.
The history of correctional psychiatry in the United
States has been driven by a longstanding medical inter-
est in explaining and treating criminal behavior. Social
reformers, rather than physicians, played the most import-
ant roles in the origins of American correctional institu-
tions. The beginnings of American penology and the
invention of the prison arose from the same reform
movements that gave rise to mental hospitals in the early
nineteenth century. Historical developments that shaped
psychiatric institutions exerted similar influences on the
historical development of correctional institutions.
EVOLUTION OF THE PRISON
The modern system of correctional incarceration origin-
ated in the first half of the nineteenth century. Reformers
in Great Britain and the American colonies sowed the seeds
47
for this new system beginning in the eighteenth century.
Eighteenth-century British politicians and moral reform-
ers on both sides of the Atlantic sought to find a solution
to the perceived problem of rampant lawlessness. Reform-
ers attempted to find humane alternatives to the tradi-
tional punishments practiced in Great Britain and the
American colonies, including branding, mutilation, fla-
gellation, public ridicule, and death. Limited incarcer-
ations in workhouses involving forced labor became a
popular alternative to traditional punishments. In Great
Britain, the existence of a large empire with areas ripe for
settlement and in need of cheap labor suggested another
solution. Beginning in the seventeenth century, but
expanding significantly in the eighteenth century, British
courts transported convicts to colonies in America, the
Caribbean, and, later Australia. British reformers such as
John Howard, and Quakers on both sides of the Atlantic,
advocated a different approach. They suggested that crim-
inals could be morally redeemed through reflection and
repentance in a regularized, structured, and peaceful
environment. They argued that penitentiaries would
humanely redeem the fallen (McGowen 1995).
In a similar fashion, Quakers and other reformers
advocated for and established asylums for the mentally ill
beginning in the eighteenth century. They argued that
‘moral treatment’ in asylums would humanely redeem
the mentally ill. In addition, early nineteenth century
mental health reformers were strongly motivated to pro-
vide adequate housing and treatment for the mentally ill,
who were often confined in local jails in the absence of
any other suitable place for them (Grob 1994). Some
historians have characterized the asylum and prison
reform movements as merely flip sides of the same coin.
Rothman viewed the emergence of psychiatric institu-
tions and correctional institutions as part of an overarch-
ing mechanism to control social deviance in the United
States (Rothman 1971).
The beginnings of correctional reforms in the United
States are generally dated to 1790, with the opening of
the Walnut Street Jail in Philadelphia, Pennsylvania. This
facility pioneered the use of the ‘Pennsylvania system,’
476 Correctional psychiatry
which used solitary confinement as a tool to force the
inmate to reflect upon and repent of his or her criminal
behavior. The system was further refined at the Eastern
State Penitentiary in Philadelphia, completed in 1829.
Architects designed the physical layout of Eastern State
Penitentiary as the ‘ideal prison,’ by meeting specific
requirements of the Pennsylvania system, in which
inmates were not allowed to interact with one another in
any way. Proponents of the Pennsylvania system believed
that total isolation would allow inmates to reflect on and
reform their morals while protecting them from the cor-
rupting influences of other criminals (Johnston 1994).
In 1817, New York opened Auburn State Prison and
established the ‘Auburn system’ model to secure and
rehabilitate prisoners. In contrast to the Pennsylvania
system, advocates of the Auburn system isolated inmates
at night, but relied on group meals and hard labor per-
formed in groups to provide the impetus to moral
change. Inmates under the Auburn system were severely
punished for talking to or otherwise interacting with one
another. Although both models stressed isolation, strict
obedience, and steady labor, fierce competition between
advocates of the two systems developed by the 1830s
(Friedman 1993).
Prison reform and mental health reform continued
to be closely allied during the antebellum period. For
example, Dorothea Dix, confident in the curative power of
asylums, worked actively to reform jails and prisons. She
tirelessly visited houses of correction, jails, and prisons,
where she interacted with the prisoners (Gollaher 1995).
She took part in the controversy between the Pennsylvania
and Auburn systems by writing in favor of the Pennsylvania
system (Dix 1845). Few American prisons during this
period attempted to care specifically for mentally dis-
ordered offenders. The first psychiatric hospital for the
criminally insane was opened next to Auburn State Prison
in 1855. Eventually, hospitals for the criminally insane
were opened in Massachusetts, Michigan, and Illinois
(Halleck 1965).
Despite idealistic efforts to reform and humanize the
criminal justice system, the new models themselves
drew criticism as cruel and inhumane institutions. For
example, Charles Dickens criticized the Pennsylvania sys-
tem after visiting the Eastern State Penitentiary in 1842.
He characterized the system as ‘rigid, strict, and hopeless
solitary confinement.’ He witnessed inmates who suffered
‘an anguish so acute and so tremendous that all imagin-
ation of it must fall short of the reality.’ He wrote, ‘I hold
this slow and daily tampering with the mysteries of the
brain, to be immeasurably worse than any torture of the
body’ (Dickens 1842). Multiple criticisms of the early
penitentiary systems reflected similar criticisms aimed at
the asylum movement.
Prisons during the second half of the nineteenth cen-
tury underwent a progressive decline in faith in the abil-
ity of the established prison models to redeem inmates. The
period between approximately 1870 and 1900 witnessed
the rise of a new correctional philosophy called the
reformatory model. This model stressed the use of edu-
cation and vocational training, combined with indeter-
minate sentencing, to promote change in the prisoner
(Friedman 1993).
THE RISE AND FALL OF PSYCHIATRIC
CRIMINOLOGY
Biological and anthropological theories dominated explan-
ations for criminality and other antisocial behaviors in
the nineteenth century. For example, the work of the
Italian criminologist Lombroso postulated the existence
of hereditary physical criminal types. During the late
nineteenth century theorists on the etiology of crime,
including psychiatrists, supported the concept of a ‘crimi-
nal brain’ based on anatomical and physiological stud-
ies. The practical application of such ideas led to the
eugenics movement and sterilization of criminals in the
early twentieth century (Halleck 1965). Subsequently,
psychiatrists and others found little empirical support for
hereditary biological and anthropological theories of
criminal behavior. Noted psychiatrist William Alanson
White effectively argued against coerced sterilization in
1915 (White 1917).
The origins of psychiatry’s interest in developing an
alternative to moralistic, biological, or anthropological
theories of criminal behavior began in the nineteenth
century. Interest in studying and treating antisocial and
other deviant behaviors can be traced back to the father
of American psychiatry, Benjamin Rush, who in his psy-
chiatric textbook of 1812, suggested that medical causes
could account for deviant behavior (Rush 1812). This
intellectual movement only began to gain momentum
in the late nineteenth century. Correctional psychiatrist
H. E. Allison called for psychiatric examination of all
offenders as early as 1894 (Allison 1894).
The early twentieth century witnessed the flowering
of the Progressive Era. Progressives believed in the rational
reformation of society by experts. Though generally
considered to date from approximately 1900 to 1920, the
influence of the Progressive Era on correctional psychi-
atry extended from the 1920s to the 1960s. During this
period, psychiatrists strove to view crime through a med-
ical model and to establish a psychiatric criminology.
Ultimately, optimism in psychiatry’s ability to under-
stand and treat deviant behavior scientifically, led to calls
for alternatives to incarceration and outpatient approaches
to treatment.
The rise of a juvenile justice system during the Pro-
gressive Era played an important role in the development
of correctional psychiatry. In 1909, William Healy estab-
lished the first court clinic in Chicago, where he con-
ducted psychiatric evaluations for the court. His model
for a court clinic was later copied in other juvenile courts,

and in adult criminal courts in major jurisdictions. In
conjunction with the young sciences of psychology and
sociology, Healy fostered a psychiatric interest in the study
of delinquency that laid the groundwork for the rise of a
medical model of crime, and influenced studies of psy-
chopathy and antisocial behavior (Healy 1915; Levine and
Levine 1992).
Another source for the origins of psychiatric crimin-
ology came from the mental hygiene movement. Founded
in 1909 by Clifford Beers, a former patient, with support
from psychiatrists and psychologists, the National Com-
mittee for Mental Hygiene aimed to protect the public’s
mental health. The mental hygiene movement advocated
for preventive measures to curb delinquency and crimi-
nal behavior (Salmon 1920).
Caught up in the ideals of the Progressives during the
1920s, psychiatrists argued strongly that psychiatric expert-
ise could solve the problems of criminals and crime.
Excitement over new psychological insights provided
by psychoanalysis also played a role in this movement,
pioneered by the state of Massachusetts. In 1921,
Massachusetts enacted the Briggs Law, which called for
psychiatric examination of all defendants charged with
a capital crime, or felons with prior felony convictions
(Halleck 1965). Prominent psychiatrists such as William
Alanson White, superintendent of St. Elizabeths Hospital
in Washington, DC, called for closer relationships among
psychiatrists, attorneys, and the courts (White 1927).
Prominent legal scholars such as Sheldon Glueck reflected
the growing interest of progressive attorneys and judges
by incorporating the latest psychiatric concepts in their
work (Glueck 1925).
Psychiatric explanations for criminal behavior cata-
pulted into the general public’s attention during the sen-
sational Leopold–Loeb trial, an early ‘crime of the century.’
Nathan Leopold and Richard Loeb, two nineteen-year-old
sons of wealthy Chicago families, murdered a fourteen-
year-old boy in 1924. Their attorney, Clarence Darrow,
successfully used psychodynamic expert testimony to
avoid the death penalty. Defense experts included
William Healy, William Alanson White, and Bernard
Glueck, a psychiatrist at Sing Sing Prison in New York.
Psychiatric aspects of the Leopold–Loeb trial further
encouraged the development of psychiatric criminology
(Diamond 1994).
Leading psychiatric reformers wished to apply the
medical model to the correctional system. They criticized
the traditional correctional approach of punishment as
cruel and ineffective. They urged a scientific, individual-
ized approach ‘which has rehabilitation and recon-
struction as its end’ (Glueck 1935). Despite the rhetoric
suggesting a possible medical cure for crime, correctional
psychiatrists engaged in little treatment. Psychiatrists
working for the courts and correctional institutions con-
centrated on diagnostics and classification (Halleck 1965).
The first survey of correctional psychiatrists conducted
by Overholser in 1928 identified twenty-nine correctional
The history of correctional psychiatry 477
institutions with at least one full-time psychiatrist, and
sixty-four institutions with at least one part-time psych-
iatrist. Overholser found that 110 criminal courts out of
a total of 1058 employed full or part-time psychiatrists
(Overholser 1928).
The Committee on the Legal Aspects of Psychiatry of
the American Psychiatric Association played an important
part in advocating for increasing psychiatric involvement
in corrections and psychiatric criminology. Psychiatrists
such as Karl A. Menninger and William Alanson White
represented crime as a kind of failure in life adaptation
that fell within the focus of psychiatry. They asserted that
psychiatric study of individual criminals and their crimes
would lead to ‘an efficient and scientific solution’ to the
problem of crime. The Committee on Legal Aspects of
Psychiatry issued a report supporting these views in 1925
(Grob 1985).
The interest in developing a psychiatric criminology
and applying that knowledge to the criminal justice sys-
tem flourished in the 1930s. Leading psychiatrists, lawyers,
and judges continued to foster the process of close cooper-
ation. The beginning acceptance of psychoanalytic the-
ories engendered a confidence in fledgling American
psychoanalysts that they could unlock the unconscious
and psychosexual origins of criminal behavior. Ameri-
can psychiatrists were strongly influenced by the trans-
lation and American publication in 1931 of the seminal
German study of the psychodynamics of crime, The
Criminal, the Judge, and the Public (Alexander and Staub
1931). In 1931, the Forensic Psychiatry Committee of the
American Psychiatric Association, including members
William Alanson White, Bernard Glueck, and Winfred
Overholser, proclaimed that psychiatry must play an
important role in the problems of crime (American
Psychiatric Association 1932).
During this period, psychiatric work with criminals
earned prestige and respect from others in the field.
The National Commission on Law Observance and Law
Enforcement, in conjunction with American Bar Associ-
ation, recommended that larger courts routinely access
psychiatric expertise by establishing court clinics (Ameri-
can Psychiatric Association 1931). The establishment of
court clinics resulted in the routine evaluation and occa-
sional treatment efforts towards defendants in major
cities. The first psychiatric clinic attached to an adult court
was founded in Detroit in 1919. Subsequent court clinics
opened in Baltimore, Chicago, New York, Cleveland,
Pittsburgh, and Philadelphia. The American Psychiatric
Association formally recognized the growing importance
of forensic and correctional psychiatry by organizing a
Section on Forensic Psychiatry in 1934 with William
Alanson White as its first chairman. This and similar
developments led to ‘golden years of awakening in the
field of criminal jurisprudence’ (Zilboorg 1944).
Psychiatric interest in the ‘sexual psychopath’ developed
in the 1930s. Public opinion feared an epidemic of sex
crimes, and the criminal justice system viewed psychiatrists
478 Correctional psychiatry
as a valuable resource. A number of psychiatrists voiced
confidence that scientific study of sexual offenders could
result in effective prevention and treatment. Many state
legislatures passed sexual psychopath laws including
Illinois in 1938, and Michigan and California in 1939.
Psychiatric criminology fueled an interest into psychi-
atric research involving in-depth analysis into the histor-
ies of individual criminals (Karpman 1933; McCartney
1934). In practice, psychiatric attempts to evaluate, treat,
and research criminals fell short of the standards pro-
claimed by the leading psychiatric thinkers of the day
(Bromberg 1982). Despite these problems, few psychiatrists
heeded voices of caution, such as Menas Gregory who
commented in 1935 that ‘psychiatry might be over-sold’
(Gregory 1935). Despite strong interest and prestige, few
psychiatrists actually practiced correctional psychiatry.
A survey conducted by McCartney in 1934 revealed
forty-eight full-time and thirty-five part-time psychia-
trists practicing in prisons (Halleck 1965).
Interest in psychiatric criminology waned during the
1940s, as psychiatrists turned their attentions to the psy-
chiatric aspects of World War II. Correctional psychiatry
services decreased, and efforts towards treatment of
offenders became sporadic. Research efforts continued,
especially studies in the psychodynamics of psychopathy,
which bore fruit during the decade (Cleckley 1941;
Wittels 1942; Greenacre 1945). In addition, specialized
programs for specific offender populations, especially
sex offenders, became established in a number of states.
Indeterminate sentencing for sexual offenders became
more popular. Psychiatrists generally favored indetermi-
nate sentencing as an important component of a treat-
ment program for criminal behavior using the medical
model. However, the Group for the Advancement of
Psychiatry fiercely criticized indeterminate sexual offender
sentencing in 1947, owing to fears regarding due process
and the lack of treatment for those receiving indetermi-
nate sentences (Halleck 1965).
The 1950s witnessed a renewed interest in correc-
tional psychiatry and psychiatric criminology. The suc-
cess of psychoanalytic explanations and treatments for
war-related traumatic neuroses spurred a general interest
in individual and group therapy. Founded in 1950, the
Association for Psychiatric Treatment of Offenders
encouraged large-scale individual and group psychother-
apeutic treatment for prisoners. Massachusetts instituted
an extensive outpatient evaluation and treatment program
for probationers and parolees. As correctional psychiatrists
engaged in more intensive treatment rather than diagnosis
and classification, ethical concerns regarding dual agency
became more common (Halleck 1965).
Interest in innovative treatment and reformation of
the psychopath resulted in the establishment of the
Patuxent Institution in Maryland in 1955. Maryland
courts committed ‘defective delinquents’ to the institu-
tion under a completely indeterminate sentence until they
were rehabilitated, and safe to re-enter society. Defective
delinquent was defined as ‘an individual who by the
demonstration of persistent aggravated antisocial or crim-
inal behavior evidences a propensity towards criminal
activity and is found to have either some intellectual defi-
ciency or emotional imbalance or both as to clearly
demonstrate an actual danger to society.’ Patients received
group therapy and individual counseling. An institu-
tional review board evaluated patients for release to the
community, which was usually contingent on continued
outpatient therapy (Guttmacher 1968).
Wisconsin established a similar program for sex offend-
ers. California opened the Vacaville Medical Facility in
1955 to provide innovative therapeutic approaches, espe-
cially group programming, for prisoners. The Federal
Bureau of Prisons achieved a role as an innovator in cor-
rectional psychiatry during this period. Psychiatrists pro-
vided a full range of forensic evaluations and innovative
treatment programs for the federal prisons (Halleck
1965). Despite these developments, even fewer psychia-
trists worked in correctional settings, relative to past
periods. A survey by Warren Wille in 1957 found forty-
three full-time and thirty-five part-time psychiatrists
working in correctional settings. Only nineteen state
prisons reported having a full-time psychiatrist on staff.
Ten states reported no psychiatrists working in any
capacity in their correctional systems (Wille 1957).
Correctional psychiatry continued to make a resurgence
through the 1960s, and correctional psychiatrists con-
tinued to express confidence in their ability to rehabili-
tate individual prisoners using psychotherapy. In terms
of numbers, however, correctional psychiatry during the
1960s remained a minor part of clinical psychiatry. An
American Psychiatric Association survey in 1961 indi-
cated that sixty-five psychiatrists reported spending over
30 hours a week in correctional institutions, with an
additional forty-five spending at least 15 hours of part-
time work or consultation (Halleck 1965). Three years
later, the chief psychiatrist of the Federal Bureau of
Prisons reported that only fifty-six full-time psychiatrists
covered the nations’ 230 correctional institutions (Smith
1964).
Leaders in both psychiatry and corrections still envi-
sioned an important role for psychiatry. They believed
that psychiatry could contribute ‘understanding, han-
dling, and, hopefully, correction of socially unacceptable
behavior’ (Smith 1964). In addition, psychiatry was felt
to have a role in modifying the ‘anti-therapeutic’ aspects
of incarceration. By the 1960s, some forensic psychiatrists
raised doubt about the concept that all criminals suffered
from some type of mental illness (Guttmacher 1968).
The optimism expressed early in the decade changed
to criticism as the decade ended. Proposals for new innov-
ative programs remained on paper while prisoners often
received minimal mental health services. Conflicts between
psychiatrists and correctional staff impeded the thera-
peutic mission of correctional mental health services
(Stamm 1962). Voices for immediate remedies became

prominent. Critics noted that correctional institutions
continued to stress security over the psychological needs
of prisoners, and they called for action to reform correc-
tional mental health services (Halleck 1967). Correctional
psychiatrists continued to complain that evaluation and
treatment of inmates with mental illness was too limit-
ing. Advocacy for primary focus on rehabilitation and for
prisons to become ‘centers for the study, diagnosis, and
treatment of the criminal mind’ continued the goals of
the Progressive Era (Fink, Derby, and Martin 1969). The
1960s witnessed the beginnings of standards of healthcare
for jails and prisons. In 1966, the American Correctional
Association published standards for correctional institu-
tions that included a section on healthcare (American
Correctional Association 1966).
CORRECTIONAL PSYCHIATRY IN TRANSITION
The 1970s proved to be a time of significant change in
correctional psychiatry. Psychiatrists saw their influence
in corrections wane, as the concept of rehabilitation
came under strong attack. Psychiatrists lost enthusiasm
for the coerced psychiatric cure for criminal behavior
(Rappeport 1974). Critics of psychiatry questioned the
effectiveness and therapeutic authority of correctional
psychiatry. A number of prison riots, especially the Attica
rebellion in 1971, shook the foundations of corrections.
The correctional bureaucracy began to question the util-
ity of correctional psychiatry, as faith in rehabilitation
for prisoners faded. Prison and jail inmate populations
exploded and placed severe pressures on correctional sys-
tems. Overall, psychiatrists became more modest in their
therapeutic goals (Roth 1986). Correctional psychiatry
lost prestige and appeared unappealing to many if not
most clinicians (Cumming and Soloway 1973).
The Supreme Court and lower courts significantly
increased constitutional protections for prisoners’ rights.
Prior to 1973, the courts allowed prison administrators a
free hand in running prisons, including the restrictions
of civil rights. For example, the Virginia Court of Appeals
ruled in 1871 that ‘Prisoners have no more rights than
slaves’ (Ruffin v. Commonwealth 1871). A number of
Supreme Court and Appeals Courts rulings greatly
expanded the basic constitutional rights of prisoners.
In 1974, the Supreme Court clearly affirmed a basic set
of prisoner rights (Wolff v. McDonnell 1974). The Fifth
Circuit Court of Appeals ruled that lack of mental health
care could violate a prisoner’s Eighth Amendment pro-
tections (Newman v. Alabama 1974). The landmark case
Estelle v. Gamble (1976) set a standard for the provision
of medical care for prisoners. Estelle v. Gamble held that
inadequate medical care constituted cruel and unusual
punishment. The United States Supreme Court established
a ‘deliberate indifference’ standard of medical care. In
1977, the Fourth Circuit Court of Appeals ruled that the
The history of correctional psychiatry 479
right to mental health care was equal to a prisoner’s right
to medical care in Bowring v. Godwin (1977). The
Supreme Court ruled on a prisoner’s due process rights
when transferred from a prison to a psychiatric hospital
in Vitek v. Jones (1980). The court ruled that such trans-
fers required procedural safeguards, including an adver-
sarial administrative hearing with available legal counsel
due to stigmatization and other ‘curtailment of liberty.’
Research into antisocial behavior continued, but the
emphasis in jails and prisons was to treat mentally dis-
ordered prisoners. Commentators increasingly questioned
psychiatry’s attempts to treat antisocial behavior, even in
those individuals with other mental illnesses. Critics
asserted that psychiatrists and other mental health pro-
fessionals could not demonstrate the effectiveness of
coerced treatment on patients engaging in antisocial
behavior, and that the mental health system perpetuated
myths about the curability of this population. John
Monahan, for example, complained of the ‘psychiatriza-
tion of criminal behavior’ (Monahan 1973). Critics in
and out of psychiatry questioned the effectiveness and
moral basis of sexual psychopath laws. States progres-
sively phased out commitment laws and traditional treat-
ment programs (Group for the Advancement of Psychiatry
1977).
By the early 1970s, many psychiatrists feared that
changes making involuntary commitment laws more
stringent would force many individuals with mental ill-
ness into the criminal justice system (Abramson 1972;
Kirk and Therrein 1975; Rachlin, Pam, and Milton 1975).
Steadman’s research to address this question cautioned
that perceptions of increasing numbers of mentally ill
inmates in prisons and jails were not supported by statis-
tics (Steadman and Ribner 1980).
For the most part, the 1980s represented a period of
consolidation for correctional psychiatry. Turning from a
focus on societal goals, correctional practitioners focused
on dealing with particular problems of mental health
service delivery in the correctional environment, and on
evaluation and treatment of individual prisoners (Roth
1986; Rosner and Harmon 1989). The prestige of correc-
tional psychiatry remained low. Critics from within psych-
iatry pointed out a number of perceived problems with
correctional psychiatry: isolation from mainstream
clinical practice, collusion with correctional authorities,
professional legitimization of dehumanizing, coercive
institutions, and poor working conditions. Correctional
psychiatry positions seemed dangerous, unpleasant, and
poorly paid (Goldstein 1983; Hollingsworth 1985).
Inmate populations continued to grow rapidly due to
increased conviction rates and the gradual shift to deter-
minate sentencing. Social critics continued to criticize
the mental healthcare provided in jails and prisons.
Criticisms included the lack of specialized mental health
housing units, misuse of psychotropic medications, over-
use of restrictive interventions, and general prison con-
ditions that contributed to prisoner psychopathology
480 Correctional psychiatry
(Kaufman 1980). Standards for correctional mental health-
care continued to develop in the 1980s. The National
Commission on Correctional Health Care published a set
of healthcare standards for jails, prisons, and juvenile
detention centers (National Commission on Correctional
Health Care 1986a; National Commission on Correctional
Health Care 1986b). These efforts were supplemented
by standards published by the American Bar Association
in 1989 (American Bar Association 1989). In 1989 the
American Psychiatric Association published suggested
guidelines for mental healthcare standards in jail and
prisons (American Psychiatric Association 1989).
THE 1990s
Significant changes in the structure of correctional psych-
iatry occurred in the 1990s because of the rise of man-
aged healthcare driven by skyrocketing healthcare costs.
State legislatures responded in similar fashion to rising
prison populations, limited prison beds, class action law-
suits, and skyrocketing costs. Various state departments
of correction and the federal government experimented
with privatization of prisons. Many states privatized
correctional healthcare and mental healthcare in a bid
to save money. Managed mental healthcare appeared to
be an effective way to curb costs, yet provide mandated
services (Patterson 1998).
Large companies such as Corrections Corporation
of America, Wackenhut Corrections Corporations, and
Prison Health Services managed prisons and health
services beginning in the 1980s. State legislatures and
departments of corrections viewed these companies as
solutions to problems such as the cost of care and difficult
staffing of healthcare services. Critics of private com-
panies accused them of underbidding in order to get a
foothold in the state contracts. Critics also charged that
private mental health centers provided overly restrictive
formularies, restricting diagnostic testing, and decreasing
lengths of stay. Newspapers have alleged significant prob-
lems in correctional mental health services (Hurst 1995;
Kurkijan 1996; Corcoran 1999a; Corcoran 1999b). Critics
have characterized the current state of prison mental
health as woefully inadequate, cruel, and the byproduct of
a corrupt ‘prison-industrial complex’ (Kupers 1999).
Recently, pressures on managed care have resulted
in increased costs, and the same trend is evident in cor-
rectional mental health services. Competition between
managed care companies has resulted in instability, as
contracts switch from company to company. In addition,
private corrections companies and managed health serv-
ice providers have continued to merge. The experience
of departments of correction has been to see increased
need for mental health services with limited resources.
The result has been shortened lengths of stay on mental
health units.
The courts continued to clarify and tighten prisoner
rights during the decade. The Supreme Court clarified
the definition of deliberate indifference regarding cruel
and unusual punishment in Farmer v. Brennan (1994).
The court ruled that prisons officials were liable for cruel
and unusual punishment if they knew that the inmate
faced a substantial risk of harm, but disregarded that
risk. The Supreme Court ruled on the involuntary
administration of psychotropic medications to prisoners
in Washington v. Harper (1990) and Riggins v. Nevada
(1992) based on Fourteenth Amendment rights. In
Washington v. Harper, the court ruled that psychotropic
medications could be involuntarily administered if the
treatment arose from ‘legitimate penological interests’
and if the prisoner received institutional due process
protections. Two years later, the Riggins v. Nevada deci-
sion ruled that pre-trial detainees could not be involun-
tary treated with psychotropic medications unless the
government established a need for treatment.
Research efforts in the 1990s concentrated on epi-
demiological studies to determine mental health service
requirements. In addition, research efforts analyzed the
provision of mental health services in specific institu-
tions in light of mental healthcare standards. Such
research led to a promising analytic approach to under-
standing and improving correctional mental health
services by utilizing a systems approach (Metzner 1997a;
Metzner 1997b; Metzner 1998). Epidemiological studies
continued to demonstrate a high prevalence of mental
illness and substance abuse in populations of prisoners
(Teplin 1990; Teplin, Abram, and McClelland 1996; Lamb
and Weinberger 1998).
FUTURE DIRECTIONS
Correctional psychiatry faces today a period of flux. The
need for mental health services has increased in light
of soaring prison populations and legal mandates. The
expense of mental health services has increased despite
managed care measures. The price of medications con-
tinues to rise, and mental health correctional budgets
must contend with the increasing costs of medication to
treat HIV and hepatitis. Current trends included aug-
mentation and substitution of psychiatrists with physi-
cian extenders, increased ‘outpatient’ services in the general
prisoner populations of correctional institutions, and
increasing use of case managers. The future of privatized
mental health services appears uncertain. Though private
managed behavioral health systems have clearly cut costs
in the short term, the trend is for increasing costs and
probable decreased profit margins, as much abuse and
waste in the system has already been reduced. News
accounts have documented rising criticism of managed
care in prison (Allen and Bell 1998; Marshall 2000). Recent
problems with privatized prisons, including allegations

of substandard services and inmate riots, may have slowed
the trend towards the privatization of correctional insti-
tutions. The need for specialized programs for substance
abuse and sexual offenders continues to grow. The
Supreme Court’s ruling in Kansas v. Hendricks (1997)
reverts to reasoning found in early sexual psychopath
legislation. Correctional psychiatry continues to make
more modest claims to its role in corrections as a whole.
In uncertain times, correctional psychiatrists must
continue to focus on providing better service for their
patients. Developments in correctional mental health sys-
tems continue to provide psychiatrists and other mental
health professionals with opportunities for leadership
and innovation (Halpern 1998).
Acknowledgments
Significant assistance was received from Beltran J. Pages,
M.D., Mental Health Director of the North Carolina
Department of Correction.
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 48
Standards for the delivery of mental health
services in a correctional setting

B. JAYE ANNO

Concern regarding the adequacy of health services for what constituted ‘adequate’ care. Several groups developed
the incarcerated is a relatively new phenomenon. Prior to standards to govern the delivery of health services in correc-
the 1970s, there was little assurance that the basic med- tional settings. This chapter traces the history of standard-
ical, dental, and mental health needs of inmates would setting efforts by various professional organizations,
be met. Few prisons and even fewer jails had a system of compares the efficacy of the different sets of standards on
healthcare in place. Health services were characterized assessing the adequacy of correctional health services in
by insufficient numbers of qualified staff, inadequate ser- general and mental health services in particular, and sug-
vices, and the denial of access to care on a timely basis. gests areas that should be considered in future revisions of
The use of inmate workers as health providers was com- standards for mental health services in corrections.
mon and correctional staff determined who would be
seen and what services would be provided.1
Three decades later, much of that picture has changed THE DEVELOPMENT OF NATIONAL
owing to the efforts of two separate forces – namely, the STANDARDS
courts and certain professional associations. During the
1970s, the courts abandoned the ‘hands-off ’ policy that
Prior to the mid-1970s, healthcare in prisons and jails
had characterized their prior approach to handling dis-
usually was directed and managed by correctional offi-
putes between inmates and correctional administrators,
cials rather than by qualified health professionals. Most
and began to establish inmates’ rights to certain basics
correctional administrators viewed health services as a
of life such as decent housing, nutritional meals, a safe
support activity, similar to food services, laundry, or recre-
environment, and adequate health services. The judicial
ation. There seemed to be little recognition that health-
activism of the courts was paralleled by the social activism
care was a highly specialized field requiring unique skills
of certain professional associations during that same era,
or expertise. Thus, it followed that the first national stand-
which began to focus on the health needs of under-served
ards addressing health care in jails and prisons were
populations such as the urban poor, rural America, minor-
sub-sections in manuals governing overall operations of
ities, women and children, and the incarcerated.
correctional facilities.
Once the United States Supreme Court established that
Healthcare was mentioned in early publications of key
adequate healthcare was a right that must be extended to
correctional organizations representing both prison and
all inmates, and not a privilege that could be offered as a
jail officials. For example, the American Correctional
reward or denied as punishment (see Estelle v. Gamble
Association’s (ACA) Manual of Correctional Standards
1976),2 it fell largely to the health professions to define
(1966) included health as one of its topics, and in 1974,
the National Sheriffs’ Association (NSA) produced a series
1
Anno (2001) provides a more complete historical overview of the of pamphlets for jailers that discussed the need for
status of correctional healthcare in the early 1970s and efforts to adequate sanitation and general health services. Similarly,
improve it.
the National Advisory Commission on Criminal Justice
2
In the Estelle v. Gamble case, the U.S. Supreme Court ruled that cor-
Standards and Goals devoted a couple of pages to medical
rectional facilities could not be ‘deliberately indifferent’ to inmates’
‘serious medical needs.’ Later federal cases including Bowring v. issues in its 1973 volume on corrections.
Godwin (1977) established that psychiatric needs were included There were some problems with these early standards,
within the meaning of ‘serious medical needs.’ however. In the first place, they were too brief and too
 Standards for the delivery of mental health services in a correctional setting 485
general to provide much direction for improvement.
Courts and correctional administrators seeking specific
guidance as to what constituted ‘adequate’ care were not
likely to derive much satisfaction from these early stan-
dards developed by correctional organizations. The
interpretation of words such as timely, access, available,
reasonable, appropriate, and acceptable were left entirely
to the discretion of the reader. Similarly, the standards
might state that ‘regular sick call should be held’ or that
‘adequate mental health services must be provided’ with-
out further specification.
The second deficiency was that the standards lacked
enforcement power. Early national standards were sim-
ply suggested guidelines that prison and jail administra-
tors were free to adopt or reject as they chose. Clearly,
what was still needed was a set of health standards specif-
ically designed for corrections that would provide enough
detail to enable administrators to measure their facilities
against those standards.
The initial answer came not from corrections but
from the health professions. The first national healthcare
standards drafted specifically for correctional institutions
were developed by the American Public Health Association
(APHA) and published in 1976. That comprehensive man-
ual addressed all aspects of ambulatory care and included
separate sections on mental health services and dental
care, as well as ancillary services such as pharmacy, health
records, and nutrition. Said to be applicable to both jails
and prisons, the 1976 APHA standards provided more
specificity on health delivery than earlier sets of correc-
tional standards. They did not, however, address the prob-
lem of enforcement.
In 1977, the American Medical Association (AMA)
published its first correctional health standards.3 This
edition was specific to jails and, although not as detailed
as those of the APHA, had the advantage of an accom-
panying accreditation effort that allowed facilities to be
measured on the extent of their compliance with standards.
The AMA’s jail standards were revised in 1978, 1979,
and again in 1981, with each successive revision providing
more direction and more detail based on the experience of
applying these standards against actual delivery systems.
In 1979, the AMA also published its first health stand-
ards for prisons as well as a separate set for juvenile con-
finement facilities. Standards for mental health services
and substance abuse, originally intended to be published
as separate volumes, instead were incorporated into the
three basic sets for jails, prisons, and juvenile facilities.
3
The AMA was the first professional association to develop an
active program to improve health services in correctional institu-
tions. It began to study the problem of lack of care in 1970, and by
1975, the AMA had launched a national effort to upgrade health
services for the incarcerated. The AMA continued its correctional
program until 1982 when it helped to form an independent organ-
ization, the National Commission on Correctional Health Care, to
carry on the standards and accreditation activity. [See Anno (2001)
for more information on the AMA’s early reform efforts.]
For a time, it appeared that the correctional health
standards developed by the health and corrections fields
would be in concert, since the ACA used the AMA stand-
ards as the base for its health care section when it revised
its manual in 1977. Subsequent revisions of ACA’s stand-
ards, though, differed in important ways from standards
established by health organizations. Additionally, as
discussed in the next section, the ACA’s accreditation
program for jails and prisons, which includes a review of
health services, operates somewhat differently than those
run by health organizations.
During the 1980s, a number of standards volumes
covering correctional health services were published. The
ACA revised several of its standards manuals and the
APHA issued its second edition of correctional health
standards (Dubler 1986). The National Commission on
Correctional Health Care (NCCHC) assumed the AMA’s
correctional health activities and published its first stand-
ards for juvenile facilities in 1984, followed by separate
volumes for jails and for prisons, both in 1987. In 1985,
the American Nurses’ Association (ANA) issued a small
volume of standards governing nursing practice in cor-
rectional facilities, and in 1986, the American Bar Associ-
ation (ABA) published a comprehensive book of standards
for criminal justice that included a chapter on mental
health. In 1989, the ABA’s mental health standards were
expanded and issued as a separate edition. Finally, that
same year, the American Psychiatric Association (APA)
printed its task force report on psychiatric services in jails
and prisons that included specific guidelines on mental
health service delivery.
There is one other national standard-setting body that
should be mentioned, namely the Joint Commission
on Accreditation of Healthcare Organizations (JCAHO).
While JCAHO does not have any sets of standards specif-
ically designed for correctional facilities, it is the primary
accrediting body for health facilities in the community.
COMPARISON OF STANDARDS
To the uninitiated, the proliferation of national standards
for correctional healthcare by various professional groups
can be very confusing. Thus, it may be helpful to compare
the different sets in terms of their utility in offering guid-
ance for the delivery of health services in general, and
mental health care in particular. Of the eight organiza-
tions that developed standards during the 1980s, there
are only four whose standards are sufficiently compre-
hensive to govern the delivery of health services in correc-
tions (those of the ACA, APHA, JCAHO and NCCHC),
and of these only three are actively used. The AMA’s stand-
ards are obsolete, having been revised by the NCCHC,
and the ANA’s apply only to nursing issues. The ABA’s
standards provide excellent guidance on a number of
mental health issues, but their emphasis is on legal rights
486 Correctional psychiatry
of, and responsibilities to, the mentally ill and retarded,
rather than on the care and treatment of these populations.
The APA’s standards are excellent also. While they do
focus on the delivery of mental health services, especially
the role of the psychiatrist, they are not intended to be used
as ‘stand-alone’ standards. According to the task force
chair, the APA’s standards serve to supplement those of the
NCCHC by providing greater specificity on mental health
issues (Weinstein 1989, p. 1095). In the year 2000, the APA
issued a second edition of its guidelines for psychiatric
services in jails and prisons, which again stated that ‘It is
important to reiterate that these guidelines are supplemen-
tary to the standards developed by the National Commis-
sion on Correctional Health Care’ (APA 2000, p. 31).
The four remaining sets of national standards (ACA,
APHA, JCAHO, and NCCHC) are the most comprehen-
sive with respect to administrative concerns and health
delivery system components. While they have some
requirements in common, they also differ in important
ways, and thus, they do not work equally well in applying
them to correctional systems. The advantages and disad-
vantages of each set are discussed briefly.
The American Correctional Association has separate
volumes of standards for different types of confinement
facilities, but the most widely used are those for prisons
(ACA 1990) and those for jails (ACA 1991). These stand-
ards cover all aspects of managing an institution (e.g.,
safety, security, housing, personnel, administration) rather
than focusing solely on the delivery of health care. Each
set of ACA standards does have a section on health ser-
vices, though, which contains some direction for provid-
ing mental health services. While the ACA’s standards
have not been re-issued in a decade, standards supple-
ments are printed periodically, the most recent of which
was printed in 1998. The primary advantage of ACA’s
standards is that they were developed by the largest cor-
rectional professional association, and thus, most admin-
istrators of jails and prisons are likely to be aware of them
and try to follow them.
However, from the perspective of health professionals,
where there are potential areas of conflict between cus-
tody and medical staff – particularly related to ethical
concerns such as involving health staff in custody pro-
cedures or evidence gathering – the ACA’s standards
tend to stand silent or adopt the security perspective.
Additionally, while the healthcare sections of the ACA’s
standards address many of the same topics as those of
NCCHC and APHA, they are the least comprehensive
and provide the least specificity. ACA’s healthcare standards
seldom include discussion, commentary, or examples that
could assist health professionals in implementation.
The Joint Commission on Accreditation of Healthcare
Organizations does not have separate standards for cor-
rectional health facilities. Rather, it has a series of stand-
ards volumes that were designed to govern delivery of
care in community facilities with various health missions
(e.g., hospitals, ambulatory-care clinics, nursing homes,
and behavioral health programs such as mental health
treatment facilities and substance abuse programs). The
primary advantage of using JCAHO’s standards is that
they do reflect the ‘community standard of care,’ since they
are used in community health facilities of all types. Also,
JCAHO’s standards have a strong emphasis on quality
assurance.
The primary disadvantage of JCAHO’s standards is that
they were not designed for corrections, and hence do not
address important aspects of this unique environment
such as health training of correctional staff, the role of staff
in evidence gathering or inmate disciplinary actions, intake
procedures, and so forth. Further, certain of the ‘patient
rights’ defined by JCAHO concerning privacy, telephone
contacts, and visits are seen as privileges in prisons and jails
and are under the control of custody rather than health
staff. Also, while JCAHO’s standards provide the most
specificity regarding delivery of mental health services, few
prison systems and even fewer jails have freestanding men-
tal health facilities. Thus, many of the JCAHO standards
simply do not apply or are not appropriate for most cor-
rectional facilities. Finally, JCAHO’s requirements often are
stated in very general terms, and key words (e.g., ‘timely,’
‘available,’ and ‘accessible’) are left undefined.
The standards developed by the American Public
Health Association (Dubler 1986) address some of the
problems identified with those of the ACA and JCAHO.
The APHA’s standards were developed by a health organi-
zation and accordingly, emphasize the perspective of
health professionals. These standards are comprehensive
(covering medical, dental, and mental health services) and
they are specific to corrections. Additionally, they are suffi-
ciently detailed to provide guidance to individuals regard-
ing implementation. Overall, APHA’s standards are very
good as a set of principles, but there are two basic prob-
lems in applying them to correctional institutions. First,
they are said to apply to small local jails as well as to large
state prisons, which is not always practical. For example,
one requirement is that, ‘Sick call shall be at least five days
weekly,’ which makes sense for larger institutions, but not
for smaller ones. Second, the absence of an accreditation
effort associated with APHA’s standards makes it difficult
to judge whether compliance has been achieved.
The standards of the National Commission on Correc-
tional Health Care have many similar advantages to
those of APHA. NCCHC’s standards were developed by
representatives of a number of health professional asso-
ciations (including both the American Psychiatric Associ-
ation and the American Psychological Association), using
the prior standards of the American Medical Association
as a base. NCCHC has separate sets of standards for
jails (NCCHC 1996), for prisons (NCCHC 1997), and
for juvenile facilities (NCCHC 1999a). Institutional size
differences are also taken into account, particularly
when specifying the frequency with which certain basic
services should be provided. NCCHC’s standards assume
a unified model of health delivery (i.e., medical, mental
 Standards for the delivery of mental health services in a correctional setting 487
health, and dental care are all organized under a single
authority). Hence, all standards governing administrative
issues, personnel matters, care and treatment, medico-
legal concerns, support services, and record keeping apply
to all three services. NCCHC’s standards are also measur-
able, since compliance levels are established through an
ongoing accreditation program.
The primary disadvantage of NCCHC’s standards is
that certain important areas such as environmental and
occupational health issues are not addressed adequately.
Further, some of the standards addressing treatment of
the mentally ill should be more detailed. Recognizing
that more specificity was needed in providing guidance
for delivering mental healthcare in correctional facilities,
NCCHC issued a companion volume to its standards in
1999. This book outlines NCCHC’s prison and jail stand-
ards and explicitly addresses the mental health concerns
under each standard (NCCHC 1999b). Using this volume
as a supplement to NCCHC’s prison and jail standards
along with the APA’s guidelines for psychiatric services
addresses most of the deficiencies regarding mental
health services in the NCCHC’s standards themselves.
Finally, like all of the standards except perhaps JCAHO’s,
little mention is made of programming for the mentally
retarded/developmentally disabled.
Of the four primary sets of standards mentioned in
this chapter, only three are actively used in correctional
settings, since APHA does not offer accreditation under
its standards. The ACA has the most correctional facil-
ities accredited, but it reviews the management and oper-
ations of entire facilities, not just health services. NCCHC
accredits health delivery systems in jails, prisons, and
juvenile facilities and has nearly 600 currently accredited
institutions. JCAHO’s market is primarily community
facilities, but it does have some prisons (mostly federal
facilities) and a few jails accredited.
The steps leading to accreditation are pretty much the
same for all three accrediting bodies: application; self-
assessment; on-site survey; report; and accreditation deci-
sion. All three award full accreditation for a three-year
period, but have their own rules and requirements for
decisions short of full accreditation. All three provide
some process of appeal. The primary differences in the
accreditation offered by these three organizations are asso-
ciated with conducting the on-site survey and with the fee
charged.
Since ACA’s accreditation is not focused on health
services, its on-site survey provides the least comprehen-
sive health review. Its surveyors tend to be corrections
experts, but seldom include health professionals. There-
fore, ACA auditors can determine whether certain things
exist (e.g., policies and procedures, health records), but
generally are not qualified to assess the adequacy of the
documentation or the care provided. Additionally, ACA
auditors rely almost solely on written documents to verify
compliance. Of the three accrediting bodies, ACA’s charges
fall in the middle.
JCAHO’s survey teams are comprised entirely of health
professionals, but generally not those with correctional
experience. Like ACA, its auditors rely primarily on
documentation to determine the extent of compliance
with its standards. JCAHO’s accreditation is also the most
expensive.
NCCHC’s survey teams are always comprised of cor-
rectional health professionals. Its surveyors rely not only
on the existence of documentation to measure compliance
with standards but also on observations and structured
interviews. The latter are conducted with administrative
staff (correctional and health), custody staff (officers,
training directors, food-service managers, sanitarians),
health staff (at least one from each service area or activ-
ity, and in larger institutions, several), and inmates, who
are the consumers of the health care delivered in correc-
tions. NCCHC’s accreditation is the least expensive of
the three.
CONCLUSIONS AND FUTURE ISSUES
Some of the key features of the primary sets of standards
applicable to correctional facilities are summarized in
Table 48.1. It may be useful to balance these factors in
deciding which set of standards to follow in a given facil-
ity offering mental healthcare.
Individuals using the standards currently available for
delivery of mental health services in corrections undoubt-
edly will find that none of them is a perfect fit. ACA’s
standards need more input from health professionals,
while APHA’s should distinguish between jails and prisons
as well as between small and large facilities, JCAHO’s
standards require an awareness of the unique aspects of
health delivery in a correctional setting, and NCCHC’s
would benefit from more specificity on mental health
issues. Further, all of the sets of standards need to devote
more attention to programming for the mentally retarded.
In corrections, as in society, these individuals are largely
ignored.
Fortunately, standards are not carved in stone. Most,
if not all, standard-setting bodies periodically revise their
Table 48.1 Comparison of national standards
A B C D E F G
ACA No Yes Low Yes No Medium
APHA Yes Yes Medium No N/A N/A
JCAHO Yes No High Yes Yes High
NCCHC Yes Yes Medium Yes Yes Low
A ⫽ name of organization; B ⫽ developed by health
organization; C ⫽ specific to corrections; D ⫽ specificity on
mental health issues; E ⫽ offers accreditation; F ⫽ survey
conducted by health professionals; G ⫽ cost; N/A ⫽ not
applicable.
Source: Based on data in Anno (2001).
488 Correctional psychiatry
standards to accommodate new knowledge and technol-
ogy in healthcare, or from experience derived from their
application to actual facilities.4 Comments from users are
actively sought and welcomed.
The importance of standards in governing mental
healthcare in corrections should not be underestimated.
While the Supreme Court stated in Bell v. Wolfish (1979)
that standards developed by professional organizations
are not necessarily the same as constitutional standards,
in practice the courts look to professional organizations
to determine what constitutes adequate care. Significant
improvements have occurred in health services in jails
and prisons over the past three decades, but many of the
remaining problems are in the delivery of mental health-
care and the population it serves (e.g., insufficient num-
bers of psychiatrists, licensure for mental health staff,
increased numbers of mentally ill and retarded inmates,
high numbers of substance-abusing inmates, increased
numbers of violent inmates). The challenge for the twenty-
first century is how to meet the mental health needs of
the incarcerated in a time of explosive population growth,
reduced resources, and escalating healthcare costs. Rigor-
ous adherence to national standards is imperative if the
gains made are not to be lost.
To some extent, the choice of which standards to use
may be less important than simply deciding to follow
some set in delivering mental healthcare. If a correctional
facility does not have a good delivery system in place, it
can expect the courts to step in and mandate that the
void be filled. In the long run, voluntary compliance with
standards is a more positive, less protracted, less expen-
sive way to achieve improvements in the delivery of
correctional mental healthcare than litigation.
REFERENCES
American Bar Association. 1989: ABA Criminal Justice
Mental Health Standards. Washington, DC.
American Correctional Association. 1966: Manual of
Correctional Standards, 3rd edition.
College Park, MD.
American Correctional Association. 1990: Standards
for Adult Correctional Institutions, 3rd edition.
Laurel, MD.
American Correctional Association. 1991: Standards
for Adult Local Detention Facilities, 3rd edition.
Laurel, MD.
American Correctional Association. 1998: Standards
Supplement. Lanham, MD.
4
NCCHC has appointed a task force to revise its standards and will
publish revised editions of its jail and prison standards in 2002.
At the time of writing, both the APHA’s standards and the ACA’s
healthcare sub-section also are undergoing revision.
American Medical Association. 1977: Survey
Questionnaire for the Accreditation of Medical
Care and Health Services in Jails. Chicago, IL.
American Nurses Association. 1985: Standards of Nursing
Practice in Correctional Facilities. Kansas City, MO.
American Psychiatric Association. 1989: Psychiatric
Services in Jails and Prisons. Washington, DC.
American Psychiatric Association. 2000: Psychiatric
Services in Jails and Prisons, 2nd edition.
Washington, DC.
American Public Health Association. 1976: Standards
for Health Services in Correctional Institutions.
Washington, DC.
Anno, B.J. 2001: Correctional Health Care: Guidelines
for the Management of an Adequate Delivery System.
2001. Chicago: National Commission on Correctional
Health Care.
Bell v. Wolfish, 441 U.S. 520 (1979).
Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977).
Estelle v. Gamble, 429 U.S. 97 S.Ct. (1976).
Dubler, N.N. (ed.). 1986: Standards for Health Services
in Correctional Institutions, 2nd edition. Washington,
DC: American Public Health Association.
Joint Commission on Accreditation of Healthcare
Organizations. 2000: 2000–2001 Standards for
Ambulatory Care. Oakbrook Terrace, IL.
Joint Commission on Accreditation of Healthcare
Organizations. 2001: 2001–2002 Comprehensive
Accreditation Manual for Behavioral Health Care.
Oakbrook Terrace, IL.
National Advisory Commission on Criminal Justice
Standards and Goals. 1973: Corrections. Washington,
DC: U.S. Government Printing Office.
National Commission on Correctional Health Care.
1984: Standards for Health Services in Juvenile
Confinement Facilities. Chicago, IL.
National Commission on Correctional Health Care. 1987a:
Standards for Health Services in Jails. Chicago, IL.
National Commission on Correctional Health Care.
1987b: Standards for Health Services in Prisons.
Chicago, IL.
National Commission on Correctional Health Care.
1996: Standards for Health Services in Jails.
Chicago, IL.
National Commission on Correctional Health Care.
1997: Standards for Health Services in Prisons.
Chicago, IL.
National Commission on Correctional Health Care.
1999a: Standards for Health Services in Juvenile
Detention and Confinement Facilities. Chicago, IL.
National Commission on Correctional Health Care.
1999b: Correctional Mental Health Care:
Standards & Guidelines for Delivering Services.
Chicago, IL.
Weinstein, H.C. 1989. Psychiatric services in jails and
prisons: who cares? American Journal of
Psychiatry 146, 1094–5.

The structure of correctional mental
health services
JOEL A. DVOSKIN, ERIN M. SPIERS, JEFFREY L. METZNER AND STEVEN E. PITT
INTRODUCTION
The rate of incarceration in the United States continues
to increase at a staggering rate. In June 1999, nearly 1.9
million inmates were incarcerated in the nation’s prisons
or jails (U.S. Department of Justice 2000a). By year end,
approximately one in every 110 men, and one in every
1695 women in the United States were incarcerated (U.S.
Department of Justice 2000b).
Commensurate with the rapidly escalating rates of
incarceration in the United States is the rising number of
imprisoned individuals who suffer from a mental illness.
Research indicates that roughly 20 per cent of inmates in
jail and prison are in need of psychiatric care for serious
mental illness (American Psychiatric Association 2000).
According to the Bureau of Justice Statistics, an esti-
mated 283 800 mentally ill offenders were incarcerated in
U.S. prisons and jails at midyear 1998 (U.S. Department
of Justice 1999). Teplin and Swartz (1989) noted that even
after adjusting for demographic differences, the preva-
lence rates of schizophrenia and major affective disorder
are two to three times higher in jails than in the general
population. Steadman and his colleagues (1987) found
that the prevalence of severe or significant psychiatric
disability among sentenced felons is at least 15 per cent.
When coupled with mental retardation or brain damage,
at least 25 per cent of the inmate population in the
New York State Department of Correctional Services was
found to have at least a significant psychiatric or func-
tional disability.
Incongruities exist when looking at the disposition
and sentencing of persons incarcerated with a mental
illness. Axelson (1987) found that psychotic detainees
charged with misdemeanors were discriminated against
in accessing various types of pretrial release resulting
in lengths of stay six-and-a-half times longer than non-
psychotic controls. Similarly, Valdiserri, Carroll, and Hartl
49
(1986) determined that psychotic inmates were four times
more likely than non-psychotic inmates to have been
incarcerated for less serious charges such as disorderly
conduct and threats.
In correctional institutions, those inmates with ser-
ious mental illness or in psychiatric crisis present a host
of problems to correctional administrators. One problem
of course is the possibility of serious injury to staff and
other inmates posed by some mentally ill inmates whose
behavior is uncontrolled and violent. Mentally ill inmates
may be terrified by hallucinations and stay up all night
screaming, thereby keeping other inmates awake, who in
turn become angry and violent in response. Thus, hous-
ing assignments must take into account the mutual fears
of inmates with and without mental illness.
Another problem posed by the occurrence of psychi-
atric crisis and severe mental illness in correctional facil-
ities is related to liability. Suicides and restraint-related
deaths may have dire legal consequences. Despite the
stereotype of ‘guards’ as tough and unfeeling, a successful
suicide is often devastating to staff, who feel responsible
for keeping inmates safe. Indeed, public opinion, so sel-
dom sympathetic to inmates, nevertheless solidly expects
correctional officials, at the very least, to keep their inmates
alive. Even in the absence of adverse judgments or settle-
ments, legal fees can be costly.
The diversity of American correctional facilities is
extraordinary. Local correctional facilities range from
one-person police lockups to large urban jails, which may
house more than 20 000 inmates. Similarly, state prisons
vary from very small field camps to walled prisons
of more than 5000 inmates. Notwithstanding the differ-
ences between facilities, jails and prisons are alike in
many ways. Both are viewed as correctional settings, with
uniformed staff, secure perimeters (depending on cus-
tody level), and usually stark accommodations. Jails and
prisons can also be very stressful environments, due to
forced association, segregation by gender, and extremes
490 Correctional psychiatry
of noise and temperature. However, the challenge of keep-
ing their respective facilities safe is the most important
similarity that jails and prisons share.
Despite such similarities, there are also important dif-
ferences between jails and prisons. While prisons are self-
contained environments that tend to house inmates for
long periods of time, jails often hold detainees for only
a matter of hours; thus, jails need to be treated as part
of the larger communities in which they exist (Steadman,
McCarty, and Morrissey 1989). The goals of the two set-
tings also differ. For pre-trial detainees, jails exist pre-
dominantly to hold and process people until their case is
resolved by the courts. Often, jail detention depends solely
on external factors such as the ability of the defendant’s
family to raise money to post bond. For sentenced mis-
demeanants, jails serve as short-term punishment, with
or without an effort at rehabilitation. Prisons, on the other
hand, serve to punish the most serious offenders, and to
prepare them through various prison programs for their
eventual return to society.
THE LEGAL REQUIREMENTS FOR
CORRECTIONAL MENTAL HEALTH
SERVICES
O’Leary (1989), Cohen and Dvoskin (1992), and Cohen
(1988, 1998) have written extensively about the legal bases
for requiring mental health services in jails and prisons, in
addition to the required components and standards that
various courts have established for such services.
Pre-trial detainees have a due process right not to be
punished, while convicted inmates are prohibited from
suffering cruel and unusual punishment. For pre-trial
detainees, the right to treatment stems from due pro-
cess rights guaranteed by the Fourteenth Amendment.
‘Detainees are entitled to at least the same level of care
as the convicted’ (Cohen 1988; Cohen 1998). A convicted
inmate’s right to medical and psychiatric treatment in
prison, guaranteed by the Eighth Amendment, stems
from the state’s role as incarcerator. In Estelle v. Gamble
(1976), the Supreme Court interpreted this responsibil-
ity as the duty to avoid ‘deliberate indifference’ to the
serious medical needs of inmates. Other federal and state
courts specifically included psychiatric needs within the
standard (e.g., Bowring v. Godwin 1977), and have required
that treatment be greater than the provision of psycho-
tropic medication (Langley v. Coughlin 1989). It was
not until 1994, however, with Farmer v. Brennan, that a
clear definition of this term was presented. The Farmer
decision equated deliberate indifference with reckless-
ness, and applied the criminal standard of ‘actual know-
ledge’ of risk. It is not essential to prove that an official
clearly believed that harm was imminent; only that an offi-
cial possessed substantial knowledge of risk (Cohen 1998).
Examples of the application of this standard can be found
in cases such as Coleman v. Wilson (1995), and Madrid
v. Gomez (1995), both of which speak to the necessity of
providing adequate treatment to inmates with mental
illness.
To incarcerate someone with deliberate indifference
to their significant psychiatric needs is thus viewed as cruel
and unusual punishment and may be remedied, often
through class action lawsuits, by injunctive relief, or by
compensatory and/or punitive monetary damages. The
conservative turn in the federal judiciary, however, has
made it far more difficult for plaintiffs to succeed in such
actions (e.g., Wilson v. Seiter 1991; Hudson v. McMillan
1992).
Congress has also been conservative relevant to prison
reform as reflected in passage of the Prison Litigation
Reform Act (PLRA) of 1996 (18 U.S.C. Section 3626
(b)(2)). The PLRA established new procedural require-
ments for suits by prisoners and significantly limited
the ability of the courts to order relief. Consent decrees
now require a finding of unconstitutional conditions (i.e.,
admission of such conditions by the defendants), fees
are limited for special masters and attorneys, and other
restraints to remedies are present. The U.S. Supreme
Court in Miller et al. v. French et al. (No. 99-224, decided
June 19, 2000) upheld the constitutionality of this act
that had been challenged on due process and separation
of powers principles.
In addition to constitutional litigation, correctional
administrators who ignore the mental health needs of at
risk inmates who go on to commit suicide may also be
vulnerable to tort liability, such as wrongful death actions
(O’Leary 1989). Injuries to staff and other inmates result-
ing from inadequate mental health services can also lead
to tort liability, as well as great expense due to occupa-
tional injury leave and disability retirements. In addition,
inadequate medical or psychiatric services can result in
malpractice claims against both medical and mental health
providers in the jail.
Finally, while the services described in this chapter need
to be available to inmates, they do not necessarily have to
be provided by or within the jail or prison itself. Indeed, it
is not often especially important who provides the serv-
ices, or whether the services are brought to the inmates or
the inmates are brought to the services. What matters is
that the inmates have access to necessary treatment.
Thus, there is a clear constitutional requirement that
correctional administrators provide for the psychiatric
needs of those they incarcerate. Deliberate indifference
is not a high standard (Cohen and Dvoskin 1992), and it
should be clear that legal considerations alone will not
necessarily lead to ideal or even adequate services. Good
public policy will necessitate a balancing of various
considerations that include reducing liability, providing
humane treatment for prisoners, and maintaining the
safety of staff and other inmates, all within a framework
of cost effectiveness in an increasingly conservative fiscal
environment.

DIVERSION PROGRAMS
There are a number of reasons (e.g., deinstitutionaliza-
tion, overcrowded state hospitals) why people with men-
tal illness find their way into correctional settings despite
efforts to divert them to alternative dispositions (Lamb
and Weinberger 1998). For some, the offense will be
severe and unrelated to their mental illness,1 thus ruling
out the possibility of dismissing charges or negotiated
insanity pleas. For others, the stress of the correctional
environment may result in decompensation in some
individuals who were mentally intact in the community
(Gibbs 1987; Muzekari et al. 1999). Finally, with the rise
in illegal drug use and its well-documented relationship
to criminal behavior (see, e.g., Petrich 1976; Mirsky 1988;
O’Neil and Wish 1990), urban jails are facing large
increases in the numbers of newly admitted inmates who
suffer from drug-induced psychosis upon arrest.
Diversion programs are essentially intended to shift
offenders with mental illness and/or substance abuse
problems away from the criminal justice system (Draine
and Solomon 1999). This does not imply, however, that
mentally ill offenders should not, or would not, ever be
detained. While diversion may prevent incarceration in
some cases, it may also mitigate the time spent behind
bars, as well as impose contingencies for after-care upon
release. For those offenders requiring detention, mental
health services must be provided by the correctional facil-
ity. Generally speaking, however, non-violent mentally
ill offenders are not likely to have their ongoing mental
health needs best met by serving jail time. Instead, the
safety of the community is better served by providing a
comprehensive, inclusive diversion program designed to
meet the needs of the offender, as well as the mental
health and criminal justice systems (Coleman 1998).
Despite widespread agreement about the need for
effective jail diversion programs, existing programs share
few similarities. Disparate definitions of inclusion cri-
teria, strategies, and objectives have resulted in limited
meaningful data available to evaluate existing programs
and/or to provide guidelines for the development of
future programs (Steadman, Steadman-Barbera, and
Dennis 1994a; Steadman, Barbera, and Dennis 1994b;
Steadman, Morris, and Dennis 1995; Draine and Solomon
1999). In conjunction with ongoing research regarding
the effectiveness of jail diversion programs (see also
Steadman, Steadman-Barbera, and Dennis 1994a and
Steadman, Barbera, and Dennis 1994b), Steadman et al.
(1999) delineated five key elements common to the most
successful programs. First, effective programs included
interagency involvement (e.g., mental health, substance
1 assessments by jail staff could well drain needed clinical resources
Virkkunen (1974), for example, reported that only about one-
third of violent offenses committed by persons with schizophrenia
occurred during psychotic episodes.
The structure of correctional mental health services 491
abuse, and criminal justice systems) beginning at the
program’s inception. Second, regularly scheduled inter-
disciplinary communication between representatives was
built in to the structure. Third, service integration was
orchestrated by a designated ‘boundary spanner’ who
served as a liaison between agencies. A fourth key element
was the presence of strong leadership. Finally, effective
diversion programs consistently employed non-traditional
case management strategies. According to Steadman et al.
(1999), there are only about fifty to fifty-five true jail
diversion programs nationwide.
Whether diversion occurs pre or post-booking,‘the best
programs see detainees as citizens of the community who
require a broad array of services, including mental health
and substance abuse treatment, housing and social services’
(American Psychiatric Association 2000, p. 29). Program
success has essentially depended upon building new system
linkages and holding the community responsible for the
provision of services (Steadman et al. 1999). Policies pro-
viding for the selective diversion of specific mentally ill
offenders, and/or their careful reintegration into the com-
munity following incarceration, are more desirable than
existing alternatives (Cohen 1998). In sum, the develop-
ment of comprehensive diversion programs may break the
‘unproductive cycle of decompensation, disturbance, and
arrest’ (American Psychiatric Association 2000, p. 30) so
familiar to many of our nation’s mentally ill.
SERVICE COMPONENTS OF CORRECTIONAL
MENTAL HEALTHCARE
Due to the many differences between jails and prisons,
some of which are discussed in this chapter, the priorities
for mental health services are somewhat different in each
setting. For example, Steadman (1990) found that, for
jails, the priority services are screening, crisis interven-
tion, and discharge-oriented case management. Prison
environments, on the other hand, due to their typically
longer lengths of stay, lend themselves to the possibility of
longer-term psychotherapy and psychiatric rehabilitation
rarely seen in jails. Despite these differences, the services
themselves fall into generic categories that hold up rather
well across the two settings. Nevertheless, it is important
to be mindful of the inevitable differences, subtle or obvi-
ous, between the implementation of services as they are
adapted to each specific correctional environment.2
2
Inmates in psychiatric crisis or those with severe mental illnesses
are also defendants whose competency to proceed is likely to be
questioned. However, it is not necessary that jails or their mental
health programs actually provide competency assessments. Such
away from treatment within the institution. For a more complete
discussion of this topic, see Chapter 24.
492 Correctional psychiatry
Cohen (1998) lists six minimal essential elements,3
taken from a prison class action suit in Texas (Ruiz v. Estelle
1980), as providing a useful framework for planning men-
tal health services (see also American Psychiatric Associ-
ation 1989; American Psychiatric Association 2000):
1 Systematic screening and evaluation.
2 Treatment that is more than mere seclusion or close
supervision.
3 Participation by trained mental health professionals.
4 Accurate, complete, and confidential records.
5 Safeguards against psychotropic medication prescribed
in dangerous amounts, without adequate supervision,
or otherwise inappropriately administered.
6 A suicide prevention program.
Screening
Screening is regarded as perhaps the single most
important service element in correctional mental health
(Pogrebin 1985; Teplin and Swartz 1989). Screening is
not only a specifically required legal obligation (Cohen
1998) but is clinically and programmatically essential.
It is impossible to appropriately treat serious mental
illnesses or psychiatric crises without identifying the
specific individuals affected. While there are a number of
acceptable ways to provide this screening, several specific
elements must be present:
• Trained staff. Standardized screening tools can be suc-
cessfully administered by line staff, nurses, or case
managers, provided that they are adequately trained
in the administration of each screening instrument
and know where to refer inmates in need of services.
• Documentation. The results of the screening must be
clearly and legibly documented and available to those
responsible for medical care, housing assignment, and
follow-up services. Records must be maintained in a
manner that assures the privacy and confidentiality of
each inmate, while facilitating communication between
different mental health and medical providers.
• Low threshold. The screening must have a low thresh-
old for referral for more extensive evaluation. That is,
any indication of either a history or current evidence
of mental illness or psychiatric problems must result
in referral for a follow-up evaluation. Likewise, any
unusual or eccentric mannerisms or behaviors observed
must be specifically documented and referred for
further evaluation.
• Standardization. By routinely conducting a standard-
ized screening process during booking, and by train-
ing staff in the screening procedure, one avoids an
idiosyncratic process where a mentally ill inmate’s
3
Cohen (1998) also lists fifteen factors combining legal require-
ments with ideal components of a correctional mental healthcare
program.
chances of being identified depend on who happens
to be on duty when the inmate arrives.
Follow-up evaluations
No matter who conducts screening for mental health
service needs, it will be necessary to provide more exten-
sive and detailed evaluations for those inmates identified
as potentially in need of mental health services. These
examinations must be timely and responsive to specific
issues raised during the screening, and must result in
treatment recommendations that are practical within the
correctional setting.
Since psychiatrists are difficult to recruit, and are
a great deal more expensive than other mental health
providers, it makes sense to have these ‘second-level’
follow-up evaluations routinely conducted by psycholo-
gists, social workers, or psychiatric nurses with advanced
degrees. However, as these evaluations will be primarily
diagnostic in nature, they will optimally be conducted
by at least master’s-level staff with training in psycho-
pathology (Dvoskin 1989).
It is important to limit these evaluations to issues that
have immediate and feasible treatment implications.
Given the generally limited treatment resources in cor-
rectional settings, full-scale psychological test batteries
should be limited to inmates whose symptoms raise
diagnostic questions that can only be answered by
psychological testing (Dvoskin 1989).4 For inmates who
appear to require psychiatric services such as psychotropic
medication, a referral to the psychiatrist will then be in
order. Of course, in cases where a detainee enters the jail
with psychotropic medication, or a long history of such
treatment, it may be cost-effective to bypass this step and
have the person referred directly to a psychiatrist.
It is important to have some capacity for the emer-
gency administration of medication during weekends
and nights. On-call psychiatrists may provide telephone
consultation with on-site non-psychiatric physicians, regis-
tered nurses, or physician’s assistants. Twenty-four-hour
on-site psychiatric availability is a luxury likely to be
found only in a few very large and well-funded settings.
4
There are of course other appropriate uses of routine psycho-
logical testing. Standardized tests have been used as part of the
classification process. Various systems have been developed (see,
e.g., Megargee 1976; Edinger, Reuterfors, and Logue 1982) that uti-
lize computer-scored psychological tests such as the Minnesota
Multiphasic Personality Inventory (MMPI) to make security and pro-
gram classification decisions. Standardized testing may also prove
useful in furthering research on the mental health need of inmates
and detainees. It is not suggested that the use of psychological test
batteries as a part of a component psychological assessment has no
value. However, in the real world of inadequate resources, it is most
unlikely that any jail would have enough psychologists to provide
time-consuming clinically administered batteries to more than a
small fraction of patients needing follow-up evaluation.
 The structure of correctional mental health services 493

In smaller jurisdictions, mobile crisis teams from the local managers benefit inmates during their period of incar-
community mental health provider or nearby general ceration, as well as serving an essential role in the dis-
hospital emergency rooms may be able to provide services charge planning process. For inmates who are confused
at the jail. and anxious, regular and surprisingly brief visits can pro-
vide reassurance that the inmate has not been psychologic-
ally abandoned. Often, the simple provision of accurate
Psychotropic medications
information about the criminal justice process can relieve
a tremendous amount of anxiety and need not always be
Psychiatrists who work in correctional settings must be
supplied by mental health professionals.
aware of all of the usual issues surrounding emergency
Within the correctional setting, stressors may build
psychiatry (e.g., Anderson, Kuelmle, and Catanzano
up in the absence of supportive services. It therefore is
1976; Dubin 1988; Salzman et al. 1986). There are several
important periodically to ‘check in’ with identified
other considerations that are especially or even uniquely
psychologically vulnerable and mentally ill inmates
important in dealing with inmates who are being treated
even during periods of apparently good adjustment. The
for a psychiatric condition. People who are put in jail are
establishment of a tracking mechanism identifying those
rarely especially compliant. It should therefore not be
inmates who are not receiving active mental health ser-
surprising that inmates may be unwilling to take their
vices, yet have a history of mental illness, can be of great
medication exactly as ordered by physicians (Smith
benefit toward the maintenance of the inmate’s psycho-
1989). Inmates who feel oppressed by the criminal justice
logical fitness. Case managers are ideal providers of such
system often view psychotropic medication ordered
a service. Even annual visits with a case manager will
by an institutional physician as an instrument of that
allow the inmate a sense of connectedness and security,
oppression. Alternately, it is possible that inmates who
while simultaneously providing the mental health depart-
are not suffering from a mental disorder may seek psy-
ment with an opportunity to monitor the inmate’s status.
chotropic medication in hopes of alleviating some of the
These very brief contacts are a worthwhile investment,
situational stresses associated with their incarceration,
especially if they prevent more serious exacerbations of
or in hopes of selling them for profit.
an inmate’s condition, thereby forestalling more exten-
Limitations in psychiatric resources are a significant
sive and costly services. Therefore, the inclusion of case
issue in the provision of psychotropic medications to
management services offers the facility a prophylactic
inmates. Busy physicians may spend an inadequate amount
tool, reducing financial burden, as well as mediating
of time explaining the need for medication, its value to
the potential for crises that disrupt normal facility
the inmates, or what to do about side effects. Moreover,
functioning.
systemic constraints on the flow of information may cre-
Case management is even more effective in linking
ate protracted time periods between an inmate’s initial
inmates to appropriate mental health services upon their
complaint of side effects and his or her appointment
release (Griffin 1990). Prior to discharge, case managers
with a physician. If dosages are not carefully monitored
can play an integral role in the building or nurturing of
and adjusted, the patient may experience a variety of
social supports, such as helping the inmate to contact
unsettling, uncomfortable, and even dangerous side
family or friends. Such collateral contact can be particu-
effects. As a result, correctional nurses need to take spe-
larly helpful toward improving an inmate’s quality of life
cial care when administering medications in the jail to
while incarcerated as well as upon return to the commu-
ensure that the inmates are not ‘cheeking’ medications
nity (Jacoby and Kozie-Peak 1997). Perhaps most import-
to appear compliant or to save for later sale. Minor tran-
antly however, case managers serve as a bridge, linking
quilizers are especially prone to abuse and black market
inmates with providers in the community. Continuity of
sale within the jail, and therefore are often not included
care is critical to appropriate mental health service and
in correctional formularies.
falls well within the venue of case management service.
Finally, at least some time should be devoted to
Even the most impressive correctional mental healthcare
explaining to inmate patients the need for psychotropic
program can be rendered futile if the inmate patient
medication, beyond what may be typically provided for
is not linked with appropriate services after discharge
informed consent. More formal prison-based patient
(Steadman, Morris, and Dennis 1995). Lamb and
education programs, while still comparatively new, have
Weinberger (1998) assert that appropriate implementation
shown an ability to significantly increase inmates’ know-
of mental health services (and use of case managers)
ledge of the symptoms and treatments of schizophrenia
‘would mean tailoring mental health services to meet the
(Melville and Brown 1987).
needs of mentally ill offenders and not treating them as
if they were compliant, cooperative, and in need of
Case management minimum controls.’ Unfortunately, the criminal justice
system is largely unprepared to provide case manage-
Active case management is invaluable, yet frequently ment services to mentally ill offenders upon release
underutilized, in correctional mental healthcare. Case (Lamb and Weinberger 1998).
494 Correctional psychiatry
Crisis intervention
In the correctional setting, psychiatric crises may arise
at any time, and involve virtually any offender. Crisis serv-
ices must be readily accessible at all points during the
intake and incarceration process. Even where the very best
screening and evaluation services are present, it will still
be impossible to identify on admission all of the inmates
who will require psychiatric services during their incar-
ceration or detention. No screen is perfect, and even
‘cutting-edge’ instruments will have some false-negative
errors. Further, certain kinds of psychoses may allow the
inmate to appear, at least temporarily, quite unimpaired
even under stress. It is important to note, however, that
there are a number of reasons why inmates will either be,
or appear to be, psychologically intact upon intake, and
later experience a psychiatric crisis within the jail setting.
Jails and prisons can be extraordinarily stressful envir-
onments. Overcrowding, extremes of cold or heat, noise,
filth, and the fear of assault may all contribute to the psy-
chological deterioration of even the most ‘mentally healthy’
inmate. Jails may be even more distressing than prisons,
since most jail inmates have recently arrived and have a
great deal of uncertainty as to the outcome of their legal
status. For first-time offenders especially, their expect-
ations are likely to be colored by television or movie
dramatizations stressing violence in jails. Perhaps most
upsetting to first-time offenders is the simple truth that
jail inmates are not always very nice to one another.
Together, these various stressors can lead to psychiatric
decompensation at any time during the course of
incarceration.
Another risk factor is any pre-existing psychological
condition that makes a person vulnerable to psychiatric
crisis or mental illness. Family histories of an affective
disorder appear to increase the risk of severe depression,
which could be triggered by the stresses associated with
incarceration. Certain personality disorders, especially
borderline personality disorder, create a variety of risks
for psychiatric crises, including suicide gestures, emo-
tional hyperreactivity, and acute psychoses, especially in
response to being locked up (Metzner et al. 1998).
Administration of psychotropic medications in emer-
gency situations can be dangerous, especially with newly
admitted inmates whose urine and serum blood toxicol-
ogy results are pending. As the incidence of illegal drug
abuse has increased, the likelihood of a psychiatric crisis
being due to illicit drug use has also increased. The safe
prescription of medications in emergencies involving
newly admitted inmates should thus include a physical
examination. Since the time of day will often preclude
such safeguards, many physicians will elect such non-
pharmacological treatment interventions as seclusion or
constant observation to resolve the immediate crisis and
keep the inmate safe until services can be obtained. Other
facilities will elect to utilize local general hospital emer-
gency rooms.
Every jail and police lockup that receives direct admis-
sions from the street must have access to medically super-
vised alcohol and drug detoxification services. However,
this detoxification is primarily medical in nature and is
not a mental health service.5 Consultation services, when
provided by mental health staff to correctional staff, can
vary extensively, from sophisticated suggestions for hand-
ling difficult inmates to simply suggesting a cell change.
The mental health staff must be viewed as supportive of
the correctional staff ’s mission to make the facility safe
for everyone.
Special management precautions in response to psy-
chiatric emergencies include moving the inmate to a dif-
ferent bed location, thereby separating violent inmates
from others, possibly allowing for easier and more fre-
quent observation or closer proximity to nursing or other
services. Often inmates will be put on ‘special watches’
such as constant observation or one-to-one, especially
where suicidal intent is suspected.
The special management precautions are required for
two reasons. Each facility has an overriding obligation to
protect inmates or detainees from foreseeable and pre-
ventable harm. There is also a duty to provide medical or
psychiatric treatment, although the two considerations
will often overlap. In either case, the most important job
in any correctional psychiatric crisis is to ensure the
safety of all of the people who live and work there. Thus,
crisis response is as much the responsibility of correc-
tional staff as it is the mental health staff, even where
24-hour mental health staff is available.
Verbal counseling in crises is not only the least
intrusive intervention available, but often it is the most
effective – especially when the crisis is in response to a
specific event or the novelty of the incarceration itself.
For any inmate, with or without longstanding mental
illnesses, these crises are often a response to fear. Inmates
fear many things, some real and some imagined. Often,
simply providing information, spiking rumors, or offering
support can significantly improve an inmate’s response
to his situation.
As with nearly all jail-based mental health services, it
is imperative that adequate documentation and commu-
nication of crisis responses be maintained. When off-hour
providers are contractors or are from other agencies, it is
imperative that essential aspects of the crisis and actions
taken in response to it be communicated to the mental
health and correctional staff. Likewise, facility correc-
tional and medical staff should, as standard policy, have
a mechanism in place by which they can alert mental
health staff of concerns about a given inmate. For instance,
a third-shift officer might observe idiosyncratic behavior
and should have a routine method of documenting his or
5
Obviously, once detoxification is safely accomplished, assessment
should be made of any need for subsequent mental health service,
but it is worth reiterating that the act of detoxification is a medical
function.

her observations and informing the mental health depart-
ment. Finally, the competent resolution of any crisis must
include some reasonable effort to prevent its recurrence.
While the provision of information itself can be effective,
other steps may include supporting a psychologically
fragile inmate through a crisis, or preventive steps such
as ongoing supportive therapy, skill building (e.g., how to
safely ‘do time’).
Thus, correctional facilities, as a matter of law and
sensible policy, must have some sort of ready access to
crisis services. These services include psychotropic medi-
cation, special watch procedures, psychological or coun-
seling services, detoxification (since drugs may be available
inside the facility), information (such as when the inmate
will get to see a lawyer or receive visits), and consultation
with correctional staff about how to handle problematic
inmates.
Suicide prevention
Although suicide is clearly but one of several avenues
of potential crisis in the correctional setting, its impact
demands special consideration. Suicides in jails and
prisons are often preventable and may exceed general
population rates if a suicide prevention program is not
established. Especially in local correctional facilities,
suicide prevention has received a great deal of attention
(Atlas 1989; Cox and Landsberg 1989; Cox, Landsberg,
and Pavarotti 1989; Haycock 1989; Hayes 1989; O’Leary
1989; Rakis and Monroe 1989; Sherman and Morschauser
1989). In brief, research has shown that the period of
greatest vulnerability is during the first 8 hours of
incarceration, which may well occur during the evenings
or weekends when no clinical professionals are present.
Despite a dramatic increase in jail suicides across the nation
during the past few years, a comprehensive statewide
program in New York seems to have enabled sheriff and
police departments actually to reduce suicides (Cox,
Landsberg, and Pavarotti 1989). This state-funded pro-
gram is a simple and locally implemented scheme of staff
training and procedure development for identifying and
managing inmates at high risk of suicide, and is described
in greater detail in Chapter 51.
The results of the New York program have been impres-
sive. In upstate counties, for example, despite increasing
admissions, censuses, and overcrowding, jail and lockup
suicides dropped from a high of thirty during the year
prior to the program’s inception in 1985 to successive
years of twenty-five, sixteen, eight, and only five in 1989
(New York State Commission of Correction 1989).
As will be discussed in a subsequent section, active
training and involvement of correctional staff is an
essential component of correctional mental health. This
tenet is especially true of suicide prevention. All staff,
administrative and/or security, that have contact with
inmates should undergo specific training in suicide risk
The structure of correctional mental health services 495
assessment and intervention. Although the most com-
mon recourse for correctional staff will be to alert men-
tal health personnel about an at-risk inmate, it is vital
that they are at least cognizant of both risk factors and
intervention strategies in the event that they become
involved in a suicidal crisis situation. Laypersons without
mental health training may harbor false beliefs regarding
suicide potential. For example, many people wrongly
believe that a person who is truly suicidal would never
talk about it. Dispelling myths about suicide, and adopt-
ing an all-inclusive training policy for correctional per-
sonnel, can have a substantial impact on the psychological
well-being of staff and inmates alike.
External hospitalization
Although access to hospitalization for emergency psychi-
atric treatment is essential, it is often unavailable, espe-
cially to smaller jails. The ability to obtain brief psychiatric
inpatient care when necessary is of tremendous import-
ance not only to the inmate requiring the transfer but
also to the other inmates and staff. The goal of emergency
hospitalization is to reduce severe psychiatric symptoms
and stabilize the patient. Follow-up treatment should
continue either in the correctional facility or, if pre-trial
release can be obtained, in the community.
Jails often use inpatient hospitals by transferring the
detainee to an outside psychiatric hospital or ward. How-
ever, some jurisdictions such as San Diego, California
(Meloy 1985), and Westchester County, New York, pro-
vide inpatient treatment within the local jail itself. Prison
systems may house psychiatric inmates (who are unable
to function adequately in the general population) at an
off-site correctional facility whose purpose is to provide
inpatient psychiatric care. Such facilities are ideally staffed
with correctional officers specially trained in mental
health issues, or psychiatric technicians with some correc-
tional training. Regardless of context, or locale, both jail
and prison systems must have access to inpatient psychi-
atric services ranging from brief crisis intervention to
long-term psychiatric hospitalization.
Telemedicine
Telemedicine is essentially the transmission of electronic
information, such as voice data and tele-images, across
geographically distant communication facilities, thereby
allowing for long-distance patient healthcare and/or
diagnosis (Charles 2000). Telemedicine has been used to
enhance treatment options for geographically remote
patients for almost four decades (Stevens et al. 1999).
More recently, however, the rising cost of healthcare,
including mental healthcare, has generated heightened
interest in telemedicine and its promise of increased
accessibility coupled with decreased cost. Technological
advances (Mair and Whitten 2000) and decreasing
496 Correctional psychiatry
implementation expenses (Strode, Gustke, and Allen
1999) have enhanced the appeal of telecommunication as
a viable alternate treatment modality.
Complications surrounding geographic isolation and
limited access to mental health professionals familiar with
the correctional setting may, at times, compromise care for
inmates (Magaletta, Fagan, and Ax 1998). In the correc-
tional setting, access to any extra-institutional healthcare
service (psychiatric or otherwise) often requires extra-
ordinary transportation and security expenses. Through
telemedicine, correctional facilities, frequently located in
remote areas, can minimize costly inmate transport, while
concurrently allowing even the most dangerous inmates
access to services in a secure environment (Charles 2000).
Additionally, when telemedicine allows an inmate more
timely access to psychiatric care, the likelihood of agitation
and volatility may be reduced, thereby creating a more
secure institutional environment for all correctional staff
and inmates (Magaletta, Fagan, and Ax 1998).
Stevens et al. (1999) reported that non-incarcerated
patients and their treating psychiatrists were able to
develop rapport via televideo just as well as when they
were in the same room. Similarly, preliminary data from
the Federal Bureau of Prisons (BOP) telehealth pilot
program indicated that virtually all inmate-patient par-
ticipants, as well as treating psychologists and psychia-
trists, have expressed satisfaction with telehealth services
(Magaletta, Fagan, and Ax 1998). The BOP telemedicine
and telepsychiatry programs have been successful to such
an extent that the Bureau is in the process of implement-
ing telehealth technology system-wide (I. Grossman,
personal communication, August 29, 2000). The Texas
Department of Criminal Justice, Institutional Division,
in conjunction with the University of Texas Medical
Branch and Texas Tech University Correctional Managed
Care organizations, has likewise enjoyed a successful
telemedicine program. The UTMB region telepsychiatry
division alone serves over 200 inmates per month and
has received overwhelmingly positive responses from
inmates and psychiatrists alike (R. Stanfield, personal
communication, August 23, 2000; P. Nathan, personal
communication, September 7, 2000).
Despite clear benefits associated with these techno-
logical programs, the advancement of telepsychiatry and
psychology will be accompanied by several ethical and
professional issues that must be examined and addressed
by sound researchers, licensing boards, and by updating
standards of practice.
PSYCHOLOGICAL THERAPIES
Individual therapy
Environmental pressures inherent to the correctional set-
ting can engender mental distress (Lindquist and Lindquist
1997). Even the most mentally healthy inmates may peri-
odically find themselves in need of psychological services
while incarcerated. Often, brief therapeutic contact is
sufficient to alleviate situational stresses and transient
difficulties encountered in the correctional setting. As
previously discussed, case managers or social workers
can be an invaluable resource for inmates in need of
emotional support, information, or assistance with nego-
tiating the daily demands of incarceration. In fact, the
type of ‘therapy’ most valuable to jail inmates is often
provided by staff who lack formal training but who have
a natural ability simply to treat others with dignity and
humanity. Often, jail and prison inmates report that they
were most helped through a crisis by a particular correc-
tional officer or nurse, or even a fellow inmate. However,
for inmates not formally assigned to a mental health
caseload, case managers can serve as the first line of
intervention, referring the inmate onward if more exten-
sive service is warranted. Moreover, for short-stay inmates,
tenure in jail may be an important opportunity for case
managers to ensure appropriate referral to the social
service or mental health service delivery system in the
community.
For more extreme psychiatric crises, intervention
might consist of longer sessions with higher-level mental
health professionals. These sessions should focus on
identifying personal strengths, which will help the inmate
cope with the experience. Often, providing an under-
standing that others have gone through similar crises and
survived can be reassuring. During periods of extreme
psychological stress, a real part of the value of a therapist
or counselor is to be a non-threatening source of com-
pany. It is comforting simply to be listened to, especially
in the middle of what may be perceived as an abusive
experience. Inmates who experienced physical or sexual
abuse or torture as children may experience incarcer-
ation as a reenactment of this trauma (Dvoskin 1990), and
may be especially responsive to such support.
For those inmates suffering from severe mental illnesses,
the immediate focus of therapy is to protect the inmate
from deteriorating in response to the correctional environ-
ment. People with schizophrenia especially seem to have
trouble adapting to environmental change and may require
a great deal of support. One benefit of psychotherapy is to
provide the seriously mentally ill inmate with a touchstone
to aid in reality testing, to avoid withdrawal into psychosis
in response to fear of staff or other inmates.
Group therapy
Group psychotherapy is the most cost-effective method
of mental health treatment in corrections (Metzner et al.
1998). It is an ideal modality for providing much-needed
services to large numbers of inmates despite the com-
mon paucity of resources. Moreover, group therapy ses-
sions may be conducted independently, or co-facilitated

by mental health staff with varying levels of professional
training. Creative and thoughtful matching of mental
health staff expertise with the subject matter of the therapy
group can be of great benefit. For instance, practical and
applied topics, such as anger and stress management, are
ideal material for correctional group work. Utilizing a
staff psychologist (Masters or Doctoral level) in combi-
nation with a social worker or case manager affords par-
ticipants with complementary balance in perspective and
feedback. Alternately, a psychiatric nurse may be the ideal
candidate to run a medication education or life skills
group.
In the correctional setting, group therapy presents
a unique set of challenges for participants and practi-
tioners alike. Particularly when non-doctoral level practi-
tioners facilitate groups, it may be quite useful to engage
in active consultation and supervision processes (Morgan,
Winterowd, and Ferrell 1999). For the participants, con-
fidentiality is often a primary concern. Inmates must be
counseled during pre-participation screening as to the
importance of maintaining confidentiality of disclosures
in the group setting. Other potential problem areas include
security constraints, volatility and possible safety issues,
and scheduling difficulties inherent to an institutional
setting (Metzner et al. 1998).
Substance abuse
As many as 75 per cent of all prisoners can be character-
ized as having a history of alcohol or illicit drug use (U.S.
Department of Justice 1998). The high rate of comorbid-
ity between substance abuse and mental illness (Carey
1989), may be nowhere more apparent than among the
offender population (Abram and Teplin 1991; Edens,
Peters, and Hills 1997; Swartz and Lurigio 1999). Abram
(1990) demonstrated the high prevalence of inmates with
co-occurring disorders, including substance abuse and
depression, most often with antisocial personality disor-
der being the primary syndrome.
For inmates with co-occurring mental health and
substance abuse disorders, accurate diagnosis and
subsequent treatment planning are complex, primarily
as a result of the complicated symptom picture presented
(American Psychiatric Association 2000). Symptoms of
one syndrome often mask those of another, and abuse
of alcohol and other drugs can exacerbate psychiatric
symptoms and even bring about psychotic episodes that
may persist after intoxication subsides. The unfortunate
result is that the presence of co-occurring disorder is
often missed during the screening process (Edens, Peters,
and Hills 1997).
Indeed, these co-occurring disorders are a growing
concern among virtually all segments of the mental
health system. The needs of the multiply disordered popu-
lation continue to rise and clearly must be addressed
(Abram and Teplin 1991). The greater the relevance of
The structure of correctional mental health services 497
substance abuse in an inmate’s criminal background, the
more important it is to identify and treat the problem,
and to continue services upon release (Rice and Harris
1997). However, despite a growing number of treatment
options, correctional facilities do not appear to have kept
up with the demand for services (Metzner et al. 1998;
Swartz and Lurigio 1999). Toward the goal of improving
treatment programming, the American Psychiatric Asso-
ciation (2000) offers the following strategies to address
the issue of co-disorders in the correctional setting:
1 Integration of substance abuse and mental health
treatment.
2 Treatment of each disorder as primary, while appreci-
ating potential interactions.
3 Comprehensive assessment and consultation, focused
on individualized planning for treatment of psycho-
social issues and skill development.
4 Cautious use of psychotropic medication.
5 Context-specific interventions.
6 Extension of treatment services into the community.
Abram (1990) concluded, ‘Intervention programs aimed
at substance abusers or (persons with depression) which
do not address the elements necessary for treating
co-occurring character disorders may have a minimal
impact on either the detainee or the crime rates’ (see also
Mirsky 1988). Timely, comprehensive and integrated treat-
ment of co-occurring disorders is essential toward the goal
of ultimately disrupting the offense and criminalization
cycle so common in this population.
STAFF TRAINING AND CONSULTATION
‘One of the biggest barriers to care for offenders is the
mutual distrust that exists between mental health providers
and the community correctional system’ (Roskes and
Feldman 1999, p. 1615). Ongoing communication between
mental health and correctional staff is an essential fea-
ture of effective treatment and intervention programs.
Mentally ill offenders present a unique set of concerns in
the correctional setting, and management difficulties
may arise when correctional officers receive minimal or
insufficient training about mental health issues (Versey
et al. 1997).
While screening is essential to identify inmates and
detainees in need of clinical attention upon arrival, their
subsequent mental health depends in large part on the
ability of correctional officers to identify inmates in
psychiatric distress and make appropriate referrals. It is
therefore important to provide officers with basic train-
ing in identifying some of the signs of emotional dis-
turbances, in addition to training the officers how to
convey their observations to clinicians. With the well-
documented rise in the number of mentally ill inmates
nationwide, correctional staff are increasingly likely to be
498 Correctional psychiatry

confronted with issues surrounding mental illness in the among correctional line staff (Dembo, Williams, and
course of their daily work.6 Stafford 1986–87). Employing an open-door policy for
Ideally, all new employee orientation processes will correctional staff, providing literature on stress manage-
include a mental health component, presented by a mem- ment, and/or offering consultation and referral services,
ber of the mental health staff. This training is certainly allow officers an avenue of recourse when work stress
not meant to make diagnosticians of correctional offi- becomes overwhelming. On the other hand, providing
cers, although correctional officers can supplement the mental health services to fellow employees is not recom-
efforts of clinicians by learning to assist inmates in cop- mended, due to the high likelihood of conflicting rela-
ing with the everyday stresses of incarceration (Lombardo tionships. Essentially, all persons who live and work in a
1985). As has been discussed elsewhere in this chapter, correctional facility are faced with similar daily stresses
staff training can be beneficial for all parties, particularly in terms of danger, noise, temperature, and the like.
in facilitating the early recognition of psychiatric decom- Extreme stress in officers may inherently compromise
pensation, suicide risk, and crisis intervention. Perhaps officer–inmate relations, in turn leading to exacerbation
the most influential feature of facility-wide staff training, of inmates’ psychological issues. Once again, open and
however, is an understanding of how to access available active discourse, and simple human support may be among
mental health resources when they are needed. the most vital components of a successful program.
The importance of maintaining an open discourse and
rapport between mental health and correctional staff can-
not be overstated. The development of a trusting working SPECIAL HOUSING AND MANAGEMENT
relationship with officers allows mental health profession- OPTIONS
als the opportunity to offer opinions and/or suggestions
that may diffuse potential psychiatric crises, thereby saving
The most common reason for referral of an inmate to
precious time, energy, and resources. Consultation
mental health services is disruptive or violent behavior,
between security and mental health staff will often revolve
either toward self or others. Frequently, mental health
around the correctional management of inmates or
staff will be asked to make a judgment about the level of
detainees (Brodsky and Epstein 1982). A simple decision
supervision required to keep the inmate and others safe.
to separate two inmates can often prevent a dangerous
Alternatives include transfer to a psychiatric facility,
assault or a psychiatric crisis, and administrators who
one-to-one or constant observation status, movement to
learn to trust their clinical staff come to value advice in
a safer or more isolated cell, or movement to a cell nearer
such decisions. Other common topics of consultation
to the observation post maintained by staff.
include, but are not limited to, assignment to appropriate
Other creative approaches include the use of multibed
housing or work detail, and appropriateness for various
dormitories for suicidal inmates. Company can help alle-
facility programs or educational opportunities.
viate depression, and inmates who are ambivalent about
While mental health staff have much to offer security
their own suicidality may watch each other far more dili-
personnel in terms of consultation and information shar-
gently than staff. Also, it is easier to watch a group of
ing, the benefits of communication are far from unilateral.
people in one room than in individual rooms.
Ensuring correctional personnel that their opinions and
It is important to be realistic. It is unfair and clinically
observations are meaningful and important, and wel-
inappropriate to order a 5-minute watch when the clin-
comed by mental health staff, allows for virtually constant
ician knows there are inadequate staff to perform it.
observation of inmate patients. Mental health staff are in
These orders are perceived by staff as an attempt by clin-
direct contact with inmates for only a very brief period of
icians to shift responsibility to less well-paid correctional
time. Even those inmates participating in frequent therapy
staff. By working together, it is usually possible to work
sessions still spend the vast majority of their days under
out an arrangement that is both reasonable and clinically
the watch of correctional staff. Officers who observe
appropriate. For example, an order for constant observa-
and/or work with inmates on a daily basis often become
tion will require three staff to observe three inmates in
very familiar with a given inmate’s regular presentation.
adjoining cells. An order worded ‘observe every minute,’
Therefore, officers are likely candidates to note subtle or
on the other hand, would allow one officer to walk back
progressive deterioration in an inmate’s functioning.
and forth, and observe all three inmates quite frequently.
Allowing officers an opportunity to comfortably inform
mental health staff of their concerns about an inmate is an
effective method of heading off potential crisis.
SPECIAL-NEEDS INMATES
Finally, in addition to treating inmates, mental health
professionals can also help to reduce job-related stress
Minorities
6
Sowers, Thompson, and Mullins (1999) provide an excellent mental For some ethnic minorities and non-English-speaking
health resource for correctional officers. inmates, jails can be frightening and oppressive places.

For example, Foster (1988) reports that traditional
psychiatric approaches may not work well with Native
Americans in the federal prison system. Similarly, Black
and Hispanic people in jail are typically less often served
by the mental health system (Steadman, Holobean, and
Dvoskin 1991). This phenomenon may reflect an unwill-
ingness to seek help from predominantly white providers,
but may also reflect subtle and even unintentional racism
among those same providers. Toch, Adams, and Greene
(1987) found a number of ethnic differences in prison
infractions, and concluded that subcultural and psycho-
logical predispositions may converge to produce prison
adjustment problems.
Women
Female detainees may have a variety of special problems
in adapting to correctional settings (Sobel 1980). These
include the possibility of pre-existing pregnancies, which
require prenatal medical care, as well as recent mothers
whose forced separation from their infant children can
contribute to severe postpartum depression or even
psychosis (see, e.g., McGaha 1986). Further, many more
women than men are custodial parents at the time of
their incarceration, often causing severe anxiety over the
welfare of their children.
For some women, being locked up in a very small
space by intimidating male authority figures can be fright-
eningly reminiscent of childhood experiences. For female
inmates, especially those who have survived traumas,
being strip-searched and showering under observation
can seem abusive.7 Incarcerated females in New York fre-
quently reported long histories of sexual violence at the
hands of fathers, husbands, boyfriends, and strangers
(Browne 1987). This abuse is often directly linked to the
instant offense, as in the case of women who kill abusive
spouses to protect themselves or their children.
Older inmates
The number of older inmates has increased rapidly over
the past decade (Metzner et al. 1998). In the correctional
context, due to histories of poor healthcare and multiple
traumatic injuries, it has been suggested that age 50 years
(rather than 65 as is the general population) can be con-
sidered a useful criterion for identifying geriatric inmates
(American Psychiatric Association 2000). Generally speak-
ing, the offender population is likely to have conducted
their lives in a manner less conducive to good phys-
ical health, thereby lowering the threshold for common
7
Male victims of child sexual or physical abuse, as well as other
crime victims and combat veterans, may also encounter symptoms
of posttraumatic stress disorder while in jail or prison. Therefore,
the discussion of trauma and abuse should not be interpreted as
gender-specific.
The structure of correctional mental health services 499
ailments associated with aging. The elderly inmate is
subject to the normal stresses of growing old, along with
numerous exacerbating factors such as physical vulner-
ability to other inmates, estrangement or isolation, and a
greater likelihood that they will die behind bars (American
Psychiatric Association 2000). As this subset of incarcer-
ated offender continues to grow, so too will the incidence
of age-related psychiatric and medical disorders. Correc-
tional mental health professionals should be aware of, and
plan for, the special needs of the incarcerated elderly.
Physical disabilities
Regardless of age, inmates – much like the general popu-
lation – present with myriad medical and physical dis-
abilities. Mental health service providers must be mindful
of the special challenges posed to inmates who are
physically disabled, deaf, or blind. This population may
be especially vulnerable in a correctional setting. In addi-
tion to predatory peers, the occupational and recreational
opportunities may be limited, exacerbating the normal
stresses of incarceration.
CORRECTIONAL HEALTHCARE STANDARDS
Numerous sets of standards and guidelines for cor-
rectional healthcare programs have been promulgated
by national organizations such as the American Associ-
ation of Correctional Psychologists (1999), American Bar
Association (1985), American Correctional Association
(1990), American Nurses’ Association (1985), American
Psychiatric Association (2000), American Public Health
Association (Dubler 1986), National Commission on
Correctional Health Care (1996, 1997, 1999), National
Institute of Corrections (Anno 1991), and the United
Nations (1975). There is a clear trend that the various
state Departments of Correction (DOC) are attempting
to conform to some national set of standards (Hayes
1989; Metzner, Fryer, and Usery 1990; Metzner 1993).
The most current and widely referenced standards
and/or guidelines for correctional mental health services
have been published by the American Psychiatric Asso-
ciation (APA) (2000) and the National Commission on
Correctional Health Care (NCCHC) (1996, 1997, 1999).
The NCCHC evolved from a program within the American
Medical Association that published its first healthcare
standards for prisons and jails in 1979. The NCCHC
standards focus predominantly on general healthcare
issues, although they have increased their focus on men-
tal health issues in recent years (NCCHC 1999). The
guidelines developed by the APA task force, which assume
compliance with the NCCHC standards, provide more
specificity relevant to mental health services.
The American Correctional Association (ACA),
through an annual Standards Supplement (American
500 Correctional psychiatry
Correctional Association 2000), has significantly improved
recommendations relevant to health services in correc-
tional facilities. Although the ACA standards are less than
comprehensive, they are to be applauded for current
efforts to upgrade them. The ACA is in the process of
developing performance based standards that will, hope-
fully, expand the current (American Correctional Associ-
ation 1989; American Correctional Association 2000)
recommendations pertinent to healthcare standards. The
ACA project appears to be similar in scope to another
pilot project, involving thirty-two facilities across the
United States, established by the Office of Juvenile Justice
and Delinquency Prevention (OJJDP) in cooperation the
Council of Juvenile Correctional Administrators (CJCA).
The OJJDP formulated twenty-two performance-based
standards that include the areas of health and mental
health, which are being tested in their pilot program (see
www. Performance-standards.org/contact.htm).
It is beyond the scope of this chapter to compare the
various national standards and guidelines. Such a com-
parison has been carried out by Metzner (1993) and Cohen
(1998). This section will highlight common areas that are
found in these national guidelines with brief commen-
tary relevant to particularly difficult issues.
Guidelines provide a structure for correctional mental
health systems by requiring the development of written
policies and procedures that are to be reviewed/revised
at least annually. They should include, but are not limited
to, descriptions of the following characteristics of the
mental health system:
• mission and goals;
• administrative structure;
• staffing (i.e., personnel and training);
• reliable and valid methods for identifying and track-
ing inmates with severe mental illness (best done via a
computerized management information system);
• availability of treatment programs;
• involuntary treatment including the use of seclusion,
restraints, forced medications, and involuntary
hospitalization;
• other medical-legal issues such as informed con-
sent, right to refuse medications, and record release
authorizations;
• limits of confidentiality during assessment evaluations
and/or treatment sessions with relevant exceptions
noted;
• mental health record requirements;
• quality improvement plan;
• training of mental health staff regarding security issues;
• training of correctional staff concerning mental health
issues; and
• research protocols.
The APA guidelines recommend that the fundamental
policy goal for correctional mental healthcare is to pro-
vide the same level of mental health services to each
patient in the criminal justice center that should be avail-
able in the community.
APA and NCCHC both support a correctional health-
care system that integrates the medical, mental health,
and dental systems under a central healthcare authority
(at the DOC central office level for prison systems).
However, it is clear that a variety of different administra-
tive models are effective, depending on a variety of fac-
tors, including the size and type of correctional population
to be served. The importance of establishing medical
autonomy relative to clinical decisions (i.e., not comprom-
ised by security reasons) and having regular adminis-
trative meetings between the health care authority and
the warden, sheriff, or official legally responsible for the
correctional facility is emphasized by these standards.
The NCCHC recommends that staffing levels include
a sufficient number of health services staff of varying types
to assure timely inmate access to evaluation and treat-
ment consistent with contemporary standards of care.
The APA recognizes the importance of a multidiscipli-
nary mental health staff. The need for adequate staffing
by psychiatrists is also emphasized due to the unique
importance of psychotropic medication as a treatment
modality. The APA suggests that in jails, for every 75–100
inmates with serious mental illnesses who are receiving
psychotropic medications, there be one full-time psychi-
atrist or equivalent. In prisons, with fewer admissions,
the caseload of each full-time psychiatrist equivalent
can rise to a maximum of 150 patients on psychotropic
medications.
The APA recommends three levels of mental health
screening for purposes of identifying newly admitted per-
sons to the correctional facility:
• Receiving screening, which is frequently performed by
trained custody staff upon booking, is a process
designed to insure that every newly arrived person
who may require mental health evaluation is appro-
priately referred and placed in the proper living
environment.
• Intake mental health screening is performed by appro-
priately trained healthcare staff as part of the compre-
hensive medical evaluation provided to every inmate
entering a correctional system.
• Mental health evaluation is performed by mental
health staff in response to a referral from the screen-
ing process, other staff, or by self-referral.
The APA guidelines define mental health treatment as
the use of a variety of mental health therapies, including
biological, psychological, and social. Mental health treat-
ment is described as occurring in a number of different
settings, including:
• acute care (e.g., crisis intervention, infirmary care);
• longer-term care;
• transitional care (e.g., residential treatment within the
correctional facility);

• outpatient treatment; and
• inpatient hospital treatment.
Program priorities described by the APA include recog-
nizing and providing access to treatment for each inmate
with serious mental illness and consulting with other
healthcare staff and correctional staff. Both the NCCHC
and the APA discuss the importance of adequate dis-
charge planning, which has also recently been the focus
of class action litigation in correctional systems.
The NCCHC standards require regular review of
inmates placed in segregation units for purposes of deter-
mining any medical contraindication for such placements
and assuring reasonable access to needed healthcare. The
APA guidelines expand these recommendations to include
regular rounds by qualified mental health clinicians in all
segregation housing units.
Compliance with the guidelines recommended by the
APA task force report and the NCCHC standards will help
ensure that the correctional mental health system is able
to obtain necessary resources in order to provide adequate
mental health services to the inmate population.
SUMMARY AND CONCLUSIONS
Jails and prisons are saturated with human service need,
and the resources will never be adequate. Thus, adminis-
trators must take into account which services are most
costly and sparse and use these resources judiciously.
While prisons require a broad array of ‘community’
mental health services, in jails and lockups, resources
must be focused on short-term crisis services designed
to identify, protect, and treat those inmates who are most
vulnerable to suicide, injury, or severe psychological dis-
tress. The boundaries between the mental health and
criminal justice systems are rarely clear (Dvoskin and
Patterson 1998). Nevertheless, each setting and discipline
must focus on the necessary interface of services that
relate to its population and mission. To this end, active
interdisciplinary discourse and cooperation are essential
to maintaining the integrity and goals of the mental
health and criminal justice systems. This chapter outlines
the basic legal requirements for correctional mental health,
provides an overview of effective treatment delivery, and
proposes a structure for meeting those requirements in a
cost-effective manner. Above all, resources must be used
efficiently, so that each inmate has timely access to the
essential services that the law and human decency require.
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Administrative and staffing problems for
psychiatric services in correctional and
forensic settings
ROBERT T.M. PHILLIPS AND CAROL CAPLAN
DEFINING THE PROBLEMS
Persons, both mentally ill and who are believed to have
committed criminal acts (or have committed criminal
acts and are believed to be mentally ill) have been
enmeshed historically in a complex pattern of relation-
ships and movement between mental health facilities,
state correctional facilities, courts, local correctional cen-
ters, and ultimately, the mental health system.
There are various statutory mechanisms under which
an ‘offender’ may enter a state’s mental health service sys-
tem. Each of these mechanisms and the types of services
they require are generally guided by statute. The breadth
and complexity of the statutes relate to the fact that the
criminal justice system itself is complex and not always
consistent in its determination of how, and in what man-
ner, mental health services should be provided or required
for an offender, regardless of the state in question. Literally,
the mental health system may be asked to intervene any-
where in the ad judicatory process, with different statu-
tory requirements determining both the ‘locus’ and the
‘focus’ of care.
A state’s department of mental health often assumes
the lead responsibility for its forensic population, but
does not control critical aspects of the system, such as
care of patients while in correctional facilities, and the
movement of offenders into and out of various mental
health services. In practice, forensic patients in a depart-
ment of mental health can flow through a variety of its
facilities, whereas the treatment of mentally ill offenders
in correctional settings tends to be a more static process.
In many states the department of correction is respon-
sible for a large number of dangerous and mentally ill
persons. Mentally ill offenders often are first contacted
by the mental health system through community-based
50
competency evaluations that may occur in correctional
centers or court clinic offices if the offender is out on
bond. In some states correctional centers often do not
have sophisticated mental health treatment services of
their own but may provide some care in the case of
potentially suicidal inmates. In these instances, mentally
ill offenders are routinely transferred between the mental
health and the correctional system. In other states, the
department of correction is responsible for the manage-
ment of the forensic patient and is quite capable of pro-
viding mental health services within its own system.
The state departments of correction have a responsi-
bility to maintain the custody of prisoners in a humane
environment. Correctional institutions also have an obli-
gation to provide necessary healthcare to prisoners in
their custody. Healthcare clearly extends beyond physical
health and includes the mental health of the incarcerated
population (Bowring v. Godwin 1977). The standard of
care provided in American jails and prisons has emerged
from federal case law involving prisoners’ claims of viola-
tion of constitutional rights to freedom from cruel and
unusual punishment guaranteed by the Eighth Amend-
ment. This standard, defined as ‘the absence of deliberate
indifference,’ remains a subject of great controversy within
the field due to its apparent dichotomy with the concept
of ‘quality clinical care.’ Nonetheless, in Estelle v. Gamble
(1976) the U.S. Supreme Court found that if correctional
institutions do not demonstrate deliberate indifference to
the healthcare needs of inmates, no valid claim of med-
ical mistreatment under the Eighth Amendment exists.
Given this responsibility on the part of correctional
authorities, and in light of such court rulings, mentally ill
offenders have a significant impact on the management
and fiscal resources of correctional budgets. Overcrowding,
inmate violence, deteriorating environmental conditions,
506 Correctional psychiatry
and lack of physical and mental healthcare have led to
class action litigation resulting in numerous states oper-
ating under court order to provide improved clinical care.
The increased incidence of acquired immune deficiency
syndrome (AIDS), tuberculosis, and syphilis have further
compounded this problem (Jones 1991).
There appears to be little consensus on the most
appropriate arrangement for delivering services to men-
tally disordered inmates (Steadman et al. 1982). Steadman’s
survey revealed that sixteen states transferred most of
their mentally disordered inmates (at least 75 per cent)
into mental facilities or units administered by the state
department of correction; twenty-eight states transferred
the majority into hospitals or units run by the state
department of mental health; and six states utilized a
combination of correctional and mental health units.
Perhaps the lack of consensus among the states
regarding service delivery models for mentally disordered
inmates reflects, in part, a lack of empirical data. There
are no data regarding which service delivery arrangement
is optimal for both inmates and facilities, what such an
arrangement might look like, and under what circum-
stances one arrangement is to be preferred over others. As
prison populations climb, as the number of beds in state
mental hospitals continues to be limited, and as a legal
right to adequate health and mental health treatment is
confirmed by the courts, more information and resources
are needed to facilitate the development of appropriate
programs for mentally disordered inmates (Giampa 1990).
The definition of mental health services needs for cor-
rectional inmates extends beyond traditional concepts
of acute inpatient care into two broad categories: (i) per-
sons who would be outpatients but are incarcerated; and
(ii) persons who are involved with the criminal justice
system but are living in the community.
Incarcerated outpatients are those prisoners who are
receiving services while in the jails and prisons of the
nation. These services range from visits from local men-
tal health providers, to transportation to local mental
health facilities, to a fully staffed mental health unit within
a correctional facility. These services also would include
pre-trial services for those inmates who have been referred
by the courts for evaluation of criminal competence and
criminal responsibility, as well as pre-parole, pre-sentence,
and prison diversion services for those who may be given
the alternative of receiving mental health treatment in
the community rather than in a correctional setting.
Persons who are living in the community rather
than in correctional settings comprise the other group
involved in the forensic system who are in need of men-
tal healthcare. These persons may include parolees and
probationers who live in supervised homes, their own
homes, or elsewhere in the community and as a condi-
tion of parole or probation are required to receive
mental health services. These services also include pre-
trial services to inmates who are released on their own
recognizance or bond status awaiting trial. The need for
evaluative services varies depending on the state; the need
for consistent mental health follow-up for probationers
and parolees is an essential part of the re-integration of
the inmate into the community (Patterson, R.F., personal
communication).
STAFFING CONCERNS
Direct-care staff working in correctional and forensic
settings are faced with the challenge of balancing con-
flicting goals and role functions. They are expected to
provide holistic care to patients in the context of a thera-
peutic milieu while attending to security concerns. The
special requirements of care for selected patient groups
such as violent patients, insanity acquittees, and female
patients complicate the provision of care (Nelson and
Berger 1988). These factors must be considered when
staffing facilities for mentally ill offenders, whether they
are hospitalized in a freestanding forensic facility, a
forensic unit in a general psychiatric hospital, a general
psychiatric unit, or a correctional institution.
The unique clinical and social history of the mentally
ill offender (or the civil patient hospitalized in a forensic
setting) creates the need for increased staffing to contain
violent and aggressive behavior. Offenders who have
demonstrated their potential for violent behavior prior
to admission for treatment should be considered high-
risk patients. Strategies for containment of violence
should include early intervention, prevention, and
de-escalation, and should support well-defined emer-
gency response procedures. The actual physical restraint
of a patient is a potentially dangerous procedure for both
patient and staff. Once placed in mechanical restraints or
seclusion, the patient must be closely monitored for
behavioral and physiologic changes. Particularly impul-
sive or unstable patients may require special monitoring
or treatment plans such as one-to-one observation in
order to contain violent behaviors. Such interventions
are expensive highly staff-intensive efforts.
Additional staff resources may be needed for reasons
other than containment of overt violence. When prison-
ers are hospitalized in the mental health system for psychi-
atric care, they may disrupt the therapeutic program and
manipulate or victimize lower-functioning or regressed
patients. Conversely, mentally ill patients treated in cor-
rectional settings are often victimized by other inmates.
A study comparing civil and criminal patients at four
state hospitals in Ohio following legislation allowing
criminal patients to be committed to civil psychiatric
hospitals found significant differences in their behaviors
(Beran and Hotz 1984). This study found substantial
agreement among staff members that forensic patients
frighten, worry, and manipulate staff more than civil
 Administrative and staffing problems for psychiatric services in correctional and forensic settings 507
patients, although civil patients tend to be more phys-
ically threatening and dangerous.
Staff rotation presents another dilemma for the
administrator. Direct-care staff are intimately familiar with
patient behavior. Their observations and assessments are
important factors in providing comprehensive treatment
and care. When line staff are assigned to one treatment
unit or team, they become familiar with the unit or
team’s mission, as well as with the patients and the rou-
tine. It is wise, therefore, to include direct-care staff in the
planning of care and the establishment of unit routines.
Moreover, when direct-care staff have an active part in
the planning phase, they understand the rationale for
treatment and are better able to follow through with a
plan of care.
This fact presents a dilemma for the administrator
when resources are limited. In order to adequately staff
the hospital or clinical facility, it is often necessary to
rotate staff as required by clinical needs. The staff mem-
ber who is assigned temporarily to a unit is faced with
unfamiliar patients and routines. Because it is not pos-
sible to learn all the subtleties of the unit routine or the
quirks of individual patients, the staff member focuses
on the minimum requirements of maintaining safety
and performing tasks. The regularly assigned staff must
spend time orienting the rotated staff member, which
further reduces time spent in caring for patients. The
result is a focus on minimum safety standards and tasks
with treatment goals viewed as secondary or unnecessary.
This scenario is further complicated by the fact that
nursing staff cover the hospital seven days a week and
may be off-duty during the traditional Monday through
Friday workweek in order to be on duty on weekends.
Consequently, an individual staff member may be absent
from his or her duty station for multiple days in a row if
days off are combined with rotation days. Staffing coord-
inators should be alert to staffing patterns and work to
minimize rotations. When a long-term need for extra staff
exists on a unit, efforts should be made to reassign staff
on a temporary basis to minimize the disruption of mul-
tiple rotating staff. This can be done on a voluntary basis
or by some other agreed-upon method such as seniority.
Treatment of insanity acquittees also requires special
staffing. Because of the high visibility of some crimes and
the resulting public pressure for confinement, acquittees
tend to remain in the hospital for extended treatment
and observation beyond what is clinically indicated. As a
result, they are often higher-functioning than other hos-
pitalized patients. Special restrictions may be placed on
their movement within the hospital or in the commu-
nity, thus requiring increased staffing to escort them to
off-ward activities. When these patients are allowed off
the ward without staff escort, they require class assess-
ment of their current mental status and potential for
dangerousness prior to leaving the ward, which requires
evaluation by a staff member who is familiar with the
patient’s current behaviors and history.
BALANCING SECURITY AND TREATMENT
Strict security standards must be agreed upon and main-
tained in order to provide a safe environment for both
patients and staff (Scales, Phillips, and Crysler 1989).
While security officers may be responsible for perimeter
security, direct-care staff generally maintain safety in
patient-care areas. Searches for contraband and weapons
must be carried out on a routine basis. Since weapons can
be easily fashioned from items found on the unit, it is
necessary for staff to inspect all equipment and furniture
kept on the unit, as well as the infrastructure for missing
pieces or damaged areas of the environment. Patients’
personal possessions must also be checked. Additionally,
nursing staff may be required to assist agency security
officers in more thorough search procedures when con-
traband is suspected or found on the unit. These time-
consuming procedures, when carried out frequently,
impact on staffing needs and patient care.
Security and treatment needs must be combined in
such a way as to prevent a ‘guard mentality’ from emerg-
ing as the culture in a therapeutic setting (Maier 1986;
Scales, Phillips, and Crysler 1989). The patients’ history
of violence, current potential for violence, and ability to
manipulate staff or cover psychotic symptomatology are
all factors that tend to trouble staff. Security and safety
measures become paramount in the daily considerations
of care. Forensic nurses have ranked the ability to main-
tain security as the most necessary competency required
in their jobs (Niskala 1986) while recognizing it is also
necessary to provide treatment with dignity to patients
(Phillips 1983).
These factors all combine to influence the direct-care
staff ’s perception of their ability to maintain safety and
security while providing therapeutic care. Direct-line
staff tend to feel most comfortable when staffing levels
are maintained at a low staff-to-patient ratio. Caplan
(1993) found that in a maximum security hospital where
staff-to-patient ratios were maintained between one-to-
three and one-to-four, patients perceived a high level of
staff control of the environment, while staff perceived
they were barely maintaining control. Even these labor-
intensive staffing patterns were perceived by the direct-
care staff as nominally adequate. There tends to be
pressure to maintain a labor-intensive environment, with
continued requests for additional staff to meet treatment
and security needs.
Administrators in the public sector are increasingly
constrained by diminishing resources, and cannot pro-
vide unlimited direct-care staff. It is helpful to establish a
standard staffing pattern with the most intensive pat-
terns allocated to units with the most disturbed patients
and less intensive coverage allocated to units with higher-
functioning patients. These patterns should be estab-
lished based on the clinical needs of the treatment
program. Acuity scales that account for clinical and
508 Correctional psychiatry
security needs might be useful to establish a standardized
pattern. Fixed staff–patient ratios or an established for-
mula weighing patient needs might also be used. Fixed
guidelines should be established to specify when addi-
tional staff are needed or allowed, such as situations in
which a patient requires one-to-one observation or escort
out of the secure unit.
Consideration also should be given to the type of staff
allocated. Ratios of registered nurses to mental health
technicians should be considered. While registered nurses
provide leadership and care based on professional stan-
dards of practice, it may not be possible to staff every
forensic unit with a registered nurse on each shift. Priorities
of care must be established and in some cases it might be
necessary to use licensed practical nurses or non-licensed
technicians under the supervision of a registered nurse to
manage a unit.
It would seem reasonable to assign registered nurses
to wards with the most disturbed or acutely ill patients;
however, it is also necessary to utilize their professional
expertise in assessing patients who are leaving the ward
unescorted, as would be the case on a minimum security
ward where patients are being reintroduced into the com-
munity. It is necessary, at the minimum, to assign a regis-
tered nurse to each ward in order to adequately plan for
the holistic nursing care of each patient. Additionally,
registered nurses provide supervision for non-professional
staff that may help to keep the security–treatment con-
tinuum balanced.
ADMINISTRATIVE DILEMMAS ARISING
FROM THE RIGHT TO REFUSE
TREATMENT
The medical appropriateness of forced treatment, the
government’s interest in forcibly treating a forensic
patient or correctional inmate, and the ensuing fair trial
rights of such treated individuals is a debate that remains
at the interstices of administrative policy, politics, and
precedent. The evolution of forced medication and the
right to refuse treatment have had an impact on forensic
and correctional treatment institutions and practitioners
far beyond the initial considerations of the United States
Supreme Court in Washington v. Harper (1990).
In Harper the court addressed the right of a convicted
and competent prisoner to refuse treatment while it
struggled to balance the defendant’s liberty interests with
legitimate interests of the state. The court considered
whether the involuntary administration of medication to
a prisoner violated the Eighth Amendment’s prohibition
against cruel and unusual punishment, and whether the
prisoner possessed a significant liberty interest in avoid-
ing such unwanted treatment. In holding that the due
process clause permits the state to treat a prison inmate
who has a serious mental illness with antipsychotic drugs
against his will if the inmate is dangerous to himself or
others and the treatment is in the inmate’s medical inter-
ests, the court stressed the institutional concern for secur-
ity and gave deference to policies of correctional facilities.
A patient’s right to refuse psychiatric treatment has
since evolved as a matter of public policy and state statutes.
Historically, voluntary patients have always had the right
to refuse treatment. However, patients committed invol-
untarily did not enjoy the same freedom of choice. In fact,
such considerations were a non-issue in the bygone
humanitarian era of parens patriae commitment criteria.
It was not until the 1970s when commitment criteria
shifted away from caring for the disabled toward insuring
protection from persons who posed a threat of danger-
ousness that such considerations arose. If, in fact, the lat-
ter were now the sole purpose of civil commitment, then
confinement alone would accomplish the goal.
As a matter of due process, an individual’s right to
refuse treatment is argued to be derived from the First
Amendment’s protection of thought and expression,
the Eighth Amendment’s prohibition against cruel and
unusual punishment, the equal protection clause and the
right to privacy, as well as the common law rights to con-
trol what is done to one’s body. The precise scope of this
latter right is neither well defined nor universally agreed
upon by physicians, legal scholars, or medical ethicists.
States have varied in their approach to what can be
categorized as either ‘treatment driven’ or ‘rights driven.’
Treatment-driven models recognize a patient’s interest in
rejecting inappropriate medication but not in refusing
appropriate treatment. Rights-driven models attempt to
minimize the differences between involuntarily commit-
ted patients and other non-committed patients by intro-
ducing a mechanism for independent evaluation of the
patient’s refusal as well as the need for treatment. Although
philosophically divergent, both of these approaches take
on extraordinary valence when being considered not just
for the civil law purpose of treatment but for facilitating
the government’s legitimate interest in bringing a defend-
ant to trial.
For psychiatrists in forensic and correctional settings
this calls into question whether the physicians’ fiduciary
responsibility includes helping patients achieve a suc-
cessful trial outcome when their role is that of caregiver
and not forensic evaluator. Conversely, should physicians
engage in treatment that might compromise their patients’
chances of a successful trial outcome?
What do employees/practitioners do if they believe
the administrative mission or dicta of their institution
compromises their professional ethics?
As a matter of law, defendants who have a psychiatric
disorder are presumed to be competent to stand trial
(unless adjudicated otherwise) whether or not they
require, are receiving, or have received psychotropic drugs,
other medication, or treatment related to their illness.
Even if a decision by a competent patient to stop taking
medication in this context appears irrational, it does not
 Administrative and staffing problems for psychiatric services in correctional and forensic settings 509
necessarily follow that it is the physician’s responsibility
to force treatment over the patient’s objection.
Ethically, the choice to refuse treatment is considered
to be that of the patient and not the physician. The deci-
sion to cease noxious chemotherapy and die with dignity,
the refusal of treatment consistent with religious convic-
tions, and the withholding of life-sustaining medical
interventions are but a few examples of situations where
the physicians’ ultimate duty is to respect the wishes of the
patient and not what they believe to be the ‘right choice.’
When these issues arise amidst legal proceedings,
the boundary is not always so sharply demarcated. Some
courts have accepted the strategic importance of demeanor
and presentation of a witness at trial and have ruled that
the defendant does have a constitutional right to appear
unmedicated. Others have insisted on continuing medi-
cation as a prophylaxis against the defendant becoming
incompetent to stand trial.
From the practitioner’s standpoint, the existence of a
court order instructing treatment may pose an ethical
dilemma that is different from a decision made by a
patient absent a court order. In either scenario, the phys-
ician’s role in assisting a defendant to arrive at an informed
choice regarding whether or not to accept or discontinue
treatment further complicates the perception or reality
of an ethical conflict.
The decision as to whether a competent defendant
should cease medication as a matter of trial strategy is a
legal and not a medical matter. We, as physicians, have no
dog in that fight and should not be looking to purchase
one. The dilemma in which the rights and interests of the
individual and the state are balanced on a fulcrum of
forced medication on an incompetent defendant pose
greater ethical, administrative, and public policy problems
for which distance is not so readily achieved by either
medicine or law.
TREATMENT TO RESTORE COMPETENCE
TO BE EXECUTED
Undoubtedly, the most complicated ethical dilemma
facing practitioners in forensic and correctional settings
is when a physician/employee is asked to treat an indi-
vidual who has been found not competent to be executed
for the express purpose of restoring the individual to
competency for the purpose of execution (Phillips 1996).
This is a unique problem that faces practitioners in state
forensic and correctional institutions who may have lim-
ited options for refusal of this task. Indeed, these individ-
uals who have been found not competent to be executed
are most often severely mentally ill, experiencing acute
psychosis, often manifesting self-destructive behavior,
and posing great potential harm to themselves and
others. Three positions have emerged that represent the
spectrum of opinions held regarding the treatment of
persons deemed incompetent for execution: never treat;
sometimes treat; and always treat (Heilbrun, Radelet,
and Dvoskin 1972; Appelbaum 1990; Bonnie 1990).
Those that espouse the ‘never treat’ philosophy believe
that the relief of suffering is not a sufficient justification
for providing treatment in large measure because such
treatment would allow the infliction of greater harm.
Critics of this position point immediately to the flaw in
such reasoning, suggesting that by not treating one de
facto creates a greater state of harm to the individuals in
that their suffering escalates and they are subject to the
ravages of their mental illness. The ‘sometimes treat’
position, most widely adopted among those engaged in
this debate, believes the treatment should be provided
only when the inmate wants to be treated. While this
position seems most consistent with other ways of
approaching clinical matters within the rubric of informed
consent, by definition it raises the obvious question of
the ability of an incompetent prisoner to give informed
consent for treatment. The law has, however, addressed
such dilemmas outside the capital arena with such docu-
ments as living wills and substituted judgments, includ-
ing next friend determinations. The ‘always treat’ position
functionally disregards the consequence of treatment
by focusing solely on the delivery of clinical service as
the appropriate and singular responsibility of the mental
health practitioner. In this context, there is an adherence
to the belief that the psychiatrist’s primary role as a
physician is to relieve pain and suffering whenever and
wherever it presents itself, and this position absents itself
from the entrapment in the political discussion. This is
the position espoused by the Section of Psychiatry and
Behavioral Sciences of the National Medical Association
inferring that ‘the treatment of a “death row” inmate’s
mental illness does not imply that the treating psych-
iatrist agrees with capital punishment but rather is com-
mitted to the adequate health care of the correctional
population, and realizes the nature of the sentence the
inmate has to serve is a legal issue in the purview of
jurisprudence and not psychiatry’ (National Medical
Association 1986). The Section of Psychiatry and
Behavioral Sciences of the National Medical Association
in their position statement on the role of the psychiatrist
in evaluating and treating death row inmates goes on to
assert that, ‘an inmate facing execution deserves the same
type of psychotherapy that a terminally ill patient deserves,
i.e. psychotherapy designed to work through the psycho-
logical issues everyone grapples with when knowingly
facing death (shock, anger, denial, depression, and accept-
ance). The fact that “death row” inmates would not be
given the opportunity to engage in either psychiatric
and/or religious counseling to prepare for their death is
reprehensible.’ The position of the National Medial
Association essentially is one that presumes the ‘always
treat’ posture is rooted in a commitment towards the
provision of clinical care and the restoring of human
dignity.
510 Correctional psychiatry
It should also be understood that the Section of
Psychiatry and Behavioral Sciences of the National
Medical Association is mindful of the disproportionate
representation of persons of color on death row and their
particular commitment to the service of that population.
These issues, though somewhat tangential to the points
under consideration in our discussion, are worthy of
mention.
The death penalty is the harshest manifestation of dis-
crimination against persons of color in this country. In
all the senior author’s years of experience in conducting
forensic evaluations in capital sentencing proceedings, it
has become clear that the color of one’s skin, the amount
of money one has for an attorney, and the passions of the
moment play a much greater role in determining who
dies than do the circumstances of the crime involved or
the background of the person on trial. There are cur-
rently over 3500 persons confined on death row through-
out the United States. Almost all of them are poor, and a
disproportionate number of them are persons of color.
Racial disparities are particularly evident throughout the
capital punishment system and particularly dispropor-
tionately so in the South. The quality of legal assistance,
or the lack of it, is a critical problem for the poor who
comprise the vast majority of those sentenced to die. The
issues of race and poverty are at play whenever the state
seeks the death penalty. It is likely, then, that these issues
also complicate consciously and unconsciously positions
that are assumed regarding psychiatry’s role in capital
sentencing proceedings and most particularly the role of
psychiatrists in the context of treating persons incompe-
tent for execution.
In the report of the Council on Ethical and Judicial
Affairs of the American Medical Association (CEJA)
regarding ‘Physician Participation in Capital Punishment:
Evaluations of Prisoner Competence to be Executed; Treat-
ment to Restore Competence to be Executed,’ CEJA con-
cluded that it is acceptable for physicians to provide
testimony regarding competence to be executed. ‘Physician
participation in evaluations of a prisoner’s competence
to be executed may be ethical when the physician’s med-
ical opinion is just one aspect of the information taken
into account by the ultimate decision maker, a role that
legally should be assumed by a judge or hearing officers’
(American Medical Association 1995). With regard to the
more complicated issue, when a condemned prisoner has
been declared incompetent to be executed, it is the pos-
ition of the American Medical Association that the phys-
ician ‘should not treat the prisoner to restore competence
unless a commutation order is issued. However, if the
incompetent prisoner is undergoing extreme suffering as
a result of psychosis or any other illness, medical interven-
tion intended to mitigate the level of suffering is ethically
permissible. Reevaluation of the prisoner’s competence
to be executed should be performed by an independent
physician examiner. A physician cannot be compelled
to participate in this evaluative process if it is contrary
to the physician’s personal beliefs’ (American Medical
Association 1995).
The conflict of conscience that arises when psych-
iatrists are engaged in both evaluation and treatment-
related issues of individuals en route to and on death
row, may be likened to the balancing of the principles of
beneficence and non-malfeasance resting on the fulcrum
of one’s personal beliefs. Such an analysis, then, would
render this a discussion of moral acceptability as viewed
by the practitioner rather than ethical conduct as defined
by a profession.
GENDER ISSUES
The treatment of female offenders on forensic wards or
in maximum security hospitals raises specific staffing
concerns. Since fewer female patients are admitted for
treatment, housing is often an issue. If female patients are
admitted to a mixed ward, the gender ratio of patients
may be skewed by a higher proportion of male patients.
Nursing staff will need to take special precautions to
protect the female patients from harassment or sexual
assault by male patients, and also to accommodate other
special needs of the females. If a ward is opened spe-
cifically to house a few female patients, staff minimums
must be maintained, with the result that staff are drawn
from other areas in the hospital. When female patients
are housed on non-forensic units, but are evaluated by
forensic staff, clinicians must travel from one area to
another within the hospital. These issues are less signifi-
cant when treatment units are established within women’s
correctional centers.
Male–female staffing patterns are a sensitive issue for
administrators. Depending on the culture of the institu-
tion, there may be a pressure to hire only large male psy-
chiatric technicians who are capable of physically enforcing
control of violent behavior, or the institution may ignore
gender differences. One study of a maximum security
hospital found that in spite of training in the manage-
ment of violence for all staff, nursing staff may selectively
excuse registered nurses and female psychiatric techni-
cians from the containment of violence (Carmel and
Hunter 1989). Such unofficial behavior may place pressure
on supervisors to staff with gender as a hidden agenda.
Gender should be a consideration in the personal care
of patients. When intimate care is required, it should
be provided by a staff member of the same gender or a
licensed nurse. Staff members of the same gender should
be provided for escorts out of the facility where bath-
room escorts might be needed. Likewise, patients who
need assistance with personal hygiene should receive this
care from a staff member of the same gender or a licensed
professional. In some cases this may require reassign-
ment of staff from their normal duty station. This pro-
cedure may create angry and anxious feelings in the staff
 Administrative and staffing problems for psychiatric services in correctional and forensic settings 511
affected. It is helpful to have a rotation procedure in place
so that reassignments are made on an equitable basis.
Advance orientation to the routines of the new duty
station also helps to decrease staff anxieties.
COMPUTERS AND VIDEO TECHNOLOGY IN
FORENSIC AND CORRECTIONAL SETTINGS
The evolving potential of computer and video technol-
ogy presents both a blessing and a curse to modern foren-
sic and correctional institutions. For example, placement
of patients and inmates can now be easily tracked online.
Management of court scheduling and institutional trans-
fer has greatly streamlined the administrative process.
Staffing matrices are more easily developed and modified
to accommodate changing institutional needs. Videocon-
ferencing capabilities have reduced the need for external
transport, legal visits, and certain court proceedings for
institutions that have kept pace with emerging technology.
How should institutions handle the question of patient
or inmate access to computers or, more specifically, access
to computers connected to the Internet? As institutions
attempt to answer this question it becomes apparent that
the balancing of patient rights and responsibilities with
the security interests of the public and the facility has
become more complicated.
Decisions to limit patient and inmate use of com-
puters in forensic and correctional settings may not with-
stand the test of time or legal challenge because of the
inherent inability to isolate institutional computing
and telecommunications technologies. Furthermore, it is
difficult to imagine any educational programming for
patients or inmates that would not incorporate such
modern technologies in its curriculum.
The challenge for institutional administrators will
be to develop pathways of access for patients and inmates
that employ secure application technologies including
network firewalls, user identification, and external moni-
toring. Whatever advances are made in this area over the
next decade, they will only be successful if the research
and development for forensic and correctional institu-
tions are tempered by a comprehensive understanding of
security treatment risks.
CONCLUSIONS
Jails and prisons are among the most extreme psycho-
logically stressful environments in our society. The unique
stressors associated with mental illness further compound
one’s ability to adapt to such an extreme environment.
Race, ethnicity, and gender are affected by cross-cultural
and sexual transference–countertransference issues,
which negatively impact treatment (Toch, Adams, and
Greene 1987). In this context, mentally ill offenders often
exhibit behaviors that are difficult to tolerate over time.
In addition to violence, these patients may display bizarre
behaviors, including self-mutilation. Character-disordered
patients may be able to manipulate and split staff over
treatment issues. Consequently, staff in either correctional
or mental health settings may experience feelings of anger
and frustration, which if not countered lead to burnout,
decreased productivity, and an increase in the cycle of
violence. It is essential for time to be set aside for staff
to discuss these issues. If an individual staff member is
unable to tolerate the working conditions on a unit, it is
often helpful to offer a temporary reassignment to another
unit to help him or her gain perspective. The exigencies
of ethical and moral dilemmas experienced by practi-
tioners who must force or withhold treatment in various
institutional scenarios serve to complicate administrative
responsibilities and potentially alienate clinicians.
Mentally ill offenders are in need of psychiatric ser-
vices that include early identification, crisis intervention,
acute inpatient psychiatric treatment, and an evolving
continuum of care. Provision of psychiatric service within
or external to the correctional setting itself, including com-
munity support services upon release from the correc-
tional institution (Phillips et al. 1990), may be necessary.
REFERENCES
American Medical Association Council on Ethical and
Judicial Affairs. 1993. Physician participation in
capital punishment. Journal of the American
Medical Association 270, 365–8.
American Medical Association Council on Ethical and
Judicial Affairs. 1995: Physician Participation in
Capital Punishment. CEJA Report 6-A-95. Chicago, IL:
American Medical Association.
Appelbaum, P.S. 1990. The parable of the Forensic
Psychiatrist: ethics and the problem of doing harm.
International Journal of Law and Psychiatry 13,
249–57.
Beran, N.L., Hotz, A.M. 1984. The behavior of mentally
disordered criminals in civil mental hospitals.
Hospital and Community Psychiatry 35, 585–9.
Bonnie, R.J. 1990. Dilemmas in administering the
death penalty: conscientious abstention,
professional ethics and the needs of the legal
system. Law and Human Behavior 14, 67–90.
Bowring v. Godwin, 55 1 F.2d 47 (4th Cir. 1977).
Caplan, C.A. 1993. Nursing staff and patient perception
of the ward atmosphere in a maximum security
forensic hospital. Archives of Psychiatric Nursing
7, 23–9.
Carmel, H., Hunter, M. 1989. Staff injuries from
inpatient violence. Hospital and Community
Psychiatry 40, 41–6.
Estelle v. Gamble, 429 U.S. 97, 105-106 (1976).
512 Correctional psychiatry
Giampa, F.G. 1990: Overview of Correctional Mental
Health Concerns and Program Offerings. State of
Michigan, Department of Corrections.
Heilbrun, K., Radelet, M.L., Dvoskin, J. 1972. The debate
on treating individuals incompetent for execution.
American Journal of Psychiatry 149, 596–605.
Jones, S.T. 1991: Proceedings of the National Conference
on Substance Abuse and the Courts. Washington, DC:
The State Justice Institute, National Center for State
Courts, U.S. Department of Justice.
Maier, G.J. 1986. Relationship security: the dynamics
of keepers and kept. Journal of Forensic Sciences
31, 603–8.
National Medical Association Section on Psychiatry and
the Behavioral Sciences. 1986: Position Statement on
the Role of the Psychiatrist in Evaluating and
Treating “Death Row ” Inmates. Washington, DC:
National Medical Association.
Nelson, S.H., Berger, V.F. 1988. Current issues in state
mental health forensic programs. Bulletin of the
American Academy of Psychiatry and the Law 16, 67–75.
Niskala, H. 1986. Competencies and skills required by
nurses working in forensic areas. Western Journal
of Nursing Research 8, 400–13.
Phillips, M.S. 1983. Forensic psychiatry: nurses’ attitudes
revealed. Dimensions in Health Services 60, 41–3.
Phillips, R.T.M. 1996. The psychiatrist as evaluator:
conflicts and conscience. New York Law School
Law Review 41, 189–99.
Phillips, R.T.M., Patterson, R.F., Petrella, R., Silver, S.,
et al. 1990: Overview of correctional mental health
concerns. Unpublished manuscript. Alexandria, VA:
State Mental Health Forensic Directors Executive
Committee.
Scales, C.L., Phillips, R.T.M., Crysler, D. 1989. Security
aspects of clinical care. American Journal of Forensic
Psychology 7, 49–57.
Steadman, H.L., Monahan, J., Hartstone, E., et al. 1982.
Mentally disordered offenders: a national study of
patients and facilities. Law and Human Behavior
6, 31–8.
Toch, H., Adams, K., Greene, R. 1987. Ethnicity,
disruptiveness, and emotional disorder among prison
inmates. Criminal Justice and Behavior 14.
Washington v. Harper, 110 S. Ct. 1028 (1990).

Issues in the prevention and detection of
suicide potential in correctional facilities
GERALD LANDSBERG AND PAMELA MORSCHAUSER
Since the 1980s, suicide prevention in correctional facil-
ities has come to increasing prominence because cor-
rectional settings (police lockups, jails, and prisons) are
incarcerating significantly higher numbers of high-risk
populations (e.g., people with serious mental illness),
and courts and oversight agencies are demonstrating a
willingness to hold institutions liable for the failure to
prevent suicide. Mental health and correctional facilities
are taking important actions to address this concern.
Yet, despite the progress much still remains to be accom-
plished. As we look forward to further program devel-
opment and training initiatives, we should understand
more clearly the dimensions of the issue and the options
and limitations. The purpose of this chapter is to exam-
ine the problem of suicide in lockups, jails, and prisons,
and to highlight crucial issues to be addressed as we
move forward in our deliberations and plans.
WHY THE HEIGHTENED CONCERN?
Liability is a major ongoing concern to all correctional
institutions and to the governmental agencies that are
responsible for them. Litigation regarding suicide in cus-
tody may occur in federal courts as civil rights action or in
state courts as wrongful death actions. Actions in Federal
Courts constitute the majority of the cases reported
(Cohen 1998). Although Federal courts in recent years have
appeared to be inconsistent in interpreting the criteria of
‘deliberate indifference’ in suicide cases, litigation has con-
tinued in regard to jail and lockup suicides (Cohen 1998;
National Center on Institutions and Alternatives 1999).
Correctional facilities of all types are incarcerating
increasing numbers of high-risk populations, especially
persons with mental illness. Although there is disagree-
ment regarding whether the rate of arrest and incarcer-
ation for persons with mental illness has increased since
51
the initiation of deinstitutionalization, numerous studies
have indicated that there has been a criminalization
of mental illness (Abram and Teplin 1991; Lamb and
Weinberger 1998). Research has indicated that between 5
per cent and 16 per cent of jail populations have a serious
mental illness (Guy et al. 1985; Neighbors 1987; Steadman
et al. 1987; Teplin 1990; Jemelka, Rahman, and Trupin
1993). A recent survey by the U.S. Department of Justice
indicated that 25 per cent of jail inmates reported having
received treatment for emotional or mental health prob-
lems at some time, and 10 per cent of males and 15 per
cent of females reported having been admitted for at
least one night to an inpatient psychiatric facility (Ditton
1999).
Prisons have also seen an increase in the numbers of
prisoners with mental illness and co-occurring disorders.
Research has suggested that, in general, 10–15 per cent
of persons in state prisons have a severe mental illness
(Jemelka, Rahman, and Trupin 1993). At mid-year 1998,
there were an estimated 283 800 inmates with mental
illness incarcerated in United States jails and lockups
(Gillard 1999). Bureau of Justice Statistics (BJS) survey
results indicated that 16 per cent of state prison inmates,
and 7 per cent of federal inmates reported a mental
health condition or an overnight stay in a psychiatric
hospital (Ditton 1999).
Persons with mental illness who are the most likely
to be incarcerated are those with co-occurring disorders.
Abram and Teplin (1991) note that, ‘Mentally ill persons
with co-occurring substance abuse or personality dis-
orders (such as persons with schizophrenia who are alco-
holic) are particularly vulnerable to arrest.’ Interviews
of state prison inmates by the BJS indicated that 59 per
cent of inmates with some mental illness were under the
influence of alcohol or other drugs at the time of the
current offense, and that over 30 per cent of males and
78 per cent of females with mental illness reported a
history of physical or sexual abuse (Ditton 1999).
514 Correctional psychiatry
TYPES OF CORRECTIONAL FACILITIES
A clear description of the three different types of cor-
rectional institutions is critical to our understanding of
correctional suicide.
The detention facility or police lockup is usually oper-
ated by local (municipal) police departments, and usually
detains persons who have been arrested and are awaiting
arraignment. The detention period is brief, usually not
exceeding 48 hours. Lockups tend to be small with one or
two holding cells. Yet Cox et al. (1990) note that lockups
are the most common type of correctional facility, with
more than 12 000 existing in the United States.
Jails are usually operated by counties or large munici-
palities. They provide both pretrial detention and short-
term commitment, usually less than one year. The BJS
indicated that there were more than 4000 jails in the
US in 1997; BJS survey data indicated that in 1996 the
average daily census in these facilities was over 550 000
(Harlow 1998). The admissions to jail for that year were
estimated to be between 10 and 13 million (O’Toole 1999).
BJS data indicate that over half of the jails are quite
small (fewer than twenty-one inmates). However, in
1990, jurisdictions with at least 100 inmates operated 832
jails holding a total of 327 917 inmates, or about 81 per
cent of all U.S. jail inmates (Cohen 1991).
Prisons are operated by state and federal jurisdictions
and house inmates for longer terms of incarceration;
96 per cent of the inmates in prisons have sentences
exceeding one year. On December 31, 1997, there were
in excess of 1 190 000 inmates incarcerated in state
and federal prisons – a 62 per cent increase over the same
date in 1990 (Maguire and Pastore 1997). Prisons
are usually large facilities with capacities in excess of
500 beds.
THE SCOPE OF THE SUICIDE PROBLEM
Prior to discussing the actual extent of the suicide prob-
lem for correctional facilities, it is essential to discuss the
issue of under-reporting. Suicides, in general, tend to be
under-reported. Stigma, shame, and concern for loss of
benefits are among the reasons for under-reporting. With
respect to the under-reporting of lockup and jail sui-
cides, Hayes (1989) cites sensitivity of the subject matter,
fear of litigation, and lack of mandates for reporting as
some reasons for under-reporting. Hayes also cites find-
ings from a comprehensive study in Ohio which estimated
that the number of reported suicides in Ohio’s jails and
detention facilities was understated by about half on offi-
cial suicide reports.
Although there is some disagreement regarding the
methodology utilized (O’Toole 1999), the National Center
for Institutions and Alternatives reported that the rate of
suicide in jails and lockups is approximately nine times
that of the general population (Hayes 1989). A South
Carolina study cited in Hayes (1989) indicated that the
suicide rate for inmates in that police lockup was about
250 times greater than the rate for that state’s general
population. In contrast, the rates of suicide for prisons
are lower than the rate for jails and lockups (Lester 1987).
O’Leary (1989) reported that about four times as many
suicides occurred in lockups and jails as in prisons. Based
on this discussion, it is evident that suicide is a major
problem for police lockups and jails, but a less significant
problem for prisons.
Why this differential? Knowledge of the role of jails
and police lockups is crucial to understanding this dis-
parity in suicide rate. Cox et al. (2000) observed that:
‘Jails and police lockups function primarily to address
the short term detention needs of their host commu-
nities. These facilities are among the most neglected com-
munity institutions within our nation. Jails and police
lockups are the central intake point for the entire crim-
inal justice system and are a virtual microcosm of the
problems faced by society as a whole. … The average jail
population tends to be much more suicide-prone than
the community at large. Concentrated within the hostile,
non-supportive environment of a jail are many persons
who would have to be considered as being of very high
risk: individuals who by virtue of their age (20–24) are
within the high overall suicide risk group; persons with
psychotic and depressive disorders; individuals under-
going major life changes; persons who are about to lose
a respected status within the community because of the
nature of the charges pending against them; individuals
who are intoxicated or under the influence of drugs at
the time of their arrest.’
Arrest and incarceration can be a very stressful event.
As Cox et al. (1990) indicate, the sudden shock of being
separated from family and other sources of social sup-
port, anxiety over trial or sentencing outcomes, and doubts
about one’s ability to meet self or peer-imposed standards
of behavior can all induce feelings of intense helplessness
or hopelessness. Shame over one’s past and despair for
one’s future have driven inmates both with and without
mental illness alike to view suicide as the only feasible
way of ending the mental anguish that they are experi-
encing. Finally, in lockups and jails the individual is
uncertain about the outcome of pending charges and the
possibility of incarceration as well as the length of sen-
tencing. In contrast, prisons are facilities for longer-term
incarceration. The prisoners have gone through the ini-
tial shock of incarceration and are sentenced and aware
of the future that awaits them.
FACTORS ASSOCIATED WITH SUICIDE
DURING INCARCERATION
The importance of alcohol and drug intoxication as a
factor in suicides needs to be emphasized. Hayes, in his
 Issues in the prevention and detection of suicide potential in correctional facilities 515
‘National Study of Jail Suicides: Seven Years Later’ (1989)
indicated that in the study 60 per cent of persons com-
mitting suicide were under the influence of alcohol, drugs
or both at the time of incarceration; that among this
population 78 per cent of suicides occurred within the
first 24 hours of detention; and that 48 per cent of the
intoxicated persons who completed suicide did so within
the first 3 hours of incarceration. The drug/alcohol factor
is significant in understanding the different suicide rates
for jails/lockups and prisons. In the latter facilities, acute
drug and alcohol intoxication is not a significant problem.
Size of the facility and availability of services are fac-
tors in the differential suicide rates in jails and prisons.
At one end of the spectrum are prisons, which are large
structured settings that most frequently have recreation,
education, health, and often mental health services avail-
able on site. In prisons, staff have as their main responsi-
bility supervision of prisoners. At the other end of the
spectrum are police lockups; these are very small facili-
ties with no on-site services where supervision is often
carried out by police officers with other responsibilities.
Jails, in contrast, fall in the middle ground. As already
noted, more than one-half of jails are small and lack
services and resources. However, 508 jurisdictions oper-
ated jails with over 100 inmates, and these housed more
than 80 per cent of the jail inmates in the United States.
These facilities are more likely to have specialized ser-
vices and resources. In fact, some jails operated by urban
jurisdictions are quite large and have more specialized
services. In jail settings, the staff focuses primarily – if
not exclusively – on inmate supervision. Lack of available
resources and staff role diffusion are important factors in
relation to suicide potential within the different types of
correctional facilities.
SUICIDE PREVENTION PROGRAMS
Since the mid-1980s, efforts to develop suicide preven-
tion programs have been focused primarily on jails and
lockups. Significant progress has been achieved in con-
ceptualizing, developing, and implementing models with
the following key elements:
• Structured intake screening to identify high-risk
inmates.
• Appropriate policies and procedures for suicide pre-
vention, including:
(i) inmate monitoring;
(ii) reporting and internal communication; and
(iii) ongoing observation.
• Linkage/referral processes with mental health
agencies.
• Training of police, correctional, medical, and mental
health staff to fulfill their appropriate roles.
• Ongoing review of prevention program activities.
Among the best defined and implemented models of
jail/lockup suicide prevention programs is the one
developed in New York State (Cox et al. 2000). This model
was initially developed and refined over an eighteen-
month period, in a process which involved state and
local mental health providers, municipal and county
correctional representatives, and representatives of the
State Commission of Correction, an oversight agency.
Since its introduction in 1985, the NYS Forensic Suicide
Prevention Program has been updated and revised twice,
most recently in 1999.
The New York State model has a carefully delineated
intake screening process to identify high-risk inmates.
This intake is done at booking by means of a one-page
screening guideline which is administered by a trained
intake officer in an average time of approximately 5 min-
utes. The format contains three parts:
1 Administrative data, inmate demographics, and infor-
mation on symptomatology during previous incar-
cerations.
2 Behavioral characteristics of the inmate carried
out via observation or questioning, including alcohol/
drug intoxication, acute psychiatric symptoms, shame
about arrest, suicidal thoughts, and serious personal
problems.
3 Dispositional actions of the officer (e.g., referral for
mental health evaluation, level of supervision required).
Whether through reaching a threshold score, the pres-
ence of exceptionally high-risk factors (e.g., recent
suicide attempt) or the officer’s ‘gut instinct,’ the des-
ignation of high risk leads to referral for evaluation
and/or more intensive monitoring.
Post-intake screening and observation is also an import-
ant component of the model. Responsibility for observa-
tion for suicide risk does not end at intake. Many jail
suicides occur after the first 48 hours, requiring vigilance
throughout confinement. The New York State model
promotes this ongoing vigilance in several ways. First,
officers are trained to observe inmates for behavioral and
verbal indications of suicidal intent and/or mental illness
during routine security checks. High-risk indicators
commonly found among correctional populations include
periods of crying, insomnia, and sluggishness; extreme
restlessness; sudden change in mood, eating or sleeping
habits; giving away personal property; loss of interest
in activities or relationships; and refusal to take pre-
scribed medication or a request for increased dosage of
medication.
Officers also monitor inmates by observing and inter-
acting with them following sentencing or during other
critical periods (e.g., following a death in their family).
Officers specifically look for signs of depression and/or
hopelessness at these times. Finally, officers who super-
vise the visiting and phone calls are expected to watch for
possible disputes or problems that emerge.
516 Correctional psychiatry
To ensure detailed compliance, policies and proced-
ures are essential. Separate procedure guidelines were
developed for county correctional facilities, police lock-
ups, and mental health services. These manuals describe
the crisis service model and specify detailed procedures
for both administrative and line staff. The procedures
guidelines have been designed to serve as a template for
local officials to utilize in creating procedures to conform
to their individual needs.
Ongoing training for corrections officers, police,
medical and mental health providers is also essential for
suicide prevention. The training materials for the New
York State model include a trainer’s manual that outlines
the specific contents of a 7-hour training program for
correctional or police officers. The manual identifies the
specific topics to be covered and provides teaching strate-
gies, training exercises, and information on how to
integrate the project videotape into the curriculum.
A videotape addresses basic issues on identification of
high-risk inmates, demonstrates the use of the screening
guidelines, and offers suggestions for effective interview-
ing and communication. The videotape presents infor-
mation on the signs of suicide shown by newly admitted
inmates and inmates who have been in jail for longer
periods of time. An officer’s handbook provides an
executive summary of the training program. The video-
tape content is also available in DVD format, including
an interactive teaching segment on the use of the screen-
ing guidelines form.
Linkages among mental health services, jails or police
lockups and jail medical services are necessary to ensure
readily available and coordinated mental health services.
Under the New York State model, each jail or lockup is
required to develop written agreements with mental health
services. These agreements outline mental health respon-
sibilities for assessing suicidal inmates, provision of crisis
intervention including arranging for psychiatric hospi-
talization, if necessary, and provision of consultation to
jail/lockup staff.
The model also recognizes that training of mental
health and medical personnel is important. To address
this issue the project developed two educational oppor-
tunities:
• The Mental Health Resource Handbook – a reference
resource primarily to assist jail mental health practi-
tioners in the application of New York State law and
regulation regarding provision of mental health
services to jail inmates.
• Mental Health Services in the Criminal Justice
System – a two-day training program to prepare men-
tal health practitioners to work effectively within the
criminal justice system.
The New York State model is not an isolated illustration
of program development initiatives. Numerous state and
localities have developed suicide prevention programs
(Arboleda-Florez and Holley 1988; NCIA 1995). The
National Institute of Corrections has also extensively
promulgated information on jail/lockup suicide preven-
tion programs. Research and experience have shown that
these programs can be extremely successful. Data from
New York State demonstrate the dramatic impact. A
comparison of jail/lockup suicide data from the NYS
Commission of Correction obtained before utilization of
the suicide prevention program in 1984 with data from
fourteen years later shows an actual reduction in suicides
of over 40 per cent while the incarcerated population
rose by more than 50 per cent.
Despite these successes, issues remain. The National
Institute of Corrections study of jails and lockups (1989)
found that 49 per cent of the respondents did not know
if their facility had a suicide prevention program. Fur-
thermore, the findings also showed that, in holding facil-
ities, almost 32 per cent of suicides occurred despite the
presence of a prevention program. In contrast, 58 per
cent of detention facility suicides occurred despite the
presence of a suicide prevention program. Such findings
are disturbing. In view of the fact that 89 per cent of
the victims were not screened for suicide risk at intake,
the findings call into question the effectiveness of the sui-
cide prevention programming that does exist.
DEVELOPMENTS IN PRISON
In comparison to jail/lockup suicide prevention pro-
grams, development of such programs in prisons has
received less attention. Although there has been some
increase in research on prison suicide since the mid-
1980s (Haycock 1991), reviews of the literature and
contacts with key policy makers and trainers suggest
that program development regarding prison suicide pre-
vention has been limited. In some states, including
New York State, and in individual prisons, materials
developed for jail/lockup programs have been modified
for use in training prison officers. Some jurisdictions
have reported efforts to strengthen prison mental health
services. The apparent lack of focus on this topic indi-
cates a need for in depth study of prison suicide preven-
tion. This is especially true considering that suicides in
prison may be increasingly linked to the growing num-
bers of people with serious mental illness being incarcer-
ated. Epidemiological data from the New York State
Commission of Correction (1998) indicated that for
completed suicides in New York State prisons during the
period 1993–1997 (50 cases), 56 per cent had psychiatric
evaluation or treatment prior to their incarceration, 38
per cent were taking psychotropic medication at admis-
sion, and 60 per cent had psychiatric encounters during
the present incarceration.
Additionally, with respect to prisons, the issue of sui-
cide prevention is linked intrinsically to that of available
 Issues in the prevention and detection of suicide potential in correctional facilities 517
mental health services. Jemelka, Rahman, and Trupin
(1993) write:
Mentally ill offenders present difficult operational
issues, legal dilemmas, and philosophical paradoxes.
They are viewed as different from the ‘typical inmate’
in a prison, the ‘typical patient’ at a state hospital, or
the ‘typical client’ at a community mental health
center. They are stigmatized by their mental illness
and by their criminal behavior. Within prison set-
tings, their presence creates a need for specialized
housing, security, and health care services. Many have
difficulty adapting to the structure, routine, and milieu
of prison. Others become overly passive, withdrawn,
and dependent.
THE CHALLENGE AHEAD
The challenge ahead is significant. Although important
steps have been taken, especially in relation to jails and
lockups, suicide remains one of the leading causes of
death in jails and lockups, and a significant problem in
prisons. Specifically, there is a crucial need for further
research and for an examination of our strategies for
program implementation and maintenance. The research
requires a continuing examination of suicides in lockups,
jails and prisons, and a study of facilities that are imple-
menting prevention strategies and programs. The latter
is especially important; since we have now developed
strategies that work, we need to understand how and
when they are put into practice and why in so many cor-
rectional facilities, they are not. Research should also
extend beyond the specific area of suicide prevention to
examine strategies for delivering effective and coord-
inated mental health services in these facilities.
Further, it is essential to concern ourselves with pro-
gram implementation. How do we effectively implement
our prevention activities in the nation’s lockups with
their high rates of suicide and shortages of resources?
How do we continue to ensure that the nation’s jails pro-
ceed with complete implementation? How do we increase
prison implementation of suicide prevention programs
and improve their availability of mental health services?
Progress has occurred through our collective efforts and
we remain hopeful that it will continue.
REFERENCES
Abram, K., Teplin, L. 1991. Co-occurring disorders among
mentally ill jail detainees: implications for public
policy. American Psychologist 46, 1036–45.
Arboleda-Florez, J., Holley, H.L. 1988. Development
of a suicide screening instrument for use in a remand
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The psychosocial basis of prison riots
PHYLLIS HARRISON-ROSS AND JAMES E. LAWRENCE
There may be no prospect more frightful or abhorrent in
modern criminal justice than the prison riot. This is true
among prison inmates as well as among their keepers
and service providers. While the catastrophic loss of the
stability and control that literally define correctional
institutions is viewed as the ultimate criminal justice
management failure, many researchers in this field believe
that there exists a similar, widespread aversion among
inmates to upheaval and derangement of the delicately
balanced prison microsociety (Shoham et al. 1989).
Why then should American prisons and jails be
approaching the height of a new cycle of major prison
disturbances, incidents that had all but disappeared
during the twenty years ending in 1970 but that have
seen steady growth since that time (American Correctional
Association 1990)? In New York alone, there were no
fewer than five major prison riots during the 1980s. One
answer is that, despite an enormous body of research
into the sociology and psychology of violence in and
out of prison, the psychosocial forces at work in prison
insurrections remain poorly understood and, as yet,
uncontrollable. While the brutality and fury that repre-
sent the sensational effects of prison rebellion spill out
into the public view as ideal media events, the causative
forces remain submerged in the insular, provincial world
of prison life. With few exceptions (Wicker 1975), the
histories of prison riots are written exclusively by prison
administrators and managers, who tend to minimize their
roles as causative agents (Murton 1976).
This chapter discusses many of the inadequacies of
traditional psychological and social theories of the causes
of prison riots in light of the two benchmark riots of
the modern era: Attica State Penitentiary, 1971; and New
Mexico Penitentiary, 1980. The psychosocial forces that
engender inmate rebellions are examined as illustrated
by riots in Sing Sing Prison in 1983 and by more recent
incidents at New York City’s Rikers Island complex and
the New York State prisons at Southport and Rome.
A framework is offered for understanding the nature of
riots and the purposes they may serve in jails and prisons.
52
THEORIES OF PRISON RIOT CAUSATION
The prevailing theories of causation were analyzed and
grouped into two main categories by Larsen (1988). The
grievance theory was originally postulated by Ohlin
(1956), and emphasizes poor prison conditions as the
major determinant in prison riots. It has been adopted
and elaborated by the American Correctional Association
(ACA 1990) and thus is widely credited among criminal
justice practitioners. The grievance theory holds that
prison riots are deliberate efforts to dramatize grievances
arising out of intolerable conditions of confinement.
A variant of this theory characterizes prisons as ‘powder
kegs’; that is, nearly always in a pre-riot condition and
awaiting only an ignition spark.
The group conflict theory also dates to the major wave
of prison riots of the 1950s, and is based on the widely
held belief that prisons are dependent on the inmate sub-
culture for maintenance of order and that riots result
from unilateral alterations by the prison administration
in relationships between inmates, particularly inmate
leaders, and staff (Sykes 1958). The group conflict theory
also has variants, among them the ‘gang war’ hypothesis,
which explains riots in terms of violent settling of differ-
ences between rival racial or street gang factions. This
theory is popular in the western United States where
gang violence has long been endemic, but – notably – not
in the East, where organized prison gang activity has been
burgeoning since the early 1990s.
The central problem with the mainstream theories of
prison riot causation is that none satisfactorily accounts
for the events of more than one or two major riots of the
past twenty years. While some elements of the two trad-
itional theories apply to aspects of major prison dis-
turbances, recent examination of both reveal them to be
too narrow to explain anything about all riots beyond
their superficial features (Larsen 1988).
The riot at Attica State Penitentiary in 1971 has served
as the continuing object lesson in prison management in
New York State and across the nation. It is now looked
520 Correctional psychiatry
upon as a watershed event that legitimized the prison
reform movement in the United States. While much is
now made of the catalogue of oppressive and substand-
ard conditions of confinement that grew out of the inves-
tigation of the Attica riot, the fact that the leaders of the
riot were largely uninterested in redress of specific griev-
ances went unnoticed.
Russell Oswald, the newly appointed New York com-
missioner of correction, was widely regarded as a reform
commissioner as measured by 1970s standards. His will-
ingness early in the negotiations to act favorably on
virtually all of the demands presented by the riot leaders
had little positive effect on the course of events (Larsen
1988). The major concern of the inmates was to secure
media coverage of the negotiations (an important point
that is discussed later), and the situation did not begin to
deteriorate until the inmates discovered that a correction
officer injured at the outset of the incident had died
(Wicker 1975, p. 151).
The New Mexico state prison riot in 1980 is generally
regarded as the most violent and destructive in recent
history (Colvin 1982). Although inmate behavior during
the riot was characterized by disorganization, inter-group
conflict, and a sustained rampage of destruction and vio-
lence, a small group of inmates did manage to negotiate
with officials only long enough to allow a television cam-
era into the institution (Colvin 1982, p. 459). As in the
Attica riot, a catalogue of longstanding grievances and
management failures related to security, overcrowding,
food services, meaningful work, and rehabilitation sur-
faced after the riot (Mahan 1985), but these were not press-
ing issues during the episode.
What had occurred at the New Mexico Penitentiary,
however, was a wholesale replacement of the prison
administration after a corruption investigation in 1975
followed by profound changes in operations. Influenced
by a tougher custodial philosophy, over the next five years
the new management reduced inmate programs, abol-
ished much of the underground inmate contraband
economy, and discontinued the widespread use of inmate
‘trustys’ in positions of authority over other inmates
(Larsen 1988). From the inmate point of view, a rapid
wholesale transformation of life in the New Mexico
Penitentiary was unilaterally imposed. While these
changes, viewed in light of the intergroup conflict and
score settling evidenced during the riot appear to illustrate
the group conflict model of causation, the resemblance is
superficial and is not reproduced in other major incidents.
The inadequacy of existing theories to consistently
explain prison riots is reflected in the popular criminal
justice trade literature that has begun of late to excerpt
and piece together appealing aspects of both theories,
offering an amalgam asserting that riots are caused by
overcrowding, idleness, inadequate security, substandard
physical plants, lack of meaningful inmate programs, food,
brutality, unfair treatment, racial leadership conflict, gang
power struggles, and poor management (ACA 1990).
In effect, a satisfactory explanation of prison unrest
appears to require a belief that nearly everything con-
nected with prison life causes riots. This is the same as
saying that nothing does, and leads to a dead end.
ADJUSTMENT BY AGGRESSION
In his discussion of the utility of prison violence, Larsen
(1988) refers pointedly to the early sociologist Emile
Durkheim’s assertion that conflict is an integral part of
all societies and that, far from being a destructive force,
it often assists in the development of the parameters and
norms that are necessary for the survival of any society.
This relationship holds even more true for prison microso-
cieties composed of individuals more likely to adjust (or
maladjust) to tension and conflict by aggression. It may
therefore be useful to attempt to understand the causative
forces underlying prison riots in terms of the personality
dynamics of the frustration–aggression mechanism.
Schneiders (1965) defines aggression as ‘a form of
response that seeks the reduction of tension and frustra-
tion through the medium of behavior that is demanding,
overpowering or possessive.’ Schneiders points to Maier’s
assertion (1949) that aggression is not goal-directed, nor
is it directed toward the solving of a problem. It is aimed
at the relief of tension associated with frustration. In
mob behavior, violence and destruction are an integral
part of the act of aggression. Mobs seek to destroy per-
ceived sources of frustration (Schneiders 1965). It is
well established that the frustration–tension–aggression
pattern taken to extremes often results in brutality and
sadistic fury.
The circumstances of the Attica and New Mexico riots
may suggest extreme collective aggressive response. How-
ever, it might be more instructive to examine some recent
incidents of the post-prison reform era in New York
that are less infused with historical controversy in an
attempt to determine whether prison riots may be under-
stood in terms of extreme aggression as a collective adjust-
ment to externally introduced frustration in the prison
environment.
We begin by reviewing Larsen’s model (1988) prison
riot scenario to which we have taken the liberty of adding
some important elements. Every prison riot:
• is precipitated or ignited by an innocuous event;
• begins with a spree of violent destruction;
• enters a ‘housekeeping’ period marked by the rise of
an inmate leadership cadre, the protection of hostages,
and the opening of negotiations in which all demands
are subordinated to media access;
• degenerates into disorganization, stalemate, and inter-
necine inmate conflict;
• dissipates its energy, which becomes unsustainable,
the remainder of which is then redirected toward shap-
ing the return to prison norms; and

• is followed by official repression and an investigation
which misinterprets the precipitating event(s) as the
underlying cause.
Interpretation of this archetype with an adjustment-by-
aggression theory overlay suggests that the precipitating
event is irrelevant; that the destructive spree is self-limiting
after serving to relieve accumulated inmate tension; that
the riot is not goal directed toward problem solving; and
that once the initial violence and destruction abate and
the media issue is settled, the riot is essentially over.
SING SING CORRECTIONAL FACILITY
Sing Sing Correctional Facility (briefly named Ossining
Correctional Facility during the early 1980s) is a truly
mammoth maximum security prison. It was built by
convict labor on a palisade overlooking the Hudson
River in 1825 and has been used continuously as a state
penitentiary since then. It was the subject of demands for
its closure or replacement because of substandard condi-
tions beginning in 1905, the most recent decision to
abandon it having been announced by Governor Hugh
Carey in 1981. It continues to operate today as it did in
1983 with a population of 2100 inmates.
Sing Sing was still open in 1983 because the state
Department of Correctional Services (DOCS), which
operates the prison system, was unprepared for the
extraordinary increase of new inmate commitments begin-
ning in 1981 as a result of mandatory sentencing statutes
enacted in 1978. Newly convicted inmates poured into the
department’s downstate reception centers from New York
City, were classified, and were assigned to upstate facilities
that could not accept them until vacancies appeared. An
unplanned, essentially ad hoc procedure evolved whereby
classified inmates awaiting cells were held or ‘parked’ as
transients at Sing Sing (Kurlander 1983, p. 74).
The objective of every inmate serving a state prison
sentence is early release on parole. Parole decisions are in
turn predicated on an inmate’s record of adjustment to
incarceration, including his or her attitude toward work,
self-improvement, and his/her participation in programs
to modify criminal behaviors. The ‘transient’ status of the
inmates at Sing Sing actually meant they had no status:
they were ‘on hold’ and would not be eligible to begin
working their way out of prison until they settled at their
assigned facility. Unlike all other inmates at Sing Sing,
transients were not allowed holiday visits, food packages,
typewriters, education, work, organizational membership,
or access to civilian staff counselors.
By January 1983, Sing Sing held 1400 of these inmates,
many having been there for six months, some as long as
one year (Kurlander 1983, pp. 74–5). Sing Sing’s B Block –
a cavernous, five-storey, open-tiered cell house – held 618
transient inmates supervised by twenty-seven correction
The psychosocial basis of prison riots 521
officers. Among these officers, morale was poor and
absenteeism was excessive (Kurlander 1983, p. 40). During
the four months ending in January 1983, nearly 250
correction officers had transferred out of Sing Sing. During
the previous year, fifteen officers had been involved in off-
duty firearms incidents, and eleven others had been
charged with crimes off the job (Kurlander 1983,
pp. 86–7). Sing Sing was a bad place to work and a frus-
trating place to do time. The inmates and correction offi-
cers thereby shared a negative value system.
On January 8, 1983, inmates in B Block rioted and
took seventeen correction officers hostage. The initial
destructive rampage caused damage in excess of $50 000
in a housing area expressly designed to resist such mis-
chief (Kurlander 1983, p. 178). Heavy bar grille gates
were literally torn from their moorings. The inmates’
only initial demand was for access to network television,
and they had to be pressured into formulating a list
of grievances to be redressed. At some 48 hours into the
disturbance, the inmates became disorganized, broke off
negotiations, and splintered into groups with conflicting
demands. When negotiations resumed the following day,
all that was at issue was how the rioters were to be fed, the
timing and content of an inmate radio broadcast justify-
ing the riot, and how each side was to conduct itself when
state forces reentered the cell block (Kurlander 1983, pp.
168–74). The inmates surrendered 24 hours after negoti-
ations resumed. None of the seventeen hostages had been
injured (Kurlander 1983).
After a six-month investigation, the state published a
276-page investigative report that blamed the entire inci-
dent on an allegedly intoxicated correction sergeant who
had arbitrarily altered the afternoon routine in B-Block
(Kurlander 1983).
RIKERS ISLAND
Notwithstanding the outcome of the official investiga-
tions of the Sing Sing riot, New York State moved assidu-
ously to defuse the explosive transient population at Sing
Sing. It simply stopped accepting these inmates, now
referred to as ‘state readies,’ until space became available.
These populations began to accumulate in local jails,
most notably at New York City’s Rikers Island. The cor-
rectional complex on Rikers Island is the largest of its
kind in the United States, housing nearly 11 000 inmates
in 1986. By August 1986, inmates sentenced to state insti-
tutions but still held at Rikers Island numbered just
under 1400 – the same number that had accumulated at
Sing Sing Correctional Facility three years earlier [State
Commission of Correction (SCOC) 1987, p. 140].
On October 13, 1986,‘state’ inmates at the Correctional
Institution for Men on Rikers Island rioted in two large
dormitories. No hostages were taken, but the dorms were
effectively barricaded and within a very short period the
522 Correctional psychiatry
inmates had caused $20 000 in property damage (SCOC
1987). Correction department officials rapidly solicited
demands and capitulated to all but the demand for media
access. On the following day, the entire correction officer
day shift staged a wildcat strike with demands conflicting
with the terms of the agreement made with the inmates.
Disturbances erupted elsewhere in the facility in suc-
ceeding days, and then spread to dormitories in other
Rikers Island facilities. The correction department finally
resorted to use of assault forces at three facilities. Break-
downs in command and control resulted in injuries to
more than fifty inmates, some serious (SCOC 1987, pp.
xix–xxi). On October 18, 1986, after four days of rioting
and combat with emergency assault teams, correction
department officials hurriedly transferred nearly 300 state-
ready inmates to state prisons in New York City and upstate
(SCOC 1987, p. 98).
An interesting footnote to the events at Rikers Island
comes from the SCOC investigation of the riot at Otis
Bantum Correctional Center on Rikers Island in August
1990. This incident also occurred during a wildcat strike
and blockade of Rikers Island by correction officers.
Inmates began barricading dormitories throughout
the facility moments after the New York news media
announced a labor settlement that appeared to repeal
restrictive rules on the use of force by correction officers.
The housing areas were assaulted during the initial des-
tructive phase, which abruptly cut off the riot’s develop-
ment. Nearly 100 inmates were seriously injured and
required hospitalization (SCOC 1991a, pp. 1–17).
While the Rikers Island events support the thesis of
adjustment by extreme aggression, two important vari-
ations emerge. One is the role of widespread insecurity in
an inmate population as a precursor to violence. Insecurity
is often seen as a collateral determinant of aggression
(Schneiders 1965). The investigation of the 1990 riot
revealed that scores of inmates silently watched television
pictures of jubilant correction officers lauding the repeal of
use of force guidelines. Without discussion or incitement,
inmates throughout the institution armed themselves and
donned homemade body armor (SCOC 1991a).
The other, perhaps more important, factor is the
extent to which the frustration, tension, and insecurity of
the correctional staff is communicated to and acted out
by the inmate population. Both riots appear intimately
connected to wildcat job actions by a frustrated and
latently aggressive security force. In both cases the inmates
acted precipitately when tension among the correctional
officers was at its peak (SCOC 1987; SCOC 1991a). The
Sing Sing riot exhibits a similar phenomenon, and we
shall see that the disturbance at Southport does as well.
SOUTHPORT CORRECTIONAL FACILITY
The enormous expansion of New York State’s prison sys-
tem between 1980 and 1990 created collateral problems.
One was a shortage of suitable space for punitive segre-
gation of inmates who committed serious disciplinary
infractions while incarcerated [Department of Correc-
tional Services (DOCS) 1991, pp. 4–5]. Most of the
thirty-four new correctional facilities established by the
state between 1981 and 1989 were built according to a
medium security design, which featured a punitive segre-
gation unit with a capacity of thirty-two inmates. The
capacity of these prisons was eventually expanded, first
from 500 inmates to 750, then to a 1350-inmate capacity.
Punitive segregation units were not expanded however,
and correction officials were soon short of space – a
shortage that impaired administration of discipline
(DOCS 1991, pp. 4–5).
In November 1990, the New York State Department of
Correctional Services decided to establish a large central
punitive segregation unit at Southport Correctional
Facility near Elmira, New York. Over a four-month period,
nearly 700 inmates serving long punitive segregation
sentences in small units in forty institutions were trans-
ferred to Southport. They were locked in their cells for 23
hours most days. The security force, hitherto entitled to
diversity and variety in job assignments, was summarily
pressed into service as keeper of this dangerous and
repressed population. A large portion of the program-
matic support staff was transferred or laid off (DOCS
1991, pp. 11–21). The entire institution was dedicated not
to security, as for example, was the federal super-secure
institution at Marion, Illinois, but rather to punishment
(DOCS 1991, p. 19). The correction officers’ union was
strident and uncompromising in its opposition to the
conversion of Southport. Correction officer morale
deteriorated, with daily absenteeism exceeding 10 per
cent and a largely ineffective supervisory corps (DOCS
1991, Appendix O). The delicately balanced officer–
inmate relationship became polarized. Inmates threw
excrement at officers, whilst officers retaliated by tam-
pering with inmate food and soaking them with fire-
fighting equipment (SCOC 1991b, p. 42).
Shortly before noon on May 28, 1991, at least twenty-
eight inmates, some of whom were armed, broke out of
metal mesh exercise pens in seven places in A-Yard at
Southport. These inmates seized the lone yard security
officer and his keys (two other officers were away from
their posts) and released another forty inmates. Inmates
entered the facility on two levels, captured four add-
itional hostages, and began breaking into electronic con-
trol modules on two floors. Tear-gas was used to drive the
inmates back into the yard. One hostage with potentially
serious injuries was released immediately. After 26 hours
of negotiations, the remainder were released. The only
inmate demand ever voiced was to have their justifica-
tion broadcast by the media, after which they surren-
dered (DOCS 1991, p. 1). Several rioters interviewed
immediately afterward claimed to have done the staff a
valuable favor by rioting. After an investigation lasting
one month, state correction officials published a report
that blamed seven correction officers who were absent

from their posts (only two of whom were assigned to the
riot area) for the entire incident (DOCS 1991, p. 3).
MOHAWK CORRECTIONAL FACILITY
The proliferation of medium security architecture in
New York’s prison establishment during the 1980s and
the corresponding shortage of punitive segregation space
for serious disciplinary infractions was the tip of a much
larger and more ominous iceberg: most of the thirty-four
expansion facilities were wide-open compounds which,
absent the perimeter fencing, could be mistaken for jun-
ior college campuses. Many were originally constructed
or converted (from New York’s enormous stock of aban-
doned mental institution housing) with a dozen or
more freestanding barracks-style buildings, separated by
extended outdoor spaces, connected by service roads and
walkways. Gun towers with commanding views were not
constructed as part of this expansion, in part to save
capital and human resource cost (DOCS 1997, p. 24).
Consequently, the new plant differed from maximum
security prisons, which featured one or two huge masonry
buildings, connected by narrow covered walkways or
tunnels, each invested with multiple-gated chokepoints
or ‘sally-ports,’ and small, walled outdoor yards continu-
ously commanded by gun towers.
Once outside of their housing units, inmates housed
in these ‘medium’ security settings have access to most
other areas of the prison, with easily scaled or penetrated
fences subdividing the spaces between buildings. When
large groups of inmates move of their own volition in
these settings, it is difficult to control or stop that move-
ment. This creates vulnerability to rapid grouping and
mass movement of inmates.
These vulnerabilities were not well appreciated in the
early 1980s, when the plans for the largest prison expan-
sion in New York State history were formulated. It was
accepted doctrine that ‘medium security’ inmates did not
require the single-cell housing, close custody and redun-
dant security architecture generally reserved for violent
felony offenders. The focus for the inmates for which
these facilities were designed was on academic, voca-
tional, drug treatment and work programs. Inmates
assigned to these facilities in the early 1980s were typi-
cally non-violent, and they were required to have served
sufficient time to be within three years of earliest release
date before they were considered for placement in these
facilities. They thereby demonstrated an adequate adjust-
ment to incarceration which warranted placement in a
more relaxed setting.
As new medium security facilities were filled with
prisoners while maximum security capacity remained
static, the carefully crafted classification system that kept
dangerous inmates in maximum security cells was no
longer viable. Time-honored custom and practice derived
from often bitter experience gradually gave way to the
The psychosocial basis of prison riots 523
exigencies of prison architecture. Inmates who hitherto
were locked ‘behind the wall’ because their institutional
and public threat scores showed them to be disruptive
and dangerous found themselves assigned to medium
security facilities such as Mohawk Correctional Facility
in Rome, New York, in unprecedented numbers. They
often refused to participate in or were found unfit for the
programs and work assignments typical of these facil-
ities, reverting to the idleness and troublemaking that had
characterized their lives in the street. By 1997, inmates
with much higher threat scores were sent to places like
Mohawk, as were inmates with six years left to serve
rather than the customary three years. The presence of
violent, disruptive inmates in physical surroundings which
were virtually unrestricted and where the disciplinary
system was hamstrung by lack of lock-down space intro-
duced instability into the daily routine and a sense of
insecurity in the prison population-at-large. Here, as
elsewhere, authority and control called into question
created tension (DOCS 1997, p. 24).
On July 18, 1997, a small cadre of inmates began
spreading a story that the suicide of an inmate in the
Special Housing Unit the previous day was a homicide at
the hands of correction officers and warranted retali-
ation. The dinner meal was attended by more than 1000
inmates – an extraordinary number – who wore their
prison-issued clothing (not required at this security
level) and remained silent throughout the meal. After the
meal, more than 300 inmates gathered around two
correction officers who were being loudly harangued by
an inmate. A correction officer was slashed with a razor
blade. Inmates then moved en masse to a recreational
yard, broke into equipment lockers, removed baseball
bats and weightlifting equipment, then ran amok across
the large prison compound.
The correctional staff could only retreat to the main
facility perimeter as the rampage progressed. Inmates
broke into a program building, occupying it and its
adjoining recreation yard. They were driven out by tear-
gas. As emergency teams from facilities as far away as
Attica began to arrive, inmates literally demanded to be
allowed out of the yard they occupied. There were no
negotiations, no demands, no grievances. The evening
temperature fell to below 10°C (50°F). The prisoners
complained of cold and demanded to be allowed to
return to their housing. The post-riot investigation blamed
misinterpretation of the circumstances of an inmate death,
hot weather, a storm which knocked out telephone ser-
vice and a use of physical force in full view of a large
group of inmates, for the incident (DOCS 1997, p. 25).
THE PSYCHOSOCIAL BASIS OF PRISON
VIOLENCE
Notwithstanding their superficial differences, the major
prison riots at Sing Sing, Rikers Island, and Southport and
524 Correctional psychiatry
Mohawk exhibit important fundamental similarities,
providing strong evidence that prison riots are collective
adjustments by extreme aggression to tension and insecu-
rity brought on by frustration introduced into the envi-
ronment. Four of the five incidents described involved a
disaffected, demoralized, frustrated correctional staff
whose latent aggression was acted out by the inmates.
Wherever possible, the inmates went on a destructive
rampage in an attempt to obliterate the perceived source
of frustration, but did not seek to inflict intentional injury
on their hostages or other employees. Rioting inmates
subordinate all needs and demands to that of media
access, in which they seek feedback to affirm and validate
their worldview and to draw outside world values into the
post-riot order. Finally, the precipitating cause is mis-
taken for the underlying cause, which deflects blame,
redirects culpability, and seeks to validate the status quo.
THE ROLE OF THE CLINICIAN
It remains to explore briefly the implications of prison
riot causation for the mental health practitioner. It may
well be that professionals in a position to both evaluate
inmates and observe the staff with a modicum of clinical
detachment are in the best position to see trouble coming.
The most reliable index may be a well-founded suspicion
that inmate and staff value systems are converging in an
atmosphere abundant in tension symptomatology. Since
the causes of prison riots are unrelated to the precipitat-
ing or igniting incidents, an appreciation of the subtler
but more powerful dynamics of staff–inmate frustration
and sensitivity to signs of derangement of prison norms is
suited to the capabilities of the seasoned professional.
The mental health professional will find him/herself
ideally suited to an appreciation of an emerging variant
of destabilizing influences in prison life: the increasing
prevalence of serious and persistent mental illness
among prisoners. In 1998, an estimated 283 000 mentally
ill offenders were incarcerated in U.S. prisons and jails
(U.S. Department of Justice 1999). In 1987, Steadman
and colleagues estimated the prevalence of serious mental
illness in the New York State prison population at 8 per cent
(Steadman, Fabisiak, and Dvoskin 1987). Nationally, 52
per cent of mentally ill state prison inmates were con-
victed of violent offences, and the mentally ill comprised
18.2 per cent of all violent offenders in state prison (U.S.
Department of Justice 1999, p. 4). The Department of
Justice reports that these prisoners are more likely to have
been drug or alcohol abusers, to have been homeless, to
have been victims of abuse. They were more likely to have
been in fights in prison, and far more likely to have bro-
ken prison rules (U.S. Department of Justice 1999, p. 9).
What these findings make clear is that deinstitutional-
ization of the mentally ill is largely mythical. The idea
that advanced chemotherapy for mental disorder made it
both desirable and feasible to manage seriously and per-
sistently mentally ill persons in their community envi-
ronments, was never credited outside the community of
mental health theoreticians. This, along with the collat-
eral failure to reinvest the resources formerly bestowed
on psychiatric institutions in community supports, has
evolved the unintended consequence of transinstitution-
alization, whereby a draconian institutional system –
state prison – has replaced one that, while imperfect, to
be sure, was positively benign by comparison. New York’s
enormous prison expansion between 1980 and 1989
included the conversion of no fewer than six of the state’s
closed inpatient psychiatric hospitals into prisons. The
presence of significant numbers of mentally ill persons
in prison populations causes massive stresses that are for
the most part hidden until the tensions they produce
demand release.
The experienced clinician with a working under-
standing of riot causation can also be of invaluable ser-
vice to decision makers early in the course of a prison riot.
The inclusion of a subspecialist in prison psychiatry in
the specialist resource pool or ‘think tank’ employed in
a well-organized riot response yields tangible benefits.
Consultants with experience in these situations report
being able systematically to observe inmate negotiators
and analyze the dynamics of the command authority and
decision-making team. As negotiations progress, it is essen-
tial to measure the mental status and stress and fatigue
level among the rioters. Clinicians familiar with the facil-
ity population can also provide important information
about behavior patterns and the presence of psychiatric
disorders among the inmates involved (Bell et al. 1991,
p. 8). But, more importantly perhaps, the prison admin-
istrator who regularly avails himself or herself of expert
perceptions and assessment of the psychosocial dynam-
ics and mental hygiene of his/her institution may find
him/herself better served indeed.
REFERENCES
American Correctional Association (ACA). 1990: Riots and
Disturbances in Correctional Institutions, 3rd edition.
Washington, DC: St. Mary’s Press.
Bell, R.A., Lanceley, F.J., Lanceley, M.S., Feldman, T.B.,
Worley, T.H., Fuselier, D., Van Zandt, C.A. 1991.
Hostage negotiations and mental health: experiences
from the Atlanta prison riot. American Journal of
Preventive Psychiatry and Neurology 3(2), 8–11.
Colvin, M. 1982. The 1980 New Mexico prison riot. Social
Problems 29, 449–63.
Kurlander, L. 1983. Report to Governor Mario M. Cuomo:
The Disturbance at Ossining Correctional Facility.
Albany, NY.
Larsen, N. 1988. The utility of prison violence: an acausal
approach to prison riots. Criminal Justice Review
13, 29–38.

Mahan, S. 1985: Orgy of brutality of Attica and the
‘killing ground’ at Santa Fe: a comparison of prison
riots. In Braswell, M., et al. (eds), Prison Violence in
America. Cincinnati, OH: Anderson.
Maier, N.R.F. 1949: Frustration: The Study of Behavior
Without Goal. New York: McGraw-Hill.
Mutton, T. 1976: The Dilemma of Prison Reform.
New York: Holt, Rinehart and Winston.
New York State Commission of Correction (SCOC). 1987.
Inquiry into Disturbances on Rikers Island. Albany, NY.
New York State Commission of Correction (SCOC). 1991a.
Investigation of Disturbance at Otis Bantum
Correctional Center. Albany, NY.
New York State Commission of Correction (SCOC). 1991b.
Hearings into the Incident at Southport Correctional
Facility. Albany, NY.
New York State Department of Correctional Services
(DOCS). 1991. Incident at Southport: The Report.
Albany, NY.
New York State Department of Correctional Services
(DOCS). 1997. Commissioner’s Report on the
The psychosocial basis of prison riots 525
Incident at the Mohawk Correctional Facility.
Albany, NY.
Ohlin, R. 1956: Sociology and the Field of Corrections.
New York: Russell Sage Foundation.
Schneiders, A.A. 1965: Personality Dynamics and Mental
Health-Principles of Adjustment and Mental Hygiene.
New York: Holt-Rinehart and Winston.
Shoham, S.G., Askenasy, J.J., Rahav, G., Chard, F., Addi, A.
1989. Social attitude correlates of violent prisoners.
Personality and Individual Differences 10, 147–53.
Steadman, H.J., Fabisiak, S., Dvoskin, J. 1987. A survey
of mental disability among state prison inmates.
Hospital and Community Psychiatry 38, 1086.
Sykes, G. 1958: Society of Captives. Princeton, NJ:
Princeton University Press.
U.S. Department of Justice. 1999: Mental Health and
Treatment of Inmates and Probationers. Bureau
of Justice Statistics. Washington, DC.
Wicker, T. 1975: A Time to Die. New York: New York
Times Book Company.

The right to refuse treatment in a criminal
law setting
MICHAEL L. PERLIN
INTRODUCTION
The question of the right to refuse antipsychotic medi-
cation remains the most important and volatile aspect of
the legal regulation of mental health practice (Plotkin
1977; Gelman 1984; Brooks 1987; Perlin 1999, § 3B-2;
Perlin 2000). The issues that are raised – the autonomy
of institutionalized individuals with mental disability to
refuse the imposition of treatment that is designed (at
least in part) to ameliorate their symptomatology; the
degree to which individuals subjected to such drugging
are in danger of developing irreversible neurological side
effects; the evanescence of terms such as informed consent
or competency; the practical and administrative consid-
erations of implementing such a right in an institutional
setting; and the range of the philosophical questions
raised (dealing with autonomy, freedom, self-governance,
and utilitarianism) (Perlin 1990; Perlin 1991; Perlin and
Dorfman 1996; Perlin 1999, § 3B-2) – mark the litigation
that has led to the articulation of the right to refuse treat-
ment as ‘a turning point in institutional psychiatry’
(Rhoden 1980) and ‘the most controversial issue in
forensic psychiatry’ (Brant 1983).
The conceptual, social, moral, legal, and medical diffi-
culties inherent in the articulation of a coherent right
to refuse treatment doctrine have been made even more
complicated by the U.S. Supreme Court’s reluctance to
confront most of the underlying issues (Mills v. Rogers
1982). As a result of the court’s decision in Mills (a case
involving involuntarily committed civil patients) to ‘side-
step’ the core constitutional questions (Wexler 1982;
Perlin 1999, § 3B-5.7, 237), and its concomitant articula-
tion of the doctrine that a state is always free to grant
more rights under its constitution than might be min-
imally mandated by the U.S. Supreme Court under the
federal constitution (Mills v. Rogers 1982, p. 300; Perlin
1987a), two parallel sets of cases have emerged.
53
In one set, state courts have generally entered broad
decrees in accordance with an ‘expanded due process’
model, in which the right to refuse treatment has been
read broadly and elaborately, generally interpreting pro-
cedural due process protections liberally on behalf of
the complaining patient. These cases have frequently
mandated premedication judicial hearings, and have heav-
ily relied on social science data focusing on the potential
impact of drug side effects, especially tardive dyskinesia
(e.g., Rivers v. Katz 1986; Riese v. St. Mary’s Hospital and
Medical Center 1987; State ex rel. Jones v. Gerhardstein
1987; Virgil D. v. Rock County, 1994; Perlin 1991; Perlin
and Dorfman 1996; Perlin 1999, § 3B-7.2c). Some cases
have begun to explore ‘second-generation’ issues, such as
the right to a jury trial in medication refusal hearings
(e.g., In re Brazleton 1993) or whether a joint hearing on
involuntary civil commitment and medication refusal
is appropriate (e.g., In re Barbara H. 1998). In the other
set, federal courts have generally entered more narrow
decrees in accordance with a ‘limited due process model.’
These provided narrower administrative review and
rejected broad readings of the Fourteenth Amendment’s
substantive and procedural due process protections,
relying less on social science data, which was frequently
ignored or dismissed as part of an incomprehensible
system allegedly beyond the courts’ self-professed limited
competency (e.g., United States v. Charters 1988; Perlin
1990; Perlin 1991; Perlin 1999, § 3B-7.2e). Generally (but
not always), the state cases involved civil patients; more
frequently, the federal cases dealt with individuals ori-
ginally institutionalized because of involvement in the
criminal trial process (Perlin 1991).1
1
While the Supreme Court has not dealt squarely with a civil right
to refuse treatment case since its 1982 remand decision in Mills, it
has since decided a case involving the rights of convicted prisoners
to refuse medication (Washington v. Harper 1990; Perlin 1999, § 3B-
8.2), and one on the question of whether an insanity-pleading

As this short overview should demonstrate, it is
impossible to authoritatively articulate one doctrine to
cover all rights to refuse treatment litigation. It is also
impossible to state such a doctrine even for cases that arise
in a ‘criminal law setting,’ since the simplest ‘unpacking’
of that category (Perlin 1989–90) reveals that there are
at least seven major subcategories to which the right to
refuse could be applied, to cases involving:
• defendants awaiting incompetency to stand trial (IST)
determinations;
• defendants found ‘permanently’ IST in accordance with
the Supreme Court’s decision in Jackson v. Indiana
(1972);
• defendants otherwise awaiting trial in jails;
• defendants seeking to proffer a not guilty by reason of
insanity (NGRI) defense;
• defendants who have been institutionalized following
an NGRI finding;
• convicted defendants in prison; and
• capital defendants whom state officials seek to medicate
so as to make them competent to be executed.2
However, if each of these categories is considered briefly,
it may better illuminate whether any strands of doctrinal
coherency can be spelled out (cf. Perlin 1987b; Perlin 2000).
DEFENDANTS AWAITING TRIAL
Awaiting an IST determination
Prior to 1987, medication cases involving defendants
awaiting IST determinations had ‘resulted in a series of
apparently random decisions from which almost no doc-
trinal threads could be extracted,’ leading to ‘significant
and genuine confusion’ in this area (Perlin 1990, p. 963;
Perlin 1989, § 14.09; compare, e.g., State v. Hayes 1978,
to Whitehead v. Wainwright 1978). Subsequently, though,
two separate decisions in one case – with radically differ-
ent opinions – have brought some measure of coherence
to this area.
In 1987, a panel of the Fourth Circuit Court of
Appeals issued the first decision in United States v.
Charters (Charters I) on the right of a federal pre-trial
detainee to refuse psychotropic medication (Charters
1987). Charters I rejected the notion that the ‘exercise
defendant was denied a fair trial because he was involuntarily
medicated at trial, thus depriving the jury of a fair presentation
of his ‘natural demeanor’ at the insanity stage (Riggins v. Nevada
1992; Perlin 1999, § 3B-8.3). Both of these cases are discussed
extensively in this chapter.
2
Beyond the scope of this chapter are yet other categories such
as convicted defendants who are placed on probation or parole
if they agree to comply with medication orders, and defendants
found guilty but mentally ill (GBMI) (Perlin 1989, § 15.09; Perlin
1999, § 3B-9.7).
The right to refuse treatment in a criminal law setting 527
of professional judgment standard’ (articulated by the
Supreme Court in a case involving physical restraint of an
individual with severe mental retardation [Youngberg v.
Romeo 1982]) applied to antipsychotic medication cases,
resurrected right-to-privacy and freedom-of-thought-
process arguments that had been generally abandoned
in the years since the Supreme Court’s decision in Mills
v. Rogers, established a right to be free from unwanted
physical intrusion as an integral part of an individual’s
constitutional freedoms, and articulated a complex sub-
stituted judgment–best interests methodology to be used
in right to refuse treatment cases (Perlin 1990; Perlin 1999,
§ 3B-8.1a).
Upon an en-banc rehearing,3 the full Fourth Circuit
vacated the panel decision (Charters 1988) (Charters II),
‘suggesting that the panel was wrong, about almost
everything’ (Perlin 1990, p. 965). Although it agreed that
the defendant possessed a constitutionally retained inter-
est in freedom from bodily restraint that was implicated
by the forced administration of psychotropic drugs, and
the defendant was protected ‘against arbitrary and capri-
cious action by government officials’ (Charters II 1988,
p. 306), it found that informal institutional administra-
tive procedures were adequate to protect the defendant’s
due process interests. It applied the ‘substantial profes-
sional judgment’ test of Youngberg, and limited question-
ing of experts to one matter: ‘Was this decision reached
by a process so completely out of bounds as to make it
explicable only as an arbitrary, nonprofessional one?’
(Charters II 1988, p. 313; Perlin 1998, § 3B-8.1b).
The two views of the rights of pre-trial detainees to
refuse medication reflected in Charters I and Charters II
could not be more diametrically opposed. Also, the
ultimate en-banc decision has led to some important
strategic decision making for attorneys representing indi-
viduals who wish to resist the imposition of such medica-
tion. Although, as a federal detainee, Charters was forced
to litigate in federal court, in cases where litigants do have
an option of availing themselves of a state forum, the sec-
ond Charters decision made it more likely they will choose
the latter jurisdictional alternative. When Charters II was
decided, it was seen to potentially ‘signal the death knell
for the litigation of right-to-refuse treatment issues in
the federal forum’ (Perlin 1990, p. 994) in cases in which
litigants retain discretion as to where to sue. In the imme-
diate following years, at least two state courts – albeit in
civil cases – adhered to their endorsements of Charters I
even after the Charters II decision (e.g., McConnell v.
Beverly Enterprises-Connecticut, Inc. 1989; In re A. C.
1990; Perlin 1999, § 3B-8.1b); on the other hand, several
post-Charters II state cases have not granted defendants
broader rights in similar cases (e.g., State v. Otero 1989;
3
When cases in the federal court system are appealed, they are
usually heard by a three-judge panel of a circuit court of appeals.
On rare occasions, the entire membership of such a court will sit
together (en banc) to rehear a case of significant public importance.
528 Correctional psychiatry
People v. Lopez 1990; Perlin 1989 [1999 Cumulative
Supplement], § 14.09, 329).
More recently, the Sixth Circuit has held that the
‘strict scrutiny’ standard of substantive due process review
applied to this question, finding that the government must
prove its case by clear and convincing evidence (United
States v. Brandon 1998).4 But, notwithstanding Brandon
(and other post-Charters federal cases rejecting its method-
ology; see e.g., Preston v. Gutierrez 1993; Kulas v. Valdez
1998; United States v. Weston 2000), the second Fourth
Circuit decision in Charters remains important ‘jurispru-
dentially, constitutionally, and symbolically’ (Perlin 1999,
§ 3B-8.1b, 312).
Defendants permanently IST
In Jackson v. Indiana, the Supreme Court held that it vio-
lated due process to commit an individual for more than
the ‘reasonable period of time’ necessary to determine
‘whether there is a substantial chance of his attaining the
capacity to stand trial in the foreseeable future’ (Jackson
1972, p. 733). If there were to be no such chance, a defend-
ant originally committed pursuant to an IST finding
would either be subjected to the civil commitment process
or released; once having been ‘Jacksonized’ (that is, hav-
ing had their criminal indictments dismissed but remain-
ing in need of hospitalization), such patients must be
treated like other civil patients (Perlin 1991).
There has been virtually no case law on the rights of
‘Jacksonized’ patients to refuse medication; none of the
three pertinent cases substantially illuminates the under-
lying doctrinal issues (DeAngelas v. Plaut 1980; Mannix
v. State 1981; Woodland v. Angus 1993; Perlin 1999, § 3B-
9.5). Charters II should not have a significant impact
on this population, who should be treated like other civil
patients (due to the dismissal of the underlying indict-
ments that triggered their entry into the criminal trial
process). Thus, it can be expected that future developments
here will track similar developments involving involun-
tarily committed civil patients (Perlin 1991), and will
more closely adhere to the ‘expanded due process’ model.
Otherwise awaiting trial in jails
Cases involving jailed pre-trial detainees have generally
interpreted the right to refuse treatment broadly. In Bee v.
Greaves, the Tenth Circuit ruled that ‘less restrictive alter-
natives’ should be ruled out before psychotropic medica-
tion is involuntarily administered to a jailed detainee (Bee
1984, p. 1396; Perlin 1999, § 3B-7.2d), other courts have
similarly ruled that the availability of a less intrusive alter-
native that could have been employed by defendants must
4
For explanations of ‘strict scrutiny’ in a mental disability law con-
text, see Perlin 1993–94; Perlin 1997.
be considered in the determination of such a case (Osgood
v. District of Columbia 1983; Perlin 1999, § 3B-7.2a).
DEFENDANTS PLEADING INSANITY
At trial
In Riggins v. Nevada, the United States Supreme Court
reversed the decision of the Nevada Supreme Court (on
the involuntary administration of medication to a defend-
ant at trial), holding that the use of antipsychotic drugs
violated the defendant’s right to fair trial (Riggins 1992;
Perlin 1998, § 3B-8.3). The Court cited language from its
previous opinion in Washington v. Harper (1990) regarding
the impact of drug side effects on constitutional decision
making, and construing Harper to require ‘an overriding
justification and a determination of medical appropri-
ateness’ prior to forcibly administering antipsychotic
medications to a prisoner (Riggins 1992, pp. 134–5).
The Riggins Court focused on what might be called
the ‘litigational side effects’ (Perlin 1994c, p. 251) of
antipsychotic drugs, and discussed the possibility that
the drug use might have ‘compromised’ the substance
of the defendant’s trial testimony, his interaction with
counsel, and his comprehension of the trial (Riggins
1992, p. 137). In a concurring opinion, Justice Kennedy
(the author of Harper) took an even bolder position. He
would not allow the use of antipsychotic medication to
make a defendant competent to stand trial ‘absent an
extraordinary showing’ on the state’s part, and noted fur-
ther that he doubted this showing could be made ‘given
our present understanding of the properties of these
drugs’ (Riggins 1992, p. 139).
Justice Thomas dissented, suggesting that: (i) the
administration of the drug might have increased the
defendant’s cognitive ability; (ii) since Riggins had origin-
ally asked for medical assistance (while a jail inmate,
he had ‘had trouble sleeping’ and was ‘hearing voices’), it
could not be said that the state ever ‘ordered’ him to take
medication; (iii) if Riggins had been aggrieved, his
proper remedy was a § 1983 civil rights action;5 and (iv)
under the majority’s language, a criminal conviction might
be reversed in cases involving … penicillin or aspirin’
(Riggins 1992, pp. 150–5).
Riggins is the Court’s most expansive reading of the
effect of psychotropic drugs’ side effects on an individual’s
functioning (Perlin 1999, § 3B-8.3). Justice Kennedy’s
concurrence highlights the ways that such side effects could
imperil a fair trial:
Behavior, manner, facial expressions, and emotional
responses, or their absence, combine to make an
5
Individuals can file federal civil rights actions under 42 U.S.C. § 1983
if they allege that they have been harmed by a state official’s
violations of federal law.

overall impression on the trier of fact, an impression
that can have a powerful influence on the outcome of
the trial. If the defendant takes the stand, as Riggins
did, his demeanor can have a great bearing on his
credibility, his persuasiveness, and on the degree to
which he evokes sympathy. (Riggins 1992, p. 142).
This is the clearest articulation of this position in any
opinion by any Supreme Court justice.
Kennedy’s observations as to jurors’ responses to
defendants who fail to display the proper ‘remorse and
compassion’ is also telling:
The prejudice can be acute during the sentencing
phase of the proceedings, when the sentencer must
attempt to know the heart and mind of the offender
and judge his character, his contrition or its absence,
and his future dangerousness. In a capital sentencing
proceeding, assessments of character and remorse
may carry great weight and, perhaps, be determina-
tive of whether the offender lives or dies. (Riggins
1992, p. 144).
Kennedy’s reliance here on a law review article that
reports on the experiences of real jurors in real cases
(Geimer and Amsterdam 1987) reflects an important
sensitivity to the ways that jurors process clues and cues
about the persona of capital defendants, and his integra-
tion of that data into an analysis of the ways that jurors
may potentially respond to medicated defendants demon-
strates a similar sensitivity to the way that visual images
of mentally disabled defendants may be dispositive of juror
decision making on this question.
On the other hand, Justice Thomas’s opinion raises
grave issues for defense counsel (Perlin 1994a; Perlin 2000).
Had his position prevailed, would concerned and com-
petent defense lawyers feel as if they were assuming a
risk in ever seeking psychiatric help for an awaiting-trial
defendant (Perlin 1992)? His analogizing of antipsy-
chotic drug side effects to penicillin or aspirin may be
disingenuous, or it may be cynical. What is clear is that
nowhere in the lengthy corpus of right to refuse treat-
ment litigation is this position ever seriously raised
(Perlin and Dorfman 1993; Perlin 1999, § 3B-8.3, 327).
Following an NGRI verdict
While individuals who had been previously adjudicated
NGRI were members of some early class actions chal-
lenging institutional drugging practices (e.g., Davis v.
Watkins 1974; Davis v. Hubbard 1980; compare Rennie v.
Klein 1979), there has been remarkably little litigation
on behalf of this population (Perlin 1991, p. 47). The most
important case, a Maryland state decision, construed a
U.S. Supreme Court case that limits the treatment refusal
rights of prisoners (Washington v. Harper 1990) to guard
against the arbitrary administration of antipsychotic
drugs in the context of NGRI insanity acquittees, and
The right to refuse treatment in a criminal law setting 529
declared unconstitutional a state statute that failed to
provide such a patient with the rights for adequate notice,
to be present, to present evidence, and to cross-examine
witnesses at a drug refusal hearing, and to have the right
to judicial review of an adverse decision at such a hearing
(Williams v. Wilzack 1990). Williams, which relied on both
state and federal constitutions, thus suggests that lower
courts may limit Harper to the specific population in that
case (convicted prisoners), even where the patient’s ori-
ginal confinement stems from the criminal trial process
(Perlin 1999, § 3B-9.6, 342).
More recently, a federal district court in Wisconsin
struck down that state’s statute governing the adminis-
tration of antipsychotic medication to insanity acquit-
tees, finding the law unconstitutional because it did not
require the court to make a determination that the incom-
petent insanity acquittee was dangerous and that the
medication was in his best interests (Enis v. Department
of Health & Social Serv. 1996).
CONVICTED PRISONERS
The Supreme Court’s decision in Harper sharply limited
the right of convicted felons to refuse treatment under
the federal constitution. [For pre-Harper cases brought
under constitutional law theories, see e.g., Keyhea v. Rushen
(1986); Large v. Superior Court (1986).] While the court
agreed that prisoners (like all other citizens) possessed a
‘significant liberty interest’ in avoiding the unwanted
administration of antipsychotic drugs (Harper 1990,
p. 221, quoting Vitek v. Jones 1980, pp. 488–91), it found
that the need to balance this interest with prison safety
and security considerations would lead it to uphold a
prison rule regulating drug refusals as long as it was ‘reason-
ably related to legitimate penological interest,’ even where
fundamental interests were otherwise implicated (Harper
1990, p. 222). Thus, a state policy – that provided for
an administrative hearing (before a tribunal of mental
health professionals and correctional officials) at which
there was neither provision for the appointment of
counsel nor regularized external review – passed consti-
tutional muster (Harper 1990, pp. 223–4).
In a sharply-worded opinion, Justice Stevens dis-
sented, arguing that the refusal of medication was
‘a fundamental liberty interest deserving the highest
order of protection,’ especially where the imposition of
such medications might create ‘a substantial risk of
permanent injury and premature death’ (Harper 1990,
p. 237). But Harper clarifies an important strand of
Supreme Court jurisprudence: ‘Prison security concerns
will, virtually without exception, trump individual
autonomy interests’ (Perlin 1999, § 3B-8.2, 320).
Post-Harper cases have construed the decision in a
wide variety of substantive and procedural contexts, with
some courts relying upon it to order full hearings on
530 Correctional psychiatry

right-to-refuse claims, and others citing it to limit the scope this well-settled prohibition by forcibly medicating
of the applicant’s right to refuse (Perlin 1999, § 3B-8.2, an insane prisoner with antipsychotic drugs violates
321–2 and cases cited at note 1286). Moreover, although his rights under our state constitution. …First, it vio-
the trend has been slowed down by the Supreme Court’s lates his right to privacy or personhood. Such invol-
subsequent decision in Riggins v. Nevada (1992), Harper untary medication requires the unjustified invasion
was the first Supreme Court case to ‘point … claimants to of his brain and body with discomforting, potentially
the state court door, and steer … them away from federal dangerous and painful drugs, the seizure of control
courts’ (Brian 1992, p. 282). of his mind and thoughts, and the usurpation of his
right to make decisions regarding his health or med-
ical treatment. Furthermore, implementation of the
COMPETENCY TO BE EXECUTED state’s plan to medicate forcibly and execute the
insane prisoner would constitute cruel, excessive and
unusual punishment. This particular application of the
Still undecided is the important question of whether a
death penalty fails to measurably contribute to the
state can involuntarily medicate an individual under a
social goals of capital punishment. Carrying out this
death sentence so as to make him or her competent to be
punitive scheme would add severity and indignity
executed. After the Supreme Court determined that an
to the prisoner’s punishment beyond that required
incompetent defendant with mental illness cannot be
for the mere extinguishment of life. This type of puni-
executed (Ford v. Wainwright 1986) (a holding that it did
tive treatment system is not accepted anywhere in
not extend to cases involving individuals with mental
contemporary society and is apt to be administered
retardation, see Penry v. Lynaugh 1989), it initially agreed
erroneously, arbitrarily or capriciously. (State v. Perry
to hear a case that posed this precise question (Perry v.
1992, pp. 747–8)
Louisiana 1990a).
In Perry, the Louisiana state courts had found that any While the Supreme Court has not yet revisited this
due process right the capital defendant might have was question, it can be expected that the question will
outweighed by two compelling state interests: the provi- inevitably arise again in the future, and that the Court will
sion of psychiatric care, and the carrying out of a valid have a second chance to weigh the competing values (Perlin
death penalty (State v. Perry 1989). After the Supreme 1989 [1999 Cumulative Supplement], § 17.06B, 536).
Court originally decided to hear the case (to determine
whether the Eighth Amendment’s proscription against
cruel and unusual punishment prohibits states from so CONCLUSION
medicating death-row inmates; Perry 1990a), it ultim-
ately vacated the lower court’s decision and remanded
This issue remains one of the most volatile areas of men-
for further proceedings in light of its decision in Harper
tal disability law. The decisions in Charters II (1988) and
on the scope of a convicted prisoner’s right to refuse
Harper (1990) had made it appear that the federal courts
(Perry v. Louisiana 1990b).
would no longer be the voluntary forum of choice for
The Supreme Court’s reasoning in this case is not
persons seeking to assert their right to refuse medication.
clear. It may be that the justices felt, upon reflection, that
The Supreme Court’s decision in Riggins (1992), how-
the only issue presented was that of forcible medication
ever, made it appear as if the federal forum would not
(finding the execution consequences irrelevant), and it
necessarily be a hostile one for plaintiffs bringing such
was thus necessary for the state court to consider, after
actions. Post-Riggins cases have been brought in both
Harper, whether the difference in long-term harm in a
state and federal forums and, while results have been
case such as Perry (his execution) outweighed the state’s
mixed, it can now be said that the complete exodus to
interest in involuntarily medicating him (Perlin 1989
state courts – predicted following the Charters and
[1999 Cumulative Supplement], § 17.06B, 535; ‘Supreme
Harper decisions – has been halted, and that both state
Court Sidesteps Issue’ 1990). Interestingly, the Supreme
and federal courts now remain responsive to right to
Court had decided Harper a week before it chose to
refuse medication actions (Perlin 1999, § 3B-8.4, 330).
grant certiorari in Perry; its decision to vacate and
The growing conservatism of the federal judiciary will
remand for consideration of Harper may thus mean that
most likely result in more affirmative litigation being
the court could not – or would not – resolve the difficult
brought in state courts based on state constitutional the-
tensions presented by such a case (Perlin 1994b).
ories. Many state courts appear willing to consider care-
On remand, the Louisiana Supreme Court found,
fully the arguments of plaintiffs in right-to-refuse cases
under state constitutional law, that the state was pro-
brought by individuals in the criminal trial process.
hibited from medicating Perry to make him competent
It is necessary that the precise status of the patient –
to be executed. Concluded the court:
e.g., jail detainee, prisoner, insanity acquittee; Jacksonized
For centuries no jurisdiction has approved the execu- permanently incompetent – be ‘unpacked’ so as to ‘decode’
tion of the insane. The state’s attempt to circumvent the operative, controlling legal principles (Perlin 1991).

If this is done, it is possible that some harmony might be
brought to this most contentious area of litigation (Gelman
1983–84, p. 122) and that the dilemma at the heart of the
controversy – ‘preserving patient dignity while maintain-
ing allegiance to treatment needs’ (Roth 1986, p. 161) –
might yet be resolved.
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Perlin, M.L. 1994b: The Jurisprudence of the Insanity
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Perlin, M.L. 1994c. The sanist lives of jurors in death
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Perlin, M.L. 1999: Mental Disability Law: Civil and
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Perlin, M.L. 2000: The Hidden Prejudice: Mental
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Perlin, M.L., Dorfman, D.A. 1996. Is it more than ‘dodging
lions and wastin’ time’? Adequacy of counsel,
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individual right to refuse treatment cases. Psychology,
Public Policy and Law 2, 114–36.
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Perry v. Louisiana, 498 U.S. 38 (1990a).
Perry v. Louisiana, 498 U.S. 1075 (1990b), reh. denied,
498 U.S. 1075 (1991).
Plotkin, R. 1977. Limiting the therapeutic orgy: mental
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App. 3d 1388, 243 Cal. Rptr. 2431 (1987), app’l
dismissed, 774 P.2d 698, 259 Cal. Rptr. 669 (1989).
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N.Y.S.2d 74 (1986).
Roth, L. 1986. The right to refuse psychiatric treatment:
law and medicine at the interface. Emory Law
Journal 35, 139–60.
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Div. 1989).
State v. Perry, 543 So. 2d 487 (La. 1989), reheating den.,
545 So. 2d 1049 (1989).
State v. Perry, 610 So. 2d 746 (La. 1992).
State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 416
N.W.2d 883 (1987).
Supreme Court sidesteps issue of restoring inmates’
competency to allow execution. Psychiatric News,
December 21, 1990.
United States v. Brandon, 158 F. 3d 947 (6th Cir. 1998).
United States v. Charters, 829 F.2d 479 (4th Cir. 1987)
(Charters I), on rehearing, 863 F.2d 302 (4th Cir. 1988)
(en banc) (Charters II), cert. denied, 494 U.S. 1016
(1990).
United States v. Weston, 206 F. 3d 9 (D.C. Cir. 2000).
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(1994).
Vitek v. Jones, 445 U.S. 480 (1980).
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psychiatry, and psychology. International Journal of
Law and Psychiatry 5, 285–94.
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1978), vacated & remanded on other gds., 609 F.2d
223 (5th Cir. 1980).
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reconsid. den. (1990).
Woodland v. Angus, 820 F. Supp. 1497 (D. Utah 1993).
Youngberg v. Romeo, 457 U.S. 307 (1982).

Psychiatric ethics in the correctional setting
JAY E. KANTOR
INTRODUCTION
Psychiatrists who step into a correctional setting enter a
mire of ethical dilemmas. Many of these issues derive
from the need to reconcile conflicting interests of the
patient, society, and the profession. Of course, some of
these ethical conflicts in psychiatry are not unique to
practice in the correctional system. Of all categories of
physicians, it is probably the psychiatrist working in the
non-correctional setting who is most often called on by
society to jeopardize the treatment interests of a patient
and perhaps limit his or her rights, in order to protect
society or individuals from the dangerous behavior of
that patient. In fact, it might be argued (Szasz 1963) that
in requiring that psychiatrists make decisions about
involuntary commitments on grounds of dangerousness
to others, or in demanding that they make Tarasoff-type
decisions about dangerousness, society has involved all
psychiatrists in correctional work, whether or not they
are formally employed by a correctional system.
PUBLIC PERCEPTIONS OF PSYCHIATRY
IN CORRECTIONS
There are added ethical pressures as a result of the many
misconceptions the public has about the relationship
between mental illness and criminal behavior. For
example, one recent study showed a substantial increase
in the number of Americans who believed that the men-
tally ill are usually ‘violent, dangerous, frightening.’1 Yet
the public also mistrusts psychiatric intervention when
diminished capacity defenses are in the offing, or when-
ever psychiatrists have input into the sentencing or parole
process. Many suspect that psychiatrists will be too
lenient, and that psychiatry in general is too excusing.
1
‘Study Probes Mental Illness,’ Rick Callahan, Associated Press,
September 27, 2000.
54
These attitudes not only put direct pressures on the
psychiatrist, but add other sorts of more indirect pres-
sures. For example, the public misconceptions result in a
reluctance to fund psychiatric treatment for criminals.
Such other pressures2 may manifest in insufficient staff-
ing, and needs to triage or give less than optimal treat-
ment time to the patients. To add to the problems, these
patients may be placed among the general prison popu-
lation when they ought to be in a hospital setting.
Thus, the ethical dilemmas inherent to the practice of
psychiatry in general are compounded and added to in
the context of psychiatric practice in a correctional sys-
tem. Consider the following sample of issues that may
arise in a correctional setting:
1 A psychiatrist may be asked to evaluate an arrestee in
order to determine his or her competency to stand
trial. In this case, the psychiatrist is not being called on
to treat the detainee, nor has he or she entered into a
formal treatment contract with the detainee. Does
that free him/her from the ethical obligations (e.g.,
beneficence, confidentiality) that are inherent parts of
the normal psychiatrist–patient treatment relation-
ship? Does it follow that he or she has an obligation as
a professional with a scientific expertise in doing such
evaluations to give a truthful, impartial evaluation,
whatever the consequences to the evaluee? Or does his/
her status as a healthcare professional mandate that
he/she provide care to, do good for, and protect from
harm, all those in need – even if those in need are not
formally his/her patients?
2 Prior to undergoing the competency evaluation in a
facility, the detainee may have been receiving psych-
iatric treatment at the same facility. During that treat-
ment he or she may have revealed information that
could adversely affect him/her if it were to be used in
2
Thus, The New York Times, December 5, 2000, ran an article
describing the dumping of mentally ill and retarded juveniles into
the prison system (‘Concern Rising Over Use of Juvenile Prisons to
“ Warehouse” the Mentally Ill.’ p. A16).
534 Correctional psychiatry
the competency evaluation or, perhaps, if it were later
used during his/her sentencing hearing. Should the
evaluating psychiatrist have access to the detainee’s
prior treatment record? If so, should the treating
psychiatrist warn the patient before the onset of
treatment that information obtained in treatment
could be used for other purposes, even if there is rea-
son to believe that this warning will interfere with
treatment? (Estelle v. Smith 1981).
3 If the detainee has been found incompetent to stand
trial and an insanity or mitigated responsibility plea is
in the offing, the psychotic defendant may have a bet-
ter chance if he or she appears before the jury in an
untreated state. Should the psychiatrist push for medi-
cation if it is appropriate to treat the patient’s mental
disorder, or does the physician’s duty to ‘keep patients
from harm’ require not only that he or she not medi-
cate but that he/she suggest to the accused or to an
accused’s counsel that staying unmedicated and crazy
may be in the accused’s best interests?
4 During the course of treatment or evaluation, the
patient or evaluee may reveal information to the psych-
iatrist about past, future, or ongoing crimes. With a
patient population of prisoners, such information
may not only be common, but also important to treat-
ment. The patient or evaluee also may reveal informa-
tion about ongoing or future activities that violate
rules of the correctional facility. These violations may
range the gamut from illegal cigarette smoking to
planned murders or riots. What, if any, are the limits
of confidentiality in these settings?
5 The psychiatrist may be asked to forcibly administer
neuroleptics to an unwilling prisoner – not because
the prisoner needs treatment but because the prisoner
is disruptive to the smooth running of the institution
(Washington v. Harper 1990). Or, the prisoner may in
fact need treatment, but may refuse it. What is the
extent of a detainee’s or prisoner’s right to refuse
treatment? What, if anything, differentiates the use of
a neuroleptic as a restraint from its use as a treatment?
6 Parole or privileges may be contingent on a prisoner’s
agreeing to enter and comply with therapeutic group
(usually substance abuse) programs. Many of these
programs require that the patient cede substantial con-
trol to the program, often including requirements that
he or she divulge information, such as a positive HIV
status, to the group. Are there limits to what demands
can justly be required of a prisoner who wishes to
remain in the program but has objections to complying
with or consenting to some of the requirements?
7 A psychiatrist may be called on to take part in a sen-
tencing hearing. This may range from being asked to
offer an opinion about the appropriateness of divert-
ing the convicted to a treatment program instead of a
prison, to being asked to offer an opinion about the
corrigibility of the convicted. In some jurisdictions, a
determination of incorrigibility may result in a death
sentence for the prisoner. Would the psychiatrist who
takes part in corrigibility hearings when execution is
at issue be guilty of violating the American Medical
Association (AMA) directive forbidding members to
take part in executions, or violating the more basic
ethical directive to do no harm?
8 The Supreme Court has ruled (Ford v. Wainwright
1986) that condemned prisoners must be competent
to be executed. A prison psychiatrist may be asked to
evaluate such competency. If the prisoner is found
incompetent, the psychiatrist may be asked to treat
the patient with the sole treatment goal not being to
restore him or her to full mental health but simply to
get him/her to a mental state in which he/she is com-
petent to be executed. Is the psychiatrist who takes
part in this process violating the AMA rule against
taking part in executions? Would taking part on any
level violate the ‘Do not harm’ obligation? If the pris-
oner is unwilling to be treated, does the state have the
right to force treatment on him/her not for his/her
benefit but for the benefit of the state’s interest in exe-
cuting him or her? Should such a specific goal-directed
‘treatment’ really be characterized as treatment?
9 Psychiatrists may be hired by the defense or by the
prosecution to testify in trials where the mental status
of the defendant is an issue. What is the extent of and
limits to their loyalties to those who have hired them?
DIVIDED LOYALTIES
Many of these issues are concerns about so-called divided
loyalties. They arise when the psychiatrist is asked to
serve different masters under the same roof, each master
assigning tasks that seem to have incompatible goals.
Traditionally, physicians have been thought to owe
their first loyalties to their patients. Once a person has
been taken on as a patient, the physician should, in the
words of the Hippocratic oath, ‘Keep him [the patient]
from harm and injustice.’ More than just keeping the
patient from harm (non-maleficence), the physician also
has duties of beneficence to the patient. That is, there is a
duty not only not to harm the patient, but also a duty to
do good for the patient. These duties and the patient’s
concomitant rights to their performance may be thought
of as having their genesis in the fiduciary treatment con-
tract, or ‘special relationship’ formed between physician
and patient when the patient is accepted for treatment.
In this narrow contractual view, a physician’s obliga-
tions and a patient’s corresponding rights come into exist-
ence only when a physician and a putative patient both
agree to enter a treatment relationship. Presumably, under
this model, without the formal, contractual treatment
relationship, the physician has none of those special
obligations to an individual. However, there is a broader
contractual view holding that those duties of beneficence
 Psychiatric ethics in the correctional setting 535

and non-maleficence are more general and may be con- features of character that permit fully autonomous action
ceived of as obligations that go along with being considered (Kantor 1989a). ‘To explain is to excuse,’ and this explana-
a healthcare professional. In this alternative view, a physician tory tendency is another source of the psychiatrist’s duties
may have duties to help anyone who is in need whether or not to be punitive or judgmental toward patients. As far
not that person has formally signed on as a patient. back as Plato’s primitive theories of the human mind,
a person’s bad action was perceived as being caused by a
defective psyche. Psychological theory tends toward deter-
THE VIEW OF PYSCHIATRY AS NON-PUNITIVE minism and, while sympathetic to rehabilitative goals in
corrections, avoids ascribing moral blame; but the law and
its servant, the correctional system, assume that persons
In traditional psychiatric care, the physician’s duties of
have free will and are at least presumed to be responsible
beneficence are taken to include and stress requirements
and thus blameworthy and deserving of punishment when
that the psychiatrist be supportive, non-judgmental, and
they break the law.
non-punitive toward the patient. While these attitudes
The psychiatrist who is trained to be a humane, caring,
are generally useful in providing any type of effective and
and non-judgmental advocate for patients who goes to
humane healthcare, they may be essential for enabling
work in a correctional setting, becomes the employee of an
successful psychiatric treatment, which still depends so
institution that owes its first loyalty to society at large, not
much on words and trust rather than on what is available
to the individuals in its custody. Thus, a seeming paradox
at the pharmacy. The practice of keeping information
emerges: On the one hand, individual patients seek health-
given to the psychiatrist in confidence is crucial to this
care for themselves, not for society. They go to healthcare
relationship of trust. Confidentiality is important to all
providers and they reveal intimate information about
healthcare relationships. It encourages people to seek
themselves to the providers because they think it may help
treatment for complaints that could be perceived as
their own care, not usually because they have a desire to
embarrassing or stigmatizing or grounds for discrimin-
help society to keep order, or to pursue justice, or to pros-
ation if revealed to persons not involved in treating
ecute or punish them. The usual psychiatrist–patient rela-
the patient. It encourages patients not to withhold infor-
tionship is based on those patient needs or wants.
mation that might be essential to determining their diag-
On the other hand, ‘society at large’ may assign to the
nosis and treatment, particularly if the treatment is
psychiatrist-employee of a correctional institution those
psychiatric. It is the provider who has expertise to filter
very tasks of keeping order, pursuing justice, and even
out from all of what the patient says which information
the task of aiding in detecting what could be construed as
is necessary for diagnosis and treatment.
harm-causing behavior. The type of ‘privileged’ informa-
There are also more fundamental, theoretical reasons for
tion that is passed between patient and provider in the
those requirements that the psychiatrist be non-punitive
mental healthcare relationship often could be of great
to, and protective of, the patient. Historically, psycho-
use to the correctional institution in performing these
logical theories have tended to look for deterministic
external tasks.
explanations of human behavior (Lipkin 1990). These
Consequently, we have just some of the makings for
theories seek to locate the causes of persons’ behavior and
ethical conflict for the psychiatrist who agrees to help a
the roots of their character in places or times that were not
correctional institution in its functions.
controlled or created by them. These original causes and
How should one approach these dilemmas? Some
the means to alter their effects are assumed to be generally
may say that ethical issues should be decided by simply
inaccessible to, and unalterable by, persons without the
adhering to the formal codes of ethics of one’s profes-
help of a mental healthcare provider. That is, traditional
sion. However, it should be apparent from even a cursory
psychological theory seemed to imply that persons are not
examination of a number of the ethical issues cited here
really responsible for their own characters nor ever really
that codes of ethics may be too ambiguous to provide
in control of their actions, and thus they are not blame-
clear guidance. Thus, even ignoring questions about the
worthy for their bad behaviors.3 Even those theories that
underlying justifications for the contents of a profes-
accept the possibility of personal control and responsibility
sion’s codes of ethics, we are faced with questions about
imply that patients undergo psychiatric care precisely
the very possibility of an unambiguous rigid adherence
because, through no fault of their own, they lack those
to their specific requirements.

3
Thus, The New York Times, in a front page article about a study
claiming to correlate the probability of a juvenile exhibiting delin-
quency with the existence of immediate family members of the LIMITS OF TURNING TO THE LAW
delinquent who are criminals, quotes Dr. Terrie Moffit, a professor FOR SOLUTIONS
of psychology at the University of Wisconsin: ‘This shows that
where you really learn delinquency from is your family .… A crim-
inal is made when a three-year-old is not given consistent discip- In these days of concerns about malpractice, many would
line’ (The New York Times, January 31, 1992). like to simply turn to the law for directions. But laws
536 Correctional psychiatry

relevant to psychiatry can and do change through time textbooks, good laws and good codes of ethics should
and jurisdiction, as they have, for example, in regard to be looked upon as quick and useful guides to refer to in
requirements for psychiatric examination prior to abor- the hurried circumstances of professional work. Like
tions, or in regard to the criteria for the insanity defense, good clinical diagnoses, they should be based on sound
and in the bounds of the right to refuse psychiatric treat- and defensible theoretical principles. When a particular
ment. Laws can be ambiguous and unclear, as they are in demand of the law, or of the codes of ethics, or of profes-
regard to delineating the specific exceptions to medical sional practice, seems to lead to an ethical dilemma, it is
confidentiality in Tarasoff-type cases. Laws can be out- necessary to carry out further diagnosis – to go under the
right unethical, as most would say about laws that per- surface to a deeper level of conceptual analysis.
mitted slavery. Laws may be of questionable or disputable
ethics, as some would say about pre-Donaldson (O’Connor
v. Donaldson 1975) involuntary commitment criteria, STEPS TOWARDS SOLUTIONS
and some others would say about post-Donaldson invol-
untary commitment criteria.
In this short space, it is possible only to suggest some
There are others who suggest that some of the ethical
steps to take toward analysis and resolution of ethical
issues can be solved or avoided if the psychiatrist tries to
dilemmas. First, of course, is to realize that there do exist
adhere strictly to the objective clinical–scientific require-
ethical and conceptual issues that cannot be ignored or
ments of the profession. This approach is sometimes pre-
rationalized out of existence. That is, there must be a
sented as a suggestion that forensic psychiatrists, who are
recognition that there are issues that cannot be solved
not working in treatment roles, distinguish themselves
simply by looking to ‘good traditional clinical practice,’
and their role in the correctional system from those psych-
or sidestepped by blindly trying to follow an unexamined
iatrists whose role is to treat. Psychiatrists who believe
code of ethics or law, or a directive issued by the employ-
that a physician’s obligations to treat those in need of
ing institution. Second, the underlying conceptual source
treatment extend beyond those persons who are his or
or sources of the ethical dilemma should be found and
her formally contracted patients may have problems with
analyzed. Ethical dilemmas exist when there is real or
this attempted escape route. That is, they would claim
perceived conflict between the demands of a few differing
that any trained and licensed physician cannot avoid
fundamental and persuasive ethical theories. Sometimes
a professional obligation to treat anyone who appears
the dilemmas are simply the product of unclarity or
before them seemingly in need of treatment, and have
confusion about the implications of just one persuasive
an obligation to look to the welfare of such persons.
ethical theory. In those latter instances, a dilemma may
The author has also mentioned the dubiousness of this
resolve itself once the issues and case facts are clarified.
‘hand-washing’ approach in another place (Kantor
Psychiatrists should have a working knowledge of these
1989b) when referring to Nazi physicians who made dis-
important ethical theories that serve as the conceptual
passionate scientific ‘professional’ evaluations about the
underpinnings of both our legal system and our profes-
fitness of concentration camp inmates to either continue
sional codes of ethics. A conceptual analysis of the basic
working as slave labor, or to be killed. One cannot avoid
causes for feelings of ethical uneasiness and conflict will,
responsibility for the foreseeable consequences or future
at the minimum, clarify what is relevant to the issues
uses of one’s ‘objective scientific findings.’ Nor would
involved and thus will direct any discussion of the issues
such an approach solve the issues of those psychiatrists
in useful directions. At the least, psychiatrists should be
working in a treatment role.
familiar with those three or four major ethical theories
There are those, like Stone (1984), who believe that
that have the most impact on the structure of the health-
the answers to unsolved philosophical issues such as the
care provider-patient relationship. Among these theories
free will–determinism dispute are so crucial to deciding
are Kantian or Autonomy theory, Consequentialist or
forensic issues like criminal responsibility as to make it
Utilitarian theory, and Social Contract theory.
impossible to carry out ethical forensic psychiatry until
they are solved. Yet, for psychiatrists to withdraw entirely
from the legal system might itself have unethical con-
sequences. That route probably would leave mentally ill
RELEVANT ETHICAL THEORIES
prisoners without treatment, would leave at least some
accused criminals without adequate defense, and would Very briefly, and with little justice to the fullness of each
hamper the chances for rehabilitation of many convicted of the theories, they may be described as follows:
criminals. Autonomy approaches, based on Kant’s (1959) philoso-
None of this is meant to imply that the law, or codes phy, stress a primary and over-riding obligation to respect
of ethics, or the standards of clinical practice, are never competent adults’ right to self-determination. Kant did
ethical. It is meant to imply that the directives given by not believe in a deterministic view of human nature
the law and by codes of ethics must be subject to examin- and, on the contrary, believed that our very essence as
ation, analysis, and conceptual justification. Like clinical persons is our capacity to be responsible for our actions.

For Kant’s version of this approach, it is that capacity to
be responsible, to govern our own behavior, that makes
us persons and gives us infinite value. That capacity to
be responsible and self-governing must be respected
above all else. For example, an unconsenting person is
never to be treated solely as a tool to be used in some pro-
ject to achieve some end – whether that end is another
individual’s benefit, the person’s own benefit, or the gen-
eral interest and welfare of society. The person has the
right and must always be given the opportunity to give or
refuse consent to participate in such projects.
Recognition of that right to self-determination and
responsibility entails, for example, that persons have
derivative rights to informed consent in regard to pro-
posed medical treatment. In addition, they have a right
that promises made to them are kept; that would include
promises of confidentiality, for example. To deny a per-
son his or her right to self-determination, even for his/
her benefit, is to infantilize them. Persons’ rights are not
limitless, for we are all in reciprocal relations with one
another. The person him/herself does not have the right
to use others as unconsenting means towards some end,
and is blameworthy and perhaps punishable if he or she
does so. Crimes against person and property do usually
involve using others as a means to promoting one’s own
interests. In accord with that, and like the Social Contract
theory described below, that responsibility may include
being deserving of punishment under certain circum-
stances. In fact, for Kant’s version of the theory, at least,
punishment actually is a mark of respect for the pun-
ished. It is to say, ‘You chose freely to do wrong, you knew
the consequences of your choice, and now you must pay.’
Conversely, the theory would hold that it is wrong to
blame or punish those who acted wrongly, but were not
responsible for their actions such as the insane.
For persons who lack the capacity to be self-
determining, Autonomy theory recommends that decisions
involving them be made according to what the person
would have wished had he or she the capacity to decide
for him/herself. This is termed substituted judgment.
(That is opposed to the view that we should simply try to
act in the person’s best interests.) The theory also entails
that any obligations and rights that come with one’s sta-
tus or role as a ‘patient,’ or a ‘psychiatrist,’ or a ‘prisoner,’
are subsidiary to, and must not conflict with, the funda-
mental rights and obligations that come with being a
‘person.’ For example, a physician qua physician has an
obligation to do good for the patient, but cannot do so at
the expense of the patient’s basic right as a person to
refuse treatment.
Consequentialist or Utilitarian (Mill 1961) approaches
claim that the rightness of any proposed action, law, or
policy is determined by the effect that the action, law,
or policy will have on the general well-being of society.
Every action has ripple effects that reach out in many dir-
ections, and those effects on society must be considered
in moral reckoning. Thus, ethical thinking requires a
Psychiatric ethics in the correctional setting 537
difficult and complex projection about the probable
immediate, distant, and long-term effects of possible
actions, laws and policies. The right action is one that best
promotes total benefit to society or, given dismal alterna-
tives, the action that produces the least pain for society.
Because such analysis is so complex, some so-called Rule
Utilitarians argue that we can generalize rules of behav-
ior rather than having to analyze each instance. Thus,
they might argue that one always ought to keep promises
because promise-keeping tends to promote the general
happiness even though it may not in an individual case.
While Rule Utilitarians may believe that the recognition
of rights generally promotes good for society, the bottom
line is that, for this theory, individual rights and interests
are subservient to the promotion of the general welfare
of society.
Social Contract theory4 conceives of many, if not all,
rights and obligations as created by agreements made
between individual persons, between persons and soci-
ety, between persons and institutions, and between insti-
tutions and society. In Social Contract theory, parties to
such agreements incur obligations in return for their
gaining rights. We have already alluded to the theory
when analyzing the source of the physician’s obligation
to be beneficent. In a narrow contractual view, that obli-
gation comes into existence when a treatment contract is
created by a physician and a patient. In return for the
physician’s obligations to the patient, the physician gains
the right to a fee and, at least to some degree, a right to
the patient’s cooperation in treatment.
In a broader view, it could be argued that an obliga-
tion to treat anyone in need, whether or not they have
entered into a formal contract with the physician, may
derive from the profession’s contract with society. In this
view, society demands that Good Samaritan obligation in
return for licensing physicians the right to practice medi-
cine, while excluding unlicensed persons from practicing
medicine. In the same context, we hinted that Social
Contract theory is useful, if not definitive, in analyzing
the range of duties that society may justly demand of a
professional in return for the right to practice a profes-
sion, and in analyzing the demands a professional organ-
ization or employer may justly make on a member or
employee in return for the privileges of certification or
the right to a pay check.
Each of these theories seems to have at least some merit,
but also seem to lead to different conclusions about what
is ethically correct. It is often conflict, or seeming conflict
among these approaches to actions or policies, that is the
root of ethical unease. In some instances, ethical conflict
may result from unclarity about the implications that a
single theory has for a proposed course of action. Again,
at the least, an examination of the implications of each of
4
There are really a number of Social Contract theories (e.g.,
Hobbes, Rousseau) with significant differences among them. What
are noted here are those factors they share.
538 Correctional psychiatry
these theories will clarify an issue. In some cases, a think-
ing through of the implications may dissolve the conflict,
by showing that, if fully thought through, the different
theories really come to similar conclusions about an issue.
SAMPLE ETHICAL ANALYSIS
As an example, we can briefly analyze the issue of whether
information given during treatment should be later used
for competency evaluations or for sentencing evaluations.
An Autonomy theory approach would demand that, at the
minimum, patients have the right to be warned before the
onset of treatment about any limits to confidentiality.
More than that, there might be reason to believe that
the very threat of information being later used against
the prospective patient’s interests would really place the
detainee in an untenable situation in which any decision
he or she made about accepting or rejecting treatment
could not be reasonably seen as voluntary. If that were
true, then the theory would probably require that treat-
ment information be entirely isolated from other uses,
unless the patient gave uncoerced and voluntary con-
sent for other uses of information. There are possible
exceptions when information may be released without
the patient’s consent while remaining consistent with
Autonomy theory. One possible exception for the uncon-
sented use of such information would be Tarasoff-type
situations. While the right of self-determination is sacro-
sanct in the theory, the right to self-determination does
not include the right to interfere with other persons’ self-
determination by causing them serious harm. In those
situations, patients have no right to expect that confiden-
tiality will be kept (though Kant himself seemed to argue
that a promise of confidentiality is sacrosanct).
Utilitarian theory, with its primary concern for the
general welfare of society, might seem to imply that the
greater good might be served by allowing the informa-
tion gleaned in treatment to be used in those other con-
texts. After all, that approach would simplify and keep
down the expenses and complexity of record keeping,
allow the hiring of fewer psychiatrists, and, perhaps,
smooth the running of the correctional system. However,
Utilitarian theory requires a very careful consideration of
all the possible and likely consequences of a projected
policy. A closer and fuller analysis along Utilitarian lines
would have to take into account the long-term impact
that any loosening of confidentiality would have. For
example, would such a policy discourage prisoners from
seeking treatment and thus result in large long-term
costs and problems for the institution and for society?
Would the loosening of rights to confidentiality jeopard-
ize general trust in psychiatrist–patient relationships?
Would the knowledge that they were serving as ‘double-
agents’ directly through testimony, or indirectly through
the use of their notes, hamper psychiatrists’ own ability
to give adequate treatment? Considering those factors,
it is possible that a fully considered Utilitarian analysis
might also end with a recommendation that confiden-
tiality in the treatment relationship be kept sacrosanct.
In order to permit the use of information obtained in
treatment to be used in other contexts, a Social Contract
theory approach would probably demand disclosure
about limits of confidentiality before the onset of a treat-
ment relationship. Prospective prisoner patients would
have to be told that the expectations in regard to confiden-
tiality in a treatment relationship within the correctional
facility differ from the reasonable expectations that per-
sons may have in a ‘normal’ physician–patient relation-
ship. However, like autonomy approaches, contract
approaches imply that the parties to a contract should not
only have information about the consequences of entering
an agreement but should have the ability to agree to the
contract with at least some degree of voluntariness.
Perhaps exceptions to the necessity of voluntary acquies-
cence would be instances in which a very compelling soci-
etal interest could justify forcing obligations upon a
person. Or, it might be argued that a prisoner loses some
rights to confidentiality. Whether there was a compelling
interest that would justify the unconsenting use of treat-
ment information would be determined by doing an
analysis of the probable consequences of such a policy that
would resemble the Utilitarian analysis previously out-
lined. All things considered, it might be the case that Social
Contract theory would also prohibit the unconsenting use
of information obtained in treatment.
These were by no means meant to be full ethical
analyses of the issue, but only hints as to how a full analy-
sis might proceed.
DEALING WITH ETHICS AND ETHICAL ISSUES
More than just having a familiarity with basic ethical prin-
ciples, psychiatrists should consider the task of keeping up
with current ethics literature as an integral and inseparable
part of their general obligation to keep up with develop-
ments in their profession. There is a great deal of sophisti-
cated analysis and ongoing discussion of relevant issues
such as confidentiality, consent, and divided loyalties
present in the ethics and medical ethics literature.
Hospital ethics committees
Ethics committees are now almost a requirement in hos-
pitals. While correctional psychiatrists are often isolated
from usual hospital practice, it still would be possible to
use hospital ethics committees as a resource in dealing
with issues. There is usually some type of affiliation
between the correctional facility and area hospitals.
On the wider front, the professional organizations,
such as the American Psychiatric Association and the

American Academy of Psychiatry and the Law, should be
open to a constant vigilance for ethical issues and should
possess a ready willingness to constantly reevaluate their
codes of ethics. The fact that a professional organization
has an ‘ethics committee’ solely set up to deal with com-
plaints about ‘unethical’ behavior is not evidence that the
organization is set up to consider ‘ethics’ in the sense that
we use the term here.
On the narrower front, each mental health unit within
a correctional system should have a mechanism for enab-
ling regular and ongoing discussion of ethical issues that
come up in the unit. A hasty en passant ‘corridor consul-
tation’ approach to handling these issues is not adequate.
Such a mechanism should have a formal system for con-
sidering problematic cases and, as well, should create
explicit unit policies to deal with ongoing and common
issues on a prospective basis. If specific cases raise ethical
issues, discussion and resolution of those issues should
ordinarily be documented in the patient’s case record. If
associated with a hospital, the unit should be represented
on the hospital ethics committee. These unit structures
should also have facilitated access to professional soci-
eties in order to be able to alert the profession about the
existence of issues that are felt to be of general concern
and, perhaps, to be able to make recommendations to the
societies about ways to resolve these concerns.
It may be that after all the ethical analysis has been
performed a problem may remain intractable. In some
instances, the intractability results from the unavailability
of facts that would be needed to guide a satisfactory reso-
lution of an issue. In other instances, it may be that a full
ethical analysis does not eventuate with a reconciliation
among seeming conflicting prescriptions of the various
basic ethical theories. In the former case, compromise
rather than reasonable certainty may be necessary in
making decisions. In the latter case, one ultimately may
Psychiatric ethics in the correctional setting 539
be forced to choose sides according to the basic ethical
theory that seems most convincing. In either case and in
any case, actions chosen after methodical examination of
the nature of the ethical mire still give a better chance of
eventual extrication than do actions taken blindly.
REFERENCES
Estelle v. Smith, 451 U.S. 454 (1981).
Ford v. Wainwright, 477 U.S. 399 (1986).
Hobbes, T. 1958: Leviathan (Parts I and II). Indianapolis:
Bobbs-Merrill.
Kant, I. 1959: Foundations of the Metaphysics of Morals.
Lewis White Beck (translation). Indianapolis:
Bobbs-Merrill.
Kantor, J.E. 1989a: Psychiatry in the service of the
criminal justice system: some conceptual and
ethical issues. In Rosner, R., Harmon, R.B. (eds),
Correctional Psychiatry. New York: Plenum,
169–86.
Kantor, J.E. 1989b: Medical Ethics for Physicians-in-
Training: 1. New York: Plenum.
Lipkin, R.J. 1990. The promise of forensic psychiatry.
International Journal of Law and Psychiatry 13, 331–59.
Mill, J.S. 1961: Essential Works of John Stuart Mill.
In Lemer, M. (ed.). New York: Bantam.
O’Connor v. Donaldson, 422 U.S. 563 (1975).
Rousseau, J.J. 1947: The Social Contract. In Frankel, C.
(translation, ed.). New York: Hafner.
Stone, A.A. 1984: Law, Psychiatry and Morality.
Washington, DC: American Psychiatric Press.
Szasz, T.S. 1963: Law, Liberty, and Psychiatry. New York:
Collier.
Washington v. Harper, 110 S. Ct. 1028 (1990).
This page intentionally left blank
 7
PART

Special clinical issues in

forensic psychiatry

55 Malingering 543
Phillip J. Resnick
56 Antisocial personality, psychopathy and forensic psychiatry 555
William H. Reid and Maria S. Ruiz-Sweeney
57 Dangerousness 564
Gregory B. Leong, J. Arturo Silva and Robert Weinstock

58 Violence: causes and non-psychopharmacological treatment 572

Kenneth Tardiff
59 Pharmacological treatment of violent behaviors 579
Robert H. Gerner
60 Violence and epilepsy: an approach to expert testimony 589
David M. Treiman
61 Brain disease: forensic neuropsychiatric issues 603
Mace Beckson and George Bartzokis
62 Forensic neuropsychology 612
Charles H. Hinkin, Delany Thrasher and Wilfred G. van Gorp
63 Psychological and psychiatric measures in forensic practice 621
Richard Rogers and Diane Graves-Oliver
64 Culture and ethnicity 631
J. Arturo Silva, Gregory B. Leong and Robert Weinstock
65 Forensic uses of hypnosis 638
David Spiegel
66 Amnesia, amytal interviews and polygraphy 643
John Bradford and Victoria L. Harris
67 Geriatric psychiatry and the law 651
Daniel J. Sprehe
542 Special clinical issues in forensic psychiatry

68 Terrorism and forensic psychiatry 661

William H. Reid and Chris E. Stout

69 Torture and brainwashing 669

Rahn Kennedy Bailey

70 Substance abuse and addiction 672

Mace Beckson, George Bartzokis and Robert Weinstock

71 Psychopharmacological treatment of sex offenders 685

John Bradford and Victoria L. Harris

72 Prosecution of assaultive patients 699

Gary J. Maier and Stephen Rachlin

73 Treatment of sex offenders 705

Gene G. Abel and Candice A. Osborn

74 Sexually violent predator laws 717

Douglas E. Tucker and Samuel Jan Brakel

75 Brain imaging 724

Rusty Reeves and Stephen B. Billick

76 Stalking 728
Mohan Nair

77 Head trauma: a practical approach to the evaluation of symptom exaggeration 736

Shoba Sreenivasan, Spencer Eth, Patricia Kirkish and Thomas Garrick

78 Psychiatric abuse in North America 741

Alfred M. Freedman and Abraham L. Halpern

79 Actuarial methods for violence and sex-offender risk assessments 750

Shoba Sreenivasan, Patricia Kirkish, Thomas Garrick and Linda E. Weinberger

80 ERISA, healthcare and the courts 756

J. Richard Ciccone

Malingering
PHILLIP J. RESNICK
INTRODUCTION
Malingering is defined in DSM-IV as ‘the intentional
production of false or grossly exaggerated physical or psy-
chological symptoms, motivated by external incentives
such as avoiding military duty, avoiding work, obtaining
financial compensation, evading criminal prosecution, or
obtaining drugs.’ In contrast, factitious disorders involve the
intentional production of symptoms in order to assume a
patient role. Both disorders require a deceitful state of mind.
False imputation refers to the ascribing of actual
symptoms to a cause consciously recognized as having
no relationship to the symptoms. For example, authentic
psychiatric symptoms due to clearly defined stresses at
home may be falsely attributed to a traumatic event at
work in order to gain compensation (Resnick 1984).
Persons usually malinger mental illness for one of the
following five purposes:
1 Criminals may seek to avoid punishment by pretending
to be incompetent to stand trial, insane at the time
of the crime, worthy of mitigation at sentencing, or
incompetent to be executed.
2 Malingerers may seek to avoid conscription into the
military, be relieved from undesirable military assign-
ments, or avoid combat.
3 Malingerers may seek financial gain from social secur-
ity disability, veterans’ benefits, workers’ compensation,
or damages for alleged psychological injury.
4 Prisoners may malinger to obtain drugs, or to be trans-
ferred to a psychiatric hospital in order to facilitate
escape or do ‘easier time.’
5 Malingerers may seek admission to a psychiatric hos-
pital to avoid arrest or to obtain free room and
board – known colloquially as ‘three hots and a cot.’
CLINICAL METHODS FOR DETECTING
MALINGERING
Clinicians should utilize multiple sources of data includ-
ing interviews, collateral sources of information, and
55
psychometric tests in detecting malingering (Ziskin and
Faust 1995; Resnick 1997). Reliance on clinical interviews
alone will not allow the examiner to diagnose malinger-
ing in any but the most obvious cases.
When a litigant is suspected of malingering, the clin-
ician must look carefully for evidence of inconsistency in
symptoms:
1 There may be inconsistency in the subject’s report itself.
For example, a malingerer may articulately explain that
he or she is confused and unable to think correctly.
2 There may be inconsistency in what a person reports
and the symptoms that are observed. For example, a
malingerer may state that he or she is hearing voices
during the interview, but show no evidence of being
distracted.
3 There may be inconsistency in observation of the
symptoms themselves. For example, a hospitalized
patient may behave in a confused manner with a psy-
chiatrist, but then play excellent bridge on the ward
with other patients.
4 There may be inconsistency between performance on
psychological testing and a malingerer’s report of his or
her level of performance. For example, a litigant may
state on an intelligence test that he/she does not know
how many legs are on a dog, but be performing well as
an investment banker.
5 There may be inconsistency between what the malin-
gerer reports and how genuine symptoms manifest
themselves. For example, a defendant may report that
visual hallucinations are seen in black and white,
whereas genuine visions are seen in color.
APPROACHES TO DETECTING MALINGERING
Clinicians should be particularly careful to ask open-ended
questions in suspected malingerers and let evaluees tell
their complete story with few interruptions. Details can be
clarified later with specific questions. Inquiries about hallu-
cinations should be carefully phrased to avoid giving clues
about the nature of true hallucinations. The examiner
544 Special clinical issues in forensic psychiatry
should try to ascertain whether the subject has ever had
the opportunity to observe psychotic people (e.g., during
prior employment). Clinicians may feel irritation at being
deceived, but any expression of irritation or incredulity is
likely to make the malingerer more defensive (Miller and
Cartlidge 1972).
Clinicians may modify their interview style when
defendants are suspected of malingering psychosis. The
interview may be prolonged since fatigue diminishes the
malingerer’s ability to maintain a counterfeit account
(Anderson, Trethowan, and Kenna 1959). Rapid firing of
questions increases the likelihood of getting contradic-
tory replies from malingerers, but it may also create con-
fusion among mentally impaired persons. The clinician
may get additional clues by asking leading questions that
emphasize a different illness than the malingerer is trying
to portray (Ossipov 1944). Questions about improbable
symptoms may be asked to see if the malingerer will
endorse them. For example, ‘Have you ever believed that
automobiles are members of an organized religion?’
(Rogers 1987). Another device is to mention, within ear-
shot of the suspected malingerer, some easily imitated
symptom that is not present. The sudden appearance of
the symptom suggests malingering.
Inpatient assessment should be considered in difficult
cases of suspected malingering. Feigned psychotic symp-
toms are difficult to maintain 24 hours a day. After com-
pleting a detailed examination, the clinician may decide
to confront an evaluee with his or her suspicions. The sus-
pected malingerer should be given every opportunity to
save face. Once malingering is denied, there is a risk that it
will be harder to admit later. It is better to say,‘You haven’t
told me the whole truth,’ than,‘You have been lying to me’
(Inbau and Reid 1967).
Detailed knowledge about actual psychotic symptoms
is the clinician’s greatest asset in recognizing simulated
psychosis. Therefore, the phenomenology of genuine
hallucinations, delusions, and other syndromes will be
reviewed in this chapter.
MALINGERED HALLUCINATIONS
Persons reporting hallucinations with any atypical features
should be questioned in great detail about the nature of
their symptoms. Both psychotic (Goodwin, Alderson, and
Rosenthal 1971) and acute schizophrenic patients (Mott,
Small, and Andersen 1965; Small, Small, and Andersen
1966) show a 76 per cent rate of hallucinations in at least
one sensory modality. The reported incidence of auditory
hallucinations in schizophrenic patients is 66 per cent
(Mott, Small, and Andersen 1965; Small, Small, and
Andersen 1966). Some 64 per cent of hallucinating
patients describe hallucinations in more than one modality
(Small, Small, and Andersen 1966). The incidence of visual
hallucinations in psychotics is estimated at 24 per cent
(Mott, Small, and Andersen 1965) to 30 per cent (Small,
Small, and Andersen 1966). Hallucinations are usually (88
per cent) associated with delusions (Lewinsohn 1970), and
are also generally intermittent, rather than continuous
(Goodwin, Alderson, and Rosenthal 1971).
Auditory hallucinations
Goodwin, Alderson, and Rosenthal (1971) described the
following characteristics of auditory hallucinations. Both
male and female voices were heard by 75 per cent of the
patients in their study. Two-thirds of hallucinating sub-
jects could identify the person speaking (Goodwin,
Alderson, and Rosenthal 1971; Kent and Wahass 1996;
Leudar et al. 1997). The message was usually clear, being
vague in only 7 per cent of the cases. The content of
hallucinations was accusatory in about one-third of the
cases. Small, Small, and Andersen (1966) reported that
the major themes in auditory hallucinations of schizo-
phrenic patients were persecution or instructions.
Auditory hallucinations usually consist of single words
or phrases, especially early in the disease process (Nayani
and David 1996; Leudar et al. 1997). Hallucinated voices
tend to become more complex over time, from single words
to entire sentences, and the number of voices heard also
increases (Leudar et al. 1997). The syntax of longstanding
auditory hallucinations is usually in complete sentences,
and mirrors the syntax typically used by the patient
(Nayani and David 1996). In affective disorders, the con-
tent of the hallucination is usually mood-congruent and
related to delusional beliefs (Asaad 1990).
Schizophrenic hallucinations tend to consist of ego-
dystonic, derogatory comments about the patient or the
activities of others (Goodwin, Alderson, and Rosenthal
1971; Oulis et al. 1995; Leudar et al. 1997). Nayani and
David (1996) reported that the most commonly encoun-
tered hallucinations were simple terms of abuse. Female
subjects described terms of abuse conventionally directed
at women suggesting promiscuity, while men described
male insults such as those inputing homosexuality.
About one-third of persons with auditory hallucin-
ations reported that voices asked them questions. Voices
never sought information such as ‘What time is it?’ or
‘What is the weather like?’ Instead, they asked questions
such as ‘Why are you smoking?’ or ‘Why didn’t you do your
essay?’ (Leudar et al. 1997).
Leudar et al. (1997) found that most patients in their
study engaged in an internal dialogue with their hallucin-
ations. Many were able to cope with chronic hallucinations
by incorporating them into their daily life as a kind of
internal advisor. They considered their advice in the con-
text of the moment. Interestingly, sometimes their hal-
lucinated voices would insist on certain actions after the
patient refused to carry them out. The voices would
rephrase their requests, speak louder, or curse the patient
for being non-compliant. In contrast, malingerers are

more likely to claim that they were compelled to obey com-
mands without further consideration. Some malingerers
describe voices in a stilted manner, such as ‘Go commit a
sex offense.’ Other malingerers describe far-fetched com-
mands, such as a robber who alleged that (malingered)
voices kept screaming, ‘Stick up, stick up, stick up!’
Hallucinated voices are usually perceived as benevolent
or malevolent. In a study by Chadwick and Birchwood
(1994), patients commonly said that evil commands were
evidence that the voice was bad, and kind protective
words were evidence that the voice was good. Malevolent
voices evoke negative emotions (anger, fear, depression,
anxiety). Patients often respond by arguing, shouting, non-
compliance, and avoidance of cues that trigger voices.
Benevolent voices usually provoke positive emotions
(amusement, reassurance, calm, happiness). Patients often
respond by elective listening, willing compliance, and
doing things to bring on their benevolent voices.
Persons suspected of feigning auditory hallucinations
should be asked what they do to make the voices go away
or diminish in intensity. Genuine patients are often able
to stop auditory hallucinations when their schizophrenia
is in remission, but not during the acute phase of their
illness (Larkin 1979). Frequent coping strategies among
actual schizophrenics are:
• specific activities (working or watching TV);
• changes in posture (e.g., lying down or walking);
• seeking out interpersonal contact; and
• taking medication (Falloon and Talbot 1981; Kanas
and Barr 1984).
Schizophrenic hallucinations tend to diminish when
patients are involved in activities (Goodwin, Alderson, and
Rosenthal 1971). Patients with genuine malevolent halluci-
nations usually develop some strategies to decrease them.
The suspected malingerer may also be asked what
makes the voices worse. Some 80 per cent of persons with
genuine hallucinations reported that being alone worsened
their hallucinations (Nayani and David 1996). Voices were
also made worse by listening to the radio and watching
television (Leudar et al. 1997), with news programs being
particularly hallucinogenic.
Command auditory hallucinations
Command hallucinations are auditory hallucinations that
instruct a person to act in a certain manner. Command
hallucinations are easy to fabricate in order to support an
insanity defense.
The majority of commands to commit dangerous acts
are not obeyed. Thus, the examiner must be alert to the
possibility that a defendant may fake an exculpatory com-
mand hallucination or lie about an inability to refrain
from a genuine or faked hallucination. Knowledge of the
frequency of command hallucinations and the factors
associated with obeying commands is helpful in looking
at the authenticity of such claims.
Malingering 545
Hellerstein, Frosch, and Koenigsberg (1987) found in a
retrospective chart review that 38 per cent of all patients
with auditory hallucinations reported commands. Studies
of schizophrenic auditory hallucinations found that 30–64
per cent included commands or instructions (Mott, Small,
and Andersen 1965; Small, Small, and Andersen 1966;
Goodwin, Alderson, and Rosenthal 1971; Hellerstein,
Frosch, and Koenigsberg 1987). Command hallucinations
occurred in 30 per cent (Goodwin, Alderson, and Rosenthal
1971) to 40 per cent (Mott, Small, and Andersen 1965) of
alcoholic withdrawal hallucinations. Patients with affective
disorders reported that 46 per cent of their hallucinations
were commands (Goodwin,Alderson, and Rosenthal 1971).
Hellerstein, Frosch, and Koenigsberg (1987) reported
that the content of command hallucinations was the
following: 52 per cent suicide, 5 per cent homicide, 12 per
cent non-lethal injury of self or others, 14 per cent non-
violent acts, and 17 per cent unspecified. The research
method of reviewing charts, rather than making direct
inquiries, probably increased the relative proportion of
violent commands since these are more likely to be charted.
Earlier research suggested that hallucinatory com-
mands are generally ignored by patients (Goodwin,
Alderson, and Rosenthal 1971; Hellerstein, Frosch, and
Koenigsberg 1987). However, Junginger (1990) reported
that 39 per cent of patients with command hallucinations
obeyed them. Those patients with hallucination-related
delusions and hallucinatory voices that they could iden-
tify were more likely to comply with the commands.
Kasper, Rogers, and Adams (1996) reported that 84 per
cent of psychiatric inpatients with command hallucin-
ations had obeyed them within the last thirty days. Rogers
et al. (1990) found that 44 per cent of a forensic popu-
lation with command hallucinations reported that they
frequently responded with unquestioning obedience.
Among those reporting command hallucinations in a sec-
ond forensic population, 74 per cent indicated that they
acted in response to some of their commands during the
episode of illness (Thompson, Stuart, and Holden 1992).
Junginger (1995) studied the relationship between
command hallucinations and dangerousness, and found
that 43 per cent of subjects reported full compliance with
their most recent command hallucination. Compliance
with commands is much less likely if the commands
are dangerous (Junginger 1995; Kasper, Rogers, and
Adams 1996). A defendant alleging an isolated command
hallucination in the absence of other psychotic symptoms
should be viewed with great suspicion. Non-command
auditory hallucinations (85 per cent) and delusions
(75 per cent) are usually present with command hallu-
cin-ations (Thompson, Stuart, and Holden 1992).
Visual hallucinations
Visual hallucinations are usually of normal-sized
people, and are seen in color, while alcohol-induced
546 Special clinical issues in forensic psychiatry
hallucinations are more likely to contain animals
(Goodwin, Alderson, and Rosenthal 1971). Visual hallu-
cinations in psychotic disorders appear suddenly and
typically without prodromata (Asaad and Shapiro 1986).
Psychotic hallucinations do not usually change if the eyes
are closed or open. In contrast, drug-induced hallucina-
tions are more readily seen with the eyes closed or in
darkened surroundings (Asaad and Shapiro 1986).
Occasionally, small (Lilliputian) people are seen in
alcoholic, organic (Cohen, Alfonso, and Haque 1994), or
toxic psychoses (Lewis 1961), especially anticholinergic
drug toxicity (Asaad 1990). The little people are some-
times 1–2 inches (2.5–5 cm) tall, but at other times they
may be up to 4 feet (1.3 meters) in height. Lilliputian hal-
lucinations are rarely seen in schizophrenia (Leroy 1922).
Only 5 per cent of visual hallucinations in a study reported
by Goodwin, Alderson, and Rosenthal (1971) consisted
of miniature or giant figures.
Visual hallucinations are volunteered much more
often (46 per cent versus 4 per cent) by malingerers than
by genuinely psychotic individuals (Cornell and Hawk
1989). Dramatic, atypical visual hallucinations should
definitely arouse suspicions of malingering (Powell 1991).
MALINGERED DELUSIONS
Delusions are not merely false beliefs that cannot be
changed by logic. A delusion is a false statement made in
an inappropriate context and most importantly, with
inappropriate justification. Normal people can give rea-
sons, can engage in a dialogue, and can consider the pos-
sibilities of doubt. Persons with true delusions cannot
provide adequate reasons for their statements.
Delusions vary in content, theme, degree of certainty,
degree of systematization, and degree of relevance to the
person’s life in general. The more intelligent the person,
the more elaborate his or her delusional system will
usually be. According to Spitzer (1992), most delusions
involve the following general themes: disease (somatic
delusions), grandiosity, jealousy, love (erotomania), per-
secution, religion, being poisoned, and being possessed.
Delusions of nihilism, poverty, sin, and guilt are com-
monly seen in depression. Technical delusions refer to
the influence of such items as telephone, telepathy, and
hypnosis. By technical means, signals and voices can be
transmitted to patients. Delusions of technical content
occur seven times more often in men than in women
(Kraus 1994).
A malingerer may claim the sudden onset of a delu-
sion, but in reality systematized delusions usually take
several weeks to develop. As true delusions are given up,
they first become somewhat less relevant to the everyday
life of the patient, but the patient still adheres to the delu-
sional belief. A decrease in preoccupation with delusions
may be the first change seen with adequate treatment.
Table 55.1 Suspect hallucinations and delusions
Auditory hallucinations
Continuous rather than intermittent hallucinations
Vague or inaudible hallucinations
Hallucinations not associated with delusions
Stilted language reported in hallucinations
Inability to state strategies to diminish voices
Hallucinated questions seeking information
Self-report that all command hallucinations
were obeyed
Visual hallucinations
Black and white rather than color
Dramatic, atypical visions
Schizophrenic hallucinations that change when the
eyes are closed
Only visual hallucinations in schizophrenia
Miniature or giant figures
Visions unrelated to delusions or auditory
hallucinations
Delusions
Abrupt onset or termination
Eagerness to call attention to delusions
Conduct not consistent with delusions
Bizarre content without disordered thinking
In a later stage, the patient might admit to the possibility
of error, but only as a possibility. Only much later will
the patient concede that the ideas were, in fact, delusions
(Sachs, Carpenter, and Strauss 1974). Thus, malingering
should be suspected if a person claims that a delusion
suddenly appeared or disappeared.
In assessing the genuineness of delusions, the clinician
should consider their content and the person’s associated
behavior. The content of feigned delusions is generally
persecutory, occasionally grandiose, but seldom self-
depreciatory (East 1927; Davidson 1952). Malingerers’
behavior usually does not conform to their alleged delu-
sions, whereas acute schizophrenic behavior usually does.
However, ‘burned out’ schizophrenic patients may no
longer behave in a manner consistent with their delusions
after several months. Details of suspect hallucinations
and suspect delusions are summarized in Table 55.1.
CLINICAL INDICATIONS OF MALINGERED
PSYCHOSIS
All malingerers are actors who portray their psychoses as
they understand them (Ossipov 1944). However, malin-
gerers often overact their part (Wachpress, Berenberg,
and Jacobson 1953), and sometimes mistakenly believe
that the more bizarrely they behave, the more psychotic
they will appear.
Malingerers are eager to call attention to their ill-
nesses; this is in contrast to schizophrenic patients, who
are often reluctant to discuss their symptoms (Ritson
and Forest 1970). One malingerer stated that he was an

‘insane lunatic’ when he killed his parents at the behest of
hallucinations that ‘told me to kill in my demented state.’
Malingering defendants may try to take control of the
interview and behave in an intimidating, bizarre manner.
The clinician should avoid the temptation to terminate
such an interview prematurely. Malingerers sometimes
accuse clinicians of regarding them as faking. Such behav-
ior is extremely rare in genuinely psychotic persons.
It is more difficult for malingerers to successfully imi-
tate the form than the content of schizophrenic thinking
(Sherman, Trief, and Sprafkin 1975). Derailment, neolo-
gisms and incoherent word salads are rarely simulated.
Positive symptoms of schizophrenia are faked more often
than negative symptoms.
Malingerers give more approximate answers to ques-
tions than schizophrenic patients, such as ‘there are fifty-
three weeks in the year’ (Bash and Alpert 1980; Powell
1991). Persons malingering psychosis also often choose to
fake intellectual deficits (Bash and Alpert 1980; Schretlen
1988; Powell 1991). For example, a man who completed
one year of college alleged he did not know the colors of
the American flag. Malingerers are more likely to answer
‘I don’t know’ to detailed questions about psychotic
symptoms, such as hallucinations and delusions. This
response may simply mean that they do not know how to
answer because they have never actually experienced the
symptoms. When asked whether an alleged voice was
male or female, one malingerer replied, ‘It was probably a
man’s voice.’
A crime without apparent motive, such as killing a
stranger, lends credence to the presence of true mental
disease. Genuine psychotic explanations for rape, rob-
bery, or check forging are unusual. Malingerers are more
likely to have contradictions in their accounts of their ill-
ness. The contradictions may be evident within the story
itself, or between the malingerer’s version and other evi-
dence. Another indicator of malingered psychosis is
evidence from family members and collateral sources
that the global assessment of functioning (GAF) for the
preceding year is inconsistent with the evaluee’s current
presentation (Kucharski et al. 1998).
PSYCHOMETRIC TESTS FOR MALINGERING
The detection of malingering by standardized psycho-
metric testing has been the focus of considerable research
in recent years. Although hundreds of psychometric tests
are available to examiners, few have been validated in the
detection of malingering.
Structured interview of reported
symptoms (SIRS)
Structured interviews demonstrate more reliability in
detecting malingering than unstructured interviews
Malingering 547
since they reduce the degree of variability between inter-
viewers. The SIRS was designed by Rogers, Bagby, and
Dickens (1992) specifically to detect malingered psychi-
atric illness. The test questions were designed on the
basis of eight indicators derived from the empirical litera-
ture on malingering, and five indicators were derived
intuitively. Eight primary scales on the SIRS provide
indices of rare symptoms, uncommon symptom pairing,
atypical symptoms, disproportionate numbers of obvi-
ous symptoms, excessive reporting of everyday problems
as symptoms, abnormally high proportion of psychiatric
symptoms, excessive reports of symptom severity, and
self-reports discrepant with genuine patients. Adminis-
tration of the SIRS takes between 30 and 60 minutes.
Studies demonstrate high inter-rater reliabilities for all
scales (r between 0.91 and 1.00). The SIRS has been tested
with inpatient, forensic, and correctional samples with
consistently high accuracy in discriminating malingerers
from truthful evaluees (Rogers 1997).
Minnesota Multiphasic Personality
Inventory, Revised (MMPI-2)
The MMPI-2 is the most validated psychometric test for
evaluating suspected malingering of psychopathology.
The MMPI-2 may be reliably used to detect malingered
psychopathology with acceptable accuracy and low rates
of false-positive classification. Clinicians using the MMPI-
2 in this manner should consult the literature to deter-
mine appropriate cutting scores for the various scales to
be used in their evaluation. For reviews of MMPI-2 use,
see Greene (1997) and Graham (2000).
The M test
The M test was developed as a brief screening instrument
for malingered schizophrenia (Beaber et al. 1985). Initial
validation studies were promising, but subsequent evalu-
ations (Hankins, Barnard, and Robbins 1993; Smith,
Borum, and Schinks 1993) have demonstrated an uncom-
fortably high false-positive rate in forensic populations.
The accuracy can be improved with the use of Rule-In
and Rule-Out scales as proposed by Smith, Borum, and
Schinks (1993). In spite of these difficulties, the M test
continues to be used as a screening instrument by some
clinicians for malingered psychotic disorders because it
is brief and easy to administer.
CLINICAL INDICATORS OF MALINGERED
INSANITY DEFENSES
In assessing defendants for criminal responsibility, clin-
icians must determine whether they report malingered
symptoms at the time of the act, and/or malinger
548 Special clinical issues in forensic psychiatry
Table 55.2 Malingering psychosis during the crime
A Faking psychosis while actually committing the crime
(rare)
B Faking psychosis during the crime in the evaluation,
and either:
1 Claiming to be well now
2 Still faking psychosis
C Actually psychotic during the crime, but
superimposing faked exculpatory symptoms at the
evaluation. Either:
1 Still psychotic at the evaluation
2 No longer psychotic at the evaluation
symptoms at the time of the examination (Hall 1982)
(Table 55.2). Some malingerers mistakenly believe that
they must show ongoing symptoms of psychosis in order
to succeed with an insanity defense. When defendants
report psychiatric symptoms at the time of their exam-
ination, the clinician has the opportunity to see whether
the alleged symptoms are consistent with genuine illness
and current psychological testing results.
Defendants who have true schizophrenia may malinger
additional symptoms to escape criminal responsibility,
and these are the most difficult cases to accurately assess.
Clinicians have a lower index of suspicion for malinger-
ing because of the history of psychiatric hospitalizations
and the presence of residual schizophrenic symptoms.
These defendants are able to draw upon their prior experi-
ence with hallucinations and their observations of other
psychotic people in hospitals. They know what questions
to expect from clinicians. If they spend time in a forensic
psychiatric hospital, they are likely to learn how to mod-
ify their story to fit the exact criteria for an insanity
defense. Clinicians should not think of malingering and
psychosis from an ‘either/or’ perspective (Rogers, Sewell,
and Goldstein 1994). Defendants with genuine psychosis
must be scrutinized for superimposed malingered excul-
patory symptoms.
Several clues can assist clinicians in the detection of
fraudulent NGRI defenses (see Table 55.3). A psychotic
explanation for a crime should be questioned if the new
offense fits the same pattern as the defendant’s previous
convictions. Malingering should be suspected in defend-
ants pleading insanity if a partner was involved in the
crime. In a study at the Michigan Center for Forensic
Psychiatry, 98 per cent of successful NGRI acquittees
acted alone (Thompson, Stuart, and Holden 1992). Most
accomplices of normal intelligence will not participate
in psychotically motivated crimes, and the clinician may
explore the validity of such a claim by questioning the
codefendant. A malingerer may tell a far-fetched story
to fit the facts of a crime into a mental disease model.
One malingerer with prior armed robbery convictions
claimed that he robbed only upon the commands of audi-
tory hallucinations, and gave away all the stolen money
to ‘bums’ in the street.
Table 55.3 Clues to malingered insanity defenses
Malingering should be suspected if any of the following
are present:
1 A non-psychotic, alternative, rational motive for the
crime
2 Suspicious hallucinations or delusions (see
Table 55.1)
3 Current crime fits an established pattern of prior
criminal conduct
4 Absence of any active or subtle signs of psychosis
during the evaluation
5 Presence of a partner in the crime
6 Double denial of responsibility (e.g., disavowal of the
crime plus attributing the crime to psychosis)
7 Alleged intellectual deficit coupled with alleged
psychosis
8 Alleged illness inconsistent with documented level
of functioning
Malingering defendants are more likely to present
themselves as blameless within their feigned illness
(Resnick 1984). This tendency was demonstrated by a
man who pleaded not guilty by reason of insanity to a
charge of stabbing an 11-year-old boy sixty times with an
icepick. The man reported that for one week prior to the
homicide, he was constantly pursued by an ‘indistinct,
human-like, black blob.’ He stated that he was sexually
excited and intended to force homosexual acts on the
victim, but abandoned his plan when the boy began to
cry. When he started to leave, ten faces in the bushes
began chanting, ‘Kill him, kill him, kill him.’ He yelled,
‘No,’ and struck out at the faces with an icepick. The next
thing he knew, ‘the victim was covered with blood.’ The
autopsy showed a cluster of stab wounds in the victim’s
head and neck – which was inconsistent with the defend-
ant’s claim that he struck out randomly at multiple faces
in the bushes. His visual hallucination was atypical as his
version showed a double avoidance of responsibility:
first, the faces told him to kill; and second, he claimed to
have attacked the hallucinated faces, not the victim. In
other words, if even half of his story was believed he
could avoid criminal responsibility. After his conviction,
he confessed to six unsolved sadistic homosexual killings.
MALINGERING IN POSTTRAUMATIC
SITUATIONS
When litigants claim personal injury, especially psy-
chological symptoms after an accident, the public often
suspects that they are malingering. Suspicions of malin-
gering help to explain why damages awarded for
posttraumatic psychological symptoms are substantially
less than those for physical injury, in spite of the fact that
limitations on the litigant’s life may be actually greater
(Trimble 1981). There are few personal injury cases that

reach the courts where no allegation of malingering is
expressed, or at least implied (Lipman 1962).
The primary motivation to malinger after an accident
is financial gain. Once an individual becomes a litigant
in a personal injury suit or files a Workers’ Compensation
claim, the efforts of attorneys for both the plaintiff and
defendant may alter the claimant’s attitudes and the course
of the illness. The plaintiff ’s lawyer may overdramatize
the client’s impairment to the point of being ‘a salesman
of pain, sorrow, agony and suffering’ (Averbach 1963,
p. 195). In contrast, defense attorneys often assume an
attitude of disbelief and imply that the individual is not
suffering from any genuine psychiatric symptoms. Liti-
gants may understandably become angry, believing they
are going to be cheated and exaggerate to get what they
believe they deserve (Enelow 1971).
The types of psychiatric disorders that most com-
monly occur after a traumatic experience include
posttraumatic stress disorder (PTSD), depressive disor-
ders, conversion disorders, post-concussion syndromes,
and, occasionally, psychoses. Plaintiffs’ attorneys strongly
favor the diagnosis of PTSD because the diagnosis itself
includes evidence that the symptoms are due to the trau-
matic event in question. In contrast, depression after a
traumatic event could be attributed to multiple other
causes.
POSTTRAUMATIC STRESS DISORDER
Assessment of PTSD symptoms
The diagnosis of PTSD is based almost entirely on the
claimant’s self report of subjective symptoms. Therefore,
the accessibility of specific DSM-IV criteria permit the
resourceful malingerer to report the ‘right’ symptoms.
The assertion that individuals dream or think about a
traumatic event should be verified by others who have
heard them talk about it in situations that are not related
to the litigation. In addition, the clinician must obtain a
detailed history of living patterns preceding the stressor.
For example, symptoms such as difficulty concentrating
or insomnia may have been present before the traumatic
event. Baseline activity in a typical week before the stres-
sor should be compared with reported impairment at
the time of the evaluation. The clinician must carefully
examine the reasonableness of the relationship between
the symptoms and the stressor, the time elapsed between
the stressor and symptom development, and the relation-
ship between any prior psychiatric symptoms and current
impairment.
Clinicians who simply inquire about specific symp-
toms of PTSD and other diagnostic criteria in the DSM-IV
will be easily fooled. Lees-Haley and Dunn (1994) found
that 97 per cent of untrained college students were able
to endorse symptoms of checklists to meet the diagnosis
Malingering 549
of major depression and generalized anxiety disorder,
while 86 per cent were able to meet the criteria for PTSD.
The clinician should insist on detailed illustration of
PTSD symptoms. Coached claimants may know which
PTSD symptoms to report, but may not be able to elabor-
ate on them with convincing personal life details. Invented
symptoms are more likely to have a vague or stilted quality
(Pitman et al. 1996). The examiner should see if litigants
minimize other causes of their symptoms or exaggerate
the severity of the compensable accident. Clinicians should
also look for actual evidence in the mental status exam
of irritability, difficulty concentrating, and an exaggerated
startle response.
Third parties should be excluded from the actual evalu-
ation of the subject for two reasons. First, the presence
of relatives precludes using them to verify the accuracy
of symptoms. Second, should the clinician wish to gently
confront the evaluee with the possibility of malingering,
the absence of a third party will reduce loss of face. A
sympathetic understanding of the temptation to exag-
gerate symptoms of PTSD increases the likelihood that
a person will acknowledge it, whereas trying to shame the
person is likely to increase anger and denial. Once malin-
gering is denied, it will usually be harder to admit later.
The clinician who suspects malingering may use cer-
tain stratagems based on the belief that use of subterfuge
in assessing deceit is justified. When inquiring about the
symptoms of PTSD, the clinician may ask about symp-
toms that are not typically seen in this disorder. For
example, inquiry could be made about symptoms such as
increased talkativeness, inflated self-esteem, or decreased
need for sleep. Or the clinician could mention, within
ear-shot of the litigant, a very atypical symptom, imply-
ing that it is usually present, to see if the person then
complains of this symptom.
Clues to malingered PTSD
A person who has always been a responsible and honest
member of society is not likely to malinger PTSD
(Davidson 1952). Malingerers are more likely to be mar-
ginal members of society with few binding ties or com-
mitted longstanding financial responsibilities, such as
home ownership (Braverman 1978). The malingerer may
have a history of spotty employment, previous incapaci-
tating injuries, and extensive absences from work.
Although the presence of antisocial personality disorder
is listed in DSM-IV as an indication to consider malin-
gering, no scientific evidence shows that persons with
antisocial personality malinger more than others who face
the same highly adversarial circumstances (Clark 1997).
Malingerers frequently depict themselves and their
prior functioning in exclusively complimentary terms
(Layden 1966). The malingerer may incongruously assert
an inability to work, but retain the capacity for recrea-
tion (e.g., enjoyment of theater, television, or athletic
550 Special clinical issues in forensic psychiatry
activities). In contrast, the person with genuine PTSD is
more likely to withdraw from recreational activities as well
as work. The malingerer may pursue a legal claim ten-
aciously, while alleging depression or incapacitation due
to symptoms of PTSD (Davidson 1952). Malingerers are
unlikely to volunteer information about sexual dysfunc-
tion (Sadoff 1978; Chaney et al. 1984), although they are
generally eager to emphasize their physical complaints.
Malingerers are also unlikely to volunteer information
about nightmares unless they have read the diagnostic cri-
teria for PTSD. Genuine nightmares in PTSD show varia-
tions on the theme of the traumatic event (Garfield 1987).
For example, a woman who was raped may have dreams
in which she feels helpless and is tortured without being
raped. The malingerer who does not know the expected
dream patterns may claim repetitive dreams that always
re-enact the traumatic event in exactly the same way.
After a traumatic event, the event may be dreamed
about almost literally a few times; other elements are
then gradually included as the event becomes woven into
the rest of the person’s dream life. Posttraumatic night-
mares, as contrasted with lifetime nightmares unrelated
to trauma, are almost always accompanied by considerable
body movement (van der Kolk et al. 1984). Body move-
ment may be confirmed by the sleeping partner or disarray
of sheets and covers. The posttraumatic nightmares of
civilian adults usually fade fairly rapidly in a few weeks.
Psychotherapy hastens the resolution and is usually helpful.
By contrast, in veterans’ posttraumatic nightmares, the
encapsulated traumatic combat scene may become iso-
lated, so that, when activated, it runs off in an almost
identical fashion for many years. The reason for these dif-
ferences in dream responses to civilian and military stres-
sors is unclear. The veterans’ sleep phenomena may be
nighttime flashbacks rather than rapid eye movement
(REM) dreams. After the fading of the initial posttraumatic
nightmares, the veteran may begin to wake up terrified and
report that he or she has dreamed of the horrible event
exactly or almost exactly as it happened (van der Kolk et al.
1984). Veterans with PTSD generally report awakening
from a dream that involves reliving the trauma, experien-
cing strong emotions that would have been appropriate
reactions to the original traumatic event (usually rage,
intense fear, or grief). Less often, they describe awakening
in terror without recalling any of the actual dream (Ross et
al. 1989). [See Resnick (1997) for additional details distin-
guishing genuine and faked combat PTSD.]
POST-CONCUSSION SYNDROMES
Symptoms of post-concussion syndrome
Approximately 2 000 000 closed head injuries occur each
year in the United States (Department of Health and
Human Services 1989). Post-concussive syndrome is
manifested by emotional, cognitive, and physical symp-
toms. The DSM-IV proposed the following criteria after a
cerebral concussion that lasts for at least three months:
becoming easily fatigued; disordered sleep, headache;
vertigo or dizziness; irritability or aggression on little or
no provocation; anxiety, depression, or affective lability;
changes in personality; apathy or lack of spontaneity. The
patient must also show difficulty in attention or memory.
Epidemiological studies indicate that a considerable
number of minor head trauma patients report memory
impairment, difficulty concentrating, a low threshold
for fatigue, and abnormal levels of irritability (Wrightson
and Gronwall 1980). Neuropsychological assessment three
months after minor head injury (i.e., unconsciousness
less than 20 minutes) showed reduced cognitive effi-
ciency in patients who were not involved in litigation
(Barth et al. 1983). Mild dysphoria, general psychological
discomfort, and problems returning to previous employ-
ment were associated with this cognitive dysfunction.
In assessing cognitive changes, Wechsler intelligence scores
are not particularly sensitive to subtle changes in infor-
mation processing (Rutherford, Merrett, and McDonald
1977; Wrightson and Gronwall 1980). Neuropsycho-
logical assessment, with its focus on attention and con-
centration skills, visuomotor functioning, memory abilities
and emotional status is more useful in the differential
diagnosis of head injury and PTSD.
Assessment of malingered post-concussive
syndrome
Some 25–50 per cent of claimants of cognitive dysfunction
are found to use suboptimal effort when given neuropsy-
chological assessment (Guilmette et al. 1994; McAllister
1994; Youngjohn, Burrows, and Erdal 1995). The exam-
iner must also not assume that symptoms reported after
an accident are caused by the accident. It is common for
symptoms reported by head-injured claimants to be
present before their head injury. The percentage of head-
injured patients and control patients who alleged symp-
toms are indicated on a checklist in Table 55.4.
Considerable research has been conducted regarding
faked memory loss. Although actual retrograde amnesia is
Table 55.4 Frequency of symptoms reported after head
injury
Claimants (%) Controls (%)
Anxiety or nervousness 93 54
Sleeping problems 92 52
Headaches 88 62
Back pain 80 48
Fatigue (mental or 79 58
physical)
Dizziness 44 26
Modified from Lees-Haley and Brown (1993).

characteristically brief in mild head injury, malingerers
tend to overplay their memory loss. They may give implau-
sible answers to questions regarding over-learned autobio-
graphic data, such as their own name, age, gender, and
social security number (Levin et al. 1992; Brandt 1992).
Several clues may be helpful in distinguishing faked
from genuine ongoing memory problems. Brain injury
does not impair procedural memory, such as driving a car
or riding a bicycle. If memory is impaired for new learn-
ing, recollection of the head injury itself suggests faking.
If a litigant volunteers several examples of memory failure,
the degree of recollection itself suggests faking. Malin-
gering is also suggested if the subject scores more poorly
on questions labeled ‘memory testing’ than on other
questions that also require memory.
Forced-choice tests are useful in assessing faked mem-
ory impairment. Forced-choice testing for memory is
based on: (i) presenting a large number of items in a two-
choice format; and (ii) comparing the person’s perform-
ance to the likelihood of success based on chance alone (i.e.,
no ability). The probability of purely guessing the correct
response is 50 per cent. The compelling conclusion is that
the patient who scores below probabilities is deliberately
motivated to perform poorly (Frederick et al. 1994). Two of
the more commonly used forced-choice memory tests are
the Portland Digit Recognition Test (PDRT) and the Test
of Malingered Memory (TOMM) (Brandt, Rubinsky, and
Lassen 1985; Binder 1990; Binder and Willis 1991).
Persons with faked anterograde amnesia often score
worse than chance on forced-choice recognition of words
they have been shown. In one study, only the malingerers
did worse than chance compared to head trauma patients
and normals (Brandt, Rubinsky, and Lassen 1985). Per-
sons faking retrograde amnesia for an event may also
fake anterograde ongoing memory difficulties. Forced-
choice recognition psychological testing showing faked
anterograde memory difficulties leads to a strong infer-
ence that the retrograde amnesia is also faked (Brandt,
Rubinsky, and Lassen 1985).
Among the three components of post-concussive
syndrome – emotional, cognitive, and physical – emotional
symptoms are the most subjective and easiest to malinger.
Malingerers usually do not consider complaining of
intolerance to loud noises or bright lights, unless they
have been coached. These symptoms only occur in indi-
viduals with demonstrable impairment in information
processing on neuropsychological testing (Bohnen et al.
1991). This association allows the examiner to couple
assessment of a subjective emotional complaint to a
testable neuropsychological parameter.
CONVERSION DISORDER
Patients may have persistent pain or loss of motor or sen-
sory functioning after an injury that cannot be explained
Malingering 551
by organic pathology. The differential diagnosis includes
malingering, conversion disorder, and pain disorder.
Both malingerers and patients with conversion dis-
order may avoid unpleasant activity (e.g., disliked work)
and seek support (e.g., financial) from the environment.
The critical element that distinguishes conversion dis-
order from malingering is that conversion symptoms are
not under voluntary control. That is, patients with con-
version disorder deceive themselves as well as others;
whereas malingerers consciously deceive others, but not
themselves.
In contrast to the malingerer, the person with conver-
sion disorder is agreed to be ill in the eyes of the law.
If the illness can be shown to be caused by a particular
injury, it is compensable (Cole 1970). For example, if a
man developed hysterical paralysis of the legs (conver-
sion disorder) after a frightening automobile accident in
which he was not physically injured, the disability would
be a direct result of the accident. The paralysis would not
be voluntary or a conscious choice for the injured victim.
The following clinical characteristics may assist in the
differential diagnosis between malingering and conver-
sion disorder:
1 The malingerer often presents as sullen, ill-at-ease,
suspicious, uncooperative, resentful (Huddleston 1932),
aloof, secretive, and unfriendly (Engel 1970). Patients
with conversion disorder are more likely to be cooper-
ative (Trimble 1981), appealing, clinging, and depend-
ent (Engel 1970).
2 The malingerer may try to avoid examination, unless
it is required as a condition for receiving some finan-
cial benefit (Soniat 1960; Engel 1970), but the patient
with conversion disorder welcomes examinations
(Rosanoff 1920; Hofling 1965). While the malingerer
may decline to cooperate with recommended diag-
nostic or therapeutic procedures, patients with con-
version disorder are typically eager for an organic
explanation for their symptoms (Trimble 1981) and are
anxious to be cured (Rosanoff 1920; Hofling 1965).
3 The malingerer is more likely than the patient with
conversion disorder to refuse employment that could be
handled in spite of some disability (Davidson 1952).
4 The malingerer is likely to give every detail of the acci-
dent and its sequelae; the patient with conversion dis-
order is more likely to give an account that contains
gaps, inaccuracies (Huddleston 1932) and vague gen-
eralized complaints (Chaney et al. 1984).
MALINGERED AFFECTIVE DISORDERS
Depression may be malingered by defendants pursuing
an insanity defense and by civil litigants seeking compen-
sation. The Beck Depression Inventory (BDI) and the
Hamilton Depression Rating Scale (HDRS) rely solely
on self report and thus are quite easy to malinger. The
552 Special clinical issues in forensic psychiatry
MMPI-2 successfully classified 88 per cent of mental
health professionals seeking to fake depression compared
to genuinely depressed patients, the FB scale being the
most useful (Bagby et al. 2000).
Although malingerers of depression will claim
depressed mood, they are less likely to report subtle symp-
toms such as poor concentration, early morning awaken-
ing, diurnal variations in mood, psychomotor retardation,
or loss of interest in sex. Malingerers may report diffi-
culty falling asleep, while sleep disturbances in genuine
depression more typically involve multiple awakenings,
especially in the early morning hours. Malingerers rarely
present the furrowed brow and restricted range of affect
seen in severe depression.
Malingering of mania is unusual. Litigants may claim
a history of manic symptoms, but it is difficult to sustain
the flight of ideas, pressured speech, grandiose mood,
increased psychomotor activity, and decreased need for
sleep seen in true mania. Inpatient evaluation of suspected
malingerers will usually reveal that these symptoms are
absent, or present only during periods of face-to-face
evaluation. The person most likely to succeed with malin-
gered mania is the genuinely bipolar defendant who
falsely claims he or she was manic at the time of the act.
Close scrutiny of witness and police accounts is critical in
these cases.
CONCLUSION
The detection of malingered mental illness is sometimes
quite difficult. The decision that an individual is
malingering is made by assembling all of the clues from a
thorough evaluation of a litigant’s past and current func-
tioning with corroboration from clinical records and
other people. Clinicians must be thoroughly grounded in
the phenomenology of the mental disease being simu-
lated. Although the identification of a malingerer may
be viewed as a distasteful chore, it is critical in forensic
assessments. Indeed, clinicians bear a heavy responsibil-
ity to assist society in differentiating true disease from
malingered madness.
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Antisocial personality, psychopathy
and forensic psychiatry
WILLIAM H. REID AND MARIA S. RUIZ-SWEENEY
In this chapter, the diagnosis, assessment, forensic rele-
vance, and treatment of antisocial personality disorder
(APD) and its more severe subtype, psychopathy, will
be discussed. In previous reviews, these two terms have,
in general, been equated, but in the present chapter they
will clearly be separated, with APD being referred to in
terms of its DSM-IV-TR criteria (American Psychiatric
Association 2000), while ‘psychopathy’ is reserved for
persons who meet other, specific criteria described by
Hare and others (Hare, Hart, and Harpur 1991; Hare
1999). The terms ‘antisocial syndromes’ or ‘antisocial
disorders’ will be used to refer to a broad range of anti-
social behaviors and conditions not limited to APD or
psychopathy.
Appropriate assessment and accurate diagnosis are
the keys to understanding (and managing when possible)
the syndromes discussed below. The relevant issues, which
are deceptively simple, include appreciating what is and
is not APD or psychopathy, the interface of APD and
psychopathy with various forensic topics (e.g., violence,
criminality, recidivism, substance abuse, sex offenses), and
the erroneous assumption that those with these disor-
ders respond to the same motivators and stimuli as the
rest of society.
FORENSIC EVALUATION AND DIAGNOSIS
Although not always in concert with DSM diagnostic
criteria, Cleckley’s The Mask of Sanity (Cleckley 1976)
remains a brilliant clinical and practical description of
psychopathic lives and behaviors. Other authors also
contributed during the 1970s and 1980s (e.g., Hare and
Cox 1978; Reid, H.C. 1978; Reid, W.H. 1978), adding to
important earlier psychodynamic studies (e.g., Karpman
1948); however, the next excellent summary of the mean-
ing and depth of this disorder is found in Meloy’s The
56
Psychopathic Mind (1988). In the early 1980s, the APA diag-
nostic criteria strayed into broader, more behaviorally
based criteria which are reflected in DSM-IV (see below).
Diagnosis
The DSM-IV criteria for APD are summarized in
Table 56.1.
Some authors attack the diagnostic validity and reli-
ability of APD in DSM-IV. Although DSM-IV reliability
is better than that of previous DSM editions, Cunningham
Table 56.1 Antisocial personality disorder: a summary of
DSM-IV criteria
A A pervasive pattern of disregard for, and violation
of the rights of, others occurring since age 15 years,
as indicated by three or more of the following:
(1) repeated unlawful behaviors, as indicated by
repeatedly performing acts that are grounds
for arrest;
(2) deceitfulness, as indicated by repeated lying, use
of aliases, or conning others for personal profit
or pleasure;
(3) impulsivity or failure to plan ahead;
(4) irritability and aggressiveness, as indicated by
repeated physical fights or assaults;
(5) reckless disregard for safety of self or others;
(6) consistent irresponsibility, as indicated by
repeatedly inconsistent work behavior or failure
to honor financial obligations;
(7) lack of remorse, as indicated by indifference
to or rationalizing hurting, mistreating,
or stealing from others.
B Age at least 18 years.
C Evidence of a DSM-IV conduct disorder with onset
before age 15 years.
D The antisocial behavior is not exclusively during the
course of schizophrenia or a manic episode.
556 Special clinical issues in forensic psychiatry
and Reidy (1998) note that its criteria largely neglect
important interpersonal and affective issues (see below for
comparisons with psychopathy), do not allow weighting
of symptoms, create many combinations which can result
in an APD diagnosis, and lack reliability in several studies.
They also note that DSM-IV’s behavioral focus comes at
the expense of understanding personality dynamics, widely
viewed as the foundation of the personality disorder. In
addition, DSM-IV does not adequately differentiate sub-
stance abuse and personality diagnoses, and the overlap
artificially increases any association between the two.
Several authors suggest APD subtypes of some forensic
interest, though none has gained widespread acceptance.
Lykken (1995), for example, suggested that aggressive,
dyssocial, alienated, and common subtypes are related to
underlying causes of the disorder (e.g., genetic predispos-
ition, childhood trauma/neglect, neurological deficit,
cultural background).
OVERDIAGNOSIS
Perhaps the most common misunderstanding of these
principles comes when professionals and laypersons alike
mislabel people with chronic antisocial behavior. The
DSM and the International Classification of Diseases
(ICD) clearly distinguish even chronic or heinous behavior
alone from APD (American Psychiatric Association 2000).
Overdiagnosis serves neither courts nor evaluees, and ham-
pers fair handling of cases as well as treatment planning
for patients.
ANTISOCIAL PERSONALITY AND PSYCHOPATHY
Some generally accepted differences between DSM-IV
APD and true psychopathy are detailed in Table 56.2.
CHILDREN AND ADOLESCENTS
Although childhood antisocial behavior and adult APD
are correlated, one cannot draw a line from every antisocial
child to an adult with APD. Chronic antisocial behavior in
children and adolescents should be taken seriously, and
sometimes can reasonably be predicted to continue into
later life, though one should not diagnose APD or psy-
chopathy until symptoms and signs are evident in adult-
hood. Similarly (but less reliably), several studies have
Table 56.2 Antisocial personality disorder (APD) versus psychopathy
APD (DSM-IV)
Broader, more inclusive
Phenomenologic approach
Largely based on visible consequences
of unsocialized behavior (‘conduct’)
Focuses on antisocial issues
and behaviors
examined statistical links between childhood attention
deficit hyperactivity disorder (ADHD) and chronic adult
antisocial behavior; however, prospective predictability is
poor. It is difficult to predict the extent of future antisocial
behavior from childhood findings, and the children des-
tined to have the worst social outcomes are very difficult
to identify (Klein and Mannuzza 1991; Langbehn et al.
1998; Robins and Price 1991).
Assessment
HISTORY
The primary hallmarks of APD are more clearly found in
the history than in interview or physical examination.
Corroboration of the history is very important, especially
if it verifies absence of antisocial behavior or suggests
rationalizations for apparently antisocial acts. The history
should come from as many other sources as feasible (e.g.,
family and friends, victim and witness reports, law enforce-
ment documents, court and institutional records, school
and employment records).
INTERVIEWS
General forensic interview technique is addressed else-
where in this book. The examiner/interviewer should give
more time to forensic interviews than to many kinds of
non-forensic assessments. The evaluee routinely has an
interest in the outcome of the evaluation, and is usually
quite capable of misrepresenting his history and mental
status. We suggest at least 3 hours (but often more), spread
over at least two sessions. This allows some time to become
familiar with the evaluee’s style, develop whatever rela-
tionship is possible in an effort to see through the super-
ficial presentation, and listen for inconsistencies.
If one must opine without appropriately examining
the evaluee, then care must be taken not to overstep the
bounds of validity and ethics. Suitable disclaimers about
lack of examination (or evaluation limitations) and the
potential effect on one’s opinions should be supplied in any
report or testimony.
Antisocial evaluees often downplay the parts of their
histories that they believe incriminate them, whether
with lies, rationalizations, or subtle choices of words.
Discounting the effects of their acts, blaming others, and
Psychopathy (Cleckley, Hare, etc.)
Narrower, more severe, more likely to be reflected
in criminality (especially Hare/PCL)
Personality deficit approach
Largely based on personality dynamics (and perhaps
brain deficit), with a callous, remorseless style of
relating to others
Includes many characteristics of DSM narcissistic,
histrionic, paranoid, and borderline syndromes
 Antisocial personality, psychopathy and forensic psychiatry 557
other ways of avoiding responsibility are common. Some-
times the lies are obvious and immature [cf., ‘pseudologia
fantastica’ (Cleckley 1976) or Talley’s ‘puerile’ character
(Talley 1978)]. The following example is from a defendant
accused (later convicted) of robbery and murder to avoid
prosecution (i.e., eliminate the witness). The defendant
has just learned that his victim was pregnant:
I didn’t kill her. When I left the house, she was alive.
I didn’t hit her or nothin’. I put a sheet over her face
so she couldn’t identify me. Why would I need to kill
her if she couldn’t identify me? That doesn’t make any
sense, does it? I have a theory. Most murders are com-
mitted by victims (sic) who know the victim, right? I
didn’t know her, so that makes me a lot less likely than
her boyfriend or somebody. He knew she’d got herself
pregnant, not me. When you think about it, there’s
nothing they’re accusing me of that he couldn’t have
done himself. And he had a motive, Doc. I didn’t have
any motive.
Antisocial evaluees often have a friendly, even charming
demeanor which can disarm the interviewer and inter-
fere with objectivity. One such approach is to gloss over
important topics with vague or incomplete answers and
a dismissive smile. Another is to make the evaluator feel
silly about asking certain questions, as if the questions
are so obvious or unimportant that a ‘good’ interviewer
would not bother with them, or would already know the
answer. Other evaluees are sometimes threatening or
frightening, tempting uncomfortable evaluators to gloss
over important questions, skip details, and shorten inter-
views. Each of these styles tends to shift control of the inter-
view from the interviewer to the evaluee, and decrease
the amount of information elicited.
Some examinations contain an element of danger. We
suggest being certain that criminal evaluations, particu-
larly, take place in safe, secure environments. All clinicians,
not just female or inexperienced ones, should pay close
attention to safety.
GENERAL MEDICAL WORK-UP
Subtle, but potentially important, brain and brain chem-
istry abnormalities have been found in some antisocial syn-
dromes, including APD and psychopathy, but these have
been difficult to replicate and have not been very useful in
day-to-day forensic settings. The search for reliable mar-
kers of psychopathy has been disappointing, with findings
of research interest but little practical use thus far in clinical
or forensic diagnosis. Routine neurological consultation in
the absence of a suggestive history is rarely fruitful. When it
is done, one should try to consult a forensically experienced
behavioral neurologist rather than a solely clinical one.
Most positive findings tend to support diagnoses other
than APD, and may or may not be useful in the forensic
matter. One routinely looks for the effects of drugs or other
substances, systemic illness, congenital or developmental
conditions, and sequelae of (especially head) trauma.
Stalenheim, von Knorring, and Wide (1998) replicated
limited correlation between thyroid hormone markers
[e.g., high tri-iodothyronine (T3)] and some kinds of
criminals, including those with APD. Free thyroxin, par-
ticularly, was associated with psychopathy in a forensic
population. Testosterone, some other steroids, and low
platelet monoamine oxidase levels are correlated with
aggression and impulsive violence (Stalenheim et al.
1998), but specific association with APD and psychopathy
is not clear, and no causative influence in the formation or
maintenance of the personality disorder per se is implied.
Raine et al. (2000) commented on the statistical associa-
tion between APD and taller subjects, those with (an aver-
age of 11 per cent) less prefrontal gray (but not white)
matter, electrodermal deficit and stress-related cardiovas-
cular reactions. The study focused on magnetic resonance
imaging (MRI) measures of brain matter volume. The
authors note that causality was not demonstrated, and the
findings should not be used to predict APD.
PSYCHOLOGICAL TESTING
Common objective personality inventories [such as the
Minnesota Multiphasic Personality Inventory (MMPI-2)]
are often useful to reveal antisocial traits and styles, but
should not be the foundation for an APD diagnosis. Carl
Gacono (Gacono and Meloy 1994; Gacono et al. 2001) has
written extensively about using the Rorschach to assess
antisocial traits, but cautions that experience with severe
antisocial syndromes and with the Hare Psychopathy
Checklist (PCL; Hare 1991; Bodholdt, Richards, and
Gacono 2000) is important in evaluating the results. The
Hare Psychopathy Checklist is highly correlated with crim-
inal recidivism and treatment failure. Gacono and others
suggest that some patients who meet DSM criteria for
APD may be amenable to treatment if their PCL scores
are fairly low (Cunningham and Reidy 1998). PCL scores
above about 25 are more ominous with respect to treat-
ment or recidivism (Rice, Harris, and Cormier 1992).
Neuropsychological testing may suggest non-
characterologic sources for antisocial behavior, but one
must remember that careful testing uncovers some nuance
of abnormality in a great many subjects. The presence of
an abnormality may or may not imply by itself that the
deficit is significant, or that it is convincingly related to
specific antisocial behaviors.
A 23-year-old man with a long background of anti-
social traits and substance abuse was convicted of cap-
ital murder. In the sentencing phase of the trial, the
prosecution cited many criteria for antisocial person-
ality and a history of escalating ‘senseless’ violence.
Antisocial personality, they said, was not a ‘mitigat-
ing’ mental illness, and indicated that the defend-
ant’s danger to others was completely voluntary and
likely to continue indefinitely.
The defense did not challenge the prosecution’s
allegations of dangerousness, but introduced strong
558 Special clinical issues in forensic psychiatry
neuropsychological evidence of frontal brain damage
from early inhalant abuse (solvents and spray paint).
The damage was convincingly associated with the
murder, through personality change and decreased
impulse control. Although not exculpating, this miti-
gating factor cast doubt on the prosecution’s allega-
tion of antisocial personality and presented an ‘illness’
(clearly visible brain damage) for the jury to consider.
The defendant was spared the death penalty, and later
juror interviews indicated that the strong evidence of
‘real brain damage’ was important in their decision.
Forensically experienced psychologists and neuro-
psychologists should perform, or supervise, the testing.
Instruments validated solely on non-forensic populations
or interpreted based on non-forensic norms, should not be
relied upon for diagnosis or program placement of severely
antisocial persons. More detailed discussion of forensic
psychological testing is found elsewhere in this book.
MALINGERING
Some types of testing can address the probability of malin-
gering, common in APD and psychopathy. Well-validated
tests for specific types of malingering are available for
some kinds of presentations; others do not lend themselves
to a psychometric or actuarial approach. Good corrobor-
ation by outside information sources remains a mainstay
of establishing the truth.
Some psychological tests, such as the MMPI-2, control
somewhat for malingering through their validity scales.
Others rely on subtest integrity (cf., most neuropsycho-
logical batteries). Malingered brain injury is often reliably
spotted by simple actuarially based tests such as the
Portland Digit Recognition Test (PDRT; Pankratz and
Binder 1997) or Pritchard tests (1998). The best validated
test for malingered psychosis is Rogers’ Structured Inter-
view of Reported Symptoms (SIRS; Rogers 1997).
Without well-validated tests, even experienced inter-
viewers are not particularly good at differentiating truth
from dissimulation in fairly intelligent antisocial evaluees.
Commonly relied-upon signs such as eye contact, blink
rates, and length and detail of answers are myth for the
most part. Hypnosis should not be used to uncover malin-
gering (or, except in extraordinary circumstances, with
highly competent investigators, to probe the memories of
corroborating witnesses); it can produce very misleading
findings and often alters memory and credibility.
FORENSIC RELEVANCE OF ANTISOCIAL
PERSONALITY
Behavior and legal rules
Forensic relevance is related more to social function,
statute, and legal rules than to diagnosis. Very few mental
disorders or defects are always or continuously exculpating
or disabling. Legal terminology and purposes often differ
from, and occasionally even contradict, psychiatric ones.
General criminality
Why is there such a common association between APD and
criminality? First, of course, many behaviors associated
with indiscriminate seeking of pleasure and stimulation are
illegal. Those with APD are more likely than the general
population to disregard legality when pursuing them. But
there are also other reasons.
The personal qualities that lead a person to brush aside
the concept of illegality can also keep him or her from giv-
ing proper regard to the consequences of his/her actions,
including those that increase the chances of getting caught.
In addition, both mental health professionals and layper-
sons tend to use criminal behavior per se as a definition
of APD.
Not all criminals, however – even chronic ones – have
APD. Several studies indicate that 50–80 per cent of male
prison inmates qualify for a diagnosis of APD (Widiger and
Corbitt 1995), while only about one-third meet PCL-R
criteria for psychopathy (Meloy 1988). About 11 per cent
of female felons in North Carolina were found to have APD
(Jordan et al. 1996); this group was demographically dif-
ferent from male inmates of the same prison system, with
only 11 per cent of the women having been incarcerated
for a violent offense.
It is more difficult to ascertain the proportionate num-
ber of crimes committed by those groups, compared to
all crimes. Are persons with APD or psychopathy caught
less often, for example, which would make the inmate
percentage an underestimate of overall criminal impact?
For those who are caught and convicted, different
crimes have differing proportions of APD/psychopathy
involvement. Many kinds of murder, for example, rarely
involve these diagnoses (but others do). Several generally
non-violent crimes, such as forgery and confidence games,
regularly involve them (but others, such as incest, do not).
Some crimes and approximate proportions of convicted
defendants who meet APD criteria are summarized in
Table 56.3.
It is important to note the potential for variation among
studies. Table 56.3 should be interpreted with caution,
since the various studies used different methodologies
and different prison populations; they are limited to people
caught and convicted; and different lengths of sentence
may skew the results of cross-sectional studies.
The converse query – what portion of people with APD
and psychopathy actually commit crimes? – is arguably
more relevant, but more difficult to answer. It is clear that
not all those with APD are criminals, but it is difficult
to refer to percentages or large groups of examples, since
these people rarely come to psychiatric or psychological
attention except in criminally related situations. Robins,
 Antisocial personality, psychopathy and forensic psychiatry 559

Table 56.3 Crime and approximate proportion of defendants with antisocial personality disorder (APD)
Crime Proportion Comment Reference(s)
with APD* (%)
Arson, 1st offense 2 – Repo et al. 1997 (Finland)
Arson+violent history 8 – Repo et al. 1997
Arson, non-violent history 14 – Repo et al. 1997
Incest 0 – Firestone et al. 1998 (Canada)
Sexual homicide 35 – Firestone et al. 1998
Sex offense (generic, 17 Few/no incest Curtin and Niveau 1998 (Swiss)
serious, non-homicide)
Sex offense 72 DSM APD; McElroy et al. 1999
(generic, serious, paraphilia same as
non-homicide) non-paraphilia

* Proportions vary among studies, are approximate, and may not distinguish between APD and psychopathy.

Tipp, and Przybeck (1991) quoted data from the NIMH
Epidemiologic Catchment Area study that found no
significant arrest record for 53 per cent of community
residents who met DSM-III-R criteria for APD.
Criminal sentencing, recidivism,
and the death penalty
APD and psychopathic offenders are associated with far
more criminal recidivism (and in some groups violent
recidivism) than other offender groups (Cunningham and
Reidy 1998; Hare 1999; Hemphill, Hare, and Wong 1998;
Hill, Rogers, and Bickford 1996), although studies of psy-
chopathy and recidivism in females, children, and some
ethnic minorities are limited. Psychopathy, as defined
or suggested by the PCL-R, predicts even higher rates of
recidivism, violent recidivism, failure to complete parole,
and the like (Serin and Amos 1995; Salekin, Rogers, and
Sewell 1996; Serin 1996). Part of the increase is simply due
to including repeated illegal acts in the definition of APD.
The reasoning is not entirely circular, however, since people
with APD actually choose to commit the acts, seek the
stimulation associated with them, do not delay the grat-
ification presumed to occur with them, and lack some of
the judgment and allowance for future consequences that
prevents others from committing them.
The presence of studies indicating higher rates of recidi-
vism for APD and psychopathy suggests that courts should
sentence criminals accordingly (cf., Hill, Rogers, and
Bickford 1996 on psychopathy). The diagnosis should be
made carefully, however, and the role of the personality
disorder in the crime should be considered (i.e., whether or
not some other, perhaps mitigating, factor was involved).
Although research supports the validity of the PCL-R
for assessing post-release criminal and violent recidivism
in many populations, relying on only one test to demon-
strate increased risk is unwise. It would seen more
prudent to use a negative PCL-R result to mitigate
against psychopathy (and its attendant potential for vio-
lence and recidivism) than to use a positive one to seal a
defendant’s fate. This is particularly true in capital sen-
tencing, in which many states require juries to consider
violence potential before sentencing defendants to death.
Criminality, APD, and mental retardation
The combination of APD and low intelligence is associated
with increased visible criminal behavior. This is probably
due to a combination of the APD, impaired intellectual
judgment, the relative ease with which intellectually
impaired criminals are caught and convicted, and their
relatively decreased access to effective defense counsel. In
spite of some older opinions to the contrary (Heilbrun
1990), the authors believe the combination of APD and
intellectual deficit per se, rarely associated with serious
violence, should not be assumed to predict future dan-
gerousness in the absence of other factors.
Sex offenses
It is important to differentiate APD and psychopathy from
the paraphilias and specifically sexual offenses. Some sex
offenders (more violent ones than non-violent ones) meet
DSM criteria for APD, but there is little evidence that
APD or psychopathy per se is routinely associated with
sex offenses per se. The somewhat archaic term ‘sexual
psychopath,’ which is now becoming associated with
sexual predator laws, has little psychiatric meaning.
Certainly there are unfeeling, sadistic, and/or predatory
people who chronically and unrelentingly pursue para-
philic careers, but they often do not meet APD criteria
(and rarely those of APD alone). Their different disorders,
criminal careers, behaviors, and responses to certain
treatment modalities make it important that clinicians
not mistake their primary problem for APD. When APD
and sex offenses are combined, the offenders’ response to
treatment or rehabilitation is generally poorer than the
response by primary sex offenders (Abel et al. 1988).
Rape is often a non-paraphilic crime. Whether its per-
petrators are more often, or less often, psychopathic or
560 Special clinical issues in forensic psychiatry
APD is a matter for conjecture. However, the impulsive-
ness of gratification, poor judgment, and lack of caring
for the victim characteristic of APD all suggest that those
with APD or psychopathy will commit a disproportionate
number of rapes.
Insanity and diminished capacity defenses
In criminal law, no U.S. jurisdiction accepts antisocial per-
sonality alone as a limiting factor in a defendant’s ability
to form intent or take responsibility for his or her actions.
Although psychopaths and people with APD are ‘abnor-
mal,’ defense arguments that they cannot control their
behavior are almost always futile. Cases in which heinous
behaviors have been found to be mitigated by the defend-
ant’s mental state tend to contain strong evidence of Axis 1
and/or general medical disorders (e.g., psychosis, morbid
depression, dementia, intoxication), or mental retardation.
Violence and sadism
For most people with APD who do not meet criteria for
psychopathy, violence arises primarily from self-serving
behavior and disregard for others, and not usually because
of specific pleasure in hurting them. Violence is still com-
mon, however. Aggression and danger may be stimulat-
ing and/or an uncaring means to an end; they do not
consider others’ feelings or (often) the consequences of
their acts. Their reasons for violence, sexual assault, or plac-
ing others at risk, however, are usually secondary, and
different from those of primarily predatory, paraphilic,
or explosive persons. This fact is important when a
forensic clinician is asked to try to predict future behav-
ior, assess ability to form intent, assess ability to control
one’s actions, or discuss treatment and potential treat-
ment response.
Persons with many indices of psychopathy (such as
high PCL-R or PCL-SV scores) have a higher probability
of violence (Serin and Amos 1995; Salekin, Rogers, and
Kewell 1996; Serin 1996; Hare 1999), often ‘instrumental’
(purposeful) rather than reactive or emotional (Cornell
et al. 1996). Psychopathy is often seen in people with sadis-
tic characteristics and violent or sadistic sexual offenders
(Brown and Forth 1997; Stone 1998; Hare 1999). The
converse (i.e., the rate of sadism in psychopaths) is more
difficult to estimate.
Substance abuse
APD and substance abuse populations overlap signifi-
cantly; however, they should not be assumed to be syn-
onymous nor generally causally related except insofar as
antisocial traits are consistent with trying and using
intoxicating substances, and the acts of obtaining and
using them may be illegal in themselves (and thus one of
the generic criteria for APD). Several studies of offender
populations suggest that substance abuse alone is poorly
correlated with the core personality features of psy-
chopathy (Smith and Newman 1990), and is only slightly
more common among inmates with APD than among
those with other diagnoses (Chiles et al. 1990). Antisocial
traits have predictive value for histories of substance
abuse, but do not reliably predict most forms of addiction,
in our view.
Similarly, the traits associated with substance abuse
do not confer APD on substance abusers. Such an argu-
ment would imply that APD can be acquired through
external influences (such as drug abuse or social environ-
ment) in late adolescence or adulthood, which is not
the case. APD and psychopathy have their roots in com-
plex brain and environmental conditions early in life.
Substance abuse, like many other things, may cause one to
behave antisocially, but it does not give one a personality
disorder.
Civil cases
The association between APD and poor impulse control is
frequently used in civil cases (rarely in criminal matters) to
explain, or justify, such things as substance abuse, gam-
bling, or violence. In our view, issues such as compulsive
gambling or so-called ‘sex addiction’ should be seen as
separate from APD.
There is rarely any question about an APD evaluee’s
legal capacity to perform ordinary social functions such
as contracting, making financial or business decisions, or
keeping promises, provided that he or she chooses to do
so. The forensic professional should help the attorney
or court separate behavior from personality disorder or
mental illness (the latter as defined by the relevant juris-
diction). In most cases, antisocial behavior in a person
with APD should not be construed as stemming from a
mental illness or incapacity. To view him or her other-
wise is clinically and forensically inaccurate, and serves
neither the individual nor the court.
TREATMENT AND OUTCOME
APD is very difficult to treat, and the prognosis with almost
every approach is poor. In addition, the treatments that
occasionally do work – such as highly specialized resi-
dential behavioral and psychotherapeutic programs that
control every aspect of the patient’s life for a long and
indefinite period – are so expensive and time-consuming
that they are rarely employed.
There is a modicum of good news, however, since
most antisocial behavior is not due to APD, and patients
who are mentally ill and commit antisocial acts often
respond to appropriate treatment. After careful work-up,
many chronic, seemingly characterologically antisocial
adults and (especially) juveniles can be placed in
 Antisocial personality, psychopathy and forensic psychiatry 561
programs tailored to their needs – assuming that the
programs are available – with some hope of success. The
range of disorders and treatments is beyond the purview
of this chapter, but well described in recent articles and
texts (e.g., Dolan 1998; Hansen 1998; von Knorring and
Ekselius 1998; Ashford, Sales, and LeCroy 2001; Becker
and Johnson 2001; Day and Berney 2001; Edens and Otto
2001; Gacono et al. 2001; McNeece, Springer, and Arnold
2001; Rutherford, Griller-Clark, and Anderson 2001).
The widespread belief that those with APD and psych-
opathy ‘burn out’ as they pass middle age is probably a
myth. Folk wisdom implies that they slow down, cannot
muster the energy to ‘hustle’ anymore, and often suffer
from years of injury or substance abuse. Careful studies,
however, indicate that although antisocial activity may
change with age, it does so in complex ways, and rarely
ceases. The prevalence of violence in APD and psycho-
pathy probably decreases after age 40 years, but many other
antisocial behaviors (including criminal ones, the most
studied antisocial correlates) often continue into the sev-
enth or eighth decade (Arboleda-Florez and Holley 1991).
CONCLUSION
It is important to separate persons with psychopathy
and/or APD from other people who commit antisocial
acts. One should understand that even chronic criminality
is not synonymous with APD nor with psychopathy, that
many kinds of crimes have limited (sometimes almost no)
relationship to APD, that the sources of most antisocial
and counter-social behaviors (e.g., violence, substance
abuse) are multi-determined, and that some people with
APD are not criminals at all. Forensic clinicians who
explain appropriate diagnosis, differential diagnosis, and
potential relationships between diagnosis and behavior
can help courts to make difficult legal decisions. When
clinical issues arise, they can increase the probability of
appropriate treatment or management, often making
the difference between potential effectiveness and thera-
peutic frustration.
Well-meaning people who seek the ‘answer’ to psych-
opathy and APD often make an important, but defective,
assumption that people with these disorders respond to
the same motivators and stimuli as the rest of society,
that they are amenable to the same logic that guides the
behavior of ordinary people, or that their antisocial char-
acteristics are merely extensions of normal behavior (per-
haps brought out by environmental factors). We strongly
disagree, and would point out basic and substantial dif-
ferences between psychopaths and ‘the rest of us’ that have
little to do with environment or opportunity. It is foolhardy
to assume otherwise. Perhaps the psychopath’s most severe
damage to society comes from his twisting the very things
that civilize us – trust, empathy, appropriate guilt, fairness,
civil rights, concern for the less fortunate, appreciation
of the greater good, and the use of structure and law
to prevent chaos – into things to be invoked only when
they benefit him or her, and otherwise to be ignored
(Reid 1998).
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Dangerousness
GREGORY B. LEONG, J. ARTURO SILVA AND ROBERT WEINSTOCK
INTRODUCTION
Psychiatrists and other mental health professionals are
often asked to assess an individual’s dangerousness,
whether in the context of a forensic or treatment rela-
tionship. Laws concerning dangerousness flow from the
state’s police powers in an attempt to promote public
safety. As a result of a myriad of laws, dangerousness
evaluations can be encountered in a variety of clinical or
legal situations. Of critical importance is the application
of a legal dangerousness standard that preserves due
process.
First, what is dangerousness? A typical dictionary
defines dangerousness as ‘full of danger or risk, causing
danger, perilous, hazardous, unsafe’ (The Random House
College Dictionary, New York 1973). In other words, dan-
gerousness is the quantification of danger or its synonyms –
hazard, peril, risk, or jeopardy. Dangerousness refers to a
state marker that precedes the actualization of a harmful
action. In other words, dangerousness can be conceptu-
alized as the potential for harm or injury. However,
potential is not always actualized, so only through the
commission of a harmful act can an individual’s danger-
ousness be confirmed.
Quantification of danger cannot simply be identified
as a numerical value on a single axial scale, but involves
several elements, including, but not limited to:
• the magnitude, imminence, type of potential harm;
• the capacity of an individual to carry out harmful
behaviors;
• the likelihood that an individual will perpetrate the
harmful behaviors; and
• identification of the likely recipients of the potential
harm.
While ‘quantification’ of danger may imply a more
ambitious endeavor than ‘assessment’ of danger, the
comprehensive assessment of danger relies in part on
mathematical underpinnings as discussed later in this
chapter.
57
There are three basic types of potential harm not
directed at the self: physical harm to others; physical
harm to property; and psychological harm to others.
Depending on the legal context, physical harm to ani-
mals might be subsumed under either physical harm to
others or property. Although psychological harm has sig-
nificance in cases involving tort claims involving mental
injury, workers’ compensation, and disability, assess-
ments of dangerousness almost always focus on an indi-
vidual’s destructive potential to physically injure or harm
others or damage property. In other words, the legal sys-
tem generally requests measurement or quantification of
potential harm from physical aggression and not verbal
aggression alone. This legal emphasis on physical aggres-
sion has also driven clinical research and practice and
forms this chapter’s primary focus on the assessment of
dangerousness.
Often embedded in the legal language are adjective
modifiers preceding the word danger. For example, ‘sub-
stantial’ or ‘serious’ can precede the word danger in a spe-
cific law. In other words, the law appears to set a threshold
at which a danger becomes legally relevant. However,
statutes and case law often fail to specify criteria to define
or clarify the adjectives preceding the word danger.
Moreover, in cases in which a jury has to render a deci-
sion on whether an individual crosses a certain danger-
ousness threshold, little guidance is forthcoming from
jury instructions. Rather, expert witness testimony about
the quantification of danger can assume substantial
importance to the legal decision-making process. On the
other hand, a lack of rigorous definitions allows the legal
decision maker a certain degree of flexibility.
COMMON CONTEXTS OF PSYCHIATRIC
DANGEROUSNESS EVALUATIONS
Civil commitment
Exposure to the concept of dangerousness in the civil com-
mitment process occurs early during medical training

while the future physician rotates through the required
medical school psychiatry clerkship. In psychiatric prac-
tice, the civil commitment process embodies the most
common clinical application of the dangerousness con-
cept. The law has legitimized the concept of dangerous-
ness most prominently in civil commitment statutes.
Although in O’Connor v. Donaldson (1975), many psych-
iatrists had hoped that the U.S. Supreme Court would
legitimize the right to treatment for public sector psychi-
atric patients, it instead became a pivotal case in fostering
the dangerousness criterion as the principal basis for
involuntary commitment. About a quarter of a century
ago, Alan Stone recommended replacing the dangerous-
ness requirement with a need for treatment, a lack of
capacity to consent to treatment, and the presence of a
treatable condition (Stone 1976). This approach, known
as the ‘thank you theory,’ has been universally ignored by
all states. The law appears to be more interested in con-
trolling dangerous individuals or dangerous behaviors
than providing treatment for mental illness. Although all
states recognize dangerousness to others as a criterion to
initiate civil commitment, dangerousness to property alone
can be a sufficient basis for involuntary commitment
(see e.g., Revised Code of Washington section 71.05).
In Addington v. Texas (1979), the U.S. Supreme Court
set the minimum standard of proof required to maintain
civil commitment at the clear and convincing level. How-
ever, states are permitted to utilize a higher level of proof.
For example, in California, to make an initial application
for emergency commitment, ‘probable cause,’ a standard
of proof below preponderance of the evidence is used.
However, for a judicial ruling granting a 180-day civil
commitment as a ‘demonstrated’ danger to others
(California Welfare and Institutions Code section 5300 et
seq.) the standard of proof required is beyond a reason-
able doubt. Notwithstanding the required legal burden of
proof, clinical opinions are offered with reasonable med-
ical probability (certainty).
Insanity acquittees
Although a showing of dangerousness is not part of the
M’Naghten or ALI criteria used to absolve a defendant of
criminal responsibility, the dangerousness criterion plays
a significant, if not defining, role in the post-trial dis-
position course for the insanity acquittees. The persistence
of dangerousness is a necessary factor in the continuing
hospitalization of insanity acquittees. For example, in
California, insanity acquittees are not granted uncondi-
tional release unless they can show by a preponderance
of the evidence that they are no longer a danger to the
health and safety of others (California Penal Code sec-
tion 1026.2). Attainment of restoration (recovery) of sanity
by an insanity acquittee would thus appear to be dif-
ficult given that the statutorily required level of non-
dangerousness (‘no longer a danger’) appears unachievable
Dangerousness 565
since everyone poses some, however minimal, potential
to act harmfully toward others, unless in a coma or simi-
lar vegetative state.
Although the length of an insanity commitment in
some states such as Washington is absolute and unless
at the time of maximum commitment, insanity acquittees
meet the civil commitment criteria, they are discharged
into the community. However, in states like California,
insanity acquittees can remain indefinitely hospitalized
beyond the time of the original insanity commitment,
if they pose ‘substantial danger of physical harm to others’
(California Penal Code section 1026.5). The U.S. Supreme
Court in Jones v. U.S. (1983) has upheld the continuing
commitment of an insanity acquittee who remains men-
tally ill and dangerous. However, in the subsequent case
of Foucha v. Louisiana (1992), the U.S. Supreme Court
held that continuing an insanity commitment based solely
on dangerousness resulting from an antisocial person-
ality was not permissible.
Treatment refusal
The U.S. Supreme Court utilized dangerousness as a
necessary condition for involuntary psychiatric treatment
in both pre-trial defendants and convicted felons. In
Washington v. Harper (1990), the U.S. Supreme Court
held that substantive due process was not violated when
prisoners are involuntarily treated if they are dangerous
to themselves or others and the treatment was in their
medical interest. The Court ruled that an administrative
review of the involuntary medication order was suffi-
cient to meet procedural due process requirements.
Although dangerousness posed by a pre-trial defend-
ant has no imaginable bearing on an individual’s com-
petency to stand trial, dangerousness can play a role in
the restoration process after the defendant has been found
not competent to proceed. The U.S. Supreme Court in
Riggins v. Nevada (1992) has ruled against involuntary
administration of antipsychotic medications during trial
absent medical appropriateness and dangerousness. How-
ever, the subsequent D.C. Circuit Court of Appeals case
of U.S. v. Weston (2001) may signal a shift in judicial
thinking in which the prosecution’s interest in restoring
a criminal defendant’s competency to stand trial takes
precedence.
Violent offenders
There are two broad categories of quasi-civil commit-
ment of offenders: the violent sexual predator, and the
violent mentally disordered.
For the most part, Mentally Disordered Sexual Offender
statutes disappeared by the mid-1980s. However, the new
category of the Violent Sexual Predator assumed its place,
beginning in Washington State in 1990 (see Revised Code
of Washington section 71.09), allowing for possible
566 Special clinical issues in forensic psychiatry
indefinite commitment of certain individuals based on
their propensity to commit acts of predatory sexual vio-
lence. The U.S. Supreme Court upheld the commitment of
violent sexual predators in the case of Kansas v. Hendricks
(1997). Despite considering Foucha v. Louisiana, the
Supreme Court ruled that the commitment criteria con-
sisting of a ‘mental abnormality’ and propensity to com-
mit acts of sexual violence did not violate due process or
ex post facto laws. In essence, the Supreme Court’s ruling
permits indefinite commitment of some non-mentally
disordered individuals based solely on dangerousness.
Except for individuals classified as Violent Sexual
Predators, since the U.S. Supreme Court decision in
Baxstrom v. Herold (1966), states have generally relied
upon the standard civil commitment process to involun-
tarily detain mentally disordered and potentially violent
individuals upon release from state prison. However,
since 1986, California law (California Penal Code section
2960 et seq.) has allowed detention in a psychiatric facil-
ity for certain mentally disordered felons who are adjudi-
cated to be dangerous after expiration of their prison
terms, even though they may not meet dangerousness
criteria for involuntary hospitalization as applicable to
the general population. A legal challenge to this Mentally
Disordered Violent Offender commitment statute failed
in People v. Gibson (1988). In fact, the same statutorily
required level of danger used to retain insanity acquittees
in California beyond their maximum commitment date,
i.e., ‘substantial danger of physical harm to others’ is
utilized for the violent mentally disordered felons for
their post-sentence commitment.
Capital cases
The United States Supreme Court in Jurek v. Texas (1976)
has sanctioned the use of juries to decide on the issue of
dangerousness in the sentencing phase of capital trials,
arguably the most serious application of the determin-
ation of dangerousness. In a subsequent case, the Supreme
Court ruled in Barefoot v. Estelle (1983) that an expert
witness may offer an opinion about a defendant’s future
dangerousness during the penalty phase of a capital case
despite objections raised by the American Psychiatric
Association as to the inaccuracy of such a forecast.
Tarasoff-type situations
Beginning with the celebrated case of Tarasoff v. Regents
of the University of California (1976) and subsequently
followed by a flurry of judicial and legislative activity in
other states (Felthous 1989; Felthous and Kachigian 2001),
when treating mental health clinicians encounter poten-
tially violent patients who pose a danger to third parties,
a duty to warn and/or protect can arise. Ten years after
the 1976 Tarasoff decision enunciating the duty to protect,
California enacted a statute that spelled out the duty
and what steps a psychotherapist should take in order to
be immunized against professional liability (California
Civil Code section 43.92). Other states enacted similar
statutes, but some other states such as Texas have rejected
the Tarasoff reasoning (Thapar v. Zezulka 1999). In
California, a psychotherapist’s duty to warn and/or
protect an ‘identifiable’ third party arises when the psy-
chotherapist’s patient poses a ‘serious’ threat of physical
harm to the third party. California law thus infers that all
psychotherapists should know how to assess what con-
stitutes a ‘serious’ danger. Moreover, the question of what
constitutes a ‘serious’ danger could conceivably be at
issue in a subsequent tort claim involving professional
negligence if a third party is harmed or in a breach of
confidentiality allegation by the patient. California law
gives no guidance as to what constitutes a ‘serious’ dan-
ger. Although Tarasoff-type dilemmas are generally
thought of as occurring in general clinical practice, such
situations may arise in the context of a forensic psychi-
atric evaluation and create complicated scenarios involv-
ing confidentiality and privilege that surround the legal
context in which the evaluation occurs. In these cases, the
assessment of dangerousness, and the subsequent actions
taken, may differ from the usual response in the clinical
context (Weinstock, Leong, and Silva 2001).
ACCURACY OF DANGEROUSNESS
ASSESSMENTS
A serendipitous naturalistic experiment
After the U.S. Supreme Court ruling of Baxstrom v.
Herold (1966), which required convicted felons be given
a judicial hearing equivalent to that of a member of the
general population to determine dangerousness and an
ensuing civil commitment, the state of New York released
967 of these putatively dangerous mentally disordered
prisoners into the community creating a naturalistic
study of individuals opined to be dangerous. After a
four-year follow-up period, about half of the released
required psychiatric hospitalization, and less than 3 per
cent were imprisoned or committed to a forensic
hospital (Steadman and Keveles 1972; Steadman 1973).
These findings suggest that while the released Baxstrom
prisoners as a group had significant psychiatric morbid-
ity, the false positive problem was substantial as reflected
by about one-half of the prisoner group incorrectly fore-
casted to be dangerous (at least for the four-year period).
However, these results probably make the assessment of
dangerousness to appear excessively inaccurate, since
those Baxstrom inmates who were believed to be more
dangerous probably continued to be incarcerated under
the revised post-Baxstrom commitment procedures.

Limitations to accuracy
The assessment of dangerousness has several limi-
tations. One major inherent limitation arises from the
sensitivity–specificity dichotomy. There are four possible
outcomes of a prediction: (i) true positive (predicting
an act will occur and it actually occurs); (ii) true negative
(predicting an act will not occur and it does not actually
occur); (iii) false positive (predicting an act will occur
and it does not actually occur); and (iv) false negative
(predicting an act will not occur and it actually occurs).
The more sensitive the assessment, the more accuracy
that is attained in identifying the true positives and min-
imizing the number of false negatives. The more specific
the assessment, the more accuracy in identifying the true
negatives and minimizing the number of false positives.
However, an assessment cannot be totally sensitive and
specific at the same time as these measures of accuracy
vary inversely with each other. Therefore, an extremely
high degree of accuracy would not be possible. None-
theless, both the medical and legal systems lean toward
minimizing the number of false negatives. One cautious
position is to err on the side of public safety and over-
estimate future harmful acts which in turn aggravates the
false positive problem (Petrunik 1982).
Another major limitation in the assessment of dan-
gerousness involves the low base rate problem (Monahan
1981). There is a low base rate of violence, or else more
of the population would be imprisoned or committed to
psychiatric facilities. The often used example is to assume
that we have an extremely accurate test (i.e., a test more
accurate than any existing one) to predict violence, so
that for 95 per cent of the time a clinician can prognosti-
cate who will be violent. We then assume a low base rate
of a particular violent act, such as killing another person,
occurs at the rate of one per 1000 population (i.e., higher
than actually occurs). Then, out of a population group of
100 000 persons, we can correctly identify 95 of the 100
potential killers. While this is quite respectable, of the
99 900 who do not kill, we would correctly identify 95 per
cent of those who will not kill, but also misidentify 4995
persons as potential killers. While some societies might
tolerate identifying these 4995 false positives and taking
steps to incapacitate them, this approach is not consistent
with American legal values. In summary, even if psychiatry
did possess a test to accurately forecast future behavior at
the 95 per cent rate, the number of false positives for a
low base rate phenomenon would be significant.
The above calculation understates the low base rate
problem, because the number of false positives increases
with a less accurate test and a lower base rate. The most
accurate prediction would be to always predict that an
individual would be non-dangerous since the prediction
would be inaccurate in only 1 out of 1000 times. The low
base rate problem, however, might be reduced if a sub-
group of putatively dangerous persons can be identified
who have a higher base rate of a target behavior.
Dangerousness 567
Notwithstanding the limitations posed by the sensi-
tivity–specificity and low base rate problems as outlined
above, the application of a sophisticated mathematical tool
called receiver-operating characteristic (ROC) analysis
upon prior studies of violence prognostication found that
violence predictions were more accurate than chance, that
short-term forecasts did not appear more accurate than
long-term predictions, and that past behavior is the best
indicator for future behavior (Mossman 1994).
Until recently, the single agreed-upon predictor for
future violent behavior was a history of past violent behav-
ior (Monahan 1981; Mossman 1994; Steadman 2000).
The impression of psychiatric inpatients (with no crim-
inal history) as being more ‘dangerous’ than the general
population is not consistently supported and highlights
the pitfalls in dangerousness/violence studies as well as a
likely bias against the mentally disordered. The research
literature on violence prognostication until recently suf-
fered from four fundamental deficiencies: impoverished
predictor variables, weak criterion variables, constricted
validation samples, and unsynchronized research efforts
(Monahan 1988). Even without using this categorization
of shortcomings, a superficial examination of the research
literature on violence can readily reveal its limitations.
The studies have varying criteria of what constitutes a
dangerous or violent act. Some studies focus on shouting
or similar behaviors not clearly indicative of violence in
order to reach statistical significance.
Studies have focused largely on groups of persons that
can be followed and who have already committed or are
viewed as likely to perpetrate violent acts in the future.
Such groups include involuntarily civilly committed
patients, insanity acquittees, and various criminal offender
groups. However, rigorous controlled studies are not pos-
sible, as the obviously dangerous person should remain
under social control. Thus, studies would revolve around
the errors in psychiatric prediction of a dangerous act
in those cases in which the psychiatrist forecasted the
released patient as harming another and no harm
actually occurred in the study period, i.e., they are likely
to focus on the false-positive problem. Moreover, these
studies could make assessments appear less accurate than
they actually are because of the effort to retain the high-
risk person in a supervised setting. Arguably the easiest
group to study are the civil committees who have been
detained on an emergency basis and generally remain
hospitalized for a short period of time. However, the
results of these studies are not readily generalizable to
settings that are not well structured and for time periods
further in the future.
Risk assessment paradigm
The clinical–legal assessment of dangerousness can be
practically distilled as a probability or dispositional con-
cept detailing under what circumstances and conditions
568 Special clinical issues in forensic psychiatry
are likely to raise an individual’s level of dangerousness
(Pollack 1982; McNeil and Binder 1991). More recently,
the focus has shifted from assessment of dangerousness
as a clinical description or simplistic quantification to a
systematic identification of risk factors. Although this
may reflect only a semantic shift, it appears to reflect
incorporation of the insurance industry concept of ‘risk
management.’ While useful for the insurance industry,
the clinician should also not become overly dependent
on this actuarial type approach and consider case-
specific factors.
When assessing an individual for dangerousness, the
forensic psychiatrist can indicate from which mental dis-
order(s) the individual is suffering, the prognosis of each
mental disorder with treatment and without treatment,
the likelihood the person will comply with treatment, the
static and dynamic factors that play a role in future mal-
adaptive behaviors, and the possible interaction of the
mental disorders and ecological factors in giving rise to
the dangerous behaviors in question. This assessment
cannot obviously account for the effects of significant
intervening events or other unforeseen influences on a
person’s future behavior. Nonetheless, using this
approach a forensic psychiatrist can offer a reasoned
opinion with regard to the magnitude, likelihood, and
relative immediacy of a particular threat. Of particular
relevance to the legal system is the identification of the
various risk factors that heighten an individual’s proba-
bility for violent acts. The risk factors can be divided into
static and dynamic factors. Static factors are those, such
as age, gender, and low intellectual capacity, that cannot
be changed. Dynamic factors are those, such as active
substance abuse, current psychotic symptoms, and pos-
session of weapons, which can be addressed either clini-
cally or legally. Use of the risk assessment approach can
provide to the legal system a template for crafting a dis-
position for the individual in question by highlighting
specific areas that merit attention. The risk assessment
approach would also be useful for the non-forensic clini-
cian in the specific instance of assessing patients for dan-
gerousness to third parties (Ferris et al. 1997).
Recent research
Two prominent U.S. studies have produced several pub-
lications. The first set came out of the Epidemiologic
Catchment Area (ECA) Surveys conducted between 1980
and 1983 at five sites in the U.S. (Swanson et al. 1990).
The ECA Survey’s data on violence was a byproduct of
the larger survey and whose definitions of violence were
not especially systematic. To have a positive response for
violence, there would need to be a report of one of the
following actions by the subject:
1 Hitting or throwing things at the subject’s significant
other.
2 Harsh spanking of a child by the subject.
3 Fighting as an adult with another outside of the sub-
ject’s significant other.
4 Use of a weapon during a fight as an adult.
5 Fighting while drinking.
The ECA Survey work found increased risks of violent
behavior connected with several mental disorders (Swanson
et al. 1990). The contributions of alcohol abuse (Swanson
1993) and psychosis (Swanson et al. 1996) on violence
risk have been also explored. Besides the increased vio-
lence risk associated with alcohol or substance abuse and
certain psychotic symptoms, there was increased risk of
violence associated with lack of ongoing psychiatric
treatment (Swanson et al. 1997).
The second recent set of U.S. research on violence
comes from the MacArthur Violence Risk Assessment
Study. The MacArthur study set out to address the previ-
ous research shortcomings by the following:
1 Disaggregation of dangerousness into its component
parts of risk factors (variables used to predict vio-
lence), harm (the specific type and quantification of
potential violence), and risk (likelihood of harm).
2 Identification of risk factors.
3 Measuring harm in terms of seriousness and assessed
by multiple measures.
4 Treating risk as a probability varying over time and by
context.
5 Priority of actuarial research establishing a relation-
ship between risk factors and harm.
6 Using large and representative samples of subjects.
In addition to assessing risk, they identified managing
risk as an important research goal (Monahan and
Steadman 1994a; Steadman et al. 1994). In the MacArthur
study, 1136 recently discharged psychiatric patients from
three sites across the country were followed for one year.
The study has produced findings about the role of alcohol
consumption (Steadman et al. 1998) and delusions
(Appelbaum, Robbins, and Monahan 2000) in the per-
petration of violent behavior. It must be cautioned that
the MacArthur research addresses a specific sample of
individuals (i.e., those who were followed for one year
post-psychiatric hospitalization) and the findings may
not necessarily find applicability to other groups, such as
sex offenders, violent felons, insanity acquittees, etc.
Nonetheless, the MacArthur study has developed the
Iterative Classification Tree, a decision tree model, which
would have application in discharge decisions from acute
psychiatric inpatient units and possibly in community-
based settings (Monahan et al. 2000; Steadman 2000;
Monahan et al. 2001).
As with the U.S. studies, the recent dangerousness
research in Canada has an actuarial focus. Meta-analyses
of criminal and violent recidivism among mentally dis-
ordered offenders and relapse among sex offenders has
highlighted a statistical approach to examining risk fac-
tors (Bonta, Law, and Hanson 1998; Hanson and Bussiere

1998). The study of individuals at a Canadian maximum
security psychiatric facility has led to some pioneering
efforts in the development of the risk assessment guides
[such as the Violence Risk Appraisal Guide (VRAG) and
Sex Offender Risk Appraisal Guide (SORAG)] (Quinsey
et al. 1998).
THE CURRENT STATE OF DANGEROUSNESS
ASSESSMENTS
Research findings versus case-specific
analysis
Even if there were extremely accurate tests to predict
violence or other harms, the legal system would likely be
reluctant to make a ruling based on statistics or math-
ematical formula alone. The dominance of clinical pre-
diction over mathematical prediction emanates from the
following: the view that legal decisions are intrinsically
individualized; actuarial predictions explicitly acknow-
ledge the possibility of errors (even if fewer than a clinical
approach); concerns that some important case-specific
factors will not be included in a mathematical calcula-
tion; and insufficient time or data to make the accurate
mathematical calculations (Monahan 1981). Nonethe-
less, prognostications using actuarial models are more
accurate (i.e., have lower false-positive and false-negative
errors) than the clinical method (Gardner et al. 1996),
but they may be less sensitive to unusual or even unique
factors in a specific individual. Although the actuarial
method may find limited acceptance in the legal arena
and should be used with caution in these settings, it
remains a useful clinical research tool (Harris and Rice
1997) and continues to be at the forefront of clinical
research in the area of dangerousness (risk) assessment
(Monahan et al. 2000; Monahan et al. 2001).
The assessment of dangerousness, even when the
mental status of the individual can be delineated and the
relevant risk factors can be identified, remains a formid-
able task. Assuming for the moment an extremely accur-
ate mathematical formula upon which to calculate the
probability of a future event, the law would not likely be
convinced that this satisfies the due process requirements
by which to meet a legal standard of dangerousness. The
law generally prefers to know case-specific factors upon
which an opinion regarding a person’s dangerousness
were based, especially when the law sanctions loss of lib-
erty. Despite limited scientific validation of the specific
association between mental disorder and the commission
of harmful acts in the future, the psychiatrist should be
able to describe the individual’s mental condition and
how it is likely to be connected with potential future
harm, including wherever possible under which contexts
and conditions. Recent research in the area in a variety of
settings and types of individuals has suggested that a
Dangerousness 569
structured clinical judgment approach incorporating
both the empirical research along with clinical judgment
constitutes the optimal approach (Dolan and Doyle 2000).
Uncoupling risk factors
General trends, like a past history of violence, while useful
in formulating an opinion on future dangerousness, do not
necessarily flow from a person’s mental disorder. Also, a
description of the particular harm needs to be described
in terms of its magnitude, likelihood, and imminence. In
addition to the emphasis on the identification of exacer-
bating factors, protective (ameliorating) factors should
not be de-emphasized or disregarded (Rogers 2000). In
addition, even if the risk and protective factors can be
accurately accounted for and the base rate of the action
is known for the general population and a particular indi-
vidual, unforeseen ecological factors or events can con-
tribute to the inaccuracy of an assessment. Nonetheless,
with an adequate database, the psychiatrist should be able
to arrive at a reasonable description of the dangerousness
of a particular individual as well as what clinical interven-
tions are possible and their likely effects upon the mental
disorder and mental state of the individual.
The limits of clinical–legal opinions
Arriving at the level of dangerousness posed by an
individual even when describing the case’s unique and
highly defined parameters remains somewhat elusive.
In spite of the voluminous risk factor research and devel-
opment of useful clinical tools, assignment of an overall
(summary) risk level often does not appear to go beyond
the broad categories of low, moderate, or high (Webster
et al. 1997). Perhaps more important than offering an
overall dangerousness opinion is to highlight the aggra-
vating and mitigating risk factors in an individual.
Indeed, the case-specific analysis remains the cogent
approach, both clinically and legally. While the trier of
fact may repeat the false-positive problem and overesti-
mate the degree or dangerousness in deciding whether
an individual meets a specific legal dangerousness crite-
rion, psychiatrists should avoid compounding the false
positive problem by offering definitive opinions to ‘help’
the court with its problem when they are at best a proba-
bility assessment under certain conditions.
Ethical issues in the assessment
of dangerousness
The clinical studies, including those that follow patients for
a limited amount of time in the hospital after emergency
commitment, lack the exacting degree of accuracy that
the law might desire. So the psychiatrist who is honest
needs to acknowledge the shortcomings when offering
opinions on dangerousness. In many respects, ethical
570 Special clinical issues in forensic psychiatry
guidelines may be particularly important when offering
these forensic opinions on the issue of dangerousness.
The case of Barefoot v. Estelle mentioned previously in
this chapter provides a heuristic example of the potential
misuse of psychiatric testimony about dangerousness
that has no empirical basis beyond the claimed personal
clinical experience of an individual psychiatrist as well as
lacking support from the available published knowledge
base at that time. Moreover, the claim of absolute certainty
in the expert opinion about future dangerousness violates
current forensic psychiatric ethical guidelines requiring
honesty and striving for objectivity and current research.
Offering an opinion supporting dangerousness for civil
commitment in which continued treatment would result
differs quantitatively and qualitatively from offering the
opinion in a capital case as in Barefoot v. Estelle. Nonethe-
less, offering a dangerousness opinion even in a therapeutic
context can present ethical dilemmas, particularly in cases
in which long-term commitment is at issue.
In the final analysis, a thorough and thoughtful
clinical evaluation is the best remedy to potential ethical
problems when assessing dangerousness. Assessments
should be made with the care and knowledge that subtle
and not so subtle influences exist to distort assessments.
The appropriate use of the risk assessment approach as a
foundation for dangerousness opinion may reduce the
likelihood of creating confounding ethical dilemmas.
The biopsychosociocultural approach
Forecasting of violent behavior, or the assessment of dan-
gerousness in general, has been the focus of active research
in North America and elsewhere. The mental health
research efforts have focused on the psychological part
of biopsychosociocultural aspects of violent/dangerous
behavior, as such topics as anger, impulsivity, psychopathy,
mental disorder, substance abuse, psychotic symptoms,
delusions, hallucinations, personality disorders (Monahan
and Steadman 1994b). The social component has been
studied from the mental health perspective (Monahan and
Steadman 1994b; Silver, Mulvey, and Monahan 1999) as
well as in from sociological and criminological view-
points. Biological risk factors have been the subject of
intense research activity (Volavka 1995), though with the
increasing diversification of the U.S. population, cultural
factors should not be underappreciated (Volavka et al.
1997). The multi-modal approach of the biopsycho-
sociocultural model may be especially relevant to quanti-
fication of dangerousness in some individuals.
OTHER DANGEROUSNESS ASSESSMENTS
This chapter has focused on dangerousness assess-
ments that arise from statutory or case law. However,
forensic psychiatrists may be involved in dangerousness
assessments in which specific targets are at risk and outside
of those mentioned herein. Examples include stalking by
ex-intimates, employee-generated workplace violence, and
Secret Service protectees. Although much of the risk assess-
ment research may be applicable to these situations, the dif-
ferent contextual elements, both legal and ecological, merit
further inquiry (Palarea et al. 1999; Borum et al. 1999).
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Violence: causes and non-psychopharmacological
treatment
KENNETH TARDIFF
INTRODUCTION
This chapter presents guidelines for the evaluation and
management of violent patients. It focuses on the clinical
aspects of this area and is a condensation and update
of earlier, more extensive writings on the subject (Tardiff
1996; Tardiff 1999). Most litigation this author has seen
in this area has involved wrongful management of vio-
lence with injury to the violent patient or a clinician’s
failure to evaluate violence potential with subsequent
injury of others by a patient. Despite the injuries, cases
usually have been decided in favor of clinicians if proper
procedures and standards have been followed (American
Psychiatric Association 1985; Beck 1985).
Most violence in society is committed by persons who
are not psychiatric patients, and thus is beyond the reach
of psychiatry and other mental health professionals. The
causes of criminal violence have been explored from a
number of perspectives. Some have argued that blacks live
in a violent subculture (Wolfgang 1981), whilst others
maintain that there is no racial difference if socioeconomic
status is considered (Centerwall 1984). Among those
researchers who believe that low socioeconomic status is
related to high rates of violent crime, there is disagreement
as to whether it is relative economic inequality (Blau and
Blau 1982) or absolute poverty and social disintegration
(Messner and Tardiff 1986). Greater availability of guns in
our society has increased the lethality of violence (Cook
1982). Since the early 1980s, drugs – particularly cocaine
(Goldstein 1989) – have increasingly played a major role in
violent crime, primarily from the business of dealing drugs
but also from a pharmacological effect.
PSYCHIATRIC CAUSES OF VIOLENCE
Drug abuse is a bridge from criminal violence to psychi-
atric violence. Stimulants, particularly cocaine, produce
58
violence at first through irritability and agitation and
later through paranoid delusional thinking and delirium
(Lowenstein et al. 1987; Honer, Gewirtz, and Turey 1987;
Giannini, Miller, and Lioselle 1993; McCormick and
Smith 1995). This is particularly true for crack cocaine,
which is characterized by frequent, prolonged use so as to
avoid withdrawal symptoms. Hallucinogens, especially
phencyclidine, can cause bizarre behaviors, violence, and
suicide (Budd and Lindstrom 1982). Alcohol intoxication
through disinhibition, emotional liability, and impaired
judgment can produce violence (Holcomb and Anderson
1983; Swanson et al. 1990; Eronen, Hakila, and Tiihonen
1996). Withdrawal from alcohol and the short-half-life
benzodiazepines can produce irritability, agitation, and
violence. Ecstasy (MDMA), which is popular at dance clubs
and college scenes, can produce violence as well as confu-
sion, paranoia, severe anxiety and depression (National
Institute on Drug Abuse 1999). There have been a number
of case reports of violence by athletes using anabolic
steroids (Choi, Parrott, and Cowan 1989; Pope and Katz
1990). Indeed, an experimental study of normal volun-
teers showed an increase in hostility and impulsivity when
they were given anabolic steroids (Su, Pagliaro, and
Schmidt 1993).
Organic brain disease can result in violence which, in
temporal lobe epilepsy is not frequent. However, when it
occurs it may do so during the ictal period and, if so, is
often aimless in nature. Violence has also been found in
the inter-ictal period in these patients. In the post-ictal
period following generalized seizures, violence can occur.
Infections of the brain including viral encephalitis, AIDS,
tuberculosis and fungal meningitis, syphilis and herpes
simplex can be associated with violent behavior. Other
diseases of the brain associated with violence include
head trauma, normal pressure hydrocephalus, cerebro-
vascular diseases, tumors, Huntington’s chorea, multi-
ple sclerosis, Pick’s disease, multiinfarct dementia,
Alzheimer’s disease, Parkinson’s disease, and Wilson’s
 Violence: causes and non-psychopharmacological treatment 573
disease, as well as post-anoxic or post-hypoglycemic
states with brain damage (Tardiff and Sweillam 1980; Kay,
Wolkenfeld, and Murrill 1988; Weiger and Bear 1988;
Krakowski et al. 1989; Kutzer 1990; Patel and Hope 1992).
A number of medical disorders have been associated
with violence through delirium and/or delusional think-
ing. These disorders include hypoxia, electrolyte imbal-
ances, hepatic disease, renal disease, vitamin deficiencies,
systemic infections, hypoglycemia, Cushing’s disease,
hyperthyroidism, hypothyroidism, systemic lupus ery-
thematosus, poisoning by heavy metals, insecticides, and
other substances, and porphyria (Reid and Balis 1988).
There is evidence from a number of studies that schizo-
phrenic patients are at increased risk of violence (Tardiff
and Sweillam 1980; Craig 1982; Tardiff 1984b; Taylor and
Gunn 1984; Karson and Bigelow 1987; Lindquist and
Allebeck 1990; McNiel and Binder 1991). Paranoid schizo-
phrenic patients attack people whom they believe to be
threatening them, and any schizophrenic patient can be
violent because of psychotic disorganization, excitability,
or even akathisia secondary to neuroleptic medication.
Schizophrenic patients may be violent for reasons not
related to the psychotic process per se, for example
organic brain disorders, all of which do not point to
increased dosing with neuroleptics in an effort to dimin-
ish violence.
Manic patients have been found to have sudden
severe violent episodes. Often, violence erupts in the
early phase of treatment of the acute manic state. The
patient responds violently to any form of containment
or limit setting, be it physical or otherwise, as in a nurse
insisting that the patient take a dose of medication (Tardiff
and Sweillam 1980; Yesavage 1983; Tardiff 1984b; Binder
and McNiel 1988; Miller, Zadolinnyi, and Hafner 1993).
Borderline and antisocial personality disorders are
associated with violence (Tardiff and Sweillam 1980;
Hare and McPherson 1984; Tardiff 1984b; Tardiff and
Koenigsberg 1985; Bland and Orn 1986; Benjamin 1993;
Eronen, Hakila, and Tiihonen 1996). In the case of the
borderline personality disorder, in addition to frequent
displays of anger and recurrent physical violence toward
others, the patients manifest a number of behavioral
problems and severe psychological problems. Violence
manifested with antisocial personality disorder is one of
many antisocial behaviors. These patients repeatedly get
into physical fights and manifest a number of other anti-
social behaviors. Patients often lie and show no guilt or
remorse for violence and other antisocial behavior. These
disorders should be differentiated from another non-
psychotic episodic violence disorder that has a better
prognosis in regard to treatment. Intermittent explosive
disorder is manifested by recurrent outbursts of violence
that are grossly out of proportion to any precipitating
psychosocial stressor. Following a violent episode there is
often remorse. In the intervening period between these
violent episodes, there is little evidence of other behav-
ioral problems.
Children and adolescents may be violent due to disrup-
tive behavioral disorders or mental retardation (Pfeffer,
Plutchnik, and Miziuchi 1983; Tardiff 1984b; Tardiff and
Koenigsberg 1985; Ghaziuddin and Ghaziuddin 1992;
Bouras and Drummond 1992). There can be physical vio-
lence toward others, cruelty to animals, stealing, robbery,
and other antisocial behaviors. This violence and other
antisocial behaviors usually are not accompanied by guilt
or remorse. Although children with conduct disorders
may grow up to be antisocial violent adults, most children
and adults with mental retardation are not violent. When
violence does occur, however, it is difficult to manage.
Violence in the mentally retarded is associated with frus-
tration and anger when the patient is unable to achieve
goals and cannot verbalize conflicts, concerns, and feelings
adequately.
Posttraumatic stress disorder patients can have vio-
lence as one of many symptoms (Jordan, Marmar, and
Fairbank 1992; Lasko, Gurvits, and Kuhne 1994). The
violence may be diffuse as part of increased arousal with
irritability and anger, or it may be part of intense distress
in response to external cues that symbolize or resemble
an aspect of the traumatic event.
EVALUATION OF THE VIOLENT PATIENT
The evaluation of the patient with problems of violence
should proceed along the same lines as the evaluation
of other problems in psychiatry (Reid and Balis 1988;
Tardiff 1996; Tardiff 1999). Sometimes emotional reac-
tions of clinicians to potential or actual violence distorts
the evaluation. The evaluation of the patient who pres-
ents with problems of violence should include an assess-
ment of the chief complaint, history of the present
illness, family history, personal and developmental his-
tory, medical history, the mental status, physical examin-
ation, and laboratory tests and imaging. In gathering
information about the patient, the clinician should use as
many sources as possible, including talking to the patient
as well as the police, relatives, the patient’s therapist, and
the primary-care physician. Past medical and criminal
records should be obtained.
The evaluation will determine the underlying cause
and thus the proper treatment. Another goal of the evalu-
ation is to determine the patient’s potential for violence.
PREDICTION OF VIOLENCE
The ability to predict violence is limited to the short
term, that is, for days or a week at most. The process is
analogous to the prediction of suicide potential (Tardiff
2001). As with the evaluation of suicide potential, evalu-
ation of violence potential includes assessment of how
well planned is the threat or idea. Vague threats of killing
574 Special clinical issues in forensic psychiatry
someone are not as serious as well-formulated threats
against a specific person. As with suicide, the availability
of means of inflicting injury is important. If the patient
has recently purchased or owns a gun, one should take
the threat more seriously.
A past history of violence or other impulsive behavior
is predictive of future violence. This includes destruction
of property, suicide attempts, reckless driving, reckless
spending, criminal offenses, sexual acting out, and other
impulsive behaviors. One should assess the degree of past
injuries as well as toward whom violence has been directed
and under what circumstances. There is a repetitive pat-
tern of violent behavior and escalation between family or
friends or in similar settings, for example, in bars.
Alcohol and drug abuse should be assessed. Substances
that can produce violent behavior as a result of the intoxi-
cated state as well as during withdrawal include alcohol,
benzodiazepines, and other sedatives. Other substances
can produce violence when the patient is intoxicated,
namely cocaine, hallucinogens, and amphetamines. Organ-
icity (e.g., hypoxia, trauma) increases the risk of violence.
Central nervous system disorders have been associated
with violent behavior and have been described earlier,
as have some systemic disorders affecting the central ner-
vous system. As with suicide, the presence of psychosis
should make one take threats of violence very seriously,
and it makes the assessment of violence potential essen-
tial, even if threats are not apparent.
All of these factors are considered in the final assess-
ment of whether the patient poses such a significant risk
to others that some action is necessary. Action may
include changing the treatment plan, hospitalizing the
patient, or warning the intended victim and/or the
police. All of the data on which the decision about vio-
lence is based should be documented in writing, and the
rationale in arriving at the decisions should be reflected
in written documentation. Reassessment of violence
potential should be made at short intervals, for example,
from visit to visit within a few days, if the patient is to
continue being treated outside of hospital or other insti-
tution. This assessment and documentation will be very
useful in cases of litigation.
PREVENTION OF VIOLENCE
Before turning to the management of violence, one should
consider prevention of violence. The inpatient ward envir-
onment, treatment program, and staff should be struc-
tured so as to prevent violence. The staff should be caring
and non-authoritarian, yet be able to set limits in regard
to the patient’s behavior. They should be available to talk
with and listen to the patient. It is important that the staff
recognize the warning signs of violence for an individual
patient. A patient may have manifested specific patterns of
behavior or speech before a violent episode. As escalation
begins, medication may be offered and increased staff
attention and support is indicated. There should be a pro-
gram of treatment and activity aimed at promoting social
behavior. There should also be educational programs for
staff – not only in the use of physical restraints but also in
the sensitive, non-provocative use of verbal means of deal-
ing with violence or impending violence.
SAFETY
A Task Force of the American Psychiatric Association
has made recommendations to increase the safety of staff
who work with violent patients (American Psychiatric
Association 1993). One should consider the physical aspects
of the office or other setting in which violent patients will
be interviewed. There should be solid heavy furniture
that would be difficult to move or throw, and there
should be no heavy objects that could be thrown (e.g.,
ashtrays). There should be a method for the clinician to
indicate that he or she is in danger, which may be in the
form of a ‘panic button’ or a prearranged message to one’s
secretary or receptionist. When interviewing in seclusion
those patients who have been violent or who are poten-
tially explosive, the clinician should pay attention to his
or her attire. Glasses may be removed before interviewing
such patients, and in the case of men, the necktie may be
removed or tucked into the shirt. For women, jewelry such
as necklaces and earrings should be removed. Likewise, if
the patient has been violent and is to be put into seclusion,
proper attention should be paid to removing from the
patient any dangerous clothing such as belts and neckties,
and dangerous objects such as pens, jewelry, and matches.
OVERALL MANAGEMENT
In managing violence by patients one must consider the
balance between medication, seclusion, and restraint.
The correct use of medication in emergencies and for the
long-term treatment of violence are covered in Chapter
59. It must be said here that if an ineffective type or dose
of medication is used, the risk of violence grows and/or
the need of other physical means of control such as seclu-
sion and restraint increases. Patients should not be in
prolonged seclusion or restraint because of inadequate
medication. On the other hand, patients should not be
overmedicated to keep them out of seclusion or restraint.
Instead, the treatment plan must be reviewed with con-
sideration to changing the medication and/or adding
other treatment such as behavior therapy.
Seclusion and restraint
Seclusion and restraint prevent harm to the patient
or other persons when other means of control are not
 Violence: causes and non-psychopharmacological treatment 575
effective or appropriate, or prevent serious disruption
of the treatment program or significant damage to the
physical environment. In addition, seclusion may be used
to decrease the stimulation a patient receives, possibly at
the patient’s request.
Guidelines for seclusion and restraint have been
formulated by a task force of the American Psychiatric
Association (Tardiff 1984a; American Psychiatric Asso-
ciation 1985; Tardiff 1996). These guidelines represent
minimal standards, and each institution should at least
meet these standards or be more rigorous in its own
standards. The decision on whether to use seclusion,
restraint, medication, or any combination of these con-
trols is made on the basis of the clinical needs of the indi-
vidual case. For example, if the etiology of the violent
behavior is unknown, restraint may be indicated so as
to maintain the patient drug-free for purposes of evalu-
ation. In addition, a violent patient may be preferentially
managed in seclusion and restraint because of medical
illness or drug allergies that would preclude the use of
certain medications to control violent behavior.
Another issue for seclusion and restraint is whether
these controls should be used only once a patient is actually
in the process of manifesting dangerous behavior or
whether these procedures may be used in anticipation of
imminent dangerous behavior. Once they are familiar with
a particular patient, staff may rely on past patterns of verbal
or non-verbal phenomena that have occurred before vio-
lent episodes. The use of previous patterns of behavior to
justify seclusion or restraint must be documented clearly.
The regulations of one’s institution and state may not allow
seclusion or restraint to be used in this manner.
There are contraindications to the use of seclusion
and restraint. They should never be used for punishment
when no danger exists to the patient or others, and they
may be inadvisable because of the patient’s medical con-
dition. The patient’s unstable medical status, resulting
from infection, cardiac illness, disorders of thermoregu-
lation, or metabolic illness may require close monitoring
and close physical proximity of staff, making seclusion
impossible. Restraint may be useful in delirium and
dementia, where reduced sensory input from seclusion
may lead to worsening of the clinical state. Other relative
contraindications to seclusion include cases of patients
who have just taken overdoses and require close moni-
toring; patients presenting with the symptoms of serious
and uncontrollable self-mutilation; and when seclusion
rooms cannot be sufficiently cooled on hot days for
patients receiving drugs such as neuroleptics, which
impair thermoregulation.
A patient should never be secluded or restrained for
the convenience of the staff. Whereas protection of other
patients from harm is an indication for seclusion, mild
obnoxiousness, rudeness, or other unpleasantness to
others is not. If prolonged seclusion or restraint occurs
for such a reason, the treatment plan and/or setting
should be reviewed by an external consultant.
With physical restraint, one must guard against circu-
latory obstruction, which can be minimized by temporar-
ily releasing one of four point restraints every 15 minutes.
Another adverse effect with restraints is aspiration; if a
patient is lying on his or her back while restrained, one
must guard against aspiration by constant monitoring.
Deaths from strangulation have resulted from camisoles
and vest restraints.
Initiating seclusion or restraint is an emergency pro-
cedure carried out by the nursing staff on an inpatient
unit. This requires a physician’s review and order for its
continuation. Each institution has specific time param-
eters regarding review, and the psychiatrist should be
familiar with them.
While the patient is in seclusion or restraint, there
should be observations by the nursing staff, with detailed
observations being written in a log. These visual checks
are important so as to minimize the chances of a patient
harming himself or herself in the seclusion room. Patients
should be visited periodically. In the case of very violent
patients, it is advisable that adequate number of staff
accompany the nursing staff. During these visits, vital
signs should be taken and food and fluids provided, and
toileting and other care of the patient accomplished. All
observations should be documented in the patient’s record.
The seclusion room should be free of hazards, and
usually kept empty except for a mattress. The mattress
should not be constructed from fiber or other materials
that the patient could use to hang or suffocate him/her-
self, and should not be flammable. Patients should be
searched for matches prior to being placed in seclusion.
The ceiling of the seclusion room should be high, with
recessed light fixtures. All walls and ceilings should be
constructed of material that cannot be gouged out by
patients, and there should be no sharp edges to windows
and no protuberances such as oxygen jets. Staff should be
able to observe every portion of the seclusion room,
though this may require the use of reflectors.
A patient may be released from seclusion or restraint
when their behavior is under control and they no longer
pose a danger to self or others. The patient’s ability to
control his or her behavior and cooperate is evaluated
throughout the seclusion episode. For example, during
each visit the patient’s ability to respond to a verbal
request should be judged. Release from seclusion is a
gradual process. The first step may be to open the seclu-
sion room door for brief periods of time, followed by
complete opening, and spending time alone in the
patient’s room, until they can be released to the general
ward environment. Any evidence of loss of control or
lack of cooperation should result in movement back to
more restrictive steps in the procedure. The patient in
restraints may be transferred to seclusion when there
appears to be adequate self-control and stabilization. The
same process of gradual release from seclusion is used at
the appropriate time. Following the episode of seclusion
or restraint, the patient should be allowed to voice his
576 Special clinical issues in forensic psychiatry
or her feelings about the episode and should be ques-
tioned as to what led up to the behavior requiring seclu-
sion or restraint, as well as what could have been done to
prevent the escalation.
Recently in the United States, the Health Care
Financing Administration (HCFA) has made many of
the recommendations of the APA Task Force mandatory
(HCFA 2000). A personal examination by a physician must
be carried out within 1 hour of a patient being placed in
seclusion or restraint. A person designated by the patient
must be notified that he or she has been placed in seclu-
sion or restraint. The HCFA specifies which information
must be contained in an order for seclusion or restraint,
and in forms that monitor vital signs, injury, nutrition,
hydration, patient behavior and release from seclusion
or restraint. The HCFA requires that both staff and
patients be debriefed after an episode of either seclusion
or restraint.
Long-term psychotherapy
Long-term psychotherapy can be useful for violent
patients who are not psychotic and primarily have per-
sonality disorders or intermittent explosive disorders
(Lion and Tardiff 1987; Tardiff 1996). If spouse abuse is
the problem, couples sessions may be indicated as long as
the spouse’s safety can be ensured. The first goal of ther-
apy is to evaluate whether the patient is really motivated.
The patient must identify patterns of escalation in vio-
lence and learn to disengage at the early phase of escal-
ation. Often, the early phase involves a physical feeling as
an anger builds, for example, flushing of the face. In the
therapy, the therapist should monitor transference and be
prepared to deal with negative thoughts or threats by the
patients. Counter-transference must be monitored, since
violence can evoke inappropriate feelings and reactions to
patients. Psychotherapy should provide insight as to why
the patient must use violence as a means of expression.
Often these patients have difficulty verbally expressing
their feelings and conflicts. Themes common in the treat-
ment of violent patients often involve low self-esteem.
Behavioral therapy
Behavioral treatment programs have been used for the
management of violent behavior in severely impaired
institutional populations. This approach may be used for
chronic schizophrenics or mentally retarded patients in
conjunction with other treatment approaches. The basic
principles have been described elsewhere (Libermann
and Wong 1984; Wong et al. 1988). In setting up a behav-
ioral treatment program on an inpatient unit, the services
of a trained, experienced behavioral analyst should be
obtained. It is the responsibility of the behavioral analyst
to plan the treatment program in conjunction with the
interdisciplinary staff and to train and supervise staff in
the implementation of the treatment program. Behav-
ioral treatment programs should be reviewed periodically
by persons other than the ward personnel to ensure their
quality and ethical standards. In addition, the patient
should be involved as much as possible in the formulation
of the plan, and informed written consent should be
obtained if the patient is competent to offer it. The goals
and process of the treatment program should be dis-
cussed with the patient and an assessment should be
made of the patient’s desires in considering privileges and
rewards that may be used to motivate positive behavior.
CONCLUSION
One must differentiate violence that is in the realm of
psychiatry from violence that is not. Psychiatric and
medical disorders associated with violence include drug
and alcohol abuse, organic brain and systematic medical
disorders, schizophrenia, mania, certain personality dis-
orders, and mental retardation. The evaluation process
for violence should follow that for other problems in
psychiatry. This should include an assessment of the
short-term potential for violence, which is analogous to
the short-term prediction of suicide potential. Attention
must be paid to prevention of violence by patients and
the safety of all concerned. There are standards for the
management of violent patients and all staff should be
familiar with them.
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Pharmacological treatment of violent
behaviors1
ROBERT H. GERNER
INTRODUCTION
Treatment interventions for the purpose of controlling
violent behavior have been considered for centuries
(Ray 1838) and have always been controversial. Effective
pharmacological agents to achieve this control have only
been available for several decades. Two main classifications
of groups appropriate for intervention in violent behav-
ior are generally accepted. First are individuals who have
an accepted psychiatric disorder (DSM-IVR) (American
Psychiatric Association, in press) that is associated with
the behavior, such as persons in a psychotic state who
commit a crime out of a delusion or command halluci-
nation. Second are individuals whose behavior can
be affected by use of medication, which through central
or peripheral mechanisms reduces selected behaviors
independent of the subject having an axis I disorder.
Although it has been documented that the mentally ill
are more likely to be victims than perpetrators of crime,
there is no doubt that some individuals who are mentally
ill do commit crimes or are violent when they are actively
ill and not after their illness is treated (Krakowski, Volavka,
and Brizer 1986; Krakowski, Jaeger, and Volavka 1988;
McNiel and Binder 1991; Smith and Humphreys 1997;
Bhui et al. 1998; Hodgins 1998; Modestin 1998; Matson
et al. 1999).
Such clinical situations naturally are anecdotal and
cannot be studied using controlled experiments. Argu-
ments that patient groups are not more violent than the
general population are of interest but are not relevant to
the issue of whether proper treatment will reduce violent
or criminal behavior by a particular patient (Graham,
Thienhaus, and Somoza 1990; Tardiff and Sweillarn 1980).
The major diagnostic categories associated with this situ-
ation are schizophrenia, mania (Stueve and Link 1997),
1
The opinions herein do not necessarily reflect the official position
of the Veterans Administration.
59
depression (Korn, Plutchik, and Van Praag 1997), demen-
tias, and attention deficit disorder.
Seriously mentally ill inmates rarely have been treated
before their arrest (Lamb and Grant 1983), suggesting
that barriers to access and support for mental healthcare
contribute to their deviant behaviors. One study found
that crimes committed by this group of inmates have
been directly and specifically associated with psychotic
symptoms in 46 per cent and indirectly in another 36 per
cent (Taylor 1985), and a positive association of degree of
violence and psychotic symptomatology has been found
(Woodward et al. 1999; Morgan and Lilienfeld 2000).
Others have found that neurological abnormalities
(especially those affecting integrative sensory and motor
functions) are greater in violent schizophrenics (Krakowski
et al. 1989). Use of alcohol (Yesavage and Zarcone 1983),
phencyclidine (Brecher et al. 1988; Convit, Nemes, and
Volavka 1988), or stimulants such as phenylpropanolamine
(Cornelius, Soloff, and Reynolds 1984) have been associ-
ated with exacerbation of psychotic symptoms and vio-
lence. Violent behavior by schizophrenics has been shown
to be inversely correlated with serum levels of at least one
neuroleptic, thiothixene, strongly supporting the argu-
ment that in this group of patients it is the uncontrolled
illness that reduces the threshold for criminal violent
behavior (Yesavage 1992).
Antiaggressive medications per se do not exist.
Numerous case reports discuss the use of various medi-
cations on populations that have inappropriate episodic
or impulsive aggressivity, but most of these are method-
ologically flawed because thorough psychiatric evalu-
ations were not done (or were not feasible). It is therefore
difficult to compare one report to another with regard
to population diagnosis, treatment efficacy, optimal
dosage/blood level, duration of treatment, as well as
definitive outcome criteria. However, even with such limi-
tations, several agents have a large body of clinical support:
• Phenytoin has been studied at low (100 mg/day) and
high (300 mg/day) doses with placebo control and has
580 Special clinical issues in forensic psychiatry

been found to be quite effective in reducing aggres-
sive acts in a non-epileptic prison population at the
300 mg/day dose (Barratt et al. 1991).
• Lithium (Sheard et al. 1976; Schiff et al. 1982) and
carbamazepine in non-mood-disordered patients
(Luchins 1983; Mattes, Rosenberg, and Mays 1984),
high-dose beta blockers (especially propranolol
200–800 mg/day), nadolol, and pindolol have a broad
range of antiaggressive effects and are well tolerated
(Greendyke and Kantner 1986; Polakoff, Forgi, and
Ratey 1986; Greendyke, Schuster, and Wooton 1984),
as are combinations of the former agents (Buck and
Havey 1986).
More recently, studies have explored the neurobiologic
correlates of human aggression (focusing on serotonin,
dopamine and norepinephrine) (Berman and Coccaro
1998). In a pilot study looking at antiaggressive responses
to treatment with 5-hydroxytryptamine (5-HT) agents
in human subjects, Coccaro’s research suggested a direct
correlation to the responsiveness of central 5-HT synapses,
reduced number of serotonin receptors using pharma-
cological challenges and positive response to selective
serotonin reuptake inhibitors (SSRIs), reporting that the
addition of fluoxetine reduced both acts and fantasies
of aggression in violent/aggressive males. Another group
that conducted brain single photon emission tomogra-
phy (SPECT) studies observing significantly increased
activity in the anteromedial portions of the frontal lobes
of aggressive individuals (Amen et al. 1996) notes that
serotoninergic medications are known to decrease activ-
ity in this part of the brain. The 5HT1a agonist/antagon-
ist buspirone has demonstrated moderate reduction in
aggression in elderly and adolescent patients (Pfeffer,
Jiang, and Domeshek 1997).
The latency of onset of these agents may be several
weeks during which other supportive measures may be
needed. While some schemas have been proposed for
decision making (Yudofsky, Silver, and Hales 1990), clin-
ical judgment and a systematic approach to clinical trials
of several agents remain the mainstay of effective inter-
ventions. Dose and duration of treatment is not system-
atized, although if one hypothesizes that an underlying
neuronal dysfunction is being stabilized, then a mainten-
ance treatment strategy is very compelling.
SCHIZOPHRENIA
factors. Hence, depot preparations (haloperidol or flu-
phenazine and others in the future) guarantee compliance
and are at least as effective as other neuroleptics (Van
Putten et al. 1991).
Active treatment of side effects is necessary, since some
extrapyramidal syndromes, especially akathisia (Herrera
et al. 1988), have been associated with an increase in
violent behavior. Although relatively common with the
potent neuroleptics, sophisticated assessment of akathisia
requires a high index of suspicion in the clinician’s mind
since restless legs per se is not an absolute diagnostic
marker of this condition. Rather, upon direct question-
ing, patients may be able to acknowledge that they have
an inner sense of restlessness, agitation, or tension felt in
the body cavity. Patients who are not able to communi-
cate due to their illness require a clinical judgment to
be made on the basis of observation. Propranolol is con-
sidered the treatment of choice for the duration of
neuroleptic treatment at a dose of approximately 20 mg
three to four times a day or 120–200 mg/day of the
extended-release preparation. A second choice has been
lorazepam at 1–2 mg twice a day (Dumon et al. 1992).
The anticholinergic agents trihexyphenidyl, biperiden, and
benztropine are not very effective for akathisia.
The newer antipsychotic agents (quetiapine, olanzap-
ine, and risperidone) have an infrequent incidence of
extrapyramidal side effects. Clozapine has been used as a
specific antiaggressive agent with some success (Buckley
et al. 1995; Glazer and Dickson 1998). However, these
agents may only be relatively indicated in this population
unless compliance can be assured.
The use of amantadine as an anti-Parkinson agent
may be relatively contraindicated in patients with a crimi-
nal assaultive history because it is a dopamine agonist
and there is considerable case report literature of it exa-
cerbating psychotic symptoms (Gerner 1992).
Benzodiazepines (Victor, Link, and Binder 1984;
Raines and Greenspan 1987) are also used as adjunctive
treatment. The range and type of benzodiazepine vary
greatly. Clonazepam at 0.25–10 mg/day or the equivalent
of other benzodiazepines may be tried. Carbamazepine at
usual clinical doses/blood levels has been used for adjunct-
ive antiaggressive effects in schizophrenics with chronic
(Neppe 1983) or atypical features (Neppe, Bowman, and
Sawchuk 1991). If assaultive behavior continues after a
neuroleptic trial of several months, and the patient is in a
therapeutic setting, then adjunctive medications should
be considered.

The implications specifically relevant for schizophrenia

are that lack of diagnosis, inadequate treatment, and
non-compliance to treatment will increase the probability
of this group becoming involved in criminal behavior or
violence (Kienlen et al. 1997; Flannery et al. 1998). Spe-
cific treatment for schizophrenics who have been crim-
inal or violent should initially be directed at use of proven
antipsychotic medication used as indicated by the clinical
MOOD DISORDERS
Mood disorders have a complex relationship to violence.
Dysthymia and depression have been associated with
robbery and repeated fighting, and mania has been asso-
ciated with violence (Collins and Bailey 1990). Both

mania and depression are common and are underdiag-
nosed in prison populations, with an incidence of 10 per
cent being found by Good (1978). Murder-suicides are
particularly associated with males who are depressed
(Rosenbaum 1990). Irritability in mania, associated
drug/alcohol use (in 50 per cent of bipolar patients;
Goodwin and Jamison 1990), stimulus-seeking behavior,
hypersexuality, and impulsivity lead to high-speed and
reckless driving, inappropriate sexual advances and acts,
embezzlement of money, fraudulent behavior, fighting,
threats, and so forth. Usually, these are symptoms of the
active phase of the illness, and although the behavior is
criminal, the treatment is no different than that for non-
criminal affective disorder. Particular attention must be
given for non-responders to standard treatments both
for depression and bipolar disorders (mood stabilizers
such as lithium, valproate, lamotrigine and/or carba-
mazepine), and rational polypharmacy will often be
indicated (Kahn et al. 2000).
Kleptomania used to be considered a psychological
manifestation of neurotic etiology (Goldman 1992). How-
ever, McElroy et al. (1991) reported that all of twenty
kleptomanic patients had a lifetime diagnosis of major
mood disorder (with a high comorbidity for anxiety and
eating disorder) and that the kleptomanic behaviors
abated when specific treatment was given for the mood
disorder. Hollander (1999) has found that many such
patients have obsessive-compulsive spectrum disorder.
Obsessive-compulsive disorder (OCD) may also mani-
fest in criminal acts such as pyromania, stalking, the
full range of sexually perverse acts, and defacing. Only a
thorough history and open-minded evaluation is likely
to discover this subset of patients/criminals. Treatment, of
course, should initially be directed at the OCD through
use of serotoninergic agents: clomipramine and/or the
SSRI group. In addition to addressing the OCD disorder,
SSRIs may non-specifically reduce libido for sexual com-
pulsions. Of the SSRIs, fluoxetine – because of its extended
half-life – may be converted to weekly dosing, if compli-
ance is questionable. Refractory cases may require high
doses of SSRIs and/or augmentation. Two studies (Koran,
Ringold, and Elliott 2000; McDougle et al. 2000) have seen
improvement in refractory OCD patients when low-dose
risperidone has been added to an SSRI. One small series
found similar results with olanzapine augmentation
(Weiss et al. 1999), while another group (Fallon et al. 1998)
found that intravenous clomipramine was an effective
treatment for OCD patients with a history of inadequate
response to oral clomipramine (not available in the U.S.).
NEUROPSYCHIATRIC DISORDERS
The association of neuropsychiatric disorders and aggres-
sion has been controversial, and the same concerns apply
as with the primary psychiatric disorders with regard to a
Pharmacological treatment of violent behaviors 581
potential relationship with etiology and avoiding general-
izing from the disorder to the behavior on a wider scale.
Complex Partial Seizures (temporal lobe epilepsy) does
indeed manifest as aggression/irritability in some individ-
uals, more often perhaps during inter-ictal periods than
ictal ones (Devinsky and Bear 1984; Gerard et al. 1998;
Kanemoto, Kawasaki, and Mori 1999; van Elst et al. 2000).
Such individuals may not respond to simple anticon-
vulsant treatments. Most case reports, however, reveal
that aggressive treatment strategies were not carried out
such as using two anticonvulsants, adding benzodiazepines
or propranolol, or using antipsychotics or antiandrogens
(below). Although all anticonvulsant agents have been
tried and reported to work in some individuals, since the
limbic structures are considered to be the most likely
pathophysiological site, carbamazepine (Mattes 1986) or
valproate (Giakas, Scibyl, and Mazure 1990), lamotrigine,
oxcarbazepine, topiramate, or levetiracetam would be
reasonable choices.
Atypical features in the epileptic spectrum are often
found in violent criminals. Electroencephalograms (EEGs)
may be non-specific, and clinical judgment remains a valid
standard for initiating a treatment trial (Fenwick 1989;
Lewis and Pincus 1989). A German study of 222 defen-
dants referred for psychiatric evaluation found no connec-
tion between violent behavior and EEG abnormalities in
general, but their findings suggest that focal abnormalities,
especially of the left hemisphere, were related to a signifi-
cantly higher number of violent offenses (Pillmann et al.
1999). Research with positron emission tomography
(PET) evaluating regional brain glucose metabolism in
violent psychiatric patients showed significantly lower rel-
ative metabolic values in medial temporal and prefrontal
cortices than did normal subjects (Volkow et al. 1995). Few
systematic data are available using any of these procedures,
but topographic EEGs, as well as SPECT and PET imaging,
are very promising for identifying potentially treatable
central nervous system dysfunctions in this population.
Anticonvulsants are often effective in this population, and
empirical treatment trial is warranted. There is some con-
troversy whether phenytoin slows cognitive processes in
a greater percentage of patients (Gerner 1992; Aldenkamp
and Vermeulen 1995). For non-responders, use of low-
to standard-dose adjunctive antipsychotics is not contra-
indicated in patients on anticonvulsants (Gerner 1992;
Brodtkorb, Sand, and Strandjord 1993).
Somnambulism can manifest itself as violent behavior
(Oswald and Evans 1985). Treatment is the use of agents
that block stages III and IV sleep, usually imipramine or
a similar tricyclic at doses adjusted by clinical response.
CENTRAL NERVOUS SYSTEM (CNS) INJURIES
Non-specific CNS injuries may predispose individuals to
violence. These injuries may be due to open or closed
582 Special clinical issues in forensic psychiatry
trauma, concussion, stroke, encephalitis, or alcohol abuse
(Rosenbaum and Hoge 1989; Paradiso, Robinson, and
Arndt 1996; National Institutes of Health 1998; Mathias
and Coats 1999). No specific treatments are available
since the injuries may affect many neural substrates and
hence response to medications varies greatly. Treatments
are judged by clinical response and are similar to those
for ADHD or epilepsy and additionally include verapamil
(approximately 480 mg/day divided q.i.d.) (Greendyke,
Webster, and Gulya 1990), propranolol (100–800 mg/day)
(Elliot 1977; Schreier 1979; Yudofsky, Williams, and
Groman 1981; Yudofsky et al. 1984; Ratey, Morrill, and
Oxenkrug 1983), other lipophilic beta blockers such as
metoprolol (Mattes 1987), and buspirone (15–45 mg/day)
(Ratey et al. 1991). Benzodiazepines with high potency
may be useful (Griffity 1985; Bond, Mandos, and Kurtz
1989), although there are rare reports of these agents
and amytal inducing psychiatric syndromes of agitation
through disinhibition (Pulman and Lal 1982; French
1989).
DEMENTIA
Dementia of the Alzheimer type is often accompanied
by delusions or misidentifications that are significantly
associated with episodes of aggression, although not at
a level that predicts behavior for an individual (Deutsch
et al. 1991; Harwood et al. 1998). Pharmacotherapies
(Yudofsky, Silver, and Hales 1990) traditionally include
low doses of potent neuroleptics, although potent
benzodiazepines (Fritz and Stewart 1990), buspirone
(Colenda 1988), and carbamazepine (Chambers, Bain,
and Rosbottom 1982; Marin and Greenwald 1989) are
often useful. The non-potent typical neuroleptics have a
high anticholinergic activity, and at normal clinical doses
are likely to increase confusion and disinhibited behaviors
(Masand 2000). Therefore, chlorpromazine and thiori-
dazine are relatively contraindicated in this population
(Devanand, Sackeim, and Mayeux 1988). The newer atyp-
ical antipsychotics olanzepine, quetiapine and risperidone
have all demonstrated positive antiaggressive/agitation
effects in the aged and are relatively free of extra-
pyramidal and anticholinergic side effects (De Deyn et al.
1999; Katz et al. 1999; Stoppe, Brandt, and Staedt 1999;
MacKnight and Rojas-Fernandez 2000; Edell and Tunis
2001). Propranolol has been used effectively to treat
aggressive behavior in dementia (Haspel 1995). One group
using low-dose propranolol monotherapy (10–80 mg/day)
in a small series showed a significant reduction in aggres-
sion, agitation and in wandering (Shankle, Nielson, and
Cotman 1995). Although there are no controlled trials,
serotoninergic agents are reported as useful in nursing
homes for treatment of hypersexuality or paraphilias
(Levitsky and Owens 1999) in older populations or cog-
nitively impaired populations.
ATTENTION DEFICIT DISORDER
Attention deficit disorder (ADD) may be due to infec-
tion, trauma, heredity, or unknown causes. ADD individ-
uals are at high risk for developing criminal behaviors,
conduct disorders, and secondary substance abuse, espe-
cially when the primary ADD is untreated or treatment is
discontinued during adolescence (Borland and Heckman
1976; Satterfield, Hoppe, and Schell 1983; Gittelman et al.
1985; Biederman et al. 1998; Crowley et al. 1998; Dalteg,
Gustafsson, and Levander 1998; Levin, Evans, and Kleber
1998; King et al. 1999).
Aggressivity in these individuals is related to their
biological/genetic status and not to the families in which
they are raised (Cadoret and Stewart 1991). Although
controlled studies are lacking in the criminal behavior
subgroup, continued use of tricyclic drugs and/or stimu-
lants such as methylphenidate, dexedrine, and possibly
bupropion has been shown to reduce aggression and
behavior dysfunction and to result in better long-term
outcomes generally (Stringer and Josef 1983; Paternite
et al. 1999). Dosages of stimulants that are effective
have a wide interindividual range (e.g., 10–80 mg/day
of methylphenidate) as do the antidepressant bupropion
(75–400 mg/day in divided doses) and the tricyclic anti-
depressants (25–200 mg/day imipramine equivalents).
Perhaps counterintuitively, the risk of substance abuse
is reduced when these subjects are treated (Biederman
et al. 1998).
SEXUAL VIOLENCE
Many criminal acts involve sexual crimes. There is an
extensive literature on the linkage of androgens and sex-
ual offenses and indeed, with aggression separate from
sexual crimes per se. Exogenous testosterone increases
mood and aggressivity in male humans (Mazur and Lamb
1980; Pope, Kouri, and Hudson 2000), although a simple
correlation of serum testosterone with violent or sexual
criminal behavior is probably not present (Bradford and
McLean 1984). However, the data supporting the con-
sensus of the effect of decreasing male hormones on vio-
lence, sexual crimes, and criminality are overwhelming in
breadth and consistency in studies from many countries
and over several decades of investigations. Also of interest
is research on the testosterone modulation of 5HT1A and
5HT1B receptor agonists and the subsequent effects on
inter-male aggression (Simon et al. 1998).
Two medications have usually been used to decrease
testosterone: medroxyprogesterone acetate (Provera oral,
or Depo-Provera) and cyproterone acetate:
• Medroxyprogesterone dosages can be individualized
using serum testosterone levels as an objective criterion,
with levels of less than 100 ng/dl being reasonable.

Medroxyprogesterone acetate is usually given as a
depot intramuscular injection on a weekly basis at
doses of 200–400 mg. It increases the metabolism and
decreases the production of testosterone via pituitary
inhibition of luteinizing hormone (LH). Male sexual
interest and physiological arousal is inhibited, some-
times completely. Sexual fantasies are also markedly
reduced or eliminated. Loss of male secondary sex
characteristics and feminization are not associated
with treatment.
• The synthetic progesterone, cyproterone acetate, blocks
androgenic effects at genital target organs and not the
brain, although serum testosterone levels are also
reduced. Oral doses are usually 50 mg b.i.d.-q.i.d., and
depot injection forms (300 mg q. 1–2 weeks) are avail-
able in some countries (not in the United States).
Side effects are rare for both medroxyprogesterone acetate
and for cyproterone acetate, although medroxyproges-
terone, like other female hormones, can exacerbate fluid
retention and is rarely associated with thrombotic phe-
nomena. Cyproterone acetate may produce gynecomas-
tia, a decrease in body hair, and an increase in head hair
in a significant minority of subjects. These effects and
anti-aggressive and sexual inhibitory effects are reversible
over several weeks as the drug is eliminated.
Other oral antiandrogens are available and are used
for cancer therapy (flutamide), although use for criminal/
aggressive behaviors has not been explored. The length
of treatment has usually been considered to be for years or
lifelong since the purpose is not punishment but to pre-
vent the individual from committing a crime (Fuller 1989).
These agents are notably successful (approximately 80
per cent) (Bradford 1983) in follow-up studies when com-
pliance is ensured (Laschet and Laschet 1971; Laschet
1973; Laschet and Laschet 1975; Ortmann 1980; Gagne
1981), especially when compared to monotherapy with
behavioral or punitive (prison) treatments (Abel et al.
1988; Becker, Kaplan, and Kavoussi 1988; Marshall and
Barbaree 1988; Pithers et al. 1988; Rice, Quinsey, and
Harris 1991), a factor that may markedly result in enhanc-
ing the cost/benefit analysis of pharmacotherapy over
other or no treatments (Prentky and Burgess 1990).
Compliance in a non-structured setting is a serious prob-
lem, however (Kiersch 1990), and is beyond the scope of
this chapter. These treatments are effective for males who
commit crimes related to sex with or without an associ-
ation with violence or dementia or retardation and without
regard to the sexual object (i.e., pedophiles, homosexual
crimes, heterosexual rape, sexual fetishes, dementia-
associated sexual behavior) (Money 1970; Cooper et al.
1972; Berlin and Neinecke 1981; Cooper 1981; Bradford
and Pawlak 1987; Cooper 1987; Ross et al. 1987). Con-
cerns that such treatment may alter sexual orientation
are unfounded (Cordoba and Chapel 1983).
Drug abuse and especially alcohol are acknowledged
to be highly associated with crime and/or violence, both
Pharmacological treatment of violent behaviors 583
sexual and non-sexual (Mezzich et al. 1997). Although
not directly acting to block criminal behavior, the use of
disulfiram, methadone or levomethadyl acetate (LAAM),
and more recently naltrexone, does reduce criminal behav-
ior from either a lowering of impulse thresholds, CNS
irritability, or drug-seeking behavior. Of these agents,
disulfiram may paradoxically produce manic or schizo-
phrenic exacerbation, because in addition to blocking
alcohol dehydrogenase, it blocks dopamine beta hydroxy-
lase, the enzyme that converts dopamine to norepineph-
rine, thus causing a relative increase in dopamine. All
three of these agents can be thoughtfully combined with
the others listed in this chapter. Some researchers have
posited that a relative reduction of serotonin metabolism
may play a role in vulnerability to alcohol abuse and
dependence, and other substance use disorders (Brady,
Myrick, and McElroy 1998; Heinz et al. 1998).
This chapter has made no attempt to deal with the
political or ethical issues of treatment of felons, prisoners,
or those whose capacity to give consent for treatment
is impaired or coerced. However, many pharmacological
Table 59.1 Agents of potential use in reducing violent
behaviors
Anti-androgens: criminal aggressive behavior associated
with sexual drive, fantasies, compulsions or impulses
Anticonvulsants: (carbamazepine, lamotrigine,
oxcarbazepine, valproate): criminal aggressive behavior
associated with mood disorders, schizophrenia,
impulsivity, brain damage, or epilepsy
Antidepressants/antiobsessive-compulsives: criminal
aggressive behavior associated with depression,
compulsions, or attention deficit disorder
Atypical antipsychotics: behavior in mania,
schizophrenia, brain injury/dementia
Benzodiazepines: criminal aggressive behavior associated
with mania, schizophrenia, brain damage, dementia,
or epilepsy
Beta-blockers: criminal aggressive behavior associated
with schizophrenia, neuroleptic side effects, brain
damage, or dementia
Buspirone: aggression associated with dementia or
central nervous system damage
Disulfiram/naltrexone: alcohol-associated disinhibition
and violent or sexual crimes
Lithium: criminal aggressive behavior associated with
mania or impulsivity
Methadone/LAAM: opiate-drug-seeking crimes
Neuroleptics: criminal aggressive behavior associated
with mania or schizophrenia
Stimulants: criminal aggressive behavior associated with
attention deficit disorder or brain damage
Verapamil: criminal aggressive behavior associated with
mania or dementia
584 Special clinical issues in forensic psychiatry
agents are likely to be effective in reducing criminal
behavior whether or not such are due to Axis I disorders,
neuropsychiatric disorders, or sexual deviance. The
research data permit us to choose among several agents
with clinical correlation to history and appropriate labora-
tory testing to make a prescription. Those agents com-
monly used, together with their potential indications, are
detailed in Table 59.1.
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Violence and epilepsy: an approach
to expert testimony
DAVID M. TREIMAN
Actus non facit reum nisi mens sit rea. (The deed does
not make a man guilty unless his mind is guilty.)
Neurologists and psychiatrists are frequently asked to
provide expert testimony as to whether a violent criminal
act could have been caused by an epileptic seizure. This is
because of the belief held by many psychiatrists and
some neurologists that violent and aggressive behavior can
occur as a symptom of epilepsy. Defense attorneys have
learned that an ‘epilepsy defense’ may be the best means
of obtaining acquittal for their client, especially if there is
little doubt that the client committed the aggressive act of
which he or she is accused. Because of these issues it
becomes worthwhile to consider a number of questions
relating to whether or not ictal aggression can occur and
what should be the proper role of the neurologist or psy-
chiatrist asked to provide expert testimony. The following
questions need to be considered:
1 What are the fundamental characteristics of epileptic
seizures? How do we determine if a paroxysmal event
is an epileptic seizure?
2 Under what circumstances could ictal aggression or
violence occur? What is the pathophysiology of ictal
aggression, if it occurs at all?
3 Is there evidence from the medical or legal literature
that ictal aggression has actually occurred? What is
that evidence?
4 Is there evidence that inter-ictal aggression occurs
as a part of an epilepsy syndrome? Is epilepsy more
frequent in violent prisoners than in the general
population?
5 Are there other causes of paroxysmal violence which
should be considered in a differential diagnosis of ictal
aggression?
6 What guidelines should be followed by an expert
witness when considering the possible relationship
between a violent event and an epileptic seizure?
60
An epileptic seizure can be defined as ‘a clinical manifest-
ation of a [transient, usually hypersynchronous, abnor-
mal electrical discharge in the cerebral cortex] consisting
of sudden and transitory abnormal [behavioral] phe-
nomena, which may include alterations of consciousness;
motor, sensory, autonomic or psychic events; perceived by
the patient or an observer’ (International League Against
Epilepsy 1993). Epilepsy is defined as a condition charac-
terized by recurrent spontaneous seizures not due to
active cerebral disease or injury. In 1969, the International
League Against Epilepsy (ILAE) adopted an International
Classification of Epileptic Seizures (Gastaut 1970). This
classification, which was modified in 1981 (Commission
on Classification and Terminology of the International
League Against Epilepsy 1981), makes a fundamental
distinction between seizures which are generalized from
onset (the initial behavioral and electrical manifestations
are bilaterally symmetrical) and those which are partial
(focal) in onset (the initial behavioral and electrical man-
ifestations are attributable to seizure activity in one area
of the brain) which may or may not secondarily generalize
(Table 60.1). Although another revision is now under con-
sideration by the ILAE (Engel 2001), the 1981 classifica-
tion continues to be valuable for clinical purposes. Each
of the six kinds of primarily generalized epileptic seizures
and three kinds of partial onset seizures listed in this clas-
sification has well-defined characteristics. Recognition of
these characteristics is useful, both in determining the
proper seizure classification and in determining whether
or not a paroxysmal event was an epileptic seizure. There
is a set of common characteristics which all epileptic sei-
zures share:
1 Epileptic seizures are usually discrete, time-limited
events with an identifiable onset and termination.
2 Most epileptic seizures, particularly those types which
possibly could be implicated as a cause of ictal
590 Special clinical issues in forensic psychiatry
Table 60.1 International classification of epileptic seizures
Partial (onset) seizures
Simple partial seizure
Complex partial seizures
Partial seizures evolving to secondarily
generalized seizures
Generalized (from onset) seizures
Absence seizures
Atypical absence seizures
Myoclonic seizures
Clonic seizures
Tonic seizures
Tonic-clonic seizures
Atonic seizures
Modified from Commission (Commission on Classification and
Terminology of the International League Against Epilepsy 1981).
violence, have a well-defined and predictable evolution
of behavior from beginning to end.
3 After termination of most seizures, there is a progressive
recovery of consciousness and neurological function.
4 Epileptic seizures may be expressed as a variety of
behaviors within one seizure type, but epileptic seizures
are generally stereotyped within the same individual.
The first challenge to the physician who is trying to
determine if a paroxysmal act of violence was epileptic in
nature is to identify whether or not the event fulfilled the
characteristics of an epileptic seizure and, if so, to classify
that seizure. This is best done by having a thorough
familiarity with the characteristics of each of the nine
defined types of epileptic seizures and by obtaining a
detailed description of the sequence of events which
occurred during the event. It is important to insist on a
second-by-second description of the event. What was the
accused doing before the violent act, at the start of the
act, during the act, and after the event? What happened,
in exactly what sequence? Of crucial importance: did the
violent act occur after the start of behavior characteristic
for the seizure type alleged to have occurred or was the
violent event the very first abnormal behavior? Was there
any premeditation regarding the violent act? Was the
accused provoked, even in some slight way, to commit
violence?
It is worthwhile here to consider the types of
epileptic seizures which have been implicated in violent
or aggressive behavior. There are only three: primarily or
secondarily generalized tonic-clonic and complex partial
seizures. In simple partial and myoclonic seizures there
is no loss of consciousness. Thus, directed aggression for
which the accused later claims amnesia cannot, by defin-
ition, occur. During such a seizure the patient is fully
capable of differentiating right from wrong. There have
been many reports of simple or complex partial seizures
manifested as feelings of fear or anger, starting with reports
by three of the giants of early epileptology: Hughlings
Jackson (1931, see Taylor, Holmes and Walshe 1931), Sir
William Gowers (1881), and Wilder Penfield (1951). Even
if a simple partial seizure is manifested by intense feelings
of anger or fear, the patient retains the capacity to suppress
the impulse to act on such feelings with directed violence
(assuming, of course, that the patient has the capacity to
suppress such impulses under normal circumstances).
Tonic, clonic, and atonic seizures occur almost exclusively
in mentally retarded children and are so brief and/or
stereotyped that it is difficult to imagine directed aggres-
sion occurring as a part of such a seizure. This is also true of
primarily or secondarily generalized tonic-clonic seizures,
but resistive violence (which will be discussed further
below) has been reported during the postictal recovery
phase after the end of generalized tonic-clonic seizures.
Postictal psychosis, which may occur after tonic-clonic and
complex partial seizures, may also give rise to directed
aggression. This also will be discussed further below.
Both simple partial and complex partial seizures may
spread to engage diencephalic structures, at which time
the patient will exhibit generalized tonic and/or clonic
behavior. The sequence is predictable: initial tonic pos-
turing, followed by clonic jerking of the face, trunk,
and/or extremities which increases in amplitude and
decreases in frequency, until there is an abrupt cessation
of the jerking and the patient remains in a motionless,
comatose state from which there is usually gradual recov-
ery (although recovery may be rapid following frontal
lobe seizures). During the recovery period (the post-
ictal phase) the patient may be confused and disoriented
and may experience an impairment of normal social
inhibitions.
A complex partial (psychomotor) seizure is the only
type of seizure with behavior compatible with the possi-
bility of truly ictal directed aggression. Therefore, it is
important to consider in detail the clinical characteristics
of this seizure type. Delgado-Escueta and colleagues
(1977, 1979, 1982) suggested that complex partial seizures
typically exhibit two or three distinct behaviors, which
occur in a predictable sequence. In complex partial
seizures of mesial temporal origin the seizure begins
with a motionless stare, followed by stereotyped, usually
oroalimentary, automatisms, followed by reactive automa-
tisms. In complex partial seizures of lateral temporal or
extratemporal origin the stare is omitted, so the seizure
starts with stereotyped automatisms followed by reactive
automatisms. ‘Stereotyped automatisms’ refer to auto-
matic behavior which is more or less the same from
seizure to seizure within the same patient. ‘Reactive
automatisms’ refer to automatic behavior for which the
patient is also amnestic and which occurs during the ictal
phase of the seizure (the EEG still shows epileptiform
discharges). However, the behavior is not constant from
seizure to seizure but rather is modified by external influ-
ences such as being led by a nurse or given a glass of
water to drink. A number of other investigators have
also contributed to our understanding of the semiology

of complex partial seizures, including Theodore, Porter,
and Penry (1983) Williamson et al. (1985), Williamson
and Spencer (1986), Quesney (1986), Bancaud (1981,
1987), and Wieser (1983b). Kotagal (2001) recently pro-
vided a comprehensive review of the various clinical pre-
sentations of complex partial seizures.
PATHOPHYSIOLOGY OF ICTAL AGGRESSION
Given this description of the behavioral patterns of the nine
seizure types recognized in the International Classifica-
tion (Commission on Classification and Terminology
of the International League Against Epilepsy 1981), is
it possible that an individual could commit a violent or
aggressive act, for which he or she has little or no
memory, as the result of a seizure? For simple partial
seizure the answer is clearly no, because consciousness and
memory are retained during the duration of the seizure.
If complex partial and primarily or secondarily generalized
tonic and/or clonic seizures are considered, how could ictal
aggression occur? Treiman (1991) suggested five circum-
stances under which ictal violence or aggression theoreti-
cally could occur. However, as will be discussed below
there is little evidence that some of these possible types of
ictal aggression ever actually happen:
1 Primary ictal aggression: aggressive behavior which
is directly stimulated by the epileptic discharge, as was
suggested by some of the early human brain stimula-
tion studies (Delgado, Halim, and Chapman 1952;
Heath 1955; Chapman 1958; Ursin 1960; Chatrian
and Chapman 1960; King 1961; Heath 1962; Heath
1964; Delgado et al. 1968; Ervin, Mark, and Stevens
1969; Mark et al. 1969; Mark and Ervin 1970;
Kalyanaraman 1975; Mark, Sweet, and Ervin 1975).
However, for a critical review of these reports see
Treiman (1991).
2 Secondary ictal aggression: aggressive behavior released
by disinhibition of normal social controls by a seizure
discharge or which occurs in response to an epileptic
discharge which produces a noxious or aversive stim-
ulus. Mendez (1998) reported a case of a 37-year-old
man who experienced an overwhelming sense of threat
which began during post-ictal confusion, but persisted
for about 24 hours after a seizure. He focused these
feelings on anyone who was in his immediate envi-
ronment, on a number of occasions physically attacked
such people, and on several occasions was charged with
aggravated assault. These episodes abated with control
of his complex partial seizures.
There also is evidence that patients in spike-wave stu-
por (absence status epilepticus) (Treiman and Delgado-
Escueta 1980) or in what Treiman (1990) termed ‘subtle
complex partial status epilepticus’ are capable of per-
forming complex acts for which they subsequently have
Violence and epilepsy: an approach to expert testimony 591
little or no memory. There are no documented cases of
acts of directed violence or aggression occurring during
such an attack. However, Goldensohn and Gold (1960)
reported five cases of prolonged behavioral, emotional
and intellectual disturbances associated with generalized
discharges on the EEG. Three exhibited agitated and
aggressive behavior in reaction to others, especially if
restrained, but none was reported to have exhibited organ-
ized directed aggressive acts.
3 Non-aggressive violent automatisms: violent behavior
which occurs as a stereotyped automatism but which
is not directed toward a person or object and has no
aggressive intent.
4 Resistive violence: violent behavior which occurs at
the end of a well-documented seizure while the patient
is still exhibiting reactive automatisms or is in a post-
ictal confused state.
5 Post-ictal psychosis: violence or aggression which occurs
in the context of post-ictal psychosis.
Fenwick (1989) also has suggested that ‘prodromal aggres-
sion’ may occur in some patients who experience psycho-
logical symptoms of irritability, anxiety, or depression for
minutes, hours, or even days prior to a seizure. These
psychological symptoms frequently terminate with the
seizure.
ICTAL VIOLENCE – DOES IT OCCUR?
Medical literature
What is the evidence that ictal aggression has actually
occurred under any of these circumstances listed
above?
Over fifty cases of possible ictal aggression or violence
have been reported in the medical literature. Treiman
and Delgado-Escueta (1983) reviewed twenty-nine of these
in detail, and in their opinion, only three of the twenty-
nine cases were strongly suggestive of a relationship
between ictal epileptic attacks and violent automatisms.
In 1980, an international panel of eighteen epileptologists
reviewed videotapes and EEGs of thirty-three epileptic
attacks in nineteen patients who were believed to have
exhibited aggressive behavior during the recorded seizures
(Delgado-Escueta et al. 1981). In the opinion of the panel,
seven patients exhibited ictal aggression ranging from
violence toward property to mild aggression directed
toward a person. Of the remaining twelve patients, six
had only pseudoseizures and six had minimal or no
aggression. Five of the patients in this series have been
described in greater detail elsewhere (Ashford, Schulz,
and Walsh 1980; Saint-Hilaire et al. 1980; Treiman and
Delgado-Escueta 1981). These five cases, two reported
subsequently by Wieser (1983a), and one reported by
Gerard et al. (1998) are the only patients who are known
to have clear histories of assault and whose epileptic
592 Special clinical issues in forensic psychiatry
attacks have been studied by closed-circuit television and
electroencephalography. Fenwick (1989) described four
cases of apparent ictal aggression. There have been two
relatively recent reports of ictal ambulatory automatism
that were perceived to be assaultive and led to criminal
charges. Borum and Appelbaum (1996) described a
31-year-old male with a long history of nocturnal com-
plex partial seizures which characteristically evolved into
ambulatory automatisms and ictal or post-ictal wander-
ing and confusion, during which frequently he would
urinate in inappropriate places in the house. One evening
he consumed some beer and vodka and then went to bed.
He next was aware of being awakened by two police offi-
cers for having allegedly pounded on the door of a shared
access bathroom when a fellow boarder, a young woman,
was bathing, yelling ‘open it, open it.’ When she did, he
was wearing only a towel around his waist, a struggle
ensued, and he was charged with indecent assault and
battery and assault with intent to rape but was acquitted
because the epileptic nature of his behavior was recog-
nized. He fulfilled all of the criteria suggested at the end
of this chapter for determination of epilepsy as the cause
of a violent crime except for the lack of documentation
by video. Treiman (1999) recently reported a case of an
ictal ambulatory automatism that was also perceived to be
assaultive and which also resulted in acquittal because of
the epileptic nature of the attack. Thus, there are only a
few patients reported in the medical literature who have
been observed to exhibit aggressive behavior and in
whom there is reasonable evidence that their aggressive
behavior may have been related temporally to an ictal
event. It is, therefore, worthwhile to review these cases in
some detail.
Two cases were described by Gunn and Fenton (1971)
where violent behavior may have been related to an ictal
event. One was a 49-year-old alcoholic who had seizures
since the age of 25 years. One evening, after having been
drinking, he left the pub and had a seizure. He was recover-
ing from the seizure when a policeman tried to remove
him for being a nuisance. The patient lashed out and
tried to hit the policeman. In the other case, a 32-year-
old man developed generalized convulsion at the age of
18 years. Two years later, when staying at his girlfriend’s
house, he had a generalized convulsion early in the morn-
ing. While still in a post-ictal confused state, he violently
attacked his girlfriend, and an elderly couple who also
lived in the house. On admission to the hospital shortly
thereafter he was mentally confused and amnestic for all
events following the seizure. He was incarcerated in an
institution for the criminal insane. Thereafter he had a
generalized tonic-clonic seizure once every one to two
years. Each seizure was followed by a period of confusion
lasting 15–60 minutes during which the patient appeared
perplexed and frightened and if restrained in any way
would become dangerously aggressive. Both of these cases
are examples of ‘resistive violence’ in which attempts to
restrain a patient while still in a post-ictal confused state
produce violent reactive automatisms for which the
patient is completely amnestic.
Knox (1968) reported six patients who exhibited
resistive behavior if an attempt was made to restrain them
at the end of a seizure. One patient, a 50-year-old man,
had several episodes of automatisms while under obser-
vation. During these episodes he would stagger about
and if assisted would shout, ‘Leave me alone.’ On one
occasion he grabbed an orderly by the throat, held him
for several minutes and yelled, ‘I’ll kill you.’ He kicked the
doctor on another occasion. He reported that if he had a
seizure at work, his colleagues knew not to approach him:
‘It seems I don’t attack them if I’m not touched.’ Resistive
violence has also been observed in other series of patients
with complex partial seizures (Delgado-Escueta et al. 1977;
King and Ajmone Marsan 1977; Delgado-Escueta et al.
1982; Fenwick 1989).
In Ashford’s patient (Ashford, Schulz, and Walsh 1980)
and in Treiman’s two patients (Treiman and Delgado-
Escueta 1981), fear apparently induced automatic destruc-
tion of property, defensive kicking and flailing. These
behaviors observed on the CCTV-EEG were similar to
those described in the patients’ histories.
Of the 19 patients reviewed by the international
panel, only one (one of Saint-Hilaire’s patients) (1980)
exhibited ictal aggressive acts which could have resulted
in serious harm to another person. This was a mentally
retarded young woman of 20 who at the age of 3 years had
‘a generalized infection with encephalopathy and hence-
forth manifested unmotivated aggressive paroxysms … .’
Saint-Hilaire and colleagues further described her history
as follows: ‘The aggressive outbursts happen suddenly,
without any warning. She quickly moves toward a target
and physically assaults it… . When the targets are
objects, she breaks them and/or throws them. When she
directs these behaviors toward humans, she will often
grab the eyeglasses and break them; if a person does not
wear glasses, she will direct her attack toward the face
while grabbing and/or hitting … . The outbursts suddenly
abate and the patient declares herself tired, she “does
not feel well”, but her contact with the environment is
restored to its usual level. These paroxysms happen many
times a week despite heavy medication.’ During scalp
EEG observations a secondarily generalized tonic-clonic
seizure was recorded without evidence of aggressive behav-
ior. During depth stereo electroencephalography (SEEG)
observations several ‘absences’ were noted during which
the patient lost contact with the environment and
exhibited epileptiform activity limited to the right amyg-
dala and right temporal cortex. Stimulation of the right
hippocampus only produced a local after discharge with-
out behavioral change. On one occasion, stimulation of
the left hippocampus was followed 95 seconds later by loss
of contact with the environment, irregular movements
and breathing at 104 seconds after the end of the electrical
stimulation, and an aggressive outburst at 117 seconds
after the stimulation, in which she rose suddenly from a

prone position, attempted to grab the neuropsychologist’s
eyeglasses and verbally accused him: ‘It’s your fault, it’s
not right, you’ve done it.’ Apparent epileptiform activity is
seen in the right hippocampus throughout the 67 seconds
of recording presented in the figure – unfortunately the
complete recording from the time of the electrical stimu-
lation throughout the entire aggressive episode is not pre-
sented, so the time the epileptiform activity began cannot
be seen and is not reported in the text.
Saint-Hilaire’s other patient was a 30-year-old bach-
elor sheet-metal worker, who began having seizures at
the age of six, one year after head trauma. During adoles-
cence his seizures assumed their adult pattern. They
began with an aura consisting of a shiver at the level of
the thorax, followed by loss of consciousness. The patient
then would talk or yell or insult people and spit in their
faces. He remained ambulatory and was able to carry out
relatively complex activities during these seizures, after
which he would be amnestic. This patient was studied
with SEEG. During a typical seizure the patient warned
the staff that an aura was beginning at the time low volt-
age fast activity could be seen in the right amygdala and
right anterior temporal leads. Seven seconds later the
patient whistled and struck his right thigh with his right
hand at the time when the EEG frequency in the amyg-
dala and anterior temporal cortex slowed. At 20 seconds
after onset of the initial EEG change and behavioral
warning, the patient yelled vulgar insults toward a nurse
in the adjacent room. Insults directed toward the nurse
(even though an EEG technician was closer to him) con-
tinued when, 26 seconds after the onset of the seizure,
rhythmic spike activity was seen not only from the
amygdalar and anterior temporal leads but also the right
perihippocampal gyrus. The seizure stopped 1 minute
15 seconds after onset, and the patient was amnestic for
all events.
Wieser (1983a) described a boy with a socially disabling
behavior disorder and frequent rage attacks sometimes
starting with fear and gastric sensations. There was left
frontal temporal flattening on the EEG at the start of these
episodes. SEEG exploration was not performed because
of the severe aggressive outbursts. However, selective left
amygdalohippocampectomy stopped all seizures and the
rage attacks. The boy was described as seizure-free and
a calm and good student over two and one-half years of
follow-up. Wieser’s other patient was a 16-year-old male
with ‘psychomotor’ seizures from age 9 years, character-
ized by paroxysmal speech disturbances and fits of rage
leading to brawls. During his attacks he was said to
abruptly raise his hand and rave or suddenly become
speechless or indiscriminately attack and hit everyone
around. A pneumoencephalogram showed a left temporal
basal cyst communicating with the temporal horn. During
SEEG exploration several rage attacks were observed and
long-lasting ‘clonic discharges’ in the left periamygdalar
region were recorded which were not evident on the sur-
face EEG. However, no data were presented regarding the
Violence and epilepsy: an approach to expert testimony 593
exact temporal relationship between the periamygdalar
discharges and the rage behavior. The patient underwent
a left temporal lobectomy. The pathology specimen
demonstrated a small periamygdalar capillary heman-
gioma. Over four and one-half years of follow-up, the
patient remained seizure-free and was described as a
‘calm and peaceable’ man.
Fenwick (1989) reported ten cases of aggression
related to seizures, including prodromal aggression (three
cases), ictal aggression (four cases), peri-ictal aggression
(two cases) and aggression related to post-ictal psychosis
(one case). Only one patient exhibited criminal aggression.
This was the case of Regina v. Sullivan, which has been
discussed extensively in the British medical and legal litera-
ture (Anonymous 1983; Brahams 1983a; Brahams 1983b;
Brahams 1983c; Swan 1984; Brahams 1984; Golding
and Golding 1985; Fenwick 1987; Fenwick 1988; Fenwick
1989; Gunn 1991). Sullivan was a 55-year-old man who
had suffered from complex partial seizures with occasional
secondary generalization since childhood. While talking
with two elderly neighbors he suddenly stood up, appeared
to stare without focus, and appeared angry. He then lunged
at one of the neighbor men, knocked him to the ground,
and kicked him repeatedly. He abruptly stopped the attack,
walked away, picked up a newspaper, and, after a few min-
utes recovered to a normal mental state. When he noticed
his friend on the floor he asked, ‘What have you done to
your face, Eddie?’ All who have evaluated this case have
been convinced this was an example of ictal aggression. The
case became somewhat of a rallying point for legal reform
in the United Kingdom because Sullivan was faced, under
British law, with the choice of either pleading not guilty by
reason of insanity – which would have meant taking the
risk of indefinite incarceration in a mental hospital, or
pleading guilty of assault, which he did reluctantly. The
option of pleading not guilty by reason of non-insane
automatism was not allowed by the trial judge nor the
appellate judge. He received three years’ probation.
Hindler (1989) reported a 19-year-old nanny who was
accused of murdering a 20-month-old baby in her care.
The accused described intense feelings of hate and aggres-
sion directed toward the child, these being precipitated
by the baby laughing and terminated by the baby crying.
During these episodes she would swing the baby violently
and on one occasion bit the child’s leg. On the day of the
offense she swung the child by the legs and hit its head
on a cabinet and perhaps the floor. The accused called
an ambulance but the baby died eight days later. Hindler
postulated that the accused had reflex epilepsy, and pro-
vided as evidence: (i) the recording of epileptiform activity
on the EEG; and (ii) the observation of three episodes
similar to those precipitated by the laughing baby and
one episode diagnosed as a generalized convulsion while
she was in prison, even though there was not, of course,
the trigger of a baby laughing. Because this was a recent
case the real proof of the episode being epileptic would have
been to monitor the accused on an epilepsy monitoring
594 Special clinical issues in forensic psychiatry
unit, and arranged to have a baby’s laughter presented as
a trigger to attempt to reproduce the aggressive behavior
claimed by the accused to have been epileptic.
Most of the episodes of aggression or violence which
have occurred in relation to epileptic attacks are
examples of resistive violence at the end of documented
complex partial or generalized tonic-clonic epileptic
seizures. This is true for the two cases described by Gunn
and Fenton (1971), six cases reported by Knox (1968)
including his one case described in detail above, and
in examples reported in other series of complex partial
seizures cited above. In those cases where violent activity
occurred at (or nearly at) the beginning of behavioral
seizures, the behavior consisted of random violence and
not directed aggression. For example, in Treiman’s two
cases (Treiman and Delgado-Escueta 1981), Ashford’s
patient (Ashford, Schulz, and Walsh 1980), and perhaps in
one of Wieser’s patients (1983a), the stereotyped automa-
tisms exhibited consisted of random flailing movements,
bicycling behavior or, in the case of Ashford’s patient,
whirling movements while holding onto the draperies in
the room. In each case the violent behavior was not
directed toward any individual and was stereotyped from
seizure to seizure in the same patient. Such examples then
are examples of non-aggressive violent automatisms.
In the two cases described by Saint-Hilaire et al. (1980),
in which directed aggressive behavior appeared to be asso-
ciated with ictal discharges recorded during SEEG, the
aggressive behavior began after the onset of the seizure.
This was true for the 20-year-old patient, in whom one
episode of aggressive behavior was recorded on the SEEG.
In this patient, the aggressive outburst associated with right
hippocampal activity occurred 117 seconds after electrical
stimulation of the left hippocampus. Furthermore, the
aggressive behavior was preceded 22 seconds earlier by
an alteration of contact with the environment. In Saint-
Hilaire’s other patient, the history presented suggests that
the patient’s habitual seizures always included episodes
in which he yelled, insulted people, and spat in their faces.
Again, the aggressive behavior in the example reported
did not occur until 20 seconds after the onset of the
seizure. In all the cases reviewed above in which violent
or aggressive behavior may have been associated with ictal
activity, the exhibited behavior consisted of either:
• non-aggressive violent automatisms which were stereo-
typed and repetitive from seizure to seizure within the
same patient;
• reactive automatisms manifested by directed aggres-
sion after the onset of a clearly identifiable complex
partial seizure; or
• resistive violence at the end of a complex partial or
generalized tonic-clonic seizure when the patient was
being restrained while still in a confused state.
There are no documented cases of ictal aggression in which
an organized directed attack toward another individual
or object occurred as the initial or sole manifestation of
an epileptic seizure, which could not otherwise be diag-
nosed on the basis of at least some typical features of
complex partial or generalized tonic-clonic seizures.
Some patients – particularly those with medically
intractable seizures – may exhibit a transient psychosis
after prolonged clusters of seizures or status epilepticus.
This phenomenon is most often seen after a period of
frequent repetitive complex partial seizures, and may
represent an impairment of normal function of the limbic
system. The patient may become floridly psychotic, may
experience hallucinations, or may be capable of directed
aggression as may occur in other forms of psychosis.
However, such aggressive acts are not ictal events
but appear to be due to altered psychological function
(a ‘Todd’s post-ictal paralysis of the frontal lobe’) in which
the patient has a marked impairment of contact with
reality and perhaps also a marked impairment of impulse
control. Gerard and colleagues (1998) recently described
six patients, out of their database of 1300 epileptics, who
exhibited what they termed ‘subacute post-ictal aggres-
sion,’ occurring hours to days after the acute confusional
post-ictal period of a seizure. They attribute the aggres-
sive behavior to post-ictal psychosis. In one case, an EEG
obtained during the post-ictal psychotic state showed dif-
fuse intermixed slowing but no epileptiform discharges.
None of their six patients had a history of aggressive or
violent behavior other than during the post-ictal period,
except for one who also had violent and aggressive
behavior associated with alcohol intoxication.
Kanemoto, Kawasaki, and Mori (1999) studied the
incidence of well-directed violent behavior in patients
with temporal lobe epilepsy, with special attention to
post-ictal psychosis. They compared fifty-seven episodes
of post-ictal psychosis with sixty-two episodes of acute
inter-ictal psychosis and with 134 complex partial seizures.
The incidence of well-directed violent behavior against
human beings was significantly higher (23 per cent) dur-
ing post-ictal psychotic episodes than during acute inter-
ictal episodes (5 per cent) and post-ictal confusion (1 per
cent). These authors concluded that well-directed violent
behavior is not a feature of inter-ictal epileptic psychosis
in general, but rather a specific hallmark of post-ictal
psychosis.
Antipsychotic drugs can be useful in the management
of the acute transient post-ictal psychosis; curtailment of
seizure flurries by sublingual or oral lorazepam has also
been effective in the management of such patients.
Legal literature
A consideration of the legal literature may provide further
insight into the question of whether ictal violence has ever
been satisfactorily documented. Treiman (1986) reviewed
the seventy-five cases in the United States appellate lit-
erature in which some form of an epilepsy defense was
attempted. In none of these cases was convincing evidence
providing that the alleged crime had been an ictal event.

In only one case (In re Torsney 1979) was the epilepsy
defense successful. This case is instructive because it dra-
matically illustrates inherent problems with the way the
epilepsy defense has been developed in Anglo-Saxon law.
Since 1843, when Daniel M’Naghten was tried for the
assassination of Edward Drummond, the secretary to
Prime Minister Robert Peel (whom he mistook for Peel),
the concept of legal insanity in use today has been
defined in English law. The M’Naghten rule (that
‘at the time of committing the act 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 as not to know that what he was doing was
wrong’ (M’Naghten’s Case 1843)) or subsequent modifi-
cations, unfortunately, has been used as the basis for an
epilepsy defense in British and American courts for at
least 100 years, as it was in the Torsney case.
Robert H. Torsney was a New York City policeman. He
and five fellow officers were called to a Brooklyn housing
development on Thanksgiving evening, 1966. On the way
out of the complex, 15-year-old Robert Evans asked, ‘Did
you just come from Apartment 7D?’ Torsney had not, but
said ‘You’re damn right I did,’ drew his service revolver,
and shot Evans in the head. He then holstered his pistol
and walked on to his car to the great consternation of
his fellow officers. Torsney was indicted for second-degree
murder. At trial, Torsney claimed no memory for the
event and alleged that it was the result of a ‘psychomotor
seizure,’ even though he had no prior history of epilepsy
and his EEG was normal. He was found not guilty by rea-
son of insanity and sent to a New York State psychiatric
hospital where he immediately set to work to prove that
he was not insane. Five weeks after the verdict, an exam-
ining physician observed that ‘neither before or after the
offense [had Torsney] shown any signs of epilepsy.’ Six
months later, his lawyers arranged a hearing on Torsney’s
insanity and the prosecution and defense positions
reversed. At trial, the prosecutor had argued that Torsney
was not insane, and therefore should be found guilty
of murder, whereas the defense had argued Torsney was
insane and therefore should be found not guilty by rea-
son of insanity. At the competency hearing the prosecution
argued that Torsney was insane and therefore needed to
be retained in the psychiatric hospital. The defense now
argued that Torsney was sane and therefore should be
released, which is what ultimately happened.
A similar conundrum has existed in British law and is
best illustrated by the case of Patrick Sullivan discussed
above. Sullivan, who attacked an elderly man during a
complex partial seizure, was charged with assault. Because
he had assaulted his victim during an epileptic seizure,
he wished to use the defense of sane automatism (automa-
tism simpliciter) and enter a plea of not guilty. The trial
judge ruled that this plea was not available to the defense
and that if Sullivan carried out the act during an epilep-
tic seizure he must plead not guilty because of automa-
tism due to disease of the mind (Fenwick 1988). Had
Violence and epilepsy: an approach to expert testimony 595
he done so, he would have been in the same position as
Torsney of arguing for release as soon as he was remanded
to hospital, but for different reasons. Torsney appears never
to have had epilepsy, but used the epilepsy defense to avoid
punishment for his crime. Sullivan clearly had epilepsy,
but was not insane – because people with epilepsy are not
insane – but was forced by British law either to argue that
he was insane in order to plead not guilty, or to plead guilty
to a crime which he could not remember committing and
over which he had no control (Fenwick 1988).
A more rational legal approach to the problem of the
epileptic who inadvertently commits an act of violence as
part of an epileptic seizure was provided by the California
State Supreme Court in People v. Freeman (1943). The
court wrote:
No principle of criminal jurisprudence was ever more
zealously guarded than that a person is guiltless if at
the time of his commission of an act defined as crim-
inal he has no knowledge of the deed.
… And to hold that a man shall be held criminally
responsible for an offense of the commission of which
he was ignorant at the time would be intolerable
tyranny.
On the basis of this argument the court reversed
Freeman’s conviction for negligent homicide. There is no
doubt that this is a more reasonable legal response to
criminal violence, should it occur as part of an epileptic
seizure during which there is impairment or loss of con-
sciousness, and this is the case taken in non-common law
countries, where the artificial distinction between sane
automatism and insane automatism is not made (Falk-
Pedersen 1997). Fortunately, epileptic patients are infre-
quently prosecuted for criminal acts when it is clear that
violent behavior occurred as a part of a seizure, although
there have been recent exceptions, as discussed above.
Unfortunately, the epilepsy defense has been used most
often when criminal violence occurred independent of
a seizure and epilepsy is being viewed as an excuse for,
rather than the cause of, the violent act. This is the type
of case for which neurologists and psychiatrists are most
often called on to provide expert testimony, and guide-
lines for providing such testimony are provided later in
this chapter. More detailed reviews of legal issues regard-
ing epilepsy and violent behavior have been provided by
Treiman (1993, 1999).
INTER-ICTAL VIOLENCE – DOES IT OCCUR?
Although only a few case reports in the medical literature
are at all suggestive of ictal violence, there is still a pre-
vailing belief by many physicians that epilepsy, par-
ticularly temporal lobe epilepsy, is associated with an
increased incidence of violent crimes. As recently as 1982
Kolb and Brodie, writing in Modern Clinical Psychiatry,
596 Special clinical issues in forensic psychiatry
stated with regard to psychomotor epilepsy, ‘… clinically
the clouded state suggests a delirium with liberation of
aggressive and occasionally self-destructive impulses. Acts
of violence may be committed in the automatisms and
may be of a strikingly brutal nature, the patient pursuing
his crime to a most revolting extreme.’ This view, which
is stated as fact but for which no evidence is provided, has
continued to influence the approach of many physicians
(particularly psychiatrists) to patients with complex par-
tial epilepsy, and has encouraged the inappropriate use
of the epilepsy defense in crimes of violence. The epilepsy
defense has been discussed above. Here we need to con-
sider what evidence exists that violent behavior is more
frequent in patients with epilepsy in general and with
complex partial or temporal lobe epilepsy in particular.
Treiman and Delgado-Escueta (1983) and Treiman
(1986) reviewed studies of the prevalence of violence in
patients with epilepsy. A number of such studies have
reported an increased prevalence of violent and aggressive
behavior. Most (James 1960; Serafetinides 1965; Ounsted
1969; Taylor 1969) concentrated on selected small popu-
lations of patients with severe intractable seizures and
associated behavior disorders. Rodin (1973) surveyed 700
unselected, non-institutionalized patients with epilepsy;
of these, thirty-four (4.8 per cent) were coded as
‘destructive-assaultive’ during their initial evaluation.
Most were young men with below-average intelligence
who had more behavioral and psychiatric problems,
poorer employment records, and more evidence of organic
brain disease on neurological examination than a non-
destructive-assaultive control group of patients matched
for age, sex, and intelligence. Mungas (1983) studied 138
patients attending a neurobehavior clinic. Using cluster
analysis he found, in this highly selected population, an
association between seizure disorders and a high frequency
of impulsive violent acts. No relationship was found
between temporal lobe abnormalities and aggression.
Surveys of large groups of unselected patients with epilepsy
by Currie et al. (1971) and Juul-Jensen (1964) found no
greater predilection for violent behavior in patients with
temporal lobe epilepsy than in patients with other types
of epilepsy. A number of studies of aggressive personality
traits (Hermann et al. 1980; Hermann and Riel 1981;
Hermann 1982; Whitman et al. 1982) also failed to demon-
strate any relationship between seizure type and aggressive
personality traits. Taken as a group these studies do not
support an increased incidence or prevalence of violent
behavior in patients with epilepsy in general or temporal
lobe epilepsy in particular. All the violent and aggressive
personality traits which occur in such groups can be
accounted for by other neurological and psychiatric
deficits. Nonetheless, it has been suggested that seizures
may, under some circumstances, result in inter-ictal person-
ality changes which may be clinically significant (Engel,
Caldecott-Hazard, and Bandler 1986). Griffith, Engel,
and Bandler (1987) described an experimental model
for limbic-epilepsy-induced disturbances in inter-ictal
defensive reactivity. Seizures are induced in cats by
microinjection of kainic acid into the dorsal hippocam-
pus. This induces an acute phase that lasts for two to three
days and is characterized by recurrent partial onset
seizures, some of which secondarily generalize. Between
seizures, during this acute phase, the cats demonstrate an
exaggerated defensive rage response to mild threat or han-
dling. Because the cats exhibit normal behavior once the
seizures stop, it may be that this model is really one of post-
ictal psychosis. There are patients whose behavior changes
markedly during seizure flurries but who, like the cats,
exhibit normal behavior between seizure flurries.
EPILEPSY IN CRIMINALS
Treiman and Delgado-Escueta (1983) and Treiman (1986)
also reviewed the evidence that epilepsy occurs with greater
prevalence in convicted criminals than in the normal pop-
ulation. A series of studies of epilepsy in the British prison
system carried out by Gunn and his colleagues as well as by
earlier workers have been detailed in a monograph (Gunn
1977). These studies demonstrated a two- to four-fold
increase in the prevalence of epilepsy in prisoners com-
pared with the non-incarcerated population. Two subse-
quent studies by Gunn’s group (Gunn and Bonn 1971;
Gunn and Fenton 1971) found a prevalence rate for
epilepsy in the prison population (0.87 per cent and 0.88
per cent) – twice the value of 0.45 per cent reported for
Britain in a survey of the College of General Practitioners
(1960). Several American studies (Chronic Disease Branch
1977; Novick et al. 1977; King and Young 1978) also inves-
tigated epilepsy in prison populations and observed preva-
lence rates of 1.8–1.9 per cent, more than three times the
prevalence of 0.59 per cent reported by Hauser and
Kurland (1975) in the population of Rochester, Minnesota.
A number of studies have thus shown that epilepsy is
two to four times more prevalent in prison populations
than in the non-prison, generally middle class, popula-
tions that form the basis of most prevalence studies in the
general population. However, the prison prevalence rates
are similar to those found in a number of lower socio-
economic communities, such as those from which most
British and American prisoners come. A prevalence rate
of 1.9 per cent in black children has been reported for
an inner city population in New Haven, Connecticut
(Shamansky and Glaser 1979). Similar prevalence rates
have been found in populations surveyed in rural Alabama
counties (Hollingsworth 1978), Iceland (Gudmundsson
1966), Carlisle, England (Brewis et al. 1966), Serbia
(Korbar and Berkovic 1974), Bogota, Columbia (Gomez,
Arciniegas, and Torres 1978), a rural Appalachian com-
munity (Baumann, Marx, and Leonidakis 1977; Baumann,
Marx, and Leonidakis 1978), Melipilla, Chile (Chiofalo
et al. 1979), Pakistan (Aziz et al. 1994), west Uganda
(Kaiser et al. 1996), and Senegal (Agbohoui et al. 1999).
A relationship between socioeconomic status and epilepsy

would explain the higher incidence of epilepsy among
criminals and prisoners. King and Young (1978) observed
that some etiologic factors for epilepsy are more preva-
lent among poor urban populations, including inadequate
prenatal care and a higher incidence of head trauma.
These data thus suggest epilepsy has no immediate rela-
tionship to violence or crimes. Instead, the two- to four-
fold increase in prevalence of epilepsy in prisoners most
likely reflects the prevalence of epilepsy among econom-
ically deprived urban populations rather than an increased
frequency of criminal activity among epileptics.
DIFFERENTIAL DIAGNOSIS
Many patients are referred to epilepsy monitoring units for
evaluation of episodes of rage because of the assumption
that rage is a symptom of complex partial seizures.
However, almost all such patients turn out to be suffering
from ‘episodic dyscontrol syndrome.’ This is a term applied
to a behavioral disorder in which there are paroxysmal
outbursts of violence and rage of a magnitude far in excess
of that appropriate to the precipitating stimulus. Fre-
quently, there is an alleged loss of contact with the environ-
ment during the outburst. Following the rage attack the
patient may exhibit remorse and may express feelings
of depression and fatigue or need to sleep. Many of the
features of the syndrome were first described by Karl
Menninger (1963). The term episodic dyscontrol syndrome
was first used by Monroe in a monograph published in
1970. Subsequently, a number of other investigators have
published studies of episodic dyscontrol syndrome (Lion,
Bach-Y-Rita, and Ervin 1968; Lion and Bach-Y-Rita
1970; Bach-Y-Rita et al. 1971; Lion 1972; Maletzky 1973;
Elliott 1984; Nunn 1986; Elliott 1990; Gordon 1999;
McElroy 1999). Four types of behavior are included in the
syndrome:
1 Physical assault, especially wife and child beating.
2 Pathologic intoxication resulting in senseless violence.
3 Impulsive sexual behavior including sexual assaults.
4 A history of many traffic violations and serious auto-
mobile accidents (Goldstein 1974).
A number of authors have suggested that episodic dyscon-
trol syndrome represents a type of complex partial seizure.
However, the violent outbursts are almost always provoked,
although the provoking stimulus is frequently so mild as
to be discounted by the examining physician unless spe-
cifically sought when evaluating the patient’s history.
There have been no reports of such violent outbursts in
these patients associated with ictal changes on the EEG,
even though a number of these patients have been stud-
ied on epilepsy monitoring units. The behavioral sequence
observed in violent rage reactions is not that which has
been described by Delgado-Escueta and colleagues for
complex partial seizures (Delgado-Escueta et al. 1977;
Delgado-Escueta et al. 1979; Delgado-Escueta et al. 1982).
Violence and epilepsy: an approach to expert testimony 597
Patients with episodic dyscontrol syndrome frequently
have a history of past head injuries, childhood seizure
disorders, EEGs with non-specific abnormalities, and a
variety of ‘soft’ neurological signs. They may have evi-
dence of frontal lobe dysfunction. Such patients appear to
lack the capacity to inhibit violent impulses which exists
in most of the population. It is likely that their poor
impulse control is related to structural or (in the case of
pathological intoxication) toxic abnormalities, particu-
larly of the frontal lobes, which impair the patient’s
capacity for impulse control, so that even minor provok-
ing stimuli induce a violent reaction. However, Leicester
(1982) reported seventeen patients with temper tantrums
referred from psychiatrists for possible epilepsy or episodic
dyscontrol syndrome. None had an organic cause for
their outbursts; the final diagnosis in every case was tem-
per tantrums due to psychological causes.
A number of other conditions that could be confused
with epileptic seizures manifested by fear or anger that
may result in episodic psychic experiences that could
lead to violent and sometimes directed aggression are
listed in Table 60.2. Several points require emphasis:
1 Normal individuals frequently report transient symp-
toms identical to those associated with partial seizures
with psychic manifestations (Roberts et al. 1990; Ardila
et al. 1993). Thus, even frequent episodes of such psy-
chic phenomena as déjà vu perceptions, feelings of
fear, anger, or doom, or visual hallucinations are not
necessarily indicative of an epileptic seizure, especially
if the behavior is not stereotyped from event to event.
2 Inter-ictal epileptiform discharges (paroxysmal spikes
or sharp waves with a physiological field) on electro-
encephalographic recording have been observed in
Table 60.2 Conditions other than seizures that may cause
symptoms of fear or anger
Normal experiences
Migraine
Psychological disorders
Panic attacks
Hyperventilation attacks
Recurrent intermittent psychoses
Other psychiatric conditions
Hallucinations/illusions due to loss of a primary sense
Drug-induced flashbacks
Sleep disorders
Nightmares
Night terrors
REM sleep behavior disorder
Toxic/metabolic disorders
Recurrent drug abuse
Hypoglycemia
Porphyria
Acute CNS disorders
Modified from Fish (1998).
598 Special clinical issues in forensic psychiatry
3.5 per cent of the population in a large community-
based study of children (Cavazzuti, Cappella, and Nalin
1980). Only 5 per cent of the affected children subse-
quently developed epilepsy. This suggests that the pres-
ence of an epileptiform abnormality on EEG is not
sufficient to make the diagnosis of epilepsy, unless the
description of the seizure-like event is good enough to
diagnose epilepsy, even if the EEG is normal.
The evidence discussed above suggests that directed
aggression is unlikely to occur as an ictal manifestation and
particularly not at the beginning of a complex partial
seizure. Violence and aggressive behavior that does occur
at the time of an ictal event is most likely to be non-
directed ‘resistive’ violence while the patient is exhibiting
reactive automatisms, is in a post-ictal confusional state at
the end of a complex partial or generalized tonic-clonic
seizure, or is having an episode of post-ictal psychosis after
a flurry of seizures. For example, in Case 6 cited by Fenwick
(1989) a 39-year-old man with a history of complex partial
seizures suddenly stood up, walked across the room, picked
up his young son and threw him out an open first-floor
window; the child broke his arm in the fall. The man then
wandered around the room in a confused manner and sat
down on the sofa. The patient’s wife had apparently been
the victim of similar attacks (although she was not thrown
out of the window). Treatment with antiepileptic drugs
abolished these episodes. In a recent case cited by Treiman
(1999) described above, a 35-year-old man grabbed a
woman’s arm as part of an ambulatory automatism while
riding on a subway. The behavior began after the onset of
the seizure, there was no aggressive intent, and the man
had no recollection for the event afterward.
CRITERIA FOR ESTABLISHING EPILEPSY
AS THE CAUSE OF VIOLENT CRIMES
A careful analysis of video-recorded seizures, such as that
carried out by the international panel at the Epilepsy
Foundation of America (EFA) workshop (Delgado-
Escueta et al. 1981), emphasizes the need for rigorous cri-
teria when considering whether a violent or aggressive act
could have been an epileptic automatism. The natural his-
tory and clinical presentation of complex partial seizures
is now well recognized. A paroxysmal behavioral change
should not be called a complex partial seizure unless the
pattern of behavior is fully consistent with modern con-
cepts of the natural history and patterns of complex par-
tial seizures.
Documented ictal or even post-ictal aggression is rare.
Most recorded cases have shown resistive violence while
being restrained at the end of a seizure rather than directed
aggression. Those aggressive acts which have been observed
as part of a documented seizure have been stereotyped,
simple, unsustained, unplanned, never a part of a consec-
utive series of complex acts, have not occurred in response
to pre-ictal provocation, and have not been premeditated.
Some examples of directed aggression, however, have
occurred during episodes of post-ictal psychosis, as
described above.
What then should be the criteria for determining
whether a violent crime was the result of an epileptic
seizure? The eighteen neurologists who participated in the
EFA international workshop on aggression and epilepsy
suggested five relevant criteria for consideration (Delgado-
Escueta et al. 1981). A modification of these criteria, which
takes into account more recent data, is provided here:
1 The diagnosis of epilepsy should be established by
at least one neurologist with special competence in
epilepsy.
2 The presence of epileptic automatisms should be
documented by the history and CCTV-EEG.
3 The presence of aggressive behavior during epileptic
automatisms, similar to the behavior alleged to have
occurred during the criminal act, should be verified
in a video-recorded seizure in which ictal epileptiform
patterns are also recorded on the EEG. While it is not
reasonable to subject epilepsy monitoring unit staff
to attack, it should be possible to set up conditions to
ascertain the nature of potentially aggressive behavior
alleged to occur during epileptic seizures, and make
a judgment as to whether such behavior might have
occurred during a criminal aggressive act.
4 The aggressive or violent act should be characteristic of
the patient’s habitual seizures, as elicited in the history.
The act should occur suddenly and not in response
to any external stimulus except, perhaps, restraint. It
should be of short duration, fragmentary and unsus-
tained and it should be associated with other features
typical of a complex partial seizure.
5 If post-ictal psychosis is considered a possible cause
of directed aggression following a seizure or seizure
flurry, both the precipitating seizure(s) and the
psychotic nature of the patient’s behavior should be well
documented.
6 A clinical judgment should be made by the neurologist
attesting to the possibility that the act was part of a
seizure. In making such a judgment, the neurologist
should consider whether the act followed the known
sequence of behavioral changes in complex partial
seizures or whether it was too complex to have been
carried out by an individual suffering from an epileptic
automatism.
The use of these criteria should protect epileptic patients
from punishment for accidental aggression they truly
cannot prevent, and also protect epileptic patients as a
group from the stigma of indiscriminate generalizations
about violence and epilepsy. Although Hindler (1989) sug-
gested the use of less stringent criteria for determining
the relationship between an act of aggression and a seizure,
ictal (or peri-ictal) violence should be a defense only in
the rare case of criminal aggression which meets the

criteria provided here. Epilepsy should not be used as a
defense for ictal violence, even if the defendant has a well-
documented history of epileptic seizures and the crime
appears motiveless and unpremeditated and is out of
character with the accused person’s previous personality,
unless it is clear that aggressive behavior was temporally
related to other evidence that an epileptic seizure occurred,
and was consistent with what is known about the natural
history of that type of epileptic seizure. Furthermore,
epilepsy should never be used as a defense for inter-ictal
violence. Although a number of studies suggest that
violence may occur more frequently in epileptics than
in control populations, this is probably due to associated
brain lesions or to adverse social factors rather than
epilepsy directly. Although epilepsy and violence may
occur in the same individual and share common etiolo-
gies, one does not necessarily cause the other. Therefore,
even well-documented epilepsy should not be considered
in the defense of criminal aggression unless the aggressive
episode occurred with a precise temporal relation to an
unequivocal epileptic seizure, with characteristics such as
those described in this chapter.
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Brain disease: forensic neuropsychiatric issues
MACE BECKSON AND GEORGE BARTZOKIS
Behavioral abnormalities can be a central issue in crim-
inal and civil legal proceedings. Typical examples could
include the case of a young woman claiming no recollec-
tion for alleged shoplifting; an unusual, problematic con-
tract signed by a wealthy elderly gentleman; a confessed
murderer with a recent history of impulsive violent acts;
and an otherwise respectable family man accused of sexu-
ally deviate behavior. Issues of competence, responsibil-
ity, insanity, and mitigating factors require the careful
evaluation of behavioral abnormalities.
Brain disease is frequently the basis for behavioral
abnormalities involving disturbances of thinking, per-
ceptions, emotions, and actions. In the examples above,
the shoplifter may have had a temporal lobe seizure;
the elderly gentleman may be suffering from dementia; the
murderer may have an undetected frontal lobe tumor,
and the family man may have undiagnosed multiple
sclerosis. The lay public, attorneys, and even physicians
commonly judge the behavior as volitional or as ‘mental
illness’ and fail to consider a medical cause for the
behavior or the potential for treating the underly-
ing disease. Of great importance, any distinctly altered
behavior or significantly changed personality must be
considered evidence of organic brain disorder until ruled
out by thorough and appropriate neuropsychiatric
evaluation.
THE DIAGNOSTIC PROCESS: AN OVERVIEW
Neuropsychiatry is a medical discipline that specializes
in the evaluation and treatment of behavioral disturb-
ance that results from brain disease. Those neurologists
and psychiatrists who have specialized training in brain–
behavior relationships are capable of undertaking such
an investigation and making appropriate determinations.
Diagnostic work-up usually includes a detailed medical
and behavioral history, complete neurological/physical
examination, a thorough psychiatric interview, and an
organic mental status examination, augmented by appro-
priate laboratory tests, such as structural and/or functional
61
brain imaging, electrophysiological testing, neuro-
psychological testing, and/or other specialized medical
tests. Expert assessment of the data and formulation of a
probable diagnosis complete this process.
The neuropsychiatric history: clues
As in all of medicine, the history of the current problem
is of prime importance in making the proper diagnosis
of a behavioral abnormality. Sources of the history may
include the individual with the behavioral problem, fam-
ily members, involved friends, treating physicians, med-
ical records, school records, and legal records. Evidence
that a brain disorder has been acquired at some point or
has existed from birth should be sought from symptoms,
events, illnesses, family history, and growth and develop-
mental history.
Certain important historical clues increase the likeli-
hood of brain disorder:
1 Cognitive difficulties:
• alertness, attention, or concentration problems;
• difficulty with comprehension, speech, reading,
or writing;
• memory problems;
• getting lost or misplacing things; or
• new difficulty balancing checkbook or handling
money.
2 Personality change:
• apathy or loss of motivation; or
• socially inappropriate or impulsive behavior.
3 Unusual behavior or change in emotions:
• agitation;
• wandering;
• emotional liability;
• hallucinations; or
• paranoia.
4 Recent difficulty doing usual work at job or at home.
5 Known, diagnosed neurological illness, for example,
multiple sclerosis, seizures, Alzheimer’s disease,
encephalitis, stroke.
604 Special clinical issues in forensic psychiatry
6 Family history of a familial neurological illness, for
example, Huntington’s disease, epilepsy.
7 Known head trauma or brain injury, for example,
motor vehicle accident resulting in a coma, being
knocked unconscious with a blunt object, multiple
fights, neurosurgery.
8 Diagnosed psychiatric illness, for example, schizo-
phrenia, manic-depressive illness, especially if:
• no family history of the illness;
• atypical age of onset or course of the illness;
• atypical symptoms or signs for the psychiatric
diagnosis;
• poor response to treatment; or
• no thorough neuropsychiatric assessment ever
performed.
9 Diagnosed or family history of medical illness known
to have neurological sequelae, for example, diabetes,
liver disease, hypertension, thyroid disease.
10 Family history of psychiatric illness.
11 Treatment with a medication known to have neuro-
logical side effects, for example, blood pressure medi-
cation, appetite suppressants.
12 Abuse of psychoactive substances, for example, alco-
hol, stimulants, hallucinogens.
13 Illness or trauma associated with the pregnancy or
birth of the individual.
14 Delayed developmental milestones, for example,
walking, talking.
15 Poor school achievement, especially known learning
disabilities or markedly poorer performance than
siblings.
16 Poor social development, for example, behavioral
problems in school, fighting with peers.
THE NEUROLOGICAL/PHYSICAL EXAMINATION
The neurological examination may uncover both obvi-
ous and subtle signs of brain dysfunction: visual disturb-
ances or other cranial nerve abnormalities; asymmetric
or pathologic deep tendon reflexes; lateralized loss of
strength, coordination, or sensation; abnormal balance
or gait; or abnormal involuntary movements. Physical
examination may demonstrate cranial or spinal abnor-
malities, centers of chronic pain, evidence of congenital
or developmental defects, and other signs of underlying
disease. The neurological findings may also allow anatomic
localization of the dysfunction within the nervous sys-
tem; this, combined with the other data, may provide
clues as to the disease process involved. Both anatomic
localization and the disease process may prove pivotal to
understanding the associated behavioral abnormalities.
Neurological ‘soft signs’ refer to non-specific abnormal-
ities, for example, posturing while walking. Such signs do
not have a definitive anatomic correlate and therefore dif-
fer from ‘hard’ findings (e.g., lateralized hyperreflexia and
weakness indicative of a lesion in the motor pathways
of the spinal cord or brain), which are clear indicators of
specific acquired neurological damage. Isolated soft signs
are only weak evidence of neurological disorder.
The mental status examination for organic
brain disease
A key aspect in the evaluation of aberrant behavior is the
mental status examination with particular stress on those
elements reflecting abnormal brain function. This exam-
ination includes:
1 Observation of appearance and behavior.
2 Questions regarding the individual’s thoughts, percep-
tions, and emotions.
3 Assessment of insight and judgment.
4 Determination of attentional capabilities and
concentration.
5 Assessment of basic language and comprehension
abilities.
6 Testing of orientation, learning, and memory.
7 Testing of visuospatial skills, such as copying diagrams.
8 Tests of calculations and abstract interpretation
(e.g., proverbs).
9 Testing of ability to perform sequencing tasks, inhibit
impulses, and other so-called frontal systems tests.
The results may reveal a wide variety of abnormalities
consistent with brain dysfunction. Data from the mental
status examination can discover or confirm a confusional
state, aphasia, amnesia, a frontal lobe syndrome, and so
on. This exam can also provide crucial data for deter-
mining which brain structures are malfunctioning, the
nature of the disease process affecting them, and the
abnormal behaviors that could be anticipated. Abnor-
malities on the mental status examination can be quanti-
tated with formal neuropsychological testing.
Laboratory tests
In most instances, the diagnosis of behavioral abnormal-
ity caused by brain disease is derived from data obtained
from the history, the neurological/physical examination,
and the mental status examination. Appropriate labora-
tory tests can be selected to provide confirmatory evi-
dence or to rule out various diagnostic possibilities. In
general, laboratory tests function only as supportive
adjuncts to the neuropsychiatric examination. Positive
results that confirm clinical impressions are of consider-
able value; the opposite, laboratory tests that disagree
with the neuropsychiatric diagnosis, are of questionable
value and negative laboratory results are usually of no
consequence. ‘Normal’ brain images [computed tomog-
raphy (CT) or magnetic resonance imaging (MRI)] or
EEGs do not indicate an absence of brain disease. On the
other hand, if results of these tests agree with the clinical
impression, the diagnosis is probable.

Brain imaging
Brain imaging studies can provide structural or func-
tional information. CT and MRI are structural imaging
techniques; positron emission tomography (PET) and
single photon emission computed tomography (SPECT)
are functional imaging techniques that are used clin-
ically. Structural brain imaging assesses the integrity of
brain tissue. Loss of brain tissue or damage to particular
structures becomes visually evident with such a procedure.
Current clinically available functional imaging assesses
metabolism or blood flow. A functional image may reveal
loss of function in a brain area; however, it cannot deter-
mine whether a particular area has been damaged. Com-
parison with a structural image would be needed to answer
this question. CT scanning is the least expensive, followed
by MRI and SPECT, with PET being most expensive.
All imaging studies must be interpreted with caution.
Significant functional changes may occur in the absence
of abnormality on the structural image and small areas
of damage on a structural image are often correlated with
wide areas of abnormality on functional image. Which
image more accurately reflects the brain basis of the
behavioral syndrome demands knowledge of the tech-
niques, as well as the probable pathophysiology of the
behavior. A structural imaging study is performed as part
of most neuropsychiatric evaluations. A functional image
may be added in certain circumstances.
Imaging can be helpful for evaluation in the
following:
• Abnormal neurological/physical examination.
• Abnormal mental status examination.
• New onset or atypical features of psychiatric disorder
such as psychosis or mood disorder (including atypical
age of onset, symptoms, course, or treatment response).
• Personality change.
• New onset of seizures.
• Unexplained confusional state.
• Dementia.
• Movement disorder (e.g., chorea).
• Catatonia.
• Weight loss and behavioral abnormality.
• Abnormal childhood or adolescent development or
chronic social or occupational dysfunction.
CT SCAN
The CT scan utilizes ionizing radiation (X-rays) and com-
puted reconstruction to provide a structural image in three
dimensions (Oldendorf 1980; Adams and Ropper 2001).
The image is produced in a series of thin horizontal slices
through the brain (tomograms), outlining structures by
their relative specific density. The CT scan can demon-
strate acute hemorrhages, old strokes, tissue loss second-
ary to aging, trauma or degeneration, most tumors,
calcified lesions, excessive build-up of cerebrospinal fluid,
and lateral pressure causing shift of brain structures.
Brain disease: forensic neuropsychiatric issues 605
Iodine contrast material, injected intravenously, enhances
the image by outlining blood vessels, areas of breakdown
of the blood–brain barrier, and extravasations of blood.
Contrast enhancement also helps highlight arteriovenous
malformation, certain tumors, meningoencephalitis, sub-
arachnoid hemorrhage, abscess, hematoma, contusion,
and neoplastic metastases. CT scan, both with and with-
out contrast, is used in most neuropsychiatric work-ups.
MRI
Magnetic resonance imaging also produces three-
dimensional tomograms of the brain, but without
ionizing radiation. Instead, the image is constructed by
a computer from magnetic resonance signals produced
by the brain tissue’s hydrogen nuclei when ‘energized’ by
radio waves (Garber et al. 1988). Bone is visualized as a
black void because it is relatively ‘inert’ (very short relax-
ation times). MRI can visualize areas obscured by bone
artifacts on the CT scan, particularly the anterior temporal
lobes (typical source area for seizures), deep sub-
cortical structures (often involved in neuropsychiatric disor-
ders), the cerebellum, and the brainstem. The MRI can also
be enhanced by the addition of intravenous gadolinium
to mark breakdown of the blood–brain barrier, tumors and
metastases, abscess, hematoma, and stroke. MRI requires
use of a powerful magnetic field, and so is contraindicated
if there is metal within the skull, a cardiac pacemaker is
fitted, or internal ferromagnetic surgical clips or devices
have been used.
MRI VERSUS CT
In general, MRI is preferable to CT for soft tissue struc-
tural imaging unless specific contraindications for MRI
are present (Garber et al. 1988). It is more sensitive in
detecting stroke, seizure focus, tumors, vascular malfor-
mations, and degenerative changes. As noted above, MRI
shows structures frequently involved in neuropsychiatric
syndromes that are obscured by bone in the CT scan.
Also, midline structures often involved in neuropsychi-
atric syndromes (medial temporal lobes, limbic areas)
can be imaged with the MRI by utilizing different orien-
tations of tomograms (e.g., sagittal and coronal), which
the CT scan cannot provide. White matter lesions (small
infarcts, demyelinating lesions, infiltrating tumors) are
visualized particularly well with MRI. MRI avoids expos-
ure to ionizing radiation and, in most cases, intravenous
contrast is not required. The CT scan is routinely used
in emergency situations, such as acute head trauma or
intracranial hemorrhage. MRI is often preferred if brain
disease is suspected and a CT scan has been normal.
The cost of an MRI scan is about the cost of a CT with
contrast enhancement.
PET AND SPECT SCANS
PET and SPECT are functional imaging techniques
that can be used to detect brain dysfunction that may
606 Special clinical issues in forensic psychiatry
not appear as structural damage (Volkow, Brodie, and
Bendriem 1991; Holman et al. 1991). By measuring energy
emitted by rapidly decaying radiolabeled compounds,
conclusions can be drawn about the relative functioning
of brain areas. For example, labeled glucose can reveal
aspects of cellular metabolism, while inhaled inert gases
or other tracers carried by the circulatory system can
demonstrate characteristics of blood flow. The intensity
of activity can be color-coded to more easily visualize
abnormalities of metabolism or blood flow. The early
stages of dementia (e.g., Alzheimer’s disease or multi-
infarct dementia) and other degenerative diseases such
as Huntington’s disease can be demonstrated with these
techniques. Small lesions, such as a seizure focus, may
appear on a functional but not structural image. Func-
tional imaging can be considered when the history and/or
examination imply brain dysfunction, but structural
imaging does not reveal pathology.
FUNCTIONAL MRI AND MR SPECTROSCOPY
Based on the same nuclear magnetic resonance technol-
ogy as MRI, functional MRI (fMRI) and magnetic res-
onance spectroscopy (MRS) are exciting research tools
that hold great promise for the elucidation of normal
and pathological brain function and, ultimately, clinical
diagnostic applications (Prichard and Cummings 1997).
fMRI non-invasively detects increased neuronal activity
when the brain is activated; increased blood flow (which
correlates with increased activity) causes an increase in
T2-weighted signal when newly arriving oxyhemoglobin
dilutes the paramagnetic deoxyhemoglobin that sup-
presses the NMR signal from nearby water molecules
(Castelijns et al. 2000). MRS provides chemical informa-
tion on metabolites and offers clues to normal and
pathological cerebral metabolic processes (Rudkin and
Arnold 1999). Neither fMRI nor MRS has a role in the
courtroom at this time.
EEG AND BRAIN MAPPING
The brain transmits information through electrical
signals. Voltage potentials can be measured with scalp
electrodes. The electroencephalogram (EEG) provides
a sensitive recording of brain cortical (surface) electrical
activity (Adams and Ropper 2001). EEG is useful for
suspected seizure disorder, confusional states, and
altered states of awareness. It may be useful for assessing
degenerative disorders (slowing of activity) and structural
lesions (focal abnormal electrical activity). Because
seizures are paroxysmal, an individual EEG record can be
normal because no seizure activity occurred at the time
of the recording. Furthermore, many seizure foci that lie
in deep structures and cause behavioral abnormalities
cannot be detected from the scalp. EEG telemetry can be
used to provide continuous EEG recording over days or
weeks. Special leads, such as sphenoidal or depth eletrodes,
can improve proximity to deep brain structures and thus
improve detection of seizure foci.
Primarily a research tool, quantitative EEG (QEEG)
(sometimes referred to as EEG brain mapping) math-
ematically processes digitally recorded EEG in order to
highlight specific waveform components or transform
the EEG into a format that elucidates relevant informa-
tion (Nuwer 1997). QEEG can provide topographic rep-
resentation of quantified brain cortical electrical activity
that is considerably easier for the non-expert to visualize
(Zappulla 1991). Unfortunately, there are many ways in
which the data can be misleading. ‘Abnormal’ results in
normal subjects and incorrect diagnoses in patients,
i.e., false positives, remain a major disadvantage to QEEG
and can create confusion, abuse, and false impressions
if used in court, where it has not been accepted under
Frye or Daubert rules (Nuwer 1997). The standard EEG,
interpreted by an expert, remains the ‘gold standard.’
Neuropsychological testing
Neuropsychological testing and interpretation by a
trained neuropsychologist (a clinical psychologist with
specialized training in brain function and cognition) can
provide a quantitative report of cognitive deficits as com-
pared with age- and sex-adjusted normative values, pro-
viding strong evidence of brain disease (Strub and Black
1985). Neuropsychological testing is covered in depth in
Chapter 62.
Additional laboratory tests
A wide variety of laboratory tests can be selected, based
on the history, examination, and other test results. Such
tests include, for example, examination of the cere-
brospinal fluid in cases of suspected neurosyphilis; analy-
sis of urine toxicology in suspected substance abusers;
HIV serology; blood cell count for evidence of vitamin
deficiency; plasma ammonia level as a reflection of liver
failure; hormone levels to assess effects of certain brain
tumors; continuous cardiac monitoring for evidence
of abnormal rhythms; sleep electroencephalography to
demonstrate periodic apnea during the night. Although
it is beyond the scope of this chapter to detail indications
and usefulness of all such tests, they may prove crucial to
the establishment of a definitive diagnosis.
TYPICAL SITUATIONS REQUIRING
NEUROPSYCHIATRIC EVALUATION
Memory loss and amnesia
The claim by an accused individual of no recollection of
an illegal event requires careful consideration. Memory
impairment can occur in many disorders, only one of

which is amnesia. By definition, amnesia has four charac-
teristics: (i) normal immediate recall; (ii) serious impair-
ment in learning new information; (iii) relatively intact
ability to recall old information (except for a variable
period of retrograde amnesia); and (iv) relatively unim-
paired cognition and personality (Benson and Blumer
1982). Events occurring during the period of amnesia are
not recalled later. A frequent claim is one of loss of recall
of events during a circumscribed period of time in the
past, although currently the individual is able to learn
and recall new information. Transient, short-lived episodes
of memory loss, usually lasting a few hours or less, can
occur in a variety of conditions (Cummings 1985). Most
of these are not amnesias by definition: they primarily
involve alteration of attention during a confusional state.
Lesions that produce amnesia involve the limbic struc-
tures necessary for new learning and recent memory: the
hippocampal formation of the medial temporal lobe, the
fornix, and the mammillary bodies of the hypothalamus.
In the confusional state or dementia, more widespread
processes cause multiple brain dysfunctions.
The neuropsychiatric evaluation of possible amnesia
proceeds as discussed previously, focusing on elements of
history, neurological/physical examination, and mental
status examination. Neuropsychological testing can accur-
ately document memory dysfunction as well as the pres-
ence or absence of other cognitive deficits. Structural brain
imaging and EEG are generally required because of the
specific etiologies that must be considered. Other specific-
laboratory tests may be required as part of the diagnostic
work-up for toxic and metabolic abnormalities. The
following discussion covers common circumstances of
memory loss.
Alcoholic blackouts can produce transient memory
loss and should be suspected in the setting of alcohol
abuse. Physical examination may elicit the classic find-
ings of alcoholism with or without the typical denial of
abuse. The mental status examination may be normal
except for recall of the events that transpired during the
blackout period (usually hours to days in duration). Not
infrequently, however, mental status examination will
reveal impaired cognition reflecting chronic alcohol
abuse. Blood alcohol testing can detect current use of
alcohol, while blood cell count and serum chemistries
may demonstrate pathophysiological effects of chronic
alcoholism. Structural brain imaging may reveal cortical
atrophy in the chronic alcoholic.
The confusional state, defined by impairment in
attention, will produce subsequent memory loss for the
period in which the confusional state was present. Toxic
and metabolic causes are most common (Cummings
1985; Yudofsky and Hales 1997). In particular, drug or
medication ingestion is frequently the cause of confu-
sional state and associated memory lapse. Commonly
responsible substances include, among a host of others,
barbiturates, tranquilizers, and sleeping pills; analgesics;
illicit psychotropic drugs; atropine or related agents;
Brain disease: forensic neuropsychiatric issues 607
steroids; and anti-parkinsonism medications. The sud-
den withdrawal of drugs and medications can precipitate
a transient confusional state. Medical conditions, such as
hypoglycemia, cardiac rhythm abnormalities with com-
promised cerebral blood flow, hepatic or renal failure, or
other metabolic disorders may produce transient confu-
sional states.
Most seizures produce altered consciousness followed
by confusion, and seizure must be considered as a poten-
tial cause of memory loss – particularly in individuals with
previous head trauma or a known diagnosis of epilepsy.
The presence of symptoms commonly associated with
seizures, such as aura, automatic behaviors, incontinence,
or confusion, should be sought. Integrated, purposeful
behavior or appropriate responsiveness to questions or
commands is not characteristic of seizure states, which
produce an alteration of awareness or consciousness.
History may reveal previous occurrences of other seizures
or an underlying medical condition or injury associated
with seizures. Neurological examination and structural
brain imaging may determine an underlying condition,
for example, brain tumor or stroke. Routine EEG may
identify seizure activity or abnormal electrical activity
consistent with a seizure focus. PET scanning may identify
a seizure focus.
Migraine headache may also be associated with tran-
sient confusional state and memory loss. Migrainous
symptoms, including headache, nausea, photophobia, and
visual hallucinations, should be sought. Memory prob-
lems occur in dementia syndromes where the memory
deficits are part of an overall loss of intellectual function,
and are thereby distinguished from the amnesias.
Transient disorders of learning include posttraumatic
amnesia, transient global amnesia, and psychogenic
amnesia. Head trauma routinely produces an amnestic
syndrome that is usually short-lived and resolves spon-
taneously. A history is pivotal for such a circumstance;
other signs or symptoms of brain injury may or may not
be present upon physical or mental status examination
or upon laboratory testing such as brain imaging. Tran-
sient global amnesia is a disorder of the middle-aged or
elderly in which memory loss persists for hours and then
resolves. This condition may be associated with cerebro-
vascular disease in the posterior circulation, but it has
also been reported in association with other etiologies
including diazepam overdose, tumors, and seizures; in
almost half of reported cases, however, no specific cause
is demonstrated.
Psychogenic amnesia is a conversion symptom in
which personally emotionally charged information is
selectively lost. It is generally short-lived, remitting spon-
taneously, but almost invariably indicates a significant
underlying psychiatric disorder. It may be overcome with
the help of amobarbital (Amytal) interview or hypnosis.
This diagnosis should be considered only when the
memory disorder involves personal data (e.g., name) with
little or no problem learning other information. The
608 Special clinical issues in forensic psychiatry
temptation may be great to assume that a memory loss
is the result of a psychological process, especially if it
appears that the patient stands to gain psychologically or
monetarily by not remembering. This temptation must
be resisted pending a formal evaluation.
Feigned memory loss, involving purposeful deceit,
is another distinct possibility. Mental status examination
may reveal no abnormalities, or may reveal inconsisten-
cies suggestive of lying. For example, severe deficits may be
shown on mental status examination despite objectively
intact behavioral function; new learning may be demon-
strated while the individual claims no recall of recent
events. Neuropsychological testing may be helpful in
making this determination. In addition to cognitive evalu-
ation, other psychological test instruments such as the
Minnesota Multiphasic Personality Inventory (MMPI)
and Rorschach Ink Blot may reveal a conscious effort
to deceive. All of these tests, however, must be validated
against the clinical impression: the neuropsychological
tests can be manipulated sufficiently to provoke mis-
interpretation. Other laboratory tests demonstrate only
normal findings in cases of feigned memory loss.
Acquired neurological disorders
and dementia
An individual may demonstrate clear abnormalities of
intellectual functioning, leading to questions regarding
competence, or may demonstrate behavioral abnormal-
ities, which upon closer examination are part of a syn-
drome produced by acquired neurological disease. An
individual may suffer a loss of cognitive or behavioral func-
tion as a result of focal structural lesions (e.g., tumor,
stroke) or more diffuse or global processes (e.g., degener-
ative disease, head trauma, infection). The loss may be
specific and demarcated, for example, a loss of memory
function (amnesia) as discussed above, or it may be more
progressive and generalized, simultaneously involving
multiple cognitive domains (dementia). Depending on
lesion localization, a variety of neuropsychiatric syn-
dromes have been described (Beckson and Cummings
1991). Mental retardation is not an acquired loss; it refers
to a diminished level of functioning from birth that may
nevertheless be associated with behavioral abnormalities
of legal consequence.
Language disorder (aphasia) presents in many forms,
sometimes simplified as disturbances of comprehension
(fluent aphasia) or verbal output (non-fluent aphasia).
Specific areas of the temporal and frontal cortices, usu-
ally in the left hemisphere, are crucial for the compre-
hension and output of language, respectively. Fluent
aphasias, in which the individual produces nonsense jar-
gon and cannot comprehend what others are saying or
what is written, are easily confused with psychotic illness
because of inappropriate responses and agitated or para-
noid behavior. There may be no gross neurological deficit
that might otherwise prompt neurological suspicions.
Non-fluent aphasias are frequently associated with severe
depression. While the individual understands some writ-
ten and spoken language, his or her difficulty communi-
cating, further complicated by depressive withdrawal
and apathy, may suggest dementia. Aphasic patients are
not necessarily demented; in fact, their other cognitive
domains may be perfectly intact if tested in a way that
allows appropriate responses. A depressed, non-fluent
aphasic patient may improve sufficiently with speech
therapy and antidepressant medication to be self-reliant
in a way that a demented patient could not. Disturbances
in language should be addressed by a thorough neuro-
psychiatric evaluation to determine the nature of the
clinical syndrome, particularly to establish whether other
cognitive domains are involved, and to identify the
causative etiology of the disturbance. The testamentary
capacity of aphasics has been studied and relatively firm
guidelines have been established (Critchley 1970; Benson
1992).
Visuospatial disturbances, often reflecting parietal
lobe disease, may disrupt an individual’s ability to prop-
erly perceive or work with spatial orientation and relation-
ships, thereby causing substantial functional impairment.
The functional ramifications for the patient’s occupation
and life can be significant but, like language deficit, can
exist in the absence of dementia or any other additional
cognitive deficit.
Frontal lobe injury routinely produces marked behav-
ioral disorders, often in the absence of any obvious neuro-
logical findings (Stuss and Benson 1986). Orbitofrontal
injury may lead to marked personality change with
emotional lability, poor insight and judgment, and dis-
inhibited behavior, including antisocial acts. Medial
frontal damage leads to apathy and indifference, which
may be easily mistaken for depression, though there may
also be short-lived outbursts of aggression. Lateral convex-
ity lesions produce distractibility, sequencing and categor-
ization difficulties, and loss of ability to effectively plan
and execute complex tasks. Despite the intactness of basic
areas such as language, frontal brain damage produces
severe functional limitations. Neuropsychological testing
often fails to demonstrate any basic cognitive deficits.
The most common source of frontal injury is blunt head
trauma. Tumors such as gliomas, meningiomas, and pitu-
itary adenomas, as well as anterior communicating artery
aneurysms, also cause frontal dysfunction.
The dementia syndrome consists of acquired deficits
in at least three of the following cognitive domains:
speech/language, memory, visuospatial, calculation/
abstraction, and personality (Cummings and Benson
1992). The deficits are greater than the mild intellectual
decline often associated with normal aging. The early
stages may be insidious, with personality change or
behavioral abnormalities dominating the clinical picture
and the problem may be confused with psychiatric dis-
orders such as depression and psychosis. Some dementia

syndromes are reversible, depending on the underlying
cause. Once the dementia syndrome has been established
from the history and mental status examination, a
correct determination of etiology follows from combin-
ing these data with the results of neurological/physical
examination, blood tests, cerebrospinal fluid analysis,
EEG, structural and functional brain imaging. Neuro-
psychological testing can quantitate the severity of
the cognitive deficits and provide a baseline for future
assessment for evidence of a progressive, deteriorating
course. While dementia most commonly results from
Alzheimer’s disease or cerebrovascular disease (multi-
infarct dementia), other less frequent etiologies include
extrapyramidal diseases, hydrocephalus, demyelinating
diseases, and toxic-metabolic, traumatic, infectious
(including HIV), and neoplastic causes. Treatment and
prognosis follow from correct diagnosis.
Violence
Violence, aggression, impulsive acts, and conduct dis-
orders are of great forensic import. Various neuropsychi-
atric disorders have been associated with violent behavior.
Human aggression can result from hypothalamic, tem-
porolimbic, and frontal cortical lesions (Weiger and Bear
1988; Elliott 1992). The episodic dyscontrol syndrome is
marked by attacks of explosive rage and violence directed
at people or objects, often with a primitive quality and
remarkable displays of strength (Rickler 1982; Elliott
1990). The attacks are recalled and remorse is usually
expressed. Some (Mark and Ervin 1970) have included as
part of the syndrome episodes of pathological intoxi-
cation (relatively small quantities of alcohol produce
bizarre behavior and amnesia), reckless driving, and sexual
impulsiveness. Episodic dyscontrol has been related to a
number of different etiologies including traumatic brain
injury, temporal lobe epilepsy, minimal brain dysfunc-
tion, encephalitis, meningitis, midline tumors, multiple
sclerosis, stroke, subarachnoid hemorrhage, normal pres-
sure hydrocephalus, hypoglycemia, hyponatremia, and pre-
menstrual syndrome, but in many instances no specific
etiology is determined.
Frontal lobe disease and violent behavior have a clear
association. Orbitofrontal brain damage leads to irrit-
ability, disinhibition, and impulsiveness. Trivial provo-
cation may cause outbursts of anger and impulsive
actions that are short-lived but leave no resentment or
remorse. Closed-head trauma is the most common eti-
ology of frontal brain damage, but tumors, aneurysms,
subarachnoid hemorrhage, encephalitis, and multiple
sclerosis can also cause this syndrome. Aggressive behav-
ior in dementia and mental retardation may reflect
frontal involvement. In the Vietnam Head Injury Study
of veterans who had suffered penetrating head injuries,
patients with frontal ventromedial lesions consistently
scored higher on aggression and violence scales compared
Brain disease: forensic neuropsychiatric issues 609
with controls and patients with lesions in other brain
areas (Grafman et al. 1996). Some have hypothesized
that impulsive aggression and violence arise as the con-
sequence of dysfunctional frontal lobe function relating
to serotonergic dysregulation (Davidson, Putnam and
Larson 2000). A study of community violence and inpa-
tient assaults found that violence was related to poor per-
formance on neuropsychological tests of frontal lobe
function (Krakowski et al. 1997). Basal ganglia disorders,
such as Huntington’s Disease, which produce deficits in
frontal systems function, have been associated with psy-
chosis and violence (Beckson and Cummings 1992).
Mass lesions or brain tumor of the left temporal lobe
can present as rage attacks (Piacente 1986). Tumor inva-
sion of the hypothalamus has been associated with violent
behavior in response to minimal provocation. Epilepsy
may be a source of violent behavior and is considered in
Chapter 60. Sleep-related violent behavior can be associ-
ated with parasomnias. In one study, serious and harm-
ful violent acts were more likely to occur with males
who showed sleep schedule disorder and abused drugs
(Moldofsky et al. 1995).
Intoxication with alcohol or drugs is a common cir-
cumstance for violent behavior with impaired judgment
and poor impulse control as hallmarks (see Chapter 70).
Any metabolic derangement producing confusion can
potentially be associated with violent behavior; the behav-
ior is a result of poor judgment, and is not premeditated
or organized. Psychotic paranoid delusional disorders
resulting from brain disease may result in violent behav-
ior consistent with the individual’s delusional system.
Minimal brain dysfunction, often combined with
attention deficit disorder as a syndrome complex, is found
frequently in individuals who are prone to violence. The
syndrome consists of deficits in attention, impulsivity,
specific learning disabilities, and neurological soft signs,
despite normal or even superior intelligence. It has been
postulated to indicate a scatter of developmental or
acquired areas of brain dysfunction (Elliott 1990).
A number of studies have examined the neurological
signs, neuropsychological tests, EEGs, CT scans, and PET
scans in violent offenders, most often producing evidence
of non-specific abnormalities, often within the frontal
and temporal lobes. A review of fourteen studies assess-
ing EEG abnormalities in prison inmates and patients
with antisocial behavior revealed increased frequency of
EEG changes, in most studies ranging from 24 per cent to
78 per cent, and more commonly found in subjects who
had committed violent acts and done so more than once,
particularly if there was no apparent motive (Cummings
1985). EEG abnormalities have included generalized and
focal slowing, as well as epileptiform irregularities, most
often found in limbic areas including temporal and
frontal lobes. A retrospective study of 372 male patients
in a maximum-security mental hospital revealed that in
the group of most violent patients, 20 per cent had focal
temporal electrical abnormalities on EEG and 41 per
610 Special clinical issues in forensic psychiatry
cent had structural abnormalities localized to temporal
lobe on CT scan; such findings were relatively infrequent
in the least violent group (Wong et al. 1994). Neurological
soft signs and poorer performance on neuropsychological
testing (especially frontal lobe tasks) have also been
reported in criminally violent or impulsive populations.
Whether the abnormalities reflect the sequelae of head
trauma or some other underlying congenital, develop-
mental, or acquired brain disease that results in personality
and behavioral disturbance remains unclear (Cummings
1985).
Lewis et al. (1986) reported a series of fifteen death
row inmates, finding a history of severe head injury in all
fifteen, major neurological impairment in five, and less
serious neurological impairment (e.g., blackouts, soft
signs) in seven others; neuropsychological testing also
revealed impairment. In a recent study of sixteen inmates
on death row in California, twelve had histories of trau-
matic brain injury (Freedman and Hemenway 2000).
Tancredi and Volkow (1988) demonstrated frontal and
temporal lobe abnormalities on the PET scans of four
violent patients; all four had neurological examinations
that were normal, while two of the four had abnormal CT
scans and abnormal EEGs. Additional hypotheses and
investigation has been conducted on other biologic aspects
of violence, but are beyond the scope of this chapter.
Neuropsychiatric evaluation of the violent offender is
often indicated to assess for evidence of brain disease;
in some cases the disorder is treatable. Brain imaging and
EEG should complement the history and neurological
and mental status examination in attempting to discern
brain dysfunction and its etiology. Neuropsychological
testing may reveal mild but pertinent cognitive deficits.
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Adams, R.D., Ropper, A.H. 2001: Adam and Victor’s
Principles of Neurology, 7th edition. New York:
McGraw-Hill.
Beckson, M., Cummings, J.L. 1991. Neuropsychiatric
aspects of stroke. International Journal of Psychiatry
in Medicine 21, 1–15.
Beckson, M., Cummings, J.L. 1992. Psychosis in basal
ganglia disorders. Neuropsychiatry, Neuropsychology,
and Behavioral Neurology 5, 126–31.
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Yudofsky, S.C., Hales, R.E. (eds), American Psychiatric
Association Textbook of Neuropsychiatry, 2nd edition.
Washington, DC: American Psychiatric Association Press.
Benson, D.F., Blumer, D. 1982: Aphasia: a clinical
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Grune and Stratton.
Cummings, J.L., Benson, D.F. 1992: Dementia: A Clinical
Approach, 2nd edition. Boston: Butterworth-
Heinemann Medical.
Davidson, R.J., Putnam, K.M., Larson, C.L. 2000. Dysfunction
in the neural circuitry of emotion regulation:
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Elliott, F.A. 1990. Neurology of aggression and episodic
dyscontrol. Seminars in Neurology 10, 303–12.
Elliott, F.A. 1992. Violence: the neurologic contribution.
An overview. Archives of Neurology 49, 595–603.
Freedman, D., Hemenway, D. 2000. Precursors of lethal
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T.C., New, P.F.J. 1988. Use of magnetic resonance
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Holman, L.B., Nagel, J.S., Johnson, K.A., Hill, T.C. 1991.
Imaging dementia with SPECT. Annals of the
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Krakowski, M., Czobor, P., Carpenter, M.D., Libiger, J.,
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Abad, T. 1997. Community violence and inpatient
assaults: neurobiological deficits. Journal of
Neuropsychiatry and Clinical Neuroscience 9, 549–55.
Lewis, D.O., Pincus, J.H., Feldman, M., Jackson, L.,
Bard, B. 1986. Psychiatric, neurological, and
psychoeducational characteristics of 15 death
row inmates in the United States. American
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1994. Electroencephalography, computerized
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in a maximum-security mental hospital. Acta
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Suggested reading
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Grune and Stratton.
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Approach, 2nd edition. Boston: Butterworth-
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Lobes: Functions and Disorders. New York:
Guilford Press.
 62
Forensic neuropsychology

CHARLES H. HINKIN, DELANY THRASHER AND WILFRED G. VAN GORP

INTRODUCTION will be devoted to an overview of the neuropsychological

domains characteristically assessed in a thorough evalu-
ation, as well as a description of the types of neuropsycho-
Clinical neuropsychology can be defined as the scientific logical tests that are typically employed. The chapter will
study of the behavioral effects of brain function and close with some cautions for consumers of forensic neuro-
dysfunction. Grounded in psychometric theory and psychology.
technique, a neuropsychological evaluation focuses on the
detection and quantification of cognitive and emotional
dysfunction caused by abnormalities in brain structure
or function. Questions regarding the etiological basis of
WHAT COMPRISES A FORENSIC
such dysfunction, prognosis, treatment recommenda-
NEUROPSYCHOLOGICAL EVALUATION?
tions, and the ‘real-world’ implications of these deficits
also fall within the purview of a neuropsychological evalu- Although the exact structure of a forensic neuropsycho-
ation. Although the neuropsychological evaluation is logical report can vary considerably across practitioners,
based upon multiple sources of data such as patient self- the following sections are typically included:
report, clinical observation and interview, and review of
1 Reason for referral and history of the present
medical records, it is the use of objective psychological
illness.
tests that lies at the heart of the examination.
2 Relevant background information, especially neuro-
Historically, neuropsychologists have focused on
logical, psychiatric and medical history, current medi-
explicating the behavioral effects of neurological disease
cations, and psychosocial background.
such as Alzheimer’s disease, neurotoxic exposure, or head
3 Review of records.
injury. However, there has been an increasing awareness
4 Behavioral observations/mental status evaluation.
of the applicability of neuropsychological theory and
5 Cognitive functioning, as measured by tests of intelli-
technique in the evaluation of patients with psychiatric
gence, attention/concentration, language, visuospatial
disorders as well. Indeed, the field of clinical neuropsycho-
functioning, learning and memory, executive func-
logy has witnessed a dramatic period of growth over the
tions, and gross motor/sensory function.
past twenty to thirty years. Paralleling this increase as a
6 Emotional functioning, including measures of mood,
clinical specialty, the subspecialty of forensic neuropsycho-
personality, and major psychopathology.
logy has experienced a similar increased presence in the
7 Summary and impressions, including a distillation of
legal arena. Unfortunately, coupled with the increased
key findings, diagnostic impressions, prognostic impli-
usage of forensic neuropsychologists as experts in legal
cations, and if warranted, treatment recommendations.
proceedings has come the potential for abuse. Individuals
purporting to be neuropsychologists may lack necessary With regards to the specifics of testing, neuropsycholo-
training and/or experience and may be asked by others gists apply standardized, psychometrically validated tests
to render opinions that do not fall squarely within their of cognitive, intellectual, and behavioral function to
domain of expertise. assess how the patient in question performs relative to
This chapter seeks to outline what neuropsychology is, a comparison group of unimpaired (‘normal’) individ-
what constitutes a thorough neuropsychological evalu- uals of a similar age range and educational level (see
ation, and what it can offer the legal system in general and Table 62.1). Neuropsychologists typically utilize one of
the forensic psychiatrist in particular. Specific emphasis two approaches toward the assessment of individuals

suspected of having a central nervous system disturbance
or disability:
1 A fixed battery of tests administered in the same way
to all patients, producing a summary impairment index,
score, or profile [e.g., the Halstead–Reitan Neuro-
psychological Battery (Reitan and Davison 1974)
and the Luria Nebraska Neuropsychological Battery
(Christensen 1975)].
2 A flexible battery of neuropsychological tests tailored
to answer the specific referral question and the needs
of the particular patient to be assessed.
While fixed batteries are often very time consuming (typ-
ically 6 hours or more), the administration of the identi-
cal tests to all patients can aid in comparisons across
patients. Flexible batteries offer the advantage of tailoring
the battery in such a way as to take into account the
unique features of a particular patient or disease process,
which can help focus the evaluation and increase the
validity of interpretation. A novel test battery that may
combine strengths of both approaches is currently in
development (The Modular Neuropsychological Test Bat-
tery), though this test has yet to be fully standardized and
validated.
Regardless of exact approach, the cornerstone of the
neuropsychologic evaluation is the use of standardized,
reliable, and valid psychometric test instruments that
must be interpreted in light of a given patient’s age, edu-
cation, socioeconomic status, gender, ethnicity, and so
on. Since it is a rare patient who has received premorbid
neuropsychological testing, determination as to whether
a patient has suffered a decline in cognitive functioning
requires comparison of their test data with that of a
demographically matched control group. This compari-
son with normative data is analogous to the use of nor-
mal reference ranges that accompany laboratory results.
This approach has been advanced by the publication of
demographically corrected norms by Heaton, Grant, and
Matthews (1991). Interested readers are referred to Lezak
(1995) and Spreen and Straus (1998) for a review of the
measures discussed in this chapter.
Premorbid cognitive functioning
Neuropsychologists are often asked to render opinion as
to whether an illness or injury has caused a significant
decline in a person’s cognitive functioning. When con-
sidering a person’s neuropsychological test results, we are
therefore interested in whether their current test perform-
ance is consistent with their premorbid level of ability.
Ideally, patients would have prior test scores to use as a
baseline, but in most cases this information has not been
collected, so the individual’s level of premorbid function-
ing must be estimated. In addition to collecting self-report
and collateral information regarding: (i) vocational and
academic achievement, (ii) prior adaptive functioning;
Forensic neuropsychology 613
and (iii) pre-existing developmental limitations, neuro-
psychologists also use standardized test procedures to
assist them in estimating level of premorbid functioning.
Several methods are currently in use, although debates
continue regarding which approach is best.
Regression formulas using demographic information
(i.e., the ordinal scaling of age, education, occupation,
gender, race, and region) have been shown to be helpful in
estimating IQ using a strictly empirical approach (Barona,
Reynolds, and Chastain 1984). However, this ‘formula’
was developed for the Wechsler Adult Intelligence Scale –
Revised and not the WAIS-III, which is currently in use.
Another drawback to the ‘Barona equation’ is that it is less
accurate for persons with very high or very low premorbid
IQ scores, and these are often the most frequently encoun-
tered needs in forensic neuropsychological practice.
Table 62.1 Suggested forensic neuropsychological tests
Intelligence
Wechsler Adult Intelligence Scale – Third Edition
National Adult Reading Test – American Version
(estimates pre-morbid IQ)
Achievement
Wide Range Achievement Test – Third Edition
Attention
Digit Span
Auditory Consonant Trigrams
Paced Auditory Serial Addition Test
Language
Boston Naming Test
Verbal Fluency Tests (FAS, Animal naming)
Western Aphasia Battery
Visuospatial
Block Design
Object Assembly
Rey-Osterrieth Complex Figure
Hooper Visual Organization Test
Memory
Wechsler Memory Scale – Third Edition
California Verbal Learning Test – Second Edition
Rey Auditory Verbal Learning Test
Hopkins Verbal Learning Test
Brief Visual Memory Test
Executive/Frontal Systems Functions
Wisconsin Card Sorting Test
Category Test
Stroop Color–Word Interference Test
Trail-Making Test
Motor Functions
Finger Tapping Test
Grooved Pegboard Test
Mood/Affect
Minnesota Multiphasic Personality Inventory-2
Symptom Checklist 90 – Revised
Malingering Measures
Rey Fifteen Word Recognition Test
Symptom Validity Testing (e.g., Test of Memory
Malingering)
Structured Interview of Reported Symptoms
614 Special clinical issues in forensic psychiatry
Another approach in estimating premorbid IQ is to use
scores from vocabulary and word reading tests (WAIS-III
Vocabulary, North American Adult Reading Test; Blair and
Spreen 1989; WRAT3 Reading; Wilkinson 1993) that are
relatively preserved in neurological illness or injury (i.e.,
people with neurologic disease, unless it results in an
aphasia, do not generally lose the ability to read or pro-
nounce words). Formulas using both demographic infor-
mation and current performance scores to enhance the
accuracy of premorbid estimates are also used (Oklahoma
Premorbid Intelligence Estimation; Scott et al. 1997). Lastly,
‘best performance’ estimates are sometimes employed
(Lezak 1995) where the entire neuropsychological battery
is examined and the highest score or set of scores is used as
a benchmark of premorbid functioning. Each method has
advantages and limitations (see Wilson and Stebbins 1991
or Putnam et al. 1999 for comments). The neuropsycholo-
gist who utilizes one or more of these approaches must be
prepared to defend his/her choice when explaining and
defending their practice in the forensic arena.
Understanding patients’ premorbid psychological
(emotional and psychiatric) status and personality func-
tioning is also important to the accurate interpretation of
a patient’s test results. Psychological damage caused by
illness may arise de novo or may reflect an exacerbation
of pre-existing traits. In addition to the systematic review
of records, self- and collateral report, neuropsychologists
use standardized measures such as the Minnesota Multi-
phasic Personality Inventory-Second Edition (MMPI-2;
Hathaway et al. 1989), and the Personality Assessment
Inventory (PAI; Morey 1991) to make judgments regard-
ing acute versus longstanding personality characteristics.
Malingering
Accurate interpretation of neuropsychological test
results assumes adequate effort to do well on the part
of the test-taker. Whenever secondary gain is a possibility it
becomes especially important to assess whether a patient
has put forth adequate effort and has not attempted to
feign or exaggerate cognitive and/or emotional symp-
toms. It has been noted that patients embroiled in legal
proceedings, either as plaintiffs alleging brain injury or
criminal defendants claiming cognitive limitations ren-
dering them incompetent to stand trial or as mitigating
circumstances in the criminal act, may be motivated to
exaggerate cognitive deficits (Schretlen et al. 1991).
Neuropsychologists use several approaches to deter-
mine whether a test-taker has exerted appropriate effort
on the tests administered. First, neuropsychologists
observe test behavior and assess whether the pattern of
test results and behavior correspond with the nature and
degree of current complaints, as well as whether the
results fit expected patterns based upon the specific
injury or illness alleged. They also consider the consist-
ency between a patient’s overall level of impairment
suggested by their test performance/behavior and their
everyday adaptive abilities.
A number of neuropsychological tests have been
designed to detect exaggeration or feigning of cognitive
impairment. Most often, neuropsychologists combine the
information above with test results on formal ‘malingering
tests,’ that are specifically designed to detect poor effort or
exaggeration of symptoms. Malingering is frequently asso-
ciated with below-chance performance on forced-choice
measures, unexpectedly low scores on measures of recog-
nition memory, or unusual discrepancies between recog-
nition and free recall, and performance inconsistency (i.e.,
across similar measures, within measures or from test-
retest). Formal test instruments to detect dissimulation
have been developed and refined over time, using one or
several of these principles. More recently, test developers
have collected normative information for head injured
litigants and non-litigants, patients with amnestic syn-
dromes, chronic pain patients, recruited ‘feigners’ and
even highly coached ‘sophisticated’ feigners to make
dissimulation-like performances easier to distinguish from
true impairment.
Early measures of dissimulation include the Rey
15-item (Rey 1964), and Rey Dot Counting (Rey 1941),
though subsequent research has shown the sensitivity,
specificity, and error rate of these tests to be lacking
(Schretlen et al. 1991; Vallabhajosula and van Gorp 2001).
Several dissimulation measures have been adapted from
the Symptom Validity Technique (Pankratz, Fausti, and
Peed 1975; Pankratz 1983) and use a forced-choice para-
digm wherein subjects are asked to make either/or judg-
ments about stimuli. Based on the binomial probability
theory, even test-takers who guess should answer correctly
about 50 per cent of the time. In this approach, the per-
son’s actual score can be compared to the statistical likeli-
hood they would have obtained these scores based upon
random or chance responding, or whether the obtained
results are actually statistically below that which would be
expected by chance alone.
Thus, scores significantly below chance levels suggests
intentional poor effort. Although specific stimuli (e.g.,
words, digits) and methods (e.g., varying inter-trial
latency and perceived difficulty) vary, several malinger-
ing measures are based on the force-choice paradigm
[e.g., Hiscock Digit Memory Test (Hiscock and Hiscock
1989); Portland Digit Recognition Test (Binder 1993);
Word Memory Test (Green, Allen, and Astner 1995);
Victoria Symptom Validity Test (Slick et al. 1998); and
Test of Memory Malingering (Tombaugh 1997)].
Other tests have been developed that use sophisti-
cated assessment approaches to determine whether the
pattern – not just level – of test performance fits expected
patterns based upon the person’s level of ability. These
instruments (e.g., Validity Indicator Profile; portions of
the California Verbal Learning Test – Second Edition;
Delis et al. 2000) offer reasonable sensitivity and speci-
ficity and can add to the determination of level of effort

by the test taker in the forensic setting (Millis et al. 1995;
Vallabhajosula and van Gorp 2001).
Personality measures, such as the MMPI-2 and the
MCMI-III (Millon 1993) have validity indices that are used
to judge the degree to which a person has either under-
reported or over-reported their current psychological symp-
toms, and each have suggested cut-off scores over which a
profile is considered invalid. Simply put, self-disclosure on
personality measures can be placed on a continuum, rang-
ing from overly defensive to overly self-disclosing – either
may be of interest in a forensic examination depending on
the context of the case. The MMPI-2 validity scales include
L, F, and K. These scales are typically interpreted as a triad,
the configuration of which suggests a person’s test-taking
attitude. L-scale items deal with common flaws or weakness
that most people are willing to admit, and extremely low
scores (especially with low K scores) suggest that a person
has emphasized negative characteristics, while elevations
may indicate an unsophisticated attempt to present oneself
in a positive light. The K scale was developed as a more
subtle measure of a person’s test-taking attitude. Low K
scores suggest a deliberate attempt to present oneself
unfavorably, while elevated scores suggest defensiveness.
The F scale consists of unusual symptoms and attitudes
that the majority of people do not endorse. As such, it is
also useful for measuring test-taking attitude, and in a
valid profile, indicates the level of psychopathology a
person may be exhibiting. Response inconsistency and
all-true or all-false response biases can also be evaluated
with the MMPI-2 (i.e., TRIN, Fb and VRIN scales).
It is important to recognize that no measure of malin-
gering possesses perfect sensitivity and specificity and
some degree of symptom exaggeration is not uncommon
among litigants, even among those who have suffered doc-
umented neurologic injury. Thus, a clinician must always
use multiple sources of evidence and his or her own clin-
ical judgment before arriving at a diagnosis of malingering.
This has prompted some (Slick, Sherman, and Iverson
1999) to propose operationally defined determinations of
‘definite,’‘probable,’ and ‘possible’ malingering conclusions
based upon the nature of the test results.
Intelligence
Most neuropsychological batteries include a measure of
general intelligence. The most widely used measure is the
Wechsler Adult Intelligence Scale-Third Edition (WAIS-
III), which renders an overall intellectual quotient [Full
Scale Intellectual Quotient (FSIQ)] that is used as the
basis for judging a patient’s global functioning and to
which other neuropsychological tests (including premor-
bid estimates) are typically compared to evaluate for loss
of functioning. In addition, it includes domain scores
[Verbal Intellectual Quotient (VIQ) and Performance
Intellectual Quotient (PIQ)], as well as specific index,
or factor, scores (Perceptual Organization; Verbal
Forensic neuropsychology 615
Comprehension; Working Memory; Processing Speed)
that allow the clinician to determine relative strengths
and weaknesses in the profile that can guide conclusions
as to the nature of a patient’s disorder. Normative data for
specific populations (e.g., Alzheimer’s disease, Parkinson’s
disease, learning disability, attention deficit/hyperactivity
disorder) are available in the manual, which may be useful
for interpretation as well. One drawback to the WAIS-III
is its lengthy administration (usually in excess of 1 hour).
To address this issue, an abbreviated form of the WAIS-III
has recently been developed [Wechsler Abbreviated Scale
of Intelligence (WASI)].
Attention and concentration
Disruption in attention and sustained concentration is
a very common complaint in persons with a history of
either neurological or psychiatric disorder. Basic auditory
attention can be measured by administering digit repeti-
tion tasks, such as the Digit Span subtest from the WAIS-
III. There is also a spatial analog to this task that measures
basic visual attention (WMS-III, Spatial Span). Divided
attention tasks measure a patient’s efficiency at the simulta-
neous mental processing and manipulation of information
in working memory. Measures of divided attention include
Letter-Number Sequencing (random numbers and letters
are presented: ‘9T3C5’ that must be mentally ordered:
‘359CT’) and Arithmetic from the WAIS-III, Auditory
Consonant Trigrams (Brown 1958), and the Paced Audi-
tory Serial Addition Task (Gronwall and Sampson 1974).
Sustained concentration is commonly measured using
the Stroop Word and Color Reading, but computerized
measures of vigilance such as the Continuous Performance
Test, the California Computerized Assessment Package
(CalCAP (Miller 1991)), or the Test of Variables of
Attention (TOVA) are also used. On these latter tasks
patients depress a key pad or button in response to tar-
gets that appear under varying conditions. Errors of
omission (inattention) and commission (impulsivity) as
well as response time variability are measured. Compari-
son between a patient’s attention and memory ability can
provide important information regarding the nature of a
patient’s disorder. For example, in early Alzheimer’s dis-
ease basic attention is typically intact while memory is
clearly deficient. In contrast, individuals who are attempt-
ing to feign memory disorder will often produce the oppos-
ite pattern of performance (e.g., Mittenberg et al. 1993).
Language
Judgments regarding a person’s language ability in a neuro-
psychological evaluation are based both on clinical
observations of their casual conversation and test behav-
ior, as well as standardized language measures. Commonly
used screening measures of language dysfunction include
tests of confrontation naming ability (e.g., Boston Naming
616 Special clinical issues in forensic psychiatry
Test; Kaplan, Goodglass, and Weintraub 1983) and sen-
tence repetition (MMSE: ‘no ifs, ands, or buts’), as well as
simple sentence reading, comprehension (following three-,
four-, and five-step commands), spontaneous writing and
writing to dictation. When basic problems are detected,
more extensive batteries exist [Boston Diagnostic Aphasia
Examination (Goodglass and Kaplan 1983) or the Western
Aphasia Battery (Shewan and Kertesz 1980)] to assess
symptoms of aphasia more comprehensively.
Visuospatial functioning
Behavioral observations are an important part of a clin-
ician’s judgment regarding visuospatial functioning in
their patients. Before and during testing, clinicians
observe the manner in which patients guide their body
in space; perceives, reaches for, orients or positions test
materials; as well as the ease with which they navigate to
and from the office/restroom, always alert for indications
of inattention, neglect or geographical disorientation
that may warrant more extensive exploration in this
domain. Formal tests of visuospatial ability are most sen-
sitive to non-dominant hemisphere pathology, particu-
larly the parietal lobe (although dominant hemisphere
damage can also lead to poor performance on visuo-
spatial testing). Specific tests include WAIS-III Block
Design, Matrix Reasoning and Object Assembly subtests,
the Tactile Performance Test from the Halstead-Reitan
Neuropsychological Battery, and the Rey-Osterrieth
Complex Figure Copy (Corwin and Bylsma 1993).
Sometimes patients perform poorly on these measures
because of the speed and/or motor component inherent
in them, and thus clinicians may also choose to adminis-
ter non-motor and un-timed visuospatial measures such
as the Benton Judgment of Line Orientation (Benton
et al. 1983), the Hooper Visual Organization Test (Hooper
1958), or the Test of Visual Perceptual Skills (Gardner
1982) in order to disentangle this issue.
Executive functioning
Executive functions enable a person to plan, initiate, pro-
gram, sequence and maintain goal-directed behavior.
These processes also allow a person to monitor their
behavior, often in the face of distraction, in order to
modify actions to meet task demands or potential conse-
quences. These are the skills one uses to successfully
respond to new problems/situations/expectations in
their environment. Such behaviors are often deficient in
those with dementia, brain injury (particularly to the
frontal lobe), or psychosis. Executive dysfunction may be
so severe that a person is rendered incompetent to con-
sent to medical treatment, to assist in his or her own legal
defense or to enter into legal contracts, which frequently
is how they come to the attention of a forensic examiner.
Sometimes a patient’s deficits in this domain can be
difficult to observe during a standard neuropsychological
evaluation because of the high degree of structure that is
present during testing. However, concrete thinking and
poor problem solving can be measured using novel,
unstructured measures such as the Wisconsin Card
Sorting Test or the Booklet Category Test wherein the
patient is not told specifically how to perform success-
fully, but must deduce the principle from the responses
provided by the examiner. Other measures of executive
functioning that are not problem solving tasks per se, but
are adversely affected in frontal lobe dysfunction, include
measures of set shifting (Trail Making B; Partington and
Leiter 1949), selective attention/response inhibition
(Stroop Interference), verbal (Controlled Oral Word
Association Test; Spreen and Benton 1977) and figural
(Ruff Figural Fluency Test; Ruff 1988) fluency, as well as
verbal (WAIS-III Similarities) and non-verbal (WAIS-III
Matrix Reasoning) abstraction ability. Lastly, neuropsych-
ologists observe the degree of awareness a person exhibits
regarding their disability and what accommodations, if
any, they use, both of which indicate judgment. They are
also sensitive to the degree of structure a person requires
in order to meet task demands, whether they become
derailed and lose cognitive set, and whether they tend
to become stuck in set and perseverate, all of which are
characteristic of executive dysfunction.
Memory
Memory impairment is common across a broad range of
central nervous system disorders, injuries and diseases,
and therefore, assessment of memory functioning is an
integral part of a thorough neuropsychological assess-
ment. Primary, recent and remote memory should be
assessed. At the outset, neuropsychologists are sensitive
to the ease and accuracy with which a person can recount
their history (including educational, vocational and
medical history), and current events, as well as derail-
ment during casual conversation that may indicate
recent and remote memory impairment.
Neuropsychological evaluations should include meas-
ures of both verbal and non-verbal memory. In the verbal
domain, rote memory is measured using list-learning
tasks such as the California Verbal Learning Test-II or the
Word List subtest from the Wechsler Memory Scale-III
(WMS-III). For older or more impaired patients, the
Hopkins Verbal Learning Test may be more appropriate,
as there are fewer words to recall. These tasks have free
recall and recognition components that allow the clin-
ician to disentangle encoding versus retrieval deficits.
The CVLT-II specifically measures one trial learning,
learning slope, recall consistency, primacy/middle/recency
effects and semantic/serial clustering which are useful for
differentiating different memory disorders. Immediate
and delayed recall information presented in context

(i.e., story memory) can be measured using WMS-III
Logical Memory. Non-verbal memory tasks include
Visual Reproduction I & II and Faces I & II from the
WMS-III, recall of the Rey-Osterrieth Complex Figure,
and the Brief Visual Memory Test (Benedict 1997). When
a comprehensive measure of memory functioning is
necessary, the Wechsler Memory Test can be given in its
entirety, which yields composite scores for immediate,
delayed and recognition verbal and non-verbal memory.
Motor functioning
Neuropsychologists are commonly interested in obtain-
ing measures of motor functioning. Particular attention
is devoted to the detection of any lateralized motor slow-
ing or weakness as this can often be of use in issues such
as lesion detection and differential diagnosis. Commonly
used measures include tests of upper extremity fine
motor dexterity (Grooved Pegboard, Purdue Pegboard;
Tiffin and Asher 1948), grip strength (Hand Dynamo-
meter; Reitan and Davison 1974) and motor speed
(Finger Tapping Test; Reitan 1969).
WHEN IS A FORENSIC NEUROPSYCHOLOGICAL
EVALUATION INDICATED?
A forensic neuropsychological evaluation is usually
requested whenever a litigant asserts complaints of
cognitive or emotional symptomatology relating to an
injury or illness and there exists a need to establish the
range, severity, veracity, and likely cause of said com-
plaints. While cognitive complaints are most commonly
seen in the context of physical injury to the brain, com-
plaints of difficulty with concentration, memory disturb-
ance, and other higher-order cognitive abilities are
frequently seen in persons alleging emotional damages,
particularly anxiety and depression.
A neuropsychological evaluation is often used in both
criminal and civil litigation. Within the criminal realm,
neuropsychologists are frequently asked to offer opinions
regarding mens rea issues such as whether a defendant
had the cognitive capacity to form intent or could reason-
ably anticipate the effects of their actions at the time of
the offense. Increasingly, case law has expanded the ‘not
guilty by reason of insanity’ defense to include not only
psychiatric illness but also neurocognitive impairment. As
such, neuropsychological testing can help identify men-
tally retarded or demented defendants who, by virtue of
their cognitive deficits, could not form intent or reason-
ably anticipate or understand the effects of their actions.
While such retrospective analysis regarding mental state
in the past is by its very nature inexact, a neuropsycho-
logical evaluation is particularly well-suited for addressing
whether defendants currently have cognitive deficits that
could impact upon ability to stand trial or assist with their
Forensic neuropsychology 617
defense. Neuropsychological evaluation can help deter-
mine whether a defendant has the cognitive capacity
to understand legal proceedings and the implications of
various pleas, as well as to engage in activities such as
assisting counsel and tracking testimony for inconsist-
encies. Opining on mitigating issues such as history of
mental retardation, neurological disease, or psychiatric ill-
ness, especially in the penalty phase of capital cases, is yet
another role for the forensic neuropsychologist.
Within the civil realm, neuropsychologists are fre-
quently retained as experts in personal injury lawsuits,
particularly if complaints of cognitive or emotional dys-
function are in question. Civil litigation often involves
the question of the degree of an individual’s loss of cog-
nitive, intellectual, and psychological function secondary
to a disease or injury. In these instances, neuropsycho-
logical assessment can offer information regarding whether
cognitive dysfunction is present or not, the specific cog-
nitive function(s) that have been affected, the severity of
this loss relative to estimated premorbid levels, and the
potential for recovery of cognitive function over time.
If the individual has been tested on more than one occa-
sion, data on stability, improvement, or decline will be
available. A typical scenario would be assessment of a
patient who has suffered a brain injury in a motor vehicle
accident in order to determine the presence and severity
of any resultant neuropsychological deficits. Other civil
litigation questions in which a neuropsychological evalu-
ation would be indicated include disability evaluations,
competency issues (such as whether a patient with a pro-
gressive dementia is able to competently enter into a legal
agreement or alter their will), detection of impaired pro-
fessionals, and determination whether an individual
requires a guardian or conservator by virtue of neuro-
logic or psychiatric disease.
WHO IS A FORENSIC NEUROPSYCHOLOGIST?
The forensic psychiatrist or attorney who wishes to con-
sult with a forensic neuropsychologist must first be cog-
nizant of what training and credentials distinguish an
expert clinical neuropsychologist. Typically, clinical neuro-
psychologists first obtain a doctorate in clinical psych-
ology or clinical neuropsychology. A minority, however,
will obtain their doctorate in a related field such as
cognitive psychology or counseling psychology. After
completing their coursework and dissertation, a year-long
clinical internship followed by a postdoctoral residency
of usually two years’ duration then follows. This fellow-
ship training is perhaps the most critical component in
the training of a competent clinical psychologist. Failure
to complete such postdoctoral training, particularly in
a neuropsychologist who has matriculated in the last ten
to fifteen years, should be cause for concern. In an
attempt to formally define what training and experience
618 Special clinical issues in forensic psychiatry
represent minimal standards for the practice of clin-
ical neuropsychology, the neuropsychology division
(Division 40) of the American Psychological Association
(APA) adopted the following statement:
A Clinical Neuropsychologist is a professional psycholo-
gist who applies principles of assessment and inter-
vention based upon the scientific study of human
behavior as it relates to normal and abnormal func-
tioning of the central nervous system. The Clinical
Neuropsychologist is a doctoral-level psychology pro-
vider of diagnostic and intervention services who has
demonstrated competence in the application of such
principles for human welfare following:
A Successful completion of systematic didactic and
experiential training in neuropsychology and neu-
roscience at a regionally accredited university;
B Two or more years of appropriate supervised
training applying neuropsychological services in a
clinical setting;
C Licensing and certification to provide psychological
services to the public by the laws of the state or
province in which he or she practices;
D Review by one’s peers as a test of these competen-
cies. Attainment of the ABCN/ABPP Diploma in
Clinical Neuropsychology is the clearest evidence
of competence as a Clinical Neuropsychologist,
assuring that all of these criteria have been met.
(Division 40 of the APA, 1989, p. 22)
The American Board of Professional Psychology
(ABPP) is the umbrella organization that oversees eleven
specialty boards in psychology, including the American
Board of Clinical Neuropsychology (ABCN). Its analog
in medicine is the American Board of Medical Spe-
cialties, under whose aegis falls the American Board of
Psychiatry and Neurology. While possession of the ABPP
diplomate assures consumers of competence in the prac-
tice of clinical neuropsychology, the American Board
of Professional Neuropsychology (ABPN) also offers a
diplomate in clinical neuropsychology that is considered
by many neuropsychologists to be a commensurate cre-
dential. As is true in many other disciplines, there exist a
number of ‘vanity’ boards that grant board certification
to virtually anyone who pays their fee, regardless of
actual training or competence. Caution must be exer-
cised to not be misled in this regard.
LIMITATIONS OF NEUROPSYCHOLOGICAL
TESTS
As described by Lezak (1995), many neuropsychological
tests were developed within the clinical arena, and as such,
some do not yet have the reliability and validity studies
common to more traditional psychological measures such
as the MMPI-2. Until these studies are accomplished, the
forensic neuropsychologist must be careful not to place
excessive reliance on any new measure, as promising as it
may be.
A second limitation of forensic neuropsychological
practice is that test scores alone do not allow the determi-
nation of whether or not an individual has sustained brain
damage as a result of an injury. The tests must be inter-
preted in light of an individual’s history, current affective
state, and so forth. Many neuropsychological tests are
quite sensitive to many factors, only some of which may be
related to actual brain injury or dysfunction. For instance,
psychiatric disorders, such as depression and anxiety can
be responsible for lowered neuropsychological perform-
ance on many measures. Hence, it is important to take
such factors into account when interpreting neuropsycho-
logical test scores on a given individual.
Finally, although the forensic neuropsychologist is
often asked to relate an individual’s test scores to day-to-
day functioning such as occupational performance, it is
important to remember that most tests have not been
studied in relation to specific job performance. Rather
than being validated on specific occupations or perform-
ance criteria, test results provide areas of cognitive
strength, weakness, and overall level of dysfunction or
retention of general abilities. Hence, when asked, ‘Given
these scores, Doctor, can Mr. X still function as an airline
pilot?’ unless cognitive impairment is profound, neuro-
psychological test data alone cannot provide a definite
answer. In order to answer such a question, the neuropsy-
chological test data must be integrated with a broader
assessment of an individual’s aptitudes, strengths, and
limitations.
SUMMARY AND CONCLUSIONS
The role of clinical neuropsychology in the forensic
arena has grown in recent years, and can be expected to
do so in the future. Data relating to the nature, extent,
cause, and likely prognosis of deficits suffered secondary
to central nervous system injury and disease can be gar-
nered from a careful and comprehensive neuropsycho-
logical evaluation. Competency to stand trial, the ability
to assist in one’s own defense, mens rea at the time of
offense, and the ability to enter into contracts are also
domains in which neuropsychological evaluation can
prove to be valuable. With such rapid growth in the use
of clinical neuropsychologists as expert witnesses comes
the attendant risk of poorly trained individuals purport-
ing to be skilled in clinical neuropsychology. Accordingly,
triers of fact must be alert to this issue and thus must
only rely on clinical neuropsychologists who meet object-
ive criteria for competence such as those explicated
above. With this caveat in mind, the utilization of com-
petent and credible clinical neuropsychologists as expert

witnesses can prove invaluable in the legal system’s goal
of establishing truth.
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Psychological and psychiatric measures
in forensic practice
RICHARD ROGERS AND DIANE GRAVES-OLIVER
This chapter provides a succinct overview of standard-
ized measures for the forensic expert who offers testi-
mony on psycho-legal issues. It is especially designed for
those experts without psychometric training. Its primary
objectives are two-fold: (i) to review standard psycho-
logical tests and their potential relevance to forensic evalu-
ations; and (ii) to introduce experts to structured interviews
and specialized psycho-legal measures. For the latter cat-
egory, psychiatrists and other mental professionals may
be trained in their clinical use. In achieving these twin
objectives, specific measures must be scrutinized to con-
sider their admissibility in light of the Daubert standard
(Daubert v. Merrell Dow Pharmaceuticals, Inc. 1993). This
chapter is intended to facilitate experts’ knowledgeable
use of forensic psychologists as consultants. In addition,
several specialized measures require only modest levels of
self-training and are available to psychiatrists and other
qualified mental health professionals. For these measures,
experts are provided with resource information for
enhancing their forensic practice.
APPLICATION OF DAUBERT TO
PSYCHOLOGICAL MEASURES
Rogers and Shuman (2000) provide a valuable summary
of Daubert and its relevance to assessment methods.
Briefly, Daubert outlined four criteria to test whether the
methods used are scientifically valid. First, the method
or technique must be testable and capable of being dis-
proved (i.e., falsifiability). Second, it must withstand
scientific scrutiny as evidenced by peer review and publi-
cation. Third, its ‘known or potential rate of error’ (p. 594)
must be evaluated. Fourth, its general acceptance in the
relevant scientific community must be considered.
Forensic psychologists have taken a proactive stance
in evaluating whether specific measures are likely to meet
the Daubert standard. For example, Rogers, Salekin, and
63
Sewell (1999) examined whether the Millon Clinical
Multiaxial Inventory-III (MCMI-III; Millon 1994; Millon,
Davis, and Millon 1997) would likely be admissible.
Regarding Axis II diagnoses, these authors found the
MCMI-III lacked adequate construct validity and pro-
duced unacceptably high error rates (e.g., a false-positive
rate of approximately 80 per cent). Despite a spirited
defense (see Dyer and McCann 2000), further examin-
ation by Rogers, Salekin, and Sewell (2000) revealed
additional problems with the MCMI-III, including a
fundamental flaw in their methodology (i.e., criterion
contamination). One lesson from the MCMI-III example
is that psychiatrists cannot blithely assume that psychol-
ogists are conversant with Daubert or the growing litera-
ture on its clinical applications. In selecting consultants,
psychiatrists are obliged to examine their expertise on tests
and their likely admissibility. Especially for cases in the
criminal arena, Conducting Insanity Evaluations (Rogers
and Shuman 2000) provides an easily read summary of
psychological tests and Daubert issues.
STANDARD PSYCHOLOGICAL TESTS
This section provides a very brief overview of the mostly
commonly used tests in forensic evaluations. Experts
should be aware that dozens of additional tests are avail-
able, many with substantial validation. This section
addresses standard psychological measures, such as intel-
ligence tests, projective techniques, and multiscale inven-
tories. For each category, potential pitfalls will be outlined.
Adult tests
A number of adult tests have been devised, including the
following:
1 Weschler Adult Intelligence Scale-3rd edition (WAIS-
III; Weschler 1997): this is a highly reliable measure of
622 Special clinical issues in forensic psychiatry
intellectual ability that is divided into previously
acquired verbal abilities and novel tasks for assessing
non-verbal abilities.
Potential pitfall: Its subtests cannot be equated with
forensic competencies. For example, the Comprehen-
sion subtest has no direct relevance to comprehension
of Miranda warnings.
2 The Halstead-Reitan Battery (HRB; Reitan and
Wolfson 1993): this is a group of at least five neuro-
psychological measures that are combined to derive
an impairment index. Despite its widespread use,
questions have been raised about its reliability, norms,
and diagnostic validity (see Lezak 1995).
Potential pitfall: While good at assessing discrete abil-
ities, it was not intended to assess prior functioning as
needed in personal injury and workers’ compensation
cases.
3 Luria-Nebraska Neuropsychological Battery (LNNB;
Golden, Purisch, and Hammeke 1985): this ambi-
tiously attempts to evaluate eleven summary scales
covering a wide range of neurocognitive functioning.
Psychologists are deeply divided about its validation;
relatively few forensic neuropsychologists use either
partial or full LNNBs (Lees-Haley et al. 1995).
Potential pitfall: Caution must be taken in interpreting
summary scales because their titles may not accur-
ately characterize the cognitive abilities.
4 The Minnesota Multiphasic Personality Inventory-2
(MMPI-2; Butcher et al. 1989): this is the most widely
used multiscale inventory for forensic populations.
Extreme elevations on its validity scales can be used to
identify potential malingerers or persons denying
their mental disorders (see Greene 1997). The MMPI-
2 is not intended as a diagnostic measure; instead, its
clinical profile describes patterns of psychopathology.
Potential pitfall: Clinical profiles without any eleva-
tions cannot be interpreted as ‘unimpaired’ since these
are often found in chronic populations of mentally
disordered.
5 The Personality Assessment Inventory (PAI; Morey
1991): this is a new-generation multiscale inventory
that may eventually eclipse the MMPI-2 in forensic
settings. It has generally superior validation to the
MMPI-2 and can be used with forensic populations
that have modest reading levels (i.e., 4th grade).
Current research strongly supports its use in forensic
consultations, especially criminal cases (see Rogers and
Shuman 2000).
Potential pitfall: None has been identified.
6 The MCMI-III (Millon, Davis, and Millon 1997): this
is a multiscale inventory designed to assess Axis II dis-
orders and clinical syndromes associated with Axis I.
As previously noted, its validation does not appear
sufficient for forensic consultations. When compared
with experienced clinicians’ ratings, MCMI-III scales
generally accounted for less than 5 per cent of the
variance.
Potential pitfalls: First, the MCMI-III was not intended
to be used with non-clinical populations (e.g., plaintiffs
without established psychiatric histories). Second,
the MCMI-III cannot be used to establish Axis II dis-
orders. Third, computer-generated interpretations are
tentative judgments and not definitive conclusions
(see Millon 1994, p. 4).
7 The Rorschach: this is composed of inkblots, and is
conceptualized as either a projective technique or a
perceptual-cognitive task (Erdberg 1990). Its inter-
pretation can be either subjective (generation of
hypotheses) or objective (quantitative comparisons
of scored indices). Exner (1991) developed his own
scoring system and initiated extensive research on the
Rorschach. Despite his efforts, psychologists remain
deeply divided over its validation and clinical applica-
tions. Obstacles to establishing validity are the sheer
complexity of its scoring system (i.e., 91 unique vari-
ables and 64 ratios and derivations) and the formid-
able challenges in establishing criterion-related validity.
Potential pitfall: The Rorschach should not be used in
cases where malingering is suspected.
8 Thematic Apperception Test (TAT; Murray 1943):
this consists of a series of vague pictures, most involv-
ing one or several persons, about which the patient
narrates a story. Reliability is challenging to establish
because its administration (e.g., number and sequenc-
ing of cards) is not standardized. Most studies address
personality functioning rather than diagnostic
assessment.
Potential pitfall: TAT inferences should be treated as
preliminary hypotheses rather than clinical findings.
9 Human figure drawings: these refer to a constellation
of related techniques that involve the patient drawing
one or more persons which are then interpreted by
the clinician. Especially with adult populations, these
techniques lack sufficient validity to be used in foren-
sic cases.
Potential pitfall: Interpretation of these drawings is
likely to be confounded by artistic ability.
Child and adolescent tests
The forensic assessment of children and adolescents
presents several unique challenges, including the youth’s
chronological age and developmental level. Age and
developmental level are relevant to criminal (e.g., level of
culpability) and civil (e.g., participation in child custody
proceedings) issues. The youth’s gender also has implica-
tions for assessment, with sex differences affecting the
rates and expression of childhood pathology (Zahn-
Waxler 1993; Kavanagh and Hops 1994). Cultural factors
may confound assessment tools, thereby producing
differential results for various ethnic groups (Catarino
1991; Rogers 1998). Given these challenges, the most
 Psychological and psychiatric measures in forensic practice 623
commonly used child and adolescent tests are summarized:
1 Wechsler Intelligence Scale for Children (WISC-III;
Wechsler 1991): this assesses the intelligence of chil-
dren aged from six to sixteen years. The WISC-III
measures verbal and non-verbal abilities. Its scores
have acceptable reliability and validity and are good
predictors of academic achievement.
Potential pitfall: Like the WAIS-III, its scores cannot
be equated with forensic competencies.
2 Stanford-Binet Intelligence Scale (SB-IV; Thorndike,
Hagen, and Sattler 1986): this can be used with chil-
dren as young as two years of age through to adoles-
cence. It assesses four areas of intellectual functioning:
verbal reasoning; abstract/visual reasoning; quantita-
tive reasoning; and short-term memory.
Potential pitfall: Because of problems with standardiza-
tion, the SB-IV should not be used with older adoles-
cents or adults.
3 Kaufman Assessment Battery for Children (K-ABC;
Kaufman and Kaufman 1983): this is a process-based
approach to intelligence testing measuring both ver-
bal and non-verbal abilities. An important strength is
its attention to cultural issues.
Potential pitfall: A revision and restandardization of
the K-ABC is forthcoming that will need to be closely
evaluated.
4 Minnesota Multiphasic Inventory for Adolescents
(MMPI-A; Butcher et al. 1992) is an adolescent version
of the MMPI-2. Substantial changes were made in its
items, scales, and norms.
Potential pitfall: Most of the MMPI-A interpretations
are extrapolated from the adult literature despite major
differences between the measures. Cashel et al. (1998)
found that most of these interpretations were inaccur-
ate when applied to delinquent youth.
5 Roberts Apperception Test for Children (RATC;
McArthur and Roberts 1982): this is a thematic picture
test for children aged six to fifteen years that depicts
common stresses, conflicts, and situations in children’s
lives. The RATC has a comprehensive scoring system,
with adequate reliability.
Potential pitfall: Evidence for its validity is quite limited
(Sines 1985) and may not be sufficient for forensic
practice.
6 Child Behavior Checklist (CBCL; Achenbach 1991): this
is a 138-item checklist completed by parents for assess-
ing behavioral problems and social competence. With
extensive validation, the CBCL evaluates two general
dimensions: internalizing and externalizing problems.
Potential pitfall: Like other rating scales, the CBCL
is vulnerable to ‘halo effect’ with parents sometimes
rating pervasive problems in their children. This
tendency can be partially addressed by also using the
teacher’s version.
7 Behavioral Assessment System for Children (BASC;
Reynolds and Kamphaus 1992): this is a group of
specific instruments designed for personality assess-
ment in children and adolescents aged from four to
eighteen years. Its adaptive and clinical scales address
clinical, school and personal domains. BASC compo-
nents include a structured observation system, struc-
tured developmental history, and rating forms (teacher,
parent, and self).
Potential pitfalls: None has been identified.
STRUCTURED INTERVIEWS
The American Psychiatric Association (2000) recognized
the importance of standardized assessments for psychi-
atrists and other mental health professionals in its publi-
cation, Handbook of Psychiatric Measures. Featured
prominently, many structured interviews were developed
by psychiatrists and can often be administered with only
modest training. This section provides a selective over-
view of Axis I and Axis II interviews. It also features the
Structured Interview of Reported Symptoms (SIRS;
Rogers, Bagby, and Dickens 1992) because feigning is fre-
quently an important issue in forensic evaluations. For a
comprehensive review of structured interviews, see Rogers
(2001). For information about the availability of struc-
tured interviews, see Table 63.1.
The Structured Clinical Interview of DSM-IV Disorders
(SCID; First et al. 1997b), published by the American
Psychiatric Press, is a well-validated Axis I interview for
the evaluation of common mental disorders. Essential
for court purposes, the inter-rater reliability of SCID
diagnoses range from moderately high to superb. The
SCID is less well-suited for establishing the reliability
of specific symptoms, which is sometimes required in
forensic assessments. Designed to be entirely compatible
with DSM-IV, validation studies have generally produced
positive to very positive results for mood, psychotic, and
substance abuse disorders. In summary, the SCID can be
administered with modest training and produce reliable
DSM-IV diagnoses.
Schedule of Affective Disorders and Schizophrenia
(SADS; Spitzer and Endicott 1978), while older than the
SCID, has been studied extensively in forensic popula-
tions. The SADS has several major advantages over other
Axis I interviews for forensic practice: (i) exceptionally
high reliability for both diagnoses and symptoms; (ii)
reliable gradations of symptom severity; and (iii) valid-
ation for retrospective diagnoses. The first two advantages
are often critical to forensic consultations when the clin-
ician wants to go beyond simple diagnosis and establish
specific symptoms and their severity. For example,
psychiatrists in personal injury evaluations may want
to establish how the patient’s symptoms worsened or did
not worsen following the accident. The retrospective use
of the SADS is especially relevant for both insanity and
personal injury cases because of the need to establish
624 Special clinical issues in forensic psychiatry

Table 63.1 Availability of structured interviews for forensic experts

Axis I interviews
SCID is an excellent Axis I interview with direct correspondence with DSM-IV and broad diagnostic coverage. It is
available through American Psychiatric Press, 1400 K Street, NW, Washington, DC 20005-2403;
Phone: (800) 368-5777; FAX: (202) 789-2648; Internet: www.appi.org
SADS is an Axis I interview with superb reliability and direct applications to forensic practice. It is available through
Dr. Jean Endicott, Dept. of Research and Training, New York State Psychiatric Institute, Unit 123, 1051 Riverside Drive,
New York, NY 10032 or by phone at (212) 543-5536.
Axis II interviews
SIDP is one of the best validated Axis II interviews with excellent reliability and validity. It is available through American
Psychiatric Press, 1400 K Street, NW, Washington, DC 20005-2403; Phone: (800) 368-5777; FAX: (202) 789-2648;
Internet: www.appi.org
IPDE is a well-validated Axis II interview that is useful for those patients without severe Axis I disorders. It is available
through Psychological Assessment Resources (PAR) by phone at (800) 331-8378, by FAX at (800) 727-9329, by internet
at www.parinc.com, or by mail via P.O. Box 998, Odessa, FL 33556.
SCID-II is an Axis II interview with satisfactory validity that is best utilized for investigating a specific personality
disorder. It is available through American Psychiatric Press, 1400 K Street, NW, Washington, DC 20005-2403;
Phone: (800) 368-5777; FAX: (202) 789-2648; Internet: www.appi.org
Specialized interview for malingering
SIRS is a structured interview with impressive reliability and validity that is designed to assess feigning and related
response styles. It is available through Psychological Assessment Resources (PAR) by phone at (800) 331-8378,
by FAX at (800) 727-9329, by internet at www.parinc.com, or by mail via P.O. Box 998, Odessa, FL 33556.

functioning at a prior period. Besides these advantages,
the SADS has been studied with reference to response
styles. As summarized by Rogers (1997), screens are avail-
able for patients either feigning or denying their sympto-
matology.
For Axis II interviews, Structured Interview for DSM-
III Personality Disorders-IV (SIDP-IV; Pfohl, Blum,
and Zimmerman 1995) is published by the American
Psychiatric Press and represents one of the best validated
measures for personality disorders. Through its topical
organization, patients typically feel comfortable in describ-
ing their Axis II symptoms. The SIDP-IV is distinguished
in its ability to assess personality disorders in establishing
clear diagnostic boundaries and minimizing diagnostic
overlap.
Two other Axis II interviews should be considered
by forensic clinicians for the evaluation of personality dis-
orders: International Personality Disorder Examination
(IPDE; Loranger 1999) and the Structured Clinical Inter-
view for DSM-IV Personality Disorders (SCID-II; First
et al. 1997a). The IPDE is best used with outpatients that
do not have psychotic disorders or severe depression.
It has good diagnostic reliability and has been tested
cross-culturally. With satisfactory validity, the SCID-II is
organized by diagnosis with questions about symptoms
presented typically in the same order as delineated in
DSM-IV. This organization facilitates the ease of clin-
ician use but renders the measure comparatively trans-
parent and potentially vulnerable to response styles. The
SCID-II is best used in forensic cases when the clinician
wants to administer only particular sections to investi-
gate further specific personality disorders.
The best estimates of feigning in forensic assessments
were provided by more than 500 forensic experts (Rogers
1997). Prevalence rates varied substantially across set-
tings, but averaged approximately 16.4 per cent. More
recently, Cochrane, Grisso, and Frederick (2001) exam-
ined the clinical records of 1710 criminal defendants in
criminal courts and found that malingering was reported
as V diagnosis in 10.9 per cent of the cases. Whether the
rates are 1:7 or 1:10, mental health professionals should
systematically assess malingering in their forensic practices.
The SIRS was designed to assess feigning based on
empirically developed detection strategies. With impres-
sive inter-rater reliability, the SIRS has been validated
across multiple settings with use by psychologists and
other clinicians. Through the use of an indeterminate
category, the SIRS minimizes false-positives and demon-
strates a high accuracy for those classified as feigning.
PSYCHO-LEGAL MEASURES
Heilbrun, Rogers, and Otto (in press) provide a contem-
porary review of psycho-legal measures and their devel-
opment across the past four decades. For criminal issues,
the primary focus has been two-fold, namely competency
to stand trial and risk assessment for the sentencing and
release of convicted offenders. Secondary interests
involve the Miranda warnings and criminal responsibil-
ity. For civil issues, the primary focus is child custody
with secondary interests including guardian-ship and
child abuse cases.
 Psychological and psychiatric measures in forensic practice 625

Table 63.2 Availability of key psycho-legal measures for forensic experts

Competency to stand trial

McCAT-CA is a semi-structured interview for competency to stand trial that is especially useful for evaluating rational
understanding. It is available through Psychological Assessment Resources (PAR) by phone at (800) 331-8378,
by FAX at (800) 727-9329, by internet at www.parinc.com, or by mail via PAR, P.O. Box 998, Odessa, FL 33556.
ECST-R is a semi-structured interview that addresses both the components of the Dusky standard and feigned
incompetency. Based on current plans, it should be available through Psychological Assessment Resources (PAR)
by phone (800) 331-8378, by FAX (800) 727-9329, by internet www.parinc.com, or by mail via PAR, P.O. Box 998,
Odessa, FL 33556.
Risk assessments
PCL-R and PCL:SV are closely-related highly-reliable semi-structured interviews for the assessment of psychopathy.
It is available through Multi-Health Systems by internet at www.mhs.com, by phone at (800) 456-3003,
by FAX at (888) 540-4484, or by mail via MHS 908 Niagara Falls Blvd., North Tonawanda, NY 14120-2060.
HCR-20 and SVR-20 are closely related clinical guides for risk assessment; they involve predictions for general aggression
and sexual assault respectively. They are available by internet at www.sfu.ca/psychology/groups/mhlpi, by phone at
(604) 291-5868, by FAX at (604) 268-6695, or by mail via Mental Health, Law, and Policy Institute, Psychology
Department, Simon Fraser University, 8888 University Drive, Burnaby, BC, Canada V5A 1S6.
VRAG is an actuarial model for risk assessment. It is published and described in the book, Violent Offenders: Appraising
and Managing Risk, available from the American Psychological Association via internet at www.apa.org/books, by phone
at (800) 374-2721, by FAX at (202) 336-5502, or by mail via APA Book Order Department, P.O. Box 92984, Washington,
DC 20090-2984.
Other criminal and civil issues
Miranda Measures by Grisso refer to four closely related scales for assessing the understanding of a defendant’s
understanding of Miranda rights. They are available by internet at www.prpress.com/order.html, by phone at
(800) 443-3364, by FAX at (941) 343-9201, or by mail via Professional Resource Press, P.O. Box 15560,
Sarasota, FL 34277-1560.
MFAQ is a scale for assessing cognitive and functional capacities related to guardianship. It is published and described in
the book, Multidimensional Functional Assessment of Older Adults, available by internet at www.erlbaum.com/index.htm,
by phone at (800) 926-6579, by FAX at (201) 236-0072, or by mail via LEA, 10 Industrial Avenue, Mahwah, NJ 07430-2262.
R-CRAS is a systematic decision model for the assessment of insanity. It is available through Psychological Assessment
Resources (PAR) by phone (800) 331-8378, by FAX (800) 727-9329, by internet at www.parinc.com, or by mail via PAR,
P.O. Box 998, Odessa, FL 33556.
Child custody
Bricklin measures refers to a family of specific scales used in child custody evaluations. They are available through
Village Publishing by internet at www.comcat.com/⬃elliot/ custody-vp/index.html, by phone at (800) 553-7678,
by FAX at (215) 794-3386, or by mail via Village Publishing, 73 Valley Drive, Village of Furlong, PA 18925.
ASPECT is a test battery for child custody determinations that relies heavily on standard psychological tests. It is
available through Western Psychological Services (WPS) by internet at www.wpspublish.com/catalog2001, by phone at
(800) 648-8857, by FAX at (310) 478-2061, or by mail via WPS, 12031 Wilshire Blvd., Los Angeles, CA 90025-1251.

This section is organized into five subsections with
three devoted to criminal matters (i.e., competency to
stand trial, risk assessment, and other issues) and two
focused on civil matters (i.e., child custody and other
issues). A summary of the key psycho-legal measures and
information on their availability is provided in Table 63.2.
Competency to stand trial
In criminal-forensic cases, competency to stand trial is
the most common pre-trial issues, with an estimated
50 000 evaluations being conducted annually in the United
States. As articulated by the U.S. Supreme Court decision
in Dusky v. United States (1960), the basic standard for
competency to stand trial is uniform, although some juris-
dictions have expanded its legal criteria. The first gener-
ation of competency measures [e.g., Competency Screening
Test (McGarry 1971); Competency Assessment Instru-
ment (McGarry 1971); Georgia Court Competency Test
(Wildman et al. 1979)] provide rapid screens but lack
comprehensive test manuals detailing their validation and
forensic application. Therefore, this subsection features
the two second-generation competency measures.
The MacArthur Competency Assessment Tool-
Criminal Adjudication (MacCAT-CA; Poythress et al.
1999) represents a second-generation competency meas-
ure that attempts to address the Dusky prongs directly
and is commercially published. The McCAT-CA is a
semi-structured interview consisting of twenty-two
626 Special clinical issues in forensic psychiatry
items, with sixteen addressing a hypothetical case of
aggravated assault between two men. The McCAT-CA
has good reliability and extensive norms based on 729
defendants. In addition, the McCAT-CA does not require
extensive training in order to develop competence in its
administration and interpretation. Whether used rou-
tinely, forensic mental health professionals will likely
need to have a thorough background on its applications
to competency determinations.
Despite its advantages, the McCAT-CA also has two
notable limitations. First and foremost, its three scales do
not correspond directly to the Dusky standard. Dusky
requires that defendants’ capacities apply to their own
case and not to a hypothetical situation. Second, the
McCAT-CA is vulnerable to feigning but does not have
any indices for its detection (see Rogers et al. 2002).
Given these limitations, its greatest strength is its assess-
ment of rational understanding as required by Dusky.
The Evaluation of Competency to Stand Trial-
Revised (ECST-R; Rogers and Tillbrook 1998) is a semi-
structured interview, designed to address the Dusky
standard and screen for feigned incompetency. Current
plans are for the ECST-R to be published commercially
in 2003 via Psychological Assessment Resources. To ensure
its correspondence with Dusky, five national experts rated
the prototypicality of items indicative of the required
capacities. The ECST-R is composed of two sections:
twenty-five items to address the three Dusky prongs,
and twenty-eight items designed to screen for feigned
incompetency.
The ECST-R has been researched at three forensic
centers with additional research underway. With excel-
lent reliability, the current data demonstrate two robust
dimensions (i.e., factual understanding and rational abil-
ities). Research on the ECST-R as a screen for feigning
has been very promising with several scales evidencing
high sensitivities (⬎0.90). Forensic experts should ser-
iously consider the ECST-R as an integral component of
competency evaluations.
Risk assessment
Concerns about the sentencing and eventual release of
convicted offenders has led to a dramatic rise in meas-
ures designed for risk assessment. Methodology, retooled
from the maligned period of dangerousness predictions,
is now applied to probabilistic judgments for reoffending.
The resulting tools include trait-based, clinical-correlate,
and strictly actuarial models.
The Psychopathy Checklist-Revised (PCL-R; Hare
1991) represents the pre-eminent trait-based risk assess-
ment measure. The PCL-R is a semi-structured interview
for assessing the dimensions of psychopathy that are tra-
ditionally viewed as core traits and antisocial practices.
Psychopathic traits are viewed as predictors of general and
violent recidivism. Several meta-analyses (Salekin, Rogers,
and Sewell 1996; Hemphill, Hare, and Wong 1998) have
found psychopathy to be a moderate to strong predictor
for reoffending.
Three cautions must be applied to the use of the PCL-R
for risk assessments. First, its predictive ability may not
apply to women and certain minorities. Second, clin-
icians should be concerned about PCL-R scores near to its
cutoff (i.e., ⭓30); because of variability in measurement
(technically, SEM ⫽ 3.25), only scores ⭓33 should be
considered indicative of psychopathy. Third, the PCL-R
requires that consultants have considerable training in its
administration and scoring.
Several clinical-correlate measures are available for risk
assessments. This chapter features the Historical-Clinical-
Risk 20 (HCR-20; Webster et al. 1997) that has become
the template for additional measures: Sexual Violence
Risk-20 (SVR-20; Boer et al. 1997), and the Spousal
Assault Risk Assessment Guide (SARA; Kropp et al.
1999). The HCR-20 identifies: (i) ten historical variables
related to prior violence, diagnoses, and maladjustment;
(ii) five clinical variables addressing treatment and
symptoms; and (iii) five risk management variables
involving stressors and lack of support/stability. Its three
scales appear reliable and have predictive validity, at least
with civilly committed patients. An important caution
with the HCR-20 is that the authors simply assume its
criteria are additive without taking into consideration
the likelihood of high intercorrelations.
Actuarial measures of risk assessment attempt to cal-
culate mathematically the likelihood of recidivism. These
measures remove the clinicians’ judgment from the equa-
tion as adding unnecessary variability. The most prom-
inent actuarial measure is the Violence Risk Assessment
Guide (VRAG; Quinsey et al. 1998) that identified twelve
predictor variables including demographic variables
(e.g., never married), criminal history (e.g., serious vic-
tim injury), and diagnostic data (e.g., schizophrenia or
psychopathy). The VRAG has a moderate predictive power.
As an important caution, most data on the VRAG were
collected on maximum security patients at Oak Ridge.
Therefore, its results are unlikely generalizable to non-
psychiatric offenders. In addition, Oak Ridge programs
previously used non-standardized treatments such as
psychedelic drugs and nude marathons. Forensic clinicians
should be concerned that these experimental treatments
may have affected patients’ outcome.
Other criminal issues
Grisso (1981) developed four closely related measures
for the assessment of a defendant’s capacity to compre-
hend the Miranda warnings. These measures were recently
published and made commercially available (Grisso
1998). Whilst having substantial validity, these measures
focus primarily on cognitive abilities and do not take
into account how severe psychopathology might affect
the defendants’ ability to apply their comprehension to
 Psychological and psychiatric measures in forensic practice 627
their current arrest. For an excellent review of Miranda
comprehension and Grisso’s measures, see Oberlander
and Goldstein (2001).
Rogers (1984) developed the Rogers Criminal Respon-
sibility Assessment Scales (R-CRAS), as a structured deci-
sion model to facilitate insanity evaluations. Built
primarily on the American Law Institute standard, the
R-CRAS has good reliability and excellent validity in
providing relevant ratings of insanity-related criteria.
Commercially published, Rogers and Sewell (1999) found
excellent support for its construct validity. For the use of
the R-CRAS and other measures for conducting insanity
evaluations, see Rogers and Shuman (2000).
Child custody
Quinall and Bow (2001) provide a recent overview of psy-
chological measures commonly employed in child custody
evaluations. For psycho-legal measures, the most com-
mon methods were the Bricklin scales and the Ackerman-
Schoendorf Parent Evaluation of Custody Tests (ASPECT;
Ackerman and Schoendorf 1992). The review by Melton
et al. (1997) of these measures is strongly critical. For the
Bricklin scales, they observed: (i) untested or unrealistic
assumptions; (ii) a lack of adequate reliability and valid-
ity; and (iii) an absence of peer-reviewed scientific
research. Based on the review by Melton et al., the
Bricklin scales do not appear to meet the Daubert standard
because their error rate is not known and their research
has not been subjected to rigorous peer-reviewed
research. Moreover, the Daubert criterion of falsifiability
is also difficult to satisfy, given the Bricklin scales’ sup-
positions about unconscious responses to specific stimuli.
Unlike the Bricklin scales, the ASPECT is a complex test
battery that relies heavily on standard psychological tests
(e.g., Rorschach, MMPI, TAT, and WAIS-R). The limita-
tions of these measures are compounded by integration
into single battery. Melton et al. (1997) found the
ASPECT to be wanting based on the lack of sound peer-
review research and the inadequacies of its conceptual
underpinnings. In summary, psycho-legal measures for
child custody evaluations should either be avoided com-
pletely or relegated to an ancillary role.
Other civil issues
Relatively little research has investigated other civil issues
considered by the courts. For example, we found no estab-
lished measures for evaluating psychological impairment
arising from personal injury or workers’ compensation.
This subsection highlights efforts to establish psycho-
legal measures for the evaluation of child abuse and
guardianship.
For the evaluation of child physical abuse, Child Abuse
Potential Inventory (CAP; Milner 1994) is a forced-
choice 160-item inventory written at a grade 3 level.
Importantly, elevated scores do not necessarily indicate
abuse since they are also found with problematic chil-
dren. Because of its potential for false-positives (i.e.,
misclassifying a parent as abusive), Melton et al. (1997)
recommended against its forensic use in evaluating child
abuse.
Decisions about an individual’s capacity for self-
care and self-determination are typically found in civil
cases involving guardianship and conservatorship. The
Multidimensional Functional Assessment Questionnaire
(MFAQ; see Fillenbaum and Smyer 1981; Fillenbaum
1988) was developed at Duke University to five domains
of functioning: social resources (e.g., friendships and
caretakers); economic resources (e.g., sources of income);
mental health (e.g., depression); physical health (e.g.,
type and extent of disability); and activities of daily living
(ADL; e.g., financial transactions and meal preparations).
According to Grisso (1986), adequate inter-rater reliabil-
ity and discriminant (impaired versus unimpaired)
validity are reported. Forensic mental health profession-
als may find the MFAQ to be useful as a template for con-
ducting evaluations about the need for guardianship/
conservatorship.
The Community Competence Scale (CCS; Loeb 1983)
was devised to address specific capacities required by
legal guardianship cases. The CCS is composed of 166
items organized into nineteen scales that address such
basic capacities as cognitive skills, memory, financial issues,
and maintaining a household. Conceptually, the CCS was
developed by reviewing statutes from all states, major
case law, and legal writings. Probate judges and clinical
experts rated their importance with scales being opera-
tionalized for the nineteen most relevant issues. According
to Grisso (1986), the CCS has excellent reliability but
only mixed evidence of predictive validity. Likely, its real
strength lies in content validity in its sampling of rele-
vant issues. As observed by Melton et al. (1997), the CCS
is a well-conceptualized measure that provides behavioral
samples of basic real-world tasks (e.g., writing checks).
CONCLUDING REMARKS
The American Psychiatric Association (2000) embraced
the use of standardized assessments for diagnostic and
treatment purposes. Forensic psychiatrists and other
mental health professionals must consider the use of psy-
chological measures at several levels. While traditional
tests require considerable psychometric expertise, experts
without such training must still be conversant in their
development, applications, and limitations. Otherwise,
these experts become vulnerable on cross-examination
in not being able to explain convincingly the bases of
their opinions.
The refinement of structured interviews and psycho-
legal measures provides additional opportunities to
628 Special clinical issues in forensic psychiatry
forensic experts. These standardized methods will likely
improve the diagnostic data, quantify the level of impair-
ment, and address clinical issues relevant to the legal stan-
dard. Entering the twenty-first century, such advances in
forensic assessment represent the maturation of forensic
psychiatry and psychology.
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Culture and ethnicity
J. ARTURO SILVA, GREGORY B. LEONG AND ROBERT WEINSTOCK
INTRODUCTION
Cultural psychiatry has attained increasing stature and
visibility during the past few decades. The impressive
growth of this field can be most certainly traced to the
ongoing process of globalization that is bringing about
substantial changes in the United States and abroad. This
process is associated with a wave of powerful trends
such as urbanization, rapid social changes, the growth of
information technology as well as political and economic
changes that result in ongoing major adjustments for the
numerous cultural groups around the world (Desjarlais
et al. 1995). Ideological, academic, and political trends
within the field of psychiatry have not only facilitated the
development of concepts, tools, and research in cultural
psychiatry but also have generated intensive dialogue
regarding important issues involving culture, ethnicity, and
race (Okpaku 1998).
The United States has a long and tumultuous history
for attracting members of numerous cultural backgrounds.
A richness of cultural backgrounds has been a defining
feature of U.S. society and has positively and decisively
contributed to many complex and varied developments
in that society. At the same time, unequal access to eco-
nomic resources, educational opportunity and political
power have led to the marginalization and disenfran-
chisement of many cultural and ethnic groups (White
1991). Viewed from a historical context, this situation
has contributed to considerable friction between various
ethnic, cultural, and racial groups. Furthermore, inequality
in opportunities has contributed to worsening violence,
numerous chronic stressors, psychiatric morbidity and
serious problems of a legal nature. This multiplicity of
social, economic, cultural, psychiatric and legal problems,
continually intersect, helping create some of the most
challenging dilemmas faced by contemporary U.S. society.
Therefore, psychiatry will likely encounter many socio-
cultural dilemmas as it strives to define itself and further
clarify the relationship with the law. The demand for cul-
turally informed specialists who can function competently
at the interface of psychiatry and the law gives rise to an
64
area of forensic psychiatry that integrates with cultural
psychiatry. This emerging area of psychiatric endeavor
has been termed transcultural forensic psychiatry (Silva
et al. 1997; Silva, Leong, and Derecho 2000).
This chapter provides a brief overview of some of the
most important issues germane to the interface between
forensic and cultural psychiatry. For the purpose of clar-
ity, we utilize Griffith and Gonzalez’s definition of cul-
ture: ‘shared patterns of belief, feeling, and knowledge
that ultimately guide everyone’s conduct and definition
of reality. Culture refers to a multiplicity of elements that
define human life, such as social relationships, religion,
technology and economics’ (Griffith and Gonzalez 1994,
p. 1379). Therefore, culture applies to all cultural groups
regardless of racial or ethnic-related categorizations. We
use the term ‘ethnic’ as referring to members of a minor-
ity group with respect to a dominant group for a specific
society (Silva, Leong, and Weinstock 1994).
CULTURE, DIAGNOSIS, AND TREATMENT
The two most recent versions of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV, DSM-IV-
TR) developed by the American Psychiatric Association
(APA) (APA 1994; APA 2000) were intended to be atheo-
retical instruments. This position, has been extensively cri-
tiqued because reductionistic approaches to diagnosis and
treatment can be readily and uncritically applied to psy-
chiatric problems embedded in multiple levels of meaning
related to psychological, social, and cultural experience
(Stein 1993; Twemlow 1995). The resulting situation has
led to incomplete appraisals and confusion of categories
of meaning and experience in both psychiatric and non-
psychiatric contexts. The tendency to confuse and misuse
nosological categories without adequately considering the
psychosociocultural settings in which these are used, has
been termed the ‘category fallacy’ (Kleinman 1988).
In psychiatric-legal contexts the category fallacy can
also result in serious misuse of diagnostic categories. This
problem can be readily visualized in the diagnosis of
632 Special clinical issues in forensic psychiatry
antisocial personality disorder (APD) because it relies on a
history of behavioral patterns without providing explicit
criteria for the systematic consideration of social, eco-
logical, and sociocultural contexts in which antisocial
behavior patterns originate and are maintained (Wulach
1983; Weinstock and Nair 1984; Alarcon and Foulkes
1995). For example, a pattern of failing to sustain consis-
tent work behavior may be misinterpreted as an APD trait,
but may in fact result from demoralization due to poor
occupational preparation, poor educational attainment,
and/or depressed economic conditions in the specific
geographical area where the individual in question lives.
Likewise, failure to plan ahead may also be interpreted as
an APD trait but may also be related to poor educational
preparation or feeling appropriately discouraged about
prospects for the future or may be due to a mood dis-
order which escapes the detection of a clinician poorly pre-
pared in establishing adequate rapport with a member of
a cultural minority. An APD diagnosis may discourage
the clinician from searching for other psychopathologies
that may better explain antisocial or seemingly antisocial
behaviors. Although these considerations can apply to
members of any minority or culture, they are especially
relevant for many ethnic minorities who due to poverty,
lack of familiarity with the mainstream culture, living in
adverse ecological conditions or having poor command
of English may present with behavioral presentations
that result in an APD diagnosis. Sometimes, antisocial
personality is loosely diagnosed without following DSM
IV criteria in individuals an examiner does not like if the
individual has committed an illegal act. Cultural differ-
ences and lack of understanding of these issues may lead
to negative feelings in a forensic examiner that place such
individuals at high risk for receiving an incorrect antisocial
personality diagnosis (Weinstock and Nair 1984). The
evaluation of constructs related to psychopathy may
eventually become standardized across different cultural
settings, allowing for less problematic evaluations from a
transcultural perspective (Hare et al. 2000).
Although we have focused on APD from a diagnostic
viewpoint, many other categories of mental disorder can
be mistaken for entirely different psychopathologies
and other behaviors. Members of cultural minorities who
experience job-related stress tend to express their emo-
tional concerns under a rich canopy of somatic complaints
(Escobar 1987; Van Moffaert 1998), which can then lead
to diagnoses of pre-existing somatoform disorders or
even malingering, but who may in fact be suffering from
a depressive or anxiety disorder. Consequently, the affected
individual may be provided with inappropriate psychiatric
treatment and a psychiatric-legal issue such as causation,
which may not be accurately addressed.
Language
Given the multicultural nature of our society, the con-
tinued influx of new immigrants of many cultural
backgrounds into the U.S., and the dearth of mental health
professionals with diverse cultural backgrounds, language
interpreters are frequently necessary in both therapeutic
and forensic contexts. In the civil-legal area for example,
the increasing presence of ethnic minorities in the work
force has created a demand for well-trained language
interpreters in order to evaluate stress-related mental
claims. In the criminal justice area the disproportionate
presence of defendants from some ethnic and racial
groups makes it imperative that the courts, clinicians, and
prison staff have access to a group of competent inter-
preters and become familiar with the ways in which differ-
ent cultural factors become relevant in a legal case.
Vasquez and Javier list five errors frequently commit-
ted by untrained interpreters, namely omission, addition,
condensation, substitution and role exchange (Vasquez
and Javier 1991). Eliminating these errors may be espe-
cially critical in forensic psychiatric evaluation in which
the evaluation process may involve only a single interview.
Forensic psychiatric issues may be particularly problem-
atic for the language-interpreting process because of the
frequent involvement of emotionally charged issues. Cases
involving child abuse, rape, domestic violence, or more
heinous crimes can elicit profound emotional reactions
and difficulties in dealing objectively with these issues.
Unfortunately, even with extensive training, language
translators do not receive nor can be expected to learn
the nuances of transference and counter-transference
phenomena. Language interpreters may, for example,
involve themselves in role exchange issues such as unwit-
tingly protecting victims of serious crimes by failing to
inquire about information that is potentially embarras-
sing and otherwise psychologically painful to an evaluee.
A well-meaning language interpreter may inadvertently
serve as a cultural interpreter, potentially biasing the
assessment of culturally relevant evaluations. This can
occur when language interpreters implicitly volunteer
their own personal opinions that mistakenly pass as an
objective ‘cultural perspective’ on a psychiatric-legal issue.
Finally, it should be emphasized that even forensic
psychiatrists who have excellent command of a particu-
lar language, including their own native language, may
not fully understand local language variants. A psych-
iatrist whose native language is Spanish may for example
not fully understand Pachuco Argot (a form of Spanish
used by some Hispanic groups in the American southwest).
This may create a cognitive as well as an emotional
barrier between the psychiatrist and the interviewee.
Furthermore, Spanish-speaking psychiatrists may also
react negatively to Argot since they may associate it with
antisocial behaviors or impoverished upbringings, fur-
ther compromising objectivity. A second example is
‘Black English.’ Here again, failure by the mental health
professional to optimally understand the syntactic and
semantic productions of this English variant, may lead to
considerable frustration for both mental health profes-
sionals and evaluees, resulting in serious inhibition in com-
munication, interpersonal conflict and in suboptimal

forensic psychiatric evaluations. Forensic mental health
professionals may also strive to evaluate bilingual evaluees
in both languages because the expression of psychopathol-
ogy and the development of rapport may vary substan-
tially depending on the meaning and associations that an
individual may have when communicating in a specific
language (Oquendo 1996).
The transcultural-forensic evaluation
Although the DSM cultural formulation was first intro-
duced in DSM-IV, it has received increasing attention
in the psychiatric literature (Alarcon 1995; Mezzich et al.
1999). The cultural formulation should be considered a
work in progress and represents only one potential form
for developing a culturally informed psychiatric evalu-
ation; it shows considerable promise as a way to facilitate
culturally sensitive psychiatric assessments for diagnostic
and therapeutic purposes. In this section, we provide a
brief overview of this and discuss it from a psychiatric-
legal context. The DSM cultural formulation consists of
five sections.
The first section encompasses the cultural identity
of the individual. In this section not only the cultural
identity of the individual, but also the degree of cultural
involvement and language abilities and preferences are
explored. In psychiatric-legal contexts, the cultural iden-
tity of the individual may explain important factors such
as views and tolerance toward violence involving behav-
iors such as corporal punishment and domestic violence,
disagreements in role expectations in marriage resulting
in marital discord and divorce, child custody issues, and
cultural beliefs, expectations and tolerance about work-
related behaviors that may be relevant to understanding
sexual harassment or attitudes toward authority figures
at work or elsewhere. A recent example of one of these
issues is the ongoing transracial adoption debate as to
whether non-African American families should be allowed
to adopt African American children (Griffith 1995).
The second section involves cultural explanations of
the individual illness, idioms, and symptoms of distress
or symptoms related to cultural norms. Culture-bound
syndromes, if present, are included in this section. In
forensic situations the specific cultural meaning ascribed
to a symptom or behavior may be relevant to content-
related legal categories such as mens rea. For example,
a culture-bound syndrome involving certain beliefs in
witchcraft may encourage the affected individual to
physically attack the person putatively responsible for the
bewitchment, thereby helping explain a violent act from
a culturally informed perspective.
The section on cultural factors related to psychosocial
environment and levels of functioning helps define cul-
tural meaning of social stressors, social supports and
disability. These factors find particular relevance in the
areas of civil litigation such as workers’ compensation
and personal injury. Immigration legal cases is another
Culture and ethnicity 633
area where relevant stressors and cultural factors may be
important considerations (Fromkin and Friedland 1995).
In the criminal area, social stressors are known to be
associated with violent behaviors. From a cultural per-
spective, for example, the nature of a given stressor must
pass through the cultural lens of the person. Whether or
not a person reacts to stress with violence may depend on
the specific cultural meaning that the affected individual
attaches to the stressor and on culturally mediated help
seeking behavior that may or may not encourage further
expression of violence (Manson 1996).
The fourth section deals with cultural elements of the
relationship between the evaluee and the clinician. This
area assumes importance because cultural differences
between clinician and evaluee may compromise trust and
communication. Given that forensic psychiatric evalu-
ations generally take place over a limited number of inter-
views, identification of cultural factors that may facilitate
or impede a reasonable bi-directional flow of accurate
information may attain critical significance.
The final part of the DSM-IV/DSM-IV-TR cultural
formulation deals with the overall assessment of the role
that cultural factors may have on diagnosis and treatment.
A transcultural forensic psychiatric analysis not only fer-
rets out cultural factors that influence diagnosis and treat-
ment, but also how these cultural influences may canalize
psychiatric phenomena across forensic settings. For
example, a cultural perspective may allow the clinician to
understand that some Native American tribes have tradi-
tionally incorporated the use of reduced alcohol content
beverages into their customs. The introduction of high
alcohol-content liquors in some Native American com-
munities by members of European cultures may have
resulted in more disorganized and antisocial behaviors
and a greater risk for serious violence in some of the rele-
vant communities. The culturally competent forensic psy-
chiatrist may be better prepared to explain to the courts
that the effect of alcohol-associated violence in some
Native Americans may be partially the result of the exoge-
nous introduction of high alcohol-based beverages into
a given culture coupled with other relevant neurological,
social, political, economic and ecological factors. The sys-
tematic application of the cultural formulation of DSM-
IV-TR to transcultural forensic psychiatric problems
presently remains in the early stages of development.
However, preliminary case studies suggest that the cultural
formulation can be effectively used to analyze complex
cases of a biopsychosociocultural and legal nature such as
parental child killing behavior (Silva et al. 1997; Silva et al.
1998) and dissociative identity disorder associated with
aggression (Silva, Leong, and Derecho 2000).
THE CLINICAL INTERVIEW
The psychiatric interview is a multidimensional informa-
tional system where cognitive, perceptual and affective
factors interact in a complex manner and flow
634 Special clinical issues in forensic psychiatry
bi-directionally between clinician and evaluee. When the
psychiatric interview takes place between a clinician and
evaluee of different cultural backgrounds, culturally
affected factors can complicate the communication process
by introducing different shades of meaning and potential
confusion in the assessment of symptoms, signs and other
indicators of mental disorder and clinical formulation.
From a psychiatric-legal perspective, the mental health
professional must attempt to understand how the socio-
cultural identity of the evaluee may affect the interview
(evaluation). Furthermore, the psychiatric interviewer
should also identify the cultural factors that have poten-
tial bearing on the interview process.
Often, the forensic psychiatric interview differs from
the clinical psychiatric interview because of the lack of
primacy of a therapeutic objective by which a longitu-
dinal process allows for the opportunity for clinician and
the interviewee. In addition, an increase in comfort due
to familiarity and reclarification of information are not
an option. From the standpoint of cultural psychiatry,
one of the most problematic situations involves a mental
health professional who harbors biases toward members
of another group with resultant distorted data gathering
and opinions. In the U.S., not only do mainstream
groups exhibit their unfounded biases, but members of
minority groups are not immune to such biases.
Many clinicians often make a concerted effort to pro-
vide well-balanced and objective psychiatric-legal evalu-
ations on members of cultural backgrounds different from
the clinician. However, even in these situations clinicians
may experience discomfort due to a lack of knowledge
regarding the cultural background of the interviewee.
Additionally, factors partially operating below the con-
scious level can include cultural differences in making eye
contact, body language, acceptable body spacing between
people, and speech differences. A clinician’s lack of famil-
iarity with a specific culture coupled with emotional
discomfort toward a defendant can result in impaired
communication flow and suboptimal forensic evaluations.
In situations where the clinician and the evaluee belong
to the same ethnic group, the mental health professional
may erroneously assume that the evaluee presents with
other similarities in social, psychological or cultural
attributes. For example, an African-American man raised
in a large urban center may present with very different
ethnocultural attributes to those of an African-American
man raised in a small isolated mountain community.
Griffith (1998) has discussed the need for minority forensic
psychiatrists who will be aware of power imbalances and
the narrative of an individual who is not part of the
majority culture and be able to give adequate recognition
to such issues.
Counter-transference issues involving ethnic minor-
ity evaluees (Comas-Diaz and Jacobsen 1991) may cause
significant problems during the forensic psychiatric
interview. For example, ethnic minority evaluees may
view a Caucasian psychiatrist as a representative of the
dominant group that had helped oppress the evaluee and
the ethnic group to which the evaluee belongs. In this
situ-ation, the evaluee may find it difficult to trust the
evaluating psychiatrist and may openly express feelings
of hostility that can seriously compromise the evalua-
tion. Minority forensic psychiatrists may also not be
trusted by minority defendants who may question their
allegiance to a ‘minority’ viewpoint. Some defendants
may internalize the idea that minorities are inferior and
then may proceed to project their feelings onto ethnic
psychiatrists. Thus, they become hostile and mistrustful
toward the ethnic forensic psychiatrist, viewing him or her
as a symbol of inferiority and also as a confirmation of
how the ethnic defendant receives suboptimal forensic
services.
Minority defendants and evaluees may also harbor
unrealistic expectations of minority forensic psychia-
trists whom they view as well meaning and understand-
ing of their plight. In this situation the minority person
may mistakenly infer that shared ethnic background may
help him or her receive a more favorable opinion. This
could result in the evaluee believing that a therapeutic
situation exists, despite being informed otherwise. This
type of transference may lead to the evaluee volunteering
excessive or even legally detrimental information in the
hope of acquiring more help. At the same time, such a
defendant may withhold key cultural information help-
ful to the case due to a belief that a psychiatrist of the
same ethnic group would necessarily already have that
knowledge or might disapprove of certain motivations
or actions. As previously noted, another important aspect
of the forensic psychiatric assessment of members of eth-
nic minorities is that the evaluee be carefully interviewed
not only in regard to specific forensic issues but also within
the context of the evaluee’s sociocultural milieu and devel-
opment. This situation not only requires a psychiatric
interview but also a careful assessment of the role that
cultural, economic, sociological, and even historical factors
have played in the cognitive, emotional, and moral devel-
opment of the minority evaluee.
It is important to obtain information from evaluees
regarding their understanding of the relevant behaviors
that triggered the forensic evaluation. If culturally medi-
ated explanations are offered, independent verification
from sources other than the evaluee must be sought.
Family members and acquaintances can provide import-
ant information regarding the cultural identity of an
evaluee. However, possible biases inherent in using the
evaluee’s family members as sources of cultural informa-
tion may be of dubious value. This situation may be par-
tially alleviated if forensic clinicians make a concerted
effort to acknowledge their limitations and proceed to
become more culturally knowledgeable with those cul-
tural groups that tend to make a significant proportion
of their forensic psychiatric practice. In this regard, the
forensic psychiatric consultant may benefit by undertaking
in-depth study of the relevant culture either in formal

educational settings such as completion of a course or
through self-study. Some mental health professionals
may also make effective use of objective sources of cultural
information such as census information, international law,
ethnographies and sociocultural and historical studies
as methods that may facilitate understanding of the
forensic psychiatric evaluee of a cultural minority
(Inciardi, Block, and Hallowell 1977; Silva and Liederman
1986). Whenever possible, cultural interpreters should
be used to verify information of forensic and cultural
relevance. Cultural interpreters are frequently members
of the same culture as that of the evaluee who may be
able to critically assess the validity of the defendant’s
statements regarding cultural norms. Cultural interpreters
may also include those who have expert knowledge via
formal education in a specific culture not necessarily
their own. An example of such an interpreter may be an
anthropologist with field work experience in a specific
culture. Cultural interpreters who are not related to the
evaluee, in contrast to family members, are more likely to
provide objective and unbiased information. Nonetheless,
utilizing a family member of the evaluee, may provide
valuable culturally relevant information associated with
family dynamics, social, political and ecological factors
for a specific evaluee.
THE CULTURAL DEFENSE
In 1978, Diamond considered the role that social and
cultural factors should have for possible mitigation in
criminal cases, as he stated, ‘I expect that sooner or later
appellate courts must recognize the thesis that evidence
of social and cultural factors, entirely separate from the
medical model of mental illness or defect, is relevant to
the administration of the existence of a specific intent.’
Since that time, the viability of such a ‘cultural defense’ as
a bona fide legal strategy remains a topic of considerable
discussion (Diamond 1978).
Those who oppose a defense based on cultural con-
siderations often note that ignorance of the law should
not be excusable. Cultural defense opponents further argue
about potential misuse of such a cultural defense by
permitting individuals various and sometimes obscure
cultural factors (Renteln 1987–88). Opponents also
believe that allowing immigrants and ethnic minorities to
claim non-responsibility based on their cultural back-
ground would violate fundamental fairness, as others
would not be given this leeway (Sams 1986). Furthermore,
they also argue that the U.S. legal system already offers
alternative defense strategies such as the diminished res-
ponsibility defense, diminished capacity, or the ‘mistake
of fact’ defense, that adequately substitute for a cultural
defense (Sams 1986). However, this line of reasoning
ignores the necessity for the presence of a bona fide men-
tal condition (e.g., mental illness, mental retardation, or
Culture and ethnicity 635
intoxication) to successfully assert a diminished respon-
sibility or diminished capacity strategy.
Proponents of the cultural defense take the position
that it derives from the highly valued societal ideals of
cultural pluralism and individualized justice. They also
recognize that the use of a cultural defense should be
limited for reasons of equity to others and to avoid giv-
ing a message excusing antisocial behaviors (Anonymous
1986). Also, the cultural defense should be firmly based
on the idea that even for a given cultural group, successful
use of the defense should not merely result from the pres-
ence of cultural factors, but rather in the totality of circum-
stances and parameters surrounding the incident at issue.
Regardless of the extent to which cultural factors are
formalized in a jurisdiction’s statutes, cultural factors
as evidence of mitigation are, and will likely continue to
be, an important consideration in the U.S. legal process
(Anonymous 1986; Renteln 1987–88). The extent to
which cultural factors play a role in this process likely
depends not only on the country’s racial and ethnic com-
position but also on the prevailing national and local
sociopolitical climate at a given moment. On the other
hand, prejudices and fears may adversely affect the legal
process and lead to an increased likelihood of a legally
negative result for minority defendants.
THE JUDICIAL SYSTEM
By its very nature, forensic psychiatry interfaces with
the judicial system and the surrounding complex social
infrastructure. Given the unequal balance of power allo-
cated to different ethnic groups in the United States, it is
not surprising that discrimination occurs in the admin-
istration of justice. Racial and ethnic prejudice may
occur at different levels of the judicial system, but often
the problem is difficult to document from a scientific
perspective. Culturally based discrimination permeates
the criminal justice system all the way up to the ulti-
mate legal sanction, namely the imposition of capital
punishment.
In the 1987 case of McClesky v. Kemp, the U.S.
Supreme Court considered the issue of racial discrimin-
ation. Briefly, McClesky, an African-American man, had
been convicted and sentenced to death for robbery of a
store and at the same time homicide of a police officer in
Georgia. McClesky eventually appealed his sentence to
the Supreme Court, alleging that Georgia’s capital sen-
tencing was discriminatory on the basis of race. McClesky
based his contention on a statistical study of over 2400
murder cases in Georgia from 1973 to 1980 conducted
by Baldus and his colleagues (Baldus, Woodworth, and
Pulaski 1985; Baldus, Pulaski, and Woodworth 1986). The
Baldus study found that a defendant convicted of killing
white persons received the death penalty in 11 per cent
of the cases, whereas defendants charged with killing
636 Special clinical issues in forensic psychiatry
African-Americans received the death sentence in only
1 per cent of the cases. Baldus also found that prosecutors
sought the death penalty in 70 per cent of the cases
involving African-American defendants and white
victims, but in cases involving white defendants and
African-American victims, the prosecution pursued this
only 19 per cent of the time. Upon analyzing thirty-nine
non-racial variables, the Baldus group found that defend-
ants convicted of killing whites were 4.3 times more
likely to receive the death penalty than those charged
with killing black persons. Although the Supreme Court
majority recognized statistical validity of the Baldus study,
they concluded that these results did not demonstrate
conclusively that racial considerations affected sentencing
decisions in Georgia.
In his analysis of the empirical jurisprudence of the
McClesky case, Appelbaum noted that the Supreme
Court misunderstood the statistical evidence (Appelbaum
1987). In essence, although the Supreme Court acknowl-
edged that racial discrimination adversely affects death
penalty proceedings with statistical significance, it also
concluded that equal protection was not violated unless
it could be demonstrated ‘that the decision maker acted
with discriminatory purpose.’ However, the likelihood
that a defendant could prove that the prosecutorial
process is acting in a discriminatory fashion is slight,
resulting in a situation where scientifically verified racial
discrimination can be conveniently ignored by the
courts. The Supreme Court also appeared to imply that
implicit institutional racism inherent in the judicial
system was an acceptable avenue in the administration
of justice. Other instances of discrimination have been
found in non-capital crimes and involving other ethnic
groups (Klein, Petersilia, and Turner 1990). At the level
of the jury – itself a purported microcosm of modern
society – racial and ethnic prejudice can also be encoun-
tered, though this problem can be difficult to identify and
eradicate (Fukurai, Butler, and Krooth 1993).
The purpose of discussing racial and ethnic prejudice
in the judicial system is not to promote an advocacy role
for the forensic psychiatrist, but to raise our awareness
that racial and ethnic prejudice in the judicial system may
adversely affect ethical and objective evaluations. This
may occur when the forensic psychiatrist decides to par-
ticipate in legal proceedings where the law itself may be
ethnocentrically biased and the opinions of the forensic
psychiatrist are by necessity provided within that legal
context.
Culturally based discrimination may be facilitated by
social forces that canalize mentally ill ethnic minority
individuals into prison settings that are neither adequate
from the perspective of mental healthcare delivery nor
sensitive to the special needs of members of some ethnic
minorities. In these situations, the forensic psychiatrist
runs the risk of becoming an agent for a system that
serves poorly the needs of inmates from some culturally
defined minorities.
SUMMARY
The evaluation of ethnic minorities for psychiatric-legal
purposes requires not only careful attention to psychiatric
and legal issues but also an approach that seeks to clarify
how cultural factors affect a person at different levels of
biological and psychosocial organization. Trans-cultural
forensic psychiatry involves a balanced inter-play of theo-
retical and practical approaches seeking to clarify a multi-
plicity of issues interfacing psychiatry, culture and the
law. This emerging field derives its methodology from
several fields that include anthropology, sociology, politi-
cal science, economics, linguistics, biology, and history.
Ultimately, transcultural forensic psych-iatry relies on a
biopsychosociocultural approach for optimal under-
standing of each specific case (Engle 1977; Silva and
Liederman 1986; Silva et al. 1998). By adopting such an
approach, the forensic psychiatrist can optimize the valid-
ity and comprehensiveness of psychiatric-legal assess-
ment, especially in those where cultural factors play a role.
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Hypnosis and dissociation
DAVID SPIEGEL
Hypnosis has had a long but checkered career in the
courtroom, repeatedly being either overvalued or under-
valued as the cause of crime, an instrument of truth tell-
ing, or a contaminant of testimony (Scheflin and Shapiro
1989). Original debates about hypnosis in the forensic
setting involved whether or not hypnotic suggestion
could be considered exculpatory in criminal defense.
This point of view is no longer taken seriously. More
recently, hypnosis has been used as a means of refreshing
the memories of witnesses and victims, resulting in con-
siderable medical, psychological, and legal debate about
the veracity of hypnotically refreshed testimony. There was
a period during which hypnosis was used much more
promiscuously as a memory-enhancement technique with
the premise that the mind was something like a video
recorder and all that was needed was a brief hypnotic
session to obtain a veridical recount of facts not otherwise
available to consciousness (Reiser 1974; Reiser 1980). This
approach has come in for considerable criticism both from
mental health professionals and the court (Scheflin and
Shapiro 1989; People v. Shirley 1982). Today, hypnosis is
also being used as a diagnostic tool in assessing the crimi-
nal responsibility of defendants with dissociative disorders.
There is nothing particularly arcane or mysterious
about hypnosis. It can be thought of as a state of aroused,
attentive focal concentration with a relative suspension
of peripheral awareness (Spiegel and Spiegel 1987). It has
three main components:
1 Absorption, which is a tendency to narrow the focus of
attention and suspend peripheral awareness, such that
the experience of concentration becomes intense and
self-altering (Tellegen and Atkinson 1974).
2 Dissociation, which is a disaggregation of the elements
of consciousness, memory, and identity (Janet 1920;
Hilgard 1970).
3 Suggestibility, which is a heightened responsiveness to
social cues (Orne 1959).
Thus, a hypnotized individual pays maximal attention to
what is at the center of awareness and tends to suspend
65
awareness of the periphery, thereby dissociating, or keep-
ing out consciousness, information that otherwise might
be processed within the continuum of conscious attention.
This ability to suspend peripheral awareness facili-
tates a suspension of critical judgment or evaluation of
new information, thereby rendering the hypnotized person
more suggestible or willing to accept uncritically cues
provided by someone else. This does not mean that the
hypnotized person is deprived of the ability to choose, but
rather that he or she is less likely to be aware of it and to
utilize it to break with the social context. This heightened
suggestibility or receptiveness to social cues, coupled
with a suspension of critical judgment and absorption
during hypnosis, does increase the chances that a witness
can be contaminated by a leading, coercive, or deceptive
hypnotic interrogation. Such a witness could believe the
truth of a false statement, making him or her a more
compelling, but misleading, witness. This phenomenon
has been called the ‘honest liar syndrome’ (Spiegel, H.
1980) to underscore the vulnerability of some highly
hypnotizable individuals to leading interrogation, even
without formal hypnotic induction (Spiegel and Spiegel
1984).
Recent research suggests that spontaneous hypnotic
and dissociative phenomena may especially be elicited
by traumatic experiences either in childhood (Hilgard
1970; Terr 1991) or in adulthood (Spiegel, Hunt, and
Dondershine 1988; Spiegel and Cardena 1991). The
essence of this research is that individuals subjected to
physical trauma may shift into spontaneous hypnotic-
like states during and immediately after such episodes
as a defense against the helplessness and pain engendered
by the experience. It is not uncommon for trauma vic-
tims to feel detached from their own bodies, or to see the
world as unreal or dreamlike (Spiegel and Cardena 1990;
Spiegel and Cardena 1991; Bremner et al. 1992; Marmar
et al. 1994; Butler et al. 1996). Subsequently, such trauma
victims may use the same mental process to keep at bay
both the content and the emotions associated with the
content of traumatic memories (Butler et al. 1996). Thus,

it makes sense that techniques such as hypnosis might be
useful in obtaining access to such warded-off memories.
This is frequently the rationale given for the use of hyp-
nosis to refresh the memories of witnesses and victims,
particularly of violent crimes or other events in which
there would be strong and negative emotion attached to
the recollection and some degree of functional amnesia.
The case law on hypnotically induced testimony has
changed dramatically over the past decades, most notably
in California, where the California Supreme Court ini-
tially took an extreme stand against hypnosis. Strongly
influenced by Diamond’s California Law Review article
(Diamond 1980), the court ruled that the fact that hyp-
nosis had been used to refresh the memory of a witness
or victim of a crime limited the admissibility as well as
the weight of any and all testimony from that person.
Diamond had opined that the use of hypnosis could
produce either confabulation (that is, the making up of
information to please the examiner rather than as true
recall) or ‘concreting’ (becoming artificially convinced of
the veracity of one’s testimony because it had been elicited
under hypnosis). Diamond held the belief that if such
events were possible they should be treated as probable,
and indeed it would be impossible for the court to
determine the extent to which such events had occurred.
In turn, this would mean that such a witness would
be relatively invulnerable to the leveling effect of cross-
examination and would become an artificially compelling
witness.
The California Supreme Court, in People v. Shirley
(1982), therefore decided that a witness or victim who
had undergone hypnotic refreshing of their recollection
could not testify. The ruling was quite appropriate in the
incident case. This was a rather dubious rape prosecution
to begin with in which the victim had met the perpetra-
tor at a bar, invited him to her apartment, spent hours
drinking with him, had sex with him, remained in the
apartment when he left to buy more liquor, and did not
call the police; only hours later did she decide that she
had been sexually assaulted. Her testimony was hypnotic-
ally refreshed by a member of the prosecution team the
night before she was to go on the stand, and her rather
shaky testimony improved. The court held quite rightly
that such testimony should be excluded, but then made it
a far more general rule that would exclude all such testi-
mony. This ruling led to the rather unusual circumstance
that if a defendant were hypnotized, his right to testify
was preserved out of respect for the constitutional right
to mount a defense on one’s own behalf, whereas a wit-
ness or victim in the same case who was hypnotized
about the facts of the crime could not testify.
In subsequent cases, People v. Guerra (1984) and
People v. Hayes (1989), the California Supreme Court has
moderated its position, now confining testimony to pre-
hypnosis recollections. In the Hayes case, two men broke
into an apartment, brutally raped a woman, and mur-
dered her husband. After describing the assailants to the
Hypnosis and dissociation 639
police several times, the police recommended that the
surviving victim use hypnosis to provide further infor-
mation. Some minor new details were added. The defense
appealed the conviction on the grounds of the Shirley
decision. Even though the hypnosis had been conducted
before the Shirley decision had been reached, the defend-
ants claimed that their rights had been violated by the
use of hypnosis. The court, sensibly, was unwilling to dis-
pense with the victim’s testimony, but confined it to pre-
hypnosis recollections.
The U.S. Supreme Court held in Rock v. Arkansas
(1987) that a defendant who had been hypnotized could
nonetheless testify regarding pre-hypnosis recollections.
This case law makes it clear that the use of hypnosis in an
attempt to refresh recollection may allow the other side
to challenge the weight, if not the admissibility, of a wit-
ness’s testimony. Such risks to the involvement of the
witness in the case must be weighed against possible bene-
fits from the use of hypnosis. Situations in which hypno-
sis is most likely to be worth the risk include those in
which the witness’s or victim’s response to a traumatic
experience may be impairing his or her ability to recol-
lect important details, for example, psychogenic amnesia
in the wake of a rape. Hypnosis may be helpful in reversing
the amnesia, although there are estimates that in the
forensic setting hypnosis is capable of uncovering infor-
mation in no more than a third of cases (Spiegel and
Spiegel 1991).
Hypnosis is not especially helpful in simply adding
details in routine situations, especially in view of the chal-
lenges to the credibility of a witness with whom it is used
(Orne et al. 1985). The laboratory literature on hypnosis in
memory enhancement suggests that while a hypnotized
witness may provide more correct information (Dywan
and Bowers 1983), he or she also provides more incorrect
information (Laurence and Perry 1983) and is not good
at detecting his/her poor accuracy (Sheehan and Tilden
1983). It should also be borne in mind that there are
several important ways in which the laboratory studies
cannot apply to the real forensic situation. First, they do
not involve the intense emotional distress of a witness or
victim of a real crime. Second, the import of a correct or
incorrect identification does not carry the weight of an
identification in a real criminal proceeding. Third, the
time between hypnotic interrogation and recall is usually
a matter of hours to weeks at most in laboratory experi-
ments, whereas years may pass between a hypnotic inter-
rogation and testimony in the real-life setting, thereby
diminishing the effects of hypnosis.
In summary, both the advantages and the dangers of
hypnosis have been oversold (Scheflin and Spiegel 1998).
There are situations in which it can help to provide add-
itional information, and there are risks to testimony that
may occur (People v. Shirley 1982; People v. Guerra 1984;
Rock v. Arkansas 1987; People v. Hayes 1989). According to
the California Evidence Code Section 795, a legislative
response to the Shirley decision, the testimony of a witness
640 Special clinical issues in forensic psychiatry
is not inadmissible in a criminal proceeding by reason
of the fact that the witness has previously undergone
hypnosis for the purpose of recalling events that are the
subject of the witness’s testimony, if all of the following
conditions are met:
1 The testimony is limited to those matters which the
witness recalled and related prior to the hypnosis.
2 The substance of the pre-hypnotic memory was pre-
served in written audiotape or videotape form prior
to the hypnosis.
3 The hypnosis was conducted in accordance with all
of the following procedures:
• A written record was made prior to hypnosis doc-
umenting the subject’s description of the event,
and information which was provided to the hypno-
tist concerning the subject matter of the hypnosis.
• The subject gave informed consent to hypnosis.
• The hypnosis session, including the pre- and post-
hypnosis interviews, was videotape-recorded for
subsequent review.
• The hypnosis was performed by a licensed medical
doctor, psychologist, or licensed clinical social
worker, experienced in the use of hypnosis, or
licensed marriage, family, and child counselor cer-
tified by the Board of Behavioral Science Examiners
and independent of and not in the presence of law
enforcement, the prosecution, or the defense.
4a Prior to admission of the testimony, the court holds a
hearing pursuant to Section 402 of the Evidence
Code at which the proponent of the evidence proves
by clear and convincing evidence that the hypnosis
did not so affect the witnesses to render the witness’s
pre-hypnosis recollection unreliable or to substan-
tially impair the ability to cross-examine the witness
concerning the witness’s pre-hypnosis recollection.
At the hearing, each side shall have the right to pres-
ent expert testimony and to cross-examine witnesses.
4b Nothing in this section shall be construed to limit the
ability of a party to attack the credibility of a witness,
or to limit other legal grounds to admit or exclude
the testimony of that witness.
The product of a hypnotically conducted interrogation
of a witness has been held, in most jurisdictions, not to
meet the standard of general reliability and acceptance in
the relevant scientific community (People v. Kelly 1976;
Frye v. United States 1923; Daubert v. Merrell Dow Pharma-
ceuticals 1993; Hess 1999). Under these rules there is
insufficient agreement among relevant professionals and
published scientific evidence that the result of hypnotic
interrogation is sufficiently reliable that it can be gener-
ally accepted for use in court. While the product has not
been accepted, hypnosis has been useful in the process of
uncovering information despite the genuine risks involved.
Dissociative disorders have been defined as a failure in
the usually integrative aspects of memory, identity, and
consciousness (American Psychiatric Association 2000).
This pathological compartmentalization of experience
has been conceptualized as spontaneous, undisciplined
use of self-hypnosis (Bliss 1984; Spiegel and Spiegel 1987).
Furthermore, dissociative disorders have been conceptu-
alized as chronic posttraumatic stress disorders (Spiegel
and Cardena 1990; Butler et al. 1996) since a history of
trauma is commonly reported among patients with many
of the dissociative disorders (Spiegel 1984; Kluft 1987).
A more extreme form of the hypnotic state occurs
spontaneously in individuals with dissociative disorders.
The dissociative disorders are reviewed briefly as they
appear in the fourth edition of the Diagnostic and Statistical
Manual of the American Psychiatric Association (APA
2000). Dissociative amnesia is a time-limited loss of
memory too extensive to be explained by ordinary forget-
fulness, usually following an episode of acute trauma.
Dissociative fugue is a loss of customary identity some-
times associated with adoption of a new identity, fre-
quently accompanied by unexplained travel away from
home. Multiple personality disorder (renamed ‘dissocia-
tive identity disorder’ in DSM-IV) involves the existence
of more than one personality or personality state, each
with its own enduring pattern of memory and identity.
Each of the personalities recurrently takes control of the
person’s behavior, and there is a requirement for amnesia
that is more extensive than that which can be explained
by ordinary forgetfulness. Other major dissociative diag-
noses include depersonalization disorder, which is often
transient and may occur with a variety of other psychi-
atric illnesses, in which there is a sense of detachment
from one’s own body often accompanied by derealiza-
tion, a sense of the world as unreal or dreamlike.
In an acknowledgement of the connection between
traumatic stress and dissociation, a new diagnostic cat-
egory has been introduced into the DSM-IV, namely acute
stress disorder. This defines cases occurring within one
month of a traumatic stressor in which there is stupor,
amnesia, depersonalization, derealization, numbing, or
other dissociative symptoms, as well as one intrusion
symptom such as nightmares or flashbacks, one avoid-
ance symptom, and one hyperarousal symptom, such as
irritability or sleeplessness, and accompanied by distress
and dysfunction (APA 2000). It is meant to provide a
diagnostic category for an acute and severe response dis-
tress that occurs before posttraumatic stress disorder can
occur and involves severe dissociative features. In addi-
tion, there is a diagnostic entity entitled ‘dissociative
trance disorder’ in the appendix to accommodate the
prevalence of dissociative symptoms in non-Western cul-
tures (APA 2000).
Attempts have been made to use the diagnosis of a
dissociative disorder, especially dissociative identity dis-
order (multiple personality disorder), as grounds for a
not guilty by reason of insanity defense in serious crimes
including murder (Aldridge-Morris 1989). In such set-
tings two issues are often confounded. The first is the
veracity of the diagnosis of dissociative identity disorder;

the second is the relevance of that diagnosis to the not
guilty by reason of insanity (NGRI) plea.
Orne and others have made much of the misdiagnosis
of dissociative identity disorder on the basis of the
Hillside Strangler case (Orne et al. 1985; Aldridge-Morris
1989), noting, for example, that there were many signs
that this multiple murderer had read extensively about
the diagnosis, making it seem plausible that he had con-
trived it in the interest of his defense. Kluft (1987) has
pointed out that many patients who genuinely have dis-
sociative identity disorder and are not using the diagno-
sis to facilitate a legal defense likewise read a great deal
about the disorder and would therefore seem suspect
when they are not. Many defendants attempt to use other
diagnoses such as schizophrenia as part of an NGRI
defense, and yet no one claims that this practice raises
doubts about the veracity of the diagnosis of schizophre-
nia. The more serious question is the extent to which a
true diagnosis of a dissociative disorder does indeed con-
stitute grounds for an NGRI defense. This defense can be
conceptualized as the exception that proves the rule. In
order to hold a defendant legally culpable, the law makes
certain assumptions regarding the mens rea, the pre-
sumption that the perpetrator had the capacity and did
indeed plan to conduct a criminal act, such as a murder,
with malice aforethought. The law holds in the rather
conservative M’Naghten rule that if a defendant is not
able to understand the meaning and nature of his or her
act, and to know that it is wrong, he or she cannot be
held to the same standard and be considered guilty of
premeditated murder.
Dissociative identity disorder provides many such
temptations. Since personality A may claim – as did the
Hillside Strangler – that he had no idea that personality
B had taken over his body and committed the crimes in
question, there is the possibility of a claim that personal-
ity A was not able to appreciate the meaning and nature
of his acts, even though he might know that they were
wrong. The judge in the Hillside Strangler case was in no
mood for such arguments and opined that he was going
to take the personality that committed the crime, put
him in jail, and throw away the key and let the other per-
sonalities do what they wished. Having reviewed several
cases like this, including one in which an NGRI claim
on the basis of dissociation was upheld by a California
court, I would recommend analysis of this problem in
the following manner. First, does the defendant meet
diagnostic criteria for a dissociative disorder? If so, does
the personality or personality state, who was in control at
the time the crime was committed, meet the M’Naghten
criteria? That is, did that personality know the meaning
and nature of his act and know that it was wrong? If so,
the patient may have a dissociative or personality dis-
order, but does not meet NGRI criteria. This leaves open
the possibility that there may be situations in which a
patient with a dissociative disorder might also meet
NGRI criteria, for example, if a child alter is out at the
Hypnosis and dissociation 641
time the crime was committed. This should be an exceed-
ingly rare situation.
The mere presence of a dissociative disorder, even an
extreme one like dissociative identity disorder, would not
be per se grounds for an NGRI defense. To do otherwise
would seem to establish a rather dangerous precedent in
which any patient with a dissociative disorder could
claim amnesia and therefore lack of criminal responsibil-
ity for crimes. This fails to take into account the fluctuat-
ing and reversible nature of dissociation. Information is
kept out of consciousness but is potentially available to
consciousness, even in a dissociated state. Dissociative
amnesia can usually be reversed with techniques such as
hypnosis, meaning that the information was potentially
available to consciousness even if not actually present
during a crime. Just as failure to be aware of, or think
through, the consequences of a criminal act is not a
defense, failure to access dissociated aspects of the per-
sonality is not per se a defense either, and thus the
M’Naghten standard works fairly well with people who
have dissociative disorders because it narrows the focus
of the question asked to one that can be answered even if
only a personality fragment is in charge.
Thus, dissociative disorders are an intriguing, spontan-
eous manifestation of the intersection between an altered
mental state, hypnosis, and trauma. It is not uncommon
for the victims of trauma to undergo spontaneous disso-
ciative experiences (Spiegel and Cardena 1991). Rarely,
the perpetrators of trauma claim dissociation as a defense,
but it is not common that such a defense is either appro-
priate or effective.
CONCLUSION
Hypnosis is a fascinating phenomenon that involves a
normal process of focusing of attention, with constric-
tion of peripheral awareness and responsiveness to social
cues. Hypnotic and related dissociative phenomena are
often mobilized in stressful and traumatic situations, and
thus are at times of concern in cases involving psycho-
logical or physical trauma. Both the dangers and benefits
of hypnosis in the forensic setting have been exaggerated.
Our current ability to measure hypnotic responsiveness
increases the empirical basis for evaluating the role and
usefulness of hypnosis in the forensic setting. Hypnosis
can assist in managing trauma-related problems, and can
intensify social influence on witnesses and victims. It
deserves a measured and carefully evaluated place in legal
process.
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Amnesia, amytal interviews and polygraphy
JOHN BRADFORD AND VICTORIA L. HARRIS
INTRODUCTION
Despite the advances that have been made in research on
memory, there remains a major problem in understand-
ing amnesia. This is even more complex when amnesia is
evaluated in a forensic psychiatric setting. There is a lack
of clinical studies of amnesia in forensic psychiatric set-
tings, and as a result the incidence of organic amnesia
(amnestic disorder) and psychogenic amnesia (dissocia-
tive amnesia) is not clear. Malingered amnesia is also
seen frequently in forensic settings, as well as being the
arguably most common manifestation of all malinger-
ing. The true incidence of amnesia in forensic settings, in
specific clinical situations such as homicide, and in many
other instances is poorly understood or there is insuffi-
cient research available to provide an expert opinion. It is
also very difficult to design studies that can answer some
of these complex issues.
Research into the biological aspects of memory has
shown that it is fundamental to all human cognitive
functioning. It is recognized that there are three complex
components to memory: (i) registration of information;
(ii) storage by reinforcement; and (iii) retrieval. Personality
development is based mostly on life experiences that are
memorized and learned. As there are repeated experi-
ences that occur in a dynamic fashion throughout life,
the processes of memory and learning are integrated.
MEMORY AND BRAIN STRUCTURE
From a biological perspective, it is believed that memory
results from a structural neuronal change (Squire and
Paller 2000), with the memory trace being laid down
through changes in the neuronal architecture of the brain.
Although there are anatomical areas of the brain associ-
ated with memory, there does not appear to be any single
cortical area involved (Squire and Paller 2000). Further, the
memory traces for individual sensory experiences appear
to be separate with visual, auditory, tactile, emotional,
spatial, and temporal sensation stored separately (Squire
66
and Paller 2000). The study of memory impairment has
been very useful in understanding the organization of
memory in the brain. The medial temporal lobe has a
number of structures involved in memory. In this area,
there is the hippocampus as well as the entorhinal cortex,
the perirhinal cortex and the parahippocampal cortex.
The medial temporal lobe has centers for both memory
and emotion (the amygdala).
The key anatomic regions for registration and storage
of memory traces are in the cortical area often referred to
as the Papez circuit. The fornix connects the hippocam-
pus to the mamillary bodies, which in turn connect to
the anterior nuclei of the thalamus by the mamillothala-
mic tract. The anterior thalamic nuclei project to the cin-
gulate gyri, which then connect with the hippocampus,
completing the circuit. The memory system is primarily
cholinergic. Verbal memory is most often associated with
the left medial temporal lobe. The right medial temporal
lobe is associated with visual memory (Netter 1992).
AMNESTIC DISORDER AND
DISSOCIATIVE AMNESIA
In this brief review, the focus is on the relationship of
amnesia to clinical forensic psychiatric practice. In com-
mon parlance, amnesia is used generally to describe any
loss or impairment of memory. However, psychiatrists
distinguish between types of amnesia, based on etiology.
The DSM-IV-TR recognizes organic amnesia and psy-
chogenic amnesia. Organic amnesia is now defined as
one of the broad group of cognitive disorders in the
Diagnostic and Statistical Manual of Mental Disorders
(DSM) as amnestic disorder. Amnestic disorders are
defined in DSM IV as amnestic disorder due to a general
medical condition; substance-induced persisting amnes-
tic disorder and amnestic disorder not otherwise speci-
fied. The DSM IV definition of amnestic disorder is:
Individuals with an amnestic disorder are impaired in
their ability to learn new information or are unable to
recall previously learned information or past events
644 Special clinical issues in forensic psychiatry
(Criterion A). The memory disturbance must be suffi-
ciently severe to cause marked impairment in social
or occupational impairment and must represent a
significant decline from a previous level of function-
ing (Criterion B). The memory disturbance must not
occur exclusively during the course of a delirium or a
dementia (Criterion C). (DSM IV 1994, p. 156)
The acquired impaired ability to learn and recall
new information is a symptom of an underlying acute or
chronic brain disorder, medical disorders, substance use,
or other disorders. The prototype of amnestic disorder
due to general medical condition is Korsakoff ’s syn-
drome, seen in chronic alcoholism and other vitamin
B12-deficient states. There is an extensive clinical and
research literature on this type of amnesia (Forrest 1987;
Squire 1987; Shimamura and Gershberg 1992; Hassing
et al. 1999). The amnesia can be either anterograde or
retrograde, and this has various degrees of clinical
significance.
Psychogenic amnesia (Abeles and Schilder 1935) is
known as dissociative amnesia in DSM IV, and defined
therein as:
The essential feature of dissociative amnesia is an
inability to recall important personal information,
usually of a traumatic or stressful nature, that is too
extensive to be explained by normal forgetfulness
(Criterion A). This disorder involves a reversible
memory impairment in which memories of personal
experience cannot be retrieved in a verbal form (or,
if temporarily retrieved, cannot be wholly retained
in consciousness). This disturbance does not occur
exclusively during the course of dissociative identity
disorder, dissociative fugue, posttraumatic stress dis-
order, acute distress disorder, or somatization disor-
der and is not due to the direct physiological effects
of a substance or a neurological or other medical
condition (Criterion B). The symptoms must cause
clinically significant distress or impairment in social,
occupational, or other important areas of functioning
(Criterion C). (DSM IV 1994, p. 478)
Dissociative amnesia is very common in clinical forensic
psychiatric settings and is mostly retrograde amnesia of
various lengths of time prior to the precipitating event.
The precipitating event is most commonly the alleged
crime committed by the individual undergoing the
forensic psychiatric assessment. The amnesia could be
dissociative or malingered in this setting. Further, as
dissociative and malingered amnesia are not caused by
underlying brain pathology, the ability to recall the
events of the amnestic period is a theoretical possibility.
As there is no underlying neurological deficit, antero-
grade amnesia in this type of case is extremely rare.
Although the type of amnesia encountered in clinical
forensic settings is typically regarded as being psychogenic,
the clinician must be vigilant as there are often mixed
dissociative amnesias and amnestic disorder. There is a
strong association between crimes of violence and acute
states of intoxication. It is the violent crime that is most
likely to be linked with dissociative amnesia as the indi-
vidual dissociates from the traumatic event, usually the
crime that he or she has just committed (Schacter 1985).
Similarly, the motivation for malingering amnesia is also
the highest under these circumstances as the individual
hopes to escape criminal responsibility. Dissociative
amnesia is also lacking comprehensive research in both
forensic as well as clinical settings (Kluft 1988).
Amnesia results as a failure of some component of the
memory process. In medical terms and in a simplified
form it can be classified in the following way:
1 Failure of registration: amnesia secondary to delirium
(e.g., epilepsy, concussion, intoxication).
2 Failure of retention: amnestic disorder (e.g., Korsakoff’s
psychosis).
3 Failure of recall: dissociative amnesia, malingered
amnesia, and amnestic disorder.
There is a high degree of amnesia in a forensic psychi-
atric population. The condition is especially common in
homicide, where between 40 per cent and 70 per cent of
offenders have it to some degree (Hopwood and Snell
1931; O’Connell 1960; Bradford and Smith 1979; Lipian
and Mills 2000). Dissociative amnesia is often present
with an underlying brain disorder; this, in theory, makes
it possible to differentiate amnesia secondary to brain
disorder or substance use disorder from dissociative
amnesia, though in practical terms it is very difficult to
distinguish between the two. When it comes to differen-
tiating dissociative amnesia from malingered amnesia,
it is almost impossible at times. It is also very difficult –
if not impossible – to test the validity of what is recalled
once the psychogenic amnesia has been treated. One
means of treating dissociative amnesia is with drug-
assisted interviews (sodium amytal or benzodiazepines),
though hypnosis can also be used to alleviate some
symptoms and to facilitate recall. Group and individual
psychotherapy may also be used. Polygraphy is theoret-
ically useful in differentiating alcohol- or drug-induced
amnesia from psychogenic or malingered amnesia (Lynch
and Bradford 1980).
THE AMYTAL INTERVIEW: BACKGROUND
The Amytal interview was introduced in the 1930s
as a treatment for patients suffering from psychosis
(Bleckwenn 1930; Bleckwenn 1931). Its use in other con-
ditions was subsequently nurtured by Lindemann (1932).
The Amytal interview has been used in non-psychotic
persons and has been mostly used as a diagnostic tool
in catatonia, hysterical states usually with muteness and
various stupors (Stoudemire 1982; Tollefson 1982). It is
also used in abreactions and to recover memory in disso-
ciative amnesia and fugue states (Perry and Jacobs 1982;

Steinberg 2000), the latter being the most controversial
application. Herman (1938) first described its use in this
condition when he reported on a group of six patients
that would not respond to interview techniques or to
hypnosis, but responded dramatically to an Amytal
interview within minutes.
Sargent and Slater (1940) also reported the rapid
recovery of memory with Amytal in troops acutely dis-
tressed by battle conditions. In fact, they claimed it to be
more effective than hypnosis when measured by the rate
of return to battle. In another study, Sargent and Slater
(1941) described one-third of a group of hospitalized
patients with psychogenic amnesia in World War II as
malingering. In over 200 patients, Lambert and Rees
(1944) found that the Amytal interview was the best
method of recovering memory when compared with
suggestion and hypnosis, producing a success rate of
82 per cent.
A double-blind, placebo-controlled study on Amytal
interviewing was completed by Dysken et al. (1979b),
though these authors had some reservations on the use and
effectiveness of the procedure. They were supportive of the
use of Amytal interviews in catatonia to aid in the diag-
nosis of intellectual impairment and to reduce the nega-
tive affect related to stress. The main issue in the recovery
of memories in psychogenic amnesia and fugue states is
that an element of suggestion is present, and this confabu-
lates the memories and makes the recall unreliable.
The value of Amytal interviews for clinical purposes is
acceptable, and recent studies with sodium amytal have
used intracarotid infusion to examine left hemisphere
speech and memory function in right-handed persons.
This is carried out preoperatively in cases of temporal
epilepsy. Fackler, Anfinson, and Rand (1997) conducted a
study of serial amytal interviews in a variety of clinical
conditions and concluded that it was a useful clinical and
therapeutic tool. Ahern et al. (1993) reported that the
intracarotid administration of sodium amytal precipitated
the various personalities in a case of dissociative identity
disorder and temporolimbic epilepsy. A recent literature
review by Kavirajan (1999) which detailed seven con-
trolled amytal studies against placebo referred to only
one study that was superior to placebo in promoting ver-
balization and alertness.
The use of Amytal as an adjunct to psychotherapy is
known as narcotherapy (Naples and Hackett 1978) and
there are four basic techniques:
1 Simple abreaction: the recall of suppressed memories
with relief of associated negative affect.
2 Narcosuggestion: treatment with the use of suggestion
while the patient is under the influence of Amytal.
3 Narcoanalysis: abreaction accompanied by posthyp-
notic suggestion.
4 Narcosynthesis: repressed material and abreaction
forming part of a more comprehensive psychothera-
peutic approach where the repressed memories
Amnesia, amytal interviews and polygraphy 645
obtained in the Amytal interview are integrated in the
ongoing psychotherapeutic sessions.
THE AMYTAL INTERVIEW: METHODOLOGY
The usual procedure is to have the patient in a slightly
darkened quiet room on a couch or chair that allows him
or her to recline. As part of the preparation, fully informed
consent should be obtained and the individual must also
specifically give consent to the audio taping or video-
taping of the procedure. The patient must be relaxed, and
a suggestion is given by the person conducting the inter-
view that the medication will allow the patient to relax
and to remember the repressed memories and to talk
about them.
A butterfly needle or narrow-bore scalp vein needle is
inserted into a superficial vein, usually on the hand, and
a solution of 5 per cent Amytal (500 mg Amytal in 10 ml
of sterile water) is injected at a rate of 0.5 ml/min or
25 mg/min, taking care not to put the patient to sleep or
to precipitate respiratory depression. The use of an intra-
venous drip would be preferred for several reasons:
• in the rare circumstance where an individual becomes
excited or agitated with the administration of
barbiturates;
• as a direct result of the physician’s hand movements,
the individual is forewarned concerning the injection
of the drug; and
• should circulatory access be required for emergency
resuscitation.
Amytal can be easily administered through a ‘piggy-back’
line, or second port. As all barbiturates cause respiratory
depression, the physician must inquire initially about any
other medication that the patient might currently be tak-
ing, and the presence of any other factors that could pre-
cipitate or potentiate respiratory depression. In addition,
resuscitation equipment to deal with respiratory depres-
sion must be readily available to assist with ventilation
if this becomes necessary. All barbiturates depress the
respiratory drive and cause hepatic enzyme induction,
thereby having the potential for serious drug interactions.
It is recommended that initial discussions focus on
emotionally neutral topics. The topic sets can be gently
shifted to more emotionally charged areas, eventually
reaching the specific topic of inquiry (Piper 1993). The
sedated patient is engaged with the suggestion that he or
she either will remember or will be able to talk about the
suppressed memories. While the infusion is continuing,
the physician must look for rapid lateral nystagmus,
drowsiness, and slight slurring of speech, since the desired
sedation threshold occurs at this point. Normally, a dose
of between 150 and 350 mg Amytal is required to achieve
this optimum state, after which the level of sedation can
be maintained with about 0.5 mg of Amytal being given
every 5 minutes.
646 Special clinical issues in forensic psychiatry
The interview itself has no specialized technique, except
that a degree of suggestion of relaxation is maintained.
The amnesia and any traumatic material are approached
slowly with the suggestion of relaxation and recovery of
any repressed memories continuing all the time. The
interview is terminated when the goals of the session have
been obtained. The patient must be observed continually
during the post-interview period for at least 30 minutes
in order to ensure that recovery has occurred. The patient’s
respiration should be monitored during this time, and
they should be made to lay until they are ready to walk
unaided without risk of injury (Perry and Jacobs 1982).
Although not specifically referred to in the current litera-
ture, a prudent physician would most likely strongly
dissuade an individual from driving within 4–6 hours of
intravenous administration of the barbiturate.
AMYTAL INTERVIEW, HYPNOSIS AND
POLYGRAPHY
The combination of hypnosis and Amytal – known as
narcoanalysis – has been described by Horsley (1936) as a
seven-stage technique. As even more suggestion is involved
than with the Amytal interview alone, the same problems
of credibility of recall remain. Redlich et al. (1951), while
following-up the earlier investigations of Gerson and
Victoroff (1948), attempted to assess the credibility of
recalled memories in an experiment which aimed at
determining whether subjects could maintain ‘artificial
lies’ while undergoing an Amytal interview. The conclu-
sion was that in normal subjects Amytal had no effect on
the ability to conceal the truth. In the many uncontrolled
studies that have been completed, Amytal interviewing
has been consistently described as a useful technique,
although expectations of outcome from the subject with
regard to the drug being used or the expertise of the
interviewer are important predictors of success (Dysken
et al. 1979a).
In order to study amnesia in a forensic setting, poly-
graphy or a lie detection technique was used to evaluate
alcohol- and drug-induced amnesia as opposed to psy-
chogenic amnesia that was either malingered or dissocia-
tive in origin (Lynch and Bradford 1980). Although the
question of amnesic states and their assessment and
treatment remains poorly understood, the use of Amytal
interviews, hypnosis, and polygraphy has the potential of
being a valuable clinical tool in this area. However, none
of these techniques is free of suggestion and therefore the
credibility of recalled memories cannot be guaranteed.
As such, they have no place in the courtroom (Council
on Scientific Affairs, AMA 1985).
Despite the opinion offered by the American Medical
Association, guidelines to gather information under hyp-
nosis in preparation for trial testimony have been estab-
lished (State v. Hurd 1980). The New Jersey State Supreme
Court offered the following guidelines to safeguard the
integrity and accuracy of the recovered information:
• the interview be conducted by a trained psychologist
or psychiatrist;
• the qualified individual be independent and not respon-
sible to the prosecutor, investigators, or defense;
• written information from law enforcement personnel
be reviewed;
• prior to the hypnosis, a written account of the alleged
events be obtained;
• all contact with the individual be recorded (preferably
with audio and video); and
• only the hypnotist and subject should be in the room
during the interview.
Importantly, no opinion was offered on what constitutes
sufficient or necessary training. Notwithstanding this
decision, other State Supreme Courts were to later opine
on the issue of admissibility of hypnotically refreshed
memories. In the opinion from People v. Shirley (1982),
all matters relating to the alleged event from the victim’s
memory were deemed inadmissible from the time of the
hypnotic session. That is, all hypnotically refreshed testi-
mony was to be excluded per se, except where put forth
by the defense on behalf of the accused. In Rock v. Arkansas
(1987), the issue before the court was the relative impor-
tance of the examiner’s notes from interview(s) with the
defendant prior to the hypnotic session undertaken to
refresh memory of a recent homicide. While the court
did not comment specifically on this issue, it was found
that the Arkansas per se rule excludes the introduction
of all hypnotically refreshed testimony. Such testimony
was found to infringe on the Fifth, Sixth and Fourteenth
Constitutional Amendments. Specifically, the court noted
that refreshed memories would have to be subject to the
same level of verification as [easily retrieved] memories.
Amytal interviews, non-chemically induced hypnotic
states and polygraphy all share the same problem of lack
of widely accepted methodology and interpretation
(MacDonald 1955). The accuracy of information obtained
during hypnotic states has three main potential limitations:
1 It is easily possible to lie while under the effects of
barbiturates.
2 Hypnotics are well known to increase an individual’s
suggestibility.
3 The cognitive effects of the drug are such that infor-
mation obtained while under the effects of the drug
is likely distorted and therefore inherently unreliable
(Piper 1993).
As such, it is unlikely that the process of refreshing mem-
ories and therefore the information obtained will ever
reach the level of ‘scientific acceptability’ necessary to
pass the Frye Test for admissibility of scientific evidence
(Frye v. U.S. 1923).
Ironically, for the past 75 years, polygraphy has been a
main topic of legal controversy about the admissibility of

scientific evidence. The 1923 Frye precedent arose from
a question about the admissibility of an early version of
the currently used polygraph test. Legal admissibility was
conditioned on the acceptance of a technique by the rele-
vant scientific community. However, the limited scope
of admissibility of scientific evidence was significantly
expanded in 1993 when the U.S. Supreme Court rendered
a decision in Daubert v. Merrell Dow Pharmaceuticals,
Inc. (1993). While admissibility of scientific evidence
was not seen to rest upon general acceptance by a rele-
vant scientific community, trial judges were assigned to
‘… ensure that an expert’s testimony both rests on a reli-
able and relevant foundation … ’ (Daubert v. Merrell Dow
Pharmaceuticals, Inc. 1993, p. 2790). As foreshadowed
by Chief Justice Rehnquist in his cautionary opinion1 in
Daubert, Courts must now struggle with complex valid-
ity and reliability arguments concerning scientific evi-
dence. Certainly the U.S. Supreme Court clearly stated
that the District Court did not abuse its discretion in
excluding expert testimony concerning epidemiological
studies in a case involving exposure to polychlorinated
biphenyls and the alleged causal association with cancer
(General Electric v. Joiner 1997). In short, the epidemi-
ological studies were found to be potentially inaccurate
and misleading when considering an individual member
of a particular population. The implications of this deci-
sion increase the likelihood that while admissibility of
polygraphy may continue to be litigated, the procedure is
unlikely to be found reliable by triers of fact.
Polygraphic technique
The polygraph technique is usually referred to as the ‘lie
detector,’ but it has also been referred to in the same
context as other ‘lie detection techniques’ such as narco-
analysis, hypnosis, and voice stress analysis (psychological
stress evaluation) (Hollien, Geison, and Hicks 1987).
The history of the modern polygraph dates back to
Lombroso who, in 1895, experimented with a machine
which recorded blood pressure and pulse in order to detect
deception in criminals. The machine was called a hydro-
sphygmograph, and the psychologist Marston used a simi-
lar device during World War I in cases of espionage to
detect deception. In 1921, Larson included the monitor-
ing of respiration rate, whilst in 1939 Keeler added skin
conductance to the array of tests. This was the final devel-
opment of what constitutes the modern-day polygraph.
There are two schools of thought as to the reliability
of the polygraph in detecting deception. One school sees
it as a reliable technique and reports that studies have
shown it to be about 90 per cent reliable in detecting
deception. The other school sees the polygraph as
1
‘I defer to no one in my confidence in federal judges … . But I do
not think [we should impose on them] … the obligation or the
authority to become amateur scientists’ (Daubert v. Merrell Dow
Pharmaceuticals, Inc. 1993, pp. 600–1).
Amnesia, amytal interviews and polygraphy 647
unreliable and based on assumptions that are flawed
scientifically (Iacano 2001).
Use of polygraphy
The polygraph today is used by law enforcement agencies
throughout the United States, including the Federal
Bureau of Investigation as well as various intelligence
agencies in order to ensure the loyalty of their staff. It is
also being used by some companies for pre-employment
screening.
As a result of the Frye decision, most jurisdictions
maintain that polygraphy is inadmissible in any criminal
trial based on a stare decisis position (which means ‘let the
precedent stand’). The Fifth Amendment prevents any
forcing of a defendant to submit to a polygraph examina-
tion, though under certain circumstances the prosecution
and the defense may agree to submit a polygraph exami-
nation by a prior stipulation agreed to by both parties. In
addition, the Supreme Court has ruled (United States v.
Scheffer 1998) that a defendant’s Constitutional rights
were not infringed when a military court refused to
admit polygraph results. A fundamental issue was the
reliability of the testing procedure itself, the results, and
the interpretations. In the decision for the majority,
Justice Thomas noted: ‘there is simply no consensus that
polygraph evidence is reliable.’ In a concurring opinion,
Justice Kennedy noted that ‘the continuing, good-faith
disagreement among experts and courts on the subject
of polygraph reliability counsels against our invalidating
a per se exclusion.’ However, the rationale underlying
the per se exclusion of polygraph evidence was reopened
when the Fifth Circuit Court of Appeals reversed and
remanded a lower court decision. In United States v.
Posado, the defendants sought to admit polygraph evi-
dence in the pre-trial phase which would corroborate
their version of events preceding their arrest for posses-
sion of cocaine. At ultimate issue was the admissibility of
the defendants’ luggage allegedly containing the cocaine.
The Court noted: ‘Our precedent, with few variations,
has unequivocally held that polygraph evidence is inad-
missible in a federal court for any purpose’ (United States
v. Posado 1995). However, given the ongoing debate con-
cerning reliability, the Court held that the per se exclu-
sion of the evidence did not survive the ruling held
in Daubert. The 1997 ruling in United States v. Cordoba
addressed the issue of sufficient examination of the relia-
bility of the polygraph prior to admission during trial.
The defendant sought to admit the results of an unstipu-
lated polygraph examination which supported his con-
tention that he was innocent of knowledge that he was
driving a van containing 300 kilograms of cocaine. The
district court ‘held a two-day evidentiary hearing, held
extensive briefing, and reviewed numerous affidavits and
reports supplied by the parties’ (United States v. Cordoba
1999). It was found that the polygraph test was inadmis-
sible both under the Federal Rules of Evidence 702, and
648 Special clinical issues in forensic psychiatry
Rule 403. The former codifies the Daubert and the latter
requires that the probative value of the evidence out-
weigh its prejudicial effects. In the decision upheld by the
Supreme Court, the District Court found that polygraphy
failed to meet the Daubert standard, that its ‘questionable
reliability’ undermines its relevance, and that the proba-
tive value was outweighed by its prejudicial value.
In brief, the polygraph works on the principle that
deceptive subjects use physiological and emotional energy
to lie. It is this physiological stress to the body, mani-
fested by autonomic hyperarousal, which is measured by
the polygraph. The actual physiological measures are res-
piration, electrodermal or galvanic skin response, blood
pressure and pulse rate, and these are interpreted by the
polygraph examiner. The test procedure is carried out in
three phases:
• Phase 1: the pre-test interview.
• Phase 2: the measurement of the physiological arousal
to various questions.
• Phase 3: the post-test interview.
There is considerable preparation prior to the adminis-
tration of the test. In criminal proceedings, this would be
a review of the summary of the facts against the defend-
ant taken from police reports and witness statements.
The examiner would prepare test questions based on this
information. In general, these relevant questions focus on
a single incident and narrowly defined facts. The pre-test
interview also involves an explanation of the test, and a
discussion about validity. In addition, control questions
are developed: these are not related to the alleged offense
but are related to similar behavior such as minor mis-
deeds from a person’s past. Irrelevant questions are those
that can only be answered truthfully: for example, ‘are
you sitting on a chair?’ Usually, ten questions are pre-
pared and are asked with 10–20 seconds between each
one. The questions are usually repeated three times. The
interpretation of the tracing provides the basis to whether
deception has occurred.
Narcoanalysis using drugs such as sodium amytal,
sodium pentothal, or a benzodiazepine (e.g., midazolam)
have also been used for lie detection. All courts have
refused to admit any testimony established by narco-
analysis based on a case from New Jersey using sodium
amytal (New Jersey v. Pitts 1989).
Psychological stress evaluation
Psychological stress evaluation or voice stress analysis
was developed about forty years ago, and is a technique
which measures changes in the voiceprint in response to
a series of test questions. It is not admissible in any court
proceedings although it is used by some police enforce-
ment agencies and by intelligence services. A technique
known as brain wave fingerprinting was developed in the
mid-1990s. The technique is intended to detect informa-
tion related to events a subject has experienced, despite
the subject’s efforts to conceal that knowledge. The accur-
acy and reliability of the memory and encoding was found
to be highest in the P300 wave region of the electro-
encephalogram. The findings are based on a theory that
when people tell the truth or lie different regions of the
cerebral cortex are activated (Farwell and Smith 2001).
Scientific validity of polygraph testing
The scientific validity of polygraph testing was the sub-
ject of a technical review in 1983 for the U.S. Congress
which was conducted by The Office of Technology
Assessment of the government of the United States.
By 1983, there had been a dramatic increase in the use
of polygraph tests by the U.S. federal government,
with approximately 23 000 such examinations being con-
ducted each year, compared with about 8000 in 1973.
Except for the security services, more than 90 per cent of
the polygraph tests conducted in 1982 were for criminal
investigations. The National Security Agency and the
Central Intelligence Agency used the polygraph for pre-
employment security screening of personnel, for enhanced
security clearance, and also periodically to ensure
ongoing security clearance for highly classified informa-
tion. The conclusion of this review was that there is some
evidence for the validity of polygraph testing in criminal
investigations, but there is very little scientific support
for its validity in screening situations of any type
(Scientific Validity of Polygraphy Testing 1983; Saxe and
Gen-Shakhar 1999).
The most significant criticism of the validity of the
polygraph technique relates to a lack of any scientific
basis of the technique itself (Horvath 1997). First, there is
a lack of standardization in the procedure which, in gen-
eral, combines interview techniques with physiological
recording. The procedure is neither standardized in the
nature of interview, nor in the development of the ques-
tions and how the results of the test are scored. It is quite
clear that there is no specific or characteristic physio-
logical response to a lie. The technique therefore depends
on comparing a response to a relevant question to that
for another question. The first polygraph tests compared
relevant questions with irrelevant questions, for example ‘Is
today Saturday?’ and ‘Is your name John?’ This technique
is flawed because the relevant question, which is usually
emotionally charged, is likely to be more physiologically
arousing than the irrelevant one. In fact, arguably inno-
cent non-violent individuals, when exposed to a question
that involved violence, show a greater physiological
response than does a person who was in fact exposed to
violence. This meant the early testing was biased against
innocent individuals (Horowitz et al. 1997).
The Control Question technique was introduced to
counter the problems with the Relevant/Irrelevant
Question technique, but also has significant problems.
The control questions are intended to elicit a lie by posing
a question of a minor breach of the law such as, ‘Have you

ever lied to anyone in authority?’ The theory of the Control
Question Technique is that this would provide a sample
of a physiological reaction to a lie in the subject being
tested. The theory assumes that people have lied to people
in authority, and therefore gives an idea of what a physio-
logical reaction to lies looks like. The theory is that inno-
cent persons, when answering ‘No’ to the relevant question
will show no arousal and are answering it truthfully.
In theory, an innocent person would be more concerned
about their response to the control question and so would
show a greater physiological response. Individuals who
were considered deceptive are supposed to show a larger
response to the relevant questions, and are most likely
lying to both relevant and control questions. It is this
hypothetical difference that is interpreted as deception.
The problem with this theory is that it is based on
assumptions that have to be valid in order for the theory
itself to have any validity. The first assumption is that
innocent individuals would be more responsive to the
control questions and less responsive to relevant questions.
The second assumption is that guilty or deceptive per-
sons would respond more strongly to the relevant ques-
tion because it would carry a higher emotional significance
to them. There is a considerable scientific literature that
shows these assumptions to be problematic. In practice,
what does occur is that individuals based on the inter-
pretation of the test tend to confess at the post-test inter-
view. The problem remains however that the polygraph
using the Control Question Technique is based on assump-
tions that are not scientifically valid, and so it is biased
against innocent individuals. Moreover, it can be beaten
by simply artificially augmenting responses to control
questions.
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Geriatric psychiatry and the law
DANIEL J. SPREHE
The rapid growth of geriatric psychiatry is due as much
to the ‘graying of America’ as it is to the growth of science
of geriatrics. The U.S. Bureau of the Census states that in
1945 America’s young outnumbered the old by almost
three to one; by 2025, the old will outnumber the young
(using the definition of the elderly as anyone past age
sixty years and using the definition of the young as ages
zero to nineteen years). Pervasive ageism is one of the ills
of an American society that emphasizes youth and beauty.
The Gray Panthers and the American Association of
Retired Persons (AARP) have been successful in sensitiz-
ing many people to this problem and combating the per-
ception of the elderly as feeble and demented. Actually,
the mentally ill elderly comprise only 20 per cent of the
people over sixty-five years of age, or around five million
individuals. They are still a minority among their aged
peers. Most people past the age of sixty years are cogni-
tively intact and not depressed.
There are a number of misconceptions about the elderly
(Palmore 1977). Old people are generally just as happy as
other age groups; older workers are as effective as younger
ones; old people can change, adapt, and learn new things;
most old people do not report being bored; and about 80
per cent are sufficiently healthy to engage in their normal
activities.
Old people react more slowly in psychomotor tests
and take longer to learn something new, but there are no
data proving that mental deterioration is a normal aspect
of aging. Between 5 and 10 per cent of old people suffer
from dementing illness using the DSM-III criteria of loss
of intellectual abilities, memory impairment, impaired
abstract thinking, impaired judgment or other disturbance
of higher cortical function such as aphasia, apraxia, or
agnosia (American Psychiatric Association 1987, p. 107).
The severely demented patient is seldom a problem for
the expert witness in the legal arena. However, moderate
dementia frequently triggers a legal inquiry into the mental
status of the elderly person requiring a careful evaluation.
In 1994–95, of the age 65-plus population, 14 per cent
had difficulty with Activities of Daily Living (dressing,
eating, etc.) and 21 per cent, with Instrumental Activities
67
of Daily Living (taking medication, shopping, etc.). Of
the age 85-plus population, 27.5 per cent had difficulties
with ADLs, and 40.4 per cent with ADDLES (The U.S.
Bureau of the Census and the National Center for Health
Statistics, Washington, DC).
THE GERIATRIC FORENSIC EXAMINATION
The most important test of early and moderate dementia
is the mental status examination by a trained psychiatrist.
The computed tomography (CT) scan and the electro-
encephalogram (EEG) need not be routine examinations
in a work-up for suspected dementia, particularly in long-
standing, gradually progressive dementia with no focal
findings. However, imaging should certainly be performed
when the history of cognitive impairment involves: (i)
abrupt onset or rapid deterioration (weeks or months,
as opposed to years); (ii) a fluctuating or abnormal state
of consciousness; or (iii) focal deficiencies or any other
unusual or puzzling facets to the presentation. These are
the patients most likely to have reversible dementia,
delirium, or pseudodementia. Neuropsychological testing,
while helpful in delineating cognitive impairments, does
not directly address the question to be answered in court.
Test instruments are a way of quantifying impairment
but do not address the important issue of incapacity. The
forensic psychiatric examination of the elderly is almost
always focused on some aspect of mental incapacity.
There are a number of psychological aspects to aging
that present special interview problems. They include:
• reticence regarding personal money or financial affairs;
• reticence about relationships with children and family;
• strongly held political or religious views;
• denial of death; and
• fear of abandonment by loved ones, which includes the
fear of nursing homes.
All these factors and others make the aged person some-
what guarded and standoffish, and present a problem
652 Special clinical issues in forensic psychiatry
in achieving rapport to carry out a proper psychiatric
examination.
The first axiom of the psychiatrist who is examining
an elderly person for legal purposes should be that
advanced age alone does not equate with incompetence.
Eccentricity itself certainly does not represent incompe-
tency or incapacity. The aged do have an image problem,
and this may create anger and distancing between them
and younger generations. Their body image changes as
they develop a shortened, stooped stature and posture,
dental problems, skin problems, aches and pains, and
diminished sensory functions. Hearing and visual impair-
ments are most frustrating to the aged whose minds may
well stay quite clear. Psychopathology is frequently the
first sign of severe physical illness in the elderly and, like-
wise, masked and atypical depressions are frequently
seen first with somatic symptoms.
The interviewing psychiatrist must be aware of aberra-
tions of self-psychology that may be encountered in the
elderly, including:
• exquisite sensitivity to perceived slights and insults;
• reactive anger and rage and withdrawal or depression
in response to disappointment or rejection (experi-
enced as a narcissistic injury);
• wide-based vacillations in self-esteem;
• a propensity to self-consciousness, shame, and embar-
rassment;
• hypochondriasis (which may represent a hypercathexis
of bodily parts and thus a temporary discohesiveness
of the self);
• overdependency on others for approval;
• a tendency to view other persons not as objects separate
from the self but as self-objects or extensions of the
self that serve to stabilize the precarious self; and
• an overemphasis on physical attractiveness, possessions,
and past accomplishments to cope with the feelings
of diminished self-esteem, emptiness, and depletion
(Lazarus 1988).
The special technique of a forensic examination in an eld-
erly person includes adjusting the speed of the interview
to the flow of information. Taking time to achieve rapport
is critical, as is addressing the assets and accomplishments
in the person’s life as well as pathology. As questions get
into the more sensitive, personal areas, there should be
some preparatory statements or questions so that the
elderly person can get braced for what is coming. It is
important to avoid a hurried manner and not automatic-
ally assume that the individual understands the thrust of
the interview. Obtain a clear idea of the subject’s person-
ality assets as well as physical assets and get an idea of his
or her philosophy of life, sense of humor, survival skills,
and coping mechanisms. It is important to bring out
whether or not the individual can understand how to use
professional help (e.g., bankers, attorneys, etc.) to shore
up his/her limitations, and whether or not he/she knows
someone that he/she can trust. Have the person describe
how he or she knows they can trust someone. With regard
to memory deficits, it is also important to bring out
whether or not the person is able to utilize memory aids
(e.g., lists, notes, phone book yellow pages, etc.).
SCREENING FOR COGNITIVE IMPAIRMENT
In screening for cognitive impairment, three main
approaches are available:
1 Orientation-Memory-Concentration Test: this is a six-
item screening instrument that assesses concentration
and memory. Sensitivity, specificity, and diagnostic
value of this brief instrument are acceptable and com-
parable to those of longer instruments.
2 Mini-Mental State Examination (MMSE): this is a
thirty-item instrument that is widely used to screen for
cognitive impairment and to assess the severity of
impairment (Folstein, Folstein, and McHugh 1975).
The examination takes about 10 minutes and provides
a reliable overall cognitive score. Sensitivity for mild
impairment is limited, and older individuals with low
‘normal’ scores are at high risk for developing dementia
over subsequent years. Age and educational level must
be considered in interpreting the MMSE score.
3 Mattis Dementia Rating Scale: this assesses a wider
range of cognitive skills, including executive abilities
(Mattis 1976). The instrument requires about 30–45
minutes to complete with an impaired patient. It pro-
vides an overall cognitive score, with a maximum of
144 points. (Sultzer, D.L. Mental status examination.
The American Psychiatric Press Textbook of Geriatric
Neuropsychiatry, 2nd edition, p. 138.)
The forensic geropsychiatric examination should cer-
tainly include a functional assessment, which is a way of
emphasizing day-to-day functions of an individual rather
than diagnosis. Diagnosis alone cannot define the type or
level of service needed (Pfeiffer 1991). There are a num-
ber of instruments available to use, including the highly
sophisticated and detailed Older Americans Resources
and Services Multidimensional Functional Assessment
(OARA) (R) as well as the simple screening Mental Status
Questionnaire (MSQ) (Kahn et al. 1960). The MSQ has a
total of ten points, one for each of the following: current
date, current month, current year, age, date of birth, year
of birth, address, city, president, immediate past presi-
dent. Dementia is considered severe if the patient makes
nine or ten errors; moderate if three to eight; mild or absent
if there are two or less errors. A similar instrument is the
Short Portable Mental Status Questionnaire for Assess-
ment of Organic Deficit in Elderly Patients (Pfeiffer 1976).
Functional assessment instruments have their limita-
tions and are not a substitute for clinical judgment. They
enhance rather than replace the value of diagnosis, as they

are not precise enough to form the sole basis for clinical
or placement decisions.
An inventory of activities of daily living should include
an assessment of:
• mobility;
• personal hygiene, which includes urination, defecation,
bathing, ability to stay in clean clothes;
• eyesight and hearing;
• nutrition, including cooking and shopping;
• ability to obtain medical help;
• any substance abuse;
• ability to take prescribed medication;
• hedonic outlets;
• sleep patterns;
• ability to read and use television and radio;
• awareness of daily news;
• ability to assure safety and security; and
• ability to socialize.
The normal psychology of aging includes some accept-
ance of limitations, but at times also some ‘rage against the
dying of the light.’ There is loneliness as the number of
peers diminishes. There is the fear of accidents and illness.
There are regrets at missed opportunities, bad deeds,
and failures. There is sometimes eagerness to be done
with it all. There is a certain amount of living in the past.
There is a fear of embarrassing oneself and a clinging
to dignity. There is a tendency of old people to nurse
grudges. However, they also have a remarkable accumu-
lated wisdom. Most old people do not complain of bore-
dom, which is a misconception that the young have about
old age.
COMPETENCY IN CIVIL LAW
The types of civil competency most likely to concern geri-
atric neuropsychiatrists are competency to:
• give informed consent for medical care;
• execute an advance directive;
• give informed consent for enrollment in a study;
• enter into (and be held accountable for) a contract
(contractual capacity);
• execute a will (testamentary capacity) or trust;
• provide self-care (provide oneself with food, clothing,
shelter, and medical care); and
• manage one’s finances (Spar 2000).
Guardianship and contractual consent
The essence of civilization is the contract: an agreement
between two persons for the performance by each in
exchange for the performance of the other. The law pre-
sumes competence of any adult who enters into a contract
Geriatric psychiatry and the law 653
or transaction, but proof of mental incompetence can
void a transaction.
The U.S. Supreme Court (Dexter v. Hall 1972) states,
‘The fundamental idea of a contract is that it requires the
assent of two minds, but a lunatic or a person non compos
mentis has nothing which the law recognizes as a mind,
and it would seem, therefore, upon principle, that he can-
not make a contract which may have any efficacy as such.’
Though Justice Brandeis has opined that the most pre-
cious of all human rights is the ‘right to be let alone,’ the
question of competence or capacity to make a decision is
probably the most common legal question in geriatric
psychiatry. The test is two-fold for lack of mental capacity:
1 The person must be suffering from a mental illness or
defect.
2 The illness or defect affects his or her understanding
of the transaction of the degree stated.
For incompetence to contract, cognitive and not merely
affective deficits usually are necessary. Sometimes courts
also apply an insane delusion test, which is a belief in the
reality of facts that do not exist and that no rational per-
son could believe, which motivates the making of the
contract. The burden of proving incompetence is upon the
party claiming it. However, once incompetence has been
shown, the party asking that the contract be enforced has
the burden of proving unfairness and lack of knowledge
of the other person’s incompetence (Slovenko 1973a).
The most common reason for initiating a guardianship
proceeding is the concern of family members who have
noted a loss or a change in judgment of an aged person in
matters of money. However, many state laws do distin-
guish between guardianship of the person and guardian-
ship of property. This concern for the ability to care for
oneself as well as the ability to manage one’s property is
part of probate code.
Standards of general competence
General competence is a somewhat global term in guar-
dianship procedures as opposed to specific competence
for a particular act. The definition of general competence is
the capacity to handle all one’s affairs in an adequate man-
ner. In many states, guardianship only takes place with the
finding of general incompetence, although more enlight-
ened states now use some version of the Uniform Probate
Code that includes a ‘laundry list’ of partial competencies
(Florida Guardianship 1987). General incompetence is
defined under the Uniform Probate Code: ‘A mentally
incompetent person is one who is so affected mentally
as to be deprived of sane and normal action or who lacks
sufficient capacity to understand in a reasonable manner
the nature and effect of the act he is performing.’ Merely
having the presence of a severe mental illness or a psy-
chosis or dementia is not sufficient by itself to constitute
incompetence. A functional assessment is also necessary
654 Special clinical issues in forensic psychiatry
to delineate specific ways in which the individual lacks
capacity. Appelbaum and Gutheil (1991) suggest five fac-
tors in considering general competence:
1 Awareness of situation. This involves a general orienta-
tion to the major elements of life. The individual should
be aware of the circumstances of his or her living,
sources of support, extent of resources, significant sup-
portive relationships, limitations on natural functions,
and threats to immediate security (e.g., funds running
out or lawsuit pending).
2 Factual understanding of the issues. This requires some
memory and judgment faculties being present.
3 Appreciation of the likely consequences. This is an
understanding of the hypothetical situation,‘If X hap-
pens, then what next?’ For the rational manipulation
of information, the psychiatrist will need to give various
hypothetical questions to assess this ability to ration-
ally manipulate possibilities. The basic components of
the patient’s mental status, that is orientation, memory,
intellectual functioning, judgment impairment, and
rationality (delusions), and alterations of mood will
be important.
4 Functioning in one’s own environment. Many older per-
sons structure their natural environment in such a way
that support exists there to aid in their essential tasks,
so that the ecology of a person’s functioning must be
taken into account during a competence evaluation.
It is always important to inquire about the existence of
natural supports.
5 The extent of demands on the patient. This entails a
realistic evaluation of what tasks the individual may
be called on to perform. A large, complicated estate
might require the use of bankers, lawyers, accountants,
and the ability to manipulate information derived from
those sources, whereas a simple handling of a Social
Security check does not require a comparable level of
ability.
A potentially important step toward resolution of this
problem was taken by Grisso and colleagues (1994), who
developed the MacArthur Competence Assessment Tool-
Technique, a semistructured interview procedure that
guides clinicians and patients through a process of dis-
closure of information related to informed consent, and
an assessment of patients’ capacities to make decisions
based on the information. Information specific to the
patient’s situation is used, and only 15–20 minutes are
required for the procedure. Preliminary data obtained
using this instrument in patients with schizophrenia and
schizoaffective disorder suggest that it has acceptable
reliability, validity, and clinical feasibility. However, the
authors recognized that the elements of decisional com-
petence assessed by this instrument ‘are not the only factors
in ultimate clinical or legal judgments of competence,’
and anticipated that the main use for the tool would be in
‘the midrange of ambiguous cases of competence … espe-
cially when clinicians have reason to believe that their
judgments might later be questioned – for example, in
legal proceedings about a patient’s capacity to decide or
about the reasonableness of a clinician’s decision to accept
a patient’s decision or to turn instead to a surrogate’ (Grisso
et al. 1994, p. 1419; Spar 2000, p. 947).
Specific competence
There is a wide variety of specific competencies delineated
in the law, such as the competency to consent to volun-
tary hospitalization, to consent or refuse medical treat-
ment, to make a living will or advance directive, to create
a durable power of attorney, to consent to electroconvul-
sive therapy (ECT), to marry, to divorce, and to drive an
automobile. The standards are, in most states, directed
by statute for each of the specific competencies. There
are basically four elements in all of these standards
(Appelbaum 1991):
1 A communication of a choice. This choice should be
stable, without vacillation of such a degree that pre-
cludes its implementation.
2 Factual understanding of the issues. This includes under-
standing the information required to make the decision,
including the nature and purpose of the proposed
intervention, the risks and benefits involved, and pos-
sible alternatives, along with their risks and benefits.
3 Appreciation of the situation and its consequences. This
requires the psychiatrist exploring the subject’s con-
ceptions of the situation at hand, the likely outcomes of
alternative courses of action, and the motives of those
involved.
4 Rational manipulation of information. This involves
the use of logical processes to compare benefits and
risks of various courses of action. Reasonableness of
the outcome is not what is being tested here, but the
process of the reasoning involved. Examination of the
person’s chain of reasoning from input of information
to the conclusion is the essence of rational manipula-
tion of information. Whether or not the examiner
happens to agree with the individual’s decision is not
relevant, since personal value judgments often play a
part in legitimate decision making.
There are generally some social policy considerations used
by the court in weighing competency matters. For instance,
competence to contract is judged more rigorously because
interests of a living incompetent may outweigh his wishes
as reflected in the contract. In wills, on the other hand,
there is little point in trying to protect a dead testator’s
interests as distinct from his or her express wishes, and
there is little ability to do that fairly.
In treatment decisions, a sliding scale approach is
sometimes used. For example, patients consenting to low-
risk, high-benefit treatment would be allowed to do so
even if fairly impaired on most measures of competence,
because both their autonomy interests and physical

well-being would benefit. They might be considered
competent if they could merely communicate a choice.
This was the case in civil commitment statutes as a stand
for voluntary admission prior to Zinermon v. Burch
(Winick 1991), which has now made more specific rules
for determining competency for voluntary admission.
In contrast, patients refusing treatment might be held to
higher standards since they run the risk of serious physi-
cal harm. Standards for competence employed in their case
might require understanding, appreciation, and rational
manipulation.
Procedure for determining competence
for purposes of guardianship
Any interested party can initiate a petition to the court,
usually a probate court, alleging that the individual in
question is incompetent and in need of a guardian. The
usual language is ‘incapable of managing his affairs’ or
‘unable to care for his property or himself.’ The court will
usually appoint a committee, including a psychiatrist, to
examine the alleged incompetent and report to the court.
States vary as to their rules for a hearing, but in general,
testimony of witnesses, the psychiatrist, and medical
experts, and sometimes the testimony of the alleged
incompetent, is taken in a hearing. A guardian of the per-
son and a guardian of the property are appointed by the
court if a finding of incompetency is made. In most states
these two guardianships are embodied in one person,
though if the estate warrants professional supervision,
sometimes a lawyer, banker, or accountant is appointed
the guardian of the property and a family member
becomes the guardian of the person. In most states, there
are public guardianship organizations willing to assume
the guardianship of those individuals who do not have
immediate family members or interested parties.
Consent for treatment
In non-emergent situations, courts have ruled that phys-
icians have the responsibility to exercise ‘therapeutic
privilege’ – that is, to approach the process of obtaining
informed consent in a clinically sensitive and appropriate
manner. Natanson v. Kline (1960) established that a clin-
ician should provide the information that the hypothet-
ical ‘reasonable medical practitioner’ would provide to
his or her patient. However, in Canterbury v. Spence (1972)
the court turned this reasoning around, concluding that
the person receiving the information (the hypothetical
‘reasonable person’) should determine what information
is provided. In both of these landmark cases, the notion
of reasonableness was used in setting lower and upper
limits on the information imparted; that is, too much
information was considered possibly to be as unreason-
able as too little information. In Natanson v. Kline, the
court noted that disclosure ‘could so alarm the patient
Geriatric psychiatry and the law 655
that is would, in fact, constitute bad medical practice,’
and in Canterbury v. Spence the court recognized that,
for some patients, disclosing certain information could
‘foreclose a rational decision, or complicate or hinder the
treatment, or perhaps even pose psychological damage to
the patient’ (Spar 2000, pp. 947–8).
Competency for consent or refusal of medical treat-
ment relies on the general rule of law enunciated by Justice
Cardozo that, ‘Every human being of adult years and
sound mind has a right to determine what shall be done
with his or her body’ (Schloendorff v. Society of New York
Hospital 1914). While practicing mental health profes-
sionals tend to focus on psychopathology in their assess-
ment of competency, legal standards tend to be tied more
specifically to the actual decision and the patient’s cap-
abilities surrounding it (Stanley 1983) (see Chapter 13).
Organized psychiatry, as expressed through opinions
of the American Psychiatric Association (1991), has gener-
ally discouraged having judges make substitute decisions
in cases of extraordinary procedures, such as sterilization,
psychosurgery, ECT, or neuroleptic medications. Use of
professional decision makers and family members has
been considered clinically more effective and more in the
best interest of sick patients.
Other specific consents
There are specific consent laws for use of ECT, usually
involving obtaining consultation by other clinicians.
Consent for research has been addressed by the 1981
National Institute of Aging, which developed guidelines
for addressing the ethical and legal issues involved in
clinical research and senile dementia of the Alzheimer’s
type (Melnick et al. 1984). ‘The determination of the sub-
ject’s capacity to consent to participate in research should
not be dependent upon an assessment of the subject’s
overall state of competency.’ Both Appelbaum (1991) and
Stanley (1983) have suggested numerous clinical ways of
dealing with questionable competence for informed con-
sent such as using teaching and review methods coupled
with testing, involving the patient’s family members in
the consent process so that they may use language more
familiar to the patient, developing better clinical rapport,
tailoring the consent information to the needs of the
patient, and making consent material more readable.
The consulting psychiatrist in an informed consent case
should always have available to him either on the chart or in
some other written form a statement by the treating
physician as to exactly what the proposed treatment is. In
an uncooperative patient, one must be sure to inform the
patient of the consequences of an incompetency finding so
that he has an opportunity to disprove his incompetency.
Advance directives are legal instruments intended to
ensure that appropriate decisions regarding medical care
are made when a patient becomes incompetent to give
informed consent. The Patient Self-Determination Act,
656 Special clinical issues in forensic psychiatry

which became federal law on December 1, 1991, man- Table 67.1 Glasgow Coma Scale
dates that hospitals, nursing homes, and other healthcare
Eye opening response
organizations provide information to patients concern-
Spontaneous 4
ing availability and use of these instruments.
To voice 3
There are generally two types of advance directives: To pain 2
(i) proxy directives, such as the durable power of attorney None 1
for healthcare (DPAHC) or healthcare proxy; and (ii) Best verbal response
instruction directives, such as the living will. DPAHC Oriented 5
allows an individual (the principal) to authorize another Confused 4
person, usually a family member or spouse (the attorney- Inappropriate words 3
in-fact), to give or withhold consent for medical care for Incomprehensible sounds 2
the principal if the principal becomes incompetent: None 1
‘A durable Power of attorney is a power of attorney by Best motor response
Obeys commands 6
which a principal designates another his attorney in fact
Localizes pain 5
and the writing contains the words, “This power of attor-
Withdraws (pain) 4
ney shall not be affected by disability of the principal,” or Flexion (pain) 3
“This power of attorney shall become effective upon the Extension (pain) 2
disability or incapacity of the principal” or similar words None 1
showing the intent of the principal that the authority con-
ferred shall be exercisable notwithstanding the principal’s From Fields, Cisewski, and Coffey 2000.
subsequent disability or incapacity’ (Uniform Durable
Power of Attorney Act). Some states have enacted similar
laws creating the healthcare proxy. scores are generally interpreted as follows: 13–15, mild;
A living will – a document that is created by an individ- 9–12, moderate; and 3–8, severe. Although the GCS has
ual when he or she is of sound mind – specifies the limits been found to have high inter-rater reliability and to be
of care to be given by healthcare providers if the individual a reasonable predictor of poor outcome in TBI (i.e.,
‘become[s] unable to participate in decisions regard- death or vegetative state), it appears to have limited pre-
ing … medical care’ (Spar 2000, pp. 948–9). dictive power in terms of functional and cognitive out-
come (Zafonte et al. 1996; Diringer and Edwards 1997)
and is also limited when used with selected populations
(e.g., children, patients with chronic disabilities, elderly
FLUCTUATING INCOMPETENCE
patients with hearing loss, and patients whose injuries
affect the eyes and mouth). These limitations are becom-
Psychodynamic, psychopathological, and situational influ- ing more pronounced as prehospital treatment (i.e.,
ences on competence can be varied and modified if the pharmacological paralysis, sedation, and intubation)
clinician is aware of those influences. Simply assuming increases, thereby limiting the ability to obtain accurate
that incompetence is a fixed characteristic can be clinically GCS scores for many individuals.
erroneous. There are treatable psychiatric conditions such The legal finding of incompetence frequently changes
as anxiety, depression, polypharmacy, metabolic imbal- the clinical picture. There is a certain amount of reinfan-
ance, and undiscovered medical conditions. Psychotic tilization of the patient and a reversal of the separation
levels of defense, such as extreme denial, can be modified individuation process. The patient essentially becomes a
with treatment. Power struggles can be resolved with minor child so that the legal finding may deal a regressive
interpretation. Dementia can be a fluctuating condition blow to him or her. In addition, there becomes a crowd-
so that there can be lucid intervals, depending on time of ing as the clinician–patient relationship becomes a
day, medications consumed, and other physical illnesses. committee–patient relationship, with judges, lawyers,
Situational influences such as physicians’ rapport with guardians, and court observers all taking part in control
the patient, the nature of the setting, the patient’s percep- of the patient, making therapeutic alliances difficult.
tion of the purpose of the examination, and hidden There is an impact on self-esteem in almost all people
agendas of the patient need to be identified and resolved who are found incompetent if they have any awareness of
if possible. the finding.
The Glasgow Coma Scale (GCS) remains the ‘gold Much has been written about the question of which
standard’ because of its quick and convenient numerical rules should govern the decisions of substitute decision
quantification of level of consciousness and its wide- makers such as attorneys-in-fact. The court in a New Jersey
spread use in trauma data banks (Diringer and Edwards case (In re Conroy 1985) spelled out a three-step protocol
1997). The GCS is a 15-point global index of consciousness for analyzing the patient’s wishes. First, consider any
that assesses functioning in three domains (eye opening, statements or other directives made by the patient.
verbal response, and motor response) (Table 67.1). GCS If these are not conclusive, then attempt to deduce the

patient’s wishes from his or her more generally held values,
religious beliefs, and so on. Finally, if these steps leave the
issue in doubt, revert to what a person in the patient’s sit-
uation might reasonably choose (Spar 2000, p. 949).
When a claim of contractual or donative incompetency
is adjudicated, courts tend to give substantial weight to
facts besides the degree of mental impairment of the
grantor, such as the substantive fairness (i.e., the terms of
the contract or gift, as opposed to the procedural fairness)
of the transaction in question. In other words, the fact
that the grantor agreed to an obviously bad deal may be
regarded as evidence supporting the claim that the grantor
was incompetent (Spar 2000, p. 951). For example, in
Citizen’s National Bank v. Pearson (1978), the court stated:
‘Greater mental capacity is required to make a deed than
is required to execute a will.’ … The creator of the trust
should process contractual capacity (Spar 2000, p. 952).
TESTAMENTARY CAPACITY
Unlike contracts and other issues involving competency
to consent, the last will and testament always requires judi-
cial approval. It is admitted to probate. In a will contest,
the capacity of the testator is questioned, so the usual
determination is a post-mortem perusal of records, witness
statements, and sometimes psychological autopsies. Most
recently, attorneys are becoming aware of the possibility
of will contests at the time of making the will and are
attaching a psychiatric examination to the will to assure
the probate court of the individual’s competency at the
time of making controversial provisions in his or her will.
It is very important that the examining psychiatrist in
these pre-death examinations have available to him or
her a copy of the proposed will, as well as a conversation
with the attorney drawing up the will in addition to his/
her examination of the testator. Slovenko (1973b) com-
ments that of all wills probated, not more than 3 per cent
are contested, and of these contests, not more than 15 per
cent are successful. There are witnesses at the signing of
a will, but these usually are witnesses to the fact of the
testator personally signing the will and witnesses to his
or her understanding of the provisions of the will. Most
attorneys who are experienced in making wills attach a
memo in their file explaining that they thoroughly went
over the provisions of the will and satisfied themselves
that the testator understood all aspects of the will and
met the basic provisions for testamentary capacity. Some
attorneys are also attaching a videotape of their interview
with the testator to further document the testamentary
capacity. The standard test for testamentary capacity in
most states involves: (i) the person understanding that he
or she is making a will; and (ii) understanding the natural
objects of his or her bounty.
Wills are usually challenged by disgruntled family mem-
bers who have been left out or slighted in a later will after an
Geriatric psychiatry and the law 657
earlier will named them in what they felt to be a more
appropriate way. Occasions for these will contests include:
1 A later will differs from an earlier will, since any will
acts to revoke prior wills, with different relatives or
beneficiaries.
2 An older person disposes of his or her property in a way
that is ‘detrimental’ to family members who expect the
property to be left to them.
3 The older person marries or becomes involved affec-
tionately with a person whom family members
question.
4. The older person becomes mentally incapacitated or
shows evidence of severe physical incapacity before a
will is made.
5 The older person becomes more susceptible to the
influence of others by virtue of a change in his or her
circumstances, that is, either physical or mental disabil-
ity or unusual dependence on the influencing person.
6 The older person refuses a medical intervention or pro-
cedure that may be necessary to prolong his or her life,
which brings up a question of competence.
In general, the rules for testamentary capacity are not
affected by other competencies, so that a person could be
under guardianship and still be competent to make a will.
Also, mental hospitalization is not a reason to consider
a person incompetent to make a will. In some states, a
delusion that bears directly on the individual’s reasoning
for provisions of his or her will would affect testamentary
capacity, whereas a delusion that does not bear directly
on the provisions of the will is not usually considered as
a reason to negate it. Generally, courts will lean favorably
in the direction of protecting the family integrity if there
is a balance of testimony, since it is in the state’s interest
that families care for themselves and not become wards
of the state. The court in the interest of family mainten-
ance is unlikely to uphold a will that pauperizes a helpless
member of the family. Distant relatives who have not
seen a person for many years, but who are the only nat-
ural relatives, will seldom prevail in a will contest where
the testator has willed his or her possessions to a church
or Moose Lodge or other meaningful organization in
his/her life.
Undue influence is frequently the basis on which wills
are contested. However, to successfully contest a will on the
basis of undue influence, the objectors must show that the
heirs had the opportunity and disposition to unduly influ-
ence a susceptible person to obtain a coveted result. The issue
of susceptibility is usually in the province of a psychiatrist
who reviews documents, witness reports, and so forth, and
renders an opinion as to susceptibility to undue influence.
Greist and Nelson (1977) have contended that most dying
individuals who execute deathbed wills have an increased
susceptibility to influence for good or ill because of com-
mon psychological reactions to the process of dying. Simple
influence, however, differs from undue influence.
658 Special clinical issues in forensic psychiatry
Undue influence implies the concept of influence that
comes from the outside and is applied unfairly with the
intent of benefiting the person who exercised the influence.
The questions most often arise when there is someone
in constant attendance in the last days of the testator and
then that person is made the beneficiary of a changed
will. The dying process includes regressing to earlier
levels of mental functioning and over-utilizing denial,
anger, and bargaining. Many appellate cases involving
undue influence originate in Florida since it is a retire-
ment haven to which old people move in their final years,
leaving their family in the North behind and making new
acquaintances and associates in their last years. The court
in In re Lamberson (1981) held that, ‘Evidence that bene-
ficiary moved decedent into beneficiary’s home, failed to
notify the decedent’s family of move, refused to notify his
friends of his whereabouts, and never told decedent of
his wife’s death two weeks before his own, together with
evidence of testator’s diminished mental capacity, was
sufficient to sustain trial court’s finding that beneficiary
of will procured its execution by undue influence.’
Six additional factors have been identified that ‘are
prominent in undue influence situations. They are the pro-
duction of isolation, the creation of the “siege mentality,”
the fostering of dependence, the creation of powerlessness,
the use of fear and deception, and keeping the victim
unaware of the manipulative program put into place to
influence and control the person and to obtain the signing
of documents which benefit the manipulators at the cost of
the signer’ (Spar 2000, p. 953).
The concept of lucid interval is brought up as a defense
of a will being contested in an individual who is known
to have been severely demented for some time. The expert
psychiatrist who is reviewing documents, medical records,
and so on should establish some repeated observations of
a particular time of day for fluctuation in a person’s cogni-
tive state and correlate that with the claimed lucid interval
in order to provide good evidence of a lucid interval. This
is especially true in dementia cases in which medication,
changing environmental stress, or other factors may well
cause an individual to have different lucid times.
COMPETENCY TO HOLD A JOB
Competency to maintain a job is an issue in geriatric
psychiatry because of changing ideas about arbitrary
ages of retirement. Age alone is being increasingly viewed
as a discriminatory basis for mandatory retirement
from the workplace. Psychiatry is sometimes involved in
determining the competency of elderly people to continue
to work productively in their particular job. Frequently
these issues arise in the hidden context of determining
safety to others or actual competency to perform certain
operations that require unusual physical or mental skills.
Boards of medicine, for instance, frequently refer elderly
doctors for mandatory psychiatric evaluation to determine
continued competency to practice medicine with the req-
uisite degree of skill and care. These determinations almost
always require that the examining psychiatrist avail him-
self of information from collateral sources about the actual
job performance of the individual and they may require
extensive environmental psychological testing.
COMPETENCY TO DRIVE
The proportion of the American population that drives
is rapidly aging, and it is estimated that by the year 2024,
one in four drivers in the United States will be over age
65 years. Declining competency among these drivers is
well documented: among older drivers, as a group, the
frequency of crashes per mile is approximately twice that
among younger drivers, and older drivers incur more
fatalities per mile driven than any other group except
males under age 25 (Spar 2000, p. 956).
As is suggested by the latter finding, dementia is a
well-established risk factor for crashes among elderly
patients. Scores on the Mini-Mental State Exam and on
the Sternberg test (another test of short-term memory),
along with measures of visual tracking, were the best
predictors (Spar 2000, p. 957).
CRIMINAL ISSUES IN THE ELDERLY
The entire range of crimes in the criminal code are within
the capability of elderly people. Geriatric psychiatrists
will be involved in determination of all the issues for
which psychiatrists are utilized in the criminal courts.
Issues of mental status at the time of the offense, compe-
tency to proceed, competency to give a confession and
to understand Miranda warnings, competency to be a
witness, and even competency to be a juror may well be
issues to be determined on elderly men accused of child
molestation. This is the ‘grandfather–grandchild syn-
drome’ in which a sudden impulsive act by an elderly
person is viewed with alarm and is attributed to onset of
senility. Many of these cases are handled within families
as the ‘family secret,’ without ever seeing the light of a
court of law. Dementia can be involved in the sudden
impulsive act of an elderly person toward a small child.
The forensic psychiatrist must be mindful that a psycho-
dynamic explanation of the elderly person’s act does not
necessarily serve as an insanity defense.
In cases of elder abuse the psychiatrist might be called
on to examine both the abused person as well as the per-
petrator. Some states now require mandatory reporting
of elder abuse, similar to mandatory child abuse reporting.
Another major area of concern for the elderly that
impacts the criminal courts is the issue of suicide. Suicide

pacts by elderly couples are certainly not uncommon.
Frequently the forensic psychiatrist is called on to con-
duct a psychological autopsy. Was this a murder/
suicide or was this a joint intention of suicide? The highest
suicide rate in American is among those age 50 years and
over (Finkel 1991). This age group represents 26 per cent
of the total U.S. population but accounts for 39 per cent
of the suicides nationwide. Over 8500 older Americans
kill themselves each year (see Chapter 12). Misdemeanor
crimes that are victimless are frequently harbingers of
senile dementia in the elderly. Psychiatric input is fre-
quently necessary in order to get these individuals into
misdemeanor diversion programs that will deal with
their underlying illness rather than taking a punitive
approach.
Physician-assisted suicide and physician aid in dying
(Misbin 1991) are new forensic and ethical issues that
may be resolved by market forces as the elderly popula-
tion increases. The specter looms of a computer making
the decisions based on some mathematical score of
‘quality-adjusted life years’ (QALYs) (La Puma and Lawlor
1990). Psychiatrists will be called on to add their expert-
ise in the geriatric ethical issues of the future.
It is apparent from this brief discussion that geriatric
psychiatry and the law will be a burgeoning field in the
future. Pfeiffer (1991) states that the way to approach
older persons is to think of them as people, ‘who cons-
titute a group of elite survivors and pioneers, laboring
at the last great frontier, confronting their own aging
experiences.’
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Terrorism and forensic psychiatry
WILLIAM H. REID AND CHRIS E. STOUT
INTRODUCTION
This chapter will address several kinds of terror-violence –
a term coined during the 1970s by Professor M. Cherif
Bassiouni, Loyola University Law School, Chicago – but
will generally separate ‘terrorism’ from conventional crim-
inal acts, war, and victims of conventional crime or warfare.
Nevertheless, some specialized topics related to forensic
psychiatry which highlight the terrorizing of victims will
be included [e.g., terrorist strikes during a state of war,
psychological effects of war on civilians (especially chil-
dren), and state-sponsored attacks or terrorizing strat-
egies]. Related topics such as imprisonment and/or torture
per se, prisoners of war and concentration/internment
camps, stalking, ‘ordinary’ criminal hostage-taking (e.g.,
as part of a robbery), and most oppressive government
acts will not be addressed here. Torture and torture vic-
tims are discussed elsewhere in this text.
Terrorism has been a part of human conflict since
well before the birth of Christ. Many current English
words that describe terror-violence come from ancient
terms (e.g., berserk, assassin). The berserkers were legendary
Norse warriors who fought with frightening zeal. The
hassassim (literally, hashish-eaters) were a fanatic Moslem
sect employed by their leaders during the Middle Ages
to spread terror among prominent Christians and other
religious enemies. Their fearsome activities entered Euro-
pean folklore by way of the Crusaders and the writings of
Marco Polo. They were ultimately destroyed by the Mongol
invaders, but their use of murder as a political instru-
ment provided a grim inheritance for the modern world
(Troini 2000).
One’s personal view affects whether or not one defines
various violent or fear-inducing acts as ‘terrorism.’
Professor J.K. Zawodny, a Polish underground combat-
ant during World War II, wrote, ‘One man’s terrorist is
another man’s freedom fighter.’ It is sometimes hard to
tell whether a bombing is a political act or ‘senseless
violence,’ or whether a military or police action meets
common criteria for terrorism. Many would say that such
68
distinctions may not matter very much in the long run,
especially to the victims.
In October, 1999, U.S. Secretary of State Madeline
Albright designated twenty-eight Foreign Terrorist Organ-
izations (FTOs), deleting three from the 1997 list and
adding one. Such identifying, researching, categorizing and
cataloging allows the government to freeze the U.S. funds
of identified FTOs and makes members and representa-
tives of those groups ineligible for U.S. visas. It is a crim-
inal offense for U.S. citizens or persons within U.S.
jurisdictions knowingly to provide material support or
resources to an FTO (U.S. Department of State 2000, p. v).
GENERAL KNOWLEDGE ABOUT TERRORISM
Many years ago, Hacker (1976) differentiated terrorists
into ‘criminals, crusaders, and crazies’ (Simmons and
Mitch 1985). Criminal activities are those based primar-
ily on personal gain for the perpetrator(s). Crusading
refers to terrorism that attempts to support social or
political causes. Crazies refers to those perpetrators whose
violence or extortion arises from highly personalized,
often delusional, roots that, although sometimes seem-
ingly related to social causes or personal gain, have more
to do with mental disorder than with the real world.
Hacker’s classification is still useful today, given a few
caveats, and helps define some of the roles psychiatrists
and other mental health professionals should, or should
not, assume in the field of terror-violence.
Troini (1999) describes several categories of terror
(criminal, irrational, political, state, religious, and ethnic/
cultural/tribal) and derives a typology for terrorism
against a state:
1 Resistance to colonial rule (e.g., recently in Cyprus,
Algeria, and Palestine).
2 Separatism (the desire to create a group’s own state).
3 Internal-Political actions to control the state (e.g.,
revolutionary or quasi-revolutionary actions by the
662 Special clinical issues in forensic psychiatry
Irish Republican Army or – before they succeeded –
Fidel Castro or Mao Tse-Tung).
4 Anarchist-Ideological actions to destroy the state sys-
tem (e.g., 1960s acts of the U.S. Weather Underground).
5 Support for external takeover (e.g., in Korea during
the 1950s or Vietnam in the 1960s).
The success of a terrorist act is often measured not by
number of casualties, but by its psychological effect on
the larger population (Applewhite and Dickins 1997). In
addition, it may preoccupy a government and provoke
governmental response. Terrorism can thus serve myriad
functions, including publicity, displaying power, demon-
strating government weakness, manipulating govern-
ment and citizens, increasing repression (through either
direct action or government reaction), revenge, and
broader effects such as economic sabotage (e.g., by dis-
couraging foreign tourism and investments).
Domestic terrorism by U.S. citizens may involve any of
Hacker’s categories (above), but we will focus on violence
on behalf of some social cause. Such acts include the 1995
Oklahoma City Federal Building bombing, bombings or
ambushes at abortion clinics, so-called eco-terrorism car-
ried out against companies (including relatively minor
acts such as tree-spiking), and antivivisectionist or ‘animal
rights’ extremists (Skolnick 1992; Report to Congress 1993;
Teasenfitz 1999–2000).
Foreign terrorism within the U.S. usually appears
crusader-like (i.e., political); however, one should note that
much terrorist activity is simply criminal, carried out by
profiteering intermediaries (e.g., Osama bin Laden’s
group in the New York World Trade Center bombing) at
the order of a political entity that finances the act. Thus,
they may be thought of as simply heinous criminal acts
of the direct perpetrators rather than arising from any
‘political’ or pseudo-altruistic motivation.
Extent of the problem
Although U.S. civilians are insulated from most effects
of terrorism, injury or death from foreign terrorist acts
have become a fairly frequent occurrence (Clark 1998).
The victim may be part of a larger U.S. target (cf., the
2000 bombing of the USS Cole in Yemen), sought out indi-
vidually, or caught coincidentally in a non-U.S. target.
In 1999, according to the most current U.S. statistics
available, the number of individuals killed declined from
the prior year because there were no mass casualties; the
number of incidents, however, rose. In 1998, 741 U.S. cit-
izens were killed, and 5952 wounded, in 274 terrorist
attacks. In 1999, 706 died and 233 were wounded in 392
incidents (an increase of 43 per cent in the number of
incidents) (US Department of State 2000, p. 1).
For some forms of terrorism, such as clinic bombings,
the perceived threat is much greater than the actual danger.
The ancient adage ‘Kill one, scare 10 000’ still works well to
frighten, and thus influence or control with little terrorist
expenditure. There is growing concern, however, about
the realistic (as contrasted with ‘perceived’) threat to large
numbers of people. Much of that concern comes from the
availability, portability, affordability, and ‘importability’
of nuclear and biochemical weapons. The ‘scare’ value of
real and implied threats is increasingly accompanied by
the realistic prospect of great destruction.
State-sponsored terrorism
Far more people have been killed by their own govern-
ments in recent decades than by either acts of war or
non-state-sponsored terrorism. Wherever one draws the
distinction between terrorism and other forms of vio-
lence, terrorizing and slaughter of citizens by government-
authorized groups is an enormous problem, especially
in developing countries. Although the so-called ‘death
squads’ and other excesses of established governments
in, for example, Haiti and apartheid-era South Africa
garner much media attention, it is often post-revolution
governments that, for whatever reasons, wreak the most
havoc on their people [cf., Mozambique (Nordstrom
1998), Argentina (Hollander 1992), Guatemala (Melville
and Lykes 1992; Summerfield 1997), and Uganda (Rummel
1994)]. The example closest to the U.S. is not post-
revolutionary, however, and involves abuses of Guatemalan
refugees in a relatively isolated part of Mexico (appar-
ently authorized by local, not federal, Mexican officials)
(Miller 1996).
Children
It is often difficult to separate war from terrorism, and
thus create some difference between their civilian vic-
tims. Modern warfare in all its variants, including terror-
ism and guerilla tactics, kills more civilians than soldiers
(Troini 1999). To the victim, it does not matter whether
the source of injury was ‘war’ or not, although the form
of injury and ability to predict danger is often different
for that which most people would call ‘terrorism.’
Husain (1999) estimates that in the past decade, two
million children have been killed, four to five million
disabled, twelve million left homeless, over one million
orphaned, and ten million severely psychologically trau-
matized as the result of terrorism, war, and guerilla tac-
tics. Horrible examples abound. In the Burundi Tutsi and
Hutu conflict, virtually every Rwandan girl that survived
an attack was raped, and those who became pregnant
were then ostracized by their families and communities.
This led in turn to many abandoned babies and suicides.
In Bosnia, snipers aiming at small groups of adults and
children would shoot the children first, ‘for when you
lose a parent, you lose the past; when you lose a child, you
lose the future.’ Children in Sarajevo became afraid of the
light rather than the dark, because in the light one could

be seen and shot. Childhood resiliency can help some-
what: many children use magical thinking to perceive
themselves as self-styled artillery experts, then use the
perceived expertise to reassure themselves about the
proximity of artillery and create a feeling of control over
their lives.
In Stockholm, Sweden, very young refugee children
from Chile and the Middle East were studied prospect-
ively during their first eighteen months of exile. Almost
half were rated as having poor mental health early in
the study – a proportion which did not improve very
much over the next eight months. Political violence in
the home country and stress in the family sphere in exile
were identified as the major causes (Hjern, Angel, and
Jeppson 1998). Baker and Shalhoub-Kevorkian (1999)
reviewed studies of political and military trauma on chil-
dren, focusing on Palestinian victims, and the relation-
ships among their traumata, cultures, and personalities.
Boothby and Knudsen (2000) report that some
300 000 children are actively participating in thirty-six
ongoing or recently ended wars. In Sierra Leone, 80
per cent of all rebel soldiers are between seven and four-
teen years old. In the Cambodian hostilities that nom-
inally ended in the early 1980s, one-fifth of the wounded
soldiers were between ten and fourteen years old.
Biomedical terrorism
Medicine, and to some extent the mental health profes-
sions, has a role in prevention, treatment, and amelior-
ation of chemical and biological threats, often through
military and other government resources. There are
many relevant reports in the emergency medicine and
infectious disease literature (Kadivar and Adams 1991;
Carus 1998; Sharp et al. 1998; Henderson 1999; Benjamin
2000; CDC Strategic Planning Workgroup 2000; Leggiadro
2000; Pellerin 2000; Wheelis 2000). Specific psychiatric
or psychological aspects of chemical/biological terrorist
threat are less prominent in the literature; however, one
may refer to Holloway et al. (1997) and DiGiovanni
(1999).
BIOTERRORISM AND ASSAULT WITH
CHEMICAL AGENTS
These have assumed a very high priority in terrorism
discussions, in part because they are a substantial and
worsening danger, possess a huge potential for damage,
and involve insidious subtlety. Some chemical-biological
terrorist agents and strategies are aimed directly at
people. For example, during the late 1990s members of
Shoku Asahara’s Japanese cult, Aum Shinrikyu, appar-
ently released Serin nerve gas in a Tokyo subway, killing
ten people and injuring over five thousand. Others are
aimed at limiting food and water supplies (e.g., crop
damage in Third-World countries).
Terrorism and forensic psychiatry 663
MEDICAL/EPIDEMIOLOGIC PREPAREDNESS
AND ORGANIZED RESPONSE
Clinicians’ familiarity with the nature and effects of chem-
ical and biological weapons is important for dealing with
limited attacks. City disaster plans coordinate medical
and other facilities and professionals in ways outside the
purview of this chapter. Research and limited human
experience with, for example, some forms of nerve gas have
led to acute treatment and public health recommenda-
tions. Longer-term consequences have been reviewed
by, for example, Fullerton and Ursano (1990) and Simon
(1997).
In the authors’ view, the threat from chemical or bio-
logical weapons designed for mass destruction is far
greater. Broad release of certain toxins or infectious agents
would probably be devastating in our present state of
knowledge and preparedness (and perhaps in any event).
Prevention of such an attack is very difficult, and rests
largely on political-diplomatic, covert intelligence, and mil-
itary factors rather than medical or mental health expertise.
Terrorist ‘psychology’
Since there are many kinds of terrorist behavior, and most
terrorists do not demonstrate serious psychopathology,
it is a mistake to search for a single personality type or
uniform ‘terrorist mindset’ without defining a particular
kind of activity. If we limit our comments to organized,
quasi-political groups (and eliminate activities that are
frankly psychotic, simply criminal, and/or motivated by
individual revenge), we may note that people with par-
ticular personality traits and tendencies are dispropor-
tionately drawn to terrorist roles or careers. Most, of
course, are so generic as to be useless for early predictions
of terror-violence behaviors, but it is useful to monitor
known individuals or groups for conditions which are
correlated with destructive action. Those who are action-
oriented, aggressive, stimulus hungry, excitement seek-
ing, and externalizing are associated with a greater
likelihood of overt action. Other kinds of people often
support group efforts, making eventual action possible
but not participating directly in it. The personality traits
most often seen are narcissistic, antisocial (including the
truly psychopathic), borderline, and paranoid.
The Japanese FTO United Red Army stated that ‘We
intend to recruit young people who have lost hope in liv-
ing, and their families, as well as in society. We want their
explosive energy.’ One analysis of their known members
indicated that 25 per cent had lost one or both parents
by the age of fourteen, with the loss of father being most
disruptive. Of those whose parents were still living, 79
per cent reported severe conflict with them. Over 33 per
cent had prior juvenile court convictions (Troini 1999).
Members of FTOs – as contrasted with their leaders –
often submerge their own identities into that of the group.
Such organizations routinely have little tolerance for
664 Special clinical issues in forensic psychiatry
differences of opinion about goals and actions; disagree-
ment can be dangerous (cf., the saying that ‘the best way
to get rid of doubt is to get rid of the doubters – by way
of the graveyard’). In addition, the group, by ironic defin-
ition, needs to commit acts of terrorism in order to justify
its existence. This suggests a group dynamic which presses
for the perpetuation, and often escalation, of violence.
There is a small literature which describes conversion
of the victims of war or terrorism themselves into instru-
ments of violence for terrorist leaders. Post (2000) out-
lines the trial of a former Palestinian refugee recruited by
the Abu Nidal organization to participate in the bombing
of an Egyptian airliner. He discusses the virtual intractabil-
ity of generational transmission of nationalist-separatist
hatred and revenge.
The phenomenon of ‘groupthink’ (Janis 1972) also
operates in such organizations. Not being caught (or being
quickly released) can lead to omnipotent illusions of
group invulnerability, which leads in turn to excessive
optimism and excessive risk taking by members. False
presumptions of group ‘morality’ are often counterbal-
anced with one-dimensional perceptions of the ‘enemy’
as evil, which subsidizes the perspective that violent
behavior, even against innocent victims, is justified.
ROLES FOR MENTAL HEALTH
PROFESSIONALS
Victim assistance
Work with victims is by far the largest role for mental
health professionals. Much of the necessary skill and many
of the syndromes encountered, such as posttraumatic
stress disorder, are already part of the average clinician’s
experience. Other situations require some degree of
special training and sensitivity (some extensive, such as
for intensive care of torture victims).
INDIVIDUAL VICTIMS
Victim response to terror-violence is not random; there
are patterns which, once understood, can contribute to
more effective care. Applewhite and Dickins (1997) dis-
cuss the value of incorporating critical incident debrief-
ing and experienced mental health consultation to military
command when faced with terrorist acts against military
targets, and integrating them into comprehensive counter-
terrorist programs. General disaster response principles
apply to most situations, including preparedness, under-
standing traumatic stressors and disaster response, and
recognizing high-risk groups among current victims
(Norwood, Ursano, and Fullerton 2000).
Acute reactions to sudden terrorist acts are not unlike
those associated with other community disasters. Psych-
iatrists and other mental health professionals often
participate in community response teams. Brief, effective
training in victim support is available from a number of
organizations. One should realize that the best efforts are
those that are expertly coordinated, cooperate with local
emergency response agencies, and lay the groundwork
for more lasting support (such as the ongoing presence
of community mental health services after the crisis has
passed).
Victims of very recent violence require special under-
standing. A gentle approach, offering basic help such as
food and a soft word, is the best place to start. Rapid-fire
questioning of the sort frequently seen in debriefing
(especially in movies or on television) should be avoided.
Therapeutic actions that depend on the therapist’s iden-
tifying with the victim (i.e., assuming he or she under-
stands the victim’s feelings and can act accordingly) are
often ill-advised. Experienced counselors may be very
helpful, but they must have good counseling skills, not
merely ‘victim’ skills (Kleinman 1989).
The care of hostage victims and persons who have
been tortured is particularly specialized. The authors
strongly recommend special study for those faced with
such patients, whether their trauma is recent or in the
distant past (e.g., holocaust survivors) (Winther and
Petersen 1988; Van der Ploeg and Kleijn 1989; Thompson
1991). Civilians who have experienced war or terrorism
firsthand, such as some children in Israeli schools and
kibbutzim, Southeast Asian villagers, and refugees from
other battle-torn areas are also complex, having suffered
both acute and chronic terror (Moutet 1984; Curran
1988), which may be perceived – rightly or wrongly – as
perpetrated by the state itself (Corrado and Tomkins
1989; Suarez-Orozco 1990; Rummel 1994). They often
respond well to specific interventions described else-
where (Dreman 1989).
Other things being equal, intensity of trauma appears
to be directly related to the intensity and duration of its
effects. Desivilya, Gal, and Ayalon (1996) interviewed and
tested Israeli survivors of a terrorist hostage incident that
involved over 100 Israelis, primarily adolescents, some
seventeen years after the event. Their findings suggest
that very intense victimization, particularly in terms of
physical injury, had the strongest effect on long-term
adjustment compared to moderate or minimal victim-
ization during the same extended traumatic event.
On the other hand, many victims have fairly good
emotional recovery from sudden physical injury of terror-
violence. In a follow-up survey of 254 French survivors
of terrorist attacks, posttraumatic stress disorder (PTSD)
was present in 11 per cent of uninjured victims, only 8 per
cent of the moderately injured, and 31 per cent of severely
injured victims. There was no difference in the incidence
of major depressive disorder (about 13 per cent for all
groups). Age and sex did not discriminate psychiatric diag-
noses (Abenhaim, Dab, and Salmi 1992). In ordinary dis-
asters, the majority of victims recover without long-lasting
substantial posttraumatic effects (Ursano, Fullerton, and
Norwood 1995), although media exposure and personal

injury litigation can exaggerate both perceived symptoms
and claims of distress.
VICTIMS’ FAMILIES
Families of victims are also victims (Dreman and Cohen
1990). Families of hostages, for example, suffer acute
trauma and sometimes chronic adaptive syndromes.
Release of hostages who have been held for months or
years brings a new and unexpected set of problems,
including guilt about some feelings and behaviors while
the victim was away, disruption of the family equilibrium
established in the victim’s absence, and denial of the
many issues that must be faced once release is secured.
Divorce is extremely common after a hostage-spouse
returns. The offspring of victims of war and concentra-
tion camps bear stigmata that may or may not be seen as
symptoms. There is a large literature that describes, for
example, the development and upbringing of children of
holocaust survivors (Dreman 1989).
MILITARY AND LAW ENFORCEMENT
PERSONNEL
Law enforcement professionals, military personnel and
others who deal with terrorism and its victims also become
victims. Qualified post-shooting counseling and other
forms of intervention by experienced professionals, some-
times as simple as stress management, are important.
SOCIETAL VICTIMS
Large segments of the population who are not physically
touched by terror-violence may nonetheless bear sub-
stantial effects (Merari and Friedland 1985; Austin 1989;
Reid 1989). Fears of airplane hijacking or bombing, gov-
ernment (or self-imposed) travel restrictions (even when
the probability of injury is low), restricted exchange of sci-
entific information, and bias against entire countries and
cultures associated – perhaps only by the news media –
with terrorism all contribute to a general feeling that the
world is a dangerous place, in which one must constantly
be on guard. Reasonable caution notwithstanding, such
feelings are reminiscent of the Eriksonian choice of basic
trust versus mistrust (Erikson 1963). The former implies
a realistic, positive outlook and social adaptation; the lat-
ter is associated with great limitation of one’s views and
opportunities.
Law enforcement training and support
Qualified mental health professionals can offer basic
clinical training to law enforcement and military response
teams that may be useful in crisis intervention, assessment
of perpetrators and victims, victim support, stress man-
agement, departmental risk management, and a number of
other areas. The reader should note that this does not mean
Terrorism and forensic psychiatry 665
clinicians should become field intervenors or negotiators,
or that police officers will acquire the skills and experience
of clinicians. Our purpose is to impart basic knowledge
that will be useful to field personnel during hostage or
terrorist incidents.
Experienced law enforcement and military profes-
sionals often possess considerable intuition and psycho-
logical skill. On the one hand, the teacher should not
assume that he or she always knows more than the stu-
dent; on the other, one should not mistake bravado or
‘street smarts’ for deeper knowledge.
Clinicians are occasionally called upon to assess per-
petrators in absentia in the midst of incidents (such as
hostage situations) or between crimes (e.g., to help ‘pro-
file’ serial murderers or rapists). One should be cautious
about inferring psychopathology in persons who are
not available for examination, even when supplied with
background information. If the person is a psychiatric
patient for whom records are available (or perhaps one’s
own patient), the clinician’s inference may be fairly accu-
rate; however, applying clinical knowledge to real-life
crisis settings is not as straightforward as one might
assume. Predicting specific behavior is, as most profes-
sionals know, primarily the stuff of movies and other fic-
tions. Some professional profiling teams, such as those
trained and maintained by the Federal Bureau of Inves-
tigation (FBI) and a few private groups, have limited
success in identifying perpetrators and assessing and
predicting criminal behavior; however, they draw exten-
sively from social and criminological expertise and
experience, not just clinical psychology.
The issue of ‘agency’ is very important when working
with police and the military. Is the doctor or counselor an
agent of the organization? The person being seen? Neither?
Therapists who work within law enforcement and military
organizations must be familiar with – and accept – their
particular rules and expectations (e.g., regarding confi-
dentiality and others’ access to clinical information). The
limits of doctor–patient/client privacy, for example, must
be discussed at the beginning of evaluation or treatment,
whether with victims, perpetrators, defendants, or staff.
Perpetrator evaluation and treatment
It is important to note first that this section refers to
post-arrest evaluations, and not necessarily to field con-
sultations. One should follow the same principles and
procedures in perpetrator evaluations as in other foren-
sic matters with similar presentations: be aware of the
uses to which evaluation findings may be put; notify the
evaluee of one’s intent and any constraints on confiden-
tiality, and the like. If the person has recently been arrested,
the clinician should verify that counsel has been retained
and the evaluee’s rights have been appropriately protected.
Cases involving terrorism are often sensationalized
in the media. Being asked to participate in them may be
666 Special clinical issues in forensic psychiatry
flattering, and may feed one’s narcissism. Evaluators should
take pains not to treat suspected terrorist defendants as
‘special’ (either positively or negatively), to work profes-
sionally, and to accord them the rights and forensic
procedures appropriate for all defendants. One should
be careful not to step outside the bounds of his or her
expertise or ethics (Soskis 1983a). Forensic mental health
professionals working within law enforcement, intelli-
gence agencies, or the military should be familiar with the
parameters of their sometimes-unique roles, but never-
theless retain their posture as ethical clinicians.
Terrorists sometimes require psychiatric or psycho-
logical treatment in jails or prisons. They should be treated
by someone other than a person who is evaluating them
for a lawyer or court, in order to avoid conflict of interest
and protect the legal usefulness of the forensic evaluation
(Reid 1998). Treatment itself is addressed elsewhere,
in the chapter(s) on correctional psychiatry.
Roles to avoid
Psychiatrists and other mental health professionals occa-
sionally work with military and law enforcement teams,
with duties generally consistent with their clinical tradi-
tions and expertise. In some parts of the world, they are
also trained for, and given, roles such as interrogator or
hostage negotiator, outside their usual professional tenets
(Soskis 1983a; Soskis 1983b). The reader should be aware
of roles that mental health professionals should almost
always avoid.
Psychiatrists and psychologists are almost never law
enforcement officers. If one wants to be a policeman, one
should change career. Just as a law enforcement posture
is not very useful in clinical settings, neither is it appro-
priate to ‘play cop’ when situations call for law enforce-
ment expertise and professionalism. It is a seductive fantasy
for some, but a potentially dangerous one.
Physicians and other clinicians may legitimately par-
ticipate in military and law enforcement operations;
however, it is very important that our roles be clear and
within carefully developed ethical guidelines (Soskis
et al. 1982). This is not merely a matter of weighing one
ethic against another, or of replacing traditional ethics
with situational ones. If a police or military commander
asks a psychiatrist what drug might be surreptitiously
placed in a hostage-taker’s food to sedate him, the doctor
must not be tempted by the so-called ‘greater good’ of
‘protecting innocent hostages.’ The ‘greater good’ may or
may not be truly greater, and may or may not really pro-
tect the hostages. The only certainties are the immediate
ethical breach and the slippery slope on which the pro-
fessional then finds himself.
Role confusion is another reason to separate law
enforcement from clinical activity:
Dr. A. had an interest in military and police work which
was initially expressed in collecting weapons and
enjoying a law enforcement ‘ride-along’ program.
When the police department developed a citizen
auxiliary group, he joined and participated in such
things as crowd control and emergency traffic duty.
He eventually had red and blue lights installed behind
the grill of his car. A few months later, he was cen-
sured for trying to make late-night hospital rounds
wearing his uniform and handgun. Several years
later, he was censured for leaving a handgun in plain
sight in his car, while parked on the grounds of a
government hospital.
Dr. B. introduced himself to one of the authors at
a professional meeting by saying he was a ‘member
of the (city) S.W.A.T. team.’ After some discussion, it
became clear that he had been a police consultant and
liked to view himself as part of the terror-violence
and hostage response team. He said he was carrying
a concealed handgun during the meeting, and
implied that he had to be prepared for dangerous
duty at all times. A later conversation with a local law
enforcement executive revealed that Dr. B. was not
authorized to carry the weapon (that state had no
concealed-carry permit statute), and he was con-
sidered something of a ‘kook’ by area cops.
CONCLUSION
Terrorism is a complex topic that, contrary to a few
published papers and much media attention, supports
few absolutes and defies ‘unified’ theories of cause or cure.
Many of its facets are irrelevant to psychiatry and the
other mental health professions, and vice versa, but there
are clinical and forensic roles for psychiatrists and other
qualified mental health professionals. The authors would
caution colleagues to pay particular attention to special
training needs, issues of role and agency (i.e., what and
whom does the clinician represent?), and ethics. The
canons of our professions and the mantle of professional
identity cannot be shed without serious consequences.
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Torture and brainwashing
RAHN KENNEDY BAILEY
New accounts of torture and brainwashing came to the
forefront during the 2000 presidential campaign, when
Arizona Senator John McCain described his experiences
as a Vietnamese prisoner of war. His experiences while
imprisoned impacted the American consciousness with
their vividness and horror. However, these experiences
are not unique in the human experience, and history
is full of such similar accounts. Historically, humans in
their attempts to control others’ behavior have developed
unimaginable types of physical torture (e.g., the rack,
guillotine, crucifixion, and impalement) (Cunningham
and Cunningham 1997). Despite cultural and human
evolution, these practices have continued in the human
experience for years.
The accounts of psychological torture and coercion as
well as the resultant psychological/psychiatric disturbances
of torture are similarly of recent concern. The emergence
of cults and the study of those victims have increased the
knowledge base in this area. The study of cult victims has
led to the development of evidence that people who seem-
ingly voluntarily enter into these controlled situations,
suffer psychological, as well as physical, financial, and other
harms as a consequence of their having been manipu-
lated, influenced, and controlled (West and Langone 1985).
Psychological methods of captors as well as the subse-
quent psychological disturbances associated with torture
will be further examined in the ensuing sections.
HISTORICAL EVIDENCE OF MANIPULATION
AND CONTROL
Survivors of torture provide fertile research in the area
of the psychopathology. Survivors of the Holocaust have
left behind case examples, which have been analyzed
by the psychiatric and psychological community for over
fifty years. More recently, survivors of Southeast Asian
torture and manipulation have provided further case
studies of the phenomenon, showing they have been a
highly traumatized group, suffering from major affective
disorders and posttraumatic stress disorders (Mollica,
Wyshak, and Lavelle 1987).
69
Amnesty International regularly identifies nations
and regimes that are engaging in the torture of prisoners,
showing torture is routinely used while detaining indi-
viduals, even before they are charged or sentenced. These
abuses can range from deliberate neglect and overall mis-
treatment, to exacting physical torture (including blows
to the head, prolonged blindfolding, forced awakenings,
electrical shocks, burns, near-drowning, rupturing the
eardrums, amputations and other mutilations, starvation,
sexual abuse, sham execution), and threats of death. Some
regimes merely use threats of torture to control entire
populations.
Some groups today engage in political terrorism to
accomplish their goals. With events now occurring world-
wide, affecting even the population of the United States as
evidenced by the recent World Trade Center bombing in
1993 and total destruction in 2001, and bombing of the
Federal Building in Oklahoma City, Oklahoma. Terrorist
groups engage in assassinations, random bombings, sui-
cide missions, biological/disease warfare and hostage tak-
ing. The survivors of these violent occurrences (like
torture victims) are found to suffer from physical, mental,
emotional, and behavioral problems that are difficult to
understand and/or treat (Basoglu et al. 1997).
Brainwashing
The American journalist, Edward Hunter coined the
term brainwashing, in 1951 from the Chinese ideographs
hsi nao. These words literally mean to ‘wash brain.’ Brain-
washing was also used by Hunter to describe the psycho-
social indoctrination technique known as szuhsaing
kai-tsao. This is in reference to the thought reform
method used by Mao Tse-Tung to eliminate from the
Chinese people all forms of ‘wrong thinking,’ and instead,
convert them to communism or to be sympathetic to
Marxist values and beliefs (Lifton 1961). Torture, as pre-
viously described, was not an adjuvant factor in this
process of thought reform. During the 1950s, however,
the American use of the term brainwashing began to
encompass a wider range of meanings, referring to any
process used to change beliefs, even via force.
670 Special clinical issues in forensic psychiatry
Similarity to cult behavior
Dependency on the captor, particularly with regard to
the flow of information and interpersonal support, is a sig-
nificant technique used in the psychological control or
influence of cults over their victims, resulting in totally
separating a recruit from his social support network (West
1989). The similarities in the methods used by the Chinese
communists and cults are remarkable (Schein 1961), with
the following techniques being used on both prisoners of
war and cult new recruits: communication channel con-
trol; sleep/food deprivation; self-degradation; induction of
uncertainty; alteration of leniency and harshness; peer
pressure; repetitive tasks; insistence that survival depends
on group identification; and symbolic acts of renunciation.
THE PSYCHOLOGICAL EFFECTS OF TORTURE
Survivors of such conditions are likely to experience a
wide range of physical and psychiatric disorders subse-
quent to the trauma, and are in general at increased risk
for a variety of physical illnesses, including infectious dis-
eases, malignancies, strokes, and heart disease. Neurological
and sensory symptoms, gastrointestinal complaints, pain
of the musculoskeletal system and various cutaneous
signs are also manifested. In addition, virtually all victims
display significant symptoms of posttraumatic stress dis-
order (Allodi 1991).
Child and adolescent victims display a wide variety of
manifestations from torture and brainwashing. The child
frequently re-enacts the traumatic event or similar events
while playing. They may display a distorted sense of time,
have visual disturbances, express a pessimistic view of the
future, suffer sleep disturbances, and display apprehen-
sion in addition to other personality changes, resulting in
problems with development processes.
Civilian victims of terrorism, like prisoners of war,
often become dependent upon the captor for physical and
psychological needs when in situations from which there
is no escape. The ‘Stockholm Syndrome’ has been used
to describe the paradoxical attachment that can develop
between the captors and captives (Strentz 1980). Following
an attempted bank robbery in 1974, several employees
and customers were held hostage in a Stockholm bank for
several days. One female hostage fell in love with a captor
during the ordeal, and her feelings remained intact for a
period of time after her release. Similarly, in 1975, during
a thirteen-day seizure of a Dutch train by South Moluccan
terrorists, a number of the hostages expressed affection for
their murderous captors, coupled with a distrust of their
own government’s authorities. West coined the phrase,
‘identification with the aggressor’ for this phenomenon
rather than ‘Stockholm Syndrome’ (West 1964). This
concept is often useful in understanding the paradoxical
attitudes and behaviors, not only among former hostages,
but also battered wives, abused children, and prisoners
under various conditions of captivity. These feelings of
sympathy for as well as attachment to the captor, have
been described by such former victims as the Italian Judge
Giuseppe Digennaro, who was held by members of the
Red Brigade, and Dr. Herrema, who was captured by the
Irish Republican Army.
TREATMENT OF VICTIMS OF TORTURE
AND BRAINWASHING
Posttraumatic stress disorder has been know by various
other labels throughout history, including traumatic
neurosis, war neurosis, shell shock, combat fatigue, oper-
ational fatigue, and combat exhaustion (Allodi 1994).
During the Civil War, the United States government first
began treating soldiers who suffered from ‘nerve disease’
and ‘wounds of the nerves’ when Dr. S. Weir Mitchell
devised his now famous ‘rest cure.’ In 1863, Surgeon
General Joseph K. Barnes changed the War Department’s
common practice of simply discharging mentally ill sol-
diers without making provisions for both their safety and
after care. Subsequently, the government began providing
funds for both asylum treatment and further care.
American psychiatric casualties were first acknow-
ledged as a major health problem during World War I,
and base hospitals accepted patients in their newly
created psychiatric wards. Medical care was assumed by
the Veterans Administration Hospital (VAH) in 1930, and
the Department of Veterans Affairs in 1989. Deutsch
(1944) reported that at the start of World War II, three
out of every five beds in the VAH were occupied by
psychiatric disabilities.
CLINICAL CONCERNS
Death, either at the hands of the captor or by suicide, is a
common end of victims of captivity. For example, the incar-
cerated in the United States show a three- to thirteen-fold
higher rate of suicide than the populace (Burtch and
Ericson 1979). Indeed, prison conditions often promote
isolation, dehumanization, and a general lack of social
support, often leading to feelings of hopelessness, help-
lessness, and suicidal ideations. When combined with
abuse or torture, the suicide risk dramatically rises. Thus,
clinicians should be aware of the need for effective and
immediate treatment immediately following the trau-
matic event. Clinicians should also understand that the
memories of the traumatic events will never be erased,
and therefore the primary focus of treatment is one of
intervention to: (i) reduce the frequency and intensity of
the victim’s symptoms; (ii) assist in reducing the dura-
tion of each episode; and (iii) lessen the resultant disabil-
ity, thereby decreasing factors related to morbidity.

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Substance abuse and addiction
MACE BECKSON, GEORGE BARTZOKIS AND ROBERT WEINSTOCK
In a society in which approximately one in five Americans
will have a problem with substance abuse during their
lifetime, an understanding of the basic issues of sub-
stance abuse is a necessity for forensic psychiatrists as
substance dependence, abuse, and addiction may be rele-
vant in many forensic evaluations. Because of denial by
many if not most substance abusers, knowledge of this area
is especially essential so that its role can be recognized.
PSYCHOACTIVE SUBSTANCES AND
‘ADDICTION’
Psychoactive substances are chemicals that affect the way
an individual feels. This chapter will focus on those psy-
choactive substances that are abused, including alcohol,
illicit drugs, and certain prescribed medications, such as
painkillers. In addition to affecting mood states, psy-
choactive substances may have profound effects on
cognition, behavior, and physiology, and therefore they
influence how we function in an interpersonal and social
context. Use of alcohol and other drugs can produce acute
intoxication, withdrawal states, substance-induced psy-
chiatric syndromes, and lead to syndromes of substance
abuse and dependence (i.e., addiction). The commonly
used term ‘addiction’ has become ever more ambiguous
as it has been applied to everything from shooting heroin
to playing video games and has been called ‘the trouble-
some concept’ (Achers 1991). The term has political and
moral meaning, and reflects social modes of consumption,
the limits of normative behavior, and the constitution of
deviance (Quintero and Nichter 1996). The expert who
communicates to judge or jury should remain sensitive to
these semantic issues and specify the meaning intended.
SOCIAL HISTORY AND EPIDEMIOLOGY
OF ALCOHOL AND DRUGS
Mankind has utilized psychoactive substances throughout
history. Examples in the United States include the heavy
70
use of hard liquor in colonial America; the widespread
use of narcotic-containing patent medicines in the nine-
teenth century; the cultural embrace of the cigarette in
the middle of the twentieth century; the widespread use
of marijuana in the 1960s; the ‘crack epidemic’ of the
1980s; and the success of Starbuck’s coffee in the 1990s.
Moral considerations have long colored the social view
of alcohol and other substances of abuse. Victorians saw
alcoholism as a disease of the will, while the temperance
movement saw alcohol as being corrupting and evil and
hence sought its outright removal from society. Largely
ineffectual efforts to curb substance abuse have included
the Pure Food and Drug Act of 1906, the Harrison
Narcotics Act of 1914, prohibition under the Eighteenth
Amendment to the U.S. Constitution and the Volstead
Act of 1919, harsh criminal sentences for substance
abusers, and the ongoing ‘war on drugs.’ A more detailed
view of the historical and social context of substance
abuse can be found elsewhere (Westmeyer 1998; Belenko
2000).
The National Institute of Mental Health Epidemiologic
Catchment Area study, conducted in five cities in the
United States, found lifetime prevalence rates of 13.5 per
cent for alcohol disorders alone, 6.1 per cent for drug dis-
orders alone, 22.5 per cent for mental disorder alone, and
29 per cent for comorbid mental and addictive disorders
(Robins and Regier 1991). It was seven times more likely
for an alcoholic or drug addict to suffer from the other
addictive disorder. Some 37 per cent of those with alcohol
disorders and 53 per cent of those with drug disorders
had comorbid mental disorder – almost five times the
likelihood of the general population. Those with bipolar
disorder had almost 61 per cent prevalence of comor-
bid substance abuse; those with schizophrenia had 47
per cent comorbidity, and those with mood disor-
ders had 32 per cent comorbidity. In another study,
among those with antisocial personality disorder, 39 per
cent had definite alcoholism and 12 per cent had possible
alcoholism; borderline personality had a 43 per cent
prevalence of alcoholism (Cloniger, Bayon, and Przybeck
1997).

PHARMACOLOGY
Psychoactive substances are usually consumed by inges-
tion, sniffing, inhalation, or by intravenous injection.
Characteristic pharmacodynamic and pharmacokinetic
features are important in understanding the acute and
chronic effects of a substance in any given individual, as
well as usual patterns of use and the time window of detec-
tion in bodily fluids. In addition, it must be appreciated
that there are individual differences among users based on
the user’s own physiology and psychology. Furthermore,
the effects of any given psychoactive substance will be influ-
enced by the setting in which the substance is consumed, as
well as the individual’s expectations (or mind ‘set’) pertain-
ing to the psychoactive substance use. Psychoactive sub-
stances can be broadly classified as central nervous system
(CNS) stimulants and CNS depressants. In such a scheme,
cocaine, amphetamines (and the amphetamine-derivative
Ecstasy), caffeine, and nicotine are CNS stimulants; alco-
hol, barbiturates, opiates, and benzodiazepines are CNS
depressants (marijuana, PCP, LSD, inhalants, and anabolic
steroids fall outside such a division). The specific pharma-
codynamic and pharmacokinetic features of the various
psychoactive substances are discussed in detail elsewhere
(Hardman and Limbird 1996).
DETERMINANTS OF SUBSTANCE ABUSE
Addiction is a highly complex biopsychosocial phenom-
enon, with a growing body of data and hypotheses reflect-
ing research in genetics, biochemistry, animal behavior,
psychology, psychotherapy, pubic health, economics, and
sociology (see Lowinson et al. 1997 for more detailed dis-
cussion). Animal research has provided self-administration
paradigms and the demonstration of the importance of
mesocorticolimbic dopamine pathways in reinforcement
in such models (Koob 2000). Addiction is theorized to be
a neuroadaptational result of over-stimulation of ‘pleas-
ure pathways’ in the CNS, in which down-regulation of
hedonic brain mechanisms results in craving and relapse
(Di Chiara, Acquas, and Carboni 1992). Genetic research
on substance abusers is increasing; the dopamine recep-
tor gene has been hypothesized to play a role in the devel-
opment of addiction (Reich et al. 1999; Noble 2000).
Substance-induced frontal lobe dysfunction has been
hypothesized to explain the impairment of self-control
described in addictions (Lyvers 2000). The frontal lobes
are thought to provide ‘executive functions’ such as
abstract reasoning, insight and judgment, planning, exe-
cution and evaluation, and inhibition of inpulses (Stuss
and Benson 1986). Brain imaging studies have demon-
strated acute and chronic effects of alcohol and some
drugs on the frontal lobes (Volkow et al. 1994; Volkow
et al. 1996). Furthermore, recent reports suggest that
cocaine, which has powerful vasoconstrictive effects,
Substance abuse and addiction 673
does seem to change brain morphology (Bartzokis et al.
1999; Bartzokis et al. 2002; Lim et al. 2002). These studies
suggest that chronic abuse may result in reduced brain
myelination in adulthood and thus contribute to deficits
in impulse control (Bartzokis et al. 2002). Brain imaging
studies have demonstrated acute and chronic effects of
alcohol and some drugs on the frontal lobes, which are
thought to provide ‘executive functions’ such as abstract
reasoning, insight and judgment, planning and eval-
uation, and inhibition of impulses (Stuss and Benson
1986; Volkow et al. 1994; Volkow et al. 1996). Genetic
research on substance abusers is increasing; the
dopamine receptor gene has been hypothesized to play a
role in the development of addiction (Reich et al. 1999;
Noble 2000).
The ‘self-medication hypothesis’ posits that individuals
predisposed by biological or psychological vulnerabilities
use substances as a partially successful attempt to relieve
psychological suffering; a person’s preference for a par-
ticular drug involves some degree of psychopharmaco-
logical specificity (Khantzian 1999a). Case studies of
substance abusers in treatment have emphasized self-
regulation vulnerabilities: addicts have problems regulat-
ing feelings and demonstrate self-esteem deficits that
result in an inability to get needs met or to establish sat-
isfying relationships. They are also deficient in self-care
capacities that otherwise would protect them against
harm by utilizing reality-testing, judgment, control, sig-
nal anxiety, and the ability to draw cause-consequence
conclusions (Khantzian 1999b). Such difficulties help
elucidate how Alcoholics Anonymous successfully pro-
vides a method of recovery (Khantzian and Mack 1999).
Cognitive approaches emphasize dysfunctional beliefs
that revolve around drugs or alcohol; faulty thinking and
maladaptive beliefs present major obstacles to quitting
(Beck et al. 1993).
‘Intrapersonal factors’ have been noted to help deter-
mine aspects of the social environment, which in turn
alter the probability of drug use. Furthermore, intraper-
sonal factors alter chances of initiation, as well as the
transition from initiation to regular use of a drug, and
the transition from regular drug use to problem use
(Newcomb and Earleywine 1996). Such factors include
personality, cognitions, affect, problem behaviors, bio-
genetics, demographics, and bonding (Newcomb and
Earleywine 1996). Contextual variables (i.e., availability
or utilization of other competing reinforcers and asso-
ciated environmental constraints), in applying behav-
ioral theories of choice, have predictive validity with
regard to drug use behavior: as positive reinforcement
from drug-free activities diminishes, the frequency of
drug use increases (Correia et al. 1998). Economic theo-
ries of ‘rational choice’ and ‘constrained utility maxi-
mization’ have been demonstrated to apply to substance
abusers, and even in the case of addictive commodities,
the law of demand still applies (Chaloupka and Pacula
2000).
674 Special clinical issues in forensic psychiatry
ADDICTION: DISEASE OR SYMPTOM?
Despite the diagnostic cataloguing of substance use dis-
orders by national and international medical organiza-
tions, there still remains controversy about whether
addiction is a symptom or disease. The American Medical
Association states that drug dependencies are diseases
(American Medical Association 2001a) while the American
Psychiatric Association and the World Health Organization
define ‘substance dependence’ as a mental disorder, pre-
ferring to avoid the much confused and stigmatized label
of ‘addiction’ (World Health Organization 1992; American
Psychiatric Association 1994). The disease model pro-
claims addiction as a ‘brain disease’ like schizophrenia
and Alzheimer’s disease: this may reflect both the concept
that the individual cannot and will never be able to use
substances moderately (genetic or quasi-genetic neuro-
physiological deficiency), as well as the concept that the
disease reflects the profound effects of the abused sub-
stances on the individual’s neurophysiology. Such theory
fuels hope that a pharmacological treatment for addic-
tion can be determined based on such a biological under-
standing. In the psychological model, alcohol and drugs
are viewed as agents used by vulnerable individuals to
self-regulate their internal state. The ‘cultural construct-
ivist model’ argues that addiction is an environmentally
specific, culturally relative behavioral adaptation, while
the ‘political economy model’ ties the ‘diagnosis of addic-
tion to bourgeois medicine and drug use to alienation,
poverty, global markets, and labor forces that render
drug use a dysfunctional form of coping in a chaotic
world where instant gratification has strong appeal’
(Quintero and Nichter 1996). Finally, the utilitarian model
argues that while addiction may not be a biomedical dis-
ease, providing such a designation offers sufferers legit-
imate access to the sick role, reduces stigma, and enables
treatment (Acker 1993; Quintero and Nichter 1996).
Despite a growing body of biological research and
theory, there is a dearth of effective pharmacological
treatment for substance dependence. In fact, addiction
specialists still rely heavily on the non-medical self-help
fellowships such as Alcoholics Anonymous to support
the initiation and maintenance of sobriety in alcoholics
and drug addicts. Extrapolation from animal models to
the complexity of human behavior remains a problem,
while brain imaging studies of humans, despite produ-
cing intriguing pictures, suffer from the lack of normative
databases regarding human emotional states and behav-
ioral patterns (Kulynych and Jones 2001). The specificity
of dopaminergic pathways for drugs of abuse is blurred
by research in which stress causes dopamine release in
the rat nucleus accumbens, in seeming contradiction to
the theory that such release reflects pleasure or positive
reinforcement (Gray, Young, and Joseph 1997). Indeed,
others have suggested that this pathway is correlated with
stimulus novelty or relevance, or is involved in reward
learning or ‘incentive salience’ (Frenk and Dar 2000).
Food, water, and sexual opportunity also cause mesolim-
bic pathway activation; furthermore, clinical addiction-
like syndromes have been described for gambling, eating,
and sexual behavior (Damssma et al. 1992; Young, Joseph,
and Gray 1992; Wickelgren 1997). In this light, addiction
has been hypothesized to be one of many related behav-
ioral conditions that make up ‘obsessive-compulsive spec-
trum disorders’ (Hollander and Wong 1995; Stein 2000).
Contrary to a scenario in which biological need solely
dictates substance consumption, there is a negative price
elasticity associated with the price of alcohol and drugs,
in which substance ‘consumers’ use correspondingly less
quantity when the price is raised; when inconvenience and
legal sanctions raise the ‘price’ of using, consumption goes
down (Chaloupka et al. 1999). Social restrictions on
smoking in the workplace, in restaurants, and in bars in
California has been associated with the lowest smoking
rates in the country; furthermore, a growing percentage
of California smokers are ‘discretionary’ smokers, who
smoke only on occasion, when convenient (Gilpin, Cavin,
and Pierce 1997). While the brain is an integral part of
substance dependence, the proclamation by some that
addiction is a ‘brain disease’ is overly reductionistic and
does not explain the complexity of addiction. The psychi-
atric tradition calls for examining biological, psychologi-
cal, and social factors as critical in understanding
addictive phenomena in an individual human being. The
forensic expert should function within a broad, multifac-
eted conceptual model, ever sensitive to the range of ori-
entations and beliefs among lay people and experts.
DIAGNOSIS
The text revision of the fourth edition of the Diagnostic
and Statistical Manual (DSM-IV-TR) of the American
Psychiatric Association provides operational criteria for
making a diagnosis of substance dependence, the term
used to encompass pathologically compulsive substance
use, in the past variously referred to as addiction, habitu-
ation, physical dependence, and psychological depend-
ence (American Psychiatric Association 2000). It should
be noted that the DSM is a so-called ‘consensus’ docu-
ment, meaning it is drafted by committees of experts,
to reflect the current state of clinical and scientific
understanding, subject to both compromise and revi-
sion. Nevertheless, the DSM-IV-TR provides the most
common nomenclature.
In the current DSM-IV-TR, substance dependence is
described as a mental disorder. It is considered a ‘cluster of
cognitive, behavioral, and physiological symptoms indi-
cating that the individual continues use of the substance
despite significant substance-related problems … there is a
pattern of repeated self-administration that usually results
in tolerance, withdrawal, and compulsive drug-taking

behavior.’ The diagnosis is made when there is a ‘mal-
adaptive pattern of substance use, leading to clinically
significant impairment or distress.’ As part of such a mal-
adaptive pattern, at least three of seven criteria must
occur at any time in the same twelve-month period. The
seven criteria include: tolerance; withdrawal; taking the
substance in larger amounts or over a longer period than
intended; persistent desire or unsuccessful efforts to cut
down or control use; spending a great deal of time obtain-
ing, using, or recovering from the substance; reducing or
giving up important social, occupational, or recreational
activities; continued use despite knowledge of having a
persistent or recurrent physical or psychological problem
caused or exacerbated by the substance. In addition,
DSM-IV-TR provides criteria for a diagnosis of substance
abuse, in which there is a maladaptive pattern of use
manifested by recurrent adverse consequences such as risk
of physical injury or legal, social, or interpersonal prob-
lems. Individuals may be diagnosed with substance abuse
when they fulfill the appropriate criteria and have never
met the criteria for substance dependence. There are also
DSM-IV diagnoses of intoxication and withdrawal,
which reflect the particular features of the syndrome for
each individual substance.
It is important to note that in the DSM-IV-TR, the
diagnosis of substance dependence does not depend on
how many drinks an individual consumes, or how fre-
quently during the week the drug is taken. Furthermore,
the dependence criteria do not include craving, a com-
monly used term which is difficult to define and oper-
ationalize. DSM-IV-TR utilizes a single definition to fit
all substances of abuse, emphasizing the commonality of
the syndromes. This choice is controversial and does not
mean that there are not differences between different
substances of abuse. Nor do the diagnostic criteria predict
treatment response in an individual. Generally speaking,
an individual with all of the criteria is more severely
dependent than someone with only a few. The DSM-IV
has ‘course-specifiers’ referring to early or late, partial
or sustained remission. The chronicity and relapsing-
remitting nature of the disorder are captured by these
terms. In Alcoholics Anonymous, individuals are consid-
ered either sober or relapsed (there is no partial sobriety)
and the term relapse is only used when it follows a signifi-
cant period of sobriety.
USE OF DSM-IV-TR IN FORENSIC SETTINGS
As noted in the Introduction to the DSM-IV-TR, ‘there
are significant risks that diagnostic information will be
misused or understood’ … due to ‘the imperfect fit
between the questions of ultimate concern to the law and
the information contained in a clinical diagnosis. In
most situations, the clinical diagnosis of a DSM-IV-TR
mental disorder is not sufficient to establish the existence
Substance abuse and addiction 675
for legal purposes of a “mental disorder,”“mental disabil-
ity,” “mental disease,” or “mental defect.” In determining
whether an individual meets a specified legal standard
(e.g., for competence, criminal responsibility, or disabil-
ity), additional information is usually required beyond
that contained in the DSM-IV-TR diagnosis. This might
include information about the individual’s functional
impairments and how the impairments affect the
particular abilities in question’ (American Psychiatric
Association 2000, p. xxiii).
With regard to substance use disorders in particular,
there may be important questions about the implications
of a substance dependence diagnosis for such issues as
an individual’s ability to quit using the substance; the
voluntariness of drug-using and associated behaviors;
and responsibility for such behaviors. These must be
specifically addressed and clarified for the trier of fact.
Further discussion follows in this chapter.
PROCESS ADDICTIONS AND ADDICTIVE
BEHAVIORS
Recently, certain compulsive behaviors have begun to be
viewed by some as similar in their phenomena to psy-
choactive substance abuse, e.g., pathological gambling,
sexual addiction, compulsive overeating. These have
been called ‘process addictions’ as opposed to ‘chemical
dependency’ (Burglass 1997; Goodman 1999; Rosenthal
and Lesieur 1996). These behaviors have been noted to
involve phenomena of euphoria, tolerance, withdrawal-
like syndromes, craving, and compulsive use despite
adverse consequences. Just as there are self-help fellow-
ships such as Alcoholics Anonymous for dependence on
substances, there are many for dependence on various
behaviors, such as Gamblers Anonymous, Sex Addicts
Anonymous, and Overeaters Anonymous. Whether these
behavioral problems are best classified as addictions is
controversial, although history has already witnessed that
important early advances in the treatment of alcoholism
took place in lay, rather than medical settings. Since such
problem behaviors may also present in forensic contexts
they are noted here. The DSM-IV includes only patholog-
ical gambling as an official diagnosis, listed under the cat-
egory of Impulse Control Disorders, as distinguished from
Substance-Related Disorders.‘Obsessive-compulsive spec-
trum disorders’ has been proposed as a concept that links
a variety of impulsive-compulsive behavioral disorders,
including substance dependence and the process addic-
tions (Hollander and Wong 1995; Stein 2000).
ASSESSMENT
Unfortunately, most medical and graduate programs
devote limited time to substance abuse and addiction
676 Special clinical issues in forensic psychiatry
issues. Psychiatrists may train in subspecialty fellowship
programs approved by the Accreditation Council for
Graduate Medical Education and can earn subspecialty
certification from the American Board of Psychiatry and
Neurology as recognition of their expertise. Other physi-
cians, as well as psychiatrists, may earn certification by
the American Society of Addiction Medicine. Psycholo-
gists may receive certification through the American
Psychological Association.
Alcoholics and substance abusers do not usually pre-
sent themselves for diagnosis or treatment to addiction
specialists. In medical settings, typically they present to
primary care clinicians for complications of their addiction
or unrelated medical problems. Alcoholics and addicts
present to psychotherapists, counselors, or clergy for
mood, relationship, and work difficulties. Failure to diag-
nose a substance abuse problem is common. The clin-
ician must be sensitive to clinical indicators and make
specific assessment. Alcoholics and addicts experience
shame and denial regarding their substance abuse prob-
lems, which are stigmatized as reflecting poor moral
character, weakness of will, or criminality. As a result, the
individual may not self-identify alcohol or drugs as an
issue. Furthermore, family members may themselves be
in denial of the seriousness of the problem, may facilitate
the addict’s continuing use, and may rescue the addict
from predicaments created by the substance abuse. Of
course, in some forensic contexts, intoxication or addic-
tion may be purposefully put forth by a defendant as an
excuse for an illegal act, or by a plaintiff as an example of
disability or damages, or may be falsely denied because
of psychological denial of the problem or a wish to hide
something that could create problems in a legal setting.
Assessment requires thorough review of the psychi-
atric and medical history, as well as mental status exam-
ination and toxicological testing. All available records and
collateral sources of information should be obtained, as
substance abusers are frequently a poor source for reli-
able history. Subjective questionnaires may be used for
screening purposes (e.g., Michigan Alcohol Screening
Test; Selzer 1971). Neuropsychological testing can be valu-
able in determining cognitive deficits in chronic abusers
or in assessing for psychosis, depression, and personality
disorder. Physical examination and laboratory testing
can often provide evidence of the medical sequelae of
chronic substance abuse. A substance abuse problem
should be suspected in anyone with a psychiatric history,
as substance use is more common in the psychiatric than
in the general population. Mood disorders, schizophre-
nia, posttraumatic stress disorder, and personality disor-
ders are commonly complicated by substance abuse.
Furthermore, alcohol and drugs can produce mood syn-
dromes, paranoia, and psychosis. Medical complications,
such as gastritis or fractures, may result from alcohol and
drug abuse. Addiction may result in poor or deteriorat-
ing psychosocial functioning, including marital and
employment problems. There may be a family history
of substance abuse. Review of legal history may reveal
arrests for driving under the influence or possession of a
controlled substance. Memory, concentration, problem-
solving, and abstract reasoning may be adversely affected
by chronic alcohol or drug use. Toxicology utilizing
urine, blood, hair, or breath may be positive for alcohol
or illicit drugs and should be obtained if there is a suspi-
cion of substance use. Similarly, other laboratory testing
may reveal serum hepatitis or HIV, which can result from
intravenous drug abuse, or evidence of macrocytic anemia
or cirrhosis of the liver, both consistent with chronic
alcoholism. Physical examination may reveal the perfor-
ated septum of the cocaine sniffer, burns on the fingers of
crack smokers, the track marks of the heroin addict, or
the ascites of the alcoholic.
TREATMENT AND TREATMENT PLANNING
While relapse rates are high in substance abusers (25 to
97 per cent after one year), there is ample evidence that
treatment works, and is comparable to treatment results
found in the chronic medical disorders (Daley and
Marlatt 1992; McLellan et al. 2000). Contrary to old
notions, compulsory treatment, as mandated by the
Court, has been found to be as effective as treatment
obtained voluntarily by a highly motivated individual
(Miller and Flaherty 2000). Substance abuse treatment is
associated with reduction in crime (Wald, Flaherty, and
Pringle 1999).
Forensic psychiatrists may be called upon to make
treatment recommendations regarding substance abuse
problems; for example, in order to help the judge set
appropriate terms of probation. A good rule of thumb is
to suggest multiple modalities of treatment and surveil-
lance. Residential treatment may be required in an addict
who has not demonstrated an ability to initiate abstin-
ence or has failed previous outpatient programs. These
controlled settings provide individual and group treat-
ment in a drug-free environment that conducts ongoing
random drug testing. Day hospital treatment or intensive
evening programs provide less structure, but are consist-
ent with living at home or maintaining employment.
At the completion of a residential program, such outpa-
tient programs provide an appropriate step-down level
of care. Participation in Alcoholics Anonymous, Narcotics
Anonymous, or similar self-help fellowships provides
an important parallel modality while an individual is in
residential or outpatient treatment. Individual psychother-
apy in the outpatient setting can provide additional
attention to emotional or cognitive problems. Medication
therapy can include, where indicated, antidepressants or
antipsychotics for associated psychiatric comorbidity, or
include prescription of medications specific for supporting
abstinence, such as methadone for opiate dependence, or
naltrexone or antabuse for alcohol dependence.

A minimum of one year of treatment in one form or
another is prudent, given the high rates of relapse within
the first year of recovery. The progression from more struc-
ture to less structure over the course of the year allows
the initiation of abstinence, education about addiction,
development of relapse prevention skills, comfort with
Alcoholics Anonymous, definition of appropriate medi-
cation regimens, education and involvement of the fam-
ily, and gradual transition to greater levels of responsibility
and stress in everyday life. Ongoing evaluation of the
individual’s participation and success in treatment is
important because of the high rates of relapse; surveil-
lance and re-evaluations provide additional incentive.
Random urine toxicological testing on a twice-weekly basis
is a relatively good compromise of cost and yield in detect-
ing drug use. Attendance of required treatment activities is
also an indicator that the individual has not relapsed.
Re-examination by a forensic consultant on an intermit-
tent basis (e.g., every six or twelve months) can re-assess
the participation and success of the individual in question.
A comprehensive review of substance abuse treatment can
be found elsewhere (Galenter and Kleber 1999).
VIOLENCE, CRIME, AND SUBSTANCE ABUSE
Crime and substance abuse frequently co-occur (White
1997). Some 80 per cent of the nearly two million incar-
cerated adult Americans are or have been involved with
drugs (Belenko 2000). It is estimated that 60 per cent of
arrestees are incarcerated for drug-related charges, and
70 per cent of arrestees test positive for an illegal sub-
stance at the time of arrest (Sinha and Easton 1999).
Within inmate populations, those who abuse alcohol are
more likely to have been imprisoned for a violent offense;
nearly three-fourths of all inmates who had ever used
drugs used them in the month prior to arrest (Belenko
2000). Studies of homicides have reported that 45 to 80
per cent of offenders had been drinking at the time of the
crime (Bradford, Greenberg, and Motayne 1992). Assault,
robbery, and rape have a high correlation with alcohol
presence in both offender and victim; marital assault has
a high correlation with alcohol consumption; property
crimes and arson are associated with a high rate of
alcohol use (Bradford, Greenberg, and Motayne 1992).
Recent research has demonstrated that the comorbidity
of substance abuse with psychiatric disorders has been
implicated as a particularly strong risk factor for violence.
Such dually disordered individuals are more violent as a
group than individuals with a psychiatric illness alone;
those with a psychiatric disorder but without substance
abuse are no more violent than the general population in
their own neighborhood (Steadman et al. 1998; Monahan
et al. 2001).
What is less clear from the literature is the issue of
causality. Goldstein (1989) proposed three ways that drugs
Substance abuse and addiction 677
and violence could be related: (i) the pharmacological
effects of the drug on the user induces violent behavior;
(ii) the high cost of the drugs leads to economic compul-
sive violent crime to support continued use; or (iii) sys-
temic violence reflects the nature of the drug distribution
network. Substances of abuse do directly affect the human
CNS: alcohol can disinhibit impulses, affect attention and
cognition, impair judgment regarding risk, or increase
aggressive tendencies (Quigley and Leonard 2000). Experi-
mental research has demonstrated an increase in aggres-
sion among subjects exposed to alcohol under controlled
conditions (Quigley and Leonard 2000). Stimulants can
lead to paranoia and associated violence. However, in
experimental settings marijuana reduces aggression, even
though its use also is widespread in offender populations.
A similar contradiction applies to opiates. It is possible
that the illegality of these drugs is the relevant connec-
tion. Overall, the evidence that drugs induce violence is
limited; the pharmacological model probably accounts
for a relatively small percentage of violence, while the
systemic model may be the most relevant (Collins 1990;
White 1997).
The so-called ‘spurious model’ holds that there is no
direct causal link of substance abuse and violence, rather
they may share common causes or occur coincidentally
(White 1997). Young males account for a great deal of
violent behavior and they also tend to be the heaviest
substance abusers as a group. Both crime and substance
abuse tend to occur in similar demographic settings in
which delinquent behavior is the norm. Some hypothe-
size that drugs do not cause violence, rather violence
itself leads to substance abuse as evidenced by the ten-
dency of aggressive individuals to migrate towards sub-
cultures in which there is heavy substance abuse, or for
criminals to utilize intoxicants to calm their nerves prior
to committing a crime (White 1997). In addition, indi-
viduals with antisocial personality or adolescent histories
of delinquency have a high incidence of substance abuse
(Cloninger, Bayon, and Przybeck 1997). Collins (1990)
has proposed that violence is a complex phenomenon
which involves interaction of many types of factors:
developmental (early abuse or neglect, socialization experi-
ences); cultural (norms, values, beliefs); drug pharmacol-
ogy (cognitive impairment, emotional lability); social
(community disorganization, social control); economic
(opportunity, compulsion); and situational (location,
environment).
CORRECTIONAL SETTINGS
The period between 1980 and 1996 saw a tripling of the
prison population in the United States, and substance
abuse-related crimes provided the main impetus for this
surge (Wald, Flaherty, and Pringle 1999). Lifetime sub-
stance abuse is reported in approximately three-fourths
678 Special clinical issues in forensic psychiatry
of inmates (Belenko 2000). Drug and alcohol treatment
successfully reduces rearrest, conviction, and incarceration,
particularly when therapeutic community modalities of
treatment are utilized (Wald, Flaherty, and Pringle 1999).
DIVERSION, DRUG COURT, AND COERCED
TREATMENT
Diversion describes a process whereby individuals arrested
for drug-related offenses, typically of a non-violent nature,
may engage in a treatment program in order to avoid or
reduce criminal charges. The underlying concept is that
treatment of underlying addictive problems will reduce
criminal recidivism in this population by both addressing
the underlying behavioral problem and avoiding expos-
ure of such individuals to the hardened criminals in state
prison. Furthermore, diversion programs reduce the bur-
den on local courts and reduce the expansion of prison
populations. Typically, the individual must comply with
treatment participation and remain substance-free in
order to avoid criminal sanctions. The literature demon-
strates that coerced addiction treatment can have just as
good outcome as voluntary treatment (Miller and Flaherty
2000). Sentencing may involve requirements regarding
treatment and sobriety, as may terms of probation and
parole. Progress reports, treatment participation, and
urine toxicological surveillance are generally part of such
requirements.
ADDICTIVE BEHAVIOR: INVOLUNTARY
OR VOLITIONAL?
In addressing behavior in the context of substance intoxi-
cation and addiction, controversy exists regarding whether
such conduct is volitional and willfully intended or
whether it is automatic and beyond control, resurrecting
philosophical debate about ‘free will’ versus ‘determin-
ism.’ The disease model uses the term ‘loss of control’ to
characterize the fact that an addict will compulsively use
despite knowing that the use is causing a variety of nega-
tive consequences. Substance-induced pathophysiology
and frontal lobe dysfunction are the suspected reasons.
A variety of arguments hold that the compulsion to get
drunk is so disabling that an individual is deprived of the
ability to avoid risk-creating intoxication; that ‘denial’
prevents recognition of the lack of control; that alco-
holism destroys the capacity to foresee the consequences
of drinking; and that the compulsion overwhelms behav-
ioral control creating an equivalent of coercion (Watterson
1991). A corollary argument holds that because addic-
tion is inaccessible to the will, alcoholics and addicts can-
not control the problem (i.e., their use is involuntary)
(Lehman 1990).
However, an individual that has claimed that he ‘could
not stop’ is typically an individual that simply did not
stop, reflecting that individual’s level of motivation and
commitment. There is great difficulty in distinguishing
between an allegedly ‘irresistible’ desire and one simply
not resisted (Morse 1999). Individuals frequently do not
believe that they could have controlled some action and
have blamed others; empirically, a belief in lack of choice
is more likely to be associated with antisocial conduct
(Reid 1978; Halleck 1992). Perception of self-efficacy
increases the likelihood of behavioral control (Carbonari
and DiClemente 2000). There is no doubt that in the
course of addiction, the use of the psychoactive sub-
stance of choice achieves a higher and higher priority in
the individual’s life, relative to other choices. Until there
develops sufficient motivation to make a change, the
substance use continues. Change is difficult even in non-
addicts, as is clear from the annual ritual of ‘earnest’ New
Year’s resolutions quickly abandoned in succeeding days
and weeks. Clinicians generally acknowledge that the
choice to abstain is a difficult one for the addict, and con-
sequently they attempt to make it easier by providing hos-
pitalization and detoxification (Halleck 1992). Frequently,
addicts who ‘could not’ stop using subsequently do so in
the face of legal difficulties or medical complications, as
these consequences have raised the priority of not using
to a greater level than that of using. Addicts respond to
social, economic, and legal constraints consistent with
rationality, which forms, in part, the basis of governmental
intervention.
It is argued that possessing and using the substance
in question is intentional action; the addict does so to
achieve pleasure of intoxication or avoid the pain of inner
withdrawal and inner tension, or both (Morse 1999).
Similarly, the compulsion excuse is problematic: the
addict’s choices are not so difficult that the ‘wrong’ choice
should be excused by society (Morse 1986; Morse 1999).
Actually, neither the addict, despite great fear of physical
or psychological withdrawal symptoms or dysphoria,
nor the pedophile, despite strong desires for sexual con-
tact with children that produce distress or dysfunction,
can demonstrate fear of death or grievous bodily injury
that would be required for a duress defense (Morse 1999).
In the absence of cognitive impairment of the processes
involved in obtaining, retaining, and utilizing knowledge
(a possible result of chronic alcoholism, for example),
the addict is assumed to have the capacity to behave
rationally (Halleck 1992). It has been argued that the
alcoholic has control over whether he or she begins to
drink each day; similarly, the alcoholic engages in a large
variety of other conscious, purposive actions (Watterson
1991). Many states in considering drunk driving killings
consider the state of mind when the first drink is taken as
relevant to a charge of murder. Addicts obviously are in
control of their behavior when they go to an Alcoholics
Anonymous meeting instead of seeking out their drug
of choice. Furthermore, treatment professionals rely

on the fact that addicts can make decisions and change
their behavior, as the alternative would be hopelessness
and pity.
A variety of other terms have been coined to reflect
compromise between volitional and involuntary labels,
including ‘diminished choice’ and ‘impairment of the will.’
‘Habit’ has also been proposed as a term more appropri-
ately centered than disease or freedom (Valverde 1998).
Another amalgam of concepts is reflected in Alcoholics
Anonymous: although AA uses the term ‘disease,’ alco-
holics nevertheless are expected to take action, such as
attending meetings and practicing the twelve steps, as the
appropriate response to their ‘powerlessness’ over alcohol.
CRIMINAL RESPONSIBILITY, INSANITY,
AND DIMINISHED CAPACITY
In response to the addict’s typical abdication of responsi-
bility and projection of blame, the recovery program
of Alcoholics Anonymous requires that the addict be
accountable for his behavior, including its negative con-
sequences. Furthermore, once aware of the problem with
substances and the consequences of abuse, the addict
must accept responsibility for taking the steps necessary
to achieve and maintain sobriety. This approach is not
different from the legal system’s position on the respon-
sibility of the addicted offender.
In American and English common law, voluntary intox-
ication does not fully excuse an offender who has commit-
ted a crime and is not a defense under a not guilty by
reason of insanity plea in a general intent crime, although
it may result in a diminished verdict or sentence (Slovenko
1995). Involuntary intoxication, on the other hand, can be
totally exculpatory. This requires that the individual has
consumed the substance due to duress or trickery; or
behaved violently due to a previously unknown suscepti-
bility to a recognized atypical reaction to a substance; or
the intoxication resulted from previously unknown side
effects of a drug prescribed as a treatment (Slovenko 1995;
Pandina 1996; Burglass 1997). If chronic substance abuse
has caused permanent and irreversible brain damage
resulting in mental illness or cognitive dysfunction, an
insanity defense may be possible in some jurisdictions
under the concept of ‘settled insanity’ (Slovenko 1995;
Kermani and Castaneda 1996). Toxic psychoses caused by
voluntary ingestion, if only temporary in duration, do not
qualify for ‘settled insanity’ (Slovenko 1995).
Under the concept of diminished capacity, a mens rea
partial defense, voluntary intoxication could negate the
capacity of an offender to form a specific intent required
by the definition of the criminal charge in a specific
intent crime (Weinstock, Leong, and Silva 1996). If the
requisite specific intent were nullified, guilt could be
found only for a lesser included crime that does not
require that specific intent (e.g., manslaughter instead of
Substance abuse and addiction 679
second-degree murder); this contrasts with the insanity
defense, a complete defense which can result in a finding
of ‘not guilty’ by reason of insanity (Weinstock, Leong,
and Silva 1996). The mere fact of intoxication does not
automatically mean that the defendant lacked the requi-
site specific intent; if the opinion is based solely on the
defendant’s intoxicated condition, a qualified expert on
the effects of intoxication may opine in some jurisdic-
tions on the issue of capacity to form the requisite intent
(Slovenko 1995). A diminished capacity defense would
argue, for example, that because of intoxication, the
defendant could not deliberate (if a necessary element to
constitute the particular crime) (Weinstock, Leong, and
Silva 1996). California now has replaced diminished
capacity with ‘diminished actuality’ in which the psychi-
atrist cannot testify about the ultimate issue, but the trier
of fact can use the psychiatric information to decide
whether the person did or did not harbor a requisite spe-
cific intent (Weinstock, Leong, and Silva 1996). Dimin-
ished capacity and diminished responsibility have also
been used in sentencing, where intoxication and addic-
tion issues may be raised as mitigating factors. However,
with courts being given less discretion in sentencing,
such evidence is often brought out in plea-bargaining
prior to trial or during trial in determination of guilt or
innocence (Slovenko 1995).
CHILD CUSTODY, PARENTAL RIGHTS,
AND CHILD ABUSE
Parental substance abuse has adverse effects on children.
Child abuse and neglect is more prevalent in families in
which one or both parents abuse substances, and are
estimated in heroin addicts to be almost sixteen-fold
higher than that in the general population (Sowder and
Burt 1980). While the presence of substance abuse does
not automatically mean that a parent is unfit, it may be
a contributing factor in such a finding. Custody evalu-
ations in divorce, adoption proceedings, and revocation
of parental rights may require a thorough evaluation by
a substance abuse expert, usually in consultation with a
child and adolescent psychiatrist. The Court is interested
in such issues as: the presence of a substance use dis-
order; impairment of an individual’s capacity to perform
parental duties; potential for behavior that would jeop-
ardize the child; cooperation and participation in drug
rehabilitation; potential for recovery from addiction; and
time course of recovery (Kermani and Castaneda 1996).
DRUG AND ALCOHOL TESTING, DRUNK
DRIVERS, AND BARTENDERS
Jobs involving the public safety, sensitive positions
involving national security, and sobriety check-points
680 Special clinical issues in forensic psychiatry
are typical settings in which alcohol and drug testing
is common (Kermani and Castaneda 1996). In 1986, by
executive order, President Reagan mandated a drug-free
workplace; this was followed by The Mandatory Guidelines
for Federal Workplace Drug Testing Programs: Final Guide-
lines (United States Department of Health and Human
Services 1988), which has also served as a model for pri-
vate industry, with 40 per cent of the nation’s companies
testing by 1990 (West and Ackerman 1993). Several
Supreme Court decisions have allowed widespread ran-
dom testing of employees in jobs that affect public safety
(West and Ackerman 1993). Pre-employment screening
of job applicants, random testing, and testing for cause
are three basic types of workplace testing. Certified Medical
Review Officers usually review drug tests in the workplace,
verifying that there is an intact forensic chain of custody,
evaluating the legitimacy of psychoactive medications
in the test sample, and interpreting the test results to rule
out false positives and negatives (see Swotinsky and
Smith 1999). Drug test results may also be used in a var-
iety of other contexts, for example in child custody
evaluations or private disability cases, and may require
similar evaluation by the forensic consultant.
Drunk drivers tend to be young males with prior
arrests (often recidivists), a high frequency of accidents
and violations, and personality characteristics of emo-
tional instability; impulsiveness and thrill seeking; hos-
tility; and depression and low perceived personal control
(Sloan et al. 2000). In 1990, 35 per cent of 21- to 24-year-
olds who died in fatal crashes had blood alcohol levels
greater than 0.10 g/100 ml. Police may test an individual
for signs of intoxication, such as slurred speech (Michigan
v. Sitz 1990; Pennsylvania v. Muniz 1990). Furthermore,
body fluid measurements may be made in cases of auto-
mobile fatalities or other crimes. A forensic psychiatrist
may be asked about the validity of alcohol or drug test
results, pharmacological dynamics and kinetics, and the
likely effects on the performance capacity of an individ-
ual. In addition to criminal and administrative sanctions
(and coerced treatment), drunk drivers have tort liability
and may have to compensate injury victims. More
recently, tort liability has been extended to third-party
servers (so called ‘dram shop liability’) in which liquor
stores, bars, restaurants and other establishments that
carry liability insurance are held liable for injuries stem-
ming from accidents caused by an obviously intoxicated
adult or minor patron (Sloan et al. 2000). Such cases may
call for an expert opinion regarding drinking rates and
quantities, body fluid measurements, and signs of intoxi-
cation or impairment.
WORKPLACE AND DISABILITY
Federal disability laws include The Rehabilitation Act
of 1973, The Fair Housing Amendments Act of 1988,
and the Americans with Disabilities Act (ADA) of 1990.
A comprehensive review of the ADA can be found else-
where (Parry 1997). Individuals with disability are pro-
tected from discrimination. It is incumbent on the
employer to provide reasonable accommodation, as long
as the employee can perform the job with such accom-
modation. Individuals suffering from alcoholism must
be given the choice of accepting treatment before begin-
ning a process for removal. The Drug Free Workplace Act
of 1988 prohibits employees from using or being under
the influence of alcohol and illegal drugs on the job. The
ADA limits employment protection to drug users who are
not currently using illegal drugs or are in supervised treat-
ment programs. The ADA specifically excludes individuals
who are using illicit drugs, as well as individuals using
controlled substances, including any prescribed drug, not
under the supervision of a licensed healthcare profes-
sional. If the individual’s disability creates a direct threat
of harm to others that cannot be reasonably reduced
through accommodation, it is not covered by ADA. This
can include abuse of alcohol away from the job that
affects the employee’s performance. Misconduct due to
alcohol abuse is not protected. The ADA also addresses
licensing issues pertaining to access to professions.
The Social Security System provides disability insur-
ance through Social Security Disability Insurance (SSDI)
and Supplemental Security Income (SSI). Psychiatrists
providing social security disability evaluations need note
that disorders of alcohol or drug abuse are insufficient
qualifiers for disability in the absence of other psychiatric
or physical disabilities. Veterans Administration disabil-
ity programs also do not consider substance use dis-
orders alone as sufficient. This has been upheld by the
Supreme Court, which cited willful misconduct, in viola-
tion of VA regulation, as characterizing alcoholism at
least in part (Traynor and McKelvey v. Turnage 1988).
Chronic pain syndromes may be the basis of a workers’
compensation claim or private long-term disability insur-
ance case and require the careful assessment for addic-
tion issues.
CIVIL COMMITMENT
Only some states and the federal government have com-
mitment statutes regarding alcoholics and drug abusers,
and none of them commits people for treatment unless
the individual is demonstrated to be dangerous to self or
others or gravely disabled (Kermani and Castaneda 1996).
Some states have separate commitment laws for sub-
stance abuse (versus other mental illness), and may require
a bed in a drug rehabilitation program. California law
requires commitment to an approved alcohol and drug
facility; because none exists in Los Angeles County, an ind-
ividual can be involuntarily hospitalized only if an add-
itional mental disorder co-exists with the substance abuse.

CONFIDENTIALITY AND DUTY TO WARN
Federal regulations prohibit the disclosure of records or
information concerning any patient in a federally assisted
alcohol or drug treatment program (42 CFR Part 2).
Federal law supersedes any state or local law that is less
restrictive. In the absence of written patient consent, dis-
closure may be made only to other staff of the treatment
program; to medical personnel in a medical emergency
that poses an immediate threat to health; in response to a
valid court order (not merely a subpoena, which may be
contested); in reporting child abuse; concerning a crime on
the premises of a program or against treatment personnel;
disclosures made for research or audit purposes; com-
munications with qualified service organizations; and
communications that contain no patient-identifying
information. Patients whose probation or parole condi-
tionally requires treatment may not revoke their consent
to disclose information. Psychiatrists, following the prece-
dent of Tarasoff v. Regents of the University of California
(1976), in jurisdictions that have followed this Court’s
reasoning and developed relevant statutes, or because of
ethical concerns, have a duty to take reasonable steps to
protect an intended victim from a patient that has made
a threat. This may require a violation of confidentiality.
There remains legal controversy regarding in what situ-
ations a duty exists, what is foreseeable, and what consti-
tutes reasonable steps. However, the presence of substance
abuse invariably increases the risk of violence. Notification
of a potential victim or law enforcement agency should
not identify that the report is being made by a substance
abuse program or that the threatener is in substance abuse
treatment (this can be done relatively easily if the program
is part of a general hospital).
MALPRACTICE AND INAPPROPRIATE
PRESCRIPTION
Litigation may include allegations that a physician’s
prescriptions have caused a patient’s addiction or suicide
attempt or that the patient was not informed of the risks
of the medications. Negligent assessment of substance
abuse comorbidity or inappropriate treatment for sub-
stance abuse problems may also be alleged. Prescription
of excessive amounts of controlled substances, or pre-
scribing such medications to a known addict, may result
in loss of license or prescribing privileges. State regula-
tory bodies routinely monitor the prescribing profile for
controlled substances, particularly opiates, which raises
ethical questions of privacy and confidentiality, and
contributes to the reluctance of many physicians to
adequately treat legitimate pain (Burglass 1997). Appro-
priate documentation in the medical record is crucial
(see Burglass 1997). Substance-abusing physicians may
suffer impairment that leads to inappropriate diagnosis
Substance abuse and addiction 681
or treatment, or they may violate boundaries, including
sexual indiscretion with patients, which may result in a
lawsuit.
SUICIDE
Suicides account for the leading cause of malpractice
suits filed against psychiatrists (Gutheil 1999). Substance
abusers are at greater risk for suicide, with outpatient alco-
holics having been calculated as having an annual risk
of suicide that is ten-fold that of the general population;
co-morbid depression or antisocial personality disorder
are significant contributing factors (Murphy and Wetzel
1990). The acute effects of intoxication increase the risk
of suicide by increasing aggression and impulsivity, while
simultaneously impairing cognition and judgment. Sub-
stance abusers additionally suffer numerous interpersonal
losses and typically experience deteriorating psychosocial
support systems (Weiss and Hufford 1999). Approxi-
mately one-half of alcohol-dependent women and one-
fourth of alcohol-dependent men have a lifetime history
of depression (Kessler et al. 1997). Appropriate risk assess-
ment requires a careful review of substance use.
THE IMPAIRED PHYSICIAN
It has been estimated that 10–15 per cent of physicians
are dependent on alcohol or drugs (Keeve 1984). Phys-
icians are generally reluctant to report impaired colleagues,
though a forensic psychiatrist may be asked by a hospital
administration, by a physician’s attorney, or by the Medical
Board to provide an evaluation regarding a physician’s
substance abuse and ability to practice medicine. The
American Medical Association’s Principles of Medical
Ethics (American Medical Association 2001b) states that
it is unethical for a physician to practice medicine while
under the influence of a substance which impairs the
ability to practice (Council on Ethical and Judicial Affairs
1998). Furthermore, physicians have an ethical obligation
to report impaired colleagues according to the AMA Princi-
ples of Medical Ethics (American Medical Association
2001b). If available, the hospital’s in-house impairment
program, such as the well-being committee of the med-
ical staff, should be contacted. For a non-hospital physi-
cian, the local medical society may be contacted. California
has a diversion program to which a physician may volun-
tarily self-refer, or be referred by a hospital well-being
committee. If necessary, a report can be made to the state
licensing board if no other steps can facilitate entrance
into an impairment program. Federal (Health Care
Quality Improvement Act of 1986) and state laws (not
interfered with by federal law) exist regarding the report-
ing of impaired physicians (Sadoff and Sadoff 1994).
Pennsylvania has mandatory reporting laws, which grant
682 Special clinical issues in forensic psychiatry
immunity to anyone who makes a good faith report.
California law, on the other hand, does not require a physi-
cian to report another physician suspected of alcohol or
drug abuse (Medical Board of California 2000).
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Psychopharmacological treatment of
sex offenders
JOHN BRADFORD AND VICTORIA L. HARRIS
INTRODUCTION
Sexual offenders are acknowledged to be a heterogeneous
group of mostly males, with varying types and degrees
of personality disorders as well as having a paraphilia or
more commonly multiple paraphilias (Bradford, Boulet,
and Pawlak 1992). Female sexual offenders do occur, but
constitute a small percentage of the overall numbers of
sexual offenders. They will not be discussed specifically
in this chapter, although the same psychopharmacologi-
cal agents can be used to treat paraphilias in females. In
females, if hormonal psychopharmacological agents are
to be used, then careful consideration must be given to
the hormonal differences in females (Bradford 1985).
This is evident in the classification of sexual deviations in
DSM I and DSM II where they were classified as person-
ality disorders (American Psychiatric Association 1952;
American Psychiatric Association 1965; Travin 1994).
For the first time in DSM III the concept of erotic or sex-
ual preference was recognized, and the sexual deviations
were classified as Paraphilias as opposed to Personality
Disorders (American Psychiatric Association 1980;
American Psychiatric Association 1987). This accepted the
empirical evidence that individuals who were sexually
deviant had an abnormal sexual or erotic preference.
A person with a paraphilia was seen as sexually attracted
to non-human objects; pain, suffering and humiliation;
children or sexual acts involving non-consenting part-
ners. For example, pedophilia was recognized as a para-
philia where the deviant sexual preference was to children.
The paraphilias are defined in DSM IV as:
The essential features of a paraphilia are recurrent,
intense sexually arousing fantasies, sexual urges, or
behaviors generally involving 1) nonhuman objects,
2) the suffering or humiliation of oneself or one’s
partner, or 3) children or other non consenting per-
sons, that occur over a period of at least 6 months
71
(Criterion A). For some individuals, paraphiliac fan-
tasies or stimuli are obligatory for erotic arousal and
are always included in sexual activity. In other cases,
the paraphiliac preferences occur only episodically
(e.g., perhaps during periods of stress), whereas at
other times the person is able to function sexually
without paraphiliac fantasies or stimuli. The behav-
ior, sexual urges, or fantasies cause clinically signifi-
cant stress or impairment in social, occupational, or
other important areas of functioning (Criterion B).
(DSM IV; APA 1994)
Sexual offenders are individuals who commit sexual
offenses and largely suffer from a sexual deviation or
paraphilia. There are a number of sexual offenders who
do not have a paraphilia but fail to control their sexual
impulses for other reasons. Their sexual offending behav-
ior may be opportunistic or impulsive, and most com-
monly is the result of serious personality disorders rather
than a paraphilia. Sexually deviant behavior can also
occur secondary to various Axis 1 psychiatric conditions.
The deviant sexual behavior in this instance would occur
as a result of disinhibited behavior caused by the primary
psychiatric condition (e.g., bipolar disorder). In these
cases, the treatment of the sexual deviant behavior is
through the treatment of the primary psychiatric dis-
order. Where the primary psychiatric problem is a serious
personality disorder, the prognosis would be poor because
of the inherent problems in the treatment of serious per-
sonality disorders. At the same time, there is a possibility
that the symptoms of serious personality disorders such
as impulsivity may respond to psychopharmacological
treatment (Lee and Coccaro 2001). As there are these
diagnostic issues to be resolved prior to a diagnosis of a
paraphilia being made, it is clear that a careful psychiatric
evaluation needs to be completed. The psychopharmaco-
logical treatment of sexual offenders is focused on the
paraphilia or multiple paraphilias that are present. It would
be very unusual for only one paraphilia to be present as it
686 Special clinical issues in forensic psychiatry
is well established that there is considerable comorbidity
amongst the various paraphilias (Bradford, Boulet, and
Pawlak 1992). There is also considerable comorbidity
with substance abuse and dependence, and particularly
alcohol dependence (Allnutt et al. 1996). The association
with alcohol dependence is not surprising and is related
to the degree of violence seen in conjunction with the
paraphilia.
A simple way of considering the spectrum of the para-
philias is to consider them as ‘hands on’ and ‘hands off ’
paraphilias. The ‘hands on’ paraphilias involve some phys-
ical contact with either a consenting or a non-consenting
partner, and would include pedophilia, sexual sadism, sex-
ual masochism, and frotteurism. Zoophilia and necrophilia
classified under the section ‘Paraphilia Not Otherwise
Specified’ of DSM IV would also be included in this
group. The ‘hands off ’ paraphilias are the remaining para-
philias and include exhibitionism, voyeurism, fetishism,
transvestitic fetishism and the remaining paraphilias in
the ‘Paraphilia Not Otherwise Specified’ grouping. There
was an idea in the past that the presence of a ‘hands off ’
paraphilia meant less concern than the presence of a
‘hands on’ paraphilia, but this is now rejected because of
the well-documented cross-over between the various para-
philias. The primary paraphilia is simply to be regarded
as a presentation of one aspect of a spectrum of para-
philiac behaviors in any individual. Most often, this would
overlap between ‘hands on’ and ‘hands off ’ paraphilias.
The treatment of sexual offenders has therefore to
take all this into consideration, and means that a detailed
and extensive assessment of sexual behaviors is neces-
sary. As with other psychiatric conditions, the success of
treatment is dependent on a detailed assessment to estab-
lish the correct psychiatric diagnosis. Most frequently,
sexual offenders and others with paraphilias are evalu-
ated in specialized sexual behaviors clinics (Bradford 1989;
Bradford 2001). A comprehensive sexual behaviors clinic
evaluation typically would consist of:
1 A full psychiatric evaluation, consisting of a clin-
ical interview, psychiatric history and psychiatric
diagnosis.
2 A medical evaluation as necessary.
3 A sex hormone profile and general biochemistry.
4 Sexual questionnaires.
5 Objective measures of sexual interest, specifically
penile plethysmography and visual reaction time.
6 Measurement of recidivism risk.
In brief, the sex hormone profile is used to establish a
baseline for the possible treatment with antiandrogens,
as well as establishing if abnormal hormone levels are
present. The sexual questionnaires consist of sexual his-
tory questionnaires; questionnaires to measure cognitive
distortions; questionnaires to quantitatively and qualita-
tively measure sexual fantasies; measures of sexual drive;
measures of sexual functioning in general; questionnaires
on aggression; and measures of alcohol and drug abuse.
The recidivism risk would be based on various actuarial
instruments such as the Psychopathy Checklist Revised
Edition (Hare 1990); the Rapid Risk Assessment of Sexual
Offender Recidivism (RRASOR) (Hanson 1997); Static
99 (Hanson and Thornton 1999); and various other actu-
arial instruments used to estimate the probability of
recidivism. These instruments must be used with caution
because of their limitations. The physiological measures
of sexual preference establish the presence of deviant
sexual preferences such as ‘rape proneness,’ pedophilia or
sexual sadism.
This detailed evaluation establishes the diagnosis of
comorbid psychiatric conditions such as alcohol depend-
ence, as well as establishing the spectrum of the para-
philias that are present. It also means that this baseline
evaluation can be used to measure treatment outcome in
the future. The measures that are most sensitive to treat-
ment outcome are the level of deviant arousal; the type
and level of sexual fantasies, the levels of sex hormones in
treatment with an antiandrogen medication, as well as
cognitive distortions. There are sets of variables that are
associated with an increased risk of recidivism (Hanson
and Bussiere 1998). Positive treatment outcome with a
reduction of sex offense recidivism is clearly the aim of
the treatment of sexual offenders.
The treatment of sexual offenders includes both psy-
chological treatments and pharmacological treatments.
The former treatments usually use a cognitive behavioral
model and most commonly a relapse prevention approach.
These treatments are fully compatible with the psycho-
pharmacological treatment approaches, and the two
approaches complement each other and should be offered
jointly.
The psychopharmacological treatment of sexual
offenders is based on certain principles. Although there
is no clear evidence that sexual offenders or paraphiliac
males have an increased sexual drive, in theory the
principal aim of psychopharmacological treatment is the
reduction in sexual drive. It is assumed that a reduction
in sexual drive will result in a reduction in deviant sexual
behavior (Bradford 1985). Sexual drive is multidimen-
sional and consists of sexual fantasies, sexual urges, and
sexual behavior (Bancroft 1989; Rubinow and Schmidt
1996). In the case of a sexual deviation, the sexual fan-
tasies and urges are mostly deviant in line with whatever
paraphilia is present, although non-deviant fantasies are
also present. The sexual urges and fantasies are in the
direction of the erotic preference of the individual (for
example, these would be towards young children in the
case of pedophilia). The sexual drive can be eliminated to
create an asexual individual who would have almost no
sexual fantasies or sexual urges. Surgical castration would
result in an asexual individual, although erections and
low levels of sexual fantasies may continue (Bancroft
1989; Wille and Beier 1989; Rubinow and Schmidt 1996).
With the increase in sophistication of psychopharma-
cological agents that can be used in the treatment of

sexual offenders, it is now possible to titrate the level of
sexual drive. At the same time, the sexual drive can be
objectively monitored by sexual arousal testing, hor-
monal levels, and levels of sexual fantasies and measures
of sexual behavior. This means that in most instances the
sexual drive would be lowered only partially to reduce
deviant arousal and fantasies while enabling the individ-
ual to perform sexually in non-deviant situations. This
means that although the sexual drive would be lowered,
non-deviant sexual interests would be maintained while
deviant sexual interests would be suppressed.
The pharmacological treatments of the paraphilias
are well established (Bradford 2001), and this approach
has been shown to be successful in all types of para-
philias. It is also arguably an economic approach to treat-
ment as the paraphilias are usually present in multiple
forms and a psychopharmacological treatment would
suppress all of those paraphilias present. Psychological
treatment would generally require these to be dealt with
separately and would require higher levels of profes-
sional time. At the same time, difficulties have been encoun-
tered in completing research in this area due to a lack of
funding. In a recent editorial in the New England Journal
of Medicine, Bradford (1998) decried the need for gov-
ernment and the pharmaceutical industry to support
research into the pharmacological treatment of sexually
deviant behavior. Pedophilia, one of the most common
paraphilias, should be regarded as a public health prob-
lem, with levels of victimization of children in the United
States having been shown to range from 6 per cent to
62 per cent in girls, and from 10 per cent to 30 per cent
in boys (Peters, Wyatt, and Finkelhor 1986). If this were
some other public health problem of the same magni-
tude, millions of dollars would be put aside to study and
solve the problem. Unfortunately, the paraphilias – and
pedophilia specifically – are too easily dismissed as a
problem of criminal behavior to be solved by the crim-
inal justice system rather than by the mental health sys-
tem. This is extremely regrettable, as the treatment of the
paraphilias, and especially pedophilia, can be successfully
achieved and future sexual offense recidivism reduced.
The paraphilias or sexual deviations are deviant sex-
ual behaviors and have various common clinical features,
specifically sexual fantasies, leading to sexual urges and
ultimately deviant sexual behavior. Ideally if a treatment
were to be successful, the sexually deviant behavior
would be completely suppressed while the normophilic
(non-deviant behavior) would remain intact or even be
enhanced (Bradford and Pawlak 1993a; Bradford 1985).
As outlined later in this chapter, some psychopharmaco-
logical treatments have been shown to have this capabil-
ity. Furthermore, a treatment that is able to suppress the
psychological component (sexual fantasies) as well as the
physiological component (sexual arousal) would be ideal,
as the normophilic behavior could continue whilst the
earliest component of the behavioral chain would be
suppressed.
Psychopharmacological treatment of sex offenders 687
BIOLOGY OF SEXUAL BEHAVIOR
Sex is a basic biological drive, and the psychopharmaco-
logical approach to the treatment of the paraphilias is
based on this understanding. The biological components
of sexual behavior are well established in animal and bio-
medical research (Bancroft 1989; Everitt and Bancroft
1991; Hines and Collaer 1994; Rubinow and Schmidt
1996; Parades and Baum 1997). Surgical castration, a
biomedical approach to treatment of sexual offenders,
has contributed to this understanding (Bradford 1985).
Stereotaxic neurosurgery, although only of historical
interest, has also been used to treat sexual offenders and
has also contributed to the understanding of the bio-
medical aspects of human sexual behavior (Bradford
1985). Surgical castration is particularly significant as
it was behind the development of the antiandrogen
approach to the treatment of sexual offenders (Bradford
1985). The procedure leads to a reduction of about 95
per cent of the total testosterone available in the human
male (Bancroft 1989; Everitt and Bancroft 1991; Hines
and Collaer 1994; Rubinow and Schmidt 1996; Parades
and Baum 1997). The testicles are the main source of
testosterone, with the adrenal glands producing less than
5 per cent of total body production. In Europe, surgical
castration was used as a biomedical intervention for deal-
ing with sexual offenders that had high rates of recidivism
(Heim and Hursch 1979; Wille and Beier 1989), these being
mostly rapists and pedophiles (Ortmann 1980). After sur-
gical castration, the offenders were followed for long peri-
ods whilst their recidivism rates were monitored (Heim
and Hursch 1979; Ortmann 1980; Wille and Beier 1989).
Several studies showed a dramatic reduction in recidi-
vism rates with follow-up periods ranging from five to
twenty years while at risk in the community. The post-
castration rates of recidivism were reported as less than 5
per cent during follow-up in most studies, compared to a
pre-castration rate of over 60 per cent (Le Maire 1956;
Bremer 1959; Sturup 1968; Sturup 1972; Heim and
Hursch 1979; Ortmann 1980). The reduction in recidi-
vism in the post-castration period is likely the direct result
of a reduction of total testosterone levels and the conse-
quent effects on sexual behavior.
Sexual behavior is affected by two types of hormone:
• Steroid hormones (e.g., estradiol, testosterone, and
androstenedione) (Bancroft 1989; Everitt and Bancroft
1991; Hines and Collaer 1994; Rubinow and Schmidt
1996; Parades and Baum 1997); and
• Peptide hormones [e.g., gonadotropin-releasing hor-
mone (GnRH), gonadotropins, and prolactin (Bancroft
1989; Rubinow and Schmidt 1996; Owens, Nemeroff,
and Bissette 2000).
Testosterone is the most important steroid in human
males with regard to sexual behavior (Bancroft 1989;
Everitt and Bancroft 1991; Rubinow and Schmidt 1996;
688 Special clinical issues in forensic psychiatry
Parades and Baum 1997), and is mostly found bound to
sex hormone-binding globulin. However, in the plasma
some testosterone is loosely bound to albumin, and some
occurs as the free compound; these latter two forms are
metabolically active (Bancroft 1989; Rubinow and Schmidt
1996; Reus and Frederick-Osborne 2000). Peptide hor-
mones are occasionally found in the blood, though
usually at low levels. GnRH is closely related to the dop-
amine neurons in the hypothalamus, and stimulates the
release of the gonadotropins, luteinizing hormone (LH)
and follicle-stimulating hormone (FSH) (Rubinow and
Schmidt 1996). LH promotes steroid synthesis in the
gonads, in turn producing testosterone in the male and
progesterone in the female, whilst FSH stimulates the
growth of ovarian follicles and spermatogenesis. These
hormones are only active at sites that have specific recep-
tors for them (Bancroft 1989; Everitt and Bancroft 1991;
Rubinow and Schmidt 1996; Parades and Baum 1997).
The receptors for the steroid hormones are usually located
within the cell cytoplasm, whilst the receptors for poly-
peptide hormones are usually located on the cell mem-
brane. The hypothalamus is critical to the system in that it
controls and secretes hormones which affect the anterior
pituitary gland. GnRH is the most important polypeptide
hormone secreted by the hypothalamus, though prolactin-
inhibiting factor (PIF) (most likely a derivative of
dopamine) is also secreted and is significantly involved in
the hormonal control of sexual behavior through pro-
lactin. The system operates by a series of feedback loops.
When GnRH is released it stimulates the anterior pituitary
to secrete the gonadotropins, which in turn drive the
release of gonadal sex steroids. The plasma sex steroid lev-
els then feed back at receptors in the hypothalamus,
thereby stimulating or inhibiting the release of GnRH.
The principal androgens in males are testosterone,
dihydrotestosterone and androstenedione. Androgens are
responsible for the development of male secondary sex
characteristics, muscle development and the maintenance
of male sexual behavior (Everitt and Bancroft 1991;
Rubinow and Schmidt 1996; Parades and Baum 1997;
Owens, Nemeroff, and Bissette 2000). Estrogens in males
have certain effects on sexual behavior, but these are not
fully understood. There is considerable evidence from
animal research that androgens have a specific effect on
male sexual behavior. In humans, studies of hormonal
replacement in hypogonadal men have shown that
androgens are necessary for the maintenance of sexual
interest and erectile function, as well as other aspects of
sexual behavior. The effects of antiandrogen medication
also support the role of androgens in male sexual behav-
ior. Likewise, drugs that increase the availability of circu-
lating testosterone, as well as the exogenous administration
of testosterone, have also shown male sexual behavior to
be androgen-dependent. It is possible that LH and GnRH
also have direct effects on male sexual behavior. The direct
effect of testosterone is via its action on intracellular
androgen receptors (Bancroft 1989; Everitt and Bancroft
1991; Rubinow and Schmidt 1996; Parades and Baum
1997), these being found throughout the body. Although
in animals there is some evidence that sexual interest
might be estrogen-dependent, this does not appear to be
the case in human males. Consequently, these biological
mechanisms which target hormones form the focus of
psychopharmacological treatments for sexual offenders,
and this is supported by studies with surgical castration
(see above). As the species studied become more com-
plex, there appears to be a weakening of the direct influ-
ence of hormones on sexual behavior, although male
sexual behavior tends to remain androgen-dependent irre-
spective of the species involved (Bancroft 1989; Everitt and
Bancroft 1991; Rubinow and Schmidt 1996; Parades and
Baum 1997). These effects are mediated through the tar-
geting action of hormones on intracellular androgen
receptors (Everitt and Bancroft 1991).
Studies of the neurochemistry of the brain show that
a number of monoamine neurotransmitters (dopamine,
serotonin and others) have an effect on sexual behavior as
well as other biological drives (Bancroft 1989; Everitt and
Bancroft 1991; Rubinow and Schmidt 1996; Parades and
Baum 1997; Reus and Frederick-Osborne 2000). Serotonin
also has a specific effect on sexual behavior based on ani-
mal research studies (Reus and Frederick-Osborne 2000;
Tecott 2000). Generally, if central serotonin levels are
reduced then sexual behavior increases. In contrast, if cen-
tral serotonin levels are increased then there is a decrease
in sexual behavior. The full understanding of how sero-
tonin levels affect human sexual behavior is not fully
understood; however, several pharmacological studies
with specific serotonin reuptake inhibitors (SSRIs) have
documented various degrees of sexual dysfunction
(Bancroft 1989; Everitt and Bancroft 1991; Rubinow and
Schmidt 1996; Parades and Baum 1997), thereby sup-
porting the role of serotonin in sexual behavior. This situ-
ation however is extremely complex as there is a variety
of serotonin receptors and subreceptors that have a variety
of effects on physiological function and behavior. More
recently, pharmacological agents that affect central sero-
tonin metabolism have also been shown to affect sexual
behavior (Greenberg and Bradford 1997). Decreased
central nervous system serotonin levels in experimental
animals have been shown to increase sexual drive, whilst
increased serotonin levels resulted in a decreased sex
drive. In humans, the role of serotonin in sexual behavior
is extremely complex; moreover, a number of different
serotonin receptors and subreceptors have been identi-
fied, though the roles of these in the moderation of sex-
ual behavior are not clear. The most recent advance in
treating paraphilias has been to use drugs that affect
serotonin levels (Tecott 2000); a reduction in brain sero-
tonin levels in laboratory animals led to an enhanced
mounting behavior, which is the animal model of increased
sexual drive (Bancroft 1989; Everitt and Bancroft 1991;
Rubinow and Schmidt 1996; Parades and Baum 1997). It
would follow logically that an increase in brain serotonin

levels would inhibit sexual behavior. From these and
other findings it became clear that 5-hydroxytryptamine
(5HT) was involved in the neurobiology of sexual behav-
ior. In humans, the role of 5HT in sexual behavior is
more complicated as the behavior itself is more complex
and there is a wide range 5HT receptors. In theory, in
humans an increase in 5HT levels would suppress sexual
drive (Everitt and Bancroft 1991; Rubinow and Schmidt
1996; Parades and Baum 1997). Understanding the
biological and pharmacological control of human sexual
data has enabled an algorithm to be developed for the
psychopharmacological treatment of paraphilias using:
• SSRIs
• Antiandrogens (e.g., cyproterone acetate)
• Hormonal agents [e.g., medroxyprogesterone acetate
(MPA), luteinizing hormone releasing hormone
(LHRH) agonists].
TREATMENT ALGORITHM
This algorithm (Bradford 2000; Bradford 2001) is based
on the psychopharmacological effect on human sexual
behavior by various drugs, as well as a clinical classification
of the severity of the paraphilias. Sexual offenders with a
paraphilia would be eligible for psychopharmacological
treatment based on this clinical algorithm. Paraphilia
severity varies according to type, but it is clear that when
victimization of third parties such as women and chil-
dren occurs, the condition is more serious than when
there is no such victimization. As most sexual offenders
have paraphilias that involve the victimization of third
parties, such a situation applies to this patient group.
This classification is a variation of the scheme published
in DSM IIIR relating to the paraphilias. Clinical experi-
ence in evaluating and treating the paraphilias is import-
ant in order to use this classification successfully, with
primary paraphilia severity being classified as:
• Mild: exhibitionism, voyeurism, fetishism and ‘hands-
off ’ paraphilias would be regarded as mild conditions,
with the proviso that comorbid paraphilias were also
of a ‘hands-off ’ type. Mild cases of pedophilia would
be included where deviant sexual fantasies and urges
are present but there has been no victimization. Deviant
sexual preference as measured by sexual arousal tests
would show pedophilic arousal, but not arousal to
coercive or sexually sadistic stimuli.
• Moderate: this would include cases of ‘hands-off ’
paraphilias where the control over sexual urges was
poor and the risk of ‘hands-on’ paraphilias was a con-
cern. Exhibitionism where the target of the exhib-
itionistic behavior was a child would be an example.
In ‘hands-on’ cases such as pedophilia, there would be
a low number of victims and the level of victimization
would be confined to fondling (no penetration). In
Psychopharmacological treatment of sex offenders 689
general, a low number of victims would be less than
three. Sexual arousal testing would show a deviant
sexual preference to pedophilia, but there would not
be arousal to coercive stimuli or sexual sadism or clin-
ical evidence of sadism being a problem.
• Severe: here, only the ‘hands-on’ paraphilias would be
classified. This would be pedophilia with more than
three victims and an increased level of intrusive sexual
behavior beyond simple fondling, where there has
been sexual penetration of the victim to some degree.
There would be deviant sexual arousal to pedophilia
on testing and there may be mild coercive arousal but
no explicit evidence of sexual sadism in either testing
or the clinical history.
• Catastrophic: only ‘hands-on’ paraphilias would be
classified in this way. There would be clear evidence of
sexual sadism, in terms of fantasies, urges and behav-
ior directed towards either child or adult victims.
There may not have been victimization, or victimiza-
tion is denied but the consequences of victimization
would be extreme such as death, severe injury, etc.,
and the level of control over deviant sexual impulses
would be weak. If no victimization was present, there
would be evidence of predatory stalking with homi-
cidal urges and homicidal and torture fantasies. If vic-
timization has occurred it would be severe in its degree
of sexual and associated physical violence. Sexual
arousal shows sexually sadistic arousal and high levels
of coercive arousal towards either adults or children.
In order to use this classification guideline correctly,
training in the paraphilias and sexual behaviors is essen-
tial. This is because paradoxical situations arise where
it would be difficult to classify sexual offenders. For
example, a pedophile who only engaged in minor fondling
(only outside of the clothes in a way that it was made to
look accidental) would be pedophilic toucherism (a vari-
ant of frotteurism). Although the numbers of victims
may be higher than three, the condition would still be
classified as moderate.
The algorithm of psychopharmacological treatment
would follow the classification of severity of the paraphilia
in order to select the degree of intervention. The degree
of psychopharmacological intervention would increase
according to the severity of the paraphilia, with the high-
est level being equivalent to surgical castration. The aims
of psychopharmacological treatment would be to:
1 Suppress deviant sexual fantasies.
2 Suppress deviant sexual urges and behavior.
3 Reduce sexual offense recidivism.
The algorithm for psychopharmacological treatment of
the paraphilias would be:
• Level 1: Cognitive behavioral treatment; relapse pre-
vention treatment would be always given regardless of
the severity of paraphilia.
690 Special clinical issues in forensic psychiatry
• Level 2: Pharmacological treatment would always start
with SSRIs.
• Level 3: If SSRIs are not effective at adequate dose
levels, then a low dose of an oral antiandrogen would
be added to the SSRI (e.g., sertraline 200 mg p.o. daily
and 50 mg MPA daily).
• Level 4: Full oral antiandrogen treatment [e.g.,
50–300 mg MPA daily or 50–300 mg cyproterone
acetate (CPA) daily].
• Level 5: Full antiandrogen treatment given intramus-
cularly (e.g., 300 mg MPA IMI every one to four weeks,
or 200 mg CPA IMI every two weeks).
• Level 6: Complete androgen suppression due to CPA
i.m. 200–300 mg per week, or a LHRH agonist (e.g.,
leuprolide acetate or goserelin acetate).
The impact of psychopharmacological intervention on
sexual behavior at the various levels of the algorithm is
as follows (Level 1 does not involve pharmacological
treatment):
• Level 2: Suppression of deviant sexual fantasies, urges
and behavior would occur, with a minor impact on
overall sexual drive. The degree of suppression of
sexual drive would allow normal sexual activity to
occur.
• Level 2–3: Suppression of deviant sexual fantasies,
urges and behavior with a moderate reduction in sex-
ual drive would be expected. Normal sexual behavior
would occur, but at low level. A dose-dependent
response would be expected.
• Level 4–5: Suppression of deviant sexual fantasies,
urges and behavior with a severe reduction of sexual
drive would be expected. Normal sexual behavior may
occur, but at a very low level.
• Level 6: Complete suppression of sexual drive would
be expected at this level.
The psychopharmacological treatment (and psycho-
logical treatment) of sexual offenders can fail or be under-
mined by the abuse of substances (specifically but not
exclusively alcohol); disturbances in mood or the devel-
opment of a concurrent psychiatric disorder; and non-
compliance with the psychopharmacological treatment
and associated cognitive behavioral treatment such as
relapse prevention. As a result, close monitoring of the
patient should be carried out, including:
• Sex hormone monitoring in hormonal and anti-
androgen treatment.
• Random urine screening for substances. Random
breathalyzer monitoring for alcohol and possibly alco-
hol sensitization medication in high-risk cases.
• Close psychiatric monitoring of the individual with
fantasies checklists, sexual arousal tests.
• Close psychiatric monitoring for the development
of depression or other Axis I psychiatric disorders.
SEXUAL OFFENDER RECIDIVISM
Historically, surgical castration had been used for the
treatment of severe paraphilias, mostly sexual sadism
and pedophilia, with those individuals who were cas-
trated being high-risk, highly recidivating sexual offend-
ers. Surgical castration resulted in a reduction of recidivism
from over 60 per cent to less than 5 per cent in the major-
ity of cases as reported in several studies. Langeluddeke
(1963) reported the recidivism rate for castrated offend-
ers as 2.3 per cent, compared to 80 per cent in the
untreated group when studied for up to twenty years.
Cornu (1973) reported that the recidivism rate fell to 4.1
per cent in castrated offenders compared to 75 per cent
in those uncastrated over a five-year period, whilst Wille
and Beier (1989) reported a 3 per cent recidivism rate for
castrates and 46 per cent for non-castrates, followed for
eleven years. Sturup (1968) reported on up to eighteen
years of follow-up of more than 100 castrated sexual
offenders, who had a 4.3 per cent recidivism rate; this was
compared to a sample of fifty non-castrated sexual offend-
ers who had a recidivism rate of 43 per cent. Ultimately,
it was the understanding of the biological mechanism by
which surgical castration impacted deviant sexual behav-
ior that drove the development of antiandrogen treat-
ment for paraphilias.
A full review of sexual offender recidivism is beyond
the scope of this chapter. However, a recent meta-analysis
by Alexander (1997) reported that exhibitionists and
pedophiles treated with psychological treatments had
lower rates of recidivism than untreated controls. Another
meta-analysis completed earlier by Furby, Weinrott, and
Blackshaw (1989) was critical that treatment was not effect-
ive in most recidivism studies where recidivism rates for
a treated group of sexual offenders were compared to
untreated sexual offenders as a control. Studies of recid-
ivism using the antiandrogen CPA over one to five years
(when corrected for compliance and dosage) showed
results similar to those achieved with surgical castration
(Bradford 1995).
SELECTIVE SEROTONIN REUPTAKE
INHIBITORS (SSRIs)
The most recent advance in the treatment of paraphilias
has been the use of drugs that affect serotonin (Greenberg
and Bradford 1997). Studies in both animals and humans
have highlighted the effects of serotonin on sexual behav-
ior. It is known that to increase brain levels of 5HT would
reduce sexual drive and behavior. Although sexual behav-
ior in humans is always regarded as being much more
complicated than in animals, drugs affecting 5HT levels
were seen as perhaps being useful to treat sexually deviant
behavior by suppressing sexual drive (Greenberg and
Bradford 1997).

A series of case reports starting in 1990 showed that
fluoxetine, an SSRI, had an effect on deviant sexual behav-
ior (Bianchi 1990; Emmanuel, Lydiard, and Ballenger 1991;
Lorefice 1991; Perilstein, Lipper, and Friedman 1991;
Zohar, Kaplan, and Benjamin 1994). Kafka and Prentky
(1992a) treated four patients with non-deviant hyper-
sexuality with fluoxetine hydrochloride and reported
significant reductions in sexual drive. Kafka and Prentky
(1992b) subsequently completed an outpatient clinical
study (n ⫽ 16) using fluoxetine hydrochloride to treat
paraphilias and non-paraphilic hypersexuality. All of
the patients improved over a twelve-week period with a
mean daily dose of 39 mg fluoxetine hydrochloride. Stein
et al. (1992) reported a negative study using fluoxetine,
whilst Coleman et al. (1992) (using fluoxetine) and another
study by Kafka (1994) (using sertraline) reported signifi-
cant reductions in sexually deviant fantasies, urges, mas-
turbation and sexual behavior. The non-responders in the
Kafka (1994) study were offered fluoxetine hydrochloride,
and two-thirds showed some clinical improvement over
a treatment period of 17.4 weeks. The mean dosage of
sertraline was approximately 100 mg per day, whilst that
of fluoxetine hydrochloride in the second phase of the
study was 51.1 mg per day. Bradford et al. (1995)
reported on a twelve-week open label dose-titrated study
of pedophilia (n ⫽ 20) using sertraline, the mean effect-
ive dosage being 131 mg per day. Some 86 per cent of
patients completed the study, and no patient was discon-
tinued due to inadequate treatment response. A high pro-
portion (86 per cent) of patients were rated as responders,
with various sexual behaviors being significantly reduced
during the duration of the study, while heterosexual
coitus actually showed a small increase. Physiological
measures of sexual arousal showed decreases in pedophilic
arousal and improved or maintained normophilic arousal.
This study showed evidence of improvement of normo-
philic behavior measured as both self-report and sexual
arousal.
In another (retrospective) study, Greenberg et al.
(1996) used three different SSRIs (sertraline, fluoxetine,
and fluvoxamine) to treat fifty-eight paraphilic males,
and the three drugs were found to be equally effective in
reducing measures of sexually deviant behavior. In a later
study, Greenberg et al. (1997) compared paraphilic males
(n ⫽ 95) treated with SSRIs to a control group (n ⫽ 104)
who only received psychological treatment over a twelve-
week period. The SSRI-treated subjects showed a signifi-
cant reduction in deviant sexual fantasies compared to
those who received only psychotherapy.
The effectiveness of SSRIs in the treatment of sexual
offenders requires further investigation, including the
use of double-blind treatment. At the same time, the role
of serotonin in sexual behaviors has been well estab-
lished, and the mechanism of action of this compound
supports its use in this way. Several clinical studies have
been completed and shown great promise, while further
studies are planned for the future. As both the paraphilias
Psychopharmacological treatment of sex offenders 691
and obsessive compulsive disorder respond to SSRIs, it
has been speculated that these two psychiatric conditions
might have a similar basis, as well as having certain simi-
larities in their clinical characteristics. Indeed, it has been
hypothesized that the paraphilias may be part of an
obsessive-compulsive spectrum of disorders (Bradford
1991; Bradford 1999).
The SSRIs offer an approach to treatment that is use-
ful for most paraphilias of mild or moderate severity. The
low side-effect profile of these compounds, and the lack
of any hormonal effects, mean that they can be used to
treat adolescent sexual offenders. This is important, as
most paraphilias begin in adolescence with deviant sex-
ual fantasies and urges, while the actual sexual acting
starts later, mostly from the age of 20 years onwards.
Early diagnosis and treatment of the condition during
adolescence can have a major impact on future victim-
ization, and the SSRIs are playing an increasing role in
this treatment approach.
HORMONAL AGENTS
The first psychopharmacological agents used to reduce
sexual drive were estrogens (Foote 1944; Golla and
Hodge 1949; Symmers 1968; Whittaker 1959), and clinical
studies showed the treatment to be successful via the reduc-
tion of circulating testosterone. However, the adverse side
effects of nausea, vomiting, and feminization were prob-
lematic and limited the use of these psychopharmacolog-
ical agents.
Medroxyprogesterone acetate (MPA) has been the
most widely used psychopharmacological agent for treat-
ment of sexual offenders in the United States. Studies
were started in 1958 (Heller et al. 1959) and continue to
the present time. A number of clinical studies have been
completed (Money 1968; Money 1970; Money et al.
1975; Money et al. 1976; Langevin et al. 1979; Wiedeking,
Money, and Walker 1979; Berlin and Meinecke 1981;
Gagne 1981; Walker and Meyer 1981; Wincze, Bansal, and
Malamud 1986; Kiersch 1990; Maletzky 1991; Cooper,
Sandhu, and Losztyn 1992; Fedoroff, Wisper, and Deans
1992; Meyer, Collier, and Emory 1992; Gottesman and
Schubert 1993), and most have shown a positive treat-
ment response of sexually deviant behavior to MPA.
The mechanism of action of MPA is via the induction
of testosterone-alpha-reductase in the liver. This increases
the metabolic clearance of testosterone, thereby reducing
its plasma levels. MPA also has a progestinic effect that
leads to a reduction in the secretion of gonadotropins.
Moreover, MPA does not compete with androgen recep-
tors at the receptor level, and so by definition is not a true
antiandrogen (Southren et al. 1977). Treatment with MPA
results in a number of side effects, including weight gain,
decreased sperm production, a hyperinsulinic response
to a glucose load which might lead to potential problems
in patients with diabetes mellitus, headaches, deep vein
692 Special clinical issues in forensic psychiatry
thrombosis, hot flashes, nausea, and vomiting – all of
which can be managed medically (Berlin and Meinecke
1981; Gagne 1981; Walker and Meyer 1981; Meyer et al.
1985). At the same time, a significant impact on sexual
behavior was observed including a reduction in sex drive,
sexual fantasy and sexual activity (Berlin and Meinecke
1981; Gagne 1981; Walker and Meyer 1981).
Clinic studies with MPA are mostly open trials. Ini-
tially, MPA was used in the treatment of paraphilic males
(Money 1970; Money 1972; Money et al. 1975), using a
dosage range of 300 to 400 mg per week, given intramus-
cularly. Wiedeking, Money, and Walker (1979) reported
on the treatment with MPA of seriously sexually deviant
XYY males (n ⫽ 11) given MPA intramuscularly at
100–400 mg per week over a period of twelve months,
and approximately one-third of the patients showed a
positive response to treatment. Langevin et al. (1979)
completed a study that was flawed in design for various
reasons; the drop-out rate for MPA was very high (67 per
cent), and 15 per cent of patients relapsed while on MPA.
The two best-known open clinical studies were com-
pleted by Berlin and Meinecke (1981) and Gagne (1981).
The two studies included about seventy patients, and
each showed MPA to be effective treatment provided that
the subjects were compliant with dosing as there was a
tendency towards significant relapse rate if treatment
was discontinued. In the Berlin and Meinecke (1981)
study, 20 patients were followed for between one and
thirteen years, with a dose range of 200–400 mg given
each week (intramuscularly). Three patients relapsed
while on MPA, though one of these was related to alcohol
abuse. Some 15 per cent of patients relapsed on MPA,
and 67 per cent relapsed after discontinuing MPA against
medical advice. In the study by Gagne (1981), fifty-eight
patients were followed for between one and three years,
and 17 per cent relapsed while on MPA. Wincze, Bansal,
and Malamud (1986) used MPA in a single case, double-
blind experimental design in three pedophiles. Significant
reduction in arousal to erotic stimuli was noted in the
active treatment phase compared to the placebo phase,
and nocturnal penile tumescence was reduced in all cases.
Kiersch (1990) completed a sixty-four-week follow-up
study in eight patients treated with MPA as 400 mg
weekly depot injections for sixteen weeks alternating
with saline injections for a crossover period of sixteen
weeks. Treatment outcome was self-reported sexual arousal
measures, but the results were variable – mainly due to a
design flaw related to the prolonged half-life of MPA.
Meyer, Collier, and Emory (1992) studied forty men
(mostly pedophiles) treated with MPA (400 mg per
week, intramuscularly), and group and individual therapy
followed-up for up to twelve years. A control group of
twenty-one persons who were treatment refusers was
included and treated with psychotherapy over the same
follow-up period. Some 18 per cent of subjects reoffended
while on MPA, and 35 per cent reoffended after MPA
was discontinued. In the control group, 58 per cent of
subjects relapsed, with raised baseline testosterone levels,
head injury, alcohol, and substance abuse being factors
associated with relapse. Gottesman and Schubert (1993)
used a low-dose (60 mg per day, oral) MPA treatment
regimen for the paraphilias over a fifteen-month period
in an open trial involving seven subjects. This treatment
regimen led to a significant fall in plasma testosterone
levels when compared to baseline, and a positive out-
come was reported with significant reductions in para-
philic fantasies.
MPA is a widely used psychopharmacological treat-
ment with few reported serious side effects that could be
a barrier to treatment, and the impact on recidivism has
been shown in a number of studies, provided that the
sexual offender remains on MPA. However, in long-term
treatment with MPA with concomitant low levels of
plasma testosterone, it is important to monitor for osteo-
porosis; at the earliest signs of osteopenia, both calcium
and vitamin D supplements should be added to the treat-
ment regimen.
LHRH AGONISTS
Luteinizing hormone releasing hormone agonists (LHRH
agonists) have a very specific treatment role in the para-
philias in that they produce a pharmacological ‘castra-
tion.’ The hypothalamic pituitary axis is overstimulated
and is exhausted, and there is a significant inhibition of
gonadotropin secretion. LHRH agonists have a pro-
longed action and may potentially be very important in
the future treatment of severe paraphilias. The potential
use of these drugs to treat paraphilias was first described
by Bradford (Bradford 1985), since then limited clinical
studies have been conducted on the use of LHRH agon-
ists in this population. Rousseau, Dupont, and Labrie
(1988) reported on changes in sexual behavior in prostate
cancer patients treated with flutamide (a non-steroidal
antiandrogen) and surgical castration. Some patients did
not undergo surgical castration and were treated with
flutamide and an LHRH agonist, LHRH ethyl amide. The
pre-treatment sexual functioning of the patients was
compared to post-treatment sexual activity. Following
treatment, more than 70 per cent of patients had a major
decrease in sexual interest, with sexual intercourse and
sexual activity maintained in only 20 per cent of cases and
about 60 per cent of cases unable to achieve an erection
by sexual fantasy. Rousseau et al. (1990), in a follow-up to
the study, reported on a single case study treatment of an
exhibitionist with the same LHRH agonist. The dosage
was 500 ␮g per day for four weeks, then 250 ␮g per day
for twenty-two weeks; the patient also received flutamide.
The patient was followed for one year, including nine
weeks after discontinuing treatment. The exhibitionistic
behavior disappeared, and there was a marked decrease
in sexual fantasies during the active treatment phase,

without any significant side effects. Within nine weeks of
discontinuing treatment however, the patient relapsed.
Dickey (1992) reported on a treatment resistant case of
pedophilia that failed to respond to both MPA and CPA
and was successfully treated with leuprolide acetate.
Thibaut, Cordier, and Kuhn (1993) reported on the treat-
ment of six males with paraphilia treated with the LHRH
agonist triptorelin (3.75 mg per month, intramuscularly).
All had a paraphilia, most were pedophiles, and some
had failed to respond to antiandrogen treatment. The
patients were treated with triptorelin 3.75 mg per month
concurrently with CPA 200 mg a day for 5.5 months. In
five of the six patients, the deviant sexual behavior was
markedly decreased without significant side effects in a
follow-up period ranging from seven months to three
years. One patient interrupted treatment after twelve
months and relapsed two to three months later.
The most important study to date in relation to the
treatment of paraphilias with LHRH agonists was reported
by Rosler and Witztum (1998). This was an uncontrolled
open study of the treatment of thirty men (mean age 32
years) and who suffered from longstanding severe sexual
deviation; twenty-five of the thirty men suffered from
pedophilia. They were treated with monthly injections of
3.75 mg triptorelin and supportive psychotherapy for a
follow-up period of between eight and forty-two months,
with treatment outcome being evaluated monthly by
questionnaire. All of the men had a decrease in the num-
ber of deviant sexual fantasies and urges; quantitatively
during therapy, this was reduced to zero. There was also a
significant decrease in the number of deviant sexual inter-
ests to zero while receiving triptorelin. These effects were
observed for at least one year in all of the men (n ⫽ 24)
that continued treatment for a year. The plasma testos-
terone levels fell to castration levels. With the triptorelin
treatment, side effects were erectile failure, hot flushes,
and some decrease in bone mineral density. In a recent
study, Briken, Nika, and Brener (2001) used leuprolide
acetate over a twelve-month period to treat sexually
deviant males. There was a significant impact on sexually
aggressive behavior as well as other sexual behavior. As
with surgical castration, the risk of osteoporosis with
treatment using a LHRH agonist is significant, and bone
density studies should be conducted on an annual basis.
Prophylactic treatment with vitamin D and a calcium sup-
plement should be considered.
It is clear that LHRH agonists are going to play an
increasingly important role in the treatment of sexual
offenders in the future, and further research is needed
when using these psychopharmacological agents. Although
no outcome studies are available, the effects on available
androgen is very similar to what is seen in surgical
castration. As a result, the outcome of long-term
LHRH agonist treatment on sexual offender recidivism
should be very similar – if not identical – to the surgical
castration studies, provided that the treatment is
continuous.
Psychopharmacological treatment of sex offenders 693
LHRH analogues available for clinical use include
leuprolide acetate, triptorelin (not available in the United
States, but available shortly in Canada) and goserilin
acetate.
ANTIANDROGENS
Cyproterone acetate (CPA) is a very powerful antiandro-
gen that has been widely used in Canada and Europe, but
is not available in the United States. It has antiandrogen,
antigonadotropic and also progestinic effects, and has a
principal mode of action at androgen receptors through-
out the body. It is a true antiandrogen as its mode of
action is to block intracellular testosterone uptake and
intracellular metabolism of the androgen (Neumann
1977; Liang et al. 1997). The effects of this medication are
largely dose-dependent, with sexual behavior decreasing
because of a reduction in plasma testosterone as well as
receptor blockade. This includes erections, masturbation,
sexual intercourse and deviant sexual behavior
(Neumann and Schleusener 1980; Bradford 1985;
Bradford 1995). CPA has very strong progestational
action (Schering 1983), and also blocks or reduces LHRH
secretion (Neumann and Schleusener 1980). The full
antigonadotropic effect of CPA is only seen in females, as
in males the antiandrogen and anti-gonadotropic effects
balance. The specific mode of action of CPA is competitive
inhibition of testosterone and dihydrotestosterone at the
androgen receptors. When given orally, CPA is 100 per
cent bioavailable, and has a plasma half-life of 38 hours.
In the intramuscular depot form, maximum plasma lev-
els are typically reached in 82 hours (Schering 1983).
The side effects of CPA treatment are similar to those
seen with MPA, and there is also a possibility of liver dys-
function and adrenal suppression (Bradford 1995). CPA
is also the most extensively studied pharmacological agent
used to treat paraphilias, with the first clinical studies
being conducted in Germany in 1971 in over 100 sexually
deviant men (Laschet and Laschet 1971). The subjects
were about 50 per cent sexual offenders, and the duration
of treatment in an open clinical trial ranged from six
months to over four years. It had been documented in 80
per cent of cases, CPA (100 mg per day) eliminated sex-
ual drive, erections, and orgasms, whereas a dose level of
50 mg per day caused a reduced libido but allowed erec-
tions to occur and some heterosexual and homosexual
sexual behavior to continue weekly. In about 20 per cent
of exhibitionists there was a complete elimination of all
deviant sexual behavior, even after treatment was discon-
tinued. This is not completely understood, but could be
the result of down-regulating androgen receptor sensi-
tivity. Undesirable side effects documented in this study
were fatigue, transient depression, weight gain (20 per
cent of cases) and some form of feminization including
slight gynecomastia. In a subsequent study, Laschet and
694 Special clinical issues in forensic psychiatry
Laschet (1975) reported on 300 men treated for up to
eight years with an excellent treatment response, with
minimal side effects in long-term management being
reported, while Davies (1974) completed a study on fifty
patients for up to five years with only minimal side effects
and very good treatment outcome. Bancroft et al. (1974)
compared CPA (100 mg per day) and ethinyl estradiol
(0.2 mg per day) in 12 patients. No significant side effects
were reported, although most side effects were noted with
the ethinyl estradiol. Arousal to deviant erotic stimuli as
measured by penile tumescence was not reduced by
ethinyl estradiol, but was reduced by CPA treatment. A
number of other studies (Ott and Hoffet 1968; Cooper
et al. 1972; Cooper 1981) have all shown CPA as effective
in reducing deviant sexual behavior. The largest group of
sexually deviant men (n ⫽ 300) ever studied in pharma-
cological treatment was in a study reported by Mothes et al.
(1971), while Laschet and Laschet (1975) reported details
on 200 men, with duration of treatment ranging from
two months to eight years and doses ranging from 50
to 100 mg CPA orally, and depot CPA with weekly or
bi-weekly doses ranging from 300 to 600 mg per injec-
tion. The side effects in the first two months were fatigue,
hypersomnia, depression, negative nitrogen balance, and
weight gain. At about three months, the nitrogen balance
had returned to normal and calcium and phosphate
metabolism normalized. At about eight months into treat-
ment, and in about 20 per cent of cases, there were signs of
feminization with some gynecomastia and a reduction in
body hair. Beneficial responses however were a reduction
in paraphilic behavior with decreases in erections, sexual
fantasies, and sexual drive reported in 80 per cent of the
cases given CPA 100 mg per day, orally. Twenty-five patients
were followed-up for up to five years after treatment
and, following the discontinuation of CPA, showed no
evidence of any further paraphilic behavior. A double-
blind placebo-controlled crossover study was completed
by Bradford and Pawlak (1993a), whilst a similar study
using CPA and evaluating the effect on the sexual arousal
patterns of pedophiles was also reported in 1993 by the
same authors (Bradford and Pawlak 1993b). A single case
study was also reported (Bradford and Pawlak 1987)
which showed CPA to be an effective agent in the treat-
ment of very severe paraphilia – specifically a sadistic
sexually motivated homicide. It was also noted that very
severe temporal lobe damage had occurred, and it was
in this single case study with repeated measures that for
the first time a suppression of deviant sexual arousal was
seen in contrast to no or little suppression of a nor-
mophilic response. The sexual arousal patterns were nor-
malized by CPA treatment. This same result was seen
in the study on sexual arousal patterns of pedophiles
(Bradford and Pawlak 1993b). In the double-blind,
placebo-controlled crossover study, nineteen subjects
(mostly pedophiles) were studied; all had high pre-
treatment recidivism rates with a mean of 2.5 previous
convictions per subject, and all met the DSM-III-R
criteria for a paraphilia. CPA was administered orally
in three-month active treatment phases with a crossover
placebo design. There was a reduction in sexual arousal
of responses by active drug, but this did not quite reach
statistical significance. Self-report measures of arousal
were all significantly reduced, while psychopathology
measured by rating scales showed significant reductions,
and self-reported sexual activity was significantly reduced.
Other objective measures of sexuality including fantasies
and masturbation were all significantly decreased by
CPA (Bradford and Pawlak 1993a).
CPA is the only pharmacological intervention that has
been subjected to research into treatment outcome and
recidivism. A number of studies have shown CPA to be
effective in reducing post-treatment recidivism rates
(Bradford 1995). Pre-treatment rates of recidivism ranged
from 50 per cent to 100 per cent, and the post-treatment
rate was 0 per cent in follow-up periods ranging from
one to five years. The recidivism rate was adjusted for
treatment compliance.
CONCLUSIONS AND RECOMMENDATIONS
The psychopharmacological treatment of sexual devi-
ation has a sound basis in the neurobiology of sexual behav-
ior. Compared to other psychopharmacological treatments
in psychiatry, more is known of the actual mechanisms
of action in these psychopharmacological agents used in
the treatment of paraphilias. There is considerable know-
ledge of the effects of serotonin on sexual behavior in
both animal research and open clinical studies in men
with paraphilias and hypersexuality, as well as treatment
of other psychiatric conditions. The antiandrogen and
hormonal treatments (CPA, MPA, and LHRH agonists)
also have a sound scientific basis in the neuroendocrinol-
ogy and endocrinology of sexual behavior. The differen-
tial effect on sexual arousal patterns documented with
CPA and sertraline is a fascinating research finding in
both practical and neurobiological terms. The ideal
treatment outcome with a normalization of sexual pref-
erence in sexually deviant males is supported by this
research finding. The major problem when using the
psychopharmacological treatment approach in sexual
offenders has been the lack of government and pharma-
ceutical industry support for research, and this has led to
there being a lack of double-blind placebo-controlled
studies. Further significant ethical barriers exist because
of the risk to third parties, and this had made double-
blind, placebo-controlled studies very difficult to com-
plete in sexually deviant men. Moreover, most psycho-
pharmacological agents are used in off-label indications.
Nonetheless, despite these difficulties, this is an important
treatment approach and, when combined with cognitive
behavioral treatment and relapse prevention treatment,
provides a very powerful tool for the treatment and
rehabilitation of sexual offenders.

Further research is clearly needed in all the pharma-
cological agents but particularly in the case of SSRIs and
LHRH agonists. Interesting future research opportun-
ities are likely to arise when drugs that are highly specific
to serotonin subreceptors are developed (e.g., the 5HT1a
receptor). This could mean a clinical ‘mapping’ of the
behaviors associated with pharmacological activity at a
specific receptor, and would mirror research that has
been carried out in animal research where sexual behav-
ior is subreceptor-specific in some species.
Future research opportunities will be highly depend-
ent on both the pharmaceutical industry and, even more
critically, government support. In this respect, univer-
sities throughout North America and Europe need to
establish centers of excellence in order to promote research
in all aspects of sexual behavior.
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Prosecution of assaultive patients
GARY J. MAIER AND STEPHEN RACHLIN
INTRODUCTION
The Hippocratic Oath, which first defined the ethical rela-
tionship between the physician and the patient, demands
that the physician ‘first do no harm.’ It is assumed that
physicians only intend well to their patients and, in the
reverse, that they intend no harm when they treat their
patients. In 1910, Freud described, for the first time in
the medical literature, the fact that he as a psychiatrist
had feelings toward his patients and he noted that these
feelings had to be taken into account when treating the
patient. He introduced the analytic concept of counter-
transference. Prior to the psychopharmacology revolution,
Winnicott (1949) described two cases in which he grew
to hate his patients. Winnicott had difficulty with the
first patient, who had a psychotic disorder, because he was
unable to influence the illness process. The second patient
he described had an antisocial personality disorder, which
seemed to actively frustrate the treatment process.
Is it counter-transference which would lead a psych-
iatrist to prosecute a patient, or is it something else? The
first published case of the criminal prosecution of an
inpatient was in 1978 (Schwartz and Greenfield 1978),
heralding a procedure that has resulted in the publication
of more than 20 cases. There is no doubt that patient vio-
lence against other patients and staff has increased (Owen
et al. 1998a; Owen et al. 1998b), and this increase has
occurred whether the patients are male or female (Lam,
McNiel, and Binder 2000), in the community (McNiel,
Binder, and Fulton 1998; Sandberg, McNiel, and Binder
1998), in the emergency room (Goldberg and Lion 1996;
Currier and Allen 2000), on the medical ward (Ladds and
Lion 1996), the psychiatric unit (McNiel and Binder 1995),
or in the state hospital (Norko, Zonana, and Phillips 1992).
This increase in violence has become a topic of discussion
in the medical community and a source of contention
between some clinicians. Furthermore, the conflict
between a hospital’s responsibility to pursue its therapeutic
mission and its responsibility to safeguard its environment
72
can bring out the intensity of the diversity of views when
a decision is made to prosecute a patient for aggressive
behavior (Miller and Maier 1987; Meloy 1991). Given these
changing times, why has prosecution become a method for
managing this type of behavior (Cohen and Hoge 1996)?
Why have responsible clinicians called for ethical debate
(Morrison 1998) and for policy formulation (Appelbaum
and Appelbaum 1991)?
INCREASED INTEREST IN PURSUING
PROSECUTION
There are a number of reasons why there is increased inter-
est in pursuing prosecution as a means of responding
to willful patient aggression (Dubin and Lion 1996). They
can best be understood when presented in the historical
context of the impact of changing public policy. First, with
deinstitutionalization, patients who were considered safe
to live in the community were discharged from state hos-
pitals because they were thought less likely to be violent
or disruptive. As a result, the patients who remained in
hospital were, on average, disproportionately violent. State
hospitals began to harbor a subset of the mentally ill,
those who were more likely to be violent. Second, the
standard of civil commitment changed from ‘in need of
treatment’ to dangerousness-based criteria. The standards
for civil commitment in all states now include a mental
illness and imminent or foreseeable dangerous behavior
to self or others. Third, when patients did accept voluntary
admission, they were likely to accept ‘voluntary’ treatment
and, in the reverse, when patients were admitted invol-
untarily, they were more likely to exercise their right to
refuse treatment. Studies have clearly demonstrated that
patients who initially refuse treatment are more likely to
be assaultive than are treatment-compliant patients
(Hoge et al. 1990). Fourth, with Tarasoff v. Regents of the
University of California (1976) and its progeny, clinicians
have been given the duty to protect third parties from
700 Special clinical issues in forensic psychiatry
future harm from patients. This has increased the burden
on the clinician, which has resulted in some patients
being hospitalized largely in fulfillment of this duty, and
some clinicians feeling compelled to retain potentially
violent patients even when their treatment needs have
been met, in order to prevent liability. An analysis of
these issues reveals that hospitals that treat the mentally
ill have nearly lost control over the laws and procedures
that govern admission to hospital (Miller 1996). As soci-
ety has become more interested in public safety, persons
who ordinarily might have been placed in jail or in
prison are now being assessed in hospitals for forensic
evaluations. There is no doubt that the range of diag-
noses of current psychiatric inpatients has changed
radically over the years (Volavka et al. 1995). Inpatient
settings rarely have voluntary patients who are simply
homeless, friendless, moneyless, or coping poorly in society.
To underline the point, current admissions must have a
bona fide DSM-IV Axis I ‘treatable’ clinical syndrome, and
they must show a certain level of danger to themselves
or others, as the admission criteria. The inpatient setting,
therefore, has a subset of mentally ill and dangerous
patients who have the right to refuse treatment except in
emergencies. When civil patients refuse treatment, most
States require a court hearing to determine whether the
patient is competent to give informed consent, a neces-
sary step prior to overriding the right to refuse treatment
by a court order. Forced treatment usually means forced
psychotropic medication. Patients have always resented
having psychiatric ‘treatments’ forced on them, but now
when they exercise their rights and are overruled by the
judge, some of them act out continued resentment and
anger against the psychiatric staff and not court officials.
Furthermore, the courts have become more active in
referring inmates who may not be competent to stand trial
for assessment for competency to stand trial and in some
states for the assessment of criminal responsibility (Miller
1987). On the surface, this may not seem significant, but in
practice it means that forensic units now have a larger por-
tion of untreatable ‘inmates’ living side by side with truly
mentally ill patients who are in various stages of treatment.
These ‘jail transfers’ are often not only not mentally ill,
but rather are often high-functioning personality dis-
ordered persons who seem to enjoy disrupting the environ-
ment necessary for the treatment of the truly mentally ill.
When these pseudo-patients are given rights as patients,
rights that are far more liberal than the ‘jail or prison
rights’ that formerly governed their behavior, they become
not just difficult to manage, they create an unsafe envi-
ronment. Confusion in the principles governing the
security needs of both groups has led to the conclusion
that these inpatient settings require a separate set of secur-
ity guidelines, ones that, at the present time, do not meet
the current Centers for Medicare and Medicaid Services
(formerly Health Care Financing Administration) or Joint
Commission on Accreditation of Health Care Organizations
guidelines/standards. The difficulty in complying with new
standards limiting the use of seclusion/restraint coupled
with the possibility of successful litigation against the hos-
pital for not protecting patients or staff from aggression,
has left many hospitals no choice but to refuse admission
for these patients or to consider decertifying select units
in order to maintain safety. The hospital’s liability for
maintaining a safe environment (Belden and Moniz 1996)
and the need to train staff in more effective techniques
for managing aggressive behavior, techniques that might
entail the use of pain compliance, are topic areas that may
need to be considered (Maier 1996).
To assess the clinical impression that the inpatient
population has become more dangerous Volavka et al.
(1995) described the inpatient population of two state hos-
pitals in New York State. When they looked at the charac-
teristics of the state hospital patients who were arrested
for offenses committed while hospitalized, ‘the sample
more closely resembled the population of criminal offend-
ers in the community than in the psychiatric inpatient
population.’ While these may be some of the reasons why
there has been an increase in interest in criminal pros-
ecution, consider the problems that must be addressed
as a policy describing the procedure to follow in order to
prosecute assaultive behavior evolves.
ETHICAL ISSUES UNDERLYING
PROSECUTION
The ethical issues that must be addressed when consider-
ing prosecuting an inpatient have been adequately
described in the literature (Appelbaum and Appelbaum
1991; Cohen and Hoge 1996). The clinician–patient
responsibility is fiduciary in nature; that means that the
clinician is expected to act in the best interest of the
patient rather than that of the treater. Clinicians who fail
to act in the interest of the patient can be subject to
liability based on malpractice or breach of implied con-
tract. While this has yet to be tested in the courts, in
theory a patient who has assaulted a clinician could con-
ceivably sue the clinician for pressing charges. And to
complicate matters, hospitals also have a fiduciary respon-
sibility. The Department of Justice reportedly has investi-
gated hospitals that pursue prosecution with a high rate
of frequency for possible violation under the Civil Rights
of Institutionalized Persons Act (Appelbaum and Dimieri
1995). The obligation that psychiatrists owe to patients
is defined in more technical, ethical language which
includes beneficence, the affirmative duty to act in the
patient’s interest; non-malfeasance, the obligation to do
no harm; and autonomy, the obligation to respect the
patient’s right to self-determination. For some clinicians,
this has become a battleground of ethical conflict. Clin-
icians who adhere to the position that as physicians they
must act solely in the best interest of the patient, have
difficulty accommodating to the idea that prosecuting a

patient can, at times, be in the patient’s best interest. This
is beyond counter-transference. Clinicians who hold this
position do not fully accept the ‘responsibility model.’
They want to excuse the patient’s behavior because of
their mental disorder. Other clinicians hold that they must
help their patients take responsibility for their behavior,
a well-established part of therapy, and therefore believe
that prosecuting the patient can be just one more method
of teaching responsibility. The conflict becomes even more
exaggerated when the patient has a primary Axis II diag-
nosis or a substance abuse problem, and these ‘patients’
can divide staff. There are many bona fide mental patients
who are not capable of controlling their aggressive
behavior due to mental illness. Historically, staff have
been willing to accept patients’ aggressive behavior when
it is clearly a product of their mental disorder, albeit as
an undesirable part of their job (Maier 1989). However,
patients are expected to respect the rights of others and
refrain from exhibiting unlawful behaviors when placed
in the hospital. Because there has been an increase in
patients who have DSM-IV Axis II diagnoses of antisocial
personality disorder (Hare 1998) and who actively abuse
alcohol and other substances, which can affect their abil-
ity to control their mood and behavior, staff identify the
aggressive acts of these patients as willful. Because they
are willful, they are therefore appropriate for prosecution.
Line staff have come to expect that willful patient aggres-
sion should be managed by the judicial system. In these
circumstances, hospitals, clinics, and individual clinicians
have had a progressively greater demand placed on them
to involve the criminal justice system to hold the patient
responsible for criminal behavior. Thus, case reports have
grown over the years (Hoge and Gutheil 1987; Miller and
Maier 1987; Rachlin 1994). At the same time, several
papers have identified the need for a set of guidelines
to govern the criteria for prosecution and the method of
implementing the procedure (Appelbaum and Appelbaum
1991; Cohen and Hoge 1996).
There are other rights issues which must be addressed,
especially in the inpatient setting. First, the issue of the
confidentiality of the assaultive patient must be con-
sidered. The Tarasoff (1976) decision has made it clear that
clinicians have an affirmative duty to identify potentially
dangerous patients to those who could be victims in the
future. There is, therefore, little disagreement that the
threat of assaultive behavior is an exception to the right
to confidentiality that a potentially dangerous patient
might expect. Second, implied in the above is the need to
protect other patients and staff who might be in danger.
Hospitals have a responsibility to provide a safe and
humane environment for all patients. Dangerous behavior
and its consequences can destroy the therapeutic, trusting
environment. Finally, hospitals also have the obligation
to provide staff with a reasonably safe, secure and humane
environment. These competing obligations must be
considered at the time of the decision to prosecute
(Simonowitz 1996).
Prosecution of assaultive patients 701
GUIDELINES FOR PROSECUTION
There are a small number of patients who exhibit will-
ful aggressive behavior, the consequences of which could
be managed by the criminal justice system using the
responsibility model. The procedure for carrying out these
guidelines will necessarily depend on each clinic and
hospital, but the guidelines in general must be developed
with the local police department and district attorney
so that the police will not be flooded with nuisance
investigations, which will impair the credibility of the
hospital. That is, it must be understood that traditionally
mentally disordered patients who are currently sick and
either un-medicated or under-medicated would not
qualify for prosecution. The intent of prosecution is not
to excuse responsibility for the aggressive behavior with
the use of the insanity defense, but to increase the
patient’s responsibility through a legal finding of guilt.
Therefore, patients who are in control of themselves and
their behavior, that is who may have a DSM-IV Axis I
clinical syndrome that is well treated or who have primarily
an alcoholic or drug disorder, or a personality disorder,
are candidates for prosecution for assaultive behavior.
The guidelines for establishing these procedures have
been described in a number of publications and should
include the following:
1 There should be a hospital policy governing the pro-
cedure. This policy should be based on the fact that
patients can and should be held responsible for their
behavior.
2 The policy should describe the rationale and goals
of the procedure so that the philosophy of the pro-
secution works more towards the goal of responsible
citizenship, to help the patient manage aggressive
impulses, than to the specific goals of traditional
treatment, to help the patient manage symptoms like
auditory hallucinations.
3 There must be documentation that the aggressive
behavior is not the product of a mental illness. This
will eliminate the problem of the insanity defense for
patients who are diagnosed with major clinical syn-
dromes and increase the chances that patients with
alcohol and substance abuse and personality dis-
orders are considered responsible for their behavior.
This is especially important for patients in forensic
security hospitals. But patients with psychotic dis-
orders who are adequately treated with neuroleptic
medication, who are therefore emotionally stable and
have been shown to be responsible for their behavior,
can be held responsible for assaultive behavior. Many
district attorneys have come to understand this. It is,
therefore, important for the clinician/administrative
staff in any mental hospital to work with the local dis-
trict attorney to inform him or her that they intend to
hold patients, who are willfully aggressive, responsible
for their aggression.
702 Special clinical issues in forensic psychiatry
4 There should be pre-existing documentation that the
patient has the capacity to control behavior. It is not
just that the aggression is not a product of mental ill-
ness; it must also be documented that they have the
capacity to control their behavior with examples from
other aspects of their unit or community life.
5 Further, it must be documented that they are stable
when on medications. This means that some patients
who have been found Not Guilty by Reason of
Mental Disease or Defect for a serious crime when
un-medicated in the community may be held
responsible for their aggressive behavior in the hospi-
tal when adequately medicated. It also means that a
patient who has been found Not Guilty by Reason of
Mental Disease or Defect and is stable can be held
responsible for new criminal activity and be subject to
prosecution.
6 If the patient has made threats prior to the physical
aggression, documenting the threats increases the
chances of successful prosecution. Good documenta-
tion is always necessary, both to support the presence
of a bona fide diagnosis and that the illness is being
treated in an adequate manner. When the patient is
well treated, it is logical to assume that he or she can
be held responsible for his/her behavior.
7 The decision to proceed with prosecution should be
made by senior clinical/administrative staff after con-
sultation with those personnel more directly involved
with the incident or with the care of the patient.
8 Finally, prosecution should be sought only for serious
infractions, and not for minor nuisance offenses.
In pursuing prosecution, debate has occurred in literature
regarding the challenge that prosecution has to the thera-
peutic alliance. In fact, the early debates emphasized the
impact prosecution would have on the physician–patient
relationship to the point of dissolving it. As noted above,
there has been concern that the clinician would become
vulnerable to litigation. Time has resulted in mellowing
these fears. Nevertheless, many clinicians still believe that
prosecution, if it is a serious consideration, should be
pursued by third parties. It should be made clear then that
the intent of the policy is neither to become adversarial
with patients nor to dissolve the therapeutic alliance
sought in treatment. Prosecution will clearly impact on
the treating nature of the therapeutic alliance. However,
it is held by some clinicians that when a patient willfully
assaults a staff member, the therapeutic alliance is broken
as the aggression occurs. That is, staff can no longer trust
a patient who will willfully and intentionally assault
them. These issues, however, have not yet been resolved.
It is also important to recognize that prosecution of
assaultive behavior should be considered primarily for
serious aggressions rather than minor aggressions. For
instance, pushing and shoving, while obnoxious, may
not result in any particular injury, and therefore may not
fall into the category of assaultive behavior. Staff and the
hospital administration must work towards understanding
that a certain threshold of aggression must be reached
before prosecution would be considered.
PROBLEMS WITH IMPLEMENTATION
Even if the hospital has a well-defined policy, systemic
issues in the criminal justice system can block its imple-
mentation (Appelbaum and Appelbaum 1991). Beyond
the coordination of the clinic or hospital staff, successful
prosecution of a patient requires the cooperation of the
police, prosecutors, and the courts. Staff involved must
be willing to testify as to the facts. If the local police are
not willing to do a timely or complete investigation
which can lead to arrest, if the district attorney is not pre-
pared to weigh the evidence and pursue charges, if the
courts are not willing to hear the case, or will hear the
case but give an unsatisfactory disposition, then pursu-
ing conviction can be meaningless. A harmonious rela-
tionship between the mental health and criminal justice
systems is necessary to achieve active prosecution that
can result in a meaningful conviction. In fact, in the
Volavka et al. (1995) study, seventy-three inpatients were
arrested over a thirty-month period for an offense com-
mitted while they were hospitalized. However, prosecu-
tion resulted in jail or prison terms for only 11 per cent of
those arrested, and the vast majority of the patients who
were arrested were returned to the hospital within hours.
The conclusion that one might draw from such arrests
is that they are almost meaningless, considering the legal
outcomes. Nevertheless, it is still worthwhile to pursue
prosecution because of the legal impact and the message
that it sends to other patients that their aggressive behavior
can receive legal consequences. At the time a hospital
develops a policy to prosecute patients for willful aggres-
sion, they must simultaneously coordinate their intentions
with the local district attorney’s office. The two must
work together toward the goal of identifying aggressive
behavior that is willful and not a product of mental dis-
order. The hospital has an obligation to proceed only with
cases that deserve prosecution on their merits. The hospital
must make clear to the district attorney that it will not
flood the district attorney’s office with every punch or kick
that any patient makes in the course of hospitalization.
This is clearly not the intent of the positions taken in the
literature, to the effect that prosecution should be limited
to premeditated, willful aggression by patients who are
considered responsible for their behavior.
Case example
Mr. A. was a 28-year-old white male with the diagnosis of
schizophrenia, paranoid type, chronic, who was committed
to the Department of Health and Social Services after being
found Not Guilty by Reason of Insanity. He was placed in
the State Forensic Hospital. Over the years, he earned his
way from a maximum security unit to minimum security

unit, where he then earned off-grounds privileges.
Eventually he was able to work in the community. While
he was off hospital grounds, at a supervised workshop,
he called back to the unit and told the staff he was feeling
physically sick. He was given permission to come back to
the hospital. Staff inquired about his ability to return on
the bus unescorted and he assured them he was well
enough to do that. He subsequently stated that while on
the bus, he decided he wanted to be sexual with one of
the female staff in the hospital administration building.
When he got to the hospital grounds, he walked to the
woman’s office. He entered the office, closed the door,
and then proceeded to choke and fondle her. The victim
screamed, help came, and the patient was subdued.
The patient had a longstanding diagnosis of paranoid
schizophrenia. He had been treated for years with Prolixin
Decanoate 50 mg intramuscularly every 14 days. Charting
showed he had been responsible for his behavior and stable
on medication for years. When the victim decided that
she wanted to press criminal charges, the Chief Executive
Officer sought a legal opinion from Department of Legal
Services. Given the fact that Mr. A. was already in the hos-
pital, having been found Not Guilty by Reason of Mental
Disease or Defect, discussion ensued about whether a per-
son held under that statute could, in fact, ever become
legally responsible for his behavior. After reviewing the
chart, the decision was made that the record supported the
case for holding him responsible. The District Attorney was
then persuaded by the facts to take the case, not just to pur-
sue justice for the victim, but also to alert other patients in
the hospital that criminal behavior would not be tolerated.
Over a period of months, the patient, represented by the
public defender, was taken through the process of prosecu-
tion. He was ultimately found guilty of Assault and given a
ten-year sentence. The sentence was to run concurrent with
the final years of his insanity commitment, which would
have meant he would have still remained in the hospital,
because in that jurisdiction patients held on ‘dual-
commitments’ had the commitment to mental health take
precedent over that to Corrections. Given the unrepressed
negative feelings towards the patient by the hospital staff,
Mr. A. and his attorney ‘elected’ to forego continued hospi-
talization. They claimed correctly that he had reached max-
imum benefit of treatment and he was released from his
commitment and transferred to the Department of Cor-
rections. The reality of the counter-transference toward the
patient was a factor in helping him make the decision to
seek transfer to prison about two years earlier than the
sentence would have required. Nevertheless, he still had
a five-year prison sentence, which he continued until his
release.
CONCLUSION
The prosecution of mental patients has increased almost
in proportion to the assaults of psychiatric patients
Prosecution of assaultive patients 703
against peers and clinicians. The literature from 1970
to 1990 was sparse and critical of prosecuting patients
because of the ethical issues including the impact on the
therapeutic alliance, and because of the difficulty of devel-
oping a harmonious approach between the mental health
and criminal justice system work towards prosecution.
During the past ten years, it has become an accepted part
of our therapeutic armamentarium. Further, the pros-
ecution of patients for presumptively criminal acts has
now been incorporated in a policy in many hospitals.
Therefore, many hospitals have standard procedures with
trained clinical and legal staff oversight so that one option
that hospitals have to hold patients responsible to com-
munity standards of humane interpersonal behavior can
be exercised when they indulge in willful criminal acts.
Staff rights remains an area that needs to be addressed as
we work toward the practice of safe psychiatry.
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Treatment of sex offenders
GENE G. ABEL AND CANDICE A. OSBORN
INTRODUCTION
Treating the paraphiliac can be an interesting and reward-
ing challenge for the forensic psychiatrist because it leads
to the reduction of sexual violence, reduces the likeli-
hood of future victimization, and also gives the forensic
psychiatrist a sense of meaningful accomplishment in
dealing with a serious public health problem – child
molestation, rape and other forms of paraphilic behav-
ior. However, the therapist must be accepting of a num-
ber of consequences to working with sexually violent
patients. First, our culture is exceedingly upset by sexual
perpetrators and, by association, their therapist can be
seen as in some way helping the offender by providing
treatment (Brown 1999). The therapist must keep the
focus of therapy on protection of the public by reducing
the probability of re-offense. A second issue involves
double agentry, in which the therapist has conflicted
loyalties. In traditional psychotherapy the therapist
works exclusively on the patient’s goals to accomplish
the patient’s objective without the intrusion of the ther-
apist’s opinion and prejudices into the therapy. Most
sex offender patients, however, will be on probation or
parole and an integral element of their lives is ongoing
supervision by their probation/parole officer (English
1998; Grant 1999; Scourfield 1998; Wilson et al. 2000). It
is inevitable that the therapist must come to terms with
this dual alliance, since it is the responsibility of the
probation/parole officer to know when the patient is at
high risk to re-offend, is not compliant with therapy, or
is not attending. The therapist must accept this dual
agentry responsibility; indeed, that responsibility inev-
itably extends to protection of the general public when
treating sex offenders.
The most common conflict about dual agentry involves
providing information to the offender’s probation or
parole officer. The probation/parole officer’s primary
responsibility is the protection of the public and that
requires receiving information from the therapist regard-
ing the sex offender. Therefore, a release of records must
73
be signed so that the therapist can communicate with the
probation/parole officer in spite of it possibly containing
privileged psychiatric, psychological or medical informa-
tion. Furthermore, probation and parole officers fre-
quently change, so the release of information should be
to the offender’s probation department, rather than to a
specific individual.
The therapist must feel comfortable with these mul-
tiple alliances and must clarify these multiple roles with
the patient (and him/herself) before instituting treat-
ment. The therapist should take a number of steps to
minimize the problems of double agentry (Cohen 1995).
A formal consent for treatment should be signed that
includes: the therapist will be provided with a copy of the
patient’s probation requirements; the patient will abide
by those conditions to their full extent; the patient will
abide by the treatment guidelines given to him/her by the
treatment team or individual therapist; and, if a child
molester, he/she will follow the standard probationary
guidelines for child molesters, such as avoiding being
alone with a child, not using the Internet, and avoiding
the purchase or use of child pornography. Group mem-
bers must agree not to divulge information regarding
other patients outside of group; must refrain from social-
izing with other patients outside of the therapist’s office;
and must also understand that their confidential infor-
mation will be revealed to others if they indicate that
they might harm themselves or someone else, or if they
have committed sex acts that must be reported by state
law. All states in the United States demand that a profes-
sional report individuals who have molested children
and, therefore, if new victims are revealed to the thera-
pist, they must be reported to child protection services or
legal authorities. Therapists familiar with individual
therapy and protection of the confidentiality of the
patient with neurotic or psychotic symptoms may be
uncomfortable with the dual agentry problems of work-
ing with sex offenders and therefore should probably not
treat this category of patient.
706 Special clinical issues in forensic psychiatry
PRINCIPLES OF THERAPY
There are a number of principles or tenets that therapists
treating sex offenders assume during the course of treat-
ment. These include:
1 The offender should accept personal responsibility
for his or her inappropriate sexual behavior; a major
obstacle of treatment is that the offender frequently
denies, rationalizes or in some way explains away
his/her responsibility for the sexual offense. It is diffi-
cult to expect successful treatment as long as this denial
continues.
2 Treatment does not cure but rather teaches offenders
to maintain control of their sex-offending behavior
throughout their lifetimes, due to the repetitive nature
of sex offending and the potentially severe conse-
quences to its victims. The therapist’s responsibility is
to organize a lifelong treatment plan that goes well
beyond the treatment of the event leading to arrest and
includes a variety of factors that the offender needs to
maintain a lifelong pattern of not offending.
3 Treatment should be sex offender-specific, rather than
focusing on the generic psychological problems that
patients sometimes have. Sex offending is a specific type
of behavior and therefore needs a therapy that focuses
on the specific factors that lead to sex offending.
4 Sex offending is caused by multiple factors, not just
the need for sexual gratification. Therapy needs to
reduce the risk for acting on sexual interest, but also
needs to be individualized to identify the specific factors
that may have led the offender to perpetrate a sex crime.
THE CLINICAL INTERVIEW,
PAPER-AND-PENCIL TESTING AND OBJECTIVE
MEASUREMENT OF SEXUAL INTEREST
The first step in the assessment process is to gather infor-
mation regarding the alleged sex offending behavior of the
patient. This frequently involves obtaining arrest records,
reports of victims and collaborative sources of informa-
tion. Some offenders have been cautioned by their attor-
neys to provide no information to the evaluator, and will
obstruct and deny the existence of any information per-
taining to their arrest. It is strongly recommended that
the therapist contact the offender’s attorney, followed by a
letter to the attorney’s office, requesting all available records
pertaining to the case, preferably three weeks prior to the
patient being seen. Some attorneys refuse to provide such
information, indicating that it is work product. The send-
ing of a letter and a formal request for information clari-
fies that the therapist has acted in good faith to acquire the
necessary information, prior to seeing the patient.
The clinical interview is especially important because
it allows the therapist to develop a working relationship
with the offender (Abel 1985; Abel and Osborn 2000).
Some, but not all, offenders absolutely deny culpability
for any sex crime, but a surprisingly high percentage reveal
their deviant sexual interest, their behavior and, in many
cases, other types of sex offending unknown to others. It
is important to obtain collateral information early in the
initial interview process (after obtaining appropriate con-
sents) to gather as much independent information about
the alleged offense as possible.
Paper-and-pencil testing, in some cases, can be sur-
prisingly helpful since some offenders are reluctant to
discuss their deviant sexual interest face-to-face with a
therapist, but readily admit such proclivities on paper-
and-pencil testing. A number of sources of paper-and-
pencil testing are available to either gather history, identify
cognitive distortions and justification for inappropriate
sexual behavior, identify a broad range of paraphilic behav-
ior beyond that which has led to the referral, categorize
substance and alcohol abuse, determine the social desir-
ability of the patient’s responses and willingness to admit,
categorize and quantify the use of deviant sexual fan-
tasies, and assess the offender’s level of motivation for
treatment (Barbaree and Seto 1997; Heilbrun et al. 1998;
Salter 1988).
An absolutely critical aspect of an assessment involves
objective measurement of the patient’s sexual interest.
Three categories of objective measurement are available:
(i) penile plethysmography; (ii) visual reaction time assess-
ment; and (iii) polygraph examinations. Plethysmography
measures the patient’s erection response when presented
with various categories of deviant and non-deviant stim-
uli, presented via slides, audiotaped descriptions of deviant
and non-deviant acts, and/or videotaped depictions
(Lalumiere and Harris 1996; Becker and Murphy 1998;
Marshall and Fernandez 2000). Visual reaction time
quantifies the offender’s visual attending to deviant and
non-deviant stimuli across various ethnicities, ages and
genders. Most recently, this has been combined with
paper-and-pencil testing to generate a logistical equation
that estimates the probability that an individual has been
involved with females under fourteen years of age, males
under fourteen years of age, or is consistent with individ-
uals who are attempting to conceal their involvement
in child molestation behavior (Abel et al. 1998; Abel,
Osborn, and Phipps 2001). Polygraph examinations, in
general, gather data on specific questions of interest to
the therapist. A variety of physiologic responses are
measured in response to the content of various questions
asked, and the differences in response magnitude indi-
cate the likelihood of deception or lack of deception
(Hager 1995; Blasingame 1998; Ahlmeyer et al. 2000;
Wilson et al. 2000).
The field of sex offender treatment has made rapid
advances since the inclusion of these objective measures
of sexual interest. Obtaining objective measures to arrive
at diagnoses is well known in medicine, such as using the
diabetic’s blood sugar level to judge the necessity of the

units of insulin needed, electrocardiograms to determine
the categories of arrhythmias, or electroencephalograms
in the assessment of possible epileptic seizures. These
objective measurements, when used with sex offenders,
can be exceedingly effective at cutting through denial and
focusing the offender on treatment, as well as assessing
the offender’s response to treatment designed specifically
to reduce deviant sexual interest.
A FORMULA FOR TREATMENT
The following outlines a formula for treatment to help
the therapist meet the needs of the patient as well as
protect the safety of the community. First, the therapist
obtains the consent for treatment and the consent to
communicate with probation or parole as described
above. Second, the therapist must determine whether the
offender is safe enough to be treated as an outpatient or
is too dangerous. It is exceedingly rare that an offender
has to be hospitalized because of imminent danger to the
public.
If there are doubts about the danger that the patient
poses, the therapist has a number of avenues to reduce
that risk relatively rapidly. The immediate introduction
of serotonin-specific reuptake inhibitors (SSRIs) can be
expected to reduce sexual drive and thereby increase
control over sexual urges, including deviant sexual urges
(Land 1995; Roesler and Witstum 2000). More dramatic
reduction of sexual drive can be accomplished with
medroxyprogesterone acetate, either in the oral form
or the depo form (Robinson and Valcour 1995; Prentky
1997). A newer agent, luprolide acetate (Lupron), is also
available in the depo form (Zonana 1999). The advan-
tages of the SSRIs, the hormonal agent Provera, and the
polypeptide Lupron are that these drugs can significantly
reduce sexual drive. Deviant sexual behavior necessitates
a strong sexual drive before the offender acts on his
deviant interest. Reduction of this drive with these med-
ications can rapidly provide many offenders with a
prompt increase in their control over their deviant urges
and fantasies and, therefore, allow them to be treated as
outpatients (Abel and Osborn 2000).
Additional interventions during the acute phases of
treatment are to require that the patient be with an adult
familiar with his deviant sexual interest at all times, or
that he be required to participate in electronic monitor-
ing (ankle bracelet) of his whereabouts. These latter two
interventions, although appearing somewhat mundane,
provide prompt, effective protection of the public at
minimal cost, relative to hospitalization or incarceration.
If the above interventions are not effective at reducing
the patient’s sexual urges, then temporary hospitaliza-
tion may be indicated.
Patients who have significant inappropriate sexual
interests, regardless of whether they are placed on
Treatment of sex offenders 707
medications to reduce their sex drive, should be taught
various behavioral therapy techniques to reduce their
inappropriate sexual arousal, such as covert sensitization,
olfactory aversion, masturbatory satiation, and aversive
behavioral rehearsal. Patients who need to establish or
increase their appropriate adult sexual interest should
be taught behavioral therapy techniques such as fading,
exposure, or masturbatory conditioning (Abel, Osborn,
and Phipps 2001). These individuals should then also
undergo therapy to reduce their distorted thinking
regarding their inappropriate sexual behavior, such as
cognitive restructuring and victim empathy, as well as
undergoing therapies to address any deficits in prosocial
behavior that they may have through techniques such as
social skills training, assertiveness training, anger man-
agement training, sex dysfunction therapy, and intimacy
skills training. Additionally, other treatment modalities
may be indicated, such as psychodynamic therapy, family
systems therapy, sexual addiction treatment, and sexual
trauma therapy. The next step in the overall treatment
program should include techniques to maintain treat-
ment gains and prevent relapse, such as relapse preven-
tion maintenance therapy and surveillance groups. This
formula for therapy delineates a sequence of treatment
for inappropriate sexual interests but does not include
all possible options available to the clinician. Each of
the above cognitive-behavioral therapies is discussed in
detail in the following sections.
TREATMENT TO DECREASE PARAPHILIC
INTEREST
There is extensive literature regarding the development
and maintenance of sexual interest, including deviant
sexual interest (Abel and Blanchard 1974; Deu and
Edelmann 1997; Langevin, Lang, and Cumoe 1998). The
psychoanalytic (Tausk 1951; Lorand and Balint 1956)
and the behavioral literature (Abel and Osborn 1996;
Abel, Osborn, and Phipps 2001) both conclude that early
sexual experiences are more likely to be recalled during
masturbation and/or sexual interaction, and these
images and fantasies are thereby more easily paired with
the pleasure of genital touching and orgasm. Since this
pairing can occur hundreds of times per year, sexual fan-
tasies that are recalled during sexual excitement become
stronger, whereas those fantasies that are infrequently
recalled become weaker from lack of use. Many behav-
ioral therapies are designed to reverse this pairing of
deviant fantasy with pleasure and thereby disrupt the
cycle of deviant fantasy use being associated with greater
deviant fantasy interest that often leads to deviant behav-
ior (Rice and Harris 1997). The principle behind each of
these therapies is that they can be applied by the offender
any place, any time, when the offender’s urges and fan-
tasies might lead him/her to reoffend.
708 Special clinical issues in forensic psychiatry
Covert sensitization
Covert sensitization teaches the offender how to identify
the various sequences or chains of thoughts and behav-
iors that are antecedent to deviant behavior (Abel et al.
1992; Dougher 1995; Abel and Osborn 1996; Barbaree and
Marshall 1998). The offender then describes (while audio-
taping this treatment) some of the antecedents while imagin-
ing the step-by-step process leading to deviant acts, and
then immediately inserts into his imagery the potential
highly aversive consequences that could naturally occur
if the sequence of events proceeds on to deviant acts. The
aversive imagery might include being arrested and hand-
cuffed in front of one’s house by a harsh, insensitive
policeman who tells the neighbors about the offender
being a sexual pervert; police coming into the offender’s
employment, arresting him, and telling individuals at the
work site that he is a child molester; images of one’s chil-
dren being teased and ridiculed at school when it is learned
that the offender has been arrested for a sex offense;
or seeing one’s sexual partner in the arms of another fol-
lowing the offender’s arrest and incarceration. An import-
ant aspect of covert sensitization is the repetitive pairing
of these antecedents with the negative consequences so as
to help the offender instill in his mind the expected con-
sequences of allowing himself to carry out the chain of
events ultimately leading to deviant sexual behavior.
To ensure that the offender has carried out the
therapy, and has done so correctly, his tape-recorded
treatment (carried out at home) is brought to the therap-
ist who listens to the results and gives feedback to the
offender regarding how to improve the imagery, include
all of the antecedents leading to the deviant behavior,
and ensure numerous pairings of the antecedents to
aversive consequences.
Most behavioral therapies are done in a group setting.
This not only makes the therapy more cost-effective, but
the public disclosure of the offender’s deviant behavior
also helps ensure his admission of guilt and removes his
deviant thoughts and behavior from the secrecy of his
internal thoughts. The disclosure of the offender’s
deviant thoughts by itself helps demystify the secret fan-
tasy life of the offender. Generally, each tape-recorded
session lasts 15–20 minutes, and the therapist reviews ten
such audiotaped treatments before proceeding to another
behavioral therapy.
Olfactory aversion
Some offenders find it difficult to imagine the aversive
consequences used in covert sensitization or, due to the cir-
cumstances of their poor control, they need an immediate
means of aversion of their deviant fantasies. Olfactory
aversion, generally in the form of ammonia aversion,
is an alternate therapy (Abel et al. 1992; Abel and Osborn
1996; Barbaree and Marshall 1998; Becker and Murphy
1998). As in covert sensitization, the offender learns to
identify the usual chain of events leading to the deviant
behavior and, when the image is well in his mind’s eye, he
breaks an ammonia capsule and pairs the odor of ammo-
nia with the antecedent. A frequent error the therapist
makes is assuming that the greater the aversiveness of
the ammonia, the more effective the treatment will be.
In actuality, the smelling of ammonia only needs to be
sufficient to cause some degree of aversion. The offender
then removes the ammonia capsule, returns to imagining
the antecedent, and once again brings the ammonia up
to his nose to form an aversive association between the
antecedents leading to the behavior and the smell of
ammonia. The key is frequent pairings. One has to be
careful that the patient does not have lung disease or
sensitivities that would preclude the use of ammonia;
sometimes other sources of pungent aversive odor are
used instead of ammonia. As with covert sensitization, the
offender audiotapes these treatments and brings them to
group therapy for a critique by the therapist and other
offenders, so as to ensure the repetitive pairings of the
antecedents with ammonia and that these antecedents
are clear in the patient’s mind, prior to pairing with the
aversion of ammonia. The therapist does not review each
and every audiotape in its entirety but randomly selects
various group members’ tapes to give feedback to the
offender and the group regarding how to make treatment
more effective. Olfactory aversion can be done virtually
anyplace, anytime the need arises to reduce deviant urges.
In general, the patient completes ten 10-minute ammo-
nia aversion tapes and has them reviewed before pro-
ceeding to another behavioral treatment.
Masturbatory satiation
This treatment directly attacks the method by which the
offender pairs deviant fantasy with the pleasure of mas-
turbation by first having the offender masturbate to non-
deviant, normal fantasies until he ejaculates, or 10 minutes
has transpired (Abel et al. 1992; Abel and Osborn 1996;
Barbaree and Marshall 1998; Becker and Murphy 1998).
The offender then switches to using a small segment of
the most erotic deviant fantasy he is able to imagine. The
selection of this small ten- or twelve-word description
of a highly erotic experience is then repetitively vocalized
while the offender masturbates, post orgasm, attempting
to get an erection and ejaculate again. This second phase
of the satiation treatment is designed to reverse the use of
deviant fantasy by having the offender use his most erotic
images at a time when he cannot be aroused and/or ejacu-
late. After the initial ten or fewer minutes of non-deviant
fantasy, the offender masturbates to deviant fantasy for
fifty additional minutes. Some offenders will be able
to ejaculate a second or third time when first doing
satiation but, with the passage of time, these one-hour
sessions turn from being possibly enjoyable, to neutral,

to highly aversive. The treatment usually requires twenty
hours of satiation treatment. As with the previous behav-
ioral treatments, these also are audiotaped in the offender’s
home, and the audiotapes are brought to the therapist for
feedback to the patient and other group members. In
essence, the principle of satiation remains the same irre-
spective of the deviant thoughts and urges, so this tech-
nique is effective with any category of deviant interest,
be it a sexual interest in children, rape, exhibitionism,
voyeurism, etc. In a few cases, religious or medical illness
does not allow concomitant masturbation during the sati-
ation process and, as a consequence, verbal satiation is
substituted for masturbatory satiation.
The selection of which ten- to twelve-word image is
used will depend upon where the offender’s control is
poorest. Sometimes, when the patient has become sati-
ated to image A and has switched to work on image B,
image A may regain significant arousal. The offender then
goes back to using image A during the satiation process,
until it again loses its erotic power. He then returns to
focusing on the next most erotic image. This therapy
flows naturally from our understanding of the develop-
ment of deviant fantasy during masturbation and reverses
that process.
Aversive behavioral rehearsal
Aversive behavioral rehearsal was initially developed
by Serber and was called shame aversion (Serber 1970).
It has subsequently been modified by Wickramsekera
(Wickramsekera 1976; Wickramsekera 1980) and, most
recently, by Wolfe and Smith (Abel et al. 1992; Abel and
Osborn 1996; Smith and Wolfe 1988). This treatment
involves the offender carrying out a make-believe example
of deviant behavior in front of an audience and get-
ting feedback from that audience regarding the impact of
that behavior on the victim, the appropriateness of that
behavior, and the attitudes of non-professionals regard-
ing this behavior. This is a very powerful therapy since
it allows the offender, the therapist, and the audience to
view the offender’s deviant behavior ‘close up.’
A child molester, for example, is asked to molest a
child mannequin in the fashion that he has molested, or
would like to molest, a child while verbalizing the beliefs
and attitudes that he fantasizes he, and the child, are hav-
ing at the time of the pseudo-molestation. The first step
involves the therapist helping the offender to verbalize
the antecedents to the molestation and encouraging the
offender to verbalize what he believes the victim is experi-
encing during the molestation. To capture these thoughts,
attitudes and beliefs, the entire sequence is carefully video-
taped to ensure that the offender’s verbalizations are clearly
recorded. Step two involves playing back brief segments
of the videotape in front of the patient, the therapist, and
an audience of two or three non-professionals (some-
times the patient’s family members). Non-professionals
Treatment of sex offenders 709
are chosen because they are able to reflect the public’s
attitudes toward the behavior, rather than professional’s
who might strive to interpret the meaning of the patient’s
molestation attitudes and behaviors. The therapist’s
responsibility is to allow the audience to be direct in
expressing their attitudes and feelings about what they
are observing and hearing. The advantages of the video-
taping during step one are seen as the therapy progresses
during step two and the patient receives sharp, direct
feedback regarding his behavior and the impact this
would have on an actual child. Three such feedback ses-
sions are generally scheduled, with different audience
members each time to ensure a wide range of feedback to
the child molester. This treatment often produces a reduc-
tion in the patient’s preoccupation with children by hear-
ing others’ candid opinions about this behavior but,
equally as important, the feedback directly attacks the
faulty beliefs and attitudes of the offender by repetitive
confrontations of these attitudes with the opinions of the
general public. This treatment is applicable to deviant
behaviors that can be observed, such as the child molest-
ation of a child mannequin, exhibitionism, and fetishism.
Due to the cost involved, it is not routinely applied to all
paraphilias but is usually reserved for those most resist-
ant to treatment intervention.
THE SEX OFFENDER WITHOUT DEVIANT
INTEREST
Some, but not all, sex offenders have no deviant interests,
as measured by the current objective assessment tech-
niques described above. Treatments to decrease the risk
for deviant behavior can still be applied to this sub-
population, but the therapist needs to also explore other
factors that contribute to the deviant behavior (Harnell
1995). Other etiologies besides deviant interest include
attention deficit disorder, mental retardation, antisocial
personality disorder or psychopathy, alcohol and sub-
stance abuse, bipolar disorder, and organic brain disease
(Cummings 1999). Examinations for the existence for
these other conditions should be emphasized when deviant
sexual interest does not appear to be present . However, the
therapist should also assess the possible presence of these
disorders in patients who have deviant sexual interest.
COGNITIVE DISTORTION
Nearly all sex offenders have distorted thinking that they
utilize to rationalize or justify their behavior (Abel et al.
1992; Barbaree and Seto 1997; Veach 1997; Ward et al. 1997;
McGrath, Hoke, and Vojtisek 1998; Abel 1999; Blumenthal,
Gudjonsson, and Burns 1999; Abel and Osborn 2000).
When people break the rules, they develop justifications
for their behavior. When they drive above the speed limit
710 Special clinical issues in forensic psychiatry
on the highway, they rationalize or justify that behavior
using such cognitive distortions as: ‘Others are traveling
faster than me,’ ‘As long as I don’t drive more than ten
miles an hour above the speed limit, I will not get
arrested,’ ‘To arrest me on this crowded highway would
cause a traffic jam,’ etc. The exhibitionist may justify his
behavior on the basis of: ‘I didn’t actually touch the
woman, I just exposed my penis,’‘She was laughing when
she looked at my penis, so I obviously didn’t hurt her,’
‘She was interested and intrigued by the fact that I had an
erection,’ or ‘The likelihood of my being arrested is quite
low.’ Child molesters justify their behavior by convincing
themselves that the child enjoyed it, otherwise they
would have told others; what they were doing wasn’t
really child molestation since it just involved touching of
the child; touching a child and teaching them about sex is
another form of sex education, not really a sex offense;
etc. Transvestites justify their behavior on the basis of: ‘I
just cross-dress at home and, therefore, I am not hurting
anyone,’ ‘Cross-dressing won’t have any impact on my
relationship with my sexual partner,’ or ‘My sexual part-
ner will eventually develop an interest in seeing me cross-
dressed and it will be incorporated into our lovemaking.’
Rapists will rationalize that any woman in a bar is there
to get picked up and have sex with a man or, in our culture,
that women are very reluctant to be sexually assertive and
they like a man to take charge and force intercourse on
them, so they can say they were not responsible for the
sexual activity.
Offenders who have continued their behavior for a
number of years develop more and more extensive cog-
nitive distortions that strongly support their carrying out
their deviant behavior. These rationalizations are gener-
ally unique to the individual because the sex offender does
not share these thoughts with others, but keeps them to
himself. When arrested, however, they blurt out these
justifications, anticipating that the therapists listening to
them will immediately see their valid logic. In actuality,
others do not share these illogical beliefs and see through
them immediately. Surprisingly, other sex offenders who
hear the same cognitive distortions are also immediately
able to see the illogical nature of someone else’s rational-
izations but, of course, not their own. Therapy for cogni-
tive distortions is done in a group setting with offenders
writing down some of their cognitive distortions and then
passing them around so that others read the justification
and discuss the logic of these assumptions. Cognitive dis-
tortions are usually responsive to this confrontational
methodology, although not all offenders are able to work
through their denial.
Helping the offender confront his denial is an integral
part of therapy, but many therapists require him to accom-
plish this task within a specified period of time. When
this does not occur, the offender is terminated from ther-
apy because many therapists believe that, when the sex
offender maintains these cognitive distortions in spite of
confrontation, he is at higher risk for recidivism. However,
there is currently no scientific support for this belief and,
recently, some therapists have adopted the approach of
treating offenders even when they continue to deny their
offense (Marshall, Marshall, and Schlank 2000). In fact,
confronting denial is not even included as a part of the
therapy. In these cases, therapy focuses primarily on
helping the patient to identify the poor decisions and
actions he made that placed him in a position to be vul-
nerable to allegations of inappropriate sexual behavior,
and learning how to avoid repeating these ‘mistakes.’ It
is believed that this approach allows offenders to avoid
relapsing (because they have learned to avoid placing
themselves in risky situations which might lead to relapse)
without having to admit to their misconduct. Also, these
therapists believe that it is unethical to refuse to treat
individuals who might present a significant risk to the
community.
VICTIM EMPATHY
Sex offenders frequently show a lack of empathy for the
impact of their behavior on their victim(s). There are a
number of reasons for this, including that when very
young children are molested, they may not have the
capacity to understand the inappropriateness of what has
occurred. As they grow older and are able to appreciate
the betrayal that has occurred, they then may become
angry, depressed, hurt, etc. However, by this time, the
child molester is frequently gone and, as a consequence,
the child molester fails to appreciate the emotional tur-
moil caused by his molestation. Without an appreciation
of that, the molester goes on thinking that the impact of
his behavior is minimal.
The rapist frequently rapes whoever is available in a
geographic area and then leaves. Once again, the impact
of his rape behavior, the tremendous turmoil it causes
the victim, is not available to him and, therefore, he has
little empathy for the potential consequences.
Helping the perpetrator appreciate the feelings of
the victim involves multiple steps (Abel et al. 1992;
Marshall, O’Sullivan, and Fernandez 1996; Pithers 1999;
Geer, Estupinan, and Manguno-Mire 2000; Abel, Osborn,
and Phipps 2001). Videotapes, or written vignettes, of
victims reporting the consequences of their being vic-
timized are reviewed in the group setting. The therapist
then asks each perpetrator to describe the feelings of the
victim in great detail, as reflected in the video portrayal.
These are then discussed with other group members.
Finally, the perpetrator is asked to describe his victims’
experiences, feelings and attitudes about being victim-
ized from purely the victims’ point of view, excluding any
rationalizations or justifications by the offender. On many
occasions, sex offenders in treatment have themselves been
victimized as children and they serve as another source
of information regarding the impact of being victimized.

These reports ring true to other group members who
have seen the victimized perpetrator in a variety of set-
tings, and they learn directly from a victim the impact of
being victimized. This latter experience can have a pro-
found effect on group members who have not experi-
enced being victimized.
ALCOHOL AND SUBSTANCE ABUSE ISSUES
A number of perpetrators report that their deviant behav-
ior resulted from the impact of their use of marijuana,
cocaine, alcohol, or other substances. The ingestion of these
mind-altering drugs does impact on control and so it is
important to involve the patient in alcohol and substance
abuse rehabilitation. The concomitant support groups of
Alcoholics Anonymous, CA and Narcotics Anonymous can
be quite helpful to the substance-abusing offender. Drug
and alcohol screening can usually be mandated as a condi-
tion of probation/parole. When alcohol is frequently asso-
ciated with sex crimes, the concomitant use of disulfiram
(Antabuse) can be especially helpful since it helps reduce
the risk of alcohol misuse followed by a sex crime.
DEFICITS IN VARIOUS SKILLS
A number of other skills deficits can exist in the sex
offender (Abel et al. 1992; Abel and Osborn 1996; Bumby
and Hanson 1997; Marshall et al. 1999; Geer, Estupinan,
and Manguno-Mire 2000). Some lack social skills; that is,
they do not know how to approach adults in a non-
threatening way to initiate or sustain conversations in
order to establish an intimate relationship with an appro-
priate partner. In these cases, social skills training is
applicable. Some offenders lack assertive skills. This can
take the form of either a confrontive hostile behavior or
a marked passivity, without effective expression of needs
and wants. In these cases, assertive skills can be quite
helpful to the offender. Other sex offenders have marked
difficulty with anger, leading to explosions and retali-
ation to innocent victims. Anger management training
can help the offender to appropriately express his feelings
and resolve conflicts. Some offenders with anger man-
agement problems benefit from lithium, Depakote, or
other medications to reduce violent outbursts and the
risk for sex offending. Many offenders lack intimacy with
their partners. They seek out intimacy ineffectively by
carrying out a sexual crime, which can never lead to
establishing any closeness with others. For example, frot-
teurs on the subway will rub up against a female and fan-
tasize closeness and caring between them, an intimate
relationship that is not based in reality. Nonetheless, they
repetitively imagine their recurrent frottage behavior as
an opportunity for closeness and intimacy. Intimacy train-
ing is an important aspect of treatment. Some, but not
all, offenders either lack sexual knowledge or may have
Treatment of sex offenders 711
specific sexual dysfunctions that contribute to their sex-
ual deviation or their inability to perform or sustain a
sexual relationship with their partner. In this case, a course
in sex education and specific treatment for a sexual dys-
function is indicated. Some sex offenders have marked
difficulty with time management and, when they have
time on their hands, it increases the likelihood of their
being involved in deviant sexual behavior as an attempt
to fill that time. Training in structuring their day and
avoidance of unstructured time can be helpful for this
population.
THE NON-COMPLIANT PATIENT
Non-compliance with treatment can be a problem with
some sex offenders. This frequently takes the form of
the patient’s passive-aggressive or paranoid personality
impacting on his willingness to comply with treatment.
Others are non-compliant because of their sustained
marked denial (Marshall 1994). The first step in dealing
with the non-compliant patient is to minimize his impact
on the functioning group by moving him to a specific
group for non-compliant patients. When too many non-
compliant patients are in with functioning and compli-
ant patients, they can be exceedingly disruptive to the
therapy process of that group. Isolating them in a non-
compliant group and more specifically addressing their
individual issues can be helpful. Second, some non-
compliant patients need individual, dynamically oriented
psychotherapy to examine the factors that lead to their
lack of involvement in therapy or unwillingness to take
responsibility for their behavior. In some cases this individ-
ual therapy can dramatically reverse the non-compliant
patient into an active and functional participant. A third
option is to reinvolve the patient in a more extensive evalu-
ation of his personality style and other factors that may
contribute to non-compliance. On some occasions this
has uncovered brain disease that made cognitive treat-
ment exceedingly difficult or clinical depression that sig-
nificantly reduced the offender’s motivation to participate
in therapy (Cummings 1999). Finally, some non-compliant
offenders should simply be terminated from treatment
and asked to seek out another therapist with whom they
may be able to work. In some states, non-compliance
with therapy may constitute a violation of the conditions
of probation for which the offender may be incarcerated.
Terminating a sex offender for non-compliance should be
a rare event, as the therapist has a responsibility to help
the offender reduce his risk to the community (Marshall,
Marshall, and Schlank 2000).
MAINTENANCE THERAPY
Therapy traditionally has two phases: the intensive phase
that incorporates the various elements of treatment as
712 Special clinical issues in forensic psychiatry
described above, and a maintenance phase. The first
component of maintenance is training on relapse pre-
vention. Relapse prevention combines all of the patient’s
prior therapies and also challenges him to identify those
situations that would be high risk for him; that is, situ-
ations more likely to lead to a reoffense (Abel et al. 1992;
Graham 1994; Laws 1995; Pithers and Cumming 1995;
Pithers 1997; Ward and Hudson 1998; Laws 1999; Price
1999). They are also taught the relapse cycle in which the
offender puts himself in high-risk situations, increasing
the likelihood of reoffense. The stages of the relapse cycle
typically include the following: the offender places, or
finds, himself in a high risk situation that leads to fanta-
sizing about deviant behavior; the offender then lapses
(behavior short of an actual reoffense, such as mastur-
bating to deviant fantasies or putting himself in add-
itional high risk situations); he experiences an abstinence
violation effect (disappointment with himself and pos-
sibly the belief that he cannot avoid reoffending); and he
then throws caution to the wind and commits a relapse.
Relapse prevention also involves motivational issues
to help the offender label the consequences of his behav-
ior if he does, or does not, control his deviant sexual inter-
est. Patients are also taught how to develop a social
support network and tension-reducing activities. Finally,
relapse prevention helps the offender identify objective
criteria to measure the efficacy of his treatment plan, with
emphasis on those factors that would indicate the need
to return to more intense therapy.
Another element of maintenance therapy involves a
surveillance group (Abel and Rouleau 1990). Three to five
individuals from the patient’s environment (at least one
from his family, one from his work site, and one with
whom he frequently socializes) are brought together and
taught, by the offender, the behaviors that in the past sig-
naled his becoming interested in recommitting a sex crime.
A short list of questions that reflect these antecedents is
developed and the surveillance team is asked to period-
ically complete these questionnaires. Twice per month the
team members advance these checksheets to the therap-
ist for review to identify any factors suggesting the need
for increased supervision of the patient. The surveillance
team members are not asked to be detectives, in that they
are not asked to go out of their way to carry out surveil-
lance of the offender. On the contrary, they are chosen
because they have regular contact with the offender and
are in a position to alert the therapist to potentially prob-
lematic behavior by the offender.
A final aspect of maintenance therapy is the necessity
of intermittently re-evaluating the patient. Maintenance
groups may meet as frequently as once a week or as infre-
quently as once every three months to ensure that the
offenders are applying the treatment methods they have
been taught in therapy. Every six months, those in main-
tenance undergo an objective assessment and a self-report
measure to re-evaluate their sexual interest, sexual drive,
cognitive distortions and compliance with treatment.
When such intermittent testing indicates a breakdown of
therapy, then the offender’s attendance at maintenance
treatment is increased and other more intensive treatments
may be initiated.
COLLABORATION AND TREATMENT
Psychotherapy for most psychiatric disorders does not
involve collaboration. A therapist traditionally protects
the confidentiality of the patient at all times, and the
patient determines his or her goals of therapy. What col-
laboration does occur with patient treatment usually
involves the assistance of psychological testing, brain imag-
ing or medical evaluations to rule out possible etiological
factors. If the patient chooses to discontinue therapy, he
or she generally bears the consequences of that decision.
Treating sex offenders is in sharp contrast to traditional
therapy. The offender is frequently ordered into therapy
and is supervised by the criminal justice system via pro-
bation and parole officers assigned to the offender. These
individuals need to know how the offenders are doing
and whether they are profiting from the therapeutic
experience or are obstructing therapy. If the offender
terminates therapy, he may be arrested and incarcerated
for violating the conditions of probation because, when
the offender is not participating in treatment, he is at
higher risk of reoffending. If this occurs, others suffer as
a consequence of the treatment being discontinued, not
just the patient.
Sex offenders do not live in a vacuum but are sur-
rounded by a number of key players who are seriously
concerned about the outcome of their therapy. When
recidivism occurs and a husband is incarcerated, it wreaks
havoc with the support system of the offender’s family.
Support for the wife and children is lacking, financial
burdens mount, homes have to be sold to provide legal
defense, jobs are lost when companies refuse to have felons
working for them, friends and neighbors remove them-
selves from the support network of the perpetrator, etc.
The probation/parole officer’s responsibility is to ensure
the safety of the community when the offender is per-
mitted to participate in treatment on an outpatient basis,
as most sex offenders are. However, in many cases, the
criminal justice system is not equipped to closely super-
vise offenders and, as a consequence, probation/parole
officers are asked to supervise thirty to fifty sex offenders,
which is no simple task.
Psychiatrists treating a sex offender find themselves in
a peculiar position. First, they often lack the training to
provide cognitive-behavioral treatment, a skill more fre-
quently held by psychologists, social workers and coun-
selors, or to conduct a psychosexual evaluation (McGrath
and Purdy 1999). Furthermore, they rarely work with pro-
bation officers whose responsibility is to be intimately
knowledgeable regarding the offender’s treatment, his

progress in treatment, and possible impediments to his
treatment. Although psychiatrists are familiar with work-
ing with patients’ families, this is not always possible with
offenders. Many times the viability of the family is unten-
able because the offender may be required to live separ-
ately from the family, either due to the spouse’s desire or
the court’s mandate. Thus, psychiatrists find themselves
having to collaborate with non-family members, some-
thing to which they are generally not accustomed. The
psychiatrist’s training has usually been quite the con-
trary; namely, therapy is an individual undertaking that
precludes therapy outcome from others. Many psych-
iatrists will find it untenable to work collaboratively with
individuals far outside of traditional psychiatry such as
probation officers, behavioral therapists, and others super-
vising the patient. When the psychiatrist finds this too
much of a compromise, he or she should simply not
work with sex offenders. Because the consequences of
relapse can be so great, the psychiatrist working with sex
offenders must develop a new flexibility and share the
role of sex offender supervision with others just as equally
concerned about the offender’s outcome.
The probation/parole officer is an especially import-
ant collaborator since he or she has the legal responsibil-
ity to ensure the offender actively participates in therapy.
The family and friends of the offender are likewise an
important group with whom to collaborate. Sometimes,
the offender has convinced these individuals that he has
not been involved in sex offending and has been falsely
accused, arrested and found guilty. This can make it
especially difficult for the psychiatrist, since he or she
sometimes has to work with not only the denying offender,
but also, in some cases, a denying family and friends.
Sex offending is exceedingly common and constitutes
a public health problem. This public health problem is
not going to go away in the immediate future and, since
sex offending can be a chronic behavior needing lifelong
supervision, treating sex offenders necessitates everyone
‘pulling on their oar.’ Psychiatrists have traditionally balked
at treating this population because they have insufficient
training or insufficient tools to help the offender. Now,
however, with the increased use of SSRIs and psych-
iatrists’ increasing comfort with the use of hormonal
agents, psychiatrists can become a vital part of the treat-
ment team to protect the public and the offender from the
recommission of sex crimes.
A number of specialists have had considerable train-
ing regarding how to provide cognitive-behavioral treat-
ment with a strong relapse prevention component to sex
offenders. There are over 2000 members of the Association
for the Treatment of Sexual Abusers (ATSA) located
throughout the United States, Canada and other coun-
tries. This organization, located in Beaverton, Oregon,
keeps an ongoing list of trained treatment providers, and
the psychiatrist would profit from establishing alliances
with individuals already trained in this specialty so as to
broaden the available treatments for their patients. These
Treatment of sex offenders 713
same experts on behavior therapy would profit consider-
ably from working collaboratively with psychiatrists who
can prescribe medications to reduce the offender’s sex
drive and, thus, his likelihood of relapse.
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716 Special clinical issues in forensic psychiatry
Salter, A.C. 1988: Treating Child Sex Offenders and
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Sage Publications.
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Volume II. Kingston, NJ: Civic Research
Institute, Inc.
Zonana, H. 1999: Sexually Dangerous Offenders.
Washington, DC: American Psychiatric Press.

Sexually violent predator laws
DOUGLAS E. TUCKER AND SAMUEL JAN BRAKEL
INTRODUCTION
Sexually violent predator (SVP) laws are a recent phe-
nomenon, with Washington the first state to enact such a
law in 1990. These laws provide for the civil commitment
and involuntary treatment of selected sexual offenders at
the end of their criminal incarceration. The laws have
been surrounded by controversy from the beginning, as
they seek to establish policy in a conceptually murky and
ethically polarized area in which the notoriously fuzzy
line between criminal behavior and psychiatric illness
appears to be particularly difficult to draw. Some have
critiqued the laws as medicalizing what is essentially a
social problem, and for misusing psychiatry as an agent
of social control instead of applying it toward legitimate
therapeutic ends. Others respond that psychiatrists have
long been responsible for the care and treatment, as
well as custodial management, of sexual as well as other
criminal offenders. In fact, the differentiation between
‘criminal’ and ‘mentally ill’ behavior is of relatively recent
vintage, operationally. For most of recorded history, soci-
ety’s rejects – the poor, the criminal, the mentally ill –
were housed in the same facilities. As for sex offenders
in particular, we seem not to have made up our collective
mind yet about whether they are bad, mad, or both, and
where they ‘belong.’ The following is a brief review of the
history of laws in the United States governing psych-
iatry’s involvement in the assessment and management of
sexual offenders, a discussion of the SVP laws in particu-
lar, and some thoughts regarding the implications these
laws hold for the field of psychiatry.
HISTORY OF SEX OFFENDER ADJUDICATION
AND TREATMENT
In the United States, sexual offenders were dealt with by
incarceration and punishment like all other offenders
until the late 1930s. A new era of interest in medical
74
explanations for criminal behavior and an orientation
toward treatment goals over punishment began to
develop in the early twentieth century. Indeterminate
sentencing was introduced, in which release decisions
were determined by the offenders’ demonstrated recovery
rather than by preset sentence limits. Eventually, ‘sexual
psychopath statutes’ began to appear in progressive juris-
dictions, which provided for civil commitment and treat-
ment of ‘habitual’ sex offenders who were deemed to be
suffering from a mental disorder associated with ‘voli-
tional impairment’ (inability to control one’s impulses).
Michigan and Illinois enacted the first such statutes in
1937–38, with California and Minnesota following
shortly thereafter. The Minnesota statute generated the
first constitutional test of this type of legislation before
the U.S. Supreme Court, in Minnesota ex. rel. Pearson v.
Probate Court (1940). The challenge to the statute was on
substantive due process grounds, notably the vagueness of
the description of those susceptible to the statute’s appli-
cation. The Supreme Court, however, approved the legis-
lation, noting that the key statutory term ‘psychopathic
personality’ was adequately defined as involving a ‘habit-
ual course of misconduct in sexual matters,’ and an ‘utter
lack of power to control sexual impulses.’ Between 1940
and 1976, sexual psychopath legislation modeled on the
Minnesota statute was passed in thirty other states and
the District of Columbia, and it was used to a substantial
degree. The rehabilitative ideal behind these laws was
widely shared, and the procedural shortcuts permitted by
most of these statutes were considered acceptable given
the benign intentions and predicted good outcomes.
Over time, the optimistic consensus among doctors
and lawyers that the sexual offenders singled out by the
law would benefit from treatment began to erode.
Attorneys were the first to turn against these laws, con-
sistent with legal concerns about liberty and autonomy.
Eventually, however, mental health practitioners also
began to realize that treatments for this population were
not as effective as had been hoped, and withdrew their
support for the sexual psychopath laws. The Group for
718 Special clinical issues in forensic psychiatry
the Advancement of Psychiatry concluded in its 1977
report that the statutes were ‘social experiments that have
failed and that lack redeeming social value’ (Group for the
Advancement of Psychiatry 1977). Complementary social
trends that undermined support for the laws included the
civil rights movement in the 1960s, the rise of feminism
somewhat later, and toward the 1980s, the societal turn to
more punitive ‘law and order’ rather than rehabilitative
policies. During the six-year period between 1975 and
1981, more than half of the sexual psychopath statutes
were repealed. By the mid-1980s, only thirteen states still
had these laws, and only five states applied them with any
frequency (Massachusetts, Nebraska, New Jersey, Oregon,
and Washington). The leading U.S. Supreme Court case
of this era is Specht v. Patterson (1967), in which the court
mandated the application of most criminal procedural
safeguards to sexual psychopath commitments. These
included a full judicial hearing, assistance of counsel, the
right to confront and cross-examine adverse witnesses,
the right to present one’s own witnesses and evidence,
and a final decision sufficiently articulated to permit
meaningful review on appeal. In a subsequent case (Allen
v. Illinois 1986), the U.S. Supreme Court held that the
Fifth Amendment’s self-incrimination privilege did not
necessarily extend to the psychiatric examination in sex-
ual psychopath commitments. By this point, however,
such commitments were procedurally encumbered in
every other way and quite rare. U.S. jurisprudence regard-
ing sex offenders was close to where it was before the
whole sexual psychopath law experiment began, with
undifferentiated criminal incarceration of sex offenders.
SEXUALLY VIOLENT PREDATOR LAWS
In 1989, Earl Shriner was released from a ten-year prison
sentence in Washington state for kidnapping and sexually
assaulting two teenage girls. He had been found not to be
committable under the state’s civil commitment statute,
and he thereafter proceeded to rape a seven-year-old boy,
cut off his penis, and leave him to die. This case led to
widespread outrage, and in 1990 Washington passed the
first of a new generation of sex offender laws known as
Sexually Violent Predator Acts. Soon, other states passed
laws modeled on the Washington statute, and by the end
of the millennium sixteen states had enacted laws of this
kind, including Arizona, California, Florida, Illinois,
Iowa, Kansas, Massachusetts, Minnesota, Missouri, New
Jersey, North Dakota, South Carolina, Texas, Virginia,
Washington, and Wisconsin. The central elements of
these laws were: (i) legal authority for continuing to
detain sex offenders who are already in custody and likely
to reoffend if released; and (ii) the accomplishment of this
continued detention via civil commitment to a treatment
facility. The vast majority of this designated population
are prisoners convicted of sexual crimes, but the laws also
apply to those found Incompetent to Stand Trial or Not
Guilty by Reason of Insanity for sexual crimes.
These laws are quite similar overall, and involve four
general conditions for civil commitment:
1 One or more charges (if found Not Guilty by Reason
of Insanity or Incompetent to Stand Trial) or convic-
tions for sexually violent offenses.
2 A qualifying ‘mental abnormality.’
3 A likelihood of engaging in further acts of predatory
sexual violence.
4 A causal link, at least in part, between the mental
abnormality and the risk of sexual recidivism.
‘Sexually violent offenses’ are described by the SVP
statutes as those found in the criminal code that involve
forcible contact such as rape or, in its absence, an underage
victim. ‘Mental abnormality’ is defined in the Kansas
statute (and that of most other states with only minor dif-
ferences in language) as ‘a congenital or acquired condi-
tion affecting the emotional or volitional capacity which
predisposes the person to commit sexually violent offenses
in a degree constituting such person a menace to the
health and safety of others.’ Most laws permit personal-
ity disorders, including antisocial personality disorder,
as a qualifying ‘mental abnormality,’ although the vast
majority of commitments are for paraphilias (generally
pedophilia and/or ‘paraphilic coercive disorder,’ which
is contained in DSM-IV under the rubric ‘Paraphilia not
otherwise specified’) (American Psychiatric Association
1994). This is a controversial and important point to the
extent these conditions are in fact identified and/or sep-
arated, as a variety of potentially effective treatments are
available for the paraphilias, while there are few if any
effective treatments for psychopathy or antisocial person-
ality disorder. The assessment of ‘likelihood’ of sexually
violent recidivism generally involves a clinically adjusted
actuarial approach, with statistically validated risk fac-
tors applied in an individualized, clinically appropriate
manner. (See Chapter 79 regarding the use of actuarial
instruments to guide estimates of recidivism risk.) Policies
differ on acceptable false positive rates (commitment of
non-recidivists) and false negative rates (release of recid-
ivists), although most SVP laws require a ‘likelihood’ or
‘substantial likelihood’ of recidivism for commitment.
The process of commitment involves many steps, and
provides a variety of procedural safeguards. First, prison
officials screen those sexual offenders who are approach-
ing their release, in order to select those who have com-
mitted statutorily designated sexually violent crimes. These
individuals are then referred for comprehensive evalu-
ation by clinicians with (hopefully) appropriate training
and experience in sex offender evaluations. Those who
are found to meet all three criteria (appropriate offense
history, qualifying mental abnormality, and likelihood of
sexually violent recidivism due to mental abnormality)
are then referred to the prosecuting attorney’s office, where
further filtering occurs. A probable cause hearing is held to
 Sexually violent predator laws 719

determine whether sufficient evidence exists to proceed to
the full trial, followed by the trial itself. The minimum
standard of proof for SVP commitments has been estab-
lished by the courts as ‘clear and convincing evidence,’ but
because of the liberty interest involved, a majority of states
have adopted the more stringent standard of ‘beyond a
reasonable doubt’ – that is, the level of proof required for
criminal conviction. Commitments are for an indefinite
period, with the exception of California which specifies
commitments for renewable periods of two years. Release
is mandated when the offender has improved to the point
that he or she no longer meets the SVP criteria, as deter-
mined by the court.
This process, as operated in California, is illustrated in
Figure 74.1. The California Department of Corrections
screens about 350 convicted sex offenders per month
who are eligible for release. This amounts to about 21 000
inmates screened over the five years since the law took
effect in January 1996. Of these, 3501 (about 17 per cent,
or one-sixth of the total) were referred to the Depart-
ment of Mental Health for further evaluation as of
January 2, 2001. As can be seen, only a small and select
subset of all sex offenders have actually been committed
under this law, i.e., 9 per cent of those referred to the
Department of Mental Health, or about 1 per cent of all
released sex offenders. In some states, the percentage of
those committed is higher, but these states have much
smaller populations.
The first constitutional test to the United States Supreme
Court of the new SVP laws occurred in 1997 in the case of
Kansas v. Hendricks. Leroy Hendricks had been molesting
children for many years, including his own stepdaughter
and stepson, and he himself admitted that he would stop
molesting children only when he died. His attorneys

California Sex Offender Commitment Program (SOCP)

All Cases as of 1/2/01

Referred To DMH
3501

DMH Record Review DMH Record Review DMH Record Review

Does Not Meet Criteria Meets Criteria Pending
1437 1954 110

Clinical Evaluation Clinical Evaluation Clinical Evaluation

Negative Positive Pending
1073 839 42

Referred to DA*
834

Decision Made by DA DA Decision Pending

796 38

Rejected by DA Petition Filed by DA

130 666

Ruling Made by Judge Probable Cause Pending

599 67

Probable Cause Probable Cause Found

Not Found 471
128

Committed to
Released Trial Pending
Treatment Program
64 109
298

* 5 case(s) with Positive Clinical Evaluations were not referred to the DA for various reasons (e.g., Psych Attention, BPT Good Cause Not Found).
Note: this report is now available on the SOCP web site: http://www.dmh.cahwnet.gov/socp/ff.htm

Figure 74.1 California sex offender commitment program (SOCP) (all cases as of 1/2/01).
720 Special clinical issues in forensic psychiatry
appealed his commitment under Kansas’ SVP law on the
grounds of: (i) substantive due process; (ii) double jeop-
ardy; and (iii) the ex post facto doctrine. The substantive
due process argument was that the commitment criterion
of ‘mental abnormality’ failed to satisfy the requirement
that an individual be mentally ill and dangerous before
he or she can be committed to a mental facility. There is a
long history of legal doctrine (and philosophical trad-
ition) in American jurisprudence that the state cannot con-
fine someone for dangerousness alone (i.e., for potential
misconduct) without some accompanying mental con-
dition or impairment, as this would constitute an imper-
missible form of preventive detention (e.g., see Foucha
v. Louisiana 1992). Justice Thomas rejected Hendrick’s
contention, however, that ‘mental abnormality’ failed to
qualify, noting that the term mental illness was ‘devoid
of talismanic significance,’ that the definition of medical
terms for legal purposes is a legislative task, and that the
diagnosis of pedophilia is classified by the psychiatric pro-
fession itself in DSM-IV as a serious mental disorder. In
particular, he stated that the ‘mental abnormality’ must
involve a current, specifically defined inability to control
sexually violent impulses. He also noted that the claims of
double jeopardy (one can be tried only once for violation
of the law) and ex post facto (one cannot be held to account
under laws made after the fact) apply to the criminal law
only. Relying on the prior Allen v. Illinois decision, Justice
Thomas found that despite various criminal law-style
safeguards, the SVP law described a legitimate civil pro-
cedure. In addition, he noted that the law would be valid
even if treatment was not medically available (based on
the long history in this country of permitting detention
and segregation of dangerous individuals with untreatable
contagious diseases or mental illnesses), as well as if treat-
ment were available but only secondary to the primary
goal of continued confinement (so long as some form of
treatment is prescribed).
IMPLICATIONS
It is difficult to predict what the future is likely to be for
SVP laws, with their paradoxical combination of treatment-
oriented rehabilitative principles and corrections-oriented
containment principles. Although there has been much
political support for these laws, opposition exists among
civil liberties lawyers, mental health consumer groups,
and mental health professionals. Defense attorneys are
concerned that the indefinite duration of SVP commit-
ments, despite the opportunity for periodic judicial
review, will lead to their clients remaining in psychiatric
hospitals for the rest of their lives. The National Alliance
for the Mentally Ill opposes these laws, fearing that scarce
treatment resources will be diluted, and that sex offenders
in the same institutions will victimize the ‘truly’ mentally
ill. Many psychiatrists believe that these laws represent
an abuse of psychiatry, subverting diagnosis and treat-
ment for the social purposes of incapacitation and even
punishment. In particular, many are disturbed by the
apparent hypocrisy involved in recognizing the presence
of mental illness and the need for treatment only after
the individual has served his or her criminal sentence.
A recent task force report of the American Psychiatric
Association stated ‘in the opinion of the task force, sexual
predator commitment laws represent a serious assault on
the integrity of psychiatry, particularly with regard to
defining mental illness and clinical conditions for com-
pulsory treatment (Zonana et al. 1999). Moreover, by
bending civil commitment to serve essentially non-medical
purposes, sexual predator commitment statutes threaten
to undermine the legitimacy of the medical model of
commitment. In the opinion of the task force, psychiatry
must vigorously oppose these statutes in order to preserve
the moral authority of the profession and to ensure
continuing societal confidence in the medical model of
civil commitment.’ In fact, it is possible that the momen-
tum in favor of these laws has already faded, as SVP bills
passed in only three states in 1999 (Texas, Virginia, and
Massachusetts), but failed in ten states, with no new laws
enacted since the summer of 1999 as of the time of this
writing.
It has been noted that laws of the SVP type have a typ-
ical life course, beginning with their birth in a state of
public fear and outrage over one or more highly publi-
cized sex crimes, subsequent ad-hoc legislative commit-
tee recommendations and laws created under intense
political pressure, and ultimate revision or repeal when
the public furor diminishes and the financial and legal
repercussions become evident (Sutherland 1950). SVP
treatment costs represent a sizable and growing financial
burden on states, which may ultimately put pressure on
state legislatures to rethink the SVP approach. Annual
housing and treatment costs have been estimated to
average approximately $91 000 a year per offender,
not including legal expenses, based on figures from
eight states (Prentky and Burgess 2000). As an example,
California spent $31.2 million on SVP treatment in
1998–99, or $107 000 per SVP. This is generally consist-
ent with the cost of treating mentally disordered offend-
ers in state hospitals, but represents about five times the
cost of incarcerating these individuals as prison inmates.
The costs to California for evaluations and testimony in
fiscal 1998–99 were $3.5 million, for a total of about $35
million to support SVP evaluations and treatment for
one year. This represents about 2 per cent of the state’s
total budget for mental health services, but is expected to
increase (Brakel and Cavanaugh 2000). These costs could
lead to the outright demise of the SVP experiment. On
the other hand, they may also spur good cost–benefit
studies and the development and refinement of more
efficient approaches to the treatment of sexual offenders,
which could be applied in a variety of healthcare and cor-
rectional settings.

In addition to financial costs, the other major force
threatening the survival of the SVP laws is the collection
of legal issues and battles that they engender. The laws
have been subject to repeated legal challenges since their
first enactment a decade ago, and there is every indi-
cation that, Kansas v. Hendricks notwithstanding, this
pattern will continue. Hendricks may appear to have
definitively disposed of several major issues, but new
theories will be tried and even the old issues are likely
to be reasserted in slightly altered form.
Several points are already emerging as a focus for
post-Hendricks challenges to the SVP statutes:
1 The matter of what treatment is in fact being provided
under the programs.
2 The significance of the subjects’ (lack of) control or
volitional capacity.
3 The predictability of sexual reoffending if they were
set free, including the question of whether these
predictions satisfy the legal standards of proof.
In addition to these central points, some additional
treatment-related issues are likely to furnish ammunition
for continued attacks on the laws and their application:
• The assertion of a right to treatment for committed
SVPs when only inadequate treatment is being offered
may not only bolster arguments for scrapping the SVP
laws/programs, but, as in ordinary civil commitment,
may furnish a basis for an individual patients’ release.
• A right to refuse treatment could in theory be asserted
in the SVP context, but it would be self-defeating to
the individual patients in that it would hinder rather
than help release, nor would it seem to serve a larger
strategy for combating the laws.
• Confidentiality issues are likely to surface as major
points of contention, both pre- and post-commitment
under the SVP laws, as much of the data on which
detention, commitment and release decisions are
predicated is in the hands of those who provide treat-
ment for sexually deviant behavior, whether in
prisons, hospitals or community outpatient facilities
(similar conflicts have already erupted with respect to
sex offender registration statutes, child abuse report-
ing laws and the efforts to provide care or counseling
to individuals with sexual behavior problems before
they reach criminal or SVP law dimensions).
• Many committed SVPs will ultimately be released
back to the community as a result of successful treat-
ment or the pressures of population and limited insti-
tutional treatment resources. At that point many of
the issues litigated with respect to criminal defendants
acquitted by reason of insanity (NGRIs), such as the
conditions of conditional discharge, monitoring pro-
cedures, the authority to mandate outpatient medica-
tion, and revocation and recommitment standards
and procedures, are likely to be refought on behalf of
the SVP population.
Sexually violent predator laws 721
A case in point on the matter of treatment in fact is Young
v. Weston (1999) from the state of Washington. Young has
been in and out of the state and federal courts since 1994
when the petitioner, one of the first individuals commit-
ted under the law in 1990, filed his habeas corpus petition
alleging Hendricks-style flaws in the Washington statute.
In his latest action, Young alleges that the quality of treat-
ment and housing at the Special Commitment Center for
sexual offenders in Washington is substandard and inad-
equate. The U.S. Supreme Court granted certiorari, in
order to review the Circuit Court of Appeals’ ruling that
Young was entitled to an evidentiary hearing on whether
the statute as applied – i.e., the actual conditions of con-
finement and the treatment in fact provided – was so
wanting as to make the treatment regimen punitive and
call into play the double jeopardy and ex post facto protec-
tions after all. In its decision, the Supreme Court reversed
the Court of Appeals on the technical ground that an ‘as
applied’ challenge by a single individual could not suc-
ceed where the statute had previously been found to be
civil in nature. Justice O’Connor, writing for the majority,
specifically noted that a ‘first instance’ challenge on the
same allegations could lead to a different outcome, and
also that the Court’s ruling did not preclude the possibil-
ity that Young has a remedy or remedies in the state courts
on the same facts (Seling v. Young 2001). The treatment in
fact issue thus remains open to ample further contest.
In re Linehan (1999) (‘Linehan IV’) is a long-running
Minnesota case comparable to Young v. Weston. Linehan’s
initial commitment was under the state’s old sex offender
act in 1992, and his first appeal led to his release in 1993,
only to be followed by his recommitment in 1995 under
the state’s newly passed SVP-style law. The case raises
the issue of volitional capacity, and establishes that sub-
stantive due process questions can be revisited post-
Hendricks. Language in Hendricks suggests that the
subject’s inability to control his sexual impulses satisfies,
or at least helps to satisfy, the ‘mental abnormality’ crite-
rion that permits confinement in principle (i.e., under the
parens patriae power). At the same time, the volitional
impairment justifies confinement of the individual per se
(i.e., for his dangerousness, under the police power). In
Linehan, the Supreme Court of Minnesota rejected the
petitioner’s contention that the state’s law or its legislative
history required proof of ‘utter lack of control,’ holding
that lack of ‘adequate control’ – a finding supported by
Linehan’s record – sufficed for SVP commitment. That
reading was supported by the United States Supreme
Court in a decision (issued as this chapter was being read-
ied for publication) involving Kansas statute. In Kansas v.
Crane (2002), the Court stressed that the ‘absolutist
approach (i.e., requiring proof of total lack of control) is
unworkable’ and vacated the Kansas Supreme Court’s
decision to the contrary. Pointing out that the level of
control capacity is ‘not demonstrable with mathematical
precision’ and that ‘insistence upon absolute lack of con-
trol would risk barring the civil commitment of highly
722 Special clinical issues in forensic psychiatry
dangerous persons suffering severe mental abnormal-
ities’, the majority allowed that proof of ‘serious difficulty
in controlling behavior’ would be ‘enough’.
Despite this, the Crane decision is being widely touted
by legal pundits as a victory for the anti-SVPA forces.
‘Limits on Detention of Sexual Predators After Prison
Terms; Confining Sex Offenders After Prison is to be
Harder’ is how The New York Times headed its report
on the case. ‘Justices Set Higher Bar for Detention’ was the
Chicago Tribune’s headline. The Court’s insistence in Crane
that the control issue must be considered against Kansas’
apparent claim that it could commit without any lack-of-
control determination is the cause for this rejoicing.
But if Crane is a victory for SVPA opponents, it is
likely to be a hollow one. Even the Court’s majority opin-
ion does not preclude the possibility that an offender
could be found committable solely on the alternate
ground of ‘emotional’ abnormality or impairment. More
importantly, volitional impairment – even a serious one –
should be easy enough to prove in SVP cases; easy
enough to convince a judge and jury of. Not only will it
typically be part of the clinical profile of a sex offender
who (repeatedly) has come to the attention of the law,
the presence of such impairment is embedded in the law
itself, as Justice Scalia notes in his not-so-temperate dis-
sent. Along with Justice Thomas, who wrote for the
majority in Hendricks, Justice Scalia deplores what he
considers the needless and senseless requirement of mak-
ing the State jump through this new volitional substan-
tive due process hoop. It is needless because Kansas
statute already defines the threshold ‘mental abnormal-
ity’ as a condition ‘affecting the emotional or volitional
capacity which predisposes the person to commit sexually
violent offenses in a degree constituting a menace to the
health and safety of others’. It is senseless because to dis-
tinguish for constitutional (or any other) purposes
among volitional, emotional, and cognitive impairments
is a dead-end. As Justice Scalia observes tartly, ‘The man
who has a will of steel, but who delusionally believes that
every woman he meets is inviting crude sexual advances,
is surely a dangerous sexual predator’. And any judge or
jury will recognize this and ignore whatever specious dis-
tinctions are made by the legal or forensic advocate.
So the outcomes of SVPA proceedings are unlikely to
change due to Crane. But there will be litigation on this
new wrinkle and there will be more work for lawyers and
forensic evaluators. Whether that is a victory depends on
one’s perspective.
Crane also accentuates another issue likely to generate
further legal wrangling. The SVP statutes require that the
State show the subject to be likely, or more than likely,
(‘substantially’ or ‘highly’ likely) to reoffend sexually in
order to be committed. Typically, this likelihood must be
proven beyond a reasonable doubt. Precisely what these
standards mean in quantitative terms is unclear. Does this
mean more than 50 per cent? How much more than 50
per cent? What, if anything, is the relationship between
the ‘substantive’ standard (‘appreciably’, ‘moderately’, ‘sub-
stantially’ or ‘almost totally’ unable to control, to quote
Justice Scalia’s ironical summation of the possibilities left
now that ‘total’ lack of control is out) and the ‘procedural’
standard (likely versus more than likely to recidivate)? The
incalculability of this calculus will continue to bedevil the
State’s cases and the ability of judges and juries to decide
‘according to the law’. While great strides have been made
in the development of both clinical and actuarially based
assessment methods, the legal adequacy of the general
state of the art/science – as distinct from individual assess-
ments based on the fortuity of ample and strongly proba-
tive data – will remain eminently open to challenge. In
earlier phases of his case, Linehan in essence contended
that no prediction method – used or proposed, actuarial,
clinical or combination thereof – could satisfy the stan-
dard of proof required in Minnesota. He never won that
argument. But in other state court cases (from Florida,
Iowa, Missouri, and New Jersey, among others), the point
has been made that the whole ‘science’ of prediction in
this area is too uncertain to be relied on; i.e., the testimony
can satisfy neither Frye (Frye v. U.S., 1923) nor Daubert
(Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993)
admissibility standards for scientific/expert evidence. A
judicial conclusion to this effect would fatally undermine
the laws and their implementation. For that very reason, it
is a conclusion unlikely to be drawn by a court, or at least
unlikely to be sustained on appeal.
Finally, the confidentiality issue was raised in Linehan
by virtue of the fact that the Court’s conclusion regard-
ing the petitioner’s lack of adequate control was in large
part based on his behavior while under commitment.
Some of this evidence came from the institution’s secur-
ity personnel and as such cannot be considered a breach
of treatment confidentiality, though it does accentuate
some of the ethical concerns of housing individuals for
treatment in prison-like settings. However, there was
additional evidence that the petitioner had ‘knowingly
lied’ to a treating psychiatrist, which does implicate a
therapeutic confidentiality breach. The use of such evi-
dence can be challenged by litigants as improper in the
context of the case against the individual, or as indica-
tive of a pattern of ethical problems that compromises
the whole SVP commitment arrangement.
Despite all these concerns, the SVP laws may survive
and even thrive and generate real benefits. Already there
have been a number of salutary effects, including raising
the level of awareness and interest in sexual behavior dis-
orders among a wide range of mental health clinicians
and researchers. For example, therapeutic technology of
proven efficacy for sexual offenders has been developed
relatively recently, including a variety of psychopharma-
cologic and cognitive-behavioral approaches (Grossman,
Martis, and Fichtner 1999). In spite of the massive public
health impact that sexual offenses have on society, these
approaches were in the past rarely taught or applied by
mental health professionals. Psychiatry in particular has

neglected this area. Part of the reason may be counter-
transference hatred toward a group that is perhaps easier
to write off as ‘bad’ than try to understand as ‘sick,’ though
elements of both may be present. In addition, most psych-
iatrists are not used to dealing with the level of denial
that is typically presented by these individuals, and may
be uncomfortable with the element of coercion that is
often present in treatment (although from the thera-
peutic standpoint, coercion is not necessarily a bad thing,
and has been shown to be effective in the treatment
of other mental illnesses, including substance abuse)
(Dennis and Monahan 1996). In fact, a variety of paral-
lels are evident between psychiatry’s current difficulty in
accepting the paraphilias and other sexual behavior dis-
orders as a legitimate focus for treatment, and prior dif-
ficulties in dealing with alcoholism and drug addictions.
Both groups of patients have been seen as essentially
immoral and inappropriate for medical attention,
despite evidence that both groups have disabling biopsy-
chosocial illnesses. The SVP laws may have the beneficial
effect of forcing psychiatry to face sex offenders as treat-
able patients, and in so doing to expand training, to fund
and conduct research, and to refine methods of assess-
ments and treatment for this challenging population.
REFERENCES
Allen v. Illinois, 478 U.S. 364 (1986).
American Psychiatric Association. 1994: Diagnostic and
Statistical Manual of Mental Disorders, 4th edition.
Washington, DC: American Psychiatric Association.
Sexually violent predator laws 723
Brakel, S., Cavanaugh, J. 2000. Of psychopaths and
pendulums: legal and psychiatric treatment of sex
offenders in the United States. New Mexico Law
Review 30, 69–94.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct.
2786 (1993).
Dennis, D.L., Monahan, J. 1996: Coercion and Aggressive
Community Treatment: A New Frontier in Mental
Health Law. New York: Plenum Press.
Foucha v. Louisiana, 112 S.Ct. 1780 (1992).
Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).
Grossman, L.S., Martis, B., Fichtner, C.B. 1999. Are sex
offenders treatable? A research overview.
Psychiatric Services 50, 349–61.
Group for the Advancement of Psychiatry. 1977: Psychiatry
and Sex Psychopath Legislation: The 30s to the 80s.
Report No. 98.
In re Linehan, 594 N.W. 2d 867 (1999).
Kansas v. Crane, 2002 WL 75609 (U.S. Kan.).
Kansas v. Hendricks, 117 S.Ct. 2072 (1997).
Minnesota ex. rel. Pearson v. Probate Court, 309 U.S. 270
(1940).
Prentky, R.A., Burgess, A.W. 2000: Forensic Management of
Sexual Offenders. New York: Kluwer Academic/Plenum.
Seling v. Young, 121 S.Ct. 727 (2001).
Specht v. Patterson, 386 U.S. 605 (1967).
Sutherland, E.H. 1950. The diffusion of sexual psychopath
laws. American Journal of Sociology 56, 142–8.
Young v. Weston, 192 F.3d 870 (1999).
Zonana, H., Abel, G., Bradford, J., et al. 1999: APA Task
Force Report on Sexually Dangerous Offenders.
Washington, DC: American Psychiatric Association.

Brain imaging
RUSTY REEVES AND STEPHEN B. BILLICK
INTRODUCTION
Brain imaging began during in the early 1970s with
the development of computed axial tomography (CT).
The usefulness of the technology moved it quickly from
the laboratory to the bedside, and CT is now routine in
the diagnosis and treatment of many disorders of the
central nervous system. The appeal of a literal glimpse of
the brain extended beyond medicine however, and soon
after its clinical application CT was introduced to the
courtroom. In possibly the most famous case wherein
brain imaging played a role, the Hinckley insanity trial
of 1982 (U.S. v. Hinckley 1982), a psychiatrist argued that
Mr. Hinckley’s enlarged ventricles on CT supported a
diagnosis of schizophrenia.
Similarly to CT, the most recently developed imaging
modalities, positron emission tomography (PET) and
single photon emission tomography (SPECT), have been
introduced to the courtroom almost as quickly as they
have shown clinical utility. However, brain imaging
entails many technological and methodological variables
and, in the Courtroom, requires a clinical inference as to
the causation of legally relevant behavior. Furthermore,
a psychiatric diagnosis, which a brain image may help to
establish, by itself says nothing about whether a defend-
ant possessed mens rea for a crime. For these reasons, the
forensic psychiatrist should educate him or herself in the
technology of brain imaging, and should exercise discre-
tion in his or her statements.
THE TECHNOLOGY OF BRAIN IMAGING
A brain image is a representation of brain anatomy or
physiology through a pictorial or graphic display of data.
Current imaging techniques may represent the shape of the
brain, electrical activity at the surface of the brain, the type
and amount of chemicals in the brain, blood flow, metab-
olism, or density of receptors. Techniques include CT,
magnetic resonance imaging (MRI) [including functional
75
magnetic resonance imaging (fMRI) techniques such as
blood oxygenation level-dependent functional magnetic
resonance imaging (BOLD), and diffusion tensor imaging
(DTI)], magnetic resonance spectroscopy (MRS), quan-
titative electroencephalography (qEEG), PET, SPECT, and
magnetoencephalography (MEG). A review of the par-
ticularities of each technique is beyond the scope of this
chapter, but for a comprehensive review of the individual
techniques, the reader is referred to several standard texts
(Adams, Victor, and Ropper 1997; Yudofsky and Hales
1997; Sadock and Sadock 2000).
Despite attempts at standardization, the steps in the
generation of a brain image – and there are many – are
often not standardized from one technology to the next,
or even from one machine or laboratory to the next
within a given technology (Fletcher, Woolf, and Royal
1994). The image that the psychiatrist reads may vary
depending upon the particular values of the variables a
given technician chooses when generating a brain image
(Society of Nuclear Medicine Brain Imaging Council
1996). Examples of these variables include, but are not
limited to, signal threshold, color, contrast, norms, and
ordinates. In addition, the psychiatrist should inquire
about a subject’s recent and remote use of psychotropic
drugs. This important point, though obvious, may be
forgotten in the forensic setting: psychotropic drugs
affect functional imaging of the brain.
On the other hand, the ideal and standardized condi-
tions that brain imaging researchers seek in order to
establish a definitive correlation, are not always available
to the clinician. The clinician, while mindful of the above-
mentioned variables, should seek a correlation consistent
with clinical findings, and then consider if this correlation
is relevant to the forensic issue.
BRAIN IMAGING AND PSYCHIATRIC
DIAGNOSIS
The Hinckley trial presented a dramatic use of neuro-
imaging. In that trial, CT scans showing ventricular

enlargement were used to support a diagnosis of schizo-
phrenia. It is now known that ventricular enlargement,
while more common in persons with schizophrenia than
in normal persons, is neither a sensitive nor a specific
marker of schizophrenia. This particular mistake, how-
ever, is not the point. The CT was used to support a diag-
nosis which was otherwise established with traditional
clinical signs of the illness. The CT was not used directly
to make an argument about mens rea. On this point, the
psychiatrist acted in accord with the state of the then-
known science.
Indeed, with regard to mens rea, the state of the sci-
ence has not changed since 1982. Brain imaging as yet
cannot identify thoughts, motives, or capacities. Rather,
the traditional and accepted role of brain imaging in
forensic psychiatry is the same as it is in clinical medi-
cine: as an aid in diagnosis and assessment of treatment
response. Given the current state of medical science in
which a brain image, by itself, is usually not diagnostic
of a condition, the psychiatrist intending to use brain
imaging should proceed in court just as he or she would
in clinical practice: the brain image should be but one
element of a thorough clinical assessment which includes
comprehensive psychiatric, medical, social, and occu-
pational history, including confirmation by secondary
sources, neurological and psychiatric mental status exam-
inations and, where applicable, normative neuropsycho-
logical testing. The routine uses of brain imaging in
psychiatric practice are available for review elsewhere
(Yudofsky and Hales 1997; Sadock and Sadock 2000),
and will not be discussed further here.
BRAIN IMAGING AND VIOLENCE
Brain imaging that attempts to identify a predisposition to
behavior represents the cutting edge of research within
forensic psychiatry. This area of research typically bypasses
associations with traditional psychiatric diagnoses and
instead looks for direct associations with legally relevant
categories. The most popular area of investigation is the
association of brain abnormalities with violence. Violence
has been associated with temporal lobe (Wong et al. 1994)
and generalized (Blake, Pincus, and Buckner 1995) abnor-
malities on CT. MRI studies of violence have shown gener-
alized abnormalities (Blake, Pincus, and Buckner 1995),
and asymmetric temporo-parietal gyral patterns and white
matter changes (Wong et al. 1997a). In the most elegant
and far-reaching MRI study to date, Raine and colleagues
(Raine et al. 2000) showed reduced prefrontal gray matter
volume in subjects with antisocial personality disorder.
This study used non-institutionalized subjects, and con-
trolled for psychosocial risk factors, psychiatric and
substance-abuse comorbidity.
Perhaps the most promising, and certainly the most
arresting studies involve SPECT and PET. Studies of
cerebral blood flow assessed with SPECT have shown
Brain imaging 725
prefrontal hypoperfusion and other abnormalities in sub-
jects who exhibit impulsive aggression (Amen et al. 1996;
Soderstrom et al. 2000). SPECT studies of dopamine
(Tiihonen et al. 1995; Kuikka et al. 1998) and serotonin
(Tiihonen et al. 1997) receptor densities have also revealed
abnormalities in this same population. Studies of glucose
metabolism assessed with PET similarly have shown
prefrontal (Goyer et al. 1994; Raine et al. 1994; Volkow
et al. 1995; Raine, Buchsbaum, and LaCasse 1997; Raine et al.
1998a; Raine et al. 1998b;), subcortical (Raine et al. 1998b),
temporal (Seidenwurm et al. 1997; Wong et al. 1997b), and
generalized cortical (Wong et al. 1997a) hypometabolism
in subjects who exhibit impulsive aggression.
All of the above-mentioned findings were retros-
pective. None of these studies attempted to use imaging
abnormalities to predict violence. The definitions of vio-
lence varied from study to study. Most of the studies used
small sample sizes and limited themselves to subjects in
psychiatric hospitals, prisons, or forensic settings. Several
of the studies had no controls, and most did not control
for psychiatric or substance-abuse comorbidity. Thus,
these findings associating violence with imaging abnor-
malities – particularly abnormalities of the prefrontal
cortex and temporal lobes – are suggestive, but prelim-
inary. The abnormalities are not demonstrably sensitive
or specific for the postdiction of violence (however that
term may be defined). More importantly, no abnormal-
ity on brain imaging has yet to be causally associated with
any isolated, complex behavior, whether murder or a good-
night kiss (Mayberg 1992; Society of Nuclear Medicine
Brain Imaging Council 1996).
STANDARD FOR TESTIMONY
The Supreme Court of the United States, in its 1993
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1994) deci-
sion, established the Federal Rules of Evidence as the cur-
rent standard for admitting expert testimony in a federal
trial. Most states have also subsequently adopted this
standard. Adoption of these Rules superseded the ‘gen-
eral acceptance’ test established previously (Frye v. U.S.
1923). The Frye test, which had applied in federal trials
since 1923, required that the scientific principle under-
lying an expert’s testimony be generally accepted in the
field to which the principle belonged. The Daubert
standard, on the other hand, emphasizes the scientific
method by obliging expert testimony to be based upon
information that is reliable, valid and relevant to the fact
at issue. Thus, the Daubert standard does not demand
general acceptance within a scientific community (although
general acceptance does bear upon the inquiry). Rather,
testing, peer review and publication are more directly
dispostive in a Daubert hearing. The intent of the Daubert
ruling was to allow the admission into evidence of innova-
tive science that had not yet reached general acceptance.
726 Special clinical issues in forensic psychiatry
However, despite the liberal tilt of these Rules, the
forensic expert should not think that ‘anything goes’ in
expert testimony. The expert who attempts to use a brain
image to claim that a defendant had, or did not have, a
specific thought (e.g., criminal intent) is obviously at risk
for a Daubert challenge. A brain image simply has no rele-
vance to what a person was thinking at the time he or she
committed an act.
The expert who attempts to claim that a brain image
demonstrates a defendant’s propensity for behavior (e.g.,
violence) might also be on questionable scientific ground,
depending upon the reach of his or her opinion. Although
there is an increasing and consistent literature on the
topic, for the reasons mentioned above, there is as yet
no causal association between an abnormality on a brain
image and violence. There is most certainly no causal asso-
ciation between an abnormality on a brain image and a
specific act of violence or other criminal act. Prospective
studies might one day demonstrate a causal association,
but the expert who today asserts, for a given imaging
abnormality, the ‘my brain made me do it’ defense, is
speculating. On the other hand, particularly in the sen-
tencing phase of a trial where the standard for evidence
is often lower than in the guilt phase, a court might allow
this speculation, if the expert states his or her opinion as
such. In this circumstance, the expert may fairly state that
the scientific literature relates the imaging abnormality
to violence, but has yet to demonstrate that this relation
is a causal relation. In other words, this speculative causal
relationship is actually a clinical inference (an inference
best supported with additional clinical information), and
the expert should explicitly say as much.
The use of brain imaging least likely to be challenged
is, as discussed above, imaging that mimics routine clinical
practice. Most jurisdictions routinely allow medical evi-
dence, including brain imaging, when that evidence is
part of the diagnostic and treatment-assessment process
generally accepted within the medical community. If brain
imaging is necessary or routine in good clinical practice,
then it has in all likelihood passed the Daubert standard
of reliability and validity, and is unlikely to be challenged
by an opposing expert, or denied by the court.
Conversely, the expert places his or her imaging at
somewhat more risk if, in the process of making a rou-
tine psychiatric diagnosis, he/she uses a technology that
is not routinely used to make that diagnosis. Any time a
psychiatrist brings a technology to court that is not used
in routine clinical practice, whether or not it deserves to
pass Daubert muster, he/she raises skepticism in the oppos-
ing expert, and thus may face a challenge. For example,
serial imaging (pre-treatment in a naïve brain, and post-
treatment) may be compelling in supporting a clinical
diagnosis of depression. However, this particular use of
brain imaging is not necessary or routine in clinical prac-
tice. The expert should thus be prepared to state why
he or she uses brain imaging in court. A response might
include the statements that a brain image cannot be
faked, that the treatment response shown on imaging is
well-documented in the literature, and that brain imag-
ing is not often used in clinical practice because it is expen-
sive and unnecessary in the assessment of a patient not
suspected of malingering.
The first question that the psychiatrist must ask
him/herself is why he needs to use the imaging at all.
A court may be aware of the prejudicial effect of what
appears to be a picture of the brain. The psychiatrist, in
turn, must be prepared to demonstrate the incremental
advantage that inclusion of the image allows. The psych-
iatrist in this situation is of course wise to employ imag-
ing that has demonstrated reliability and validity for its
intended purpose, but that for reasons apart from sci-
ence, has not gained general acceptance. For example,
MRI may show temporal lobe atrophy, a sensitive indica-
tor of Alzheimer’s disease (Scheltens and Korf 2000). The
expert may explain to the Court that an MRI in the evalu-
ation of Alzheimer’s is an expensive procedure, and is
approaching standard clinical practice, but is unneces-
sary when clinical features of Alzheimer’s are obvious.
However, when the examination of the client requires a
consideration of malingering, then MRI is advantageous
because it cannot be faked. In addition, in such cases the
expert should be expected to demonstrate knowledge of
the technology (e.g., sensitivity and specificity) that he or
she might not have to demonstrate were the technology
used routinely in clinical practice.
CONCLUSION
Brain imaging is both a compelling visual medium, and
one that moves us closer to an explanation of the origin
of our behavior. In addition, the breadth and quality of
forensic imaging is growing. These developments promise
a bright future for the technology in forensic assessment.
However, the beguiling picture belies the complex science.
A brain image is not a crystal ball into the brain. It does
not (yet) tell us what we are thinking. It does not (yet)
predict a specific behavior. The psychiatric expert must
recognize the limitations of the technology, and keep his
or her opinion within the bounds of current scientific
knowledge.
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Amen, D., Stubblefield, M., Carmicheal, B., Thisted, R.
1996. Brain SPECT findings and aggressiveness.
Annals of Clinical Psychiatry 8, 129–37.
Blake, P., Pincus, J., Buckner, C. 1995. Neurologic
abnormalities in murderers. Neurology
45, 1641–7.

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2786 (1993).
Fletcher, J., Woolf, S., Royal, H. 1994. Consensus
development for producing diagnostic procedure
guidelines: SPECT brain perfusion imaging with
exametazime. Journal of Nuclear Medicine 35,
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Frye v. United States, 293 Federal Reporter (1923).
Goyer, P., Andreason, P., Semple, W., et al. 1994.
Positron-emission tomography and personality
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Kuikka, J., Tiihonen, J., Bergstrom, K., et al. 1998.
Abnormal structure of human striatal dopamine
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Mayberg, H. 1992. Functional brain scans as evidence in
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Nuclear Medicine 33, 18N–19N.
Raine, A., Buchsbaum, M., Stanley, J., et al. 1994.
Selective reductions in prefrontal glucose metabolism
in murderers. Biological Psychiatry 36, 365–73.
Raine, A., Buchsbaum, M., LaCasse, L. 1997. Brain
abnormalities in murderers indicated by positron
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Raine, A., Meloy, J., Bihrle, S., et al. 1998a. Reduced
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Science and the Law 16, 319–32.
Raine, A., Phil, D., Stoddard, J., et al. 1998b. Prefrontal
glucose deficits in murderers lacking psychosocial
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Stalking
MOHAN NAIR
INTRODUCTION
Stalking, a topic previously not present in this text, has
become of increasing relevance from a forensic perspec-
tive over the past decade. Stalking is defined as the impos-
ition of unwelcome and fear-inducing communications
and approaches (Mullen, Pathe, and Purcell 2000). Prior
to 1990, the term stalking was primarily associated with
psychiatric conditions considered as relatively rare,
e.g., erotomania and delusional disorders, and it often
involved stars and public figures. Stalking arising from
dysfunctional courtship behaviors and domestic conflict
are now the dominant focus.
Following the 1989 murder of actress Rebecca Schaffer
by an enraged, obsessed fan, and the killing of four Orange
County women by ex-intimates, California became the
first state to enact an anti-stalking law. The media por-
trayal of violence associated with stalking in conjunction
with the efforts of the domestic violence prevention
advocates forced rapid (and in the opinion of some,
hasty) legislation that made stalking a crime in all fifty
states. Stalking across state lines is a federal offense.
THE CRIME OF STALKING
No single legal definition of stalking exists. Some states
and the model anti-stalking code (National Institute of
Justice 1996) have used component terms and concepts
such as the requirement of threat, proximity, intent in the
stalker, frequency of contacts, fear in the victim and rea-
sonableness of the victim’s reaction. However, there is
little legal consensus about these requirements. Sixteen
states do not require intent on the part of the stalker;
Florida considers the subjective reaction of the victim to
be adequate. Stalking remains primarily a victim-defined
crime. In its extreme interpretation, individuals can be
charged with the crime of stalking, most commonly on
the basis of an ex-wife or girlfriend’s subjective feelings
76
about his actions and be detained without a warrant and
be denied bail.
Stalking laws have been criticized as overriding con-
stitutionally protected rights and not differentiating law-
ful from unlawful behaviors (McAnaney 1993; Boychuk
1994; David 1994; Haas 1994; Guy 1993). This would
include actions such as panhandling, the ‘normal’ volatility
of relationships, the right to travel, be in public places, and
‘normal’ attempts to communicate between ex-partners.
The law has been found unconstitutional and has been
struck down in the appellate courts of Massachusetts,
Oregon, Kansas, and Texas (Commonwealth v. Kwiatkowski
1994; Oregon v. Norris-Romine 1995; Kansas v. Bryan 1996;
Heuter 1997).
Proponents feel that the laws have not been protective
enough; they justify these statutes on the basis that it
allows law enforcement and the judiciary to intervene more
effectively and preemptively in potentially lethal domestic
violence situations (Bradfield 1998; Radosevich 2000).
EPIDEMIOLOGY
Described as an underreported and rapidly growing crime
in the United States, the lifetime prevalence of stalking
is reported as occurring from 8 per cent in females and
2 per cent in males (Tjaden and Thoennes 1998), and to as
high as 62 per cent in the community (Davis and Frieze
2000). The most likely reason for this spread is: (i) the
criteria used to identify stalking are vague; and (ii) there
is significant sampling bias. Few studies have been con-
ducted in the community, and studies of non-random
populations involve small numbers of disparate groups.
The range of behaviors used in questionnaires to cull
rates of stalking go from the clearly benign, and highly
subjective (e.g., leaving unwanted messages, showing
exaggerated expressions of affection, trying to be friends
with the friends of the victim) to those that are clearly
criminal and life-threatening (e.g., rape, kidnapping, and
using a weapon to subdue the individual). Wright et al.’s
 Stalking 729

Table 76.1 Stalking studies in random and non-random populations

Reference
Australian Bureau
of Statistics (Mullen,
Pathe, and Purcell 2000)
National Institute
of Justice (1996)
Tjaden and Thoennes
(2000)
Canadian Center for
Justice Statistics
(Kong 2000)
Fremouw, Westrup, and
Pennypacker (1997)
Bjerregaard (2000)
Harmon, Rosner, and
Owens (1998)
Kienlen et al. (1997)
Palarea et al. (1999)
Mullen, Pathe, and Purcell
(2000)
Saundberg, McNeil,
and Binder (2001)
Sample type Percentage stalking Remarks
Random community 15% lifetime 40% stalked 6 months to ⬎2 years
n ⫽ 6300 (females) prevalence Stalkers are most often strangers
2/3 asymptomatic
Random community 8% female, 78% victims female
8000 females 2% male 80% stalkers male
8000 males 81% assaults
31% rapes
n ⫽ 1785 Domestic 18.3% females, 1 in 6 was stalked. Protective orders
Violence Reports 10.5% males frequent, stalking victims sustain
less physical injury
Police reports 69/100,000 female 78% victims female
n ⫽ 5910 victims 20/100,000 male 87% stalkers male
n ⫽ 3842 stalkers
n ⫽ 600 college 30% females 80% new stalkers
students 17% males 43% females and 24% males dated stalker
n ⫽ 788 college 25% females 96% females stalked by males
students 11% males 1 out of 3 males stalked by males
Half ex-intimates. Threat of violence:
23.8% females; 13.8% males
Forensic clinic – Affectionate/amorous 61%;
referrals (n ⫽ 175) persecutory/angry 31%;
violent 46%
Chart review of – 1/3 psychotic; 2/3 personality disorder
25 stalkers Non-psychotics more violent
n ⫽ 341 LAPD/Threat Simple obsessional 217
Managment Unit Love obsessional 87
Erotomanics 17
n ⫽ 145 stalkers – Rejected 58; Intimacy seeker 54;
Self/court referred incompetent 24;
Resentful 24; Predatory 8
n ⫽ 62 MH staff – 52% harassed; 3% stalked

(1996) FBI sample of thirty stalking cases which resulted
in seven homicides and six suicides is unlikely to have
much in common with the 62 per cent of young adults
in the community who report being ‘repeatedly’ stalked.
Details of stalking studies in random and non-random
populations are listed in Table 76.1.
Most relevant classifications of stalkers note the
relationship to the victim. Violence is directly related
to intimacy and closeness (Schwartz-Watts and Morgan
1998). By integrating concepts of delusional disorders and
erotomania and non-delusional/borderline erotomania,
Zona, Palarea, and Lane (1998) divide stalkers into three
types:

TYPOLOGY • Simple obsessionals: these constitute the largest group,

There is no uniform classification of stalking. Stalking,
like violence, is a common behavioral pathway that flows
from diverse motivations. The sexual predator who follows
the child with a well-rehearsed plan to torture, rape, and
kill is a stalker; the high-school student who simply can-
not let go of his ex-girlfriend and insists on staying close
to her in the cafeteria and hanging out outside her home
in spite of being warned, and the homeless schizophrenic
who keeps following a stranger in response to auditory
hallucinations, are all stalkers.
and form two-thirds of the 200 referrals to the Los
Angeles Police Department (LAPD)/Threat Manage-
ment Unit which involve the stalking of ex-lovers.
Less frequently, obsessive attachments and resent-
ments may involve the stalking of friends, roommates,
co-workers, and acquaintances. This group carries the
highest risk of violence.
• Love obsessionals: these form one out of four of Zona’s
sample. They are characterized by the absence of any
relationship with the victim. Involvement may occur
through the media, i.e., star stalkers, but any chance
contact may trigger a stalking episode.
730 Special clinical issues in forensic psychiatry
• Erotomanics: these are predominantly females who
believe against all evidence to the contrary that they are
loved by the victim, usually an individual in a higher
station than themselves.
Mullen, Pathe, and Purcell (2000) classify stalkers into five
types:
1 Rejected.
2 Intimacy seekers.
3 Resentful.
4 Incompetent suitors.
5 Predatory.
The rejected group is similar in composition to simple
obsessives, and intimacy seekers to love obsessors and
erotomanics. The resentful group are touchy and paranoid
individuals for whom stalking and harassing becomes a
way of getting back at co-workers, supervisors, or indi-
viduals from some ‘system’ for perceived persecution.
BEHAVIORS ASSOCIATED WITH STALKING
Stalking involves the intrusive and obsessive attempts to
make unwanted communication with the victim, intrude,
or control their lives. The forms of communication and
intrusion are only limited by the stalker’s imagination.
They include telephone contacts, following, writing let-
ters, and increasingly E-mail and posting information
about the victim on the Internet. Some 20 per cent of
cases referred to the Threat Management Unit of the
Los Angeles Police Department involve stalking through
electronic mail. One out of four of the 600 cases referred
to the Sex Crimes Unit of New York City involved cyber
stalking.
• Example: Jake Baker, a University of Michigan student,
was arrested by federal agents for sharing details of his
fantasies and plans online to kidnap, rape, and torture
a classmate (Branscomb 1995).
• Example: The day after she was seen by a dentist,
a 23-year-old female started receiving prodigious
amounts of E-mail from him; the E-mails, which started
at 3 o’clock in the morning the day after her visit, pro-
vided extreme personal information, made request
for similar information from her and expressed sexual
fantasies. This was followed by the dentist showing up
in places where he expected her to be, based on her
conversations in the office. He began to show up at her
workplace, telling her that he just happened to be in
the area; at one point he visited her at home, allegedly
to follow up on a dental problem and attempted to
make physical contact with her at the time she was
there, leading her ultimately to seek legal help.
Stalkers may show up in places that they know the victim
is expected to be, and/or make contact with or ingratiate
themselves on the victims’ family or acquaintances in an
attempt to get close to the victim. Goods may be ordered
on behalf of the victim, services such as the telephone
and electricity turned off, and rumors started about the
victim. For example, the disgruntled boyfriend of a phys-
ician complained to the Board of Medicine that she was
improperly prescribing narcotic medications to addicts,
compelling an investigation on her. In another case, a
young man communicated to his ex-girlfriend’s super-
visor that the frequent phone calls she gets at work are
from clients to whom she is offering her ‘call-girl’ services.
More ominous intrusions include threats of violence
which are reported in 30–80 per cent of victims; directly
approaching the victim in their homes, entering victims’
home and leaving threatening mementos; initiating frivo-
lous lawsuits; threatening family members and friends;
damaging property, making threats, killing pets, physically
assaulting, kidnapping and raping victims. Ex-intimate
stalkers use the broadest range of surveillance and harass-
ment techniques. Letter writing as a single mode is most
common with erotomanics and love obsessives.
The forms of communication may reveal something
about the stalker and his or her relationship with the
victim, real or imagined. Bizarre communication and gifts
may suggest that the stalker is psychotic, but this may also
be done with the conscious goal of ‘spooking’ the victim.
Stalking behavior can be prolonged. One-fourth of
subjects in the study of Tjaden and Thoennes (1998) were
stalked for an average of 1.8 years; delusional and eroto-
manic stalkers may continue as long as five or ten years
(Zona, Palarea, and Lane 1998; Mullen, Pathe, and Purcell
2000).
MOTIVATIONS FOR STALKING
As with domestic violence, stalking is often associated
with relationships that involve narcissistic, borderline
personalities, pathologic rage (Edelson and Tolman 1992;
Meloy 1998), enmeshment, and abandonment rage. The
most common reason for stalking is to be with a loved
one. Often, this is coupled with or alternates with a need
for revenge, control, and the desire to hurt or even kill
the love object. Stalking behaviors may be maintained
by revenge and hatred alone. This concept is neither new
nor unusual in that pathologic jealousy and abandonment
rage have always been the most common reason why men
hurt or kill the women they claim to love (Stone 1989;
White and Mullen 1989).
Individuals with paranoid, schizoid, and narcissistic
personality disorders may be hypersensitive to or mis-
construe communications from co-workers, neighbors,
or casual acquaintances; a real or imagined slight becomes
an obsession that then results in stalking behavior.
Many have personality disorders that make it difficult for
them to achieve real friendships, courtship behavior, and

intimacy. Over half of the stalkers in Mullen’s sample
(Mullen, Pathe, and Purcell 2000) had never been out on
a date. Individuals who may have had a prior relationship
may desperately try to hold on to it. Erotomanics and
love obsessives may have fantasy relationships as a substi-
tute for a real one that they are not able to achieve.
Psychotic motivations may include affection, sexual
desire, or the delusional belief that the other person loves
them; psychotics may stalk due to paranoid, grandiose,
or religious delusions. Stalking may occur in response to
auditory hallucinations. For example, a homeless individ-
ual begins to follow a jogger wearing a green sweatshirt
to his door, in response to auditory hallucinations and a
delusion that the person is the Messiah.
Mentally retarded and demented individuals cannot
exercise appropriate control on their behavior, and may
follow individuals to whom they are sexually attracted,
feel affectionate toward, or are drawn by some curiosity
or resentment.
Sexual predators and paraphiliacs, i.e., pedophiles,
rapists, sadists, voyeurs, fetishists, and obscene phone
callers, may engage in stalking-type behaviors (Goldstein
2000):
• A 27-year-old male is repeatedly arrested and incarcer-
ated for entering a female’s home to acquire lingerie
for sexual arousal. The prominent sexologist Havelock
Ellis described a British soldier who was sexually
aroused by the smell of menstrual blood; he was
exquisitely sensitive to the smell, and would detect and
follow women who were menstruating. On one occa-
sion he was caught as he followed a woman into her tent
and attempted to remove her menstrual pad while she
was sleeping.
• A 31-year-old black male would repeatedly follow
women with a video camera, staying at a short distance
from them, ultimately following them all the way up
to their door. He was later convicted of following, and
overpowering and raping a police woman.
• A 16-year-old white male would follow attractive young
women on a jogging path while exposing his genitals.
He then progressed to physical contact by brushing
up against them. Eventually, he followed a woman and
tried to rape her, leading to his arrest and incarceration.
Stalking in these individuals may often be a cover for
underlying paraphilic disorders.
PSYCHIATRIC DISORDERS AMONG STALKERS
Cluster B personality disorders of the borderline, narcissis-
tic, and histrionic types are predominant in ex-intimate
stalkers. Less often, dependent, schizoid, and paranoid
personality disorders may be noted. Substance abuse is
common. Antisocial personality is uncommon; the pres-
ence of psychopathy should raise concerns about violence.
Stalking 731
Delusional disorders, schizophrenia, affective and
organic psychosis are common among stranger and star
stalkers that have no relationship with them, including
those with whom no conceivable relationship is imagin-
able. Mental retardation and dementia may be found in
some. Mental illness is often not a factor in those who
stalk or attempt to assassinate public figures (Fein and
Vossekuil 1998).
VICTIMS OF STALKING
Some 80–90 per cent of the victims are women, and
80–90 per cent of stalkers are men. Stalking has been
described in all ages, including adolescents (McCann
2001). The most common victims of stalking are young
women in their reproductive years, who have had a sex-
ual relationship with the stalker. As in other victims of
domestic violence, some may have enmeshed, depend-
ent, sadomasochistic relationships with the perpetrator.
Often, there is a history of childhood abuse (Bowlby 1979;
Downs 1996; Gelles 1997; Goodyear-Smith and Laidlaw
1999). This group is at the highest risk of violence,
including lethal violence. Physical assault, rape, and stalk-
ing often starts even prior to the separation.
• Example: a female in treatment for depression follow-
ing a break up with her common-law husband for the
fourth time. Each time, he has engaged in violence
and stalking. He attempted to kidnap the children and
repeatedly threatened her at her workplace. Situations
of domestic violence in the past have often culmin-
ated in sexual activity. She found herself aroused by
his aggression. However, the level of violence escal-
ated and she started to become fearful for the chil-
dren. The victim wore a gold necklace with a pendant
that said, ‘spoiled rotten.’ She disclosed that this was
given to her by her stepfather who had repeatedly
sexually molested and physically abused her from the
age of twelve. A diagnosis of borderline personality
disorder is noted.
Victims of non-intimate stalkers do not fit a profile.
Those who are stalked by intimacy seekers and love obses-
sionals are often visible and appealing.Victims may include
co-workers, roommates, casual acquaintances, and com-
plete strangers. Therapists and physicians are especially
prone to being stalked as a result of having to deal with
emotionally needy people.
Stalking can cause serious disturbances in emo-
tional, social, interpersonal, and work functioning. Post-
traumatic stress disorder has been reported in 37–60
per cent of stalking victims. Depression, anxiety, insom-
nia, somatization disorders, and substance abuse are
commonly reported. Hall (1998) noted self-identified
stalking victims as becoming aggressive, paranoid, and
fearful. One-third of the females, and one in five men of
732 Special clinical issues in forensic psychiatry
the domestic violence stalking victims sought psychiatric
help (Tjaden and Thoennes 2000). As a result of stalking,
victims may move, change jobs, stop working, change
their usual routes, isolate and, in some instances, arm
themselves.
It is unlikely that these findings can be generalized to
non-clinical groups. Two out of three women in large com-
munity sample studies in Australia and the United States
denied feeling fearful. Less than 20 per cent of female
college students who reported being stalked sought to
inform the police.
Self-identified victims recruited through the media
(Hall 1998; Brewster 2000) or through support
groups such as incest survivor groups (Kamphuis and
Emmelkampp 2001) may be prone to exaggerate, fabri-
cate, falsely attribute or, in some instances, be delusional
about being stalked.
FORENSIC ASPECTS OF STALKING
Stalking, like sex offending, is recognized as both a psy-
chiatric and criminal problem in many instances. Many
states and the model anti-stalking code specifically rec-
ommend mental health evaluations on those charged
with the crime of stalking. Referring parties may request
opinions on various aspects of stalking including:
• Assessment of criminal competency, i.e., insanity,
diminished capacity, the ability to form specific intent.
• Evaluation of stalking victims, e.g., mental state of
victims who killed in self-defense (battered wife syn-
drome); claims of posttraumatic stress disorder and
other psychiatric disorders as a result of stalking; issues
of false victimization.
• Appropriateness of Tarasoff warning when clinicians
become aware of a patient stalking a specific victim;
issues of hospital release of stalkers.
• Psychiatric Workers’ compensation evaluation of
employees who claim to be stalked in the work place;
stalking and risk of workplace violence by disgruntled
employees.
• Violence risk assessment of stalkers.
• Recommendations regarding civil commitment,
rehabilitation, and treatment for stalkers.
• Threat management consultations.
• Stalking/child abduction and high conflict child
custody cases.
• Assessment of paraphilic and predatory stalkers.
Assessment
The assessment procedure includes the following:
• Psychiatric examination including review of records
and collateral information, i.e., medical, psychiatric,
police, work records.
• Current psychiatric, chemical dependency, and medical
problems.
• Past history and response to treatment; motivations
for stalking behavior; history of recent losses.
• Psychological tests including MMPI-2, MCMI-2,
Rorschach.
• Violence risk assessment.
• Family and social support.
• Treatment recommendations, i.e., civil commitment,
inpatient, outpatient.
• Prognosis.
Risk assessment
Stalking is a common behavior driven by various
motives. Similar to a headache that may stem from a mild
sinus congestion or a life-threatening brainstem hemor-
rhage, some situations of stalking may represent grave
danger. Therefore, there cannot be one risk assessment
tool for stalking. Rather, the empirically tested and actu-
arial data available from different groups should be
considered, i.e., the Danger Assessment Instrument for
Batterers (Saunders 1995), Violence Risk Appraisal Guide
(VRAG) (Quinsey et al. 1998); Psychopathy Checklist-
Revised (PCL-R) (Hare 1991); and the Static-99 for
sex offender recidivism (Hanson and Thornton 1999).
General factors in violence risk assessment should also be
noted (Monahan and Steadman 1994).
Factors likely to increase the risk of assault in stalkers
(Palarea et al. 1999; Mullen, Pathe, and Purcell 2000)
include:
• Substance abuse.
• History of criminal offending including sexual and
violent offending.
• Male gender.
• Making threats of violence and suicide.
• The presence of personality disorder, especially bor-
derline, narcissistic type.
• Pursuing an ex-intimate.
• Long-term preoccupation with victim.
• Being unemployed or under-employed.
• Being socially isolated.
• Having high levels of anger directed at the victim.
• Having an intense sense of entitlement.
• Fantasizing about and planning assaults.
• Possessing weapons and having a history of familiar-
ity with weapons.
• Access to victims; physical approaches to victim in
multiple settings.
• Sense of desperation to resolve situations; ‘crisis
periods,’ e.g., protective orders, police confrontation,
threat of arrest or incarceration; current stressors such
as death of loved one, job loss, loss of child custody/
visitation.
• History of non-compliance to treatment.

Risk management
Meloy (1998) recommends the following risk management
approach:
• A team approach including law enforcement, mental
health professionals, and the courts, and personnel
necessary to provide safety to the victim.
• Emphasize the victim’s need to show responsibility for
personal safety.
• Document specifics of contact so as to establish a
course of conduct on the part of the perpetrator that
defines stalking and the responses of fear in the victim.
• The victim should not initiate or have contact with
the perpetrator, as it will reinforce the behavior.
• Restraining orders to suppress approach behavior;
also, to emphasize the continuity of the course of con-
duct and to document fear. Victims should be advised
that restraining orders in some instances may provoke
violence.
• Law enforcement and prosecution: appropriate filing
of police reports and steps to help prosecute, even when
it is troubling.
• Treatment of stalkers: those with Axis I disorders
will benefit from antipsychotic and mood stabilizers.
Delusional disorders are difficult to treat. Personality
disorders likewise may be difficult to treat, but may
benefit from the group therapy format, i.e., relapse
prevention program similar to those used with sex
offenders and domestic violence.
• Periodic violence risk assessment.
• Recognizing, preventing, and containing situations
(‘dramatic moments’) which are expected to cause
narcissistic injury in the stalker. This will result in
increased risk of violence. Situations include protective
orders, denied child custody visits, police and judicial
confrontations.
SPECIAL ISSUES
Stalking and violence
The association between stalking and violence has been
the driving force that resulted in rapid criminalization.
The incidence of violence in stalking varies widely (from
3 per cent to 47 per cent) depending upon the popula-
tion studied, but it averages 30–40 per cent in clinical and
forensic samples. The representation of stalkers as preda-
tors or psychopaths is not accurate. Most violence in
stalkers is affective and not premeditated or predatory.
Stalkers who are psychopathic, i.e., those who have PCL-R
scores greater than 30, are most likely to be violent. Both
the violence and stalking behavior come from pre-existing
factors such as early attachment problems, primitive
personality disorders with a tendency to form enmeshed
Stalking 733
relationships. Situational factors such as recent losses, the
break up itself and inability on the part of the victim to
give clear signals to the perpetrator may contribute.
Factors that increase the likelihood of violence are prior
intimacy, prior violence, and a criminal history in the
stalker, and having cluster B personality disorders (Zona,
Palarea, and Lane 1998).
The actual level of physical injury is relatively small. In
the Canadian study (Kong 2000) involving over 5000 vic-
tims, 20 per cent of the stalkers had weapons, 14 per cent
made physical contact with the victim, including pushing,
shoving, and hair pulling. Physical injuries, however,
occurred in only 2 per cent. Tjaden and Thoennes (2000)
reported that domestic violence cases involving stalking
reported lesser degrees of physical abuse and injury when
compared to those that did not involve stalking. Zona,
Sharma, and Lane (1993) reported only three out of sev-
enty-four stalkers responding with violence. In combining
multiple studies, Meloy (1998) reported that only twelve
out of 576 cases involved weapons. Threats of violence
appear to be used to threaten and control rather than to
inflict injury.
The incidence of violence is low in psychotic/
delusional stalkers, but it can occur. Attacks may be
directed toward third parties who thwart the objects of
their desire (Meloy 1999). Those who wrote threatening
letters to public figures did not show a tendency to pursue,
physically confront or attack them (Deitz et al. 1991).
The literature does not show a cause and effect rela-
tionship between stalking and violence. Pathologic jeal-
ousy and abandonment rage in a narcissistic/borderline
personality are factors in violence, including femicide.
Some of those who hurt and kill will also stalk, but stalk-
ing is an association, not a cause, of the violence. Com-
pared to the level of threat, i.e., 30–80 per cent, the level
of physical contact and property damage is only about
one in three, and the level of injury is slight. Police per-
sonnel who intervene in stalking, and mental health pro-
fessionals who are called in to consult, should be aware
because this contradicts the popular image of stalkers
being on the verge of lethal violence and homicide/
suicide scenarios.
The risk of homicide in stalking is over-rated. The
2 per cent rate of homicide in stalking victims reported
by Meloy (1998), and the 25 per cent homicide in the FBI
sample (Wright et al. 1996) are clearly not applicable to
the general population where stalking is commonplace,
i.e., it occurs in 8 per cent to 15 per cent.
Clinician stalking
Psychotherapists often deal with those who have attach-
ment problems, neediness, and poor boundaries, as well
as psychotic disorders. The commonest form of mental
health clinician stalking is by patients who feel wronged
by them. On occasion, this has progressed to lethal
734 Special clinical issues in forensic psychiatry
violence (Lion 1995). Half of the clinical staff of a mental
health facility reported experiencing some form of
harassment; serious types of stalking in this group were
reported in only 3 per cent of the sixty-two surveyed
(Saundberg, McNeil, and Binder 2001). Some patients may
stalk clinicians from romantic and sexual interests, or to
seek a friendship beyond that of a doctor–patient relation-
ship. Appropriate limit setting, adherence to guidelines of
treatment of borderline and other conduct-disordered
individuals, appropriate law enforcement reporting and
consistent and predictable intervention such as protect-
ive orders are recommended.
False victimization
False victimization often involves claims of physical
illness, e.g., factitious disorder, Munchausen’s by proxy
syndrome, physical assault, sexual harassment, and sex-
ual assault. Kanin (1994) noted false allegations of rape
in about half of a sample of female college students. False
claims of stalking are not uncommon, and have been
reported in the law enforcement literature (Artingstall
1999). Mullen, Pathe, and Purcell (2000) reported eight-
een cases among their series of 145 victims, and Zona,
Palarea, and Lane (1998) reported six among a series of
341. These actions may be carried out for attention, mal-
ice, or from psychotic delusions. False victims tend to seek
legal and psychiatric intervention earlier, and often show
significant anger. Improbable stories, repeated episodes
of stalking, and multiple stalking – especially in individ-
uals with a history of illness behavior, unsubstantiated
disabilities, borderline personality, suspicious previous
history of victimization and litiginous tendencies –
should raise concerns regarding the authenticity of these
claims.
CONCLUSION
From having been in the shadows as an exotic psychiatric
condition, stalking has been re-cast as a terrifying ‘epi-
demic.’ Distortions of data and political agendas have
made stalking out to be both pervasive and lethal. The
risk of violence presence cannot be assessed on the basis
of stalking alone, but on the traditional risk assessment
instruments. The literature does not support the popular
view that stalking, as currently defined, can be both
pervasive and lethal. The failure to integrate existing
bodies of knowledge, i.e., mental health and legal, and to
deal primarily with stalking as a law and order issue may
do for ‘the war on stalking’ what it has done for ‘the war
on drugs’ – that is, result in miscarriages of justice, loss
of credibility in the concept and its application, and
ultimately fail to protect the very group meant to be
protected.
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 77
Head trauma: a practical approach to the
evaluation of symptom exaggeration

SHOBA SREENIVASAN, SPENCER ETH, PATRICIA KIRKISH AND THOMAS GARRICK

INTRODUCTION Fann, and Grant 1994). Prior head injuries, substance

abuse, as well as somatization and posttraumatic stress
disorder (PTSD) symptoms are factors which render diffi-
The controversy regarding the extent, severity and presen- cult the assignment of a specific constellation of symptoms
tation of cognitive disability following head trauma is a sig- fully attributable to the litigated head trauma. There is also
nificant issue that the forensic clinician must confront in a high base rate in the normal population of having suf-
civil and criminal litigation. This issue frequently unfolds fered a minor head trauma without lasting consequences
in the legal process as conflicting testimony from multiple, (Evans 1992; Mittenberg and Strauman 2000). Some sug-
multidisciplinary experts regarding the genuineness of the gest that persisting symptoms in the context of a mild head
persistent symptoms following head trauma. Debate most injury and litigation are predominantly the consequence of
often occurs in situations of minor head injury, where there financial incentives (Binder and Rohling 1996).
is minimal alteration in consciousness and often absent
objective evidence of brain injury. The prevalence of per-
sistent symptoms (eighteen months post-injury) following Comorbidity of psychiatric conditions
such minor head injury is generally low, varying between 5
per cent and 15 per cent (Binder 1986). On the other hand, It is possible to construct a continuum of psychiatric
such symptoms may be subtle and difficult to recognize conditions which feature prominent neuropsychological
clinically without specialized assessment. The forensic cli- complaints:
nician therefore faces a situation in which he or she must
differentiate between subtle brain dysfunction, symptom
exaggeration, psychogenic-based causes for the presence of Valid/neurological Psychiatric/ Fabricated/
cognitive and other deficits, or frank malingering. unconscious intentional
There are fundamental theoretical and practice differ-
Amnestic disorder Conversion Factitious
ences between clinical and forensic evaluations. Forensic
Dementia disorder disorder
evaluations are guided by the legal issue: competency to
(head trauma) Somatization Malingering
stand trial, not guilty by reason of insanity and so forth in Post-concussional disorder NOS
the criminal arena (Kirkish and Sreenivasan 1999; Denney disorder Dissociative
and Wynkoop 2000); and the nexus between the symptoms Cognitive disorder Fugue and amnesia
and disability and/or compensable damage in the civil NOS Major depression
arena. The purpose of this chapter is to offer a practical PTSD
model for the assessment of amplified neuropsychological
and psychiatric deficits in minor head trauma civil litigants NOS; not otherwise specified
utilizing a forensic-clinical approach.
A primary diagnostic consideration would be the
group of psychiatric disorders that are explained by a
SUMMARY OF SYMPTOMS FOLLOWING documented neurological condition. Although the cogni-
MINOR HEAD TRAUMA tive deficits may persist or improve over time, they rarely
worsen, unless there are subsequent brain insults through
Mild head injury can be followed by a triad of emotional, repeated injuries or alcohol abuse (Binder, Rohling, and
cognitive and somatic complaints (Evans 1992; Brown, Larrabee 1997).
 Head trauma: a practical approach to the evaluation of symptom exaggeration 737
Conscious versus unconscious production
of symptoms
The examiner must always be vigilant for two conditions
in which cognitive symptoms are intentionally produced.
In factitious disorder, the feigning of symptoms, includ-
ing memory loss, occurs without the presence of external
incentives, such as monetary rewards. Malingering is tech-
nically not a psychiatric disorder, though it may become
the focus of clinical attention. Malingering is the volitional,
conscious production of symptoms in order to obtain a
reward. Although the gratification conferred by adopting
a sick role of diminished responsibility is mentioned as
a defining feature of factitious disorder, this unconscious
factor may be present in all conditions on this list, includ-
ing malingering. Another relevant factor is secondary gain.
This term derives from psychoanalytic theory and con-
sists of the practical benefits that patients achieve through
the symptom’s influence on the behavior and attitude of
others, such as eliciting sympathy and gratifying depend-
ency needs. When the patient also complains of pain, the
contribution of the sick role and secondary gain are inten-
sified. Both the sick role and secondary gain can serve to
perpetuate and exacerbate symptoms. In a context where
there is potential financial recovery related to diagnosis
and prognosis, the contribution of the sick role and sec-
ondary gain is amplified, regardless of the extent to which
these factors operate unconsciously.
Rates of neuropsychological impairment
and malingering in minor head trauma
Although cognitive complaints are a common sequelae of
minor head trauma, the persistence of such deficits beyond
three to six months remains controversial. Some studies
prospectively examining patients with mild concus-
sion and controls have not found evidence to support
the presence of persistent cognitive deficits (Zielinski
1994), while others have demonstrated symptomatology
(Brown, Fann, and Grant 1994). Binder and his colleagues
(Binder, Rohling, and Larrabee 1997), in their meta-
analytic review found the prevalence of neuropsycho-
logical impairment associated with minor head trauma
to be small (r ⫽ 0.06), suggesting that such impairment
was apparent in only a minority of the cases.
The knowledge of symptoms associated with post-
concussive syndromes may also impact symptom over-
reporting. Mittenberg et al. (1992) suggest ‘symptom
expectancy bias,’ coupled with selective attention and
symptom mis-attribution, may result in the persistence
of post-concussive symptoms following mild head injury.
Binder and colleagues, in reviewing the impact of finan-
cial incentives on recovery after closed-head injury, con-
cluded that those patients with such incentives revealed
more abnormalities than those patients without financial
incentives and more severe injuries (Binder and Rohling
1996). Studies have suggested that the base rate for malin-
gered cognitive symptoms may range from 7.5 per cent
to 33 per cent (Curtiss and Vanderploeg 2000; Rosenfeld,
Sands, and van Gorp 2000; Vallbhajosula and van Gorp
2000).
MOTIVATIONAL TESTS
Motivational tests offer one method of assessing the indi-
vidual’s level of effort and approach to formal testing.
The most common method is the forced choice approach,
which begins with exposure to the stimuli (pictures, dig-
its) followed by a recognition trial of two choices, namely
the Test of Memory Malingering (TOMM) (Tombaugh
1997), and the Validity Indicator Profile (VIP) (Frederick
1997). The forced choice model assumes that an individ-
ual, who falls in the malingering range on the basis of cut-
off scores, demonstrates poor test motivation. As such, the
performance on motivational tests can be used to inter-
pret performance on other neuropsychological measures
and weight the degree to which the other tests are a true
reflection of actual deficit.
ASSESSMENT GUIDE: FORENSIC-HYPOTHESIS
TESTING MODEL
A data-driven model (Sreenivasan et al. in press) is sug-
gested that addresses two questions:
1 Which data support a hypothesis of malingering or
symptom exaggeration?
2 Which data argue against malingering or symptom
exaggeration?
The model therefore moves away from a test score-only
approach in which malingering tests may not be as pre-
dictive in head injury patients subjects. The method is
issue-driven, and presents a comprehensive list of factors
addressing the consistency (or lack thereof) of symptoms
presented by the litigant. The five areas listed are guided
by the data in terms of the support or lack of support for
malingering.
Using the assessment guide
The assessment guide for exaggeration/malingering in head
injury incorporates five major sections (see Table 77.1):
I Neuropsychological testing issues: How does the pro-
file presented fit what is known about the diagnosis?
How does the profile fit with what is known about
the base rate occurrence of this level of symptom
severity for this disorder? Does the testing comport
with the severity of injury and is it consistent with
diagnostic criteria? Do the motivational tests comport
738 Special clinical issues in forensic psychiatry

Table 77.1 Assessment guide for exaggeration/malingering in head injury.

Supports genuine Supports symptom
injury exaggeration
I Neuropsychological testing issues
a Base rates of brain damage High ❑ Low ❑
b Testing comports with severity of injury Yes ❑ No ❑
c Motivational tests abnormally positive No ❑ Yes ❑
II Congruence of testing and behavior
a Data consistent with observed behavior in testing session Yes ❑ No ❑
b Serial testing consistent with CNS process Yes ❑ No ❑
c Testing data comports with medical reports Yes ❑ No ❑
d Testing data comports with occupational or school functioning Yes ❑ No ❑
III Congruence of symptoms or signs with clinical data
a Symptoms/signs comport with clinical interview Yes ❑ No ❑
b Symptoms/signs consistent with clinical course Yes ❑ No ❑
c Symptoms/signs consistent with past records Yes ❑ No ❑
d Symptoms/signs consistent with physical exam Yes ❑ No ❑
e Symptoms/signs consistent with objective labs Yes ❑ No ❑
f Symptoms/signs consistent with collateral or surveillance data Yes ❑ No ❑
g Medication response consistent with natural history of Yes ❑ No ❑
CNS disease
h Symptoms/signs consistent with social, occupational or Yes ❑ No ❑
school functioning
IV Non-clinical factors
a No decline in income/business pre-injury Yes ❑ No ❑
b No pending lawsuits pre-injury Yes ❑ No ❑
c No burn-out, job actions, conflicts with coworkers, skills Yes ❑ No ❑
problems pre-injury
d Compensation less than pre-injury income Yes ❑ No ❑
V Presence of psychiatric and other conditions that may PRESENCE OF CONDITION
contribute to amplified or atypical symptoms
a Depression/anxiety Yes ❑ No ❑
b Personality disorder Yes ❑ No ❑
c Conversion/somatization Yes ❑ No ❑
d Substance abuse Yes ❑ No ❑
e Cumulative concussion Yes ❑ No ❑
f Impact of chronic pain Yes ❑ No ❑
g Impact of medications Yes ❑ No ❑
h Impact of medical comorbidities Yes ❑ No ❑
Miscellaneous:
a Prior history of litigation Yes ❑ No ❑
b Prior history of lying, malingering Yes ❑ No ❑
c Prior criminal activity or arrests Yes ❑ No ❑
d Prior job track record Yes ❑ No ❑
e Prior responses to injury Yes ❑ No ❑

with normative samples for these tests or do they indi-
cate attempts to manipulate the clinical presentation?
II Congruence of testing and behavior: This includes the
patient’s description and subjective rating of the con-
dition, and the relative impairment or dysfunction.
Are subjective quantitative rating scales relatively sta-
ble? Look for extreme ratings that have little in the
way of operational dysfunction to support the sub-
jective rating. Are the data consistent with observed
behavior in testing session, with other sources of
information such as work behavior, home behavior,
or school functioning? Is serial testing consistent with
the central nervous system (CNS) process assessed?
III Congruence of symptoms or signs with clinical data:
To what extent are the symptoms observed in keeping
with what is observed during the psychiatric examina-
tion, clinical course, past records, physical examina-
tion, or laboratory examination? Are the symptoms
and signs consistent with collateral/surveillance data,
social, occupational or school functioning? Is the
 Head trauma: a practical approach to the evaluation of symptom exaggeration 739
medication or treatment response consistent with
the natural history of CNS disease?
IV Non-clinical factors: There are a number of non-
clinical factors that may impact the evaluation find-
ings: financial factors, context of the evaluation,
knowledge of test procedures/disorder, and expecta-
tions for recovery. Many litigants have been subjected
to multiple testing sessions and psychiatric evalu-
ations, and this should be evaluated to assess the
impact upon test finding and clinical presentation.
The context of the evaluation, that is whether the liti-
gant is being evaluated by the defense versus plaintiff
expert may well impact the symptoms presented.
Individuals may amplify symptoms to convince the
defense expert of the legitimacy of deficits, or may
be angry in an evaluation that is perceived as part of
an adversarial process. The evaluation should also
clearly address what is expected of recovery of func-
tion or disability. For example, what is their attitude
about anticipated resolution? Is there investment in
remaining disabled or dependent, apart from finan-
cial incentive? What is the desired outcome? (settle-
ment, embarrassment of responsible party, day in
court, recognition of victimization), and how does
the patient expect to obtain it? A variety of factors
point towards a potential for symp-tom misrepre-
sentation, such as a decline in income/ business pre-
injury, pending lawsuits pre-injury, stress or other
work-related problems, compensation higher than
pre-injury income.
V Psychiatric and other conditions that may contribute
to amplified or atypical symptoms: A variety psychiatric
conditions exist that may contribute to amplified or
atypical symptoms. The presence and severity of any
of these noted disorders or conditions may result in
an atypical presentation. Symptoms may not be con-
sciously amplified (e.g., as in conversion disorder
or somatization disorder), and may represent the
psychological impact of loss of efficacy. Other condi-
tions, such as antisocial personality disorder, could
be associated with malingering. A thorough evalu-
ation of these disorders is likely to assist in clarifying
atypical presentations. The conditions include:
depression, anxiety, personality disorder, conversion/
somatization, substance abuse, cumulative concus-
sion, and chronic pain. Additionally, chronic use of
some medications (e.g., sedative hypnotics, opiate
analgesics) may have significant impact on symptom
presentation and need to be considered.
Conclusion from assessment
Conclusions derived from the assessment include the
following:
• Genuine disorder – no exaggeration: Deficits/symp-
toms explained by medical/neurological condition.
Post-concussional disorder, amnestic disorder, cogni-
tive disorder NOS, psychological factors affecting a
medical condition.
• Genuine disorder with exaggeration: Deficits/symptoms
explained by medical/neurological condition, but
severity is not consistent with the condition. Substance
abuse, personality disorder, mood disorder, anxiety dis-
order, psychotic disorder.
• Atypical presentation with questionable exaggeration:
Deficits/symptoms are not explained by medical/
neurological condition, severity does not comport with
condition. Conversion/hysteria, dissociative disorder,
somatoform disorder, pain disorder, with psychol-
ogical incentives, or factitious disorder.
• Atypical presentation-malingering: Deficits intention-
ally produced, both fabrications and exaggeration of
severity of symptoms for clearly discernible external
incentive; with external incentive, equivalent to malin-
gering.
CONCLUSION
This practical model allows the clinician to integrate
a variety of issues prior to formulating a conclusion. The
approach allows for a balanced review of multiple fac-
tors, as well as providing the clinician with a clearly based
rationale for how and why they reached their conclusions.
Ultimately, neuropsychiatric syndromes that arise from
minor head trauma may defeat efforts to satisfactorily
explain inconsistent or puzzling features. Patients often are
found to have complex conditions that combine elements
of a subtle brain insult, somatization, depression, and sec-
ondary gain. However, the forensic challenge remains to
opine whether a relatively minor head injury could legi-
timately cause persistent neuropsychological symptoms
and disability.
REFERENCES
Binder, L.M. 1986. Persisting symptoms after mild head
injury: a review of the post-concussive syndrome.
Journal of Clinical and Experimental Neuropsychology
8, 323–46.
Binder, L.M., Rohling, M.L. 1996. Money matters; a meta-
analytic review of the effects of financial incentives on
recovery after closed head injury. American Journal of
Psychiatry 153, 7–10.
Binder, L.M., Rohling, M.L., Larrabee, G.J. 1997. A review
of mild head trauma: part I: meta-analytic review of
neuropsychological studies. Journal of Clinical and
Experimental Neuropsychology 19, 421–31.
Brown, S.J., Fann, J.R., Grant, I. 1994. Postconcussional
disorder: time to acknowledge a common source of
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neurobehavioral morbidity. Journal of Neuropsychiatry
6, 15–22.
Curtiss, G., Vanderploeg, R.D. 2000. Prevalence rates for
neuropsychological malingering indexes in traumatic
brain injury. APA Division 40 Newsletter, 9–14.
Denney, R.L., Wynkoop, T.F. 2000. Clinical
neuropsychology in the criminal forensic setting.
Journal of Head Trauma Rehabilitation 15, 804–28.
Evans, R.W. 1992. The post-concussion syndrome and the
sequelae of mild head injury. Neurologic Clinics
10, 815– 47.
Frederick, R.I. 1997. The Validity Indicator Profile Manual.
Minnetoka, ST: NCS Assessments.
Kirkish, P.M., Sreenivasan, S. 1999. Neuropsychological
assessment of competency to stand trial evaluations:
a practical conceptual model. Journal of the American
Academy of Psychiatry and the Law 27, 101–13.
Mittenberg, W., Strauman, S. 2000. Diagnosis of mild head
injury and the postconcussion syndrome. Journal of
Head Trauma Rehabilitation 15, 783–91.
Mittenberg, W., DiGiulio, D.V., Perrin, S., Bass, A.E. 1992.
Symptoms following mild head injury: expectation
as aetiology. Journal of Neurology, Neurosurgery,
and Psychiatry 55, 200– 4.
Rosenfeld, B., Sands, S.A., Van Gorp, W.G. 2000. Have we
forgotten the base rate problem? Methodological issues
in the detection of distortion. Archives of Clinical
Neuropsychology 15, 349–59.
Sreenivasan, S., Eth, S., Kirkish, P., Garrick, T. (In press).
A practical method for the evaluation of exaggerated
symptoms among civil litigants. Journal of the
American Academy of Psychiatry and the Law.
Tombaugh, T.N. 1997. The Test of Memory Malingering
(TOMM) normative data from cognitively intact and
cognitively impaired individuals. Psychological
Assessment 9, 260–8.
Vallbhajosula, B., van Gorp, W.G. 2000. Post-Daubert
admissibility of scientific evidence on malingering of
cognitive deficits. Journal of the American Academy
of Psychiatry and the Law 29, 207–15.
Zielinski, J.J. 1994. Malingering and defensiveness in the
neuropsychological assessment of mild traumatic brain
injury. Clinical Psychology; Science and Practice
V1, Winter.

Psychiatric abuse in North America
ALFRED M. FREEDMAN AND ABRAHAM L. HALPERN
INTRODUCTION
Psychiatric abuse has been in the forefront of concern,
not only for psychiatrists but also for other mental health
professions and the general public. However, over the past
several decades this concern has been primarily focused
on the political abuse of psychiatry in regard to dissi-
dents in the former Soviet Union.
While not diminishing in the slightest the importance of
publicizing and opposing the misuse of psychiatry, too lit-
tle attention has been paid to the abuse of psychiatry in the
United States and Canada. It is much easier to be outraged
by events at a distance than to look at one’s own defects.
American psychiatry has not been oblivious to psychi-
atric abuse at home. In 1979, the American Psychiatric
Association (APA) established the Committee on Abuse
and Misuse of Psychiatry and Psychiatrists in the United
States, as a component of the Council on National Affairs.
This committee has been busy collecting and investi-
gating various matters of abuse, but most important, it
worked for many years preparing a document that would
define and delineate the misuse and abuse of psychiatry
in the United States, culminating in the following pos-
ition statement adopted by the APA in May, 1994:
The American Psychiatric Association supports the
use of psychiatric knowledge, practice and institu-
tions only for purposes consistent with ethical evalu-
ation and treatment, research, consultation, and
education. Abuse and misuse of psychiatry occur
when psychiatric knowledge, assessment, or practice
is used to further illegitimate organizational, social,
or political objects. (APA 1994)
Subsequently, a set of principles relating to identifica-
tion of abuse and misuse of psychiatry was approved by
the Board of Trustees (APA 1998a):
1 The use of psychiatric knowledge, practice and insti-
tutions is only for purposes consistent with ethical
evaluation and treatment, research consultation, and
78
education. Abuse and misuse of psychiatry occur when
psychiatric knowledge, assessment, or practice is used
to further morally illegitimate organizational, social,
or political objectives.
2 It is psychiatrists’ primary responsibility to use their
clinical skills and knowledge for the benefit of their
patients. External social, political, management and eco-
nomic forces should not be the primary consideration.
3 Psychiatrists shall not allow their professional opinions
to be inappropriately influenced by illegitimate outside
factors. It is essential for psychiatrists to consider bio-
psychosocial factors in their assessment of patients.
4 In certain situations (e.g., forensic evaluations, dis-
ability evaluations) the primary responsibility of a
psychiatrist may not be for the benefit of the evaluee
per se. The evaluee must be informed of the purpose
of the evaluation or service, and any lack of confiden-
tiality, as well as the reality that the psychiatrist may
not know how the information will be used. This
information may require repetition. The responsibil-
ity to provide clinically sound and scientifically based
consultation is still the case.
5 Psychiatrists shall always be mindful of patients’ rights.
In their role of treating psychiatrist, they should resist
and attempt to counteract forces interfering with
patient-focused, humane treatment. A psychiatrist
should not be a participant in a legally authorized
execution. Psychiatrists shall not detain or incarcerate
persons for political reasons, use medical knowledge
for interrogation, persuasion or torture, or provide
unsubstantiated diagnoses for use against political
dissidents, whistleblowers or others.
6 It is the psychiatrist’s responsibility when working in the
context of an organization or social or political environ-
ment to advocate for the mental health needs of the
community or population in which he/she is working.
7 Since confidentiality is critical to patient care, psychi-
atrists must be sure the information and/or records
they provide are sensitive to the mental health interests
of the persons and/or populations with whom they
742 Special clinical issues in forensic psychiatry
are working. It is important to release the least amount
of information possible to accomplish the desired
function.
8 All psychiatrists are encouraged to speak to egregious
issues which adversely affect them and/or the men-
tally ill, and to bring forward perceived misuses of
their function or role as psychiatrist for review by the
Committee on Abuse and Misuse of Psychiatry in the
U.S. and the Committee on International Abuse of
Psychiatry and Psychiatrists.
For the forensic psychiatrist, the issue of psychiatric abuse
is of prime importance. The dilemmas of forensic psych-
iatry in regard to the criminal justice system, the ability
to stand trial, the insanity defense, and testamentary
capacity, to name only a few, will be discussed later in this
chapter. These, at times, agonizing problems have been
recognized by the organization of forensic psychiatrists,
the American Academy of Psychiatry and the Law (AAPL
1987), as well as by individual publications. However, an
expanded role for forensic psychiatry would seem to be in
order. In this period of litigation, malpractice suits, crim-
inal sanctions against psychiatrists for sexual abuse, and a
whole variety of ethical dilemmas arising out of revolu-
tionary changes in reimbursement – with corporate medi-
cine and hospital practice compounded by economic
difficulty – psychiatrists and hospitals, when faced with
threats of suits or with actual suits, do not know where to
turn for advice or consultation. Too often the field is left
to lawyers who have limited sensitivity to the issues. Here
is a role for forensic psychiatrists who have the combin-
ation of clinical acumen and legal awareness that would be
of inestimable value to a psychiatrist or hospital (Halpern
2000). It is evident that there will be increasing demand
for individuals available for consultation and advice, and
this role could well be filled by forensic psychiatrists.
DEFINING ABUSE
What is psychiatric abuse? Among the dictionary defini-
tions of abuse, the following seem particularly relevant:
‘to put to a wrong use’; ‘to use for wrong purpose’; ‘to use
ill’; ‘to maltreat’; ‘to act injuriously to’; ‘to hurt’; and ‘to
dishonor.’ The key words here – the ones particularly
applicable to this discussion – would appear to be harm
and injury; thus, abuse consists of the misuse of psych-
iatry, causing harm and injury. Recall the penetrating
statement of Leon Eisenberg (1973, p. 1375):
The fact that psychiatry can be abused does not make
psychiatry an abuse. Scientists can be suborned, but
science remains essential to human welfare.
The overarching concept must be that psychiatry is an
essential and critical medical specialty whose goal is the
betterment and welfare of humanity. This concept is well
stated in the preamble to The Principles of Medical Ethics
of the American Psychiatric Association, which stresses
that a psychiatrist must ‘recognize responsibility not only
to patients but also to society, to other health professions
and to self ’ (APA 1998b). Many are concerned that this
rule emphasizes the dilemma of the psychiatrist in bal-
ancing multiple loyalties, and some even feel that adher-
ence to the preamble is impossible. Rather than implying
the impossibility of ethical practice on the part of psych-
iatrists, this statement only emphasizes the essential con-
flict in many of the ethical situations that exist and are
described here (Freedman 1978). In dealing with evil, the
situation is simple, but many real-life situations involve
two apparently conflicting rights. These are agonizing
problems that must be dealt with, since this is the very
nature of the psychiatrist’s and actually the physician’s
role. The conflict is exemplified in regard to confiden-
tiality where one is dealing with the individual’s right
to privacy versus the public’s right to know.
One might well ask, Who might cause harm to a
patient? Two sources must be considered. One is the
individual practitioner and the other is the institutions
of society including laws, the courts, legislative bodies,
the world of work, economic structures, schools, prisons,
and the military. One must then ask, Who are the recipi-
ents of such injury or harm? Obviously, the first and
principal recipient is the individual patient.
Second, the institutions of society may be harmed
and communities may suffer. When newspaper articles
exposed abusive care at the Brooklyn Kings County Psy-
chiatric Hospital in 1961, the hospital remained almost
empty for two months, but many families suffered from
the presence of disturbed or violent members in their
households whom they could not bear to see hospital-
ized at that institution. The community and the whole
mental health system suffered since the notion of psychi-
atric hospitals as ‘snake-pits’ was reinforced. Obviously,
this circumstance came about because there was actual
abuse of patients at the psychiatric hospital.
Third, one must consider the harm done to the pro-
fession of psychiatry, not in the sense of self-serving or
papering over abuse. If one psychiatrist abuses psych-
iatry, all psychiatrists suffer. But more important is the
effect on other psychiatric patients at that time as well as
in the future. Such revelations have a chilling effect on
those involved in treatment and particularly those who
might seek or feel the necessity of psychiatric treatment.
Discouraged from seeking treatment, the individual
patient will suffer harm, the profession will be injured,
and society in general will suffer.
PSYCHIATRIC ABUSE BY THE INDIVIDUAL
PRACTITIONER
In order to facilitate the discussion of abuse of psych-
iatry, the abuse by the individual practitioner is considered

first, and subsequently the abuse caused by the institu-
tions of society. Of course, in certain instances both will
be involved since the individual practitioner is part of
society and must adhere to certain laws and constraints.
No abuse of psychiatry has received as much atten-
tion in the profession and the media as sexual abuse. The
principles of medical ethics of the American Psychiatric
Association are unequivocal in regard to sexual relations
with a patient. In Section 2, Annotation 1, of the prin-
ciples (APA 1998b) there is the simple statement, ‘Sexual
activity with a current or former patient is unethical.’ A
significant group of APA members has expressed concern
about the sweeping rigidity of this ethical canon, and
efforts are being made to address valid exceptions. The
overriding concern in regard to sexual relations between
psychotherapist and patient can be seen in the recent
enactment of criminal sanctions against such behavior
in seven states, with a number of other states seriously
considering such legislation (Jorgenson, Randles, and
Strasburger 1991; Bisbing, Jorgenson, and Sutherland
1995). Although there appears to be a rising tide nation-
ally, there is no universal acceptance of criminal sanctions
as a solution, and the issue continues to be debated in
forensic psychiatric circles and state legislatures.
Confidentiality has been termed the critical issue of
the ethical behavior of psychiatrists and has been dubbed
the ruling ethic. Many physicians take the Hippocratic
Oath upon graduation from medical school:
Whatsoever I shall see or hear concerning the life of
men or even apart therefrom, which ought not to be
noised abroad, I will keep silence thereon, counting
such things as Holy secrets. (Adams 1939)
For psychiatrists, confidentiality is an overriding con-
cept of the highest priority. Without the assurance of
confidentiality, psychiatric practice would be severely
inhibited, since a patient must feel free to speak without
restraint, to reveal one’s most intimate thoughts, outrage-
ous fantasies, obscene dreams, violent and embarrassing
ruminations. It has been recognized that with the develop-
ment of third-party payments from the government or
private insurers and other new reimbursement pro-
cedures, confidentiality is often compromised (Freedman
1988). Psychiatrists have long been aware of the necessity
to breach confidentiality in the case of imminent serious
harm to another individual or the community. This has
been reinforced by the Tarasoff decision and elaborations
of it (Tarasoff v. Regents of the University of California 1976;
Mackay 1990). Again, necessity for reporting child abuse
under various state legislation also may involve negation
of confidentiality (Miller and Weinstock 1987).
The primacy of protecting communications by a
patient in therapy appears to have been given the ultimate
stamp of approval by the U.S. Supreme Court in Jaffee v.
Redmond (1996), which held that psychotherapists could
not be compelled to give testimony in federal court when
doing so would violate the confidences of their patients.
Psychiatric abuse in North America 743
Slovenko (1998, 2002) nevertheless cautions that excep-
tions to the ruling may well undermine the principle’s
lofty intentions. On the other hand, a recent decision by
a New York trial judge extended the Jaffee edict by declar-
ing that giving a Tarasoff warning does not permanently
abrogate the physician–patient privilege (People v. Robert
Bierenbaum 2000). Thus, a treating psychiatrist would not
be permitted to testify for the prosecution in a criminal
case merely because a warning had been given to an
intended victim. The judge went even further: his ruling
also held that patient-authorized conversations with
family members, where the conversations with the psych-
iatrist are necessary to further the objectives for which
the patient sought professional assistance, likewise do
not vitiate the physician–patient privilege. Two days later,
relying on Jaffee, the United States Court of Appeals for
the Sixth Circuit (United States v. Hayes 2000) decided
that there was not a dangerous patient privilege exception
to the federal psychotherapist–patient testimonial priv-
ilege; that is to say, a Tarasoff warning did not otherwise
constitute a waiver of the physician–patient privilege and
permit a psychiatrist to testify against his or her patient
when the patient is criminally charged with threatening
the life of the intended victim. (In that case the govern-
ment sought to prosecute a mentally ill individual for
making threats against a federal employee during several
psychotherapy sessions, threats about which the therapist
had warned the intended victim. The District Court had
suppressed testimony by the psychotherapist and subse-
quently dismissed the case. The Court of Appeals upheld
the District Court’s decision.)
Jaffee notwithstanding, psychiatrists should be aware
that legislation exists (Foreign Intelligence Surveillance
Act 1978) which permits government investigators to
conduct electronic surveillance and searches includ-
ing the recording of telephone conversations between
therapists and their patients (Danoff 2000). This per-
mission was recently given appellate court sanction in a
ruling that declared that the psychotherapist privilege is
‘evidentiary rather than constitutional in nature’ and
bars only testimony or evidence regarding privileged com-
munication, and that the government, therefore, was not
barred from making a derivative use of intercepted con-
versations between the suspect and her psychotherap-
ist to develop a FBI Behavioral Analysis Program Team
report that was used in structuring an undercover oper-
ation that led to the defendants’ capture (Squillacote v.
United States 2000).
It should also be noted that federal appellate courts
have ruled that great leeway can be granted law enforce-
ment agents in investigating allegations of criminal
conduct and that government misconduct must be
‘truly outrageous’ before due process considerations will
be implicated to prevent a conviction (United States
v. Kaminski 1983). ‘Artifice and stratagem may be
employed to catch those engaged in criminal enterprises’
(United States v. Sabatu 1989, citing the U.S. Supreme
744 Special clinical issues in forensic psychiatry
Court decision in Sorrells v. United States 1932). Indeed,
‘extensive government involvement in criminal activity,
without more, does not constitute the type of coer-
cion … or other egregious or outrageous conduct rising
to the level of a due process violation’ (United States v.
Dyman 1984). Although the cases cited do not involve
psychiatric interactions with patients, it is not unrea-
sonable for psychiatrists to fear that, in an attempt
to uncover criminal behavior, secret recording by law
enforcement agents of conversations between patients
and therapists would not be viewed by the courts as truly
outrageous conduct.
Widespread use of computers has increased oppor-
tunities to breach confidentiality (Aldrich and Turner
1978), and there are those who believe that in the face of
erosion of confidentiality all efforts to maintain it should
be abandoned (Siegler 1982). This would be a disservice
not only to a patient whose psychiatrist has breached con-
fidentiality but to the profession and other patients as well
as future patients. It is incumbent upon psychiatrists if
they wish to avoid the erosion of confidentiality to main-
tain and struggle for confidentiality. This issue was exem-
plified by two cases in California of Drs. Lifschutz and
Caesar (Bromberg 1979, pp. 393–5; Slovenko 1980), who
were ordered by the court to make the total record of a
patient available. Even though the patient in each instance
had waived confidentiality, these psychiatrists felt that it
would be a disservice to the patients in question, to other
psychiatric patients, and to psychotherapy in general, to
make these ‘holy secrets’ public. The two psychiatrists were
held in contempt of court, and each spent several week-
ends in jail until a compromise was reached: the records
would be reviewed by the judge, and only those portions
that were relevant to the case could be revealed.
In contrast to the cases just discussed, questionable
breaches of confidentiality occurred in two widely publi-
cized cases. In the first case, Dr. Martin Orne turned over
tapes and records of his former patient, Anne Sexton, the
Pulitzer prize-winning poet, to her biographer, Dr. Diane
Wood Middlebrook (Middlebrook 1991). Publication
of the biography precipitated widespread controversy
(Stanley 1991; Goldstein 1992a; Goldstein 1992b), with a
number of psychiatrists holding that the action may have
been legal, but was ethically questionable, particularly
since Dr. Orne had unhesitatingly turned over the tapes
and records to Dr. Middlebrook when they met, without
any attempt to defend confidentiality, for example, by
insisting on a court order. Apparently such a court order
had been threatened, but not carried through.
In a second case, Paul Alexander (1991) wrote a bio-
graphy of Sylvia Plath, likewise a distinguished poet, in
which a psychiatrist who had treated Sylvia Plath at
McLean Hospital in Belmont, Massachusetts, following
a suicide attempt, spoke freely and in great detail about
her former patient. Interestingly enough, when Paul
Alexander first met the psychiatrist, Ruth Tiffany
Barnhouse, he raised the question of confidentiality, and
she summarily dismissed it (Alexander 1992). Many who
discussed this case pointed out that the precedent had
already been set by Dr. Orne’s behavior in regard to Anne
Sexton, and therefore there was no restraint on such
revelation. Without struggling to maintain confidential-
ity, one can see such abuse proliferating without control.
There may be an ‘Orne precedent’ emerging.
Abuse of the psychiatrist’s role can also occur when the
psychiatrist is the consultant for a third party or organiza-
tion. In this situation, the patient may assume confiden-
tiality, though the information will be shared with a third
party or organization. If the limits of confidentiality and
the transmission of information to others have not been
explained in detail, then certainly the psychiatrist can be
accused of abuse. This matter is illustrated when a psych-
iatrist acts as a consultant on behalf of a third party
with serious implications for the examinee (Dietz, Davis,
and Harding 1985). Such examination may be related to
employment or may be requested for a student who has
been disrupting a classroom. Again, the person must be
fully informed of the limits to confidentiality and the fact
that information will be transmitted to the third party
that requested the consultation. In many respects, the
situation is reminiscent of the criteria for informed
consent prior to surgery or prescribing medication. It is
incumbent upon the psychiatrist not only to alert the
patient but also to make certain that he or she under-
stands and consents to the way in which his or her opin-
ion is to be utilized (Group for the Advancement of
Psychiatry 1991; Strasburger, Gutheil, and Brodsky 1997).
It is critical if a psychiatrist accepts the consultant’s
role that he or she have the skills and knowledge to evalu-
ate the case in order to make a sound report or to
give expert testimony. This is particularly important for
the forensic psychiatrist. Otherwise an abuse occurs, for
example, if a psychiatrist who has no training or experi-
ence in child and adolescent psychiatry passes clinical
judgment after examination of a child or an adolescent.
The psychiatrist must never venture into areas where his
or her competence may be in doubt (AAPL 1987).
In April 1987, a conference was held at the Hastings
Center in Briarcliff, New York, sponsored by the APA’s
Ethics Committee, on how the new mental health eco-
nomics impacts on ethics and behavior in psychiatric
practice (McDevitt, Freedman, and Holzberg 1988). There
is no question that the development of private and gov-
ernmental reimbursement has offered new opportunities
for the abuse of psychiatry through excessive, inappropri-
ate, or fraudulent charges (Towery and Sharfstein 1978).
Such abuse not only injures patients through unnecessary
procedures and hospitalization but it also besmirches the
entire profession; particularly since a disproportionate
number of psychiatrists have been involved in such fraudu-
lent cases of abuse, it is harmful to all psychiatrists. Since
such frauds and abuse have been uncovered, investigations
have proliferated that threaten confidentiality of psychi-
atric records (Moran 1990).

Investigators have often insisted on seeing complete
records rather than just verification of appointments
kept, as well as the length of such sessions. Psychiatrists
are often entrapped in situations in which they are not
aware of what is done with the records they keep. It is
incumbent upon every psychiatrist to learn who else
scrutinizes patients’ records, and to write up their notes
in anticipation of others reading the records. This is dis-
cussed further in the section on institutions, but it often
presents major conflict for the practitioner in a hospital.
A problem is looming on the horizon. New Medicare
rates for the elderly are considered by many psychiatrists
to be totally inadequate and therefore they plan not to
accept Medicare patients in the future, or in some
instances they plan to terminate treatment for already
existing patients who are on Medicare. This potential for
abuse has not yet been fully confronted.
INSTITUTIONAL ABUSE
In recent years special attention has been paid to the
abuse by institutions of the psychiatrist’s role for a variety
of reasons, which may include furthering organizational
objectives, monetary gain, and social control. These
institutional activities lie beyond the practitioner’s direct
control and must be distinguished from the previously
cited abuses that focus on the individual practitioner’s
autonomy. Yet there is often overlap and collusion. Some
institutional abuses are longstanding, such as misuse of
the psychiatrist’s role in prisons, the criminal justice sys-
tem in general, hospitals for the criminally insane, the
military, and education facilities. Others are of more
recent origin; their genesis lies essentially in the new
mental health economics as delineated in the above-
mentioned APA-Hastings Institute report (McDevitt,
Freedman, and Holzberg 1988).
The previous loose and liberal reimbursement has
now given way to lower rates and tighter accounting
that lead individuals and various institutions to devious
practices to maintain their profitability (Towery and
Sharfstein 1978). Also involved is the shift in occupa-
tional distribution in the health-industry complex. In the
earlier part of the 1900s, MDs made up the bulk of those
providing services, but as the years have gone by, more
and more non-MDs have entered the field and assumed
important roles (Statistical Abstracts 1991). The rise of
corporate medicine, chain hospitals, and health main-
tenance organizations (HMOs) has placed further con-
straints on the autonomy and influence of the individual
practitioner.
Psychiatrists are often confronted by a conflict of
loyalties because of institutional or social pressures that
make it difficult for the psychiatrist to provide ‘competent
medical service’ for the benefit of the patient (Freedman
1978). Thus, a psychiatrist may be in a double bind in a
Psychiatric abuse in North America 745
state hospital that is severely underfunded and under-
staffed where inadequate management and unsupervised
attendants result in abusive conditions. On the one hand,
is the psychiatrist justified in attempting to provide the
best possible care in a decidedly unfavorable situation
while doing his or her best to improve that situation? Or,
on the other hand, is it necessary for the psychiatrist to
withdraw from working in an institution where the best
possible care is prevented, and thereby no professional
care at all may be the consequence? To what extent is the
individual physician, if at all, guilty of unethical practice
and abuse of patients while working in such an unfavor-
able setting? Does the Nuremberg decision made at the
post-World War II trials of Nazi doctors guilty of criminal
experimentation, which holds the individual physician
responsible for his or her actions in spite of orders from
superiors, prevail also in a hospital? A state hospital must
conform with governmental imperatives.
However, another element enters with regard to
private psychiatric hospitals, namely, the profit motive.
Often these hospitals are parts of a corporate chain,
and in their bottom-line philosophy and responsibility
to stockholders, outrageous abuses have been reported
(Kerr 1991). These abuses include keeping patients in
hospitals unnecessarily until their insurance has been
exhausted, discharging patients prematurely or inappro-
priately when their insurance has expired, or ‘dumping’
patients on public hospitals; charging for unnecessary
services; charging for services that were never delivered,
and altering diagnosis to fit insurance coverage. Through-
out these allegations, reports of negligent and abusive
care are prominent. A particular concern is the frequency
with which the charges are made in regard to children
and adolescents, a concern that has brought about con-
gressional investigation.
All the questions of abuse and conflict of interest
cannot be mentioned here. Illustrative of the unresolved
issues is the Osheroff case, which has been described
and debated extensively (Klerman 1990; Stone 1990). A
doctor who was depressed was hospitalized at Chestnut
Lodge in Rockville, Maryland, a hospital then commit-
ted to psychoanalytic psychotherapeutic approaches.
Showing no improvement after many months, it is
alleged, he was transferred to another hospital where he
received antidepressant drugs and made a rapid recov-
ery. Chestnut Lodge was sued for causing harm to the
patient. The lower court supported this contention and
awarded damages of $250 000. However, the decision
remains unresolved, since upon appeal an out-of-court
settlement was reached. Two of the most prominent
psychiatrists, the late Gerald Klerman and Alan Stone,
debated this case in a series of articles (Klerman 1990;
Stone 1990). The former held that withholding the anti-
depressant drug was an abuse, while Dr. Stone main-
tained that the treatment and management had been
acceptable and ethical. This case is but one of many
examples of how concepts of abuse may be expanded in
746 Special clinical issues in forensic psychiatry
these litigious times, with profound alteration of the
economic base of the practice of medicine and rapidly
changing treatment modalities.
On January 31, 1983, CBS News ‘Sixty Minutes’
(Bradley 1983) reported a series of cases in which mem-
bers of the Armed Forces had not only been relieved from
duty but were actually committed to psychiatric insti-
tutions as a result of various whistle-blowing actions.
Two cases in particular were cited (Kennedy 1987). One
involved Sergeant Ulus Jorden, the first black to be enlisted
in the Pennsylvania Air National Guard, who was ordered
to undergo psychiatric evaluation after he filed a series
of complaints alleging misappropriation of funds. Jorden
refused the order and was dismissed from service and
appealed to the court for reinstatement. The TV program
revealed what has been true until quite recently, that fed-
eral civil service employees in all military departments, as
well as National Guard and reserve members, are subject
to orders from their supervisors to undergo mandatory
psychiatric evaluation. The program also emphasized that
according to present law, no evidence need be submitted
to justify such demands, and no matter how devastating
the consequences of an unfounded or malicious refer-
ral, the employee concerned has no recourse for damages
against the government or the supervisor.
Another case received more widespread publicity,
namely that of Carl Mollman, an Air Force pilot reserve
officer who was hospitalized for psychiatric examination
after he wrote memoranda calling attention to the haz-
ards in Air Force procedure, in violation of air safety
regulations during service in Vietnam (Bradley 1983).
After intensive work-up, he was released as free of mental
illness but was then referred to another psychiatrist with
a note that two generals and four colonels were inter-
ested in the psychiatrist making a diagnosis ensuring that
Mr. Mollman would not return to the Air Force. In both
these cases, it was evident that psychiatrists were made
aware of an adverse prejudgment by the chain of com-
mand and that the psychiatrist was expected to verify
the prejudgment. Significantly, in the case of Mollman,
no psychiatrist yielded to the pressures, but this is not
invariably the case. As a matter of fact, there have been
several instances in which psychiatrists whose licenses
had been removed or were in jeopardy in civilian life
obtained military appointments and were thus vulner-
able to pressures (Kennedy 1987).
With widespread publicity, modifications in military
psychiatry have been undertaken (American Psychiatric
Association 1990). However, serious problems still exist
that force military psychiatrists to act as double agents.
For example, military psychiatrists must not only report
patients who reveal they are homosexual but they need
not inform the service persons of this need for dis-
closure. As has been pointed out, it is essential for the
psychiatrist to learn what are the full circumstances lead-
ing to referral, to be fully aware of the rules and regula-
tions governing such directed mental health evaluations,
and then to explain the limits of the confidentiality by
using a Miranda approach if necessary to be sure of
informed consent.
Jails and prisons have been accused by psychiatric
organizations and individuals of ignoring Supreme Court
rulings that confirm a prisoner’s right to adequate mental
healthcare, but this form of abuse continues (Hastings
Center 1978). Part of the difficulty is similar to that
which exists in state hospitals where there is understaffing,
underfinancing, and problems of recruiting psychiatrists.
Aside from quality-of-care issues, other abuses and poten-
tials for abuse exist in the criminal justice system. These
include breaches of confidentiality, uses of psychiatric
diagnoses for stigmatization and labeling, use of clinical
information for improper purposes, lack of informed
consent, and the subpoenaing of psychiatrists’ records for
criminal investigation. The double bind of the forensic
psychiatrist is well outlined in the preamble to the Ethics
Guidelines for the Practice of Forensic Psychiatry of the
American Academy of Psychiatry and the Law (AAPL
1987):
The forensic psychiatrist practices this sub-specialty
at the interface of two professions, each of which is
concerned with human behavior, and each of which
has developed its own particular institutions, pro-
cedures, values and vocabulary. As a consequence,
the practice of forensic psychiatry entails inherent
potential for complications, conflicts, misunder-
standings and abuses.
Two cases decided by the U.S. Supreme Court strik-
ingly illuminate the problems of forensic psychiatrists.
One is the Louisiana case of Michael Owen Perry (Perry v.
Louisiana 1990; Heilbrun, Radelet, and Dvoskin 1992).
Perry, a death row inmate, was ordered to be maintained
on antipsychotic medication in order to negate the stric-
ture that a psychotic individual could not be executed.
Perry’s lawyer objected to the continuation of the medica-
tion. Here, the prison psychiatrist is caught between the
rights and interests of the individual and the power and
interests of the state. The state’s interest was in carrying
out a lawful death penalty verdict and thereby forcing
treatment on an unwilling patient (State v. Perry 1989).
What is the forensic psychiatrist who must administer the
medication to do in such an instance? The World Medical
Association (1975), the World Psychiatric Association
(1989, 1996), the American Medical Association (AMA
1993) and the American Psychiatric Association (APA
1980) have passed strict injunctions against participation
in execution. Can the psychiatrist refuse court orders to
medicate the patient? Some physicians have felt refusal to
medicate a psychotic patient on death row is also uneth-
ical since it leaves the prisoner possibly hallucinating and
self-destructive. Notwithstanding the prohibition against
executing a death row inmate who is ‘insane’ (Ford v.
Wainwright 1986), is it justifiable to execute an indi-
vidual who is in a state of what has been felicitously

termed ‘synthetic sanity’? (Halpern 1975; Gutheil and
Appelbaum 1983).
In the other case (Riggins v. Nevada 1992; Stone 1992),
David Riggins pleaded not guilty and not guilty by rea-
son of insanity to the charge of first-degree murder, but
the jury held that he was criminally responsible and he
was sentenced to death. The verdict was upheld by the
Nevada Supreme Court (Riggins v. State 1991). However,
it was revealed that a week after his arrest, Riggins com-
plained of auditory hallucinations and said he had been
previously treated successfully with thioridazine (Mellaril).
He was administered the Mellaril and improved mark-
edly, with relief from the hallucinations. Some months
before the trial, Riggins’ lawyer filed a motion to ter-
minate the medication, but this was opposed by the
state, ‘contending that the medication was necessary to
maintain Riggins’ competency to stand trial’ – placing
him in a state of ‘synthetic sanity.’ The judge ruled that
Riggins must be continued on medication, invoking
the power of his office over the lawyer’s objections. The
judge wanted to ensure that Riggins would remain com-
petent to stand trial. The U.S. Supreme Court, reversing
the Nevada Supreme Court’s holding, ruled that the
forcible, non-emergency administration of antipsychotic
drugs violated Riggins’ right to a fair trial (Riggins v.
Nevada 1992). (For a more detailed discussion of these
cases, see Chapter 53.)
Courts have varied in decisions. While some have
accepted the crucial importance of demeanor and have
ruled that defendants do have a constitutional right
to appear unmedicated, others insist on continuing
medication since otherwise the defendant would become
incompetent to stand trial. In the latter case, apparently,
testimony by a psychopharmacologist would be suffi-
cient if that person would describe what the effect of the
drug would be. The Riggins case was sent back to the state
court for further consideration, as was the Perry case.
However, in the latter case, the Louisiana Supreme Court
decided that an incompetent prisoner cannot be forced
to take drugs that might make him or her sane enough to
be executed (State v. Perry 1992). The reason is that such
action would violate the Louisiana Constitution by
infringing on privacy rights and protection against cruel
and unusual punishment.
This agonizing conflict for the forensic psychiatrist
has not been fully resolved even in psychiatric circles
(Radelet and Barnard 1986; Freedman and Halpern
1996). One way out of the dilemma has been suggested:
a psychotic individual on death row should be com-
muted to life imprisonment and then treated vigorously
(Appelbaum 1990). This solution, however, has not been
statutorily adopted by any state except Maryland (Md.
Code Ann. 1987).
An interesting twist upon individuals who might be
destined for execution has been the elaboration of what
has been alleged as false diagnosis. The best known of
such cases is that of Ezra Pound, who was to be tried after
Psychiatric abuse in North America 747
World War II as a traitor for his broadcasts attacking the
United States from Italy (Kuten 1991). It has been stated
that the director of St. Elizabeth’s Hospital where Pound
was confined elaborated a diagnosis of insanity in order
to protect Pound from execution. Similar statements
interestingly enough have been made in the former
Soviet Union in cases in which the diagnosis of schizo-
phrenia has been justified, even if not accurate, in order
to protect an individual in the bloody days of Stalin
(Bukovsky 1977). Another interesting variant took place
during the Vietnam War period when psychiatrists were
said to have made diagnoses that could not stand up to
scrutiny in order to help young men avoid the draft. Are
these cases of abuse of psychiatry?
CONCLUSION
A number of situations have been presented illustrating
instances of psychiatric abuse in the United States. The
citation of abuses has by no means been exhaustive,
although most of the significant areas have been men-
tioned. Individual psychiatrists may be abusers. However,
at the present time, there is a rising tide of abuses by
institutions directly or by compelling psychiatrists to
misuse their professional role. It is incumbent upon pro-
fessional organizations such as the American Academy
of Psychiatry and the Law and the American Psychiatric
Association to make every effort to bring an end to these
practices. Otherwise, we shall witness increasing govern-
ment intrusion and control, which has already happened
in Texas where abuses revealed in corporate for-profit
hospitals led to the involvement of the attorney general
of Texas and the U.S. Congress. Although the involve-
ment was necessary, the consequences may not be wholly
to the advantage of psychiatry and psychiatric patients.
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Actuarial methods for violence and
sex-offender risk assessments
SHOBA SREENIVASAN, PATRICIA KIRKISH, THOMAS GARRICK AND LINDA E. WEINBERGER
HISTORICAL ISSUES RELATED TO RISK
ASSESSMENT
Actuarial risk assessments of violence utilize statistically
derived factors that differentiate between those who
re-offend sexually or violently from those who will not. The
definitions of actuarial and clinical approaches have been
dichotomized by some researchers (Grove and Meehl 1996;
Quinsey et al. 1998) as an objective versus subjective assess-
ment. Others, such as Buchanan (1999) suggest that the
term ‘actuarial’ refers to any mathematical means of com-
bining information while clinical prediction is defined by
exclusion, as something other than actuarial. In either case,
the actuarial method is atheoretical and probabilistic. The
focus of this chapter is the application of actuarial rating
schemes in the assessment of sex offender and violence
recidivism.
DEVELOPMENT OF ACTUARIAL TOOLS
These tools generally involve prediction of reoccurrence
of the target behavior (sexual re-offense or violent recid-
ivism) within a specified time frame (e.g., five years, seven
years). Some of these tools contain solely static variables
(i.e., those which are fixed such as number of prior
offenses) and others identify both static and dynamic vari-
ables (i.e., those which are subject to intervention, such
as participation in treatment), which are designed to
assist clinicians in designing treatment or management
plans. Current actuarial tools are based upon archival
review of the files of violent and sex offenders, mostly
from Canadian and British samples (Hanson 1997;
Quinsey et al. 1998; Hanson and Thornton 1999).
Variables commonly used to predict general criminal
recidivism include having a history of juvenile and adult
criminal behavior, being young, being unmarried, having
79
criminal associates, and demonstrating antisocial atti-
tudes and values, and psychopathy (Quinsey et al. 1998).
For sexual recidivism, an additional variable includes
having a history of prior sex offenses. The follow-up
period refers to time in the community after release from
custody and prior to re-offense. The actuarial tools gen-
erally use a five- to ten-year follow-up study period. These
tools refer to the most recent offense as the ‘index’ offense,
and subsequent offenses as prior offenses. A statistical
procedure is used to determine which combination of
the variables best predicts violence or sex offender recid-
ivism. Survival analysis as a statistical method is also
employed to calculate risk of re-offense at each year post-
release. In this instance, ‘survival’ refers to the number of
individuals remaining in the community (i.e., not arrested
and/or incarcerated) at each year post-release. There is
not a general consensus about calculating the weights of
individual variables on the actuarial tools. The percent-
age of individuals in each rating level (e.g., 1, 2, 3, etc.)
who have committed acts of sexual or general violence
are calculated and used to assign a label of low, moderate
or high risk. High risk may be defined as over 50 per cent
of the individuals in that rating number who have
re-offended violently or sexually when released to the com-
munity. The tools are under constant revision informed
by research, but the general methodology as described
above remains the same, and there are others under devel-
opment (e.g., MNSOST-R; Epperson et al. 1998).
The Violence Risk Appraisal Guide (VRAG)
The VRAG (Quinsey et al. 1998) is an actuarial instru-
ment for the prediction of violent recidivism, and con-
siders both static and dynamic items. Additionally, it
includes the total Psychopathy Checklist (PCL-R) (Hare
1991) score. The PCL-R is a twenty-item checklist rated
by the clinician on the basis of interview and record
review information. Age, marital status, criminal history,
 Actuarial methods for violence and sex-offender risk assessments 751
performance on conditional release, victim injury and
gender, history of alcohol problems, psychiatric diagno-
sis of schizophrenia or a personality disorder, and devel-
opmental factors such as elementary school problems and
separation from parents prior to age sixteen, are included
items (Quinsey et al. 1998). The VRAG is noted for its
high inter-rater reliability among clinicians trained on
the scoring guidelines with an effect size of 0.76; that is,
among randomly drawn offenders, half of whom were
violently recidivistic and half of whom were not, the recid-
ivist would have a probability of 0.76 of having a higher
VRAG score than non-recidivists. VRAG scores are trans-
lated into levels of nine risk categories with ten-year
probability risk percentages ranging from 8 per cent to
100 per cent.
The Sex Offender Risk Assessment
Guide (SORAG)
The SORAG (Quinsey et al. 1998) is based upon a series
of statistically identified factors differentiating recidivists
from non-recidivists. Recidivism is defined as the num-
ber of convictions for sex offenses. As in the VRAG, the
SORAG items are divided into four general areas: devel-
opmental factors (identical to VRAG items); adult adjust-
ment; offense variables; and diagnostic information. Adult
adjustment variables include violent and non-violent
offense history, history of sex offenses, gender of victims,
and whether there were any child victims. Offense vari-
ables are defined as age at index offense (higher scores
assigned to younger perpetrators) and relationship of
victim to offender (stranger victims are weighted more
heavily). Diagnostic information is defined as weighing
the presence of a personality disorder, schizophrenia, and
deviant sexual preferences. In addition, diagnostic infor-
mation includes assigning weight to high PCL-R scores,
low IQ, attitudes supportive of crime, and attitudes that
are not prosocial or conventional (e.g., poor work his-
tory, drug abuse). SORAG scores are translated into
levels of nine risk categories with ten-year probability
risk percentages ranging from 9 per cent to 100 per cent
(Rice and Harris 1997).
Rapid Risk Assessment of Sex Offender
Recidivism (RRASOR)/Static-99
The RRASOR (Hanson 1997) represents an initial iter-
ation of an actuarial methodology to determine a sex
offender’s risk for sexual recidivism. The four factors in
the RRASOR are the number of prior sex offenses, age at
release, gender of victim, and relationship to the victim.
Hanson and Thornton’s Static-99 (Hanson and Thornton
1999) is an outgrowth of the RRASOR and a British actu-
arial instrument. It has ten items including those that
comprise the RRASOR as well as the elements of a sex
offense against a stranger, non-contact sexual offense,
marital status, non-sexual assault and the number of
convictions greater than four. The RRASOR (Hanson
1997) is comprised of four atheoretical factors derived
from the results of a factor analysis of seven follow-up
studies and one replication sample. The Static-99 is con-
sidered a work in progress with additional research antici-
pated to update and modify the tool. The Static-99 results
in a score ranging from 0 to 6, with sexual recidivism risk
calculated for a five-, ten-, and 15-year period. The
Static-99 can result in a score higher than 6, but there are
no corresponding risk levels for such values due to lim-
ited sample sizes in the highest risk range.
The Sex Offender Need Assessment
Rating (SONAR)
The SONAR was constructed by Hanson and Harris
(2000), and represents one scale in development to assess
change in risk that utilizes factors derived from a sample
of released sex-offenders, half of whom engaged in acts
resulting in charges and or convictions for sexual offenses.
The theoretical model underlying the SONAR is a social
cognitive model that predicts that sex offenders who are
recidivistic hold deviant schema or habitual patterns of
thought and action that facilitate offending. The scale
includes a rating of stable or long-term factors such as
intimacy deficits, negative social influences, attitudes tol-
erant of sex offending, sexual self-regulation, and general
self-regulation. Four acute factors are also rated: sub-
stance abuse; negative mood; anger; and victim access.
These acute factors were found to be less linked to long-
term sexual recidivism risk; rather, they are used to iden-
tify when the offender is at highest risk. Preliminary data
from Hanson and Harris (2000) indicate that the scale has
moderate predictive accuracy (r ⫽ 0.43, ROC area ⫽ 0.74)
in the ability to differentiate between released sex offend-
ers who are sexual recidivists versus non-recidivists. The
SONAR continued to distinguish between recidivists and
non-recidivists even after controlling for factors such as
age, IQ, and Static-99 scores. The scale has not been cross-
validated and is considered preliminary.
APPLICATION OF ACTUARIAL TOOLS
‘Risk assessment tools’ are rating scales that offer a basic
and gross estimate of potential of violence or sex offender
recidivism. They represent an attempt to standardize risk
assessments. Some researchers such as Quinsey et al. (1998)
and Grove and Meehl (1996) suggest that risk assessment
in clinical and forensic settings should be based solely
upon an actuarial rating. Others (Heilbrun 1997; Webster
et al. 1997a; Steadman et al. 2000; Sreenivasan et al. 2000)
suggest an integrated approach involving both actuarial
scales and clinical information. Two elements that should
be considered in the forensic application of actuarial tools
752 Special clinical issues in forensic psychiatry
are judicially defined parameters for risk assessment and
peer-approved methods and approaches.
Judicially defined parameters
and standards
Case law and legislation have charged mental health pro-
fessionals with the responsibility of identifying potentially
violent patients and protecting the public from them
(Tarasoff v. Regents of the University of California 1976;
Macintosh v. Milano 1979). Several jurisdictions have
codified such clinician responsibility (Weinberger,
Sreenivasan, and Markowitz 1998). Case law and legisla-
tion reaffirm the belief that clinicians are in a special
position to make violence risk assessment determinations
and can be held liable for their failure to do so. In some
cases, the clinician was held responsible for the violent
acts of a released psychiatric patient because of a failure
to conduct an adequate risk assessment (Petersen v. State
1983; Perreira v. State 1989). For the illustrative purpose
of risk assessment, the forensic clinician can be guided
by the Perreira Court’s definition of ‘reasonable care,’
that of a thorough evaluation of the patient’s mental
condition. Actuarial schemes used in isolation, i.e., with-
out integration of relevant clinical information, are
unlikely to meet judicially defined parameters of adequate
risk assessment.
Regarding the issues of actuarial schemes and sexually
violent predator assessments, In re Dennis Darol Linehan
(1999) offers a good example. Linehan, a 54-year-old
male, had a history of sexually deviant behavior including
rape, voyeurism, and attempted rape and murder of a
fourteen-year-old girl. In an attempt to commit Linehan in
Minnesota as a Sexually Dangerous Person, the Minnesota
Supreme Court addressed the issue of actuarial risk.
Linehan argued that, ‘actuarial methods of prediction
founded on base rate recidivism statistics are more accur-
ate than “clinical” predictions, and therefore violence
predictions must rely on the former’ (In re Dennis Darol
Linehan 1999, p. 189). A clinical psychologist for the
defense testified at Linehan’s initial commitment hearing
that, ‘multi-factor “clinical” predictions based on an
examiner’s experience and judgment are generally less
accurate than “actuarial” predictions founded on well-
tailored base rate statistics’ (In re Dennis Darol Linehan
1999, p. 177). This psychologist used a hypothetical base
rate of 18 per cent from a study of child molester recid-
ivism, and indicated that even if Linehan were to be in
that group of re-offending child molesters, the base rate
for recidivism was low, and clinical predictive accuracy
would thereby also be low. The Minnesota Supreme
Court rejected Linehan’s argument stating that he did
not provide any statute or precedent to support that
actuarial methods or base rates should be the sole
method employed. The Court approved the application
of a multi-factor risk analysis. The Court noted,‘contrary
to Linehan’s assertions, violence prediction under the
SDP Act, is not simply a matter for statisticians’ (In re
Dennis Darol Linehan 1999, p. 91).
In re Peter Kienitz (1999) offers another example,
involving the civil commitment of the appellant under
Wisconsin’s sexually violent person law. Kienitz had a
long history of sexual violence related to molesting
young boys. The Wisconsin Supreme Court concurred
with a lower court’s assessment that it was not obliged to
accept the weight assigned by the defense expert to the
VRAG score, and ‘rely solely on that score as a measure of
probability’ (In re Peter Kienitz 1999, p. 717). Rather, the
Court weighed in factors such as Kienitz’s twenty-five-
year criminal history, parole violations, poor response to
treatment and denial of need for treatment, and his pro-
curement of materials about children (factors not part of
the VRAG scale) as more relevant to risk than the weight
assigned to the VRAG score.
OVERPREDICTION, UNDERPREDICTION,
ACCURACY, AND BASE RATES
The problems associated with reliance solely on actuarial
measures for risk assessment can be illustrated using
the case of Jeffrey Dahmer, a known sex offender. Dahmer
(Moore-Litt 1992) was a Wisconsin serial killer and
necrophiliac who had seventeen victims by the time of
his arrest. Utilizing the RRASOR as an example of an
actuarial scheme for sex offender recidivism, Dahmer
would have received a score of 0 for prior offenses (none
prior to the conviction for the seventeen killings); a score
of 0 for age at release (older than age 25 years), a score
of 1 for having male victims, and a score of 1 for non-
related victims. The total RRASOR score of 2 would cor-
respond to a 14.2 per cent five-year risk for re-offense
and a 21.1 per cent ten-year risk for sexual re-offense. By
this method, Dahmer at the time of his conviction for the
seventeen sex killings would fall in a low range of risk for
recidivism. The clinical data, by contrast, tell another story.
In the sanity phase of the trial, psychiatric and psycho-
logical experts testified that Dahmer had a multiple decade
necrophiliac obsession that was resistant to his attempts
to control sexual deviancy (e.g., via attempts to substitute
mannequins for corpses). Obviously, a clinically salient
issue for Dahmer was not represented in the actuarial
tool: that of sexual deviant preoccupation. An additional
critical issue that was not part of the scale was behavior
not previously detected and subject to legal sanction. The
omission of important clinical variables, such as diag-
noses and behavior, are issues that remain relevant criti-
cisms of risk assessment based solely upon an actuarial
rating scale. Moreover, the expression of risk in numer-
ical form (e.g., 39 per cent risk for ten-year period, as in
the VRAG and RRASOR) may give the appearance of a
greater degree of accuracy and precision than in fact
exists (Gardner et al. 1996).
 Actuarial methods for violence and sex-offender risk assessments 753
PEER-APPROVED METHODS: ACTUARIAL
RISK ASSESSMENT AND CORRESPONDENCE
WITH OTHER AREAS OF EVIDENCE-BASED
MEDICINE
Evidence-based medicine integrates clinical decision-
making with available information from systematic
research (Sackett et al. 1998). Braitman and Davidkoff
(1996) provide a method for appraising a model for the
prediction of clinical states in individual patients on the
basis of medical actuarial risk models. Seven criteria for
assessing such models were posited, five of which con-
cerned the applicability of the model to a specific patient.
These authors suggest that for a specific patient, one neg-
ative response to any of these seven questions should dis-
qualify use of the model for that patient. This model can
be applied to the analysis of actuarial violence and sexual
violence rating tools. This methodology can be adopted
by forensic mental health clinicians to assess the applic-
ability of a sex offender or violence actuarial model to the
individual they are evaluating. The seven questions are pre-
sented below, with comments added to address limita-
tions in the existing actuarial rating schemes.
• Would the specific patient have been eligible to par-
ticipate in the study? There is limited utility in the
application of such tools to an individual whose
demographics do not fit the sample population. For
example, the Static-99, VRAG and SORAG actuarial
tools are based largely upon a restricted sample (e.g.,
Canadian prisoners or psychiatric patients). Use of
these rating scales in offenders with extensive gang
violence histories and many non-adjudicated offenses
may not be appropriate. In addition, the RRASOR
and Static-99 risk factors were identified on the basis
of a meta-analytic study (Hanson and Bussiere 1998)
of sixty-one data sets from 1943 to 1995 and spanning
several countries (Western Europe, Canada, U.S., and
others). The methodology in the compilation of these
data sets varies across a number of issues. There was
no uniform consensus in the definition of outcome;
e.g., whether sex offender recidivism referred to arrest
or conviction. The legal definition of sex crimes may
have changed through the years from 1943 to 1995,
as well as varying by region within a country and/or
nation. Such definitions of what constitutes recidi-
vism may not comport with the current legal standard
in a U.S. jurisdiction, and where even within the U.S.
crime laws vary from state to state. Therefore, prior to
using a specific rating scale, the clinician should ascer-
tain the degree to which the individual to be assessed
matches the rating scale development sample across
demographics and definition of recidivism outcome.
• Does the outcome in the study reflect the clinical out-
come to be predicted? Outcome variables in violence
and sex offender recidivism are not measured reliably.
That is, every instance of the actual behavior is not
counted; rather, the focus is on ‘caught’ behaviors.
There is general agreement that instances of detected
violent or sex offenses markedly underestimate the
true rate of recidivism (Abel et al. 1987; Hanson and
Bussiere 1998), thereby inherently raising the risk of
false negatives and seriously underestimating the risk
of a given individual. Clinicians utilizing an actuarial
rating scheme should be aware of the underestimate
of recidivism, and not rely exclusively on risk percent-
ages offered by a specific actuarial rating scheme.
• Are all the variables available for the patient on whom
the model is to be used? Many of the actuarial models
require information that may not be relevant to the
patient’s risk and documentation may not be avail-
able to rate a risk factor (e.g., PCL-R that requires
juvenile history).
• Will this outcome probability assist in patient care? The
actuarial models were derived for the purpose of mak-
ing absolute predictions of the behavior reoccurring
in a specific time period. Such models do not empha-
size the measurement of individual change based
upon treatment intervention or placement in com-
munity programs which might reduce risk (e.g., place-
ment in a residential drug program for the individual
with drug-related violence).
• Is the degree of uncertainty in the probability estimate
(i.e., confidence intervals) small enough for it to be use-
ful in making a prediction? Confidence intervals, posi-
tive predictive accuracy, negative predictive accuracy
are not typically specified in the actuarial violence or
sex offender risk models. Rather, the scores give an
estimate of the probability for re-offense over a speci-
fied period of time. Therefore, this element would be
difficult to assess with most of the actuarial models in
violence and sex-offender risk assessment.
• How well does the model fit the data: i.e., what is the
relationship between the model’s estimate and the actual
data for the subjects in the study? Sex offender and vio-
lence risk assessment are limited by the measurement
of violence or sex-offense recidivism based upon caught
behaviors, and for the higher-risk ranges, estimates
and not actual findings, or very small cell numbers.
It is therefore difficult to determine the relationship
between the model’s estimate of risk and the actual
behavior for subjects in the higher-risk range.
• Is the model more accurate than chance and traditional
methods, and does the model have follow-up data? The
actuarial risk model’s utility in violence and sex offender
risk appraisal is more accurate for subjects who are
highly consistent with the normative sample. This is
generally not the case when the more homogeneous
Canadian-based measures are applied to a multi-ethnic
and diverse U.S. population. Thus, there is reduced
applicability of the actuarial model when the individ-
ual’s risk factors do not reflect the study population
and are not addressed in the actuarial scheme.
754 Special clinical issues in forensic psychiatry
CONCLUSION
Actuarial rating scales can offer a gross approximate of
the base rate of the individual’s risk for acting out sexu-
ally or violently. These scales provide numerical risk per-
centage estimates, but the clinician is cautioned to use
such estimates as a guideline for approximate risk, e.g.,
low, moderate, or high. Expert testimony is evaluated
by judicial decision-makers using standards set forth in
Daubert (Daubert v. Merrill Dow 1993) and Frye (Frye
v. U.S. 1923) and for identifying and treating potentially
violent patients (Currie v. U.S. 1986; White v. U.S. 1986).
Risk assessment based upon a sole actuarial approach is
unlikely to meet this standard of a comprehensive assess-
ment. It should be noted that actuarial schemes are under
constant revision; therefore, the most current iteration
should be selected. The choice of which scheme to choose
when evaluating a specific individual should be based
upon the fit between the person and the measure’s
normed sample. Some rating schemes may not be appro-
priate, as the developmental sample may be too different
from the individual being assessed. In that circumstance,
the numerical estimate of risk may represent either an
over- or under-estimate. The most comprehensive clin-
ical assessment approach for risk is one which integrates
information provided by an appropriately selected actu-
arial risk scale, and clinical- and research-derived risk
markers for violence or sex offending. Several forensic
researchers and clinicians recommend a structured
approach to integrating clinical judgment into risk assess-
ments (Boer et al. 1997; Heilbrun 1997; Webster et al.
1997a; Sreenivasan et al. 2000; Steadman et al. 2000;
Thornton 2000). One guided approach begins with a risk
prediction provided by an actuarial risk scale, and then
considers empirically validated dynamic risk factors. The
HCR-20 (Historical Clinical Risk Management-20) and
SVR-20 (Sexual Violence Recidivism-20) offer guided
approaches to risk assessment. As noted by Webster et al.
(1997b), clinical judgment is an essential part of risk
assessment in these guided methods, and the elimination
of logically and theoretically derived clinical variables,
as occurs in actuarial tools, is unwarranted when the goal
is to identify and weigh the relative strengths and weak-
nesses of risk factors for a particular individual. In sum-
mary, clinicians have a legal and ethical responsibility
to identify and understand the specific operative factors
that place their clients at risk for violence. The use of
actuarial rating schemes represents one method by which
clinicians can conduct risk assessments, but sole reliance
upon such a method would not be supported by judicial
or peer parameters. While researchers have contributed
significantly to the identification of some general
factors highly associated with violent and sex-offender
recidivism, the responsibility of the clinician is to under-
stand how these factors are represented in the specific
individual.
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Hanson, R.K. 1997: The Development of a Brief Actuarial
Scale for Sexual Offense Recidivism (User Report
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2000. Actuarial risk assessment models: a review
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White v. U.S., 780 F.2d 97 (D.C. Cir 1986).

ERISA, healthcare and the courts
J. RICHARD CICCONE
On Labor Day 1974, President Gerald Ford signed the
Employee Retirement Income Security Act (ERISA) into
law (29 U.S.C. §§ 1001–1046). This law played a signifi-
cant role in the restructuring of healthcare, and made
healthcare reform more difficult. The purpose of this
chapter is to provide: (i) a brief background of the events
that led to enactment of the law; (ii) an overview of the
relationship of ERISA to healthcare plans; and (iii) a
review of some attempts to have the courts remedy
impediments to healthcare that managed care companies
constructed by using ERISA as a shield.
ERISA’S ORIGINS
In order to understand the development and structure of
ERISA and how it bears on healthcare, one must trace the
development of retirement plans, which was (and is) the
primary subject of ERISA. The U.S. pension system grew
rapidly during the 1940s and 1950s in part because
employers increased retirement benefits when wage
freezes were imposed during World War II. Participation
in pensions by union workers was boosted in 1948 when
the U.S. Court of Appeals (7th Circuit) held that pen-
sions are a form of remuneration for labor under the
National Labor Relations Act (Inland Steel Company v.
NLRB 1948). As a form of pay, pensions were a manda-
tory subject of collective bargaining and, therefore, an
issue employers could not avoid.
Regulations had failed to keep up with the growth of
pension assets and, in 1958, after learning of extensive
abuses in pension plans, Congress enacted the Welfare
Pension Plans Disclosure Act (29 U.S.C. §§ 301–308).
The law was an attempt to protect the pension assets of
employee participants and beneficiaries against com-
panies that would use the money for operating costs.
Despite the protections provided under this Disclosure
Act and other laws, abuses continued, and in March 1962
President Kennedy established the cabinet-level Commit-
tee on Corporate Pension Funds. While the Committee
80
was working, significant abuses of pension funds con-
tinued. In December 1963, the Studebaker automobile
plant in South Bend, Indiana shut down. When the plant
closed, the single-employer pension plan that had been
negotiated between the United Automobile Workers and
the Studebaker company did not have the funds to pro-
vide benefits for all its vested employees. Retirees and
workers who had reached age 60 years at the time of the
company’s closure received full lifetime annuities; how-
ever, about 4000 employees who were vested received lump
sum payments equal to only 15 per cent of the actuarial
value of their accrued pension.
In 1965, the Kennedy Committee on Corporate Pension
Funds issued a report that reaffirmed the value of private
pension programs and severely criticized government
regulation of pension plans for not providing adequate
protection of the pension funds. It recommended that to
ensure the continued development of the private pension
system, Congress should enact more substantive legisla-
tion to protect the pension plan participants and benefi-
ciaries.
Accounts of older workers losing pension benefits they
had earned over decades because of plan terminations,
lay-offs, or misuse (stealing) of pension funds captured
the media’s attention and rallied public support in favor
of reform. During a 1966 Senate hearing held in the wake
of the Studebaker incident and the Kennedy Committee,
Nolan Miller, a 60-year-old former Studebaker employee
who worked at the company for thirty-eight years, testi-
fied that the news that he did not reach the age of 60 in
time to be given a full pension was bitter news indeed
(Reilly 1994).
In May 1972, the Chairman of the Senate Labor and
Public Welfare Committee, Harrison Williams, and rank-
ing Minority Member Jacob Javits, introduced a bill
intended to remedy the problems with existing pension
plan law. In September 1972, the Senate Labor Committee
approved the bill. The bill, which as enacted became
ERISA, was designed to protect pension plans by establish-
ing national standards for funding and payment. To min-
imize administrative and financial burden of maintaining

a pension plan, ERISA would preempt all state laws on
the subject. This preemption permitted employers whose
operations crossed state lines to have one employee bene-
fit plan that applied to all its employees, despite the
employees being in various states. At the eleventh hour,
the House Committee extended ERISA’s scope to include
all employee benefit plans. This extended ERISA’s pre-
emption to state laws governing health plans as well as
pension plans. Preemption affects not just state statutes
but also common law remedies such as actions in tort,
of which malpractice is a subcategory.
ERISA’s primary purpose was to provide a scheme for
the protection of employees’ pension funds. As an after-
thought, all employee benefit plans were added to the
ERISA legislation. ERISA is a complicated, multi-faceted
law. Stone has written that ‘ERISA as it relates to health
benefits, presents an array of technical legal rules and dis-
tinctions that test the comprehension of seasoned attor-
neys’ (Stone 1999). ERISA came to have a profound effect
on the healthcare system, including the provision of inpa-
tient and outpatient psychiatric care.
ERISA PLANS
Definitions
Prior to describing ERISA’s impact on healthcare plans, it
is necessary first to understand those parts of the statute
that are especially relevant. ERISA restrictions, protections
and regulations apply generally to ERISA plans. ERISA
plans include ‘pension benefit plans’ and ‘welfare bene-
fit plans.’ Healthcare plans are considered welfare benefit
plans. The definition of welfare benefit plan includes the
following elements:
• It is established or maintained by an employer,
employee organization or both;
• It provides medical coverage; and
• The benefits may be provided through the purchase of
commercial insurance or a self-insurance fund.
ERISA has a number of components that affect healthcare
plans, hospitals and physicians. If a healthcare plan is a
‘governmental plan’ or ‘church plan’ it is not subject to
ERISA; therefore, ERISA applies only to private sector
healthcare plans. States cannot require ERISA self-insured
plans to cover particular benefits. ERISA provides com-
pensation for care that is wrongly denied, but does not
provide a remedy for beneficiaries who are harmed by a
prospective denial of benefits. Also of note is that ERISA
does not protect hospitals or physicians that provide care
from liability.
Remedies under ERISA
When a plan participant has a grievance, ERISA does
provide remedies, though such remedies are limited.
ERISA, healthcare and the courts 757
In particular, under Section 502(a)(1)(B) of ERISA,
plaintiffs may not recover extracontractual damages such
as those sought in typical malpractice claims. This
restriction has protected ERISA healthcare plans from
being sued for malpractice in state courts. A plaintiff who
has been denied benefits may not recover compensatory
damages. Even when the denial of benefits leads to disas-
trous consequences, the plaintiff may not be granted
punitive damages. This restriction may be reasonable for
a pension plan. For example, assume the pension plan
has $1000, and each of ten participants is to receive $100
dollars. If a participant is improperly denied the $100,
the remedy is to award the $100; to award more than the
$100 would be to take money away from other retirees. It
is unclear that this restriction is reasonable for a health-
care plan, where compensatory and punitive damages can
encourage the provision of non-negligent care.
ERISA usually preempts state claims for damages.
This preemption is based on two provisions in ERISA.
Section 502 describes complete preemption, and Section
514 describes conflict preemption. Each of these sections
is described below:
• Section 502: Complete Preemption: Complete preemp-
tion is derived directly from the statute and comes into
play when a participant attempts to bring a lawsuit
based on state law against an ERISA plan where the
subject matter of the claim is within the scope of
ERISA’s enforcement provision. The state law claim is
‘completely preempted,’ and the case is moved from
state court to Federal court. For example, a lawsuit
based on the denial of a benefit is completely preempted
and will be removed from state court to Federal court.
• Section 514: Conflict Preemption: Conflict preemp-
tion, derived from U.S. Supreme Court decisions, is at
issue when states try to regulate healthcare and their
efforts affect ERISA plans. The provisions of Section
514 of ERISA indicate Congress’ intent to have a uni-
form body of laws in order to minimize the burdens of
employers’ having to comply with conflicting directives
from state to state.
The preemption provisions found in Section 514 are often
referred to as the ‘preemption clause,’ the ‘saving clause’,
and the ‘deemer clause.’ The preemption clause, Section
514(a), is written broadly and provides that ERISA
‘supersedes any and all state laws insofar as they … relate
to any employee benefit plan.’ The phrase ‘relate to’ has
been interpreted broadly to include state laws that have
a connection or reference to an employee benefit plan.
The saving clause, Section 514(b)(2)(A), limits this ERISA
preemption stating that ‘any law of any state which regu-
lates insurance’ is ‘saved’ from preemption. However, the
deemer clause, Section 514(b)(2)(B), limits the saving
clause, stating that an employee benefit plan may not ‘be
deemed to be an insurance company … or to be engaged
in the business of insurance.’ Since employee benefit
plans may not be deemed to be insurers, and therefore
758 Special clinical issues in forensic psychiatry
are subject to the preemption clause, large employers
may escape state regulation by self-insuring (accumulating
funds for healthcare) rather than purchasing insurance
from state-regulated insurance companies. Of 163 million
employees and dependents with employer-based health
plans, 127 million are covered by ERISA plans, which can
be divided into two groups. Seventy-two million employ-
ees and dependents are covered by ERISA plans that
purchase insurance which follow state insurance law but
are not subject to liability. Fifty-five million employees
and dependents have ERISA plans that escape all state
regulation.
ERISA’s limited remedies and its preemption of state
remedies made it difficult to deal with ERISA’s negative
effects in the healthcare system and the provision of
healthcare. As will be discussed in the next sections,
states and patients have tried to use the courts to deal
with the perceived inequities and barriers to healthcare,
e.g., denial of benefits. These court cases have included
issues involving attempts to tax ERISA plans, to limit the
denial of benefits, to identify vicarious liability and to
challenge conflicts of interest that may exist.
SIGNIFICANT COURT CASES DEALING WITH
ERISA AND HEALTHCARE
ERISA must be understood in the context of market
forces. A discussion of the increasing cost of healthcare in
the 1960s and 1970s and the problems faced by U.S. cor-
porations that had to compete in a world economy against
foreign industries that had a lesser healthcare burden is
beyond the scope of this chapter. However, it is important
to note that managed care was seen as the answer to con-
taining healthcare costs, even if it meant decreasing cover-
age and lowering the standard of care. ERISA, as it turned
out, would allow this to happen beyond the control of
state laws and without risk of liability (Stone 1995).
Taxing ERISA plans
Some states have attempted to regulate healthcare through
taxation. Of special note is the case New York State
Conference of Blue Cross and Blue Shield Plans v. Travelers
Insurance Company, which was decided by the U.S.
Supreme Court in 1995. In the circumstances leading up
to this case, New York State had imposed a scheme of
variable surcharges on hospital bills. Commercial insurers
and private insurers, including self-insured plans, other
than the Blue Cross Blue Shield plans were assessed a sur-
charge of 13 per cent of the hospital bill. The proceeds
from this tax were kept by the treating hospital. A further
11 per cent surcharge was imposed and turned over to
the state’s general fund. In addition, HMOs were assessed
up to a 9 per cent surcharge, based on the number of
Medicaid patients enrolled, and were to pay this amount
to the State’s general fund. The Blue Cross Blue Shield
plans were exempted from these surcharges because their
open enrollment policies resulted in their having higher
medical costs than commercial insurers. Through this
system of surcharges, New York was shoring up the Blue
Cross Blue Shield plans, thereby assuring that through the
Blues open enrollment, marginal and high-risk individuals
would be able to obtain health insurance. HMOs were
encouraged to enroll Medicaid recipients at lower costs
to the State. Finally, the revenues retained by the hospitals
allowed them to shift the costs of care of uninsured or
underinsured patients to commercial insurers and HMOs.
Justice Souter, writing for a unanimous court in
Travelers, stated that the surcharges do not ‘relate to’
employee benefit plans within the meaning of ERISA’s
preemption provision and, therefore, are not preempted
by ERISA. The surcharges made the Blues less unattract-
ive as an insurance alternative and, therefore, had an
indirect economic effect on choices made by buyers. The
Supreme Court acknowledged that it is possible a state law
might have such an acute economic effect, even though
its effect was indirect, so as to effectively force an ERISA
plan to adopt certain substantive coverage or effectively
restrict its choice of insurers, which would lead to the
state law being preempted under Section 514. However,
the Court held that New York State’s statutory surcharges
did not force substantive coverage or restrict the choice
of insurers. Instead, the Court found that the surcharges
merely indirectly affected the relative price of insurance
policies, which is no different from many state laws in
areas that have traditionally been subject to local regula-
tion which Congress could not have intended to eliminate
through ERISA.
ERISA preemption litigation suits
Suits against ERISA plans asserting that decisions to limit
care or to deny benefits directly harmed the plaintiff have
failed. To illustrate this point, in Corcoran v. United
Healthcare, Inc. (1992), the plaintiffs brought a state law
malpractice claim against an ERISA plan alleging that
negligent utilization review resulted in the death of their
unborn child. During Florence Corcoran’s first pregnancy,
she was put on bed rest and fetal monitoring. When fetal
distress occurred, a Caesarean section was performed, and
her child survived. After Mrs. Corcoran became pregnant
again, her obstetrician recommended complete bed rest
and, later in the pregnancy, ordered hospitalization of
Mrs. Corcoran so that the fetus could be monitored around
the clock. However, her ERISA plan had instituted man-
aged care utilization review since her previous pregnancy.
While her same obstetrician recommended the same bed
rest and fetal monitoring, United Healthcare (‘United’)
determined that hospitalization was not necessary and
instead authorized the less expensive 10 hours per day of
home nursing care. Mrs. Corcoran was hospitalized from

October 3–12, 1989 but, because United had not precer-
tified her stay, she returned home. On October 25, 1989,
when the home care nurse was not on duty, the fetus
went into distress and died.
In Corcoran, the United States Court of Appeals, Fifth
Circuit, noted that although United did indeed make
medical decisions and gives medical advice, ‘it does so in
the context of making a determination about the avail-
ability of benefits under the plan.’ Thus, the court ruled
that Section 514 of ERISA preempted a state court mal-
practice action, and Section 502 of ERISA did not com-
pensate a plaintiff for damages. The plaintiffs, who alleged
that coverage decisions were wrongly made, were limited
to recovery of their contractual benefits as provided in
Section 502 and therefore were not permitted damages for
emotional distress.
Theory of vicarious liability and managed
care entities
There have been many attempts to sue managed-care
entities on the basis of state law theories of vicarious liabil-
ity. The doctrine of ‘ostensible agency’ has been a part of
vicarious liability in many jurisdictions; this doctrine
imposes liability if a reasonable person would conclude
that the clinician is an employee or agent of the healthcare
facility even if they are not. For example, healthcare plans
that direct patients to a list of preferred providers are
closed panel HMOs and presumably would meet the
requirements for vicarious liability in many states.
In Dukes v. U.S. Healthcare (1995), the United States
Court of Appeals, Third Circuit, ruled that a vicarious
liability action against an HMO did not fall within the
scope of Section 502 of ERISA. The Dukes case was a con-
solidation of two cases filed in state court against HMOs
organized by U.S. Healthcare. Each of the two consoli-
dated cases alleged medical malpractice of HMO-
affiliated hospitals and medical personnel. In the Dukes
case, Darryl Dukes’ primary care physician discovered a
problem with Mr. Dukes’ ears. Surgery was performed and
Mr. Dukes was given a prescription for blood studies.
However, when Mr. Dukes gave the prescription to the
hospital’s laboratory, the hospital refused to perform the
blood studies for a reason not discussed in the record.
The following day, Mr. Dukes saw another physician
who also ordered a blood test, which was performed.
However, Mr. Dukes’ condition continued to worsen, and
he died. At the time of his death, Mr. Dukes’ blood sugar
level was very high – a condition that allegedly would
have been found through a timely blood test.
Mr. Dukes’ wife brought suit in state court alleging
medical malpractice, among other claims. The HMO
removed the case to federal court based on the HMO’s
being part of an ERISA plan, and the theory that Mrs.
Dukes’ claims ‘relate to’ a welfare plan and are therefore
preempted under Section 514 of ERISA. Mrs. Dukes
ERISA, healthcare and the courts 759
moved that the case be remanded to state court, and
the HMO moved that it be dismissed. The district court
dismissed Mrs. Dukes’ claims against the HMO and
remanded to state court the claims against other defen-
dants that Mrs. Dukes had brought.
The Third Circuit found that there was ‘no claim that
the plans erroneously withheld benefits.’ The Dukes’ court
noted ‘the plaintiffs … complain about the low quality
of the medical treatment that they actually received and
argued that U.S. Health Care HMO should be held liable
under agency and negligence principles.’ Yet, Congress
did not create ERISA Section 502 as a remedy for medical
malpractice. The net result of Dukes was that the Third
Circuit returned the lawsuit to state court for trial.
However, the Third Circuit did not reach the question of
whether Section 514 of ERISA would preempt the mal-
practice actions in the state courts. The Dukes case was
ultimately settled out of court.
ERISA fiduciary duties
As stated above, ERISA does not protect from liability
doctors or hospitals that provide care to patients. ERISA
insulates from liability those who make benefit determi-
nations even when they depart from accepted medical
standards of care. Pegram v. Herdrich (1999) deals with the
application of ERISA fiduciary duties to HMO decisions
about what care is needed and, therefore, what will be
paid for.
In March 1991, Cynthia Herdrich, a part-time legal
secretary experienced pain in her lower abdomen that
she thought might be appendicitis. She went to see Dr. Lori
Pegram, a physician at her managed-care HMO, Carle
Care in Bloomington, Illinois. Six days later, Dr. Pegram
identified a 6 ⫻ 8 centimeter inflamed mass in Herdrich’s
abdomen. Dr. Pegram did not order an ultrasound at a
local hospital, but instead referred Herdrich to a facility
staffed by Carle Care, which was more than 50 miles away
and could not perform the ultrasound for eight days.
Before the eight days elapsed, Herdrich’s appendix rup-
tured causing peritonitis that required emergency surgery.
Herdrich sued Dr. Pegram and Carle Care in state court
for medical malpractice, and charged that the tests were
delayed because the plan’s doctors had financial incen-
tives to hold costs down. Carle Care was providing health-
care services as part of an ERISA plan. Carle Care and
Dr. Pegram asserted that ERISA preempted the two counts
of state law fraud and moved the case to federal court.
Herdrich alleged that provision of medical services under
the terms of the Carle Care HMO – rewarding its phys-
ician owners for limiting medical care – entailed a breach
of its ERISA fiduciary duty, since these terms created an
incentive to make decisions in the physicians’ self-interest
rather than the exclusive interest of plan participants.
The original malpractice counts were tried by a jury in
state court, and Ms. Herdrich prevailed on both, receiving
760 Special clinical issues in forensic psychiatry
a total of $35 000 in damages. A Federal District Court
rejected her ERISA claim that the HMO had breached
its fiduciary duty. A three-judge panel of the U.S. Court
of Appeals for the Seventh Circuit voted two to one that
when HMO physicians delay providing needed medical
treatment to increase their bonus, they may breach a
fiduciary duty, an impermissible conflict of interest. The
full Appeals Court declined to review the three-judge
panel’s ruling. The refusal to review the decision en banc
was appealed to the U.S. Supreme Court. The U.S. Supreme
Court granted certiori.
The Pegram suit challenged the common type of ‘mixed’
eligibility determination. Mixed eligibility decisions are
those that involve elements of both ‘eligibility decisions’
(whether the ERISA plan covers a particular condition or
course of treatment) and ‘treatment decisions’ (the appro-
priate medical response to the patient’s condition).
With this important healthcare case – one that could
have a direct effect on the provision of care to psychiatric
patients – coming before the U.S. Supreme Court, the
American Psychiatric Association (APA) decided to write
an amicus brief. The APA reviewed the trade-off between
ERISA coverage and state law coverage. In general, if a
particular matter is subject to ERISA, then it is not subject
to state law; however, liability under state law (with dam-
ages) provides a stronger remedy because ERISA dam-
ages only allow recovery of the cost of the denied benefit.
The APA brief stressed two points: (i) the real harm
that can be caused by certain kinds of incentives to with-
hold or delay or re-direct treatment; and (ii) the need for
such incentives to be subject to the same legal coverage
whether under ERISA or state law. The theme of the ami-
cus brief was that if state law does not apply, then ERISA
must apply so that no gap in legal coverage results.
The Supreme Court heard oral argument on the case in
February 2000 and issued its opinion in June 2000. The
Supreme Court held unanimously in favor of the HMO.
Justice Souter wrote,‘no HMO organization could survive
without some incentive connecting physician reward
with treatment rationing.’ The Supreme Court held that
ERISA duties do not apply to the decisions challenged,
since Congress did not mean for mixed determinations
to be ERISA fiduciary decisions. The Supreme Court did
not say, however, what limits, if any, there are on the appli-
cation of state law to HMO structures and the harm caused
by the mixed determinations made by ERISA plans. This
critical issue will now be played out in the state courts.
Rather than resulting in a major setback for those trying
to hold managed care accountable for its mistreatment
of patients, Pegram contained language that some viewed
as potentially helpful to patients. The Supreme Court’s
opinion in Pegram indicated that it does not believe that
Congress, in passing ERISA, ever intended to supplant state
medical malpractice laws. But Pegram did not address the
accountability issue and it may have opened the door to
state courts holding managed care companies account-
able for their negligent medical necessity determinations.
CONCLUSION
When ERISA was passed to protect employee pensions
and benefits, few, if any, could have foreseen that ERISA
preemption and limited remedies would allow managed
care companies to reduce professional standards of care
while protecting the managed care company from liabil-
ity. It is ironic that a law passed to protect the rights of
employees has been used to deny patients who have been
damaged appropriate recourse and encourages managed
care companies to deny care, confident that they are legally
beyond reach.
The courts have yielded some decisions that address
the inequities and by permitting certain suits against
managed care companies to succeed. The Pegram deci-
sion appears to open the road to testing, in state courts,
a number of legal theories regarding managed care liabil-
ity. While the courts hold some promise, a more efficient
route may be for Congress to pass legislation amending
ERISA. What form the changes to ERISA take and whether
the political will to pass such legislation can be found are
questions that remain to be answered.
Acknowledgment
The author wishes to thank Louis M. Ciccone, Esq. for his
assistance.
REFERENCES
29 U.S.C. §§ 1001–1046.
29 U.S.C. §§ 301–308.
Corcoran v. United Healthcare, Inc., 965 F.2d 1321
(5th Circuit 1992) cert. denied 506 US 1033 (1992).
Dukes v. U.S. Healthcare, 57 F.3d 350 (3rd Circuit 1995).
Inland Steel Company v. NLRB, 170 F.2d 247 (7th Circuit
1948) cert. denied 336 U.S. 960 (1949).
New York State Conference of Blue Cross and Blue Shield
Plans et al. v. Travelers Insurance Company et al.,
514 U.S. 645 (1995).
Pegram v. Herdrich, 530 U.S. 211 (1999).
Reilly, M.M. 1994. ERISA 1974–1994: Twenty Years of
Pension Reform and Beyond. Tax Notes, November 7,
pp. 749–50.
Stone, A.A. 1995. Paradigms, preemptions and stages:
understanding the transformation of American
psychiatry by managed care. International
Journal of Psychiatry 18, 353–87.
Stone, A.A. 1999. Managed Care, Liability and ERISA.
Psychiatric Clinics of North America 22, 17–29.
 8
PART

Basic issues in law

81 The philosophy of law and the foundations (sources) of law 763

Laurence R. Tancredi and Robert Lloyd Goldstein

82 The court system and the legislative process 769

Robert Lloyd Goldstein

83 A model of constitutional adjudication: the equal protection doctrine 774

Robert Lloyd Goldstein

84 An introduction to tort law 780

Daniel W. Shuman and Michael Heinlen

85 An introduction to civil procedure 789

Robert Lloyd Goldstein

86 An introduction to criminal procedure 796

Harvey M. Stone, Katherine Oberlies O’Leary and Robert Lloyd Goldstein

87 Punishment 804
Russell Stetler and Robert Lloyd Goldstein

88 Legal research on the Web 811

Peter Ash
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The philosophy of law and the foundations
(sources) of law
LAURENCE R. TANCREDI AND ROBERT LLOYD GOLDSTEIN
INTRODUCTION
An appreciation of the basic concepts of legal philosophy
will serve to enhance the forensic psychiatrist’s under-
standing of the history, development and purposes of the
legal institutions and practices encountered at the inter-
face between psychiatry and the law. This process of
exploring and charting the terra incognita of the law is
bound to promote a greater degree of intellectual stimu-
lation and satisfaction for the forensic specialist, who
applies psychiatric expertise to a rather circumscribed
complex of issues that arise within the context of a sys-
tem whose conventions and traditions not infrequently
may seem alien and mysterious to the non-lawyer.
The philosophy of law applies the discipline of philoso-
phy to study the issues and subject matter raised by the
existence, nature, and practice of law. This cursory over-
view of the subject is intended as an introduction for the
forensic psychiatrist and does not pretend to address the
full scope of legal philosophy, dating back ‘twenty-four
hundred years – from the Greek thinkers of the fifth cen-
tury B.C. who asked whether right was right by nature or
only by enactment and convention, to the social philoso-
phers of today, who seek the ends, the ethical basis and
the enduring principles of social control.’ (Pound 1954).
The central problem of legal philosophy, simply
stated, is ‘what is law?’ The first step in grappling with
this question involves speculation on the socio-cultural
antecedents for rules and regulations from which law
originates. Before formal rules or laws had been enunci-
ated and people were accorded privileged status in the
community as ‘judges’ of others, even the most primitive
societies had norms that evolved from the particular needs
of that society. On the most simplistic level, revenge plays
a major role in creating the norms in a society. The
instinct of an aggrieved or injured party to take revenge
and the enforcing of that instinct serve as the basis of
81
customary norms that underlie the civil and criminal law
of more complex societies. With more complex inter-
relationships among the people in a community, norms
developed and resulted in codifications in law, regulations
and systematized mechanisms, such as courts, judges and
juries for resolving conflicts (Elliott 1985).
The analysis of the concept of law, the attempt to elu-
cidate the nature of the law, has a long and honorable
history over the ages. Dworkin (1990) states that the
concept of law has three different facets:
1 Law that exists as a distinct type of social institution,
presupposing certain political attitudes and principles
of legitimacy and morality.
2 Laws, or rules of law, distinct from other ‘law-like’
standards (e.g., conventions, taboos, customs, mores,
moral precepts, etc.), with a particular type of pedigree,
having been enacted or developed within a pre-existing
legal institution within the particular society.
3 The law, or propositions of law, which declares certain
relationships among people, especially relationships of
rights, duties and powers. Generally, propositions of
law attempt to correctly describe the content of rules
of law, whose existence they presuppose.
Golding (1975) offers a lucid and concise analysis of the
elements of a legal system within a society. He attempts
to answer the question of what it means to say that a legal
system exists in S (any given society). He proposes that a
legal system exists in S is true if:
1 There are laws in S.
2 There exists in S an agency for making and changing
the laws.
3 There exists in S an agency for determining infractions
of the laws.
4 There exists in S an agency for enforcing the laws.
5 There exists in S an agency for settling disputes between
individuals.
764 Basic issues in law
Golding’s five conditions set forth the general conditions
for all legal systems. The first condition, that is, the exist-
ence of laws, is a necessary element of any society claim-
ing to have a legal system. It is inconceivable to have a
‘lawless’ legal system. Golding classifies conditions (2) to
(5) as jural agencies, and concludes that a society possesses
a sufficient degree of jural complexity (i.e., it permits us
to assert that it has a legal system) if it has both a set of
laws and any two of the four enumerated jural agencies.
Jural agencies are viewed in terms of the type of jural
activities they perform. In the course of analyzing these
terms and concepts, Golding offers an example taken
from Kelsen (a well-known legal philosopher):
Suppose that we come across two separate cases of
one man killing another. Suppose further that in all
behavioral and psychological respects the two acts
are perfectly alike: each actor, with venom in his
heart, kills his enemy with a sword. Now, it does not
follow that there can be no difference between the
two cases; in fact, one is a pure case of murder, while
the other is not. This is possible because one of the
killers (the latter) is the state executioner who is
carrying out the sentence of a court. His act is the act
of an official – he is a jural agent – acting in an offi-
cial capacity, and it is an instance of a jural activity.
(Golding 1975, p. 22)
Jural agents have an authoritative status within a soci-
ety to carry out appropriate jural activities (e.g., settling
a dispute, making or changing a law, enforcing a law).
Laws of competence or power-delegating laws regulate
and establish when a particular jural agent is acting in an
appropriate official capacity. The authoritative status of
the society’s jural agencies and the jural acts they per-
form derive from certain characteristics or qualities
inherent in its laws: its laws are perceived as valid both
behaviorally and psychologically (i.e., most members of
the society conform their behavior to the rules or laws
most of the time and view them as normative guides to
action). Laws are binding on a society when they are
enforced (by sanctions), when they are recognized as
binding because they are legitimate (i.e., enacted in
accordance with the formal procedures that have been
established for making laws in the society), and when
they are perceived as imposing a moral obligation or
duty to obey them.
THEORIES OF LAW
Law serves as a device for social control, yet differs from
other methods of social control, for example, mere force
or morality (Murphy and Coleman 1990). The forensic
psychiatrist should be familiar with the two main tradi-
tions in legal philosophy: natural law theory and legal
positivism.
NATURAL LAW
According to the theory of natural law, legal validity
requires a corresponding moral validity as an absolute
logical and conceptual prerequisite. At the very least, laws
must be morally permissible. The classical version of nat-
ural law theory dates back to the ancient Greeks and
their doctrine of the Logos, the invisible pattern or princi-
ple that governed the transactions of the cosmic order.
In Summa Theologiae, St. Thomas Aquinas emphasized
the essence of natural law theory:
As Augustine says that which is not just seems to be
no law at all. Hence the force of a law depends on the
extent of its justice … . Every human law has just so
much of the nature of law as it is derived from the law
of nature. But if at any point it departs from the law
of nature, it is no longer a law but a perversion of
law. (Aquinas 1954, p. 784)
According to Aquinas, natural law is ‘the participation
of the eternal law (i.e., the Divine law for the governance
of the universe) in the rational creature’ (Aquinas 1954,
p. 787). Lawmaking is grounded on reason in order to
promote the common good of the community. One is
obligated to obey the law (which has a coercive force,
backed up by sanctions) not because of the threat of
force, but only under circumstances when the content
per se of the law is itself moral. The eternal verities of the
moral order, expressed as a part of the order of nature
in the view of medieval Christian theology, provide the
rationale for laws and their attendant legal obligations.
Natural law has often been associated with legal formal-
ism, though legal positivism also has its adherents to
formalism (Posner 1990, pp. 11–34). Legal formalism
advocates the existence of permanent principles of law that
are essentially unchanging and embodied in judicial deci-
sions, and the objective of legal examination or reason-
ing is to interpret the opinions to uncover the underlying
principles. Formalism contains a type of scientism which
allows for inductive reasoning as an exact inquiry and
emphasizes the relationship between ideas, even separate
from life or the world of fact. The contrasting approach
to law which emerged from American legal thinking and
has been frequently associated with Legal Positivism is
Legal Realism. This movement includes legal giants to a
large extent, such as Cardozo and Holmes. The Realists
were pragmatic. They focused more on the ends to be
achieved by law. For example, Cardozo saw the emphasis
of law to be the ‘welfare of society.’ (Cardozo 1921,
pp. 64–6). Hence, legal rules were not seen as immutable,
but rather as instrumental and, therefore, revisable. When
they cease to function for the broader end, they are to be
obliterated.
Contemporary legal philosophers have managed to
carry on the tradition of natural law theory, albeit refor-
mulated in the more acceptable idiom of our own age,
 The philosophy of law and the foundations (sources) of law 765
divested of the metaphysical and theological trappings of
the classical natural law system of Aquinas. Hart (1961)
articulates a ‘minimum content’ theory of natural law,
which he views as the ‘core of good sense’ in natural law
theory. Because society is concerned with the survival in
proximity of its members (it is not a ‘suicide club’), nat-
ural law provides a meeting ground for the minimal over-
lap between morality and law that serves this aim. The
nature of the human condition (e.g., that humans are vul-
nerable to harm, limited in their powers of self-control
and foresight, limited in their altruism, and by necessity
attempting to cooperate in order to survive in a world of
scarce, limited resources) mandates that the major social
institutions of law and morality will overlap somewhat in
dealing with these basic human concerns.
Fuller (1964) has written about legal systems and the
central importance of ‘the internal morality of the law.’
In order to qualify as a legitimate legal system, the over-
whelming majority of its rules must be seen to satisfy pro-
cedural demands of a moral nature, compatible with justice
and fairness, for example, treating ‘like cases like,’ not
applying rules after the fact, giving fair notice, and impar-
tially enforcing the rules. Fuller wrote extensively about the
legal pathology inherent in Nazi Germany, where the entire
system of secret, arbitrary laws, based on the whims of
those in power, failed to meet the minimal standards of
morality that make law possible. Fuller’s approach focuses
on the moral requirements of formal legal procedure only,
and imposes no moral limitations on the content of laws.
Dworkin (1977) has advanced a theory of judicial
decision making, the ‘rights thesis,’ which stands for the
proposition that principled judicial action involves a
search for the right answer to the question ‘who has the
right to win?’ Protection of rights that are based on the
moral values of our legal order would outweigh utilitar-
ian considerations of policy or the collective welfare. In
arguing that Japanese-Americans had a right not to be
interned after the attack on Pearl Harbor, Dworkin writes:
Individual rights are political trumps held by individ-
uals. Individuals have rights when, for some reason, a
collective goal is not a sufficient justification for
imposing some loss or injury upon them. (Dworkin
1977, p. xi)
LEGAL POSITIVISM
Justinian’s Digest sets forth an early version of legal posi-
tivism in admirably pithy terms: ‘what pleases the Prince
has the force of law.’ Legal positivism derives its name
from the fact that ‘positive law’ is posited by human
authority. In other words, whatever law is enacted by the
jural agency set up to make and change the laws of society
constitutes the valid law. The nineteenth-century English
legal philosopher John Austin is generally regarded as the
father of legal positivism. Rejecting natural law theory
and its essential connection between law and morality,
Austin (1954) held that ‘the existence of law is one thing;
its merit or demerit is another.’
Austin’s theory of law is often referred to as the com-
mand theory: the command of the sovereign (or supreme
political authority) constitutes the law governing a given
society. The sovereign is defined as that individual (or
group) who receives the obeisance of the society on a
habitual basis and who in turn is not in the habit of obey-
ing others in the society. Once a law has the imprimatur
of the sovereign, indicating the will or desire to be obeyed,
there is a non-optional condition imposed in the form of
a legal duty or obligation. The law is a coercive device for
social control, a command backed by a threat to enforce
compliance (whether or not the threatened sanction is
actually carried out). Punitive sanctions, in the criminal
law, entail punishment by the appropriate jural agency.
Privative sanctions, in the civil law, deprive the individ-
ual of the state’s jural enforcement authority, regarding
transactions such as making a will, if he or she fails to fol-
low the relevant legal rules.
The command of the sovereign is the legitimate law of
the society in question. The pedigree test for legal validity,
according to Austin, is simply that the law’s enactment
can be traced to the sovereign whose actions define legal-
ity for that society. Hart (1961) significantly refines
Austin’s ‘command-of-a-sovereign’ model of the law by
emphasizing the importance of overall legal systems and
legal rules (e.g., a pedigree test that defines legal validity
for a particular society by specifying that laws must be
enacted according to agreed-upon rules for generating
binding laws). Hart (1961) further distinguishes between
primary rules, which are the rules that impose legal duties
and obligations on individuals, and secondary rules,
which are ‘rules about rules.’ The secondary rules involve
the primary rules themselves, how to recognize them (i.e.,
how to determine if they possess the proper pedigree to
constitute a valid law), how to initiate, modify, or repeal
them altogether (e.g., by establishment of legislatures), how
to determine conclusively whether they have been violated,
and how to settle legal disputes (e.g., through the establish-
ment of courts and rules of adjudication). A succinct state-
ment of Hart’s theory of the law is that ‘Law [is best
regarded] as a system of primary and secondary rules’
(Hart 1961, p. 107). Many regard Hart’s work as the defini-
tive exposition of the philosophical question ‘what is law?,’
essentially settling the issue once and for all. Others, includ-
ing adherents of the movements of legal realism and criti-
cal legal studies, criticize Hart for achieving ‘uniformity at
the price of distortion.’ (Twining 1973; Unger 1986).
FOUNDATIONS OF LAW
In modern legal systems, Hart’s ‘secondary rules’ are
important criteria for recognizing and ranking the multiple
766 Basic issues in law
sources of law within a complex hierarchy. Sources of law
are ranked ‘in an order of relative subordination and pri-
macy’ (Hart 1961, p. 98), according to the degree of their
authoritativeness as legal norms within our complex sys-
tem. Present-day American law involves a distribution of
law-making powers among a variety of authoritative
sources, for example, case law originating in decisions
of courts or other tribunals, legislative enactments by
Congress and the several state legislatures, and rule mak-
ing and adjudication by various governmental agencies.
The Constitution of the United States is the ‘Supreme
Law of the Land,’ the ultimate legal authority in our sys-
tem. The Constitution establishes the norms governing
the distribution of political powers and their exercise in
our system. The validity of all federal, state and municipal
legislation is determined, ultimately, by reference to the
overriding authority of the Constitution, which ‘proclaims
its own supremacy and the supremacy of the laws of
Congress passed in pursuance of it.’ (Mason and Beaney
1975, p. 12).
Legislative enactments of Congress (formalized legal
documents called statutes or codes) are of superior authori-
tativeness to any type of state legislation. The Supremacy
Clause of the Constitution (Article VI, paragraph 3) states:
This Constitution and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every state shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
Ranked below all federal sources of law, in descending
order of legal weight and authoritativeness, there are state
constitutions, state statutes, state administrative regula-
tions, and municipal ordinances.
Historically, our law has its roots in English common
law, which has been essentially judge-made law on a case-
by-case basis, wherein the judge relies on a series of past
judicial opinions (precedents) to arrive at the concept
and doctrine underlying the specific case at hand (Holmes
1963). For illustration, the law of torts (accident or neg-
ligence law) has emerged from case decisions. Judicial
interpretation provides the judge with some discretion
for advancing legal doctrine, thereby affording the courts
with a quasi-legislative role, as well as a judicial one
(Posner 1990, pp. 247–61). In contrast, legislative or statu-
tory law is not to be revised by judges. Judicial interpret-
ation is limited to ‘understanding’ the concept embedded
in the statute, rather than shaping it to suit broader soci-
etal ends. Labor law, for example, is primarily statutory
in nature, resting on concepts that are clearly delineated
by legislation.
There is no doubt that during the twentieth century,
legislation has become the dominant ingredient in
American law (Jones, Kernochan, and Murphy 1980). The
vast expansion of federal and state regulatory activities,
the trend toward comprehensive law codification (e.g.,
the Uniform Commercial Code), and the delegated
rule-making powers of the federal and state bureaucracies
have made great inroads into the formerly largely exclusive
turf of the courts. Nonetheless, courts still enjoy a uniquely
authoritative status, having power to decide particular con-
troversies and to create precedents, or potential prece-
dents, which are generally binding for future like cases.
Legislation and case law intermesh when courts are
called on to interpret statutes or scrutinize their constitu-
tionality. The weight or authoritativeness of a court deci-
sion depends on its place in the judicial hierarchy of its
jurisdiction. For example, three tiers of courts exist in most
states: trial courts, intermediate appellate courts, and a
highest appellate court. The U.S. Supreme Court is the
court of supreme jurisdiction in the interpretation of the
U.S. Constitution, the ‘final, formal interpreter of the words
of the Constitution,’ as well as the ultimate authority as to
whether federal or state law was written in pursuance of
constitutional standards. Woodrow Wilson observed that
the Supreme Court has become ‘the balance wheel of our
entire system.’ (Mason and Beaney 1975, p. 13).
CONTEMPORARY JURISPRUDENTIAL
ISSUES
Two developments involving interdisciplinary approaches –
the application of economics and feminine methodology –
to legal decision-making have emerged in recent years to
impact on contemporary law. Both of these movements
have implications on jurisprudence and the practical
applications of legal doctrines.
Law and economics
The first of these is the interdisciplinary field of ‘law and
economics’ which rests on the assumption that people are
‘rational maximizers’ of their satisfactions. Over the past
several years, a rich body of literature has developed from
economists, philosophers, and lawyers that addresses
broad concerns such as welfare, economics and the law
(Coleman 1984). In its most simplistic terms, all areas
of law are open to economic examination, since most
common law decisions – especially torts, contracts, and
even the criminal law – involve principles such as cost–
benefit analysis, decisions under uncertainty, risk aver-
sion, promotion of mutually beneficial exchanges, and
prevention of ‘free’ riding (Posner 1990, p. 361). Eco-
nomic principles not only explain individual behav-
ior, but influence our understanding of the ends to be
achieved in law and thereby provide the possibilities for
creative solutions to legislative and judicial decisions.
In his classic work, The Costs of Accidents, Guido
Calabresi (1970) illustrated on a practical level the
advantages of re-examining one area of law, torts, from
 The philosophy of law and the foundations (sources) of law 767
the perspective of the economic benefits and costs of a
fault-based system of redress. He showed that the existing
system of designating fault and liability creates distorted
goals in terms of justice and cost reduction, and that a
system predicated on economic considerations, such as
identifying the ‘cheapest cost avoider’ – the person or
institution (corporate, governmental, etc.) in the best
position to make worthwhile changes to avoid the acci-
dent – to absorb the costs of accidents results in what he
conceives as the principal functions of tort or accident
law – reducing the sum of the costs of accidents and the
costs of avoiding accidents (Calabresi 1970). Hence,
Calabresi advocates creating a compensation system for
those injured, such as plaintiffs in products liability, auto-
mobile accident and medical malpractice cases, to name
a few, that rests on economic incentives for injury pre-
vention rather than vague notions of ‘fault.’
Feminist jurisprudence
Feminist method is not new. It finds its origins in the
women suffrage movement which challenged the premises
of the all-male political system that denied women the
rights of men, rights such as working in professions, edu-
cation, child custody, serving on juries, etc. (Chafe 1972).
The explicit belief which emerged from that movement is
that women have been and are wrongly treated (Richards
1998) and this should be remedied by women achieving
true equality with men (Bartlett 2000). As it applies to the
law directly, especially through legal scholarship as well as
court cases, feminist ‘method’ is of recent origins.
What remains controversial is whether feminism is
only concerned with substantive issues, or if it is indeed a
method of critique (Posner 1989). Feminist writers argue
that feminism means more than the subject matter of
women, i.e., women’s rights. They argue that there is a
specific method that involves the type and commonality
of questions asked, the criteria of relevancy and proof
applied in responding to those questions and other
‘methodological’ issues (Bartlett 2000, p. 32). Furthermore,
they claim that the ‘method’ results in producing alterna-
tive and overlapping analyses of gender and how it oper-
ates in the law.
Underlying this position is the notion that gender
influences styles of law. Carol Gilligan (1982), a psycholo-
gist who has worked on moral development in children,
claims that men have an ‘ethic of rights’ which manifests
itself in a distinct approach involving adherence to rules,
legalisms, and strict construction. Even as children, she
claims, boys during games determine when violations
occur and accuse the violator. Girls, in contrast, abide by
an ‘ethic of caring’ which means sensitivity to the costs of
strict adherence to rules, costs such as the potential harm
to relationships. This translates into men having a formal-
istic, rule-bound style and women being personal, and
contextual, which Gilligan would refer to as ‘substantive
justice.’ There is much literature and work in support
of Gilligan’s notions, though many make compelling
arguments against the distinction. For example, Posner
takes issue with this claim by showing that the history of
law which has been dominated by men has involved the
same type of tensions pitting men against each other
in legislative debates that Gilligan delineates as gender
based (Posner 1989, p. 407).
JURISPRUDENCE IN PSYCHIATRIC
CONDUCT: THE COVENANT PARADIGM
The psychiatrist–patient relationship is in some respects
different than the traditional relationship of a surgeon or
internist with his or her patient. The psychiatrist deals
more completely with the mental and emotional processes
of the patient, and in such a role may have influence well
beyond that of establishing appropriate diagnostics and
treatment methods. As with all medical practitioners, the
psychiatrist has to assure that the contractual relation-
ship with a patient is determinative and that the power
prerogatives in decision-making approach an equal bal-
ance. But the argument is strong that the psychiatrist’s
relationship with a patient must be a special type of con-
tract, something in the order of a covenant (Weisstub
1985). The distinction is that a contract is more of a
legalistic notion (certainly applicable to traditional psy-
chiatric diagnosis and psychopharmacological treatment),
whereas the covenant is a contract that rests strongly on
the moral philosophical bonds between parties.
The covenant has its origins in the Old Testament
when Abraham entered into an agreement with God, giv-
ing up elements of freedom to have his prescribed des-
tiny. In return, God made the commitment for Abraham
to achieve a critical role in history. The covenant resulted
in a moral bond between God and Abraham, or the
people of Israel, and the establishment of laws to achieve
that end. But the essential issue is that the norms and
values of the covenant flowed from the superior entity
(God) in one direction. The relationship, therefore, results
in a higher order of values established by the superior
participant. But just as it is an agreement at one point
in time, it nonetheless is dynamic, with the interchanging
of divine and human intentions, desires and values.
This convenant paradigm is relevant to the psych-
iatrist’s relationship with his or her patient (Tancredi and
Weisstub 1986). The psychiatrist is in a superior ‘know-
ledge’ position, with a value system epistemologically
based – Freudian, Jungian, biological and epidemi-
ological, to name a few – that gives definition to the rela-
tionship and provides for the protection of the patient.
Furthermore, there is an understanding that the stronger
party, the psychiatrist, is dedicated to benefit the weaker
party, the patient. This dedication is present even though
the therapist–patient encounter may seriously stress the
768 Basic issues in law
patient at times to meet the therapeutic objectives of
personal growth and development.
The psychotherapeutic relationship, which is pre-
dominantly based on verbal therapy, seems to best fit the
covenantal paradigm because it utilizes transference and
countertransference. These notions which manifest the
power of the bonding between the parties, also reflect the
differences in power prerogatives. Over time as patients
develop insight, the power of transference is diminished
as is that of countertransference. It is the characteristic of
the relationship that as it unfolds a method of treatment
occurs. This fact makes it very difficult to apply torts to
the establishment of infractions in that relationship.
Though tort law allows for changes over time compatible
with what occurs in psychotherapy, its perceptions of
infractions is fixed at deviations from ‘normative’ behav-
ior. The psychotherapeutic relationship (as with the
covenant), in contrast, requires dynamic change which
includes concomitant dynamic alterations of the criteria
for assessing its effectiveness and authenticity. The latter
calls into question the validity of ‘foreseeability,’ among
other factors, which is an essential element of tort law. In
effect, the convenantal model gives us an understanding
of the precise nature of the therapist–patient dynamic
without providing us with the means for establishing
infractions of that relationship.
In the absence of tangible evidence of harm to a
patient – such as physical harm or the application of
unusual or inappropriate treatments – there has been no
successful appellate court case that has explicitly involved
a determination of negligence in verbal therapy. Psycho-
therapy (the covenant) does not render itself to such
determinations, though one could track evidences in the
history of the relationship which might suggest a lack of
the continuation of dedication on the part of the therapist
which might lead to detrimental and destructive conse-
quences for the patient. This would inevitably spill over
into the realm of the tort of intentional infliction of mental
suffering which protects the patient’s dignitary rights from
being distorted by the destruction of the bonding of the
relationship by the willful act of the stronger party.
The contract and application of tort law are applica-
ble to a large terrain of psychiatric practice outside of
conventional psychotherapy, i.e., classical diagnosis and
pharmacological treatment.
REFERENCES
Aquinas, T. 1954: Basic Writings of St. Thomas Aquinas.
Volume 2. Pegis, A.C. (ed.). New York: Random House.
Austin, J. 1954: The Province of Jurisprudence
Determined. New York: Noonday Press.
Bartlett, K. 2000. Cracking foundations as feminist
method. American University Journal of Gender,
Social Policy and Law 8, 31–8.
Calabresi, G. 1970: The Costs of Accidents: A Legal and
Economic Analysis. New Haven, CT: Yale University Press.
Cardozo, B. 1921: The Nature of the Judicial Process.
New Haven, CT: Yale University Press.
Chafe, W. 1972: The American Woman: Her Changing
Social, Economic, and Political Roles, 1920–1970.
New York: Oxford University Press.
Coleman, J.L. 1984. Economics and the law: a critical
review of the foundations of the economic approach
to law. Ethics 94, 649–61.
Dworkin, R. 1977: Taking Rights Seriously. Cambridge,
MA: Harvard University Press.
Dworkin, R. 1990: The Philosophy of Law. Oxford:
Oxford University Press.
Elliott, E.D. 1985. The evolutionary tradition of
jurisprudence. Columbia Law Review 85, 38–97.
Fuller, L. 1964: The Morality of Law. New Haven, CT:
Yale University Press.
Gilligan, C. 1982: In a Different Voice: Psychological
Theory and Women’s Development. Cambridge, MA:
Harvard University Press.
Golding, M.P. 1975: Philosophy of Law. Englewood Cliffs,
NJ: Prentice Hall.
Hart, H.L.A. 1961: The Concept of Law. Oxford: Oxford
University Press.
Holmes, O.W., Jr. 1963: The Common Law. Cambridge:
Belknap Press.
Jones, H.W., Kernochan, J.M., Murphy, A.W. 1980: Legal
Method: Cases and Text Materials. Mineola, NY:
Foundation Press.
Mason, A., Beaney, W. 1975: American Constitutional Law.
Englewood Cliffs, NJ: Prentice Hall.
Murphy, J.G., Coleman, J.L. 1990: Philosophy of Law: An
Introduction to Jurisprudence. Boulder, CO: Westview
Press.
Posner, R.A. 1989. Conservative feminism. University of
Chicago Legal Forum 1989, 191.
Posner, R.A. 1990: The Problems of Jurisprudence.
Cambridge, MA: Harvard University Press.
Pound, R. 1954: An Introduction to the Philosophy of Law.
New Haven, CT: Yale University Press.
Richards, D.A.J. 1998: Women, Gays and the Constitution:
The Grounds for Feminism and Gay Rights in Culture and
Law. Chicago: University of Chicago Press.
Tancredi, L.R., Weisstub, D.N. 1986: Malpractice in
American psychiatry: toward a restructuring of the
psychiatrist–patient relationship. In Weisstub, D.N.
(ed.), Law and Mental Health: International
Perspectives. Volume 2. New York: Pergamon Press,
83–139.
Twining, W. 1973: Karl Llewellyn and the Realist
Movement. Norman: University of Oklahoma Press.
Unger, R.M. 1986: The Critical Legal Studies Movement.
Cambridge, MA: Harvard University Press.
Weisstub, D. 1985. Le droit et la psychiatrie dans leur
problematique commune. McGill Law Journal
30, 221–61.

The court system and the legislative process
ROBERT LLOYD GOLDSTEIN
INTRODUCTION
The common law is a distinctive legal system that origin-
ated in medieval England, grew and developed in the
courts of the king, and during the twelfth and thirteenth
centuries came to be applied throughout the English
realm. Hogue (1985) distinguishes it from other legal sys-
tems of that period (e.g., local customary law, canon law
administered by church courts, rules of feudal custom
applied by courts of baronial overlords) ‘by calling it sim-
ply the body of rules prescribing social conduct and justi-
ciable in the royal courts of England’ (Hogue 1985, p. 5). In
time, three royal courts (three superior courts of common
law) emerged: the Court of Exchequer (with jurisdiction
over controversies pertaining to the king’s property and
revenue); the Court of King’s Bench (with jurisdiction
over criminal cases and civil cases involving a breach of the
peace); and the Court of Common Pleas (with jurisdiction
over all other civil disputes between the king’s subjects).
In addition, there was another system, rivaling that of
the common law, which also originated in the Middle
Ages: the Court of Chancery, which exercised jurisdic-
tion over suits in equity. Judges in equity, originally eccle-
siastical dignitaries, intervened to correct the harshness
or inflexibility of the common law on grounds of moral-
ity or conscience (Scott and Kent 1967). An excellent
exposition of the origins, development, and complexities
of the common law, which does not assume professional
legal training, can be found in the slim volume Origins of
the Common Law (Hogue 1985). The reception of the
common law of England in the United States was charac-
terized by a process of selective adoption, providing for
the continuity of English and American legal principles,
but transforming them for American use by specific legis-
lative enactment or judicial decision. In other words, the
principles of English common law were drawn on as
sources of guidance, but did not always find acceptance.
As Justice Story said in a leading case:
The common law of England is not to be taken in all
respects to be that of America. Our ancestors brought
82
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to
their condition. (Van Ness v. Pacard 1829)
The most prominent characteristic of early American
law was the strong tendency toward codification. Although
the common law served as a fundamental subsidiary law,
there was a paucity of lawyers trained in the English trad-
ition and few law books available to transmit the corpus
of English common law doctrine. Historically, this was
the pragmatic basis for the adoption of elaborate and
rather complete codes of law, which constituted most of
the law under which the American colonists lived (Walsh
1932). A century ago, case law was the dominant ingredi-
ent in American law, and legislation was of lesser import-
ance. Today, with the enormous growth of the federal
regulatory agencies and the tendency toward compre-
hensive law codification (e.g., the Uniform Commercial
Code), ‘legislation has fully come of age as a form of
American law.’ (Jones, Kernochan, and Murphy 1980, p. 3).
The following sections outline the present-day organ-
ization of the American court system (at both the federal
and state levels), the nature and authority of case law,
and the legislative process. Finally, the meeting ground is
examined where case law and legislation come together,
that is, statutory interpretation and construction by the
courts. Constitutional adjudication is well beyond the
scope of this chapter, but is touched on in Chapter 83,
where the Equal Protection Doctrine is discussed.
The organization of court systems in the United States
is rather complex and reflects the historical realities of
our federal system of government. There is a dual system
of state and federal courts, each with its own system of
legal doctrine and practices. However, to complicate mat-
ters further, each system of courts is routinely called on
to confront and decide issues of law originating within the
other system. For example, federal issues regularly come
to the fore in state trials (e.g., the exclusionary rule in a
state criminal proceeding) and are decided by the state
court in accord with guiding federal precedents. Con-
versely, lawsuits governed by state law are often brought
770 Basic issues in law
in federal courts (under so-called ‘diversity’ jurisdiction;
see Chapter 85) and then the federal trial court will gen-
erally be bound to apply state substantive law in the case
before it (although it will continue to follow federal pro-
cedural law; see Chapter 85).
FEDERAL COURTS
Article III of the Constitution provides, in pertinent part,
as follows:
Article III, Section 2. The judicial Power of the United
States shall be vested in one Supreme Court and in
such inferior Courts as the Congress may from time to
time ordain and establish.
Thus, the Supreme Court is the only federal court
directly created by the Constitution. Congress has the
power to create, modify, abolish, and establish the com-
position and jurisdiction of all other federal courts.
The Supreme Court is the court of last resort for the
federal system and, in cases containing federal questions,
for the state judicial systems as well. It has broad discre-
tion to refuse to hear the vast majority of cases for which
review is sought. The Court must be persuaded that the
issues involved in the case are sufficiently important, as
questions of federal law that must be decided with final-
ity, to grant certiorari for hearing and decision on the
merits. The Supreme Court is nothing less than the ‘umpire
of the federal system, authoritative guardian of constitu-
tional liberties and final overseer of the consistency and
substantial justice of the general law administered in the
courts of the United States’ (Jones, Kernochan, and
Murphy 1980, p. 48). While the Constitution does not
expressly give the Supreme Court the power to deter-
mine the constitutionality of acts of Congress or state
legislation, the Court itself, in a series of opinions, held
that it had the power to review and invalidate federal
and state legislation it determines to be unconstitutional
(Marbury v. Madison 1803; Fletcher v. Peck 1810).
Courts of appeals have final jurisdiction over all cases
arising in the lower federal courts in their district or cir-
cuit (except those reviewed by the Supreme Court). There
are thirteen such circuits, eleven comprising geographi-
cal divisions among the states, a twelfth for the District of
Columbia, and a thirteenth that reviews cases from spe-
cialized Federal courts (e.g., the Tax Court).
There are currently ninety-one district courts, at least
one in every state, up to four in the more populous states.
These are the major trial courts of the federal system and
have jurisdiction over cases within the judicial power of
the United States, as defined in the Constitution (Federal
jurisdiction is discussed in Chapter 85). Procedure in the
district courts is uniform throughout the United States
for civil and criminal cases. There are a number of special
courts in addition to the foregoing, including the Court
of Military Appeals, the Court of International Trade, the
Tax Court, and the Court of Appeals for the Federal
Circuit (created from the merger of the Court of Claims
and the Court of Customs and Patent Appeals).
STATE COURTS
Each of the fifty states has its own system of courts, with
a triple-layered hierarchical structure. At the bottom of
the hierarchy are the ‘inferior’ or ‘petty’ trial courts, whose
jurisdiction is limited to civil suits involving small amounts
of money (e.g., small claims court) or, minor criminal
violations. At the next level are trial courts of general
jurisdiction, usually referred to as superior courts.1 (New
York State, confusingly, calls its trial courts of general
jurisdiction the Supreme Court, which in most other
states is the name given to the highest appellate court.)
Their principal function is to hear civil and criminal
cases generally. They are courts of record (i.e., detailed
records of the proceedings are made) and their proced-
ure is strictly formal. Specialized trial courts exist sepa-
rately or are part of the trial court of general jurisdiction,
for example, probate courts and family courts.
At the top of the judicial hierarchy are the appellate
courts, which hear appeals from the judgments of the
trial courts of general jurisdiction. These state courts of
last resort are usually called the Supreme Court of the
state, but may have other names (e.g., Supreme Judicial
Court, Court of Appeals). In over half of the states, there
are intermediate appellate courts as well, which serve to
screen out and make final authoritative disposition of the
bulk of appellate litigation. This allows the highest appel-
late court broad discretion to focus on cases that raise
novel, difficult, or socially important issues.
NATURE AND AUTHORITY OF CASE LAW
All systems of law employ case law to some extent, but it
is especially authoritative and influential in a common
law system such as our own. Case law has its origin in
the judicial decisions judges reach in deciding disputes
between particular parties. It is a ‘by-product of the ongo-
ing process of settling particular controversies’ (Jones,
Kemochan, and Murphy 1980, p. 3). In Chapter 81, it was
noted that law exists in two authoritative forms, legisla-
tion and case law. How does dispute settlement of a par-
ticular case become a potential source of authoritative
and generally applicable case law? The answer lies in the
doctrine of stare decisis (‘to stand by precedents and not
to disturb settled points’). The doctrine declares that
once a judicial decision settles a particular controversy or
1
Nomenclature varies from state to state, for example, district
court, circuit court, court of common pleas.

a disputed point of law, that decision becomes binding2
and will be followed in all subsequent factually similar
cases. The authoritative force of precedent was firmly
established at the dawn of the common law era in the
royal courts of England. The meritorious features of this
principle have been described as follows (Bodenheimer,
Oakley, and Love 1980):
1 The doctrine of stare decisis enhances the social values
of predictability, calculability, and certainty in the plan-
ning of private and business activities. Legal rights,
duties, and obligations are relatively stable and ascer-
tainable as a result.
2 Attorneys have a settled basis for legal reasoning and
dispensing advice to clients, knowing that courts are
generally bound by legal authority and precedent. The
probable outcome of potential litigation may often
be forecast and the total caseload of litigation may be
presumably drastically diminished thereby.
3 Judges are forced to follow established precedents and
thereby potential arbitrariness, favoritism, and bias
are curbed. Otherwise, mere whims and idiosyncratic
notions of right and wrong might be applied with the
detrimental effect of erosion of public confidence in
the integrity of the judiciary and loss of respect for the
law. The public is more likely to accept judicial deci-
sions as binding, in the knowledge that they are based
on precedent, an objective body of law, and impartial
reasoning free from bias or subjective concerns.
4 Following precedents promotes judicial efficiency and
reduces the costs of litigation. Judges do not have to
examine each legal issue de novo every time and each
past decision need not be reopened in every case.
5 The doctrine of stare decisis is more consistent with a
sense of justice, in that all individuals are more assured
of being ‘treated alike in like circumstances.’ Order, sta-
bility, and continuity of the law satisfies our reason-
able expectations that justice will be done.
Judicial decisions serve as precedents only within the
same judicial system or jurisdiction: for example, a deci-
sion of New York’s highest state court (the Court of
Appeals) is binding precedent only in that court and in
New York’s lower courts. It has no binding authority for
future cases adjudicated in the courts of New Jersey,
California, or any other state system. Even decisions of
the U.S. Supreme Court are not binding on state courts
unless a federal question or constitutional interpretation
was at issue. The higher a court stands in the hierarchy of
its own jurisdiction, the greater force as precedent its
decisions are accorded. (For example, decisions of the
2
The ratio decidendi (or holding) of a case is that portion of the
judicial decision that sets forth the court’s principle or rule of law
on the material facts of the case before it. This is the only authori-
tative element in the decision that has binding precedential force.
All else in the opinion is known as dicta or obiter dicta (things said
by the way).
The court system and the legislative process 771
Supreme Court of California are binding on all lower
California courts, whereas decisions of the intermediate
appellate courts have much less precedential authority
and are liable to be overruled at some future date by the
higher tribunal. Subordinate courts must always adhere
to precedents of higher courts with supervisory jurisdic-
tion over them.)
American courts have never regarded the doctrine of
stare decisis as absolutely binding, as have English courts
until quite recently.3 Sometimes legal rules become anti-
quated or obsolete and innovation and responsiveness
to social change call for the abandonment of an estab-
lished precedent. In such cases, the highest courts have
reserved the authority to overrule or set aside their own
past decisions, when public policy considerations and
the proper development of the law require a change.
Courts do not lightly make use of their prerogative to
overrule their own clear precedents. Generally they agree
with Cardozo that ‘adherence to precedent should be the
rule and not the exception’ (Bodenheimer, Oakley, and
Love, 1980, p. 68).
LEGISLATION
Legislation, as a source of the law, has been compared to
a proverb, while case law has been likened to a parable.
The latter is comprised of principles inferred from deci-
sions handed down in particular cases that decided
concrete disputes between parties. The former is an
authoritative, prescribed general rule, promulgated by a
lawmaking body. According to Patterson:
A proposition of case law may be correctly stated in
several different ways, each of which is equally offi-
cial. A statute (proposition of legislation) is stated
as an exclusive official wording of the rule. Case law
is flexible; legislation is (textually) rigid. (Jones,
Kemochan, and Murphy 1980, p. 12)
In the United States, the Constitution of 1789, in
Article 1, Section 1, created a bicameral legislature, the
Congress of the United States, composed of the Senate
and the House of Representatives. All legislative powers of
the federal government are conferred on the Congress and
its organization, procedures and enumerated powers are
set forth in other sections of the Constitution. Likewise,
the constitutions of the several states also establish
authoritative lawmaking bodies (the state legislatures).
Rules of legislative law are promulgated as formalized
legal documents in authoritative textual form (statutes
3
The rigid notion that precedents are absolutely binding was the
law in England until 1966, when the House of Lords modified its
position. American courts have never regarded stare decisis as ‘an
inexorable command’ and have treated past judicial decisions as
generally binding.
772 Basic issues in law
or codes)4 that are prospective in application, that is, the
legislative acts are rules of law or precepts to be followed
in the future. Legislation, as described by Oliver Wendell
Holmes, ‘looks to the future and changes existing condi-
tions by making a new rule to be applied thereafter to all
or some part of those subject to its power’ (Prentis v.
Atlantic Coast Line Co. 1908).
Legislation is generally more authoritative than case
law and supersedes prior judicial decisions, unless the
enactments exceed the legitimate powers of the legisla-
ture (i.e., unless they are unconstitutional). Judges are
bound by the statute as it is enacted and cannot rewrite it
or revise it. When a particular statutory law governs the
resolution of a case before the court, the judge’s role is
merely to apply it to the controversy to be decided.
STATUTORY CONSTRUCTION
(INTERPRETATION)
Chung Fook v. White, 264 U.S. 443 (1924)
Certiorari to a judgment of the Circuit Court of Appeals
which affirmed a judgment of the District Court denying
a petition for a writ of habeas corpus. Mr. Justice Sutherland
delivered the opinion of the Supreme Court:
Chung Fook is a native-born citizen of the United
States. Lee Shee, his wife, is an alien Chinese woman,
ineligible for naturalization. In 1922 she sought admis-
sion to the United States, but was refused and detained
at the immigration station, on the ground that she
was an alien, afflicted with a dangerous contagious
disease [chlonorchiasis]. No question is raised as to
her alienage or the effect or character of her disease;
but the contention is that nevertheless, she is enti-
tled to admission under the proviso found in § 22 of
the Immigration Act of February 5, 1917, c. 29,39
Stat, 891 … . A petition for a writ of habeas corpus
was denied by the Federal District Court for the
Northern District of California, and upon appeal to the
Circuit Court of Appeals, the judgment was affirmed.
The pertinent parts of the proviso are: ‘That if the
person sending for wife or minor children is natural-
ized, a wife to whom married or a minor child born
subsequent to such husband or father’s naturalization
shall be admitted without detention for treatment in
hospital.’ The measure of the exemption is plainly
stated and, in terms, extends to the wife of a natur-
alized citizen only.
But it is argued that it cannot be supposed that
Congress intended to accord to a naturalized citizen
4
A code is a systematic compilation of related enactments, for
example, a penal code.
a right and preference beyond that enjoyed by a
native-born citizen. The court below thought that the
exemption from detention was meant to relate only
to a wife who by marriage had acquired her hus-
band’s citizenship, and not to one who, notwith-
standing she was married to a citizen, remained an
alien under § 1994 Rev. Stats … . We are inclined to
agree with this view; but, in any event, the statute
plainly relates only to the wife or children of a natu-
ralized citizen and we cannot interpolate the words
‘native-born citizen’ without usurping the legisla-
tive function … . The words of the statute being
clear, if it unjustly discriminates against the native-
born citizen, or is cruel and inhuman in its results, as
forcefully contended, the remedy lies with Congress
and not with the courts. Their duty is simply to
enforce the law as it is written, unless clearly uncon-
stitutional.
Affirmed.
Courts are not always able to apply statutory law
mechanistically or formalistically for a variety of reasons
inherent in the legislative process. Even though the
drafters of legislation strive to be precise and minutely
specific in their phraseology, words are often imperfect
symbols to communicate intent, sometimes resulting in
vague or ambiguous meanings. Further uncertainties in
legislative intent may be superimposed in the course of
the legislative process of enactment (e.g., by the amend-
ments added to the original bill). Unforeseen circum-
stances or unthought-of cases are bound to arise. As Hart
observed:
Human legislators can have no such knowledge
of all the possible combinations of circumstances
which the future may bring … . We have not settled,
because we have not anticipated, the question which
will be raised by the unenvisaged case when it
occurs … . When the unenvisaged case does arise, we
confront the issues at stake and can then settle the
question by choosing between the competing inter-
ests in the way which best satisfies us. In doing so we
shall have rendered more determinate our initial
aim, and shall incidentally have settled a question as
to the meaning, for the purposes of this rule, of a
general word. (Hart 1961, pp. 125–6)
There are a number of traditional judicial formulas
for the resolution of doubts as to the legal effect of
statutes, such as the plain meaning rule (‘where the act is
clear upon its face, and when standing alone, it is fairly
susceptible of but one construction, that construction
must be given to it’ [Hamilton v. Rathbone 1899]) or the
ascertainment of the legislative intent or purpose in
enacting the legislation. Chung Fook is an example of the
former approach. The following case excerpt considers
legislative intent or purpose.

United States v. American Trucking
Associations, 310 U.S. 534 (1940)
Mr. Justice Reed delivered the opinion of the Supreme
Court:
In the interpretation of statutes, the function of the
courts is easily stated. It is to construe the language so
as to give effect to the intent of Congress. There is no
invariable rule for the discovery of that intention. To
take a few words from their context and with them
thus isolated to attempt to determine their meaning,
certainly would not contribute greatly to the discov-
ery of the purpose of the draftsmen of the statute … .
There is, of course, no more persuasive evidence of
the purpose of a statute than the words by which the
legislature undertook to give expression to its wishes.
Often these words are sufficient in and of themselves
to determine the purpose of the legislation. In such
cases we have followed their plain meaning. When that
meaning has led to absurd or futile results, however,
this Court has looked beyond the words to the purpose
of the act. Frequently, however, even when the plain
meaning did not produce absurd results but merely an
unreasonable one ‘plainly at variance with the policy
of the legislation as a whole’ this Court has followed
that purpose, rather than the literal words … . The
interpretation of the meaning of statutes is exclusively
a judicial function. This duty requires one body of pub-
lic servants, the judges, to construe the meaning of
what another body, the legislators, has said. Obviously
there is danger that the courts’ conclusion as to legisla-
tive purpose will be unconsciously influenced by the
judges’ own views or by factors not considered by the
enacting body. A lively appreciation of the danger is
the best assurance of escape from its threat but hardly
justifies an acceptance of a literal interpretation
dogma … . Emphasis should be laid, too, upon the
necessity for appraisal of the purposes as a whole of
Congress in analyzing the meaning of clauses or sec-
tions of general acts.
There is a substantial catalogue of judicial maxims5 or
canons of statutory construction, formulated by the courts,
to resolve interpretive questions. Judicial creativity is
especially called for in those cases where the legislative
issue to be determined was totally unforeseen by the
5
In addition to the general approaches to statutory construction (plain
meaning and legislative intent or purpose), some of the maxims
are ‘expressio unius est exclusio alterius,’ ‘ejusdem generis,’ ‘noscitur
a sociis,’ and ‘last antecedent.’ These judicial ‘rules of thumb’ are
defined and discussed in a number of excellent law review articles
(Llewellyn 1950; Murphy 1975). Additionally, courts employ extrinsic
guides to statutory interpretation, such as the legislative history
(carefully recorded in journals, debates, and reports of congres-
sional committees), in order to ascertain legislative intent.
The court system and the legislative process 773
lawmakers and the judge must assign a legal effect to the
statute that it did not originally possess:
Interpretation is often spoken of as if it were nothing
but the search and the discovery of a meaning which,
however obscure and latent, had nonetheless a real
and ascertainable preexistence in the legislator’s
mind. The process is, indeed, that at times, but it is
often something more. (Cardozo 1921)
When judges sometimes, under the guise of statutory
interpretation, exceed the proper limits of their authority
and go beyond or override the intent of the legislature in
order to remake the law according to their own views (to
achieve what they regard as a ‘good result’), they draw
criticism that the courts are usurping legislative preroga-
tives and undermining the rule of law. We consider these
criticisms of judicial activism in Chapter 83, when the
Equal Protection Doctrine is discussed.
REFERENCES
Bodenheimer, E., Oakley, J.B., Love, J.C. 1980: An
Introduction to the Anglo-American Legal System.
St. Paul: West Publishing Co.
Cardozo, B.N. 1921: The Nature of the Judicial Process.
New Haven, CT: Yale University Press.
Chung Fook v. White, 264 U.S. 443 (1924).
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).
Hamilton v. Rathbone, 175 U.S. 414 (1899).
Hart, H.L.A. 1961: The Concept of Law. Oxford:
Oxford University Press.
Hogue, A.R. 1985: Origins of the Common Law.
Indianapolis: Liberty Press.
Jones, H.W., Kernochan, J.M., Murphy, A.W. 1980:
Legal Method. Mineola, NY: Foundation Press.
Llewellyn, K.N. 1950. Remarks on the theory of
appellate decision and the rules or canons about how
statutes are to be construed. Vanderbilt Law Review 3,
395–443.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
Murphy, A.W. 1975. Old maxims never die: the ‘plain
meaning’ rule and statutory interpretation in the
‘modern’ federal courts. Columbia Law Review
75, 1299–328.
Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908).
Scott, A.W., Kent, R.B. 1967: Cases and Other Materials
on Civil Procedure. Boston: Little, Brown & Co.
United States v. American Trucking Associations, 310 U.S.
534 (1940).
Van Ness v. Pacard, 27 U.S. (2 Pet.) 137 (1829).
Walsh, W.F. 1932: A History of Anglo-American Law.
2nd edition. Indianapolis: Bobbs-Merrill.

A model of constitutional adjudication:
the equal protection doctrine
ROBERT LLOYD GOLDSTEIN
In Democracy in America, de Tocqueville (1945, p. 97)
observed, ‘For equality, their passion is ardent, insatiable,
incessant, invincible.’ This passion for equality has found
its fullest expression in the Supreme Court’s modern equal
protection cases, serving as a major source of judicial
innovation and policymaking. The equal protection guar-
antee has been described as ‘a moral standard wrapped in
a legal command which allows the Court in establishing
constitutional doctrine to help shape the nation’s think-
ing about social justice and ethical conduct’ (Note 1969,
p. 1159, quoting Paul Freund).
In this chapter the ‘cornerstone doctrine of American
constitutional law’ (Van Alstyne, Karst, and Gerard 1981,
p. 11), the doctrine of judicial review, is briefly outlined:
specifically, the power of the U.S. Supreme Court to rule
on the constitutionality of acts of Congress or of state legis-
lation, in the normal course of litigation. (See Chapter 82
for a general discussion of the judicial approach to statu-
tory interpretation.) Then, using the Equal Protection
Doctrine as a paradigm of constitutional adjudication,
its development and elaboration are traced in a series of
landmark cases interpreting the Equal Protection Clause
of the Fourteenth Amendment.
JUDICIAL REVIEW
In the seminal case Marbury v. Madison (1803), Chief
Justice John Marshall declared that the Supreme Court of
the United States had the authority to review acts of
Congress and declare them void if they are in conflict
with the Constitution (‘repugnant to the Constitution’).
In asserting that, ‘It is emphatically the province and
duty of the judicial department to say what the law is,’
Marshall established the supremacy of the judicial branch
on questions of legal duty and constitutional interpret-
ation. Some constitutional theorists remain critical of
the Court’s supremacy on constitutional questions,
because there is no explicit provision in the Constitution
83
that confers such a power on the Court. Thus, the Court
has been accused of acting as a ‘continuing constitutional
convention’ (Berger 1977, p. 2), arbitrarily attempting to
revise the Constitution ‘under the guise of interpretation’
(Berger 1977, p. 1) and impermissibly usurping legisla-
tive prerogatives.
Despite such ongoing scholarly controversy, there is
little doubt that the Court’s power of judicial review has
been ‘legitimized by popular acquiescence, and therefore
popular approval, over the course of American history’
(Levy 1967, p. 2). The Court’s role as supreme arbiter of
constitutional questions serves our need to have an
‘umpire’ to help resolve with finality the conflicts ‘engen-
dered by our extraordinarily complex system of govern-
ment’ (Cox 1979, p. 16).
Later Supreme Court decisions authorized the Court
to review the constitutionality of state court decisions
and state legislation as well (Fletcher v. Peck 1810; Martin v.
Hunter’s Lessee 1816). It should be re-emphasized that
the Court rules on constitutional issues only in the con-
text of particular cases before it in the ordinary course of
litigation. It does not tender advisory opinions or proffer
constitutional judgments in the abstract. The consti-
tutional policymaking of the Court, involving Equal
Protection Doctrine as in other areas, is fashioned on a
case-by-case basis.
THE EQUAL PROTECTION DOCTRINE
The Fourteenth Amendment to the Constitution pro-
vides in relevant part, ‘No State shall make or enforce any
law which shall … deny to any person within its jurisdic-
tion the equal protection of the laws.’ The amendment,
along with the other post-Civil War amendments, focused
on discrimination against ex-slaves. The original under-
standing of the Equal Protection Clause was rather narrow
in scope, in comparison with its later elaboration over
the course of more than a century of Supreme Court
 A model of constitutional adjudication: the equal protection doctrine 775
decisions. The framers of the amendment sought to pro-
tect certain circumscribed rights ‘pertaining to physical
security, freedom of movement, and capacity to contract
and own property’ (Perry 1979, pp. 1027–8).
Racial discrimination (race-based laws, disadvantag-
ing non-whites, presumably on the basis of their sup-
posed moral inferiority) was the original paradigm for
equal protection cases. For example, in Strauder v. West
Virginia (1880), the conviction of a black man for mur-
der was reversed. Under the applicable state statute, only
white males could serve on the jury. The Court held that
the state law, on its face (i.e., by its explicit terms), was
discriminatory toward blacks in violation of the Equal
Protection Clause. In Yick Wo v. Hopkins (1886), a San
Francisco ordinance required that all hand laundries in
wooden buildings be licensed. Permits were denied to
200 Chinese applicants, but were granted to virtually all
non-Chinese applicants who applied. The law, while
neutral and impartial on its face (i.e., by its explicit
terms, in contrast to Strauder), was being applied in a
discriminatory fashion (‘with an evil eye and an uneven
hand’) and therefore was held to be violative of the Equal
Protection Clause. The modern Equal Protection Doctrine
was largely shaped by the Warren Court,1 as a means of
protecting and securing a broad range of individual
rights against state encroachment. The Court reviews
statutes (federal and state) according to a so-called two-
tiered model of equal protection judicial review. These
two standards can be defined as follows:
1 The Mere Rationality Standard: A statute passes
muster under this standard of review and is upheld as
constitutional if the statute has some conceivable
rational relationship to a legitimate (non-arbitrary)
legislative objective and does not implicate either a
‘suspect classification’ or a ‘fundamental interest.’ A sus-
pect classification is one that intentionally discrim-
inates against certain minorities that have historically
been discriminated against (the paradigmatic groups
are race and national origin).2 This has been broadened
further to refer to a legislative intent to discriminate
1
Lewis (1980) did not exaggerate when he described the Warren
Court’s role in the following terms: ‘A revolution made by
judges … . The Warren Court set the United States on a new path in
race relations, wiping out the legal basis for discrimination.’ (Lewis
1980, p. 1).
2
The ‘traditional indicia of suspectness,’ in essence, are that the
minority group has historically been discriminated against and
additionally has been placed in a position of political powerless-
ness (Note 1974). The rationale for strict scrutiny was set forth by
Justice Stone: ‘prejudice against discrete and insular minorities may
be a special condition, which tends seriously to curtail the oper-
ation of those political processes ordinarily to be relied upon to
protect minorities, and which may call for a correspondingly more
searching judicial inquiry’ (United States v. Carolene Products 1938).
One further indicium of ‘suspectness’ relied on by the Court in
certain cases to establish that a given classification falls into this
category is ‘immutability’ (i.e., ‘the trait is beyond the power of the
individual to change it’) (Emanuel 1991, p. 314).
against any racial or ethnic group (whether or not
previously discriminated against). A classification
implicating ‘fundamental interests’ relates to specific
kinds of rights (e.g., voting, interstate migration, access
to the courts). Once a statute implicates either an
intentionally discriminatory suspect classification or a
fundamental interest, the required standard of review
becomes more probing and demanding, that is, ‘strict
scrutiny.’
2 The Strict Scrutiny Standard: Under the more exacting
strict scrutiny standard of review, the statute, in order
to be upheld as constitutional, must be shown to be
necessary to promote a compelling governmental inter-
est (i.e., the interest to be promoted is very weighty
and cannot be achieved by less discriminatory means).
As noted above, the strict scrutiny standard is required
only when a legislative classification is designed to
operate to the disadvantage of a racial or ethnic group,
or impermissibly interferes with or burdens a funda-
mental interest.
Application of the standards of review
MERE RATIONALITY
An example of the first standard of judicial review is pre-
sented by Massachusetts Board of Retirement v. Murgia
(1976), which involved a state law requiring mandatory
retirement of police officers at age fifty years. In Murgia,
strict scrutiny review was not required because old age is
not a suspect class and the right to governmental employ-
ment is not a fundamental interest. Under a mere ration-
ality standard of review, the constitutionality of the statute
was upheld (i.e., it did not violate equal protection)
because it was rationally related to a legitimate legislative
objective (to compel police to retire at age fifty in order
to assure officers will be physically fit).3
Although it might be argued (and was pointed out in
a dissent) that older employees as a class have been sub-
jected to frequent discrimination, the Court has con-
tinued to decline to treat age as a suspect class. In Gregory v.
Ashcroft (1991), the Court again applied the mere ration-
ality standard of review and upheld the constitutionality
of a statute requiring state court judges to retire upon
reaching the age of seventy. Under the mere rationality
standard, the Court customarily shows great deference to
the legislature.
Of particular interest to forensic psychiatrists, the Court
applied the mere rationality standard in Baxstrom v. Herold
(1966), holding that a prisoner civilly committed at the
end of his penal term was denied equal protection because
he was deprived of a jury trial, which was generally avail-
able to all others civilly committed. He was further
3
The fact that the statute was overinclusive and perhaps not the
best means to achieve the legislative objective does not serve to
invalidate its constitutionality.
776 Basic issues in law
denied equal protection by virtue of his commitment to
a special institution for ‘dangerously mentally ill’ per-
sons, and without a judicial determination of his danger-
ousness, which was generally afforded all others so
committed. The Court noted that, ‘There is no conceiv-
able basis for distinguishing the commitment of a person
who is nearing the end of a penal term from all other civil
commitments’ (Baxstrom v. Herold 1966). The Baxstrom
principle (that the state cannot withhold the procedural
protections or substantive requirements for commitment
from some that are generally available to all others) has
been extended to commitment following an insanity
acquittal (Bolton v. Harris 1968) and to commitment in
lieu of sentence following conviction as a sex offender
(Humphrey v. Cady 1972).
STRICT SCRUTINY
Perhaps the most famous case that embodied the central
guiding principle that any law ‘predicated on the view
that one person is by virtue of race inferior to another
offends equal protection’ was Brown v. Board of Education
(1954) (Perry 1979, p. 1030). Viewing racial classifications
as invidious and requiring extraordinary justification,
Brown condemned racial segregation in the schools on
the basis that it ‘deprives children of minorities of equal
educational opportunities’ (Brown 1954, p. 493). Utilizing
findings of psychologists and educators that segregated
facilities engendered a sense of inferiority in black stu-
dents, which adversely affected their capacity to perform
successfully, the Court concluded that ‘separate educa-
tional facilities are inherently unequal’ and a denial of the
equal protection of the laws. A number of subsequent
decisions have attempted to implement the principles
asserted in Brown ‘with all deliberate speed’ in the area of
public education4,5 (Brown 1955 [known as Brown II];
Swann v. Charlotte-Mecklenburg Board of Education 1971).
Once the Court elects to apply the strict scrutiny stand-
ard, it virtually assures that the statute will be struck
down as unconstitutional. The last time such an inten-
tionally discriminatory racial or ethnic statute survived
strict scrutiny was Korematsu v. United States (1944), which
involved the forced internment of West Coast Japanese
after Pearl Harbor, based on the perceived compelling need
to avert espionage and sabotage. These extreme wartime
restrictions are generally regarded, in hindsight, as a
deplorable betrayal of basic constitutional protections
(Rostow 1945). Although the full scope of the Supreme
4
Brown is also the prototype for a series of desegregation cases
involving public transportation, housing, parks, golf courses,
beaches, etc. (Gunther 1991), all based on a finding of invidious
discriminatory purpose, which in turn triggered a strict scrutiny
standard of review.
5
Recall from Chapter 82, that the Court, in response to public pol-
icy considerations and changing social conditions, reserves the right
to overrule itself. Here, the Court overruled its decision in Plessy v.
Ferguson (1896), rejecting its own ‘separate but equal’ doctrine.
Court’s constitutional policymaking in the area of deseg-
regation (including the remedy of forced busing as a
judicially ordered desegregation tool) is well beyond our
purview in this chapter, it should be emphasized that:
The lesson of great decisions of the Supreme Court
and the lesson of contemporary history have been
the same for at least a generation: discrimination on
the basis of race is illegal, unconstitutional, inher-
ently wrong, and destructive of democratic society.
(Perry 1979, p. 1046, quoting Alexander Bickel)
Affirmative action (benign discrimination,
reverse discrimination)
Preferential treatment, whether in education, employ-
ment, business opportunities, or other areas, which is
designed to benefit non-whites perceived as disadvantaged
because of past racial discrimination, has generated a
firestorm of controversy and litigation. The use of affirma-
tive action programs, to attempt to redress the enduring
effects of the historical injustice of institutionalized
racism in the United States, may itself serve to undermine
the fundamental principle of racial equality in our soci-
ety. Perry (1979) outlines some of the cost and potential
pitfalls of affirmative action in the following terms:
1 Race-conscious affirmative action programs may
serve to reinforce unfortunate habits of perceiving
and dealing with people in terms of their membership
in a racial or ethnic group, rather than as individuals.
2 Affirmative action may lead to unfair stigmatizing of a
racial group that benefits from the program, stamping
the beneficiaries as inferior to other groups, whose
members must compete without the assistance of pref-
erential treatment.
3 To the extent that affirmative action disadvantages
whites, it may foment racial prejudice and resentment,
encourage a backlash of radical racial politics, and set
back the cause of racial equality.
The complexities of the Supreme Court’s responses to
challenges to affirmative action programs under the Equal
Protection Clause at times may seem incomprehensible
and confusing, even to lawyers who follow the Court’s
constitutional policymaking regarding this issue. An
adequate discussion of this area of the Court’s workload
would itself require a full-length treatise. Suffice it to say
that a few general principles have emerged, when the
Court attempts to resolve conflicts between the Equal
Protection Doctrine and efforts to reverse the effects of
past racial discrimination:
1 In general, any race-based classification, even when
motivated by affirmative action concerns, will be
accorded a presumption of unconstitutionality
(Emanuel 1991).
2 All race-conscious measures, regardless of their remed-
ial intent, will be subjected to the ‘strict scrutiny’
 A model of constitutional adjudication: the equal protection doctrine 777
standard of review. For example, a quota scheme for
preferential admissions to medical school (the reserv-
ing of a fixed number of seats for minorities) consti-
tutes a clear-cut denial of equal protection (University
of California Regents v. Bakke 1978). Non-quota
schemes, in conjunction with findings of a specific
pattern of past discrimination, and congressional
affirmative action measures (as opposed to state
measures) would not necessarily fail the strict scrutiny
test or might be reviewed under a less demanding
standard (in the case of congressionally established
racial preferences), the so-called ‘intermediate-level’
review6 (Richmond v. J. A. Croson Co. 1989; Metro
Broadcasting, Inc., v. FCC 1990).
Race-based affirmative action cases have come before the
Court in a variety of special contexts, in addition to pref-
erential university admissions: voting rights (United Jewish
Organizations v. Carey 1977), minority set-asides, hiring,
layoffs and promotions (Wygant v. Jackson Board of
Education 1986; Local 28 of the Sheet Metal Workers’ Inter-
national Association v. EEOC 1986), and others.
Classifications based on sex
In Frontiero v. Richardson (1973), the Court held that
classifications based on sex ‘like classifications based
upon race, alienage, or national origin … [are] inherently
suspect and must therefore be subjected to strict judicial
scrutiny.’ The Court held that the Equal Protection
Clause was offended by a statute that limited a woman air
force officer’s right to dependency benefits for her hus-
band (requiring proof that her spouse was actually depend-
ent on her for over half of his support), whereas male
members of the armed forces were allowed to claim
wives as dependents without such proof.
In Craig v. Boren (1976), the Court retreated from the
more exacting ‘strict scrutiny’ standard and settled on the
‘intermediate scrutiny’ level of review for all future sex-
based classifications.7 In Craig, a statute that denied beer
sales to males under age twenty-one and females under
age eighteen was struck down as unconstitutional, because,
although it promoted an important government object-
ive (traffic safety), the state was unable to show a
substantial relation between the sex-based classification
and the achievement of its objective. (The Court rejected
the state’s statistical evidence of a great risk of arrest for
drunken driving in eighteen- to twenty-year-old males
compared to females as insufficient.)
6 responsibility to resolve the federal and constitutional
Under the intermediate level of scrutiny, classifications ‘must serve
important governmental objectives and must be substantially related
to the achievement of those objectives’ (Craig v. Boren 1976).
7
The only truly suspect classifications are race and national origin.
Sex, alienage, and illegitimacy are treated as ‘semi-suspect’ classi-
fications (‘quasisuspect’).
In Mississippi University for Women v. Hogan (1982),
the Court held that a state university may not constitu-
tionally bar men from its nursing school. Exceedingly
persuasive justification would be required for such a
gender-based classification, but the state failed to meet its
burden by arguing that its single-sex admissions policy
attempted to compensate for past discrimination against
women. The Court rejected this contention and held that
the policy perpetuated ‘the stereotyped view of nursing
as an exclusively woman’s job.’
In Hishon v. King and Spalding (1984), the Court held
that the petitioner had stated a claim cognizable under
Title VII of the 1964 Civil Rights Act and was entitled to
her day in court to prove allegations that she was denied
a partnership in a law firm because of gender discrimin-
ation. In Califano v. Webster (1977), the Court held that
Congress could ‘discriminate’ between men and women
to compensate the latter for past discrimination. In order
to redress ‘our society’s longstanding disparate treatment
of women,’ the Court upheld a Social Security Act scheme
entitling women to greater benefits than men. (In view of
the fact that, generally, women’s past earnings were lower
than men’s as a consequence of past discrimination,
women were allowed to exclude three more lower-earning
years to calculate their ‘average monthly wage’ than could
male workers.)
BUSH v. GORE
Even this concise overview of the United States Supreme
Court’s modern equal protection cases would be incom-
plete without reference to the landmark case that deter-
mined the final outcome of the 2000 Presidential election,
i.e., Bush v. Gore (531 U.S. 98). Although the Supreme
Court’s decisive involvement in the electoral process was
highly controversial at the time (and even, according to
some legal commentators, may have served to tarnish the
High Court’s image), a majority of the Justices felt that
the Court had no alternative but to meet its responsibil-
ity in deciding the case:
While none are more conscious of the vital limits on
judicial authority than are the members of the United
States Supreme Court – and while none stand more in
admiration of the Federal Constitution’s design to
leave the selection of the President to the people,
through their legislatures, and to the political sphere –
when contending parties invoke the process of the
courts with respect to a state’s results in a Presidential
election, it becomes the Supreme Court’s unsought
issues which the judicial system has been forced to
confront. (531 U.S. 98)
Basing its opinion on the Equal Protection Doctrine,
the Court, on December 12, 2000, reversed the Florida
778 Basic issues in law
Supreme Court’s judgment ordering a recount to proceed
and, in a per curiam opinion expressing the view of
Rehnquist, Ch. J., and O’Connor, Scalia, Kennedy, and
Thomas, J.J., held that there was a violation of the equal
protection clause of the Constitution’s Fourteenth
Amendment with respect to the Florida Supreme Court’s
judgment – and there was no recount procedure in place,
under that judgment, that comported with minimal
standards required under the Fourteenth Amendment –
for regardless of whether the Florida Supreme Court had
the authority, under the State’s legislative scheme for
resolving election disputes, to define what a legal vote
was and to mandate a manual recount implementing
that decision, the court’s recount mechanism did not sat-
isfy the minimum requirements for the non-arbitrary
treatment of voters that were necessary to secure the
fundamental right to vote as the state’s legislature had
prescribed.
The Court went on to say that:
When a state’s legislature … vests the right to vote for
Presidential electors in the state’s people, one source
of the fundamental nature of the right to vote as the
legislature has prescribed lies in the equal weight
accorded to each vote and the equal dignity owed to
each voter; pursuant to the equal protection clause
of the Constitution’s Fourteenth Amendment, the
right to vote is protected in more than the initial
allocation of the franchise, for (1) equal protection
applies as well to the manner of the exercise of the
franchise, and (2) the state, having once granted the
right to vote on equal terms, may not, by later arbi-
trary and disparate treatment, value one person’s
vote over that of another; the right of suffrage can
be denied by a debasement or dilution of the weight
of a citizen’s vote just as effectively as by wholly
prohibiting the free exercise of the franchise. (531
U.S. 98)
CONCLUSIONS
Limitations of space enjoin us from further consideration
of the seemingly endless reach of constitutional adjudi-
cation invoking the Equal Protection Clause over the past
generation. The reapportionment cases (Baker v. Carr
1962; Reynolds v. Sims 1964) – which led to the develop-
ment of the famous ‘one person, one vote’ principle –
classifications based on alienage, illegitimacy, mental
retardation, and mental illness,8 and those burdening
fundamental rights, have comprised some of the court’s
8
Psychiatrists might be especially interested in City of Cleburne v.
Cleburne Living Center (1985), which refused to treat mental retard-
ation as a ‘quasisuspect’ classification. Mental illness has never
been treated as a suspect class by the Court (see e.g., Baxstrom v.
Herold 1966; Jackson v. Indiana 1972; Note 1974).
most important work during this period. Judicial activists
using the Equal Protection Clause ‘as a vehicle for expand-
ing the use of constitutional adjudication as an instrument
of reform … [brought about] a revolution in constitutional
law’ (Cox 1979, pp. 57, 72). In giving meaning to the
phrase ‘equal protection of the law,’ the Court has demon-
strated that it ‘could be a major instrument of change,
that it could establish new goals for the nation, articulate
a new moral sense for the people and, in effect, reorgan-
ize the political structure of the country itself ’ (Friedman
1980, p. vii).
REFERENCES
Baker v. Carr, 369 U.S. 186 (1962).
Baxstrom v. Herold, 383 U.S. 107 (1966).
Berger, R. 1977: Government by Judiciary: The
Transformation of the Fourteenth Amendment.
Cambridge, MA: Harvard University Press.
Bolton v. Harris, 395 F.2d 642 (1968).
Brown v. Board of Education, 347 U.S. 483 (1954).
Brown v. Board of Education, 349 U.S. 294 (1955).
[“Brown II”].
Bush v. Gore, 531 U.S. 98 (2000).
Califano v. Webster, 430 U.S. 313 (1977).
City of Cleburne v. Cleburne Living Center, 473 U.S. 432
(1985).
Cox, A. 1979: The Role of the Supreme Court in American
Government. New York: Oxford University Press.
Craig v. Boren, 429 U.S. 190 (1976).
de Tocqueville, A. 1945: Democracy in America. Volume 2.
New York: Alfred A. Knopf.
Emanuel, S. 1991: Constitutional Law. Larchmont:
Emanuel Law Outlines.
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).
Friedman, L. 1980: The Warren Court: an editorial
preface. In Sayler, R.H., Boyer, B.B., Gooding, R.E., Jr.
(eds), The Warren Court: A Critical Analysis. New York:
Chelsea House, vii–ix.
Frontiero v. Richardson, 411 U.S. 677 (1973).
Gregory v. Ashcroft, 59 U.S.L.W. 4714 (June 20, 1991).
Gunther, G. 1991: Cases and Materials on Constitutional
Law. 12th edition. Mineola: Foundation Press.
Hishon v. King and Spalding, 467 U.S. 69 (1984).
Humphrey v. Cady, 405 U.S. (1972).
Jackson v. Indiana, 406 U.S. 715 (1972).
Korematsu v. United States, 323 U.S. 214 (1944).
Levy, L. 1967: Judicial Review and the Supreme Court.
New York: Harper and Row.
Lewis, A. 1980: Earl Warren. In The Warren Court: A
Critical Analysis. In Sayler, R.H., Boyer, B.B.,
Gooding, R.E., Jr. (eds), The Warren Court: A Critical
Analysis. New York: Chelsea House, 1–31.
Local 28 of the Sheet Metal Workers’ International
Association v. EEOC, 478 U.S. 421 (1986).
 A model of constitutional adjudication: the equal protection doctrine 779
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816).
Massachusetts Board of Retirement v. Murgia, 427 U.S.
307 (1976).
Metro Broadcasting, Inc., v. FCC, 110 S. Ct. 2997 (1990).
Mississippi University for Women v. Hogan, 458 U.S. 718
(1982).
Note. 1969. Developments in the law – equal protection.
Harvard Law Review 82, 1065–192.
Note. 1974. Mental illness: a suspect classification? Yale
Law Journal 83, 1237–70.
Perry, M.J. 1979. Modern equal protection: a
conceptualization and appraisal. Columbia Law
Review 79, 1023–84.
Plessy v. Ferguson, 163 U.S. 537 (1896).
Reynolds v. Sims, 377 U.S 533 (1964).
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
Rostow, W. 1945. The Japanese American cases – a
disaster. Yale Law Journal 54, 489–534.
Strauder v. West Virginia, 100 U.S. 303 (1880).
Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1 (1971).
United Jewish Organizations v. Carey, 430 U.S. 144 (1977).
United States v. Carolene Products Co., 304 U.S. 144 (1938).
University of California Regents v. Bakke, 438 U.S.
265 (1978).
Van Alstyne, A., Karst, K., Gerard, J. 1981: Sum
and Substance of Constitutional Law. 3rd edition.
Los Angeles: Center for Creative Educational
Services.
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).
Yick Wo v. Hopkins, 118 U.S. 356 (1886).

An introduction to tort law
DANIEL W. SHUMAN AND MICHAEL HEINLEN
INTRODUCTION
Over the past several years, psychiatrists have increasingly
appeared as parties in legal disputes ranging from crim-
inal actions, to contract claims and malpractice suits.
Indeed, psychiatrists today face a broad range of poten-
tial liabilities as a result of their professional activities.
Consider the following scenario. A former patient has
accused her psychiatrist of engaging in sexual activity with
her during the course of treatment. As a result, the psych-
iatrist faces criminal sexual assault charges, he is being
sued by the former patient for battery and malpractice,
the hospital with which he had been affiliated has termin-
ated his privileges, and his insurance carrier says it will
not bear the costs of his defense nor pay any damages
assessed against him at trial. This example (which, unfor-
tunately, is not unusual) illustrates the three types of legal
dispute a psychiatrist is most likely to encounter during
his/her professional life: criminal, contract, and tort.
Criminal law involves the state asserting its interest in
maintaining public order. It does not seek to resolve
private disputes; rather, its goals are to punish or reform
offenders and to deter crime (Holmes 1881, pp. 41–51). In
a criminal trial, the prosecutor, acting as the state’s agent,
brings charges against a defendant and must prove beyond
a reasonable doubt (i.e., with 90–95 per cent certainty)
that the defendant committed the crime. At the end of
the trial, the fact finder, often a jury, decides whether the
defendant is guilty or innocent. In the present example,
the state’s interest is in preventing sexual assault. In most
jurisdictions, the prosecutor in such a case must con-
vince a jury that the sex acts occurred and were not con-
sensual (Simon 1998a, pp. 202–3). That is, the state must
prove that the psychiatrist coerced his patient into
engaging in sexual activity with him. The use of drugs,
hypnotism, or threats of harm to induce compliance can
be presented as evidence that the acts were involuntary,
and coercion is assumed if the patient was a minor or
incompetent. Several states go further and ban any sexual
contact between psychiatrists and their patients. In those
84
states, the prosecutor need only prove that the sexual
conduct occurred and that it was intentional.
Civil law, as opposed to criminal law, comprises con-
tract law and tort law, and has evolved to settle disputes.
Contract law comes into play when parties to an agreement
disagree about the terms of that agreement (Farnsworth
1990, pp. 1–24). Typically in a contract suit, one party
believes the other has failed to fulfill its obligations under
the agreement. The aggrieved party, the plaintiff, sues the
other, the defendant, for breach of contract. Each pre-
sents its evidence and arguments at trial, and the fact
finder finds for either the plaintiff or the defendant. If it
finds for the plaintiff, the defendant can be forced to
comply with the terms of the contract or compelled to
pay money damages to the plaintiff for losses incurred as
a result of the breach. Our example presents two possible
contractual disputes. First, the psychiatrist might bring
an action against the hospital for terminating his priv-
ileges. Second, in the event he is found liable in the mal-
practice suit, he may claim that his insurance policy
binds the insurer to pay any damages assessed against him.
In either case, the result will depend on an analysis and
interpretation of the terms of the pertinent contract.
Tort law seeks to resolve disputes over attribution of
blame and responsibility for harm (Prosser 1971, pp. 1–7).
Like criminal law, it comes into play when someone’s
actions violate social norms. Unlike criminal law, however,
in tort law the injured parties, not the state, may choose
to sue those who injured them. Thus, a plaintiff brings an
action against a defendant, claiming that the defendant
harmed him/her. At trial, the fact finder must decide by a
preponderance of the evidence (i.e., greater than 50 per
cent certainty) whether the defendant is liable for the harm.
If the defendant is found liable, the fact finder can
assess damages to be paid to the plaintiff. In the example,
battery and psychiatric malpractice are tort claims. To
prevail on her battery claim, the patient, like the prosecu-
tor in the criminal trial, will need to convince the fact
finder that the psychiatrist coerced her into engaging in
the sexual activity. Unlike the prosecutor, however, she

need only prove this by a preponderance of the evidence,
not beyond a reasonable doubt. Because this is a civil
action brought by a plaintiff, double jeopardy is not an
issue. The psychiatrist can be found guilty at the criminal
trial and liable in the civil trial (or, as in the O.J. Simpson
trials, he can be found innocent of the crime, but liable
for the tort). Finally, the patient can win in the tort action
even if she consented to the sexual conduct. If she can
prove that it falls below the requisite standard of care for
a psychiatrist to have sex with a patient and that the sex-
ual activity aggravated her underlying condition, the fact
finder can find the psychiatrist liable for malpractice.
During the past thirty years the chances that a psych-
iatrist will be sued have increased dramatically. In the
1970s, one of every forty-five psychiatrists was sued per
year. During the 1980s the chance of being sued in
any single year had increased to one in twenty-five, and by
1998 those odds had jumped to about one in twelve
(Simon 1998b, p. 117). The Professional Liability Insurance
Program, sponsored by the American Psychiatric Associ-
ation, cites managed care, sicker patients, media scrutiny
of recovered memory and ritual satanic abuse cases, a
widening range of practice and specialization areas, and
failed tort reform initiatives as reasons for the burgeon-
ing number of suits (Benefacts 1996). Additionally, courts
have made it possible for more plaintiffs to recover for their
injuries by recognizing new causes action. The under-
lying principles of tort law, however, have not changed,
and now, more than ever, it is essential for psychiatrists to
be familiar with those principles.
WHY HAVE TORT LAW?
Before tort law as we know it now existed, private
vengeance was a sacred duty. If your neighbor mistook
your father for a wild boar and shot him with an arrow,
you did not bring a wrongful death action. Rather, you
and your family undertook a moral obligation to kill
a member of the offender’s family. This was the blood
feud. Though it came to be regulated – the types of wrongs
that could be expiated by blood were ultimately limited,
as were the days and locations on which revenge could be
exacted – private wrongs were settled privately throughout
most of the middle ages (Bloch 1961, pp. 125–30). Since
that time, tort law has evolved as an alternative means of
dispute resolution.
Justifications for tort law
In common law jurisdictions, such as England and the
United States, tort law has developed into a system that
assigns responsibility for harm to wrongdoers and
compensates injured parties for their losses. It is a judge-
made collection of rules to impose liability for damages.
Theorists justify tort law primarily on four grounds: it
An introduction to tort law 781
maintains public order; it alleviates the hurt suffered by
victims of wrongdoing; it compensates those victims for
their losses; and it deters harmful behavior (Prosser 1971,
pp. 1–7; Shuman 1994, pp. 39–48). As to the first, one of the
reasons tort law originally developed was to constrain the
mayhem inherent in a legal system based on the blood
feud. Today, it remains a tool for channeling angry con-
flicts into (relatively) peaceful confrontations. Further,
insofar as it imposes moral and financial responsibility
for harm on wrongdoers, tort law helps appease the need
for vengeance satisfied by the blood feud.
On a more tangible level, the award of damages in tort
judgments is justified on the ground that they restore
victims to their pre-harm state. For example, if you wreck
my car, I am entitled to an award of damages to cover
both the cost of repairing or replacing the car and any
expenses and losses incurred as a result of the accident.
Thus, tort law compensates people who have been injured
by unsafe behavior. Forcing wrongdoers to pay for their
mistakes may also deter harmful behavior. Indeed, these
are the two most common justifications for tort law. Simply
put, tort law emphasizes restitution and deterrence. It
compensates people harmed as a result of unsafe behav-
ior that society wants to prevent.
There are, however, significant problems with these jus-
tifications. On the most basic level is the absence of proof
that fear of potential tort liability alters people’s behavior
(Shuman 1993, pp. 165–6). Even if such a connection
could be established, liability insurance and government
compensation programs, along with the time and expense
of litigation, minimize the deterrent effects of tort law.
Recent studies show that 90 per cent of accident victims
who recover for their losses are paid by third-party
insurers or compensation plans, not through tort actions.
In addition, the high emotional and monetary cost of
taking a case to trial discourages many victims from
making claims (Hensler et al. 1991, pp. 107–8, 175). In
practice, only insured or wealthy wrongdoers who have
caused serious, that is, costly, injuries get sued. As a result,
much harmful behavior escapes the tort system.
The time, expense, and emotional upheaval of litiga-
tion also make clear that tort law is not the most effective
means of compensating injury victims. Indeed, the costs
of obtaining tort compensation are higher than for other
compensation systems. Thus, tort law cannot quickly
and efficiently be justified by its ability to provide victims
with money to restore them to their pre-accident status
(Shuman 1994, p. 48).
A further problem with justifying tort law on the
ground that it restores plaintiffs to their pre-accident status
is that many damage awards include sums to cover losses
realized due to pain and suffering. Unlike tangible losses,
pain and suffering cannot readily be valued in monetary
terms. Though it is relatively easy to compute the money
needed to replace a car or to pay hospital expenses, how
does one appraise the value of pain endured as a result
of a car accident? Simply put, ‘tort damages cannot “buy
782 Basic issues in law
out” the pain in the same way they can “buy out” the hos-
pital bill’ (Shuman 1994, p. 46). Insofar as money dam-
ages literally cannot restore victims to a pain-free state,
an alternative theory has been offered to justify them.
Accordingly, proponents argue that damages for pain
and suffering serve as offsetting substitute pleasures
(Ingber 1985, p. 784). Even though someone might suffer
from chronic pain, that pain can be offset, for example,
by the ability to buy a fancy house or to relax on the beach
in Hawaii. Unfortunately, there is no empirical evidence
to support the contention that damage awards can, in fact,
mitigate a victim’s pain (Shuman 1994, p.47 n. 37).
There are, thus, numerous unsettled issues regarding
the policies and rationales underlying tort law. Despite
such theoretical debates, it remains, without question,
a body of law that functions in practice to make people
who engage in unsafe conduct subject to liability to their
victims when that conduct results in injury.
VARIETIES OF TORT
Historically, tort law has been concerned with two types
of injury-causing behavior: negligent, and intentional.
During the twentieth century, most tort actions have
been based on negligence. The law holds people respon-
sible when their careless behavior harms others. Tort
law also compensates victims of intentionally bad acts.
Someone who commits assault and battery may not only
have to answer to the state in a criminal trial, but he or
she can be sued by the victim in a civil trial and be the
subject of an award of damages. Although tort claims
against psychiatrists are limited to claims of negligent and
intentional tort actions, there is a third variety of tort,
strict liability, which is confined almost solely to cases
involving the marketing and distribution of dangerous
products. This is an unusual tort because a defendant
can be found liable even without a showing of fault. In
a strict products liability action, the plaintiff need only
prove that a seller or manufacturer of dangerously defect-
ive goods placed those goods into the stream of com-
merce and that those goods caused harm (Restatement
(Second) of Torts 1965, § 402A). There is no requirement
that the defendant intended to market defective goods,
or even that she or he carelessly marketed them. The only
issue is whether they were, in fact, dangerous or defective
goods that caused harm.
Negligent torts
A plaintiff must prove four essential elements to prevail
in a tort suit based on negligence: duty, breach, cause, and
harm (Prosser 1971, pp. 143–4). That is, he or she must
show that the alleged wrongdoer owed him/her a duty of
care, that the defendant breached that duty, and that the
breach resulted in (caused) harm. In analyzing negligence
cases, the general standard by which the defendant’s duty
is measured is reasonable care under the circumstances
(Terry 1915). The issue is whether a reasonable person in
the defendant’s position would have acted as the defend-
ant did.
As an example, a store owner has a duty to the public
to maintain the sidewalk in front of his store in a safe,
passable condition. This duty arises from the fact that
whenever someone engages in behavior that will foresee-
ably have an impact on other people, such as exploiting
a public sidewalk for the purpose of attracting customers,
he or she has a duty to behave in a manner that will not
harm those people. If the store owner allows the concrete
on the walk to become so worn and cracked that people
might trip when passing by, he/she risks a negligence
action in the event someone falls and hurts themselves.
By neglecting to maintain the walk, he or she breached
his/her duty, and any injury caused by that breach is
compensable in tort. Note that a plaintiff need not prove
intent in a negligence action. It is irrelevant that the store
owner did not mean to hurt anyone. The only issue is
whether he or she failed to use reasonable care in fulfilling
their duty.
The defendant in such a case can offer a variety of
responses. For instance, they can deny that they breached
their duty, arguing that it would have been unreasonable
to expect them to maintain the walk in better condition
than they did. They can dispute causation, arguing that
the plaintiff ’s injuries occurred because someone pushed
them, not because they tripped on the defective sidewalk.
Or the defendant can question the harm, for instance, by
claiming that no damage was done. If the plaintiff waited
too long to file the lawsuit, the shopkeeper can even bar
the claim on procedural grounds. Every state has a statute
of limitations that requires tort suits to be brought within
a specified period after discovery or occurrence of the
allegedly negligent act.
PSYCHIATRIC MALPRACTICE
Medical malpractice refers to negligent torts committed
by healthcare professionals acting in the course of their
professional duties. Thus, when a psychiatrist’s unrea-
sonable care causes harm to a patient, or to a third party
to whom a duty is owed, he or she may be liable for mal-
practice. In the context of malpractice claims, the duty
element of the tort is normally established by showing
the existence of a doctor–patient relationship (Simon
1998a, pp. 21–3; Rigelhaupt 1982). As soon as a psychiatrist
agrees, either explicitly or implicitly, to diagnose or treat
a patient, duties arise. Whether such an agreement was
made is a fact question, and when this is in dispute, the
court must decide. Generally, however, it is not difficult
for plaintiffs to prove the element of duty. Giving advice
to friends and neighbors, providing sample medications,
or prescribing medication during the course of independ-
ent medical evaluations can give rise to a doctor–patient

relationship. The psychiatrist’s duty to the patient then
remains until the doctor–patient relationship is termin-
ated, either by a unilateral act of the patient, mutual
agreement that services are no longer required, or by
a unilateral act of the psychiatrist (in the latter case, ter-
mination should be accompanied by reasonable notice to
the patient and assistance in providing a new therapist).
Having established the doctor–patient relationship,
the psychiatrist is obligated to exercise reasonable care in
his/her treatment. Failure to exercise that standard of care
is a breach of the duty to the patient. This does not mean
the treatment must be perfect or extraordinary; rather, it
means that the psychiatrist must ‘possess and exercise the
degree and learning ordinarily possessed and exercised,
under similar circumstances, by the members of his pro-
fession in good standing, and to use ordinary and rea-
sonable care and diligence, and his best judgment, in the
application of his skill to the case’ (Corpus Juris Secundum
1987, p. 70: Physicians and Surgeons § 64a). The issue of
whether a defendant exercised the requisite standard of
care in any given case is a fact issue to be determined by the
fact finder based on the testimony of expert witnesses.
Indeed, this is where most of the action in malpractice
suits lies.
Courts have recently found that psychiatrists also owe
duties to third parties in two contexts. When, for example,
a psychiatrist recognizes, or reasonably should recognize,
that a patient poses an imminent threat of serious harm
to an identifiable third party, in many states the psych-
iatrist has a duty to protect that individual from injury.
Failure to warn the intended victim or notify the police
may be a breach of the duty (Simon 1998a, pp. 165–7).
The second situation in which psychiatrists have been
found to owe duties to third parties arises in the context
of cases involving recovered memory of sexual abuse and
ritual satanic abuse. In many states, therapists have been
found to owe a duty to individuals who could potentially
be misidentified as playing roles in such abuse. Thus, if,
as a result of treatment, the patient falsely accuses some-
one of abuse, the psychiatrist has breached his/her duty to
that individual and may be liable for damages (Kosmund
Murray 1995; Simon 1998b, pp. 132–6).
Once duty and breach have been established, a plaintiff
must still prove that the breach caused injury. Tort law
divides the causation element into two categories: cause-
in-fact, and proximate cause. Cause-in-fact analysis con-
siders whether the injury would have happened regardless
of the psychiatrist’s bad act. This is often expressed as the
‘but for’ analysis, and it asks, ‘But for the wrongful qual-
ity of the therapist’s conduct, would the plaintiff have
suffered the same harm?’ (Robertson 1997). If the injury
would have occurred even without the wrongful conduct,
the causation requirement is not satisfied. However, if it
is found to have been a cause-in-fact of the injury, the
next question becomes whether it was also the proximate,
or legal cause. Here, the issue turns on foreseeability. The
psychiatrist will not be liable for every consequence of
An introduction to tort law 783
his/her actions, only those with a reasonably close, prox-
imate, nexus to the wrongful act. The standard used in
making this determination is reasonable foreseeability.
When a reasonable person would have foreseen the risk
of harm, the proximate cause element is met (Kelley 1991).
If the plaintiff can prove that he or she suffered harm
as the result of a breach of the defendant’s duty to him/
her, he or she is entitled to an award of compensatory
damages intended to restore him/her to the position he/
she would have been if there had been no negligent act.
In extreme cases, involving willful, malicious, or reckless
behavior, punitive damages may also be awarded. Negli-
gence alone will not merit punitive damages, which are
intended to punish the defendant, rather than to com-
pensate the victim (Prosser 1971, pp. 9–14, 313–23).
MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC
MALPRACTICE: NEGLIGENT TREATMENT
The law does not demand successful treatment, it merely
requires that a psychiatrist perform in a manner consistent
with the way an average reasonable psychiatrist would
perform under similar circumstances. Although this is
a rather nebulous standard, courts do consider a number
of specific practices as essential elements of the standard
of care psychiatrists owe their patients. These include the
duty to obtain a complete clinical history, to disclose ad-
equate information to gain informed consent for treat-
ment, to document all decisions made during the course
of treatment, to supervise the patient’s progress – both
during and after treatment – and to monitor reactions to
medication. Failure to comply with any of these duties
can subject a psychiatrist to liability if his/her patient
suffers harm as result of treatment (Sarno 1981; Simon
1998a, pp. 87–8).
MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC
MALPRACTICE: CONFIDENTIALITY
Once the doctor–patient relationship has been established,
a psychiatrist owes his or her patient a duty to maintain
the privacy of all confidential communications between
them (Zelin 1986; Shuman and Weiner 1987; Simon 1998a,
pp. 41–4, 53–5). The issue of confidentiality actually
involves two related concepts: confidentiality, per se, and
testimonial privilege. The duty of confidentiality is an
ethical obligation that protects a patient’s privacy by pre-
venting disclosure of confidential information to third
parties. Testimonial privilege refers to the patient’s right
to prevent a physician from disclosing information in a
judicial proceeding. Testimonial privilege is most often
established by statute or court rule, and it purports to
resolve the ethical dilemmas on the part of a physician
faced with conflicting duties, one to his/her patient to
maintain confidentiality, and another to a court to tell
the truth. Statutes or court rules resolve the dilemma by
giving the patient the right to prevent the physician from
784 Basic issues in law
testifying. In effect, they codify a public policy judgment
that it is more important to safeguard patient privacy gen-
erally than to ascertain the truth in specific trial situations.
Absent an exemption, the psychiatrist who breaches
his or her duty to maintain patient confidentiality risks
a malpractice action. There are, however, several exemp-
tions; the duty of confidentiality is not absolute. In certain
circumstances it may be both legally and ethically per-
missible, even necessary, to divulge patient confidences.
A patient, for example, may waive the right to confiden-
tiality by requesting that medical records be sent to poten-
tial employers or insurers. Similarly, there is no right to
confidentiality when a patient consents to be examined
at the request of a third party, as for example in a disabil-
ity hearing or litigation. There are also a number of
contexts in which a psychiatrist may divulge patient
information without the patient’s consent. For instance,
if the psychiatrist determines that a patient poses a risk
of committing violence to self or others, and the violence
can only be prevented by intervention, the psychiatrist
may intervene. Likewise, if the patient’s judgment is
markedly impaired and other people’s lives depend on
his or her sound judgment, as for example, an airline pilot
or police officer, the psychiatrist may choose to divulge
that information. In such cases, disclosure is a matter of
choice, the psychiatrist has the option of maintaining the
patient’s confidence or disclosing the information. In
other instances, there is no choice. Statutes define certain
situations which mandate disclosure. Though these vary
from state to state, statutory disclosure requirements
typically apply in the following scenarios: when there is
evidence of child abuse; on the initiation of involuntary
hospitalization; when an identifiable third party has been
threatened; where there is evidence of a past treasonous
act; where there is intention to commit a future crime.
There are also exceptions to the testimonial privilege.
For instance, it generally does not apply in criminal pro-
ceedings, child custody disputes, child abuse proceedings,
or civil commitment proceedings. Significantly, when a
patient-litigant’s claim or defense rests on his or her men-
tal state, that patient loses the right to prevent the psych-
iatrist from testifying. Thus, there will be no privilege in
a malpractice suit brought by the patient against his or
her therapist.
MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC
MALPRACTICE: NEGLIGENT RELEASE AND
SUICIDE
As discussed, one of the general rules of tort liability is that
a plaintiff ’s negligent act must be the proximate cause of
the defendant’s injury. If someone carelessly spills gas-
oline on the street, he or she will not necessarily be liable
for the damage that follows when someone else inten-
tionally throws a cigarette into the spill and causes a fire.
The act of intentionally throwing the cigarette was an
intervening cause of the fire, which arguably superseded
or broke the chain of causation between the careless spill
and the damage. Ordinarily, only if the intervening act is
careless or negligent are courts likely to find that the
person who spilled the gasoline should have foreseen that
a cigarette would be thrown into the spill (Prosser 1971,
pp. 270–89).
This is important to keep in mind with respect to the
most common psychiatric malpractice claim – failure to
prevent a patient from harming him/herself (Simon 1998a,
pp. 139–43; Kussman 2000). Normally, suicide constitutes
an intervening cause; regardless of anyone else’s careless
behavior, the suicide victim’s own acts ultimately caused
the harm. Psychiatrists, however, have a duty to protect
their patients from themselves. The standard of care
owed to all patients, regardless of the initial complaint,
includes suicide risk assessments. Thereafter, if there is
a perceived risk, the psychiatrist must take affirmative
action to protect the patient. Failure either to diagnose
the risk or to take adequate precautionary measures can
result in liability when the patient commits or attempts
to commit suicide. In either event, the reasonableness
standard still applies. The plaintiff must show that the
suicide was reasonably foreseeable or that, in view of the
perceived risk, the precautions taken were unreasonable.
Generally, the risk of liability is greater for inpatient
than for outpatient suicides. Courts assume that it is easier
to anticipate and manage suicidal patients in the controlled
setting of a hospital. Typical claims involving inpatient
suicides include charges of failure to supervise, failure
to restrain, premature release, and negligent discharge.
Limitations of control help shield psychiatrists from
liability in cases involving outpatient suicides. In those
situations, as noted, courts consider whether the treat-
ment was reasonable. Claims might include charges of
improper diagnosis, inadequate supervision, abandon-
ment, lack of proper referral, or failure to hospitalize.
A recent North Carolina case presents a cautionary
example of what can happen when a psychiatrist
breaches the duty to protect patients from themselves
(Glaberson 1998). The case involved a law student, Wendell
Williamson, who suffered from paranoid schizophrenia.
Williamson was seen by a psychiatrist at the student
health service at Williamson’s university on six occasions
prior to the psychiatrist’s retirement. Eight months after
their last session, Williamson shot and killed two people
on a street in Chapel Hill. He was tried for murder and
found not guilty by reason of insanity. While in a psych-
iatric hospital following the trial, Williamson filed suit
against his psychiatrist, claiming misdiagnosis, inadequate
supervision, and improper referral. The jury accepted
these claims and awarded $500 000 in damages as com-
pensation for being confined to a mental institution.
At first, this result seems counterintuitive. Williamson
did the killing; it was his own act that resulted in the hos-
pitalization. Nevertheless, the jury found that the psych-
iatrist breached his duty to Williamson by failing to tell
him how sick he was or to advise him on the necessity of

strictly following his drug regimen. Further, the jury
believed that a reasonable psychiatrist would have foreseen
that Williamson would act violently without such a warn-
ing. The issue, as in the case of a suicide, was whether
the psychiatrist should have reasonably foreseen that the
patient would act as he did. If Williamson had killed
himself and not someone else, his family would have had
a wrongful death cause of action against the psychiatrist.
The fact that the plaintiff here was the patient, himself,
rather than a surviving family member might be initially
disturbing, but the issue remains the same. A psychiatrist
has a duty to protect his or her patients from themselves.
MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC
MALPRACTICE: DUTY TO PROTECT
Not only must psychiatrists exercise a duty to prevent
patients from harming themselves, under certain circum-
stances they must act to prevent their patients from harm-
ing third parties. This is counter to the conventional rule,
which holds that people have no duty to prevent one
person from harming another (Restatement (Second) of
Torts, § 315A). Indeed, psychiatrists traditionally had only
a limited duty to exercise control over institutionalized
patients. Since 1976, however, with the decision in
Tarasoff v. Board of Regents of the University of California,
a California malpractice case, the psychiatrist’s duty to
third parties has expanded dramatically. Tarasoff involved
a therapist who knew his patient was obsessed with another
person. When murder eventually occurred, the victim’s
family sued, claiming the therapist had breached a duty to
warn the victim about the threat to her life. The California
Supreme Court ultimately agreed, holding that:
once a therapist does in fact determine, or under
applicable professional standards reasonably should
have determined, that a patient poses a serious dan-
ger of violence to others, he bears a duty to exercise
reasonable care to protect the foreseeable victim of
that danger. While the discharge of this duty of due
care will necessarily vary with the facts of each case,
in each instance the adequacy of the therapist’s con-
duct must be measured against the traditional negli-
gence standard of the rendition of reasonable care
under the circumstances. (Tarasoff v. Board of Regents
of the University of California, p. 345)
In reaching its decision, the court recognized that a duty
to warn already existed in the context of certain, special
relationships. If one person has a right to control another
person, that right creates a duty to control the person’s
conduct. Thus, for example, a physician would be liable
for harm done by a patient on temporary leave from
a mental hospital. Tarasoff expanded the existing law by
designating the therapist–patient relationship as one of
the special relationships that gives rise to such a duty.
Since Tarasoff, a majority of the states have established
rules requiring psychiatrists to act affirmatively to protect
An introduction to tort law 785
third parties from a patient’s violent acts. Though the laws
vary, the general rule is that a duty to protect arises when
a therapist determines, or by the standards of the profes-
sion should have determined, that a patient poses an
imminent threat to an identifiable third party. The key
issues are whether the violent act was foreseeable, whether
there was an identifiable victim, and whether the psych-
iatrist implemented an affirmative, preventive act by warn-
ing the victim or notifying appropriate authorities (Perlin
1992; Simon 1998a, pp. 165–70).
MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC
MALPRACTICE: SEXUAL EXPLOITATION
Psychiatrists have a duty to refrain from having sex with
their patients, and the states have been particularly reso-
lute in enforcing this duty. Indeed, sexual contact with
a patient subjects a psychiatrist to a host of legal and pro-
fessional consequences, ranging from criminal prosecution
on charges of sexual assault or rape; to civil suits alleging
negligence, loss of consortium, or battery; to ethical
sanctions; to license revocation (Flaherty 1988; Simon
1998a, pp. 199–204). In the context of a malpractice claim,
a plaintiff generally must prove that sexual contact took
place in breach of the duty, and that harm, typically
a degeneration in psychological condition, resulted. A
number of states have made it easier for plaintiffs to
prevail, however, by enacting statutes that make any
sex between a therapist and patient both criminally and
civilly actionable. Such laws create a statutory presump-
tion of harm whenever a therapist engages in sex with
a patient. Some states even allow the patient’s spouse to
bring an independent claim of loss of consortium (inter-
ference with the marital relationship) against the offending
therapist. Though there are several potential defenses,
including claims that the patient had consented or that
treatment had already ended, once the court finds that
sexual activity took place, it is exceedingly difficult for
the defendant to prevail.
Intentional torts
The general rule regarding intentional torts is that a person
is liable for harmful or offensive contact if he or she engages
in a willful act with either: (i) the intent to harm or offend;
or (ii) substantial certainty that harmful or offensive con-
tact will result (Prosser 1971, pp. 31–4). Whether contact
is offensive is determined on the basis of a reasonableness
standard (contact is offensive if it offends a reasonable
sense of personal dignity). Therefore, a plaintiff bringing an
intentional tort claim must prove that the defendant
intentionally did something harmful or offensive or that
the defendant knew with substantial certainty that his or
her actions would result in harm or offense (Jung and
Levine 1987). Characteristic intentional torts include
assault, battery, false imprisonment, and defamation.
786 Basic issues in law
To the extent that a plaintiff must prove what was
in the defendant’s mind at the time he or she acted, it is
generally more difficult to prove intent than negligence.
However, once intent has been shown, it becomes much
easier to prove causation. In contrast to negligent torts,
where the harm must have been reasonably foreseeable
to be compensable, there is no foreseeability requirement
in intentional torts. The intent element applies only to
the decision to engage in the harmful or offensive contact,
not to the consequences of that conduct. If the defendant
did a wrongful act, he or she is responsible for the conse-
quences of that act. Likewise, there is no probability stand-
ard. If the defendant meant to do something harmful or
offensive, there is no requirement that success be highly
likely. This means, for example, that someone who inten-
tionally shoots a rubber band at a bus driver will be liable
for all damages that accrue when the rubber band hits the
driver in the eye, knocks his contact lens out, and causes
a multi-vehicle accident. It makes no difference that the
shooter only meant to annoy the driver and never intended
to cause a catastrophic accident.
A defendant in an intentional tort action can claim that
he or she acted in self defense or that the plaintiff consented
to the allegedly harmful act (Prosser 1971, pp. 101–12). In
a self-defense claim, the defendant must concede that he
or she intended to harm the plaintiff. However, he/she
will also argue that his/her acts were reasonable responses
to the plaintiff ’s own threatening behavior. Another
defense to an intentional tort action is consent. If the
plaintiff willingly consented to the conduct, the defend-
ant will prevail. To be effective, consent must be compe-
tent, knowing, and voluntary. That is, the plaintiff must
have had sufficient information and mental capacity to
make an informed decision, and his/her consent must
not have been coerced or fraudulently obtained.
MAJOR AREAS OF PSYCHIATRIC LIABILITY:
BATTERY
The two most common intentional tort claims brought
against psychiatrists are battery, brought when a patient
alleges treatment was provided without informed consent,
and false imprisonment, typically in cases involving invol-
untary commitment. As to the first, patients must con-
sent to treatment on the basis of information regarding the
nature and consequences of the proposed medical regi-
men. This requirement protects the patient’s autonomy
by preserving his or her right to determine what happens
to his/her body.
As noted, informed consent must be competent, know-
ing, and voluntary (Moldoff 1961; Twerski and Cohen
1988; Simon 1998a, pp. 63–75). Competence is not some-
thing that can be calculated scientifically. It is context-
specific and involves considerations of a patient’s ability
to understand treatment options, make treatment choices,
and communicate those choices. A patient’s incompetence
will not foreclose the ability to go ahead with treatment,
it merely means that the psychiatrist will have to obtain
substitute consent from someone authorized to provide
it (e.g., a parent, guardian, or spouse). The knowing elem-
ent of the consent requirement is met by providing the
patient with sufficient information to make an informed
choice. Traditionally, the amount of information neces-
sary to fulfill this requirement has been measured on
a professional standard. That is, the psychiatrist must
provide the amount and kind of information that a reason-
able psychiatrist would disclose under the circumstances
or that is customarily provided in his/her community.
In contrast, however, many states now require a patient
standard. They require the psychiatrist to provide all
material information that a reasonable person in the
patient’s position would want to know to be able to make
an informed decision. Though there are no absolute rules
regarding what kind of information is material, courts look
favorably on the following: assessments of the patient’s
condition; the nature and purpose of the proposed treat-
ment; risks and benefits of the treatment; viable alterna-
tives to that treatment, along with the risks and benefits
of the alternative treatments; and projected outcome
with and without treatment.
There are four limited exceptions to the consent
requirement:
1 When emergency treatment is necessary to save a
patient’s life or to prevent imminent bodily harm, the
law presumes consent if the patient cannot give con-
sent and there is not adequate time to seek substitute
consent.
2 If the patient is deemed incompetent, his/her consent
is not required; nevertheless, consent must be obtained
from a substitute decision maker.
3 If a psychiatrist believes that full disclosure would be
injurious to the patient’s health, in a narrow set of cir-
cumstances, then full disclosure may not be required.
4 If the patient competently, knowingly, and voluntarily
waives his or her right to information, then the consent
need not be informed.
Absent one of these exceptions, a psychiatrist who com-
mences treatment without obtaining informed consent
risks liability for negligence if inadequate information was
provided, or, in the worst case scenario, battery, in the event
there was no consent at all.
MAJOR AREAS OF PSYCHIATRIC LIABILITY:
FALSE IMPRISONMENT
Under certain limited conditions, states grant psychiatrists
the authority to hospitalize patients against their will
under civil commitment schemes. The requirements and
procedures involved are provided in statutes, which vary
from state to state. Although there are differences, three
criteria underlie all involuntary commitment statutes.
The patient must be mentally ill, he or she must present
a threat to self or community, and he/she must be unable

to provide for his/her own basic needs. If these conditions
are met, the statutes generally insulate the committing
psychiatrist from liability. A patient suing on the basis of
false imprisonment must prove that the psychiatrist failed
to exercise reasonable professional judgment and acted
in bad faith in seeking commitment (Chase 1970; Simon
1998a, pp. 121–6).
THE PSYCHIATRIST AS WITNESS
Two types of witnesses offer testimony in a trial: fact
witnesses; and expert witnesses. A fact witness, as the
term implies, provides the court with the facts of the case –
who did what, when, and where. In so doing, the fact
witness is limited to testifying about things that he or she
directly witnessed or performed him/herself and is gen-
erally limited in offering any personal opinions, drawing
conclusions, or relating the opinions or reports of others.
Whereas a fact witness need not have any special expertise,
an expert witness is a person whose knowledge of a par-
ticular field is beyond the understanding of the average
layperson. Experts appear in court to help jurors or judges
understand the case by clarifying points about special-
ized topics. While an expert may testify as to facts, he or
she is further permitted to offer opinions. Indeed, that is
the main function of an expert witness.
A psychiatrist involved in a tort suit might appear in
either capacity (Gutheil 1998a, pp. 226–9; Gutheil 1998b).
Like anyone else, a psychiatrist might testify as a fact
witness in a trial in which he or she is the plaintiff, but
such a case would only rarely center on his/her profes-
sional role as a psychiatrist. Conversely, as a defendant in
a malpractice action, the therapist would take the stand
to report the facts of the case as he or she had observed
them. Additionally, a treating psychiatrist might be called
to testify in a suit involving a patient and a third party, as,
for example, when the patient claims psychological injury
as the result of an allegedly traumatic accident. In any
event, when the therapist appears as a fact witness, he or
she may only identify the patient’s symptoms, the diag-
nosis applied, and the treatment prescribed. He or she may
not take the additional step of testifying that the treatment
met the requisite standard of care in the malpractice suit,
or of positing an opinion as to the causal link between
the allegedly negligent act and the diagnosis of emotional
distress in the patient’s claim against a third party.
As a properly qualified expert witness, the psychiatrist
may offer opinions regarding causation and standard of
care issues. In tort cases alleging psychological harm, for
instance, a psychiatrist/expert may be called to establish
both the extent of such damages and the link between
them and the traumatic event. In a malpractice suit, he
or she may review the facts of the case at issue and offer
opinions about how they relate to the elements of a neg-
ligence claim. Thus, he or she may give opinions as to
An introduction to tort law 787
whether a doctor–patient relationship had been estab-
lished, whether the defendant’s performance met the
required standard of care, the extent of any damages, and
whether there was a causal link between any negligence
and the damage suffered.
REFERENCES
Benefacts. 1996. A message from the APA-Sponsored
Professional Liability Insurance Program. Psychiatric
News 31, 26.
Bloch, M. 1961: Feudal Society. Translated by Manyon, L.A.
Chicago: University of Chicago Press.
Chase, R.F. 1970. Annotation: Liability for false
imprisonment predicated upon institution of, or conduct
in connection with, insanity proceedings. American
Law Reports Annotated, 3rd Series 30, 523–60.
Corpus Juris Secundum. 1987: St. Paul, MN: West
Publishing Co.
Farnsworth, E.A. 1990: Contracts. 2nd edition. Boston:
Little, Brown and Company.
Flaherty, M.R. 1988. Annotation: Improper or immoral
sexually related conduct toward patient as ground
for disciplinary action against physician, dentist, or
other licensed healer. American Law Reports Annotated,
4th Series 59, 1104–32.
Glaberson, W. 1998: Killer blames his therapist, and
jury agrees. The New York Times, October 10, A1.
Gutheil, T.G. 1998a: Witnesses, depositions, and trials.
In Lifson, L.E., Simon, R.I. (eds), The Mental Health
Practitioner and the Law: A Comprehensive Handbook.
Cambridge, MA: Harvard University Press, 225–36.
Gutheil, T.G. 1998b: The Psychiatrist as Expert Witness.
Washington: American Psychiatric Press, Inc.
Hensler, D.R., Marquis, M.S., Abrahamse, A.F., Berry, S.H.,
Ebener, P.A., Lewis, E., Lind, A.A., MacCoun, R.J.,
Manning, W.G., Rogowski, J.A., Vaiana, M.E. 1991:
Compensation for Accidental Injuries in the United
States. Santa Monica, CA: Rand Corp.
Holmes, O.W. 1881: The Common Law. Boston: Little,
Brown and Company.
Ingber, S. 1985. Rethinking intangible injuries:
a focus on remedy. California Law Review 73,
772–856.
Jung, D.J., Levine, D.I. 1987. Whence knowledge intent?
Whither knowledge intent? University of California
Davis Law Review 20, 551–84.
Kelley, P.J. 1991. Proximate cause in negligence law:
history, theory, and the present darkness.
Washington University Law Quarterly 69, 49–105.
Kosmund Murray, J.M. 1995. Comment: Repression,
memory, and suggestibility: a call for limitations
on the admissibility of repressed memory testimony
in sexual abuse trials. University of Colorado Law
Review 66, 447–522.
788 Basic issues in law
Kussman, P.C. 2000. Annotation: Liability of doctor,
psychiatrist, or psychologist for failure to take steps
to prevent patient’s suicide. American Law Reports
Annotated, 5th Series 81, 167–244.
Moldoff, W.M. 1961. Annotation: Malpractice: physician’s
duty to inform patient of nature and hazards of
disease or treatment. American Law Reports
Annotated, 2nd Series 79, 1028–35.
Perlin, M.L. 1992. Tarasoff and the dilemma of the
dangerous patient: new directions for the 1990s.
Law and Psychology Review 16, 29–63.
Prosser, W.L. 1971: Handbook of the Law of Torts. 4th
edition. St. Paul, MN: West Publishing Co.
Restatement (Second) of Torts (1965). St. Paul, Minn.:
West Publishing Co.
Rigelhaupt, J.L. 1982. Annotation: What constitutes
physician-patient relationship for malpractice
purposes. American Law Reports Annotated,
4th Series 17, 132–60.
Robertson, D.W. 1997. The common sense of cause in
fact. Texas Law Review 75, 1765–800.
Sarno, G.G. 1981. Annotation: Civil liability for physical
measures undertaken in connection with treatment
of mentally disordered patient. American Law Reports
Annotated, 4th Series 8, 464–518.
Shuman, D.W. 1993. The psychology of deterrence in
tort law. Kansas Law Review 42, 115–68.
Shuman, D.W. 1994. The psychology of compensation in
tort law. Kansas Law Review 43, 39–77.
Shuman, D.W., Weiner, M.F. 1987: The Psychotherapist–
Patient Privilege: A Critical Examination.
Springfield, IL: Charles C. Thomas.
Simon, R.I. 1998a: Concise Guide to Psychiatry and
Law for Clinicians. 2nd edition. Washington, DC:
American Psychiatric Press, Inc.
Simon, R.I. 1998b: Litigation hot spots in clinical practice.
In Lifson, L.E., Simon, R.I. (eds), The Mental Health
Practitioner and the Law: A Comprehensive Handbook.
Cambridge, MA: Harvard University Press, 117–39.
Tarasoff v. Board of Regents of the University of
California, 551 P.2d 334 (Cal. 1976).
Terry, H.T. 1915. Negligence. Harvard Law Review 29,
40–54.
Twerski, A.D., Cohen, N.B. 1988. Informed decision making
and the law of torts: the myth of justiciable causation.
University of Illinois Law Review 1988, 607–65.
Zelin, J.E. 1986. Annotation: Physician’s liability for
unauthorized disclosure of confidential information
about patient. American Law Reports Annotated, 4th
Series 48, 668–713.

An introduction to civil procedure
ROBERT LLOYD GOLDSTEIN
INTRODUCTION
Civil procedure has been described as ‘the sum total of
rules, forms, doctrines, and devices’ (Grilliot 1979, p. 223)
that governs and regulates the formal activities of a tech-
nical nature in the course of adjudication of civil disputes.
The adjudicatory process that is regulated by civil proced-
ure serves to settle and terminate controversies and to
provide state-enforced remedies (Rosenberg et al. 1976).
The principal objective of rules of procedure is to pro-
vide a ‘just, speedy, and inexpensive’ means of civil dispute
resolution (Federal Rules of Civil Procedure 1990, Rule 1).1
The efficacy of jural agencies for the settling of disputes
between individuals is predicated on fundamental fair-
ness in procedure, which Golding (1979) terms ‘proced-
ural justice.’ In order to promote true settlements of
disputes and to maintain confidence in the institutions
of dispute resolution, adherence to the standards of pro-
cedural justice is called for. These standards have been
outlined as follows:
• Neutrality
1 ‘No man should be judge in his own cause.’
2 The dispute settler should have no private interest
in the outcome.
3 The dispute settler should not be biased in favor of
or against a party.
• Persuasive conflict
4 Each party should be given fair notice of the pro-
ceedings.
5 The dispute settler should hear the argument and
evidence of both sides.
6 The dispute settler should hear a party only in the
presence of the other party. Each party should be
1
Rule 1 reads, in its entirety, ‘These rules govern the procedure in
the United States district courts in all suits of a civil nature whether
cognizable as cases at law or in equity or in admiralty, with the
exceptions stated in Rule 81. They shall be construed to secure the
just, speedy, and inexpensive determination of every action.’
85
given a fair opportunity to respond to the argu-
ments and evidence of the other party.
• Settlement
7 The terms of the settlement should be supportable
by reasons.
8 The reasons should refer to the arguments and evi-
dence presented (Golding 1979, p. 113).
The entire procedural enterprise serves not only to imple-
ment the substantive law but to give both parties to the
dispute a sense of fair treatment before an impartial and
unbiased tribunal. In Chapter 82, the judicial system in
the United States was described in terms of a federal court
system and fifty independent state court systems, each
with its own procedural rules. Prior to the adoption of
the Federal Rules of Civil Procedure in 1938, federal courts
in suits ‘at law’ followed the procedures of the courts of the
state in which the federal district court was held. Since
1938, the Federal Rules of Civil Procedure are followed
uniformly in all federal courts. Approximately half of the
states have adopted the Federal Rules for use in their own
courts, and many others have been guided and influenced
to a significant extent by the Federal Rules (Mermin 1973).
The sheer breadth and complexity of the subject mat-
ter of civil procedure precludes even a basic overview of
all the various stages of a civil lawsuit, from inception to
final judgment, within the confines of this concise chap-
ter. An exhaustive treatment of the subject would cover
the following topics in depth: justiciability, jurisdiction
over the parties, subject-matter jurisdiction, pleading,
discovery, ascertaining applicable law, adjudication with-
out trial, trial procedure, multiparty and multiclaim liti-
gation, former adjudication, judgments and their effects,
appeals and other special problems in civil procedure.
There are a number of casebooks and textbooks that
provide an excellent exposition of modern-day civil
procedure (Rosenberg et al. 1976; James and Hazard 1977;
Cover and Fiss 1979). In order to acquaint the forensic
psychiatrist with the intricacies and complexities of such
a broad subject, this modest introduction to civil proced-
ure focuses on a few selected major topics that serve to
790 Basic issues in law
illuminate important principles and underlying policies
that shape procedural law within our adversarial judicial
system.2
JUSTICIABILITY
Not all disputes are susceptible of judicial resolution.
Under our Anglo-American adversary system, not every-
one will qualify as a litigant and not every alleged injury
to an interest will suffice to set ‘the court machinery
in motion’ (Mermin 1973, p. 174). The Constitution, in
Article III, Section 2, extends the judicial power of the
federal courts only to ‘cases’ or ‘controversies’ of specified
types. Federal courts (and also state courts) have adopted
the position that matters that do not fall within the cat-
egory of ‘cases’ or ‘controversies’ cannot be entrusted to
the courts for adjudication. Determinations of the proper
extent of judicial authority and threshold limitations on
the power of the courts are embodied in a number of
overlapping doctrines that purport to apply the Article III,
Section 2, constitutional requirements.
Standing
In order to bring a properly cognizable action, a plaintiff
must have standing; that is, there must be a showing that
the defendant’s conduct has caused him actual injury. The
presence of an actual, individualized injury assures that
the suit does not raise merely hypothetical issues and
that it is presented in an adversarial context (Kane 1979).
The Supreme Court explained that:
the fundamental aspect of standing is that it focuses
on the party seeking to get his complaint before a
federal court and not on the issues he wishes to have
adjudicated. The ‘gist of the question of standing’ is
whether the party seeking relief has alleged such a
personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult … questions.
(Flast v. Cohen 1968, quoting Baker v. Carr 1962)
While the elements that comprise standing – actual
injury-in-fact (with reference to the plaintiff ’s own
injury, not someone else’s injury), a sufficient stake in the
outcome of litigation, a sufficiently adversarial context –
seem to be reasonably clear, the courts have not always
found it easy to define what satisfies the constitutional
requirement of an actual injury or to decide when parties
may sometimes be allowed to invoke the rights of others
2
It should be noted at the outset that, although within the context
of this streamlined format every effort will be made to avoid over-
simplification and distortion of these complex technical issues,
nevertheless, many exceptions to general rules or analyses of
controversies must be omitted because of limitations of space.
(see, for example, Sierra Club v. Morton 1972;3 United States
v. SCRAP 1973; Flast v. Cohen 1968; NAACP v. Alabama
1958; Craig v. Boren 1976).
Mootness
A dispute ceases to be a live one, if it is ‘laid to rest by sub-
sequent events (i.e., made “moot”)’ (Mermin 1973, p. 174).
Because of shifting circumstances, the case no longer
matters to the parties; a decision might be a waste of time
and a misallocation of valuable judicial resources; it might
be rendered without adequate adversarial arguments; and,
decisively, the courts lack authority to make determin-
ations that cannot affect the rights of litigants in the case
before them (De Funis v. Odegaard 1974). The basis of
the courts’ lack of power ‘to review moot cases derives from
the requirement of Article III of the Constitution under
which the exercise of judicial power depends on the exist-
ence of a case or controversy’ (Liner v. Jafco 1964). Once
a case is moot, a true case or controversy no longer exists.
In Doremus v. Board of Education (1952), for example,
in a challenge to a New Jersey law requiring Bible reading
at the start of each public school day, the Supreme Court
ruled that the case had been rendered moot, because the
child in question had already graduated before the case was
heard by the Court. It is not always easy to determine
when a case is moot and when it is not. In addressing
the issue of whether a criminal conviction is moot after
a defendant has served his sentence and been released from
prison, the Supreme Court took notice of ‘the obvious
fact of life that most criminal convictions do in fact entail
adverse collateral legal consequences. The mere “possibil-
ity” that this will be the case is enough to preserve a crim-
inal case from ending “ignominiously in the limbo of
mootness” ’ (Sibron v. New York 1968). It is important to
note that a case does not become moot merely because
illegal conduct has been terminated, if there is a rea-
sonable likelihood that the challenged wrongful conduct
will be repeated [i.e., if ‘the defendant is free to return to
his old ways’ (United States v. W. T. Grant Co. 1953)].
3
The Court found no standing in the Sierra Club to challenge a Walt
Disney project for commercial exploitation of wilderness land in
order to build a ski resort. The club’s allegations of a special inter-
est in conserving the natural resources of the Sierra Nevada moun-
tains (in the absence of any showing that its member were users of
the area for any purpose) failed to meet the injury-in-fact test. The
Court observed that a mere ‘value preference’ or ‘intellectual
interest in the problem’ of conservation did not confer standing
(Currie 1981). The Court explained that, ‘Aesthetic and environ-
mental well-being, like economic well-being, are important ingre-
dients of the quality of life in our society’ (Sierra Club v. Morton
1972), but that the plaintiff must ‘be himself among the injured,
for it is this requirement that gives a litigant a direct stake in the
controversy and prevents the judicial process from becoming no
more than a vehicle for the vindication of the value interests of
concerned bystanders. No such specific injury was alleged in Sierra
Club’ (United States v. SCRAP 1974).

Ripeness
When an issue is determined to be non-justiciable because
it is not yet ripe for review, the court views the issue as
hypothetical or premature in nature. Such premature
claims are viewed as unconstitutional, because adjudica-
tion would amount to nothing more than an improper
‘advisory opinion’ (Mermin 1973). In constitutional terms,
a further element of the ‘Case’ or ‘Controversy’
requirement is that the matter must be ‘ripe’ for
decision. The problem of ripeness is essentially a
problem of prematurity. Often concrete facts are miss-
ing which would guide the Court in making a well-
informed decision. Because it is not certain what is
going to happen, or even whether anything is going
to happen, the decision of an unripe case may be a
waste of the court’s time … . Because it is not certain
that the parties in fact have anything at stake, it is
not certain that there will be adequate argument of
both sides of the case. (Currie 1981, p. 22)
As with the other doctrines subsumed under justicia-
bility, the issue of ‘ripeness’ is very amorphous, and court
decisions have been confusing and inconsistent over the
years. For example, in United Public Workers v. Mitchell
(1947), the Court refused to allow a challenge to the
Hatch Act, restricting political activities on the part of
government workers, because the nature and extent of their
intended future political involvement was not clear at the
time. The Court observed that the only threat of interfer-
ence was merely ‘that implied by the existence of the law
and the regulations.’
However, in Adler v. Board of Education (1952), a teacher
was allowed to mount a challenge to a law requiring dis-
missal of any teacher advocating the overthrow of the
government, despite the fact that he himself did not in
the past (nor in the future intend to) engage in the pro-
scribed behavior. Finally, in Laird v. Tatum (1972), the
plaintiffs and their organizations complained of the ‘chill-
ing effect’ on their First Amendment rights (freedom
of expression and freedom of association) of an army
intelligence surveillance system gathering data regard-
ing potential public demonstrations. The plaintiffs
in fact had themselves been the focus of earlier surveil-
lance by army intelligence. The Court held that absent
‘more specific present harm or threat of specific future
harm,’ the case was not ripe for adjudication and imper-
missibly called for an advisory opinion (Mermin 1973,
p. 185). Courts frequently wait until someone is actually
affected by a law before agreeing to hear a case that chal-
lenges it.
Political questions
Under the political question doctrine, the courts may
determine that the issue is non-justiciable and should
An introduction to civil procedure 791
be resolved by the other branches of government. For
example, in Orlando v. Laird (1971), the plaintiffs sought
to enjoin the army from transferring them to serve in
Vietnam, challenging the constitutionality of a war they
claimed had not been properly authorized by Congress.
The court held that the constitutionality of the means
Congress chose to ratify and authorize the prosecution of
military activities in Vietnam was a political question, a
matter of policy, ‘committed to the discretion of the
Congress and outside the power and competency of the
judiciary, because there are no intelligible and objectively
manageable standards by which to judge such actions.’4
(Orlando v. Laird 1971).
The political question doctrine has been eroded
somewhat over the years. In Baker v. Carr (1962), the
Court upheld judicial authority to determine the consti-
tutionality under the Equal Protection Clause of elec-
toral districts for state legislators. In Powell v. McCormack
(1969), the Court upheld judicial authority to pass on
whether the House of Representatives had validly denied
Adam Clayton Powell his seat in the House. In United
States v. Nixon (1974),5 the Court upheld judicial author-
ity to obtain tape recordings and other evidence from
the president, despite claims of executive privilege and
non-justiciability of intrabranch disputes (in this case
between the president and the special prosecutor, within
the executive branch). Baker v. Carr (1962) set forth
six criteria for the non-justiciability of cases involving
political questions, the most important of which specify-
ing that ‘there exists a textually demonstrable constitu-
tional commitment of the issue to a coordinate political
department.’
JURISDICTION
The adjudicatory authority of the courts is known as
jurisdiction; literally, the power to speak the law (Rosenberg
et al. 1976). The term generally denotes that the court
has the requisite power both to decide the type of con-
troversy in the case before it (subject matter jurisdiction)
and to decide the case between the particular parties
(or in relation to the property) before it (jurisdic-
tion over the parties, personal jurisdiction, in personam
4
Both Congress and the president had agreed that a formal declar-
ation of war was undesirable. Congress had passed the Gulf of
Tonkin Resolution and had appropriated materials for war, thereby
indicating congressional consent. Interference by the judicial
branch would be ‘extremely unwise’ and ‘would constitute a deep
invasion of the political question domain’ (Orlando v. Laird 1971).
5
The Court unanimously declared that the doctrine of executive
privilege is ‘constitutionally based,’ but that it must yield to the
claims of criminal justice. The 8–0 Supreme Court decision requir-
ing Nixon to turn over the subpoenaed tapes to the special pros-
ecutor revealed the ‘smoking gun’ that made his resignation
inevitable (Ambrose 1991).
792 Basic issues in law
jurisdiction or in rem jurisdiction).6 Although a case
meets all the requirements for jurisdiction, there is still
a constitutional requirement that the defendant receive
adequate notice of the suit against him and have an
opportunity to present his defense, as a matter of proce-
dural due process.
Jurisdiction over the parties
Originally, the chief basis for personal jurisdiction was
premised on notions of state sovereignty. The mere phys-
ical presence of individuals within the state was the basis
of jurisdiction, because the state could exercise power
over those within its territorial borders and render bind-
ing judgments against them (Kane 1979). Personal juris-
diction was barred outside the borders of the state. In the
leading case, Pennoyer v. Neff (1877), the Supreme Court
explained that,
The authority of every tribunal is necessarily restricted
by the territorial limits of the State in which it is
established … . Process from the tribunals of one State
cannot run into another State and summon parties
there domiciled to leave its territory and respond to
proceedings against them.
Accordingly, even the most transient presence in the
state sufficed to gain jurisdiction over the defendant’s
person. For example, in Grace v. MacArthur (1959), a
non-resident defendant was served with a summons on
board an airplane, while the plane was flying over the
forum state (Arkansas). The court upheld the service as
validly creating in personam jurisdiction in the Arkansas
court, because the defendant was physically present in
the jurisdiction at the time of service of process. Such
transient physical presence within a state’s territorial
verge would no longer suffice to confer jurisdiction over
nonresident defendants today. The Supreme Court has
placed increased emphasis on due process considerations
in enunciating its ‘minimum contacts’ doctrine (which is
discussed later in this section), to limit the power of courts
to assert in personam jurisdiction.
Another basis of jurisdiction premised on state sover-
eignty is domicile. The state can command certain recip-
rocal duties and obligations from its citizens in return for
the protection and privileges it accords them. Thus, the
courts of a state may exercise jurisdiction over an indi-
vidual domiciled in that state, even if temporarily absent
6
In personam jurisdiction over the person gives the court the
power to hold him personally liable, to issue a judgment against
him, and to seize his assets. In rem jurisdiction empowers the court
to decide claims relating to a piece of property or a legal status
(e.g., marriage). A third form of jurisdiction, quasi-in-rem jurisdic-
tion, refers to the court’s power to seize or attach property as a
vehicle to assert jurisdiction over the defendant, to adjudicate a
personal claim unrelated to that property itself. A consideration of
quasi-in-rem jurisdiction is beyond the scope of this chapter.
from the jurisdiction (provided that adequate notice and
opportunity to be heard are given). The Supreme Court
held that ‘domicile7 in the state is alone sufficient to bring
an absent defendant within the reach of the state’s jurisdic-
tion for purposes of a personal judgment’ (Milliken v.
Meyer 1940).
A further basis of jurisdiction is consent. An individual
making a general appearance in court to respond to notice
of an action against him has consented to the court’s
jurisdiction. Non-resident corporations who do business
in a state and nonresident motorists who operate motor
vehicles within the state were said to have impliedly con-
sented to jurisdiction over them (Hess v. Pawloski 1927).
Under more modern jurisdictional theories, the non-
resident motorist statutes are premised on the state’s police
power to protect its citizens against an inherently danger-
ous instrumentality (i.e., the automobile).
Many states have enacted so-called ‘long-arm statutes,’
which authorize extraterritorial jurisdiction over non-
residents or individuals who are physically absent from
the state.8 Such statutes enumerate the specific kinds
of activities for which long-arm jurisdiction may be
asserted. These would include tortious acts committed
within the state (e.g., the non-resident motorist statutes),
the commission of a tortious act outside the state that
then causes injury in the state (if the defendant has
business activities in the state), the transaction of busi-
ness within the state, ownership or use of real estate
within the state, and others. (Many of the same consider-
ations apply to corporations as well as natural persons. A
separate discussion of the complexities of jurisdiction
over corporations is precluded because of limitations of
space.)
The basis of jurisdiction that underlies the long-arm
statutes and, indeed, that has come to provide the theor-
etical underpinning of modern-day jurisdictional doctrine
7
Domicile has been defined as an individual’s current residence,
provided he has an intention to remain there for an indefinite
period. It is roughly equivalent to state citizenship. Even if a person
has a number of residences, he can have but one domicile at a time.
8
In criminal cases, as opposed to civil matters, there is state-by-
state statutory authority to secure the attendance of material
witness (i.e., witnesses who possess information material to the
determination of the criminal action), even if said witnesses reside
in another state. For example, a forensic psychiatrist who moves
from New York to Colorado and is considered to be a material wit-
ness in a New York criminal case may be compelled to return to
New York to testify, even though he now resides beyond the juris-
diction of the New York courts. The New York judge issues a cer-
tificate under the seal of the court, which is presented to a Colorado
judge, who can then subpoena the witness or even have him
taken into immediate custody to have him attend the New York
proceedings. The long-arm statutes authorize extraterritorial juris-
diction over parties to the litigation (i.e., defendants), not over
witnesses in civil cases. A ‘commission’ or ‘letters rogatory’ may be
issued by a state court in a civil case for the taking of a deposition
outside of the state (or in a foreign country), to elicit the testimony
of nonparty witnesses residing elsewhere.

was clearly enunciated by the Supreme Court in the land-
mark 1945 case, International Shoe Co. v. Washington. In
an era characterized by increasing interstate movement of
individuals, as well as the growth of corporate business
activities on a nationwide scale, the courts needed a new
theoretical justification to subject non-residents and out-
of-state corporations to the jurisdiction of a forum state
in which they operated, transacted business activities, or
with which they otherwise had significant contacts.
The Court abandoned the ‘physical power theory’ of juris-
diction established in Pennoyer v. Neff (1877) (which
conferred exclusive jurisdiction and sovereignty only
over persons and property within the territory of a
state) and established the new ‘minimum contacts’ test.
The Court said:
Historically the jurisdiction of courts to render judg-
ments in personam is grounded on their de facto
power over the defendant’s person … . But now … due
process requires only that in order to subject a defend-
ant to a judgment in personam, if he be not present
within the territory of the forum, he have certain
minimum contacts with it such that the maintenance
of the suit does not offend ‘traditional notions of fair
play and substantial justice.’ (International Shoe Co.
v. Washington 1945) [emphasis supplied]
The minimum contacts standard serves to provide
local forums for local plaintiffs to sue non-residents
(individuals or corporations), who caused a local cause
of action to arise, but only if it seems sufficiently fair to
impose the burden on the defendant to have to litigate
there (i.e., in a forum state in which he himself is a non-
resident). It would be fair (and the minimum contacts
test would be met), for example, ‘if a corporation… is
continuously and systematically entering the state’ to
market its products there (Kane 1979, p. 46). A number
of subsequent cases attempted to define precisely ‘the
kind and sufficiency of contacts needed to bring a defend-
ant within the threshold of International Shoe’ (Kane
1979, p. 45) and extended the minimum contacts require-
ment to jurisdiction over property as well as person
(McGee v. International Life Insurance Co. 1957; Hanson
v. Denckla 1958; Buckeye Boiler v. Superior Court of Los
Angeles County 1969; Shaffer v. Heitner 1977).
Subject matter jurisdiction
In addition to the requirement that a court have jurisdic-
tion over the parties in a matter before it, it must also
have the power to adjudicate the particular type of con-
troversy involved in the case. Such power to adjudicate
the specific controversy is known as ‘subject matter juris-
diction or competency over the litigation’ (Emanuel
1981, p. 68). Jurisdiction over the subject matter, in both
state and federal courts, is limited by the requirements of
constitutional provisions. Subject matter jurisdiction is
An introduction to civil procedure 793
also conferred by specific state and federal statutory
authority. For example, certain state statutes may distribute
jurisdictional authority according to the type of proceed-
ing involved (e.g., probate proceedings) or according
to the dollar amount in controversy [e.g., cases involv-
ing disputes in which the dollar amount involved is
less than a thousand dollars may be assigned to a lower
(municipal) court, rather than to the Superior court]
(Kane 1979).
Federal courts exercise subject matter jurisdiction
over two basic types of controversies: (i) diversity of citi-
zenship jurisdiction; and (ii) federal question jurisdic-
tion. Diversity of citizenship jurisdiction is based on
Article III, Section, 2 of the Constitution, which confers
subject matter jurisdiction on the federal courts in regard
to ‘Controversies … between Citizens of different states.’
The diversity requirement is satisfied if all plaintiffs in
a lawsuit are citizens of one state and all defendants are
citizens of a different state (at the time the action is com-
menced). Historically, the rationale underlying diversity
jurisdiction was to avert potential prejudice, by offering
out-of-state residents the alternative of a presumably
more unbiased federal forum (compared to a possibly
prejudiced local state court). The fear of prejudice
in regard to out-of-state residents is no longer seen as
a proper justification for modern jurisdiction and there
have been congressional attempts recently to abolish or
curtail diversity of citizenship jurisdiction (Rosenberg
et al. 1976). In all diversity cases, the amount in contro-
versy must exceed $50 000. (This serves to limit access to
the federal courts to the more significant cases, thereby
serving to control the caseload of an already overloaded
system.) (Kane 1979).
Federal question jurisdiction involves jurisdiction by
the federal courts over any civil action arising under the
Constitution, laws, or treaties of the United States; in
which more than $50 000 is involved.9 The Constitution
and a number of federal statutes create the right to
sue for any violation of a right or duty under federal law
and grant jurisdiction to the federal courts to adjudicate
these matters. The federal question suit must involve
‘a substantial claim founded “directly” upon federal law’
(Emanuel 1981, p. 78). Other aspects of federal court
jurisdiction (e.g., ancillary, pendent, and removal juris-
diction) are beyond the scope of our discussion. It
should be briefly noted, however, that under certain cir-
cumstances a case brought originally in state court by the
plaintiff may be ‘removed’ to a federal court by the defend-
ant, if there was concurrent jurisdiction in the federal
and state courts, and statutory requirements for the
removal procedure were satisfied (Kane 1979).
9
Congress has reduced or abolished the jurisdictional amount in
controversy requirement in virtually all federal question cases
(Emanuel 1981). Some examples of federal question cases are
actions against federal officials, cases rising under the securities
laws, or under the antitrust laws.
794 Basic issues in law
Admissibility of scientific expert evidence:
Frye and the Supreme Court’s expert
evidence trilogy (Daubert, Joiner, and
Kumho Tire)
For seventy years, since its formulation in the Frye case
(293 F.1013), the ‘general acceptance’ test was the domin-
ant standard for determining the admissibility of novel
scientific evidence at trial. The Frye test had its origin in
a short and citation-free 1923 decision concerning the
admissibility of evidence derived from a crude precursor
to the polygraph machine (a systolic blood pressure
deception test). The Court of Appeals for the District of
Columbia described the device and its operation and
declared:
Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable
stages is difficult to define. Somewhere in this twi-
light zone the evidential force of the principle must
be recognized, and while courts will go a long way in
admitting expert testimony deduced from a well-
recognized scientific principle or discovery, the thing
from which the deduction is made must be suffi-
ciently established to have gained general acceptance
in the particular field in which it belongs. (293 F., at
p. 1014) (emphasis added)
In 1993, in Daubert v. Merrell Dow Pharmaceuticals,
Inc. (509 U.S. 579), the Court held that the Federal Rules
of Evidence superseded the Frye general acceptance test.
General acceptance was no longer a necessary precondi-
tion to the admissibility of scientific evidence in federal
trials. The Federal Rules of Evidence (especially Rule 702)
assigned a ‘gatekeeping’ responsibility to the trial judge
in deciding questions of the admissibility of proffered
expert testimony. The judge’s preliminary task consists
of ensuring that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.
The trial court’s role of gatekeeper of all scientific evi-
dence would hopefully have the desired effect of prevent-
ing the proliferation of ‘junk science’ (Huber 1991) and
avoid the risk of juries being ‘bamboozled by fringe
scientists’ advancing speculative or highly unreliable
opinions well outside the mainstream of their field. The
special obligation imposed on a trial judge is to ensure
that scientific evidence is not only relevant but reliable;
the Court held that pertinent evidence based on scientif-
ically valid principles will satisfy these demands. Daubert
discusses four factors that might prove helpful in deter-
mining the reliability of a particular scientific theory or
technique: (i) the scientific status of a theory or method-
ology must be capable of empirical testing (testability,
falsifiability or refutability); (ii) peer review and publica-
tion (submission to the scrutiny of the scientific commu-
nity); (ii) consideration of the known or potential rate
of error and the existence and maintenance of standards
controlling the technique’s operation; and (iv) general
acceptance in the relevant scientific community. The
inquiry envisioned by the Court is viewed as a flexible
one, with its overarching subject the scientific validity
(and thus the evidentiary relevance and reliability) of the
principles and methodology of the proposed testimony
(as distinguished from the conclusions that it generates).
Daubert makes clear that its list of specific factors is
meant to be helpful, but not definitive. It neither necessar-
ily nor exclusively applies to all experts or in every case.
The Supreme Court’s so-called ‘expert evidence tril-
ogy’ includes Daubert and its progeny, General Electric
Co. v. Joiner (522 U.S. 136) and Kumho Tire Co., Ltd. v.
Carmichael (526 U.S. 137). Joiner held that district courts
may scrutinize the reliability of an expert’s reasoning
process as well as the general methodology. The trial
court should refuse to accept ‘any conclusion that good
science does not permit to be drawn from the underlying
data’ (522 U.S. at 146). To do so, the court must ensure
that every step in the expert’s reasoning process is grounded
in good science. Finally, Kumho Tire extended Daubert’s
reliability test to non-scientific expert evidence, e.g., tes-
timony based on technical and other specialized know-
ledge (e.g., professional studies or personal experience).
Since Daubert, many legal scholars have seemed con-
vinced of Frye’s irrelevance, and forensic psychiatrists have
expressed a keen interest in the new evidentiary stand-
ards set forth in Daubert and its progeny. Nonetheless,
there is overwhelming evidence of Frye’s continuing
viability in many states. Frye is not only alive and well, but
it remains the plurality rule in state courts, which are the
venue for the vast majority of litigation (including New
York, California, Florida, Pennsylvania, and other states,
which altogether contain almost half of the American
population). Accordingly, most forensic psychiatrists will
be called upon to testify mainly in state courts which
continue to be Frye jurisdictions. [One critic of forensic
psychiatry disparagingly observed that Frye leads to the
admission of evidence that has never been shown to be
reliable, but is ‘generally accepted’ by a subgroup of experts
who specialize in the forensic field in question (Bernstein
1995)]. Forensic psychiatrists may be interested in read-
ing Goldstein’s articles on the application of the Frye test
to a toxic tort case and to an innovative psychological test
to measure criminal insanity (Goldstein 1987; Goldstein
1992). The definitive monograph on the history, devel-
opment and future of the Frye test, as well as its relation-
ship to Daubert and its progeny, is Frye, Fry again: the
past, present and future of the general acceptance test
(Bernstein 2001).
REFERENCES
Adler v. Board of Education, 342 U.S. 485 (1952).
Ambrose, S.E. 1991: Nixon (Volume Three): Ruin and
Recovery 1973–1990. New York: Simon & Schuster.

Baker v. Carr, 369 U.S. 186 (1962).
Bernstein, D.E. 1995. The science of forensic psychiatry
and psychology. Psychology, Psychiatry and Law 2,
75–99.
Bernstein, D.E. 2001. Frye, Frye again: the past, present
and future of the general acceptance test. Jurimetrics
41, 385–407.
Buckeye Boiler v. Superior Court of Los Angeles County,
485 P.2d 57 (Cal. 1969).
Cover, R.M., Fiss, O.M. 1979: The Structure of Procedure.
Mineola, NY: Foundation Press.
Craig v. Boren, 429 U.S. 190 (1976).
Currie, D.P. 1981: Federal Jurisdiction. St. Paul, MN: West
Publishing Co.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993).
De Funis v. Odegaard, 416 U.S. 312 (1974).
Doremus v. Board of Education, 342 U.S. 429 (1952).
Emanuel, S. 1981: Civil Procedure. New Rochelle, NY:
Emanuel Law Outlines.
Federal Rules of Civil Procedure. 1990: In Federal Civil
Judicial Procedure and Rules. St. Paul, MN: West
Publishing Co., 1–211.
Flast v. Cohen, 392 U.S. 83 (1968).
Frye v. United States, 293 F. 1013 (D. C. Cir. 1923).
General Electric Co. v. Joiner, 522 U.S. 136 (1997).
Golding, M.P. 1979: Dispute settling and justice. In
Cover, R.M., Fiss, O.M. (eds), The Structure of
Procedure. Mineola, NY: Foundation Press, 106–15.
Goldstein, R.L. 1987. The twilight zone between scientific
certainty and legal sufficiency: should a jury determine
the causation of schizophrenia? Bulletin of the
American Academy of Psychiatry and the Law 15,
95–104.
Goldstein, R.L. 1992. Dr. Rogers’ ‘Insanity Detector’ and
the admissibility of novel scientific evidence.
International Journal of Medicine and Law 11, 441–7.
An introduction to civil procedure 795
Grace v. MacArthur, 170 F. Supp. 442 (E.D. Ark. 1959).
Grilliot, H.J. 1979: Introduction to Law and the Legal
System. Boston: Houghton Mifflin Co.
Hanson v. Denckla, 357 U.S. 235 (1958).
Hess v. Pawloski, 274 U.S. 352 (1927).
Huber, P. 1991: Galileo’s Revenge: Junk Science in the
Courtroom. New York: Basic Books.
International Shoe Co. v. Washington, 326 U.S. 310
(1945).
James, F., Jr., Hazard, G.C., Jr. 1977: Civil Procedure.
2nd edition, Boston: Little, Brown and Co.
Kane, M.K. 1979: Civil Procedure. St. Paul, MN: West
Publishing Co.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
Laird v. Tatum, 408 U.S. 1(1972).
Liner v. Jafco, 375 U.S. 301 (1964).
McGee v. International Life Insurance Co., 355
U.S. 220 (1957).
Mermin, S. 1973: Law and the Legal System: An
Introduction. Boston: Little, Brown and Co.
Milliken v. Meyer, 311 U.S. 457 (1940).
NAACP v. Alabama, 357 U.S. 449 (1958).
Orlando v. Laird, 443 F.2d 1039; cert. den. 404
U.S. 869 (1971).
Pennoyer v. Neff, 95 U.S. 714 (1877).
Powell v. McCormack, 395 U.S. 486 (1969).
Rosenberg, M., Weinstein, J.B., Smit, H., Korn, H.L.
1976: Elements of Civil Procedure: Cases and
Materials. Mineola, NY: Foundation Press.
Shaffer v. Heitner, 433 U.S. 186 (1977).
Sibron v. New York, 392 U.S. 40 (1968).
Sierra Club v. Morton, 405 U.S. 727(1972).
United Public Workers v. Mitchell, 330 U.S. 75 (1947).
United States v. Nixon, 418 U.S. 683 (1974).
United States v. SCRAP, 412 U.S. 669 (1974).
United States v. W.T. Grant Co., 345
U.S. 629 (1953).

An introduction to criminal procedure
HARVEY M. STONE, KATHERINE OBERLIES O’LEARY AND ROBERT LLOYD GOLDSTEIN
The needs of law enforcement stand in constant
tension with the Constitution’s protections of the indi-
vidual against certain exercises of official power. It
is precisely the predictability of these pressures that
counsels a resolute loyalty to constitutional safe-
guards. Almeida-Sanchez v. United States, 413 U.S.
266, 273–74 (1973) (Stewart, J.).
Every step of the criminal process – ascertaining whether
a criminal offense was committed, detecting and arresting
suspects, interrogation of suspects, searches and seizures
to obtain evidence, police lineups and other identification
procedures, and admission of evidence at trial – involves
potential conflicts between the mission of law enforcement
officers to find criminals and bring them to justice, and the
rights of individuals in our democratic society to remain
free of unwarranted government intrusion. These conflicts
are ultimately resolved by courts, which are called upon
in a wide variety of factual circumstances to weigh law
enforcement imperatives against the protection of indi-
vidual rights.
The Bill of Rights – the first ten Amendments to the
United States Constitution – provides the predominant
basis for the constitutional regulation of criminal proce-
dure. Almost all of the criminal procedural guarantees of
the Bill of Rights (with the exception of the right to grand
jury indictment in felony cases and the prohibition against
excessive bail) are now applicable to the states as well under
the Due Process Clause of the Fourteenth Amendment.
Accordingly, the criminal procedures of every state must,
at a minimum, comply with the requirements of the
United States Constitution, as interpreted by the United
States Supreme Court.
This chapter presents an overview of U.S. Supreme
Court decisions involving the application of constitutional
limitations to governmental actions at various stages of
the criminal justice process.
ARREST, SEARCH, AND SEIZURE
The Fourth Amendment, which governs all searches and
seizures conducted by government agents, provides, ‘The
86
right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be searched
and the persons or things to be seized.’ The Amendment
contains two separate clauses: a prohibition against unrea-
sonable searches and seizures, and a requirement that any
warrant issued be supported by probable cause. Probable
cause to obtain an arrest warrant or to arrest a person with-
out a warrant exists when police have knowledge of facts
and circumstances sufficient to believe that the person to
be arrested has committed or is committing an offense.
Probable cause to search has been defined by the Supreme
Court as ‘a fair probability that contraband or evidence of
a crime will be found in a particular place.’ (Illinois v. Gates
1983, pp. 213, 238).
Warrantless searches and seizures
The United States Supreme Court has held that a warrant
is not required to establish the reasonableness of all
government searches and seizures; moreover, when a war-
rantless search or seizure is permissible, probable cause is
not invariably required (Vernonia School Dist. 47J v. Acton
1995, pp. 646, 653). The following categories of cases
involve exceptions to the probable cause and warrant
requirements.
INVESTIGATORY DETENTIONS
In Terry v. Ohio (1968), the Supreme Court held that
‘important government interests’ can justify a brief inves-
tigatory detention on less than probable cause. If officers
have a reasonable, articulable suspicion that someone is
involved in criminal activity, they may stop him and ques-
tion him briefly. They may also conduct a limited pat-
down frisk for weapons if they reasonably believe that
the individual poses a threat to the safety of the officers
or others. A suspect’s unprovoked flight upon seeing the
police provides reasonable suspicion for an investigatory
stop (Illinois v. Wardlow 2000). Courts will not inquire

whether the reason given by the police officer for a stop was
pretextual. For example, an automobile may be stopped
where the police have probable cause to believe that a
traffic violation has occurred, even if the actual motive of
the police is to investigate drug activity (Whren v. United
States 1996, pp. 806, 811–13).
The range of police activities permitted during an
investigatory detention must be reasonably related to the
circumstances that initially justified the detention (United
States v. Sharpe 1985, pp. 675, 682). In Florida v. Royer
(1983, pp. 491, 502–3), the Supreme Court found that the
police exceeded the limits of an investigative stop when
they asked a suspect to accompany them to a small police
room at the airport, retained his ticket and driver’s license,
and did not indicate in any way that he was free to depart.
‘As a practical matter, Royer was under arrest’ and there-
fore to detain him without probable cause violated the
Fourth Amendment (460 U.S. at 503).
WARRANTLESS ARRESTS
Although probable cause is required for an arrest, in
certain circumstances officers may lawfully arrest an indi-
vidual without an arrest warrant (Gerstein v. Pugh 1975,
pp. 103, 113). Warrantless arrests are permitted for any
offense committed by the arrestee in the presence of a law
enforcement officer, and for any felony that an officer
has probable cause to believe the arrestee has committed,
regardless of whether the officer was present when the
felony occurred. After making a warrantless arrest, an offi-
cer must secure a judicial determination of probable cause
within 48 hours (County of Riverside v. McLaughlin 1991).
In some situations, warrantless arrests violate the
Fourth Amendment, even though probable cause exists
to support the arrest. The Supreme Court has held that
warrantless arrests in suspects’ dwellings are presump-
tively unreasonable (Welsh v. Wisconsin 1984, pp. 740, 750).
Generally, only ‘exigent circumstances,’ such as fear of
imminent destruction of evidence, hot pursuit, or imme-
diate threats to the safety of the public or the officers, will
be sufficient to justify a warrantless entry into a suspect’s
home to make an arrest. In Welsh v. Wisconsin, the Supreme
Court held that a warrantless, non-consensual entry into
a suspect’s home to make an arrest for a minor, non-
criminal traffic offense is unreasonable even when prob-
able cause exists and ‘exigent circumstances’ are present
because the state’s interest in prosecuting minor offenses is
too slight to overcome the presumption of unreasonable-
ness that attaches to warrantless entries of the home.
SEARCHES INCIDENT TO A VALID ARREST
After making a valid arrest, police may conduct a warrant-
less search of the arrestee regardless of whether they have
probable cause or reasonable suspicion to believe that the
arrestee possesses weapons or evidence (New York v. Belton
1981, pp. 454, 461). A search conducted immediately prior
to an arrest may also be justified as incident to arrest if the
An introduction to criminal procedure 797
police had probable cause to arrest the suspect before con-
ducting the search (Rawlings v. Kentucky 1980). However,
a warrantless search that provides the probable cause to
make a subsequent arrest is not valid as a search incident
to arrest (Smith v. Ohio 1990, pp. 541, 543). The scope of the
search incident to arrest is not limited to the arrestee’s
person, but extends to the area within the arrestee’s imme-
diate control, as well as closed closets and other spaces
immediately adjacent to the place of arrest (Maryland v.
Buie 1990, pp. 325, 334). Although an arrest does not
generally justify a full-blown search of the arrestee’s entire
home, the Supreme Court held in Maryland v. Buie that
officers may conduct a limited protective sweep following
an in-home arrest if they have a ‘reasonable belief based on
specific and articulable facts that the area to be swept har-
bors an individual posing a danger to those on the arrest
scene’ (Maryland v. Buie 1990, pp. 325, 337). The protective
sweep involves only a cursory inspection of those spaces
where a person may be found and may last no longer
than reasonably necessary to dispel suspicion of danger
(Thompson v. Louisiana 1984, pp. 17, 21–3). Items in plain
view may be seized during a protective sweep.
SEIZURE OF ITEMS IN PLAIN VIEW
Police may seize evidence that is in plain view without a
warrant, provided that: (i) the police did not violate the
Fourth Amendment in arriving at the place from which
the evidence can be plainly viewed; (ii) the searching
officer has a lawful right of access to the evidence itself;
and (iii) the incriminating character of the evidence
seized is immediately apparent (Horton v. California
1990, pp. 128, 136–7). To establish the incriminating
character of an item, police must show that after an inspec-
tion of what is already exposed to view, they are able
to determine that it is evidence or contraband (Arizona v.
Hicks 1987, pp. 321, 328). The Court has expanded the
plain view doctrine to include items discernable by ‘plain
touch’ (Minnesota v. Dickerson 1993, pp. 366, 375).
EXIGENT CIRCUMSTANCES
Government agents may conduct a warrantless search or
seizure when probable cause exists and exigent circum-
stances justify proceeding without a warrant. Exigent
circumstances exist when the evidence sought is in immi-
nent danger of destruction (Cupp v. Murphy 1973, pp. 291,
296); the safety of law enforcement officers or the public
is threatened (Warden, Md. Penitentiary v. Hayden 1967,
pp. 294, 298–9); the police are in ‘hot pursuit’ of a suspect
(United States v. Santana 1976, pp. 38, 42–3); or a suspect
is likely to flee before the pursuing officer can obtain a
warrant (Minnesota v. Olson 1990, pp. 91, 100).
CONSENT SEARCHES
Government agents, without a warrant or probable cause,
may conduct a search based upon an individual’s voluntary
798 Basic issues in law
consent (express or implied) (Schneckloth v. Bustamonte
1973, pp. 218, 219). The scope of a consent search may not
exceed the scope of the consent given (Florida v. Jimeno
1991, pp. 248, 251).
Consent is not voluntary if given only in acquiescence
to a claim of lawful authority (Bumper v. North Carolina
1968, pp. 543, 548). Moreover, consent to search is gener-
ally invalid if there was an illegal search or seizure before
the consent was given (Florida v. Bostick 1991, pp. 429,
438; Florida v. Royer 1983, pp. 491, 501–8).
VEHICLE SEARCHES
Police are not required to obtain a warrant to search an
automobile if they have probable cause to believe that
it contains contraband or evidence of criminal activity,
because of the inherent mobility of vehicles, which often
creates exigent circumstances that make obtaining a war-
rant impractical, as well as reduced expectations of privacy
due to the configuration, use and regulation of auto-
mobiles (Pennsylvania v. Labron 1996, p. 938). However,
police do need a warrant to search a car in the driveway
of a house under surveillance, and in other circumstances
where obtaining a warrant is feasible (Horton v. California
1990, p. 128; Coolidge v. New Hampshire 1971, pp. 443,
460–2).
CONTAINER SEARCHES
When there is probable cause to believe that a vehicle
contains contraband, the entire vehicle, including any
closed containers within it, may be searched without a
warrant (Wyoming v. Houghton 1999, pp. 1297, 1298;
California v. Acevedo 1991, pp. 565, 573). Contemporane-
ously with a custodial arrest, police may examine the con-
tents of any container within the arrestee’s reach (New York
v. Belton 1981, pp. 454, 460). No warrant is necessary to
search a container if its illicit contents are in plain view
or may be inferred from its outward appearance or touch
(Minnesota v. Dickerson 1993, pp. 366, 372). Based upon
reasonable suspicion, police may detain luggage without
a warrant for a brief inspection, such as a dog sniff
(United States v. Place 1983, pp. 696, 706–10). No warrant
is necessary to search abandoned containers, including
the contents of trash receptacles left for collection
(California v. Greenwood 1988, pp. 39–41; Abel v. United
States 1960, pp. 217, 241).
INVENTORY SEARCHES
The police may conduct a warrantless search of property
of which they have lawfully taken custody to prepare
an inventory, according to standardized criteria, for the
purposes of: (i) protecting the owner’s property; (ii) pro-
tecting the police against claims of lost or stolen prop-
erty; or (iii) protecting the police from potential danger
(Florida v. Wells 1990, pp. 1, 5). The police may conduct a
warrantless inventory search of a vehicle lawfully in
police custody – including a search of the passenger com-
partment, glove compartment, trunk, and any containers
in the vehicle – even if the vehicle has been impounded
for parking violations (Colorado v. Bertine 1987, pp. 367,
372; South Dakota v. Opperman 1976, pp. 364, 369).
Contraband discovered in the course of a valid inventory
search may be seized by the police (Colorado v. Bertine
1987, p. 476).
BORDER SEARCHES
Routine border stops and searches of persons, luggage,
personal effects and vehicles may be conducted without
probable cause or even reasonable articulable suspicion
(Chandler v. Miller 1997, pp. 305, 308; United States v.
Montoya de Hernandez 1985, p. 531). Although the
Supreme Court has not explicitly enumerated the factors
that make a border search routine or non-routine, courts
rarely find enough intrusiveness to render a border
search non-routine. For example, in Almeida-Sanchez v.
United States (1973, pp. 266, 272), the Court found that a
thorough search of a car was not sufficiently intrusive to
qualify as a non-routine border search.
The government may also conduct warrantless searches
for illegal aliens at the border (United States v. Martinez-
Fuerte 1976, pp. 543, 556–62). Under certain circum-
stances, a roving border patrol may stop a vehicle in the
general area of the border and question its occupants if
‘specific, articulable facts’ give rise to reasonable suspicion
that the vehicle may contain illegal aliens (United States v.
Brignoni-Ponce 1975, pp. 873, 881).
SEARCHES AT SEA
As authorized by statute, government officials may board
vessels subject to United States law, either on the high
seas or in United States territorial waters, to conduct rou-
tine document and safety inspections without a warrant
or probable cause (United States v. Villamonte-Marquez
1983, pp. 579, 592–3). Document and safety inspections
may be conducted without a warrant even if the inspectors
also suspect criminal activity (United States v. Villamonte-
Marquez 1983, p. 584). Customs officials are authorized
to conduct document and safety inspections of foreign
vessels without a warrant if the vessels are located in
United States waters or in certain other areas specified by
federal statutes and applicable treaties (19 U.S.C.
§ 1581(a) 1994).
ADMINISTRATIVE SEARCHES
The Supreme Court has upheld warrantless adminis-
trative searches of pervasively regulated businesses where:
(i) there is a substantial state interest behind the regula-
tory scheme; (ii) the search is necessary to further that
scheme; and (iii) the authorizing statute is an adequate
substitute for the warrant requirement in giving notice

to owners and limiting the discretion of those conduct-
ing the search (New York v. Burger 1987, p. 691).
SPECIAL NEEDS SEARCHES
For certain searches, where the state’s ‘special need …
beyond the normal need for law enforcement’ would be
jeopardized through the individualized suspicion require-
ment normally applicable, the state may dispense with the
warrant and probable cause requirements (Chandler v.
Miller 1997, pp. 305, 313–14, 318; Vernonia School Dist. 47J
v. Acton 1995, pp. 646, 660). For example, the Supreme
Court has upheld: (a) random drug testing as justified by
the special needs of public safety in the employment con-
text (National Treasury Employees Union v. Von Raab
1989, pp. 656, 677; Skinner v. Railway Labor Executives’
Ass’n 1989, pp. 602, 633–4); (b) searches of the offices or
persons of public employees based on ‘reasonableness’
rather than probable cause (O’Connor v. Ortega 1987,
pp. 709, 713–14); (c) drug testing of public school students,
and warrantless searches of students by school authorities
(Vernonia School Dist. 47J v. Acton 1995, p. 653; New Jersey
v. T.L.O. 1985, pp. 325, 333); and (d) warrantless searches
of the homes of probationers and parolees based on
‘reasonableness’ rather than probable cause (Griffin v.
Wisconsin 1987, pp. 868, 872–3).
ELECTRONIC SURVEILLANCE
In Katz v. United States (1967), the Supreme Court,
declaring for the first time that ‘the Fourth Amendment
protects people, not places,’ held that a search governed by
the Fourth Amendment is deemed to have occurred when:
(i) the government has transgressed a citizen’s subjective
manifestation of a privacy interest; and (ii) the privacy
interest invaded is one that society is prepared to accept
as legitimate. Accordingly, electronic eavesdropping by
government agents using a listening device on the outside
of a public telephone booth was held subject to the Fourth
Amendment.
Since Katz, Supreme Court decisions reflect the view
that technological advances have led to a reduction in a
person’s justified expectation of privacy. For example, in
Dow Chemical Co. v. United States (1986), the Court saw
no violation of the Fourth Amendment where the Envir-
onmental Protection Agency engaged in warrantless aerial
photographing of a Dow Chemical manufacturing plant.
Because any person with access to a camera and an airplane
could have taken the same photographs, the Court found
it unreasonable for Dow to expect privacy regarding
aerial views of its plant (see also California v. Ciraolo 1986,
pp. 207, 215; warrantless aerial observation of fenced-in
backyard was not unreasonable under the Fourth Amend-
ment in an age where commercial flights are routine);
Florida v. Riley 1989, p. 445; surveillance from a helicop-
ter flying at 400 feet permissible).
An introduction to criminal procedure 799
In United States v. Knotts (1983, p. 276), the Court held
that the use of a ‘beeper’ (a battery-operated radio trans-
mitter that emits periodic signals) in a drum of chemicals
being transported in a car was neither a search nor a seizure
within the meaning of the Fourth Amendment. A person
travelling in an automobile on public roads, the Court
stated, has no reasonable expectation of privacy in his
movements from one place to another. The fact that police
relied on the beeper as well as visual surveillance did not
change the situation: ‘Nothing in the Fourth Amendment
prohibited the police from augmenting the sensory facil-
ities bestowed upon them at birth with such enhancement
as science and technology afforded them in this case’
(United States v. Knotts 1983, p. 282).
One year later, however, the Court in United States v.
Karo (1984, p. 705) held that the monitoring of a beeper in
a private residence, a location not open to visual surveil-
lance, violates the Fourth Amendment rights of those who
have a justifiable interest in the privacy of the residence.
In Smith v. Maryland (1979, pp. 735, 744), the Court
found no reasonable expectation of privacy in the num-
bers dialed on a telephone because such information is
voluntarily conveyed and made available to telephone
company personnel.
Moreover, government regulation can itself reduce
an individual’s reasonable expectation of privacy. For
example, in New York v. Burger (1987, p. 691), the Court
held that an automotive junk dealer, who was required by
statute to keep a record for police inspection of all auto-
mobiles and parts in his possession, has a reduced expect-
ation of privacy in his business and therefore had no
constitutional objection to a warrantless (or suspicionless)
search of his junkyard.
Congress has specifically authorized electronic eaves-
dropping and wiretapping by federal and state law enforce-
ment officials pursuant to a warrant based on probable
cause. (Title III of the Omnibus Crime Control and Safe
Streets Act). The Congressional statute also authorizes
break-ins to install and later remove electronic surveillance
devices. The Supreme Court has held that these author-
izations are constitutional (Dalia v. United States 1979,
p. 238). The statute also gives the President broad powers
to take whatever steps he deems appropriate to protect
against foreign powers in the interest of national security,
including authorization of electronic surveillance with-
out obtaining a warrant.
Law enforcement officials are also permitted to employ
informants who are ‘wired’ or ‘bugged’ to record or trans-
mit conversations with a suspect (United States v. White
1971, p. 745). The dissenters in White were concerned
about the chilling effect of the threat of hidden electronic
monitoring on privacy and free discourse: ‘The impact of
the practice of third-party bugging, must, I think, be con-
sidered such as to undermine that confidence and sense
of security in dealing with one another that is characteris-
tic of individual relationships between citizens in a free
society’ (United States v. White 1971, p. 785; Harlan, J.,
800 Basic issues in law

dissenting). Instances of surreptitious electronic surveil- to the degree associated with formal arrest. In a number
lance of forensic psychiatrists by patients have raised of situations involving questioning by law enforcement
particular concerns regarding the erosion of trust in authorities, the Court has held that no Miranda warnings
relationships that have traditionally depended upon an were required because the suspect was not ‘in custody’
expectation of privacy (see Goldstein 1989). [see for example, Berkemer v. McCarty 1984, pp. 420, 442
(person detained pursuant to a routine traffic stop was
not in custody); Minnesota v. Murphy 1984, pp. 420, 429–34
CONFESSIONS (routine meeting between an individual and his probation
officer did not constitute custody); Michigan v. Summers
1981, pp. 692, 702 (‘informal’ detention of a suspect dur-
The Fifth Amendment provides (in relevant part): ‘No
ing the execution of a search warrant did not constitute
person … shall be compelled in any criminal case to be a
custody)].
witness against himself.’ Police interrogation of a suspect
The Supreme Court has defined ‘interrogation’ for pur-
in custody threatens the exercise of this Fifth Amend-
poses of Miranda warnings as ‘words or actions on the part
ment privilege because of the danger that officers might
of the police … that the police should know are reasonably
actively compel confessions through overtly coercive inter-
likely to elicit an incriminating response from the suspect.’
rogation, or passively compel them by exposing suspects
(Rhode Island v. Innis 1980, pp. 291, 301). In addition to
to the ‘inherently coercive’ environment created by
express questioning, other tactics such as ‘psychological
custodial interrogation.
ploys’ designed to elicit incriminating responses may also
In Miranda v. Arizona (1966, pp. 436, 442), the Supreme
amount to interrogation (Arizona v. Mauro 1987, pp. 520,
Court laid down ‘concrete constitutional guidelines for
526). A court-ordered psychiatric examination of a defend-
law enforcement agencies and courts to follow.’ These
ant constitutes an interrogation requiring Miranda warn-
guidelines established that the admissibility in evidence
ings (Estelle v. Smith 1981, p. 454).
of any statement given during custodial interrogation of
In some situations, evidence obtained through a
a suspect would depend on whether the police provided
Miranda violation is nonetheless admissible. For example,
the suspect with four warnings: that a suspect ‘has the right
in New York v. Quarles (1984, pp. 649, 654), the Court held
to remain silent, that anything he says can be used against
that testimonial evidence obtained from a suspect inter-
him in a court of law, that he has the right to the presence
rogated in custody was admissible despite the failure to
of an attorney, and that if he cannot afford an attorney one
give Miranda warnings because a threat to public safety
will be appointed for him prior to any questioning if he
had necessitated immediate police action.
so desires.’1 As the Court recently observed in an opinion
To prove a valid waiver of Miranda rights, the govern-
reaffirming Miranda, ‘Miranda has become embedded in
ment must show that: (i) the relinquishment of the defend-
routine police practice to the point where the warnings
ant’s rights was voluntary; and (ii) the defendant was
have become part of our national culture.’ (Dickerson v.
fully aware of the waiver and its consequences (Moran v.
United States 2000, p. 2326).
Burbine (1986, pp. 412, 421). In Davis v. United States
In Illinois v. Perkins (1990, pp. 292, 297), the Supreme
(1994, p. 452), the Court found a valid waiver where the
Court confirmed that Miranda warnings are required only
defendant initially waived his right to counsel and then
when a suspect is both in custody and subjected to inter-
during questioning said, ‘Maybe I should talk to a lawyer.’
rogation. In Perkins, Miranda warnings were not required
The Court held that the defendant’s request was ambigu-
when an imprisoned suspect spoke with an undercover
ous and reasoned that the suspect’s request for counsel
agent whom the suspect believed to be a cellmate, because
must be clear enough to alert a reasonable police officer
the ‘essential ingredients of a “police-dominated atmos-
that the suspect is requesting an attorney. Although it may
phere” and “compulsion” were not present.’
be good police practice, officers are not required to clarify
The determination of whether a suspect is ‘in custody’
an ambiguous request.
for purposes of Miranda warnings depends on the ‘object-
Coercive police activity is a necessary predicate to
ive circumstances,’ not on the subjective views of either the
finding that a confession is not ‘voluntary.’ A defendant’s
interrogating officers or the person being interrogated
mental condition, though a significant factor in deter-
(Stansbury v. California 1994, pp. 318, 321). A suspect is ‘in
mining voluntariness, does not, by itself and apart from
custody’ if there is a formal arrest or restraint of movement
its relation to official coercion, ever resolve the issue of
constitutional voluntariness. Thus, in Colorado v. Connelly
1
In the wake of Miranda, Congress enacted 18 U.S.C. § 3501, which (1986, p. 157), the fact that the suspect was a chronic
attempted to establish a rule that such statements would be admis- schizophrenic who confessed while in an acute psychotic
sible if they were voluntary, whether or not Miranda warnings state following a divine command hallucination, did not
were given. In Dickerson v. United States (2000, p. 2326), the Court
invalidate his confession to murder charges. The Court
held that Miranda, being a constitutional decision of the Court,
may not in effect be overruled by an Act of Congress. Therefore, reasoned that, ‘Miranda protects defendants against
Miranda and its progeny still govern the admissibility of statements government coercion leading them to surrender rights
made during custodial interrogation. protected by the Fifth Amendment; it goes no further

than that. [The defendant’s] perception of coercion flow-
ing from the “voice of God,” however important or sig-
nificant such a perception may be in other disciplines, is
a matter to which the United States constitution does not
speak.’ Absent evidence of police coercion, the confession
of a severely mentally ill suspect, however unreliable it
may otherwise appear to be, is constitutionally valid once
Miranda rights are waived.
IDENTIFICATION PROCEDURES
The Sixth Amendment provides (in relevant part): ‘in all
criminal prosecutions, the accused shall enjoy the right
to … be confronted with the witnesses against him … and
to have the Assistance of Counsel for his defense.’ In
United States v. Wade (1967, pp. 218, 224), the Supreme
Court held that a post-indictment, pre-trial lineup is a
critical stage of a criminal proceeding where the defend-
ant has the right to counsel. Thus, both the defendant
and his counsel should have been notified of the lineup,
and counsel’s presence at the lineup should have been
required absent an intelligent waiver by the defendant.
Nevertheless, the Court declined to hold that the failure
to have counsel present at the lineup required exclusion
of the identification of the defendant at trial by the
witnesses who had earlier identified him at the lineup.
The courtroom identification would be admissible if the
government ‘could establish by clear and convincing
evidence that the in-court identifications were based upon
observations of the suspect other than the lineup identifi-
cation.’ (United States v. Wade 1967, at 240).
In Wade (388 U.S. at 228), the Court recognized that:
… the vagaries of eyewitness identification are
well-known; the annals of criminal law are rife with
instances of mistaken identification. Mr. Justice
Frankfurter once said: ‘What is the worth of identifi-
cation testimony even when uncontradicted? The
identification of strangers is proverbially untrustwor-
thy. The hazards of such testimony are established by
a formidable number of instances in the records of
English and American trials. These instances are
recent – not due to the brutalities of ancient criminal
procedure.’ The Case of Sacco and Vanzetti 30 (1927).
More recently, in United States v. Crews (1980, pp. 463,
472), the Court referred to ‘the vagaries of human mem-
ory and the inherent suggestibility of many identification
procedures.’ To assist the jury in assessing the reliability
of identification evidence, some courts allow the intro-
duction of expert testimony regarding the unreliability of
eyewitness identification (see for example, United States v.
Smith 1984, pp. 1103, 1107, 6th Cir.; abuse of discretion to
refuse to admit expert testimony regarding the difficulties
eyewitnesses have making cross-racial identifications and
perceiving and remembering when under stress).
An introduction to criminal procedure 801
The right to counsel established in Wade does not
encompass identification procedures that occur before the
start of adversarial judicial proceedings (Kirby v. Illinois
1972, pp. 682, 690) or procedures, such as a photographic
lineup, that do not require the defendant’s presence (United
States v. Ash 1973, pp. 300, 321).
The Fifth Amendment Due Process Clause prohibits
identification testimony that derives from impermissibly
suggestive procedures that may lead to a mistaken identi-
fication (Stovall v. Denno 1967, pp. 293, 302).‘It is the like-
lihood of misidentification which violates a defendant’s
right to due process.’ (Neil v. Biggers 1972, pp. 188, 198).
Thus, if the totality of the circumstances indicates that the
identification is reliable, an identification derived from
unnecessarily suggestive procedures need not be excluded
(Manson v. Brathwaite 1977, pp. 98, 114).
As discussed in the previous section, the Fifth Amend-
ment protects a suspect from being compelled to give
testimonial evidence against himself. However, the Fifth
Amendment does not protect a suspect from being
compelled to provide certain types of potentially incrim-
inating physical evidence (see United States v. Hubbell
2000, p. 2037; Pennsylvania v. Muniz 1990, p. 582). Thus,
even though the act may provide incriminating evidence,
a suspect may be compelled to put on clothing (Holt v.
United States 1910, pp. 245, 252–3); and provide a blood
sample (Schmerber v. California 1966, p. 757), handwrit-
ing exemplar (Gilbert v. California 1967, p. 263), or voice
exemplar (United States v. Wade 1967, p. 218).
THE EXCLUSIONARY RULE
The exclusionary rule, a judicially created remedy to deter
government violations of the Constitution, requires that
evidence obtained directly or indirectly through viola-
tions of the Fourth, Fifth, or Sixth Amendments may not
be introduced by the prosecution at trial, at least for
the purpose of providing direct proof of the defendant’s
guilt. Illegally obtained evidence can be used by the pros-
ecution to impeach the defendant on cross-examination
(Michigan v. Harvey 1990, pp. 344, 346). The government
may also use illegally obtained evidence in federal civil tax
proceedings (United States v. Janis 1976, p. 433); habeas
proceedings (Stone v. Powell 1976, pp. 465, 493; grand
jury proceedings (United States v. Calandra 1974, pp. 338,
349–52); civil deportation proceedings (I.N.S. v. Lopez-
Mendoza 1984, pp. 1032, 1050); parole revocation proceed-
ings (Pennsylvania Bd. of Probation and Parole v. Scott 1998,
pp. 2014, 2020); and at a defendant’s sentencing hearing
(United States v. Tauil-Hernandez 1996, pp. 576, 581, 8th
Cir.; United States v. Torres 1991, pp. 324–5, 3d Cir.).
In United States v. Leon (1984, pp. 897, 920), the
Supreme Court created a ‘good faith exception’ to the
exclusionary rule, holding that evidence obtained through
objective good faith reliance on a facially valid warrant
802 Basic issues in law
that is later found to lack probable cause need not be sup-
pressed. The good faith exception also applies when police
obtain evidence in reliance on: (i) a warrant later found to
be technically defective (Massachusetts v. Sheppard 1984,
pp. 981, 991); (ii) a statute authorizing warrantless searches
that is later declared unconstitutional (Illinois v. Krull
1987, pp. 340, 349–50); or (iii) a police record erroneously
indicating the existence of an outstanding arrest warrant
(Arizona v. Evans 1995, pp. 14–16).
The good faith exception does not apply where the
police have no reasonable grounds for believing that the
warrant was properly issued (United States v. Leon 1984,
pp. 922–3). The Supreme Court has specifically identified
four situations where police reliance on a warrant is not
objectively reasonable:
1 When the warrant was issued in reliance on a deliber-
ately or recklessly false affidavit (Franks v. Delaware
1978, pp. 154, 155–6).
2 When the magistrate issuing the warrant failed to act
in a neutral and detached manner (Lo-Ji Sales, Inc. v.
New York 1979, pp. 319, 326–8).
3 When the warrant was based on an affidavit ‘so lack-
ing in indicia of probable cause as to render official
belief in its existence entirely unreasonable’ (United
States v. Leon 1984, p. 923).
4 When the warrant was so facially deficient that an
officer could not reasonably have believed it to be valid
(United States v. Leon 1984, p. 923).
A court may admit evidence that would not have been
discovered but for official misconduct if the causal con-
nection between the illegal conduct and the acquisition
of the evidence is sufficiently attenuated to purge the evi-
dence of its taint (Wong Sun v. United States 1963, pp. 471,
488). In Brown v. Illinois (1975, pp. 590, 603), the Supreme
Court set forth three factors for courts to consider in deter-
mining whether the causal chain has been sufficiently
attenuated:
1 The time elapsed between the illegality and the acqui-
sition of the evidence.
2 The presence of intervening circumstances.
3 The purpose and flagrancy of the official misconduct.
Similarly, even if police engage in illegal activity, evidence
is admissible if it is discovered through a source inde-
pendent of the illegality, or if the evidence inevitably
would have been discovered through independent, lawful
means (Murray v. United States 1988, pp. 533, 537).
REFERENCES
Abel v. United States, 362 U.S. 217 (1960).
Almeida-Sanchez v. United States, 413 U.S. 266 (1973).
Arizona v. Evans, 514 U.S. 1 (1995).
Arizona v. Hicks, 480 U.S. 321 (1987).
Arizona v. Mauro, 481 U.S. 520 (1987).
Berkemer v. McCarty, 468 U.S. 420 (1984).
Brown v. Illinois, 422 U.S. 590 (1975).
Bumper v. North Carolina, 391 U.S. 543 (1968).
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California v. Greenwood, 486 U.S. 35 (1988).
Chandler v. Miller, 520 U.S. 305 (1997).
Colorado v. Bertine, 479 U.S. 367 (1987).
Colorado v. Connelly, 479 U.S. 157 (1986).
Coolidge v. New Hampshire, 403 U.S. 443 (1971).
County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
Cupp v. Murphy, 412 U.S. 291 (1973).
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Dow Chemical Co. v. United States, 476 U.S. 227 (1986).
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Florida v. Bostick, 501 U.S. 429 (1991).
Florida v. Jimeno, 500 U.S. 248 (1991).
Florida v. Riley, 488 U.S. 445 (1989).
Florida v. Royer, 460 U.S. 491 (1983).
Florida v. Wells, 495 U.S. 1 (1990).
Franks v. Delaware, 438 U.S. 154 (1978).
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Gilbert v. California, 388 U.S. 263 (1967).
Goldstein, R.L. 1989. Spying on psychiatrists: surreptitious
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An introduction to criminal procedure 803
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Punishment
RUSSELL STETLER AND ROBERT LLOYD GOLDSTEIN
INTRODUCTION
The broad purposes of the criminal law are to prevent
certain undesirable conduct and thereby to protect vari-
ous interests of society. Criminal law is framed in terms
of imposing punishment for undesirable conduct (LaFave
and Scott 1972). The institution of punishment exists in
every society. When it is imposed by English-speaking
courts, it is referred to as sentencing (Walker 1991). In
criminal cases, the state is the complaining party, ‘the ini-
tiating and enforcing agent’ (Murphy and Coleman 1990,
p. 113), in contrast to cases in private or civil law, in which
individuals seek redress for harm. In criminal cases, the
state views itself as the injured party and, in order to pro-
tect the public interest, may choose to prosecute crimes
even in cases where the victim prefers not to press charges.
A discussion of why certain classes of acts are criminal-
ized in order to prevent seriously harmful conduct, whereas
other acts, perhaps equally harmful, are the province of
civil law (e.g., tort actions providing for the award of
monetary damages), is beyond the scope of this chapter
and has been dealt with elsewhere (Nozick 1974; Posner
1977).
According to Hart (1968), the shared conception of
punishment is defined in terms of five elements:
1 It must involve pain or other consequences normally
considered unpleasant (e.g., incarceration).
2 It must be for an offense against legal rules.
3 It must be of an actual or supposed offender for his or
her offense.
4 It must be intentionally administered by human beings
other than the offender.
5 It must be imposed and administered by an authority
constituted by a legal system against which the offense
is committed (Hart 1968, pp. 4–5).
A society may be said to have an institution of legal pun-
ishment if it satisfies three conditions: ‘(1) a set of crim-
inal laws; (2) a procedure for determining who shall be
punished as a way of enforcing the laws; and (3) an
87
authoritative social mechanism for imposing the punish-
ment’ (Golding 1975, p. 71).
There are a number of rival theories of punishment,
each with its enthusiastic adherents and critics. Courts
imposing sentences rely on a combination of these trad-
itions, sometimes choosing that objective most likely to be
achieved:
The courts must continue to balance deterrence,
rehabilitation and retribution, but it must be recog-
nized that where it is not possible to have much or
any confidence that the sentence imposed will do
anything by way of deterrence or rehabilitation, sub-
stantial retribution must be exacted. The legal system
must exact retribution from an offender because
otherwise the community in the last resort will exact
its own. In a civilized society, that is not acceptable.
(Victorian Attorney-General’s Department; Report of
the Victorian Sentencing Committee 1988, p. 24)
THEORIES OF PUNISHMENT
Deterrence
The utilitarian penologists (in a tradition extending from
Plato and Protagoras to Bentham, Mill and Wootton)
view deterrence as the paramount justification for legal
punishment. Members of a society are deterred from the
commission of proscribed acts because of the possible
consequences (the threat of punishment) that the crim-
inal law mandates. This is a forward-looking theory, which
rests on the empirical premise that the threat of punish-
ment, or its actual imposition in a particular case, serves
as an effective deterrent to others. The evil of punishment
is justified therefore, because it leads to the greater over-
all good of society by reduction of crime and rights vio-
lations. Plato stated the deterrence theory succinctly over
two thousand years ago:
Punishment is not retribution for the past, for what
has been done cannot be undone; it is imposed for the

sake of the future and to secure that both the person
punished and those who see him punished may either
learn to detest the crime utterly or at any rate to abate
much of their old behavior. (Plato 1975, p. 934)
According to Bentham (1961), the chief end of pun-
ishment is general deterrence, that is, the imposition of
punishment on the offender promotes the greater good
of deterring other members of society from committing
similar acts, thereby resulting in an overall reduction of
crime. Bentham sets forth a cost–benefit analysis to decide
which acts need to be criminalized and to calculate the
optimal amount of punishment for specific offenses
(in order to satisfy utilitarian considerations of promoting
the overall safety and happiness of society), which is nec-
essary to prevent criminal activity at the ‘cheapest rate’
possible (Golding 1975). Bentham’s calculus serves to
arrive at a balance where overall social benefits outweigh
social costs, resulting in a net social gain.
Special deterrence (or particular deterrence) refers to a
related aim of criminal punishment to deter the criminal
him/herself (rather than to deter others) from commit-
ting future criminal acts. By providing for an unpleasant
experience he/she will wish to avoid in the future, it is
hoped that fear of renewed punishment will deter him/her
in the future. Ideally, the imposed punishment may even
reform him/her and result in a change of heart (LaFave and
Scott 1972). Of course, if he or she is executed, the pun-
ishment will be absolutely effective in deterring him/her
from the commission of future crimes.1 Some studies on
special deterrence suggest that a suspended sentence is
less effective than an actual sentence of incarceration in
reducing the reconviction rate. Similarly, prisoners who
spend more time in prison may be less likely to be recon-
victed (Walker 1991). The tendency of the first exposure
to prison to suppress rearrest rates has been termed the
‘suppression effect’ (Murray and Cox 1979).
Retributivism
The retributive theory of punishment justifies legal pun-
ishment not on the basis of social utilitarianism, but as
a normal duty to punish a guilty offender who deserves
a just punishment. According to Kant,
Judicial punishment can never be used merely as a
means to promote some other good for the criminal
himself or for society, but instead it must in all cases
be imposed on a person solely on the ground that he
has committed a crime … . He must first be found to
be deserving of punishment before any consider-
ation can be given to the utility of this punishment
1
Murphy and Coleman (1990, p. 109) cannot resist offering the fol-
lowing example of ‘gallows humor’ to reinforce this point: Hangman:
‘Do you have any last words?’ W. C. Fields: ‘This is certainly going to
be a lesson to me.’
Punishment 805
for himself or for his fellow citizens … . The law con-
cerning punishment is a categorical imperative, and
woe to him who rummages around in the winding
paths of a theory of happiness looking for some
advantage to be gained by releasing the criminal
from punishment or by reducing the amount of it … .
Even if civil society were to dissolve itself by common
agreement of all its members (for example, if the
people inhabiting an island decided to separate and
disperse themselves around the world), the last mur-
derer remaining in prison must be executed, so that
everyone will duly receive what his actions are worth
and so that the bloodguilt thereof will not be fixed
on the people because they failed to insist on carry-
ing out the punishment; for if they fail to do so, they
may be regarded as accomplices in this public viola-
tion of legal justice. (Kant 1965, p. 102)
Retributivism differs from mere revenge or vindic-
tiveness, in that the latter are personal responses to crim-
inal wrongdoing, sometimes of an extralegal nature.2
Retribution, on the other hand, is based on a respect
for the law and on a ‘cluster of moral concepts: rights,
desert, merit, moral responsibility, and justice’ (Murphy
and Coleman 1990, p. 121). The justification for punish-
ment is backward-looking (as opposed to the deterrence
theory), in that it is based on what an individual has done
already, on his or her guilt and blameworthiness, and not
on what he or she will do in the future.
Kant represents the so-called maximalist position,
maintaining that there is an absolute duty to punish the
culpable offender, to make him/her pay their debt to soci-
ety. (The minimalist position asserts that no one should be
punished unless he or she is guilty of a criminal offense;
however, under certain circumstances, even though deserv-
ing of punishment, he or she may be absolved partially
or completely.) Whether maximalist or minimalist, all
retributive punishment signifies a condemnatory atti-
tude expressed toward the guilty offender. The criminal
is an enemy of society and the imposition of punishment
is, according to Lord Denning, ‘the emphatic denunci-
ation by the community of a crime.’ (Hart 1968, p. 2).
According to Kant, all individuals have a moral duty
to obey the law. This is a reciprocal obligation or debt
that we owe each other in order ‘to secure justice and the
respect of rights in action’ (Golding 1975, p. 91). Those
who knowingly commit a crime acquire a ‘moral demerit’
by virtue of weakening the ‘fabric of justice’ and attempt-
ing to profit from their wrongdoing. The criminal thereby
owes a debt to society as a whole and ‘must be punished
in order to vindicate justice and rights’ (Golding 1975,
2
Some feel that institutionalized revenge is one legitimate purpose
of state punishment. As Judge Stephen (1890) wrote, ‘The criminal
law regulates, sanctions, and provides a legitimate satisfaction for
the passion of revenge; the criminal law stands to the passion of
revenge in much the same relation as marriage to the sexual
appetite.’ (Stephen 1890, p. 99).
806 Basic issues in law
p. 92). Failure to punish the culprit is an unthinkable vio-
lation of the duty of justice, and Kant warns that ‘If legal
justice perishes, then it is no longer worthwhile for men
to remain on this earth.’ (Kant 1965, p. 100).
In order for the offender to get his or her just deserts,
the level of punishment should roughly equal the moral
gravity of the offense (which is a function of both the
harm involved in the offense and the degree of culpability
of the offender).3 This equalizing standard (when offense
and punishment stand in equal relationship to each other)
restores the moral balance and vindicates justice. This
retributivist idea of a ‘moral fit’ between offense and pun-
ishment preserves the ‘spirit’ of the lex talionis (‘an eye for
an eye’) as the most appropriate measure of just punish-
ment (Golding 1975). This equalizing standard of pun-
ishment, which Walker (1991) calls ‘commensurability,’
is unworkable in practice and has been abandoned for
the relational standard (or ‘proportionality’).
The offender accordingly is punished relative to the
gravity of the particular category of offenses as con-
trasted with offenses from other categories. Thus, crimes
of equal gravity are punished by equally severe penalties,
and weightier offenses are punished more severely than
lesser ones. Both offenses and corresponding penalties are
graded on a series of rough scales (Golding 1975). Further
discussion of the problems inherent in sentencing are
beyond the scope of this chapter, but have been explored
by a psychiatrist (Gaylin 1975), a judge (Frankel 1972), and
a criminologist (Walker 1985), each offering suggestions
for change in our legal system.
Incapacitation (restraint, disablement)
When criminals are deprived of their liberty and are isol-
ated from society, they lose the capacity to commit fur-
ther crimes against society. The mainstays of the system,
incarceration or very tight control in the community,
incapacitate the offenders and, if nothing else, protect the
public from the crimes they would commit were they free
to do so. The protective efficacy of incapacitation seems
obvious in the individual case, but what is its actual effect
on overall crime reduction?
Wilson (1985) summarizes the research literature on
this controversial issue, including one study that put for-
ward an ‘elegant mathematical formula for estimating the
crime-reduction potential of incapacitation under various
assumptions’ (Wilson 1985, p. 147, citing Shinnar and
3
Social scientists have constructed tables to rate offenses according
to the harm involved, considering features such as injury or loss
sustained by the victim, use of weapons, type of victim, etc. (Sellin
and Wolfgang 1964; Rossi et al. 1974). Degree of culpability is
related to mitigating factors (e.g., provocation, intentional temp-
tation by the victim, youth or old age, mental disorder, etc.) and
aggravating factors (e.g., premeditation, professionalism, misuse
of a fiduciary relationship, etc.) (Walker 1991).
Shinnar 1975). The latter study concluded that the rate of
street robberies in New York would be reduced to about
one-fifth of the 1970 rate if every offender convicted of
the crime was imprisoned (incapacitated) for five years.
The best study to date demonstrates that selective incap-
acitation of high-rate offenders would be the most effect-
ive means of crime reduction (Petersilia and Greenwood
1978). The authors developed a predictive scale, consisting
of seven factors, which proved to be a reliable guide to
identifying high-rate offenders.
Given that long-term ‘incarceration is the most
expensive penalty ever invented’ (Walker 1991, p. 36),
Greenwood (1982) hypothesized that selective incapaci-
tation of high-rate offenders (by lengthening their sen-
tences, while lowering those of low-rate offenders) would
result in significant crime reduction with no increase in
the total prison population. There are a number of excel-
lent critical reviews of the American correction system in
its present-day form, as well as scholarly accounts of its
antecedents in England and the American colonies, which
authorized the used of legalized torture and mutilation
(Hibbert 1966; Honderich 1971; Earle 1972; Goldfarb
and Singer 1973).
Rehabilitation (correction, reformation)
The rehabilitative approach seeks to offer the convicted
offender appropriate treatment ‘in order to rehabilitate
him and return him to society so reformed that he will
not desire or need to commit further crimes.’ (LaFave and
Scott 1972, p. 23). At one extreme, there are those who
advocate replacing the criminal process of punishment
with a system of therapeutic rehabilitation, which presum-
ably offers a more scientific response to criminal behavior.
The leading proponent of this position was Dr. Karl
Menninger, who argued in The Crime of Punishment that,
‘Being against punishment is not a sentimental conviction.
It is a logical conclusion drawn from scientific experience.’
(Menninger 1969, p. 204).
All criminal behavior is viewed as a symptom of men-
tal illness and accordingly should be dealt with by the
psychiatrist and social worker, rather than by the pros-
ecutor, judge, and warden. A board of experts would over-
see the rehabilitative needs of the offender, who would
be detained until treatment was satisfactorily completed
(Golding 1975). Treatment presumably would include
modalities ranging from psychotherapy and occupational
training to psychosurgery, electroconvulsive therapy,
sterilization, behavior modification techniques, and drug
therapy. Most criminologists and philosophers have dis-
missed such an approach as ‘totally and systematically
wrong … fabricated solely upon confusion and fallacies.’
(Murphy 1973).
Golding (1975, p. 104) quotes Herbert Packer as say-
ing, ‘We should be as suspicious of the urge to cure as of
the urge to punish.’ Murphy (1973) decisively demolishes

these theories on both procedural and substantive grounds,
demonstrating that they threaten individual liberty and
due process rights by legitimizing preventive and inde-
terminate detention; moreover, they would indiscrimin-
ately attempt to impose the psychiatric-medical model
on a heterogeneous population of criminal offenders with-
out regard to scientific, moral, or political considerations.
Aside from the discredited theories of those who would
advocate the total abolition of punishment, what are the
results of research attempts to measure the achievements
of programs designed to treat and rehabilitate offenders
within the context of the present-day correctional system?
Is there any basis for optimism regarding the efficacy of
treatment in any form? Unfortunately, the overwhelming
consensus of research in this area has resulted in the under-
mining of virtually all of the enduring mythology regard-
ing prior optimistic assessments of corrective efficacy.4
(Wilkins 1969).
As early as 1951, the Cambridge-Somerville Youth
study of nearly 2000 youthful offenders concluded that
therapeutic intervention ‘was no more effective than the
usual forces in the community in preventing boys from
committing delinquent acts’ (Walker 1991, p. 42, citing
Powers and Witmer 1951). Martinson (1974) systematic-
ally reviewed all of the rehabilitation research literature
in the English language between 1945 and 1967 and, in
his seminal article ‘What Works,’ grimly concluded that,
‘With few and isolated exceptions, the rehabilitative efforts
that have been reported so far had no appreciable effect
on recidivism.’ (Martinson 1974, p. 25).
Martinson’s conclusions were echoed by other investi-
gators in the field (Wilkins 1969; Hood and Sparks 1970;
Greenberg 1977; Martin, Sechrest, and Redner 1981),
resulting in a loss of faith in the scientific and philosoph-
ical rationale for making rehabilitation the paramount
goal of sentencing (Wilson 1985). The literature falls short
of establishing that ‘nothing works,’ but does indicate that
there is currently no proof that any rehabilitative method
in use does succeed. This does not eliminate the possibil-
ity that some offenders are now amenable to rehabilita-
tion or that new methods will prove their efficacy in future
studies (Adams 1962). The current state of affairs has been
aptly summarized by Walker:
‘Nothing works’ is an overstatement. Some things
work with some offenders, but not with most, or not
for long. The minority who would respond to a spe-
cific measure, applied in a specific way, are not easily
identified, even by professionals. Nor can anyone
guarantee that a specific measure will be applied as
the sentencer or professional adviser intended that it
should be. (Walker 1991, p. 49)
4
A mere twenty or thirty years ago there was a primary commit-
ment to the ‘rehabilitative ideal,’ as compared to the other the-
ories of punishment (Allen 1959; LaFave and Scott 1972).
Punishment 807
POSTSCRIPT ON CAPITAL PUNISHMENT
No review of punishment in contemporary America
would be complete without discussing the death penalty.
Executions have been a part of American life since colonial
times, but three distinct historical periods can be identi-
fied. In the first period, from colonial times through the
late nineteenth century, the punishment of death was
available for many crimes and was carried out by local
authorities – often in public squares, to maximize deterrent
effects. In the middle years, from the late nineteenth cen-
tury through the 1960s, executions became the responsi-
bility of state and federal authorities, the range of capital
offenses was narrowed, and the method of execution was
modernized. The current period, beginning in 1976, has
further narrowed the category of death-eligible offenses,
required individualized determination of those selected
for the ultimate sanction, and introduced lethal injection
as the predominant method of execution.
The first recorded execution in the American colonies
was in Jamestown in 1608 (Capt. George Kendall). Fol-
lowing the English conquest of New Netherland in 1664,
the New York colony was governed by the so-called ‘Duke’s
Laws,’ which sanctioned death for eleven crimes, including
some classes of homicide (premeditated murder and the
slaying, with a sword or dagger, of someone who had no
weapon of defense); various sex crimes (carnal copula-
tion with any ‘Beast or Bruite’; homosexual copulation,
‘unless one part were Forced or be under fourteen years
of age’; and adultery by a married person); denial of the
‘true God and his Attributes’; and hitting one’s parents
(though only upon the complaint of both parents)
(Mackey 1982). It is estimated that before the American
Revolution, over 20 per cent of all New York’s penalties
were capital (Rothman 1990).
Public executions flourished in the early nineteenth
century – with ‘Hanging Day’ crowds in New York esti-
mated in the tens of thousands. In 1835, New York
became the fourth state in the Northeast to abolish pub-
lic executions, in the belief that public executions tended
to ‘harden and brutalize the feelings of the populace,
familiarize them with scenes of blood, incite disgust
instead of terror or respect for the laws, and increase
offenses both in number and enormity.’ The legislature
moved executions ‘within the walls of the prison of the
county in which such convictions shall have taken place,
or within a yard or enclosure adjoining said prison.’
(Act of May 9, 1835, ch. 258, 1835 New York Laws 299,
Section One).
As executions moved from public spectacles to solemn
procedures carried out behind prison walls, hanging, in
turn, gave way to more modern instruments of judicial
homicide – electric chairs and gas chambers.
Nationwide, executions increased ten-fold in the first
third of the twentieth century, from 155 in the 1890s to
1523 in the 1930s. But the decline in the second third of
808 Basic issues in law
the century was almost symmetrical – with nationwide
executions dropping to 191 in the 1960s and early 1970s.
In 1972, the United States Supreme Court struck down
all the capital statutes then in effect because capital pun-
ishment seemed to be imposed on a ‘capriciously selected
random handful’ of murderers and rapists (in the words
of one justice, who found death sentences as cruel and
unusual as being struck by lightning). Many states
responded by passing new death penalty statutes which
attempted to eliminate the unfettered discretion which
had produced these arbitrary results. In 1976, the U.S.
Supreme Court reviewed five new capital statutes, invali-
dating mandatory death sentences (i.e., automatic death
sentences for those convicted of a particular category of
crime) but upholding statutes with ‘guided discretion’
(permitting individualized sentencing after consideration
of ‘compassionate or mitigating factors stemming from
the diverse frailties of humankind’) (Woodson v. North
Carolina 1976). By the year 2000, thirty-eight states had
enacted death-penalty statutes, as had the federal govern-
ment and the U.S. military.
The overwhelming majority of capital punishment
jurisdictions now have lethal injection as a method of
execution (or as the sole method). The Eighth Amendment
prohibition on cruel and unusual punishment has long
been held to proscribe torturous punishments, such as
disembowelment, drawing and quartering, public dissec-
tion, and burning alive (Wilkerson v. Utah 1878). However,
the U.S. Supreme Court has also made clear that the
amendment ‘must draw its meaning from the evolving
standards of decency that mark the progress of a maturing
society’ (Trop v. Dulles 1958). Thus, methods of execution
which were acceptable in the past continue to be chal-
lenged based on evolving societal standards.
The recent American experience with capital punish-
ment has shown no differential deterrent effects compared
to lengthy prison sentences. Indeed, the twelve states which
have no death penalty have not had higher homicide
rates than states with the death penalty. Ten of the twelve
states without capital punishment have homicide rates
below the national average, and half the death-penalty
states have homicide rates above the national average
(Bonner and Fessenden 2000).
While there is no debate as to particular deterrence
(execution will certainly deter the individual offender
from ever killing again), there has been great concern about
the risk of executing the wrongfully convicted. DNA
exonerations of death-sentenced prisoners have raised
questions about whether innocent persons have been
executed. Some utilitarians view such executions as an
acceptable risk when balanced against the greater societal
good of deterring crime and expressing outrage at hor-
rific murders, but many critics of the death penalty feel
that this risk in itself is a compelling argument for abol-
ishing capital punishment.
The first statistical study of modern American capital
appeals revealed an overall rate of prejudicial error of 68
per cent. This study, by academics from Columbia and
New York University, reviewed 4578 capital cases between
1973 and 1995. In the cases overturned by state post-
conviction courts due to serious error, 82 per cent were
found to deserve a sentence less than death when the
errors were cured on retrial, and 7 per cent were found to
be not guilty of the capital crime (Liebman, Fagan, and
West 2000).
Societal protection through incapacitation of the
offender seems to be equally well served by the current
alternative to capital punishment – true life sentences in
maximum-security prisons. Many states now offer life
without the possibility of parole as an alternative to the
death penalty. For Benthamite utilitarians, there appears
to be a fiscal advantage to life sentences compared to the
legal costs associated with death-penalty cases involving
years of complex trial, appellate and post-conviction
litigation at public expense.
Retributivism remains the principal theoretical justi-
fication for capital punishment. But U.S. Supreme Court
jurisprudence has stressed the need to consider the moral
blameworthiness of each individual death-eligible defend-
ant. Challenges to capital punishment have also raised
questions of proportionality – that is, whether the sentence
of death is excessive or disproportionate to the penalty
imposed in similar cases considering both the crime (in
1977, the U.S. Supreme Court held that the death penalty
is a disproportionate punishment for the crime of rape;
Coker v. Georgia 1977) and the defendant. Among the
factors bearing on this question are race of defendant
and victim, geographic disparities, and the influence of
momentary passion and abiding prejudice on charging
and imposition of the death penalty in individual cases.
The retributivist model requires that the offender who
deserves death have the capacity to comprehend ‘why he
has been singled out and stripped of his fundamental
right to life … . Whether its aim be to protect the con-
demned from fear and pain without comfort or under-
standing, or to protect the dignity of society itself from
the barbarity of exacting mindless vengeance, the restric-
tion [against executing the insane] finds enforcement
in the Eighth Amendment.’ (Ford v. Wainwright 1986).
Thus, unique issues of competency to be executed arise
for forensic assessment, in addition to the myriad other
mental-health issues in capital cases.
Competency is always a context-based legal determi-
nation (Mezer and Rheingold 1962; Burt and Philipsborn
1998). That is, a person may be competent for one type
of action (writing a will or refusing medical treatment),
but incompetent for another (assisting and aiding coun-
sel in a capital trial or understanding why he or she is
being executed). Competency also has a temporal dimen-
sion. A person may be incompetent today but restored to
competency in six months. Some commentators have
raised ethical concerns about treatment to restore com-
petency, such as involuntary medication, when that
action could begin an unbroken chain of events leading

to execution (Radelet and Barnard 1986; Radelet and
Barnard 1988).
Competency to waive appellate review also raises
unusual issues having no counterpart outside of capital
litigation. ‘Volunteers’ who drop their appeals constitute
a significant and perhaps increasing segment of the con-
demned prisoners who are actually executed.5 Actual
suicides also account for significant mortality among
death-eligible and death-sentenced prisoners. Nationally,
there were over fifty death-row suicides in the same period
as the first 500 post-1976 executions. The experience of
being condemned by society and stigmatized in the
media has exacerbated preexisting depression to such a
degree that even among the wrongfully convicted there
have been at least two post-exoneration suicides (Rimer
2000).
Mental health professionals are consulted on many
other issues in capital cases beyond traditional forensic
assessments of responsibility and competency. Mental or
emotional disturbance which does not rise to the level of
a legal defense to the underlying charges may be con-
sidered by the capital sentencer as mitigation – that is, a
basis for a sentence other than death. Mental retardation
issues require careful assessment by specialists in this
subdiscipline. Thus, experts are frequently consulted and
sometimes asked to testify about the interplay of genetic,
biological and psychosocial factors worthy of consider-
ation in choosing life or death as punishment.
REFERENCES
Adams, S. 1962: The PICO project. In Johnson, N., Savitz, L.,
Wolfgang, M.E. (eds), The Sociology of Punishment and
Correction. New York: John Wiley & Sons, 213–24.
Allen, R.B. 1959. Legal values and the rehabilitative ideal.
Journal of Criminal Law, Criminology and Police Science
50, 226–65.
Bentham, J. 1961: An Introduction to the Principles of
Morals and Legislation. New York: Hafner.
Bonner, R., Fessenden, F. 2000. States with no death
penalty share lower homicide rates. New York Times
September 22, p. A1.
Burt, M.N., Philipsborn, J.T. 1998. Assessing client
competence: a review of approaches. Forum (California
Attorneys for Criminal Justice) 25, 20–9.
Coker v. Georgia, 433 U.S. 584, at 593–6 (1977).
Earle, A.M. 1972: Curious Punishments of Bygone Days.
Tokyo: Charles E. Tuttle.
Ford v. Wainwright, 477 U.S. 399, at 409 (1986).
5
According to data collected by the NAACP Legal Defense and
Educational Fund and posted on the website of the Death Penalty
Information Center (www.deathpenaltyinfo.org), prisoners who
waived their appeals constituted about 12 per cent of the first 500
post-Furman executions (see also Willing 1999).
Punishment 809
Frankel, M.E. 1972: Criminal Sentences: Law Without Order.
New York: Hill and Wang.
Gaylin, W. 1975: Partial Justice: A Study of Bias in
Sentencing. New York: Vintage Books.
Goldfarb, R.L., Singer, L.R. 1973: After Conviction: A
Review of the American Correction System. New York:
Simon and Schuster.
Golding, M.P. 1975: Philosophy of Law. Englewood Cliffs,
NJ: Prentice-Hall.
Greenberg, D.F. 1977: The correctional effects of
corrections: a survey of evaluations. In Greenberg, D.F.
(ed.), Corrections and Punishment. Beverly Hills: Sage
Publications, 111–48.
Greenwood, P.W. 1982: Selective Incapacitation. Santa
Monica: Rand.
Hart, H.L.A. 1968: Punishment and Responsibility. Oxford:
Oxford University Press.
Hibbert, C. 1966: The Roots of Evil: A Social History of
Crime and Punishment. Middlesex: Penguin Books.
Honderich, T. 1971: Punishment: The Supposed
Justifications. Middlesex: Penguin Books.
Hood, R.G., Sparks, R. 1970: Key Issues in Criminology.
London: Weidenfeld and Nichols.
Kant, I. 1965: Metaphysical Elements of Justice.
Indianapolis: Bobbs-Merrill.
LaFave, W.R., Scott, A.W., Jr. 1972: Handbook on Criminal
Law. St. Paul: West Publishing Co.
Liebman, J.S., Fagan, J., West, V. 2000: A Broken System:
Error Rates in Capital Cases, 1973–1995. Washington,
DC: The Justice Project.
Mackey, P.E. 1982: Hanging in the Balance: The Anti-
Capital Punishment Movement in New York State.
New York: Garland Publishing, 38–9.
Martin, S.E., Sechrest, L.B., Redner, R. 1981: New
Directions in the Rehabilitation of Criminal Offenders.
Washington, DC: National Academy of Sciences.
Martinson, R. 1974. What works? Questions and answers
about prison reform. The Public Interest 35, 22–54.
Menninger, K. 1969: The Crime of Punishment. New York:
Viking Press.
Mezer, R.R., Rheingold, P.D. 1962. Mental capacity and
incompetency: a psycho-legal problem. American
Journal of Psychology 118, 827–31.
Murphy, J.G. 1973: Criminal punishment and psychiatric
fallacies. In Murphy, J.G. (ed.), Punishment and
Rehabilitation. Belmont, CA: Wadsworth, 197–210.
Murphy, J.G., Coleman, J.L. 1990: Philosophy of Law: An
Introduction to Jurisprudence. Boulder: Westview Press.
Murray, C.A., Cox, L.A., Jr. 1979: Beyond Probation:
Juvenile Corrections and the Chronic Delinquent. Beverly
Hills: Sage Publications.
Nozick, R. 1974: Anarchy, State and Utopia. New York:
Basic Books.
Petersilia, J., Greenwood, P.W. 1978. Mandatory prison
sentences: their projected effects on crime and prison
populations. Journal of Criminal Law and Criminology
69, 604–15.
810 Basic issues in law
Plato. 1975: The Laws, Trevor J. Saunders, trans.
Aylesbury: Penguin Books.
Posner, R. 1977: Economic Analysis of Law. 2nd edition.
Boston: Little Brown.
Powers, E., Witmer, H. 1951: An Experiment in the
Prevention of Delinquency: The Cambridge-Somerville
Youth Study. New York: Columbia University Press.
Radelet, M.L., Barnard, G. 1986. Ethics and the psychiatric
determination of competency to be executed. Bulletin
of the American Academy of Psychiatry and the Law 14,
37–53.
Radelet, M.L., Barnard, G. 1988. Treating those found
incompetent for execution: ethical chaos with only one
solution. Bulletin of the American Academy of
Psychiatry and the Law 16, 297–308.
Rimer, S. 2000. Life after death row. New York Times
Magazine December 10, pp. 100–9.
Rossi, P., Waite, E., Boss, C.E., Berk, R.E. 1974. The
seriousness of crime: normative structure and individual
differences. American Journal of Sociology 39, 224–37.
Rothman, D. 1990: The Discovery of the Asylum: Social
Order and Disorder in the New Republic. Boston: Little,
Brown.
Sellin, T., Wolfgang, M. 1964: The Measurement of
Delinquency. New York: Wiley.
Shinnar, S., Shinnar, R. 1975. The effects of the criminal
justice system on the control of crime: a quantitative
approach. Law and Society Review 9, 581–611.
Stephen, J.F. 1890: A General View of the Criminal Law of
England. 2nd edition. London: Macmillan.
Trop v. Dulles, 356 U.S. 86, at 101 (1958).
Victorian Attorney-General’s Department. 1988: Report of
the Victorian Sentencing Committee. Melbourne.
Walker, N. 1985: Sentencing: Theory, Law and Practice.
London: Butterworths.
Walker, N. 1991: Why Punish? Oxford: Oxford University
Press.
Wilkerson v. Utah, 99 U.S. 130 at 136 (1878).
Wilkins, L.T. 1969: Evaluation of Penal Measures. New
York: Random House.
Willing, R. 1999. Death row inmates asking more to end
court appeals, be executed. Ithaca Journal February 1,
p. 1A.
Wilson, J.Q. 1985: Thinking About Crime. Revised edition.
New York: Vintage Books.
Woodson v. North Carolina, 428 U.S. 280, at 303 (1976).

Legal research on the Web
PETER ASH
Legal documents are highly suited to Web presentation:
as government materials they are public and not copy-
righted, so that anyone who wants to post or reference
them is free to do so. The ease of publishing information
to the Web, and the rapid increase in material available and
access to it, has been a boon to the forensic psychiatrist.
Much legal material that was previously available only to
those with fairly expensive subscriptions to such legal
databases as Lexis or Westlaw, or to those who could phys-
ically travel to a law library, is now available to any forensic
psychiatrist with an Internet connection.
WHAT’S AVAILABLE?
Statutes of the federal government and all states are now
available on the web, as well as a great deal of other regu-
latory and administrative material (the Code of Federal
Regulation, manuals of civil and criminal procedure,
treaties, etc.). One of the advantages of Web information
is that it is fairly straightforward task to keep it up-to-
date, so as new legislation is enacted or a new opinion is
delivered, it is easily added to the existing body of infor-
mation.
Court systems began to put appellate opinions on the
Web in the mid-1990s. The U.S. Supreme Court finally
began its website in the year 2000, although a number of
other sites have been posting selected Supreme Court
opinions for several years. Typically, when a court system
began to publish its opinions to the Web, it began with
new opinions. Courts have been much slower to go back
and publish previous opinions, although some jurisdic-
tions have begun doing this, a trend which will hopefully
continue. However, not all states yet make their opinions
available to the general public. Therefore, it is sometimes
difficult to know whether a particular court opinion even
exists on the Web. In addition to sites established and
maintained by government entities, there are others run
by other persons or institutions, which often link to gov-
ernment sites, and, in the case of federal appellate courts,
88
often have more information than the sites run by the
courts themselves.
A variety of secondary sources are currently available.
The federal government has done an excellent job post-
ing government documents in a variety of fields, some of
which are useful for forensic psychiatrists. For example,
many of the publications of the U.S. Department of Justice,
such as the FBI Uniform Crime Reports, are available. Legal
periodicals and law reviews are less generally available on
the Web (see URLs of secondary sources in Table 88.1 for
availability), though this may change in the future, fol-
lowing the trend of the major medical journals which
often began with abstracts and then moved in the direction
of full text availability. Finally, the characteristic of the
Web that anyone can publish information he or she finds
interesting and/or wants to publicize leads to the posting
of a great deal of information about forensic topics, from
the American Psychiatric Association’s Position on the
Insanity Defense to militia sites containing instructions
for small bomb construction.
Finally, there are a number of sites which provide links
to sites which contain legal materials or search engines
for obtaining legal materials.
GENERAL PRINCIPLES IN LOCATING
MATERIAL
Starting pages
The fact that the information required exists somewhere
on the Web does not mean that it is always easy to locate
it. There are several types of sites from which to start.
Table 88.1 lists samples of some of the types of sites avail-
able. Given the nature of rapid change on the Web, what
is most useful one year may be less useful the next.
Different starting places have different uses. When
you do not know where to start, a general index site, such
as the forensic resources page of the site of the American
Academy of Psychiatry and the Law, provides descriptions
812 Basic issues in law

Table 88.1 Web sites available for location of material

Index of web sites: links to variety of legal and forensic psychiatry information sites
www.aapl.org American Academy of Psychiatry and the Law
www.virtualchase.com Links to how-to-research issues and legal materials
General legal sites: capabilities for searching a variety of legal materials
www.findlaw.com General legal search site. Includes LawCrawler, a search engine for legal sites. Has
more state materials than some official state sites.
www.law.cornell.edu Cornell Univ. Law School
oyez.nwu.edu A multimedia database: Hear oral arguments in some landmark supreme court
cases
www.lexisone.com Lexis free service for recent cases
Search engines
www.google.com General search engine for the Web
lawcrawler.findlaw.com Search engine which allows limiting searches to legal sites
Government information
www.firstgov.gov Homepage of U.S. government
www.supremecourtus.gov Homepage of U.S. Supreme Court
www.ncjrs.org Justice Information Center (NCJRS)
www.nlectc.org National Law Enforcement and Corrections Technology Center
www.fbi.gov/ucr/ucr.htm FBI’s Uniform Crime Reports
ojjdp.ncjrs.org Office of Juvenile Justice and Delinquency Prevention
canlaw.net Canadian law information
Secondary sources
www.llrx.com Law Library Resource Exchange on-line journal about legal research
lawweb.usc.edu/library/journals/ University of Southern California index of law reviews available on the Web
journals.html
Commercial sites: subscription or credit card pay per use
www.Lexis-nexis.com Lexis-Nexis
www.westlaw.com Westlaw

and links to some frequently used sites as well as links to
information on legal searching. Frequent users of legal sites
who are searching for a particular statute or court opinion
frequently start with a favorite such as findlaw.com or the
Cornell University Law School site. For other, more gen-
eral information, it might be possible to start with a gen-
eral Web engine search such as Google. Additionally, the
commercial sites Lexis and Westlaw can be accessed on a
pay-per-use-basis.
Searching
Once a starting place has been found, the general next
step is to respond to the search query box on the site. If
the legal citation to the statute or court opinion is known,
it is a relatively simple matter to find the document. How-
ever, when a query is not so precise, the art of searching
comes into play. Perhaps the main difficulty in locating
information on the Web is developing an appropriate
search query to return the information being sought:
overly general terms will return an inordinate number of
hits which are difficult to sort through, and a too specific
query may miss the information being sought. Searching
is complicated by the fact that different search engines
use different formats for queries. (Italics will be used to
indicate what is actually entered: if quotation marks are
given, they should be entered.) Depending on the site,
entering insanity test may search for insanity AND test,
insanity OR test, or the phrase ‘insanity test.’ It pays to know
how the search engine works, and for those who do
not do a lot of online research, it is probably simplest to
become familiar with one site and use that as a regular
starting point. Most search engines on legal databases
begin by indexing words, while third generation search
engines of the entire Web (such as Google) use more com-
plex algorithms which take into account number of links,
frequency of use, etc. In either event, the words put into
the search query need to be chosen with care. For
example, suppose you are searching the U.S. Code (U.S.C.)
for the federal test for insanity, and enter insanity in the
query box. Since the word ‘insanity’ occurs frequently in
the U.S.C., this is likely to result in a large number of hits
identified by title and section number, which can be
laborious to check out one by one. If you enter the words
insanity test, you will not find the test at all because the
word ‘test’ is not in the statute. If you know a phrase
which is in the document you are searching for, this
makes a very good search, because phrases are more highly
specific. Therefore if you put ‘defense of insanity,’ the

relevant code section is the first hit returned (usually, but
some sites act differently). A further complication is that
legal search engines work differently: some use keywords,
others full words, so, for example, searching insanity
wrongfulness will take you directly to eighteen U.S.C. 17
on law sites which index by words (‘wrongfulness’ being
an unusual word in the U.S.C.), and give no hits on oth-
ers which use keywords (since ‘wrongfulness’ is not a key-
word). The net effect of all this variation is that searching
is often a trial-and-error proposition, in which you try
likely combinations of words, or working your way
through a large number of hits, or trying the same strat-
egy on a different site. One of the great advantages of the
commercial sites is that they use the same search algo-
rithms for all the materials available.
LOCATING STATUTES
If the particular citation is known, or the relevant title
number, it is very simple to find the relevant statute.
Starting at one of the general legal sites, you follow the
link to the particular subsection (U.S., state, etc.), enter
the citation, and obtain the result. If, however, you are
looking for the law on a particular subject, you need to
use a site that has searching capability. As exemplified by
the federal insanity test example above, this is usually a
matter of making the query sufficiently precise to avoid
having to click through a long list of links identified by
title number only. However, as the entire statute is on the
Web, there is some comfort in knowing that the brute force
working through the list will most likely also succeed in
locating the relevant section.
LOCATING A COURT OPINION
Locating a court opinion can be considerably more com-
plicated than locating a statute for which you are search-
ing because unless you are sure the opinion even exists
on the Web, it is hard to know if the problem is a failure
of your search strategy or because the material is unavail-
able. If you are looking for state opinions, and are not
sure which state is involved, the difficulty is considerably
more complicated because it’s not clear which site to use
(for example, if you were trying to find all the state cases
decided in the last two years pertaining to a particular
topic).
There are a number of principles to keep in mind:
• First try to find a case by name or citation on a legal
database.
• If one site does not give you what you want, try another.
• State court opinions vary widely in their availability
with relatively few pre-1996 opinions currently avail-
able on public sites.
Legal research on the Web 813
• If legal search engines do not work, try general-purpose
search engines.
• Individual cases can be obtained by credit card charge
from commercial services (e.g. Lexis, Westlaw).
These principles will be illustrated in the following
examples. (The specific sites identified below operated as
described at the time of this writing; the Web changes
quickly, however, and the sites may operate differently in
the future).
The easiest cases to find are recent U.S. Supreme
Court cases. Beginning at a legal database site, entering
the name or citation of a recent case is likely to provide
the opinion. For older cases, it may be necessary to try
several sites to see if one of these has listed the case. To
search by content or topic, you need to use a site which
allows keyword or content searches. For example, if you
were searching for the case Pennsylvania v. Yeskey,
you begin at most legal databases, and click links limiting
searches to Supreme Court opinions. Since Yeskey is an
uncommon name, entering Yeskey in the search query box
is likely to produce the opinion. Going from the content
to the case can be more complex. You might recall that
there was a recent Supreme Court case dealing with pris-
oners and the Americans with Disabilities Act. By utilizing
one well-known legal search engine, the query ADA and
prison will quickly produce the case, whilst entering the
query as ADA and prisoner will produce few hits, neither
of which will include Yeskey. This highlights the import-
ance of utilizing a variety of different, but related, search
strategies until a case is found. It also points to a danger,
which is that not retrieving a case should not suggest that
the case does not exist.
If one site does not produce results, another, similar
one may. Suppose you are looking for Corcoran v. United
Healthcare, a 1992 court of appeals case. On the 5th Cir-
cuit website, a search on corcoran (searches generally are
not case-sensitive) produces a list of fifty-one links iden-
tified by docket numbers. Few people want to click through
fifty-one sites identified by docket numbers to see if one
of them contains the information sought. On the Cornell
site, in the section for ALL circuit courts, entering corcoran
brings up a list of over 500 cases, but these links have
descriptions and the second looks like, and proves to be,
the case.
For state court opinions, you usually start with a legal
database which will either provide a link to the state’s web-
site or its own database. Oddly, some states remove cases
from their official sites: for example, the State of California
site posts opinions only for about the past two years and
for earlier cases refers the viewer to Westlaw, a paid ser-
vice, while Findlaw maintains for free viewing in its own
database California cases since 1934.
When you are searching for legal opinions by content,
and having little luck with legal databases or search engines,
it is worth trying a general search engine such as Google.
Search technology is evolving rapidly, and general search
814 Basic issues in law
engines frequently use more sophisticated algorithms than
are available on specialized databases. Often, particularly
for a newsworthy case, the case itself and commentary
regarding it can be found more quickly using a general
search engine than spending the time going through the
various submenus of legal databases.
If a case cannot be found on a pubic site, the final step
is to go to one of the big commercial sites such as Lexis
(www.Lexis-nexis.com) or Westlaw (www.westlaw.com).
Lexis and Westlaw are the two traditional databases utilized
by attorneys and are now available online. The advantage
of these two services is their comprehensiveness: they
include all reported U.S. and state cases and statutes, as
well as a considerable amount of secondary material such
as full text of many law reviews and access to many news-
paper articles. Having all the information in one database,
coupled with search capabilities that allow complex search
requests and the ability to narrow previous searches, allows
for rapid, comprehensive searches. Previously both ser-
vices were only available by subscription, which was quite
expensive. Both have now moved to web access and allow
some online access billed to a credit card in addition to a
variety of subscription plans. Not all secondary source
databases are available using per-citation billing. The sites
also run intermittent specials, so at times searches can be
run less expensively.
SECONDARY SOURCES
The federal government has been particularly good at
putting many of its publications relevant to forensic
psychiatry on the Web. A great deal of information regard-
ing criminal justice statistics, corrections, regulatory agency
reports, and health statistics is available. This material is
generally fairly easily located with general search engines
or through government homepages (see Table 88.1).
Secondary legal material, such as articles, and web post-
ings by interest groups, and further information about
researching on the Web can be located through general
legal sites listed in Table 88.1 or on the AAPL web site.
Abstracts of the Journal of the American Academy of Psych-
iatry and the Law and full text of the Journal’s Legal Digest
summaries of recent cases is available on the AAPL web
site. Abstracts and some full text of forensic articles in the
general medical literature are available through Medline.
Most law reviews do not post full text of their articles on
free websites, although a good deal of law review full text
is available on pay sites such as Lexis-Nexis and Westlaw.
There is also a tremendous amount of material on the
Web on all sorts of subjects. General search engines are
the most efficient way for accessing this material. News
media often run sites, which provide current news and
archives of previous stories. Individuals and organizations
have created millions of sites publishing information. Since
there are essentially no checks on the accuracy of what is
published, caveat emptor is the rule in utilizing such infor-
mation. However, for the user who wants to see a range of
commentary on any particular subject, the Web can be
an invaluable resource.
EXAMPLE
The following example was accurate at the time of writing;
given the rapidity with which the Web changes, searches
performed later may produce different results. Let us sup-
pose a user is interested in legal aspects of cyberstalking,
with a particular interest in how it is dealt with in
California. A good place to begin is with LawCrawler (see
table for URL of this and other sites), choose ‘Legal Web
Sites’ as the domain to search, and enter search terms
cyberstalking California. This search returns over 100 hits,
one of the first of which has a URL from ‘usdoj.gov,’
which indicates the U.S. Department of Justice, and the
excerpt in the search engine references a recent California
stalking law. The linked report provides a good summary
of the issue, mentions the recent California law, but does
not provide a legal citation, although it does provide a
number of links and descriptions of other organizations
interested in the problem. Other links on the first page of
LawCrawler’s results lead directly to federal laws regard-
ing sending threats over the Internet and some cases
which involve those laws. To find the citation to the
California law, however, you go to FindLaw and follows
links to the State of California site with the California
code. That page asks which code is to be searched, and
since the report was about a prosecution, ‘Penal Code’ is
chosen. Searching with keywords stalking cyberspace
brings up zero links, but utilizing only stalking produces
nine links, each of multiple sections. Looking quickly at
the first paragraph does not reveal anything about stalk-
ing. But going back to the first and using the browser’s
Find function brings up the section of the code which
deals with stalking. Reading through the following para-
graphs reveals that stalking includes threats utilizing elec-
tronic communication (Cal. Pen. Code 646.9(g)). To see
how courts have dealt with this issue, you return to
FindLaw, click through to California cases, and then run
a full-text search of California appellate cases utilizing
the search terms 646.9 AND (computer OR internet OR
cyberstalking). (Computers do not speak English –
numeric searches are generally as good as using words,
often better because they are more precise.) This brings up
a number of opinions which the user may read.
If you then utilize Google searching on cyberstalking
California, and follow links which appear promising, a
great deal of additional information about stalking in
cyberspace is quickly found, including ones which have
many links and tables of all state laws on stalking in
cyberspace. Those tables include the information that
there is also a civil statute in California which makes

stalking on the Internet a cause for a tort action. Those
particular sites were not listed in the results of the original
search. This exemplifies an important principle: it is diffi-
cult to know when you have found the most significant
material. Most search engines look for a specific word,
and it is difficult to know in advance which ones are most
useful (stalking, cyberstalking, Internet, 646.9(g), com-
puter, etc.). A good deal of poking around various sites is
generally required if you want a comprehensive view of
the subject.
By contrast, a similar search was conducted utilizing
Lexis. In searching California cases and laws, neither
searches using cyberstalking nor stalking w/5 [within five
words] computer produced any relevant hits. Searching
stalking in California statutes produced 147 hits which
needed to be visually inspected to find the code sections
noted above. A search of California appellate cases
searching on 646.9(g) yielded only one case, decided
before the stalking language had been added. It was
unclear why the more recent cases found on the Web were
not located. Searching on cyberstalking in legal periodi-
cals produced a number of hits in law reviews and legal
newspapers, with full text available. Full text law review
articles, however, did not appear to be available on Lexis
using credit card pay-per-use. Going to the web sites of
the law reviews revealed that full text was not available on
the Web. The organizational web pages and government
report found rapidly on the Web did not appear to be
available on Lexis.
Suggested reading
As might be expected, given the rapid rate of evolution of
the Web, there are very few up-to-date books which discuss
legal research on the Web. Those that have been published
tend to go out of print quite rapidly. The most useful
material is placed on the Web itself, and revised or removed
as technology changes. Several articles which may prove
helpful are listed below.
Ahlberg, J., Tuck, J.R., Allgulander, C. 1996. Pilot study of
the adjunct utility of a computer-assisted Diagnostic
Interview Schedule (C-DIS) in forensic psychiatric
Legal research on the Web 815
patients. Bulletin of the American Academy of
Psychiatry and the Law 24, 109–16.
Ash, P. 1998. Personal computers in forensic psychiatry.
Journal of the American Academy of Psychiatry and
the Law 26, 459–66.
Ash, P. 2000. Finding a court opinion on the web.
Newsletter of the American Academy of Psychiatry
and the Law 25, 6. Also available at
www.aapl.org/newsletter/N252_Find_opinion.htm.
Ballard Spahr Andrews & Ingersoll, LLP. 2001. The virtual
chase: Legal research on the internet. Available at
Web site: http://www.virtualchase.com/, accessed
August 24, 2002.
Barnard, G.W., Thompson, J.W., Jr., Freeman, W.C.,
Robbins, L., Gies, D., Hankins, G.C. 1991. Competency
to stand trial: description and initial evaluation of a
new computer-assisted assessment tool (CADCOMP).
Bulletin of the American Academy of Psychiatry and
the Law 15, 339–47.
Blackman, J., Jank, D., Blackman, J.D. 1998: The Internet
Fact Finder for Lawyers: How to Find Anything on the
Net. Washington, DC: American Bar Association.
Botluk, D. 2000. Strategies for online legal
research: determining the best way to get what
you need. Available at Web site:
http://www.llrx.com/features/strategy.htm, accessed
August 24, 2002.
Flanagan, D. 2001. Web Search Strategies.
Available at Web site:
http://home.sprintmail.com/⬃debflanagan/main.html,
accessed August 24, 2002.
Halvorson, T.R., Basch, R. (eds). 1999: Law of the Super
Searchers: The Online Secrets of Top Legal Researchers.
Medford, NJ: CyberAge Books.
Jadad, A.R., Gagliardi, A. 1998. Rating health information
on the internet: navigating to knowledge or to Babel?
Journal of the American Medical Association 279, 611–14.
Miller, M.J., Hammond, K.W., Hile M.G. (eds). 1996:
Mental Health Computing. New York: Springer.
Taintor, Z., Schwartz, M., Miller, M. 1994: Computers
and patient care. In Taintor, Z. (ed.), Review of
Psychiatry. Volume 16. Washington, DC: American
Psychiatric Association.
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 9
PART

Landmark cases in forensic

psychiatry

89 Introduction 819
Howard Owens
90 Civil law and family law cases in forensic psychiatry 820
Meryl B. Rome and Andrew J. Rader

91 Criminal law and forensic psychiatry 831

Howard Owens

92 Legal regulation of psychiatry 850

James W. Hicks
This page intentionally left blank

Introduction
HOWARD OWENS
A landmark is a prominent feature of the terrain that
provides direction for travelers on their journey. A land-
mark is particularly important when it indicates a change
in direction, requiring the plotting of a new course for
the future. For the psychiatrist who is as yet unfamiliar
with the world of the law, landmark legal cases provide
an orientation to many of the most important issues in
forensic psychiatry and also mark out the historical devel-
opment of the interaction between psychiatry and the law.
These cases define the boundaries within which forensic
psychiatrists must work in evaluating criminal and civil
cases, and they provide a particularly rich record when it
comes to documenting the changes that have occurred in
the past three to four decades in the legal regulation of
psychiatry.
The cases summarized in Part 9 are taken from the most
recent list of landmark cases published by the American
Academy of Psychiatry and the Law. This list was ori-
ginally published by the Academy in 1993. In 1999, the
Academy – working in conjunction with the Association
of Directors of Forensic Psychiatry Training Programs –
reviewed and revised the list, dropping some of the older
cases and adding new cases that break new ground at
the interface of psychiatry and law. The Academy and the
Association of Directors have designated what are, in their
view, the most important cases in the field, a knowledge
of which is required for a broad understanding of the field
of Forensic Psychiatry. The composition of any such list of
favorite cases is always debatable. Cases may be added to
the list for a variety of reasons, and readers will no doubt
find some important cases missing. Given the nature of
forensic psychiatry, there are bound to be endless argu-
ments about such a list (e.g., ‘Why include Washington v.
United States and not United States v. Brawner?’).
These summaries are designed to serve several pur-
poses. They provide a ready reference for many of the cases
most frequently cited in the forensic psychiatric litera-
ture. Because the full text of an original case may appear
less than transparent on first reading, a summary also
provides an introductory guide to the understanding of
89
the case as a whole. It will also offer the psychiatrist a model
for how to organize the basic material to be extracted from
a legal case: our approach particularly highlights those
aspects of the case most relevant to forensic psychiatrists,
while weeding out other legal issues not involving psy-
chiatry (e.g., questions of jurisdiction). We have chosen
to use a narrative form in summarizing the cases in order
to make them more readable. At the same time we have
endeavored to include the key elements of a standard
legal brief of a case: Who are the parties involved? What is
the nature and legal history of the case? What are the
facts? What statutory or constitutional provisions govern
the case? What issues or questions did the court address?
What was the outcome? Does the case articulate a general
rule? What was the court’s reasoning in reaching its con-
clusions? The knowledgeable practitioner of forensic psy-
chiatry should be expected to be familiar with these
issues in any of the landmark cases.
There is, however, no substitute for reading the actual
cases themselves, which are readily obtainable in any law
library, through the Internet, or in the collected bound
volumes published by the American Academy of Psychiatry
and the Law. While the issue in many cases can be stated
succinctly in a single sentence, the facts and the legal rea-
soning of the court are usually much richer in detail than
any summary can suggest, so that the cases themselves
will bear reading and rereading. In some cases a careful
reading of the facts will alter your abstract preconception
as to what the case was about. Careful attention to the
court’s reasoning may likewise reveal unexpected subtleties
or (to the critical mind) inconsistency, tortured logic, or
intellectual dishonesty. In any event, there is usually much
more to these cases than a first glance reveals.
REFERENCE
Schubert, F.A. 2000: Introduction to Law and the Legal
System: Houghton Mifflin Company.
 90
Civil law and family law cases in forensic
psychiatry

MERYL B. ROME AND ANDREW J. RADER

in the zone of danger, but the mother’s cause of action

EMOTIONAL HARM AND DISABILITY CASES
Dillon v. Legg, 69 Cal. Rptr. 72,
441 P.2d 912 (1968)
At common law, a person could not bring suit for psychic
injuries (e.g., posttraumatic stress) if he or she was not in
personal danger from the acts he/she witnessed. Dillon v.
Legg represents a break with judicial tradition by recog-
nizing a cause of action based exclusively on the psychic
injury of a claimant not personally endangered by the acts
of the tortfeasor.
On September 27, 1964, infant Erin Lee Dillon, while
crossing the street with her mother and sister, was hit
and killed by an automobile operated by the defendant.
Plaintiffs commenced suit, alleging a cause of action for
the sister’s fear and distress for her own safety (she was
nearly hit by the automobile), and another cause of action
demanding compensation for the mother who, while not
personally endangered by the accident, suffered horror
and fright as a result of witnessing the collision with Erin.
Upon motion by the defendant, the trial court sustained
the sister’s cause of action because she was personally
endangered by the defendant’s automobile, but dismissed
the mother’s cause of action, holding that California law
does not recognize a cause of action for people outside
the ‘zone of danger.’
The trial court relied on California precedent holding
that claims for purely psychic injury by individuals not
personally in danger were not legally cognizable because
the tortfeasor owed a duty only to the individual in fear
for his own safety – not for the safety of others. A person
outside this ‘zone of danger’ could not recover in court,
and any pleadings made alleging fear, shock or distress
caused by witnessing harm to others were dismissed by the
court for failing to state a cause of action. Consequently,
the sister’s cause of action was valid because she had been
failed.
The reasoning behind the refusal to recognize liability
to those people not in fear for their own safety was that
the imposition of duty would invite fraudulent claims
and involve the court in the ‘hopeless task’ of defining the
extent of the tortfeasor’s liability. In the court’s words, ‘in
substance, the definition of liability being impossible,
denial of liability is the only realistic alternative.’
On appeal, the California Supreme Court broke new
ground, acknowledging and endorsing the common sense
notion of ‘natural justice’ that ‘all ordinary human feel-
ings are in favor of [the mother’s] action against the
negligent defendant.’ Eviscerating the ‘zone of danger’
distinction, the court concluded that it could ‘hardly jus-
tify relief to the sister for trauma which she suffered upon
apprehension of the child’s death and yet deny it to the
mother merely because of a happenstance that the sister
was some few yards closer to the accident. The instant case
exposes the hopeless artificiality of the zone of danger
rule.’ Any fear of fraudulent claims, the court continued,
does not warrant courts of law in closing the door to all
such cases. Courts must depend upon the efficacy of the
judicial processes to ferret out the meritorious from the
fraudulent in particular cases.
Carter v. G.M., 361 Mich. 577 (1960)
In this workers’ compensation case, the Michigan
Supreme Court upheld a ruling by the workers’ compen-
sation board that James Carter, a machine operator who
worked on assembly line production at General Motors,
was entitled to disability compensation because of psych-
osis caused by stress at his job. Significantly, Mr. Carter
was under only the ordinary pressures of a machine
worker, but suffered from an underlying personality
disorder and a predisposition to the development of
schizophrenia that made him more vulnerable to those

pressures. Thus, in the words of the compensation board
that had granted compensation, the work pressures were
the ‘straws that broke the camel’s back.’
Carter’s significance lies not only in the fact that the
Michigan Supreme Court did not require Mr. Carter to
prove that he was subject to pressures more extraordinary
than those endured by his coworkers, but also in the
Court’s acceptance of the premise that a compensable
disability need not be caused by a single physical injury
or a single mental shock to plaintiff. Instead, the disability
can be caused by psychiatrically succumbing to the usual
ongoing daily pressures encountered by him and other
employees engaged in similar work. Competent medical
evidence having established the causal link between the
ordinary work pressure and the disability, Mr. Carter was
found to be entitled to compensation.
In so holding, the Supreme Court focused on the pur-
pose of the workers’ compensation rule, to wit, to ameli-
orate the economic plight of an employee injured in the
course of and on account of his employment by impos-
ing upon industry the obligation to pay him weekly pay-
ments at rates based upon his wages during the period of
disability. This is as opposed to focusing on the cause of
the injury, to wit, the determination that the disability
resulted from a sudden disabling event or, for that mat-
ter, was caused by the predisposition to the disability. So
long as the precipitant to the injury was work related, the
Court ruled, the injury is subject to compensation under
the workers’ compensation framework.
Bragdon v. Abbott, 118 S.Ct. 2198 (1998)
What physical and mental conditions does the Americans
with Disabilities Act (‘ADA’) protect, and how is the analy-
sis made as to whether a person suffers from such a con-
dition? Does it protect people who carry a disease yet suffer
no symptoms? Bragdon represents the Supreme Court’s
pronouncement that a person infected with the human
immunodeficiency virus (HIV), even if asymptomatic,
suffers from a ‘disability’ under the ADA. The ADA seeks
to eliminate discrimination against the disabled. Upon
remand to the 1st Circuit Court of Appeals, it was held
that HIV-positive status, in and of itself, had not been
scientifically shown to ‘pose a direct threat to the health
or safety of others,’ and therefore a dentist’s refusal to fill
the cavity of an asymptomatic HIV positive patient in his
office violated the ADA.
Respondent Sidney Abbott was infected with HIV when
she presented for a dental appointment with the petitioner,
Dr. Randon Bragdon. Although she was asymptomatic,
she disclosed her HIV status to Dr. Bragdon, who per-
formed a dental examination. During the examination,
he found a cavity, which, because of Ms. Abbott’s HIV
status, he refused to fill outside a hospital. He offered to
perform the work at a hospital at no additional cost for
his services, but Ms. Abbott would be responsible for the
Civil law and family law cases in forensic psychiatry 821
cost of using hospital facilities. Ms. Abbott declined treat-
ment and sued Dr. Abbott for violating her rights under
the ADA.
The ADA states that ‘No individual shall be discrim-
inated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, priv-
ileges, advantages, or accommodations of any place of
public accommodation by any person who … operates a
place of public accommodation.’
The Court first found that an HIV infection consti-
tutes a ‘disability’ under the ADA. The relevant section of
the ADA defines disability as ‘a physical or mental impair-
ment that substantially limits one or more of major life
activities of such individual.’ The analysis of whether
Ms. Abbott fitted within that definition has three com-
ponents: (i) whether her HIV infection was a physical
impairment; (ii) whether the activity on which she relied
(reproduction and child bearing) constituted a major life
activity; and (iii) whether the physical impairment sub-
stantially limited the major life activity.
Addressing the first element, that the HIV was a phys-
ical impairment, the Court found that because the virus
immediately begins to damage the infected person’s white
blood cells and because of the severity of the disease, it is
an impairment from the moment of infection. Moreover,
because the disease is ‘invariably fatal,’ the Court ruled
that it is axiomatic that it impacts upon major life activ-
ities, including the one presented in this case, reproduc-
tion. Focusing on the third element, the Court stated that
Ms. Abbott’s infection substantially limited her ability to
reproduce in two ways: first, an infected woman who
tries to conceive imposes a significant harm of infection
on her male partner; second, the infected woman risks
infecting her child during gestation and childbirth.
Having concluded that HIV infection is a disabil-
ity under the ADA, the Court next discussed whether
Dr. Bragdon was permitted to refuse Ms. Abbott treat-
ment in his office under the exception to the ADA in
cases where the infectious condition poses a ‘significant
risk to the health or safety of others that cannot be elim-
inated by modification of policies, practices, or proced-
ures or by the provision of auxiliary aids or services.’
Here, the Supreme Court remanded the matter back to
the U.S. Court of Appeals, which, after studying the state
of scientific knowledge on the transmission of HIV, and
being guided by the collective wisdom of professionals in
the field of dentistry, determined that no proof of infec-
tion to healthcare workers in the dental office existed
and, further, that universally accepted methods of pre-
venting infection were practicable and effective.
Consequently, it was determined that the risk of infec-
tion could be eliminated.
Thus, the Supreme Court, in conjunction with the
holding by the Court of Appeals after remand, held that
HIV infection is, in and of itself, and even in the absence
of symptoms, a disability within the meaning of the ADA
and entitled to the protections the ADA affords.
822 Landmark cases in forensic psychiatry
Pennsylvania Department of Corrections v.
Yeskey, 118 S.Ct. 1952 (1998)
Another question concerning the Americans with Dis-
abilities Act is ‘to whom does it apply?’ In Yeskey, the
Supreme Court was asked whether it applies to prison
inmates. The Court answered that it does.
Ronald Yeskey was sentenced to 18–36 months in a
Pennsylvania correctional facility, but was recommended
for placement in a Motivational Boot Camp for first-time
offenders, the successful completion of which made him
eligible for parole in just six months. However, he was
refused admission to the program because he suffered from
hypertension, and brought suit alleging that the exclusion
from the program derogated his rights under the ADA.
The State of Pennsylvania, on the other hand, argued that
the ADA was not intended to apply to prison inmates.
In a concise opinion, the Court looked to the clear
wording of the statute, that proscribes any ‘public entity’
from discriminating against any ‘qualified individual
with a disability’ on account of that disability. In this
case, Mr. Yeskey was a qualified individual, as he was
entitled to enter into the boot camp, and the Pennsylvania
Department of Corrections is a public entity. The unam-
biguous language makes no exception for prison
inmates, and the High Court will not imply one. Prison
inmates are entitled to protection under the Americans
with Disabilities Act.
Olmstead v. L.C. ex. rel. Zimring,
119 S.Ct. 2176 (1999)
In another decision lending broad interpretation of the
ADA, the Supreme Court ruled that ‘discrimination’
includes confining mentally ill patients in unnecessarily
restrictive facilities. The ADA requires States to place
persons with mental disabilities in community settings
rather than in institutions when the State’s treatment
professionals have determined that community placement
is appropriate, the transfer from institutional care to a less
restrictive setting is not opposed by the individual, and
the placement can be reasonably accommodated, taking
into account the resources available to the State and the
needs of others with mental disabilities.
L.C. and E.W. were mentally retarded women. L.C. had
also been diagnosed with schizophrenia, and E.W. with a
personality disorder. They were confined to the Georgia
Regional Hospital psychiatric unit, but in time became
sufficiently stabilized to be treated in a community-based
setting. Each woman wanted to leave the ward, and each
woman’s treating physicians agreed that they could
be appropriately treated outside the hospital walls, with
the goal of reintegrating them into mainstream society.
Nonetheless, each woman remained confined because
the State lacked sufficient resources to place them in a less
restrictive environment.
The Americans with Disabilities Act states in pertinent
part that:
No … individual with a disability shall, by reason of
such disability, be excluded from participation in or
be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to dis-
crimination by such entity.
Congress instructed the Attorney General to promul-
gate regulations administering the ADA, which was done.
One of the regulations requires public entities to ‘make
reasonable modifications’ to avoid discrimination on the
basis of disability, unless those modifications would
fundamentally alter the nature of the service, program or
activity.
The State of Georgia averred that the women were not
being discriminated against by reason of their disability;
but rather were being confined due to inadequate fund-
ing. The State sought to place this case into the exception
to the ADA’s non-discrimination rules by claiming that,
because it has the obligation to administer care to a wide
variety of people with mental disabilities, the require-
ment that patients be placed in the least restrictive setting
would unreasonably and fundamentally alter the services
the State provides.
The first question the Court answered was whether
the continued confinement in a psychiatric unit, when the
patient and the treatment team feel that a community-
based program is appropriate, is a form of discrimin-
ation. Answering in the affirmative, and finding support
in the positions of the Attorney General and various
Amici briefs (including one submitted by the American
Psychiatric Association), the Court held that unjustified
institutional isolation discriminates in two ways: first,
institutional placement of persons who can handle and
benefit from community settings perpetuates unwarranted
assumptions that persons so isolated are incapable or
unworthy of participating in community life (i.e., stigma),
and second, confinement in an institution severely dimin-
ishes the everyday life activities of individuals, including
family relations, social contacts, work options, economic
independence, educational advancement, and cultural
enrichment.
Having thus concluded that unjustified isolation is a
form of discrimination, the Court turned to the State’s
concern that the provision of outside placement to some
patients may impose financial strains that could affect
the treatment afforded other patients. Here, the Court
returned to the language of the regulations: the State
must make ‘reasonable modifications’ to avoid discrim-
ination, and need not make changes that fundamentally
alter the State’s programs. This, the Court held, requires
States to balance the equities of all patients in meting out
the requirements of the State’s mental health system as a
whole. To that end, the States require wide latitude to
fashion their own systems that minimize discrimination
yet do so in a financially responsible manner.

SEXUAL HARASSMENT CASES
Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986)
Meritor supplies the Supreme Court’s exposition of the
meaning of ‘sexual discrimination’ or ‘sexual harassment’
under Title VII of the Civil Rights Act of 1964. The Court
emphasized that there are two distinct forms of such dis-
crimination: quid pro quo sexual harassment, in which
sexual favors are demanded in exchange for workplace
retention or promotion, and hostile environment sexual
harassment, in which the recipient is subjected to unwel-
come sexual comments or advances. Meritor also holds
that, within limits, a supervisory employee who harasses
a subordinate employee does so as the agent of the
employer, thereby subjecting the employer to liability for
such harassment.
Title VII of the Civil Rights Act of 1964 makes it ‘an
unlawful employment practice for an employer … to dis-
criminate against any individual with respect to his com-
pensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.’
In 1974, respondent Mechelle Vinson met Sidney
Taylor, a vice president of Meritor Bank. Ms. Vinson
worked her way up the bank ladder from teller-trainee,
to teller, to head teller to assistant branch manager. It
was undisputed that her advancement was due to merit
alone. In September, 1978 Ms. Vinson took an indefinite
sick leave from the bank, and was fired a month later for
excessive use of her sick leave.
Following her discharge, she filed suit against Meritor
Savings Bank, claiming that it was liable for sexual harass-
ment perpetrated by Mr. Taylor, its employee. She averred
that Mr. Taylor, asked her out to dinner and suggested that
they go to a motel. While at first she resisted his advance-
ments, she ultimately acquiesced out of fear of losing her
job. During the next four years, Ms. Vinson had sexual
relations with Mr. Taylor approximately forty to fifty
times, and was subjected to demeaning sexual fondling
and comments in front of other employees.
After a trial, the District Court held that because
Ms. Vinson’s relationship was a voluntary one having
nothing to do with her continued employment or her
advancement or promotions, she was not the victim of
sexual discrimination while employed at the bank. More-
over, the District Court held that because the bank had an
express policy against discrimination, and no one had ever
lodged a complaint about sexual harassment by Taylor, the
bank was not on notice and could not be held liable.
The U.S. Court of Appeals for the District of Columbia
Circuit reversed. It found that there are two types of
harassment: that which involves the conditioning of con-
crete employment benefits on sexual favors, and harass-
ment that, while not affecting economic benefits, creates
a hostile or offensive working environment. The court
Civil law and family law cases in forensic psychiatry 823
also found that the bank could be liable through an agency
theory: a ‘supervisor’ is an agent even if he lacks author-
ity to hire, fire or promote, since ‘the mere existence – or
even the appearance – of a significant degree of influence
in vital job decisions gives any supervisor the oppor-
tunity to impose on employees.’
The U.S. Supreme Court heard the case and affirmed
the rulings of the Court of Appeals. In the high court, the
bank claimed that in enacting Title VII, Congress intended
to prohibit discrimination with respect to economic, not
purely psychological damages. The Court, through the
pen of Justice Rehnquist, strongly disagreed, pointing
out that not only did the plain language of the statute not
so limit the damages, but the intent of Congress was ‘to
strike at the entire spectrum of disparate treatment of
men and women’ in employment.
In support of its position, the Court looked to the
position taken by the Equal Employment Opportunity
Commission (‘EEOC’). That agency determined that the
‘hostile environment’ (i.e. non quid pro quo) harassment
violates Title VII, which affords employees the right to
work in an environment free from discriminatory intimi-
dation, ridicule and insult. Recalling a precedent, the
Court stated:
Sexual harassment which creates a hostile or offen-
sive environment for members of one sex is every bit
the arbitrary barrier to sexual equality at the work-
place that racial harassment is to racial equality.
Surely, a requirement that a man or woman run a
gauntlet of sexual abuse in return for the privilege of
being allowed to work and make a living can be as
demeaning and disconcerting as the harshest of racial
epithets.
This is not to imply that all workplace conduct of a
sexual nature violates Title VII. The test is whether it is
sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive environ-
ment. Nor does the fact that the plaintiff had ‘voluntary’
intercourse with Mr. Taylor conclusively prove there was
no harassment. The test, according to the Court, was not
whether her participation was ‘voluntary,’ but rather
whether Mr. Taylor’s advances were unwelcome.
The Court was more circumspect with respect to
whether the failure of the bank to be on notice of the
harassment, or the fact that it had a grievance procedure
in place, absolved it of liability. While not placing strict
liability on an employer for the harassment of its employ-
ees, the Court did look to traditional agency theory to
find that employers can be held liable, though not auto-
matically, for the sexually harassing acts of its supervisors.
Harris v. Forklift Systems, Inc.,
114 S.Ct. 367 (1993)
After the Court’s decision in Meritor Savings Bank, a dis-
pute arose among the appellate courts as to what conduct
824 Landmark cases in forensic psychiatry
created ‘abusive work environment’ harassment. Was it
necessary (as the district court in this case found) that the
environment must ‘seriously affect [an employee’s] psy-
chological wellbeing’ or lead the plaintiff to suffer injury?
No, according to the Supreme Court’s ruling in Harris.
Teresa Harris was a manager at Forklift Systems,
Inc. Charles Hardy was Forklift’s president. Throughout
Ms. Harris’ employment, Mr. Hardy frequently directed
offensive remarks at Ms. Harris, often in the presence of
other employees. These comments were not only of the
sexual variety (e.g., he suggested that they ‘go to the
Holiday Inn to negotiate [Harris’] raise’), but also dis-
criminatory gender statements (e.g., she was a ‘dumb ass
woman’). Harris complained, and Hardy apologized and
explained that he was only kidding, but soon thereafter
he returned to making frequent insulting utterances.
Harris sued under Title VII.
The District Court found that some of Hardy’s com-
ments ‘offended [Harris], and would offend the reasonable
woman,’ but it also found that the comments were not
so severe as to be expected to seriously affect Harris’
psychological wellbeing. The court did not believe that
she suffered injury, because the working environment was
not ‘so poisoned as to be intimidating or abusive.’ There-
fore, the District Court ruled against Harris. The United
States Court of Appeals for the Sixth Circuit affirmed.
Justice O’Connor, writing for the Supreme Court,
reaffirmed the holding of Meritor that Title VII does not
require ‘economic’ or ‘tangible’ discrimination; rather, it
only requires that the discriminatory conduct be ‘suffi-
ciently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working envir-
onment.’ This is an objective standard (i.e., the pro-
verbial ‘reasonable person’ would find the environment
hostile). However, the Court added, even an environment
that does not seriously affect employees’ psychological
wellbeing can detract from employees’ job performance,
discourage employees from remaining on the job, or keep
them from advancing in their careers. In addition, even
without these tangible effects, the discrimination offends
Title VII’s broad rule of workplace equality.
Because sexual harassment can affect the work
environment even without harming the well being of
employees, the Court found that an objectively abusive
environment alone is sufficient to state a claim for viola-
tion of Title VII.
Oncale v. Sundowner Offshore Services, Inc.,
118 S.Ct. 998 (1998)
In Oncale, the Supreme Court reaffirmed that an object-
ively sexually abusive environment always violates Title
VII’s proscription against discrimination based on sex.
Whereas in Meritor Savings Bank the Court laid out the
general elements of a sexually harassing environment, and
in Harris the Court ruled that the victim’s psychological
well-being need not be harmed, in Oncale the Court ruled
that same-sex sexual harassment is equally actionable
because it is still discrimination ‘because of … sex.’
Joseph Oncale was a roustabout on an eight-man
crew on an oil platform in the Gulf of Mexico. On several
occasions, he was forcibly subjected to sexual abuse by
co-workers in the presence of other crewmen. He had
been threatened with rape and finally left the job because
he felt that if he stayed, he would be raped. He filed suit, but
the United States District Court of the Eastern District of
Louisiana dismissed the case, holding that there was no
cause of action for same-sex sexual harassment. The Court
of Appeals affirmed.
The Supreme Court reversed. While it conceded same-
sex sexual harassment was ‘assuredly not the principal evil
Congress was concerned with when it enacted Title VII,’ at
bottom Congress wanted to prohibit discrimination based
on sex. Furthermore, not only does the statute protect men
as well as women, but it also protects people from discrim-
ination from people of the same protected class. For
example, the Court had in the past rejected any conclu-
sive presumption that an employer will not discriminate
against members of his own race. Quoting precedent, the
Court observed that ‘because of the many facets of human
motivation, it would be unwise to presume as a matter of
law that human beings from one definable group will not
discriminate against other members of that group.’
Taking the point one step further, Justice Scalia, writing
for the Court, noted that to be unlawful the discrimination
need not be motivated by sexual desire. Thus, a woman
who simply does not like other women to be present in
her workplace, and creates an abusive environment to
keep other women out, would be liable under the statute
for sex discrimination. ‘The critical issue, Title VII’s text
indicates, is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.’
Justice Scalia rejected the argument that this expan-
sive interpretation of Title VII transforms the statute
into a general civility code. Meritor and Harris stood for
the proposition that to be actionable the discrimination
must be severe and pervasive enough to create an object-
ively hostile environment. The statute does not reach
into innocuous differences between the sexes, just as
it does not forbid male-on-male roughhousing or even
inter-sexual flirtation. It requires neither asexuality nor
androgyny in the workplace. Rather, it bans an objective
level of abuse as a condition of employment.
JUVENILE LAW CASES
In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967)
In re Gault represented a broad elucidation and expan-
sion of the procedural due process rights enjoyed by
juveniles under the United States Constitution. Gerald
Gault, a 15-year-old Arizona boy, was taken into custody

on June 8, 1964 for making obscene phone calls. His par-
ents were not at home and were not notified of the deten-
tion, and only learned from people in the neighborhood
that Gerald was in custody.
The arresting officer filed a petition with the court
that resulted in a hearing being scheduled for the next
day, June 9. The petition made no reference to the factual
basis for the apprehension or the judicial action contem-
plated. Rather, it stated only that ‘said minor is under the
age of eighteen years, and is in need of the protection of
this Honorable Court; [and that] said minor is a delin-
quent minor.’ The petition requested a hearing and an
order regarding the care and custody of Mr. Gault.
On June 9, Gerald, his mother, his older brother and
probation officers appeared before the Juvenile Judge in
chambers. The complainant was absent, there was no
sworn testimony, and no record or memorandum of the
substance of the hearing was made. The arresting officer
testified as to what the complainant had told him and to
a confession made by Gerald, which had been obtained
without parents or counsel being present and without any
notification to Gerald or a parent of his rights. On June 15,
another hearing was held, wherein a ‘referral report’ was
made by the probation officers and filed with the court,
but was not disclosed to Gerald or his parents. Again, the
complainant was not present nor was any record made. At
the close of the hearing, Gerald was committed as a juvenile
delinquent to the State Industrial School for six years.
No appeal of juvenile cases was permitted by Arizona
law, so a federal writ of habeas corpus was filed. This writ
was dismissed by the lower court. On appeal to the Arizona
Supreme Court, the petitioners argued that the Arizona
Juvenile Code violated Gerald’s due process rights by not
requiring that parents and children be apprised of the
specific charges, by not requiring proper notice of a hear-
ing, by not providing for an appeal, by allowing the use
by the juvenile court of unsworn hearsay testimony, and by
the failure to make a record of the proceedings. In addition
to these due process arguments, the appellants also asserted
the Arizona Juvenile Code abrogated the Gaults’ right to
confront witnesses against them and that the failure to
advise appellants of their right to counsel and their priv-
ilege against self-incrimination violated those protections
provided by the Constitution. It was also contended that
the removal of Gerald from the custody of his parents
without a finding of their unsuitability was improper.
The Arizona Supreme Court, while conceding that the
constitutional guarantee of due process is applicable to
such proceedings, held that such guarantees are ‘implied’
in the Arizona Juvenile Code, and affirmed the dismissal
of the writ.
The United States Supreme Court granted leave to
appeal and in a far-reaching decision sought to eliminate
the perceived distinction between adult ‘adversarial’ crim-
inal proceedings wherein the state stands as prosecutor,
and juvenile proceedings, wherein the state is theoretic-
ally acting in loco parentis, i.e., acting in the child’s best
Civil law and family law cases in forensic psychiatry 825
interest. By exposing the juvenile system as essentially a
criminal system for the young, and upon reviewing the
procedural sequence of events, the Supreme Court ruled
that the constitutional protections affording due process
to adults are, in large part, applicable to juvenile delin-
quency proceedings because the juvenile proceedings, just
like felony proceedings against adults, involves a determin-
ation that may subject the juvenile to a loss of liberty for
years. Thus, juveniles were held to be constitutionally
entitled to timely notice of hearings, to be advised of their
right to counsel, to actually have counsel, and to cross-
examine witnesses against them. Moreover, the privilege
against self-incrimination, which guarantees that no per-
son shall be compelled to be a witness against himself when
he is threatened with a deprivation of liberty, applies to
juvenile delinquency proceedings.
In In re Gault, the U.S. Supreme Court decreed that
juvenile delinquency proceedings are analogous to adver-
sarial criminal proceedings, and imbued minors subject
to delinquency proceedings with broad constitutional
protection.
Painter v. Bannister, 258 Iowa 1390, 140
N.W.2d 152 (1966)
In this custody case, the Iowa Supreme Court ruled that
the best interests of a child may outweigh a natural par-
ent’s right to custody of that child. Here, the infant’s
mother was killed in an automobile accident. The father
asked the infant’s 60-year-old maternal grandparents to
take temporary custody of the child. The grandparents
took custody, providing the child with a ‘stable, depend-
able, conventional, middle-class, middlewest background.’
After the father remarried, he attempted to regain custody
of the child, but the grandparents sought to retain custody.
The trial court awarded custody to the father, but
stayed execution of that judgment until the matter could
be determined on appeal. On appeal, the Iowa Supreme
Court, reviewed at length the backgrounds of the grand-
parents and the father, finding that while the grandparents
were highly educated, well established in the community,
and had raised children who graduated from college, the
father had had uneven employment, was financially irre-
sponsible, and lived the disorganized lifestyle of a ‘roman-
tic and a dreamer.’ The Court also considered evidence
revealing that when the child arrived with the grand-
parents, he was aggressive, cruel to animals, not liked by
classmates and did not seem to know what was accept-
able conduct, but by the time of trial he was happy, well
adjusted and progressing nicely in his development.
Lastly, the Court credited testimony by a child psycholo-
gist that the ‘chances are very high that [the child] will go
wrong if he is returned to his father,’ and that the child had
developed a father–son relationship with his grandfather.
After deliberating on these factors, the Court concluded
that the best interests of the child militated toward the
continued stable and secure custody of the child by the
826 Landmark cases in forensic psychiatry
grandparents and against the more unstable, but poten-
tially more intellectually stimulating, parenting of the
father.
Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.
1388 (1982)
Santosky holds that the United States Constitution’s Due
Process Clause mandates that a ‘clear and convincing’
evidentiary standard applies to the termination of a nat-
ural parent’s custody of his child upon a finding of
‘permanent neglect.’
New York law, which was the focus of this appeal,
decrees that if a child appears ‘neglected,’ the child is to be
removed to an authorized agency (usually a state institu-
tion or a foster home) and the state’s obligation becomes to
attempt to reunite the family. However, if convinced that
‘positive, nurturing parent–child relationships no longer
exist,’ the State can institute ‘permanent neglect’ proceed-
ings to free the child for adoption. If the State is success-
ful and there is a finding of permanent neglect, and that
finding is then affirmed on appeal, the parental rights in
the children are finally and irrevocably terminated. This
termination denies the natural parents physical custody,
as well as the rights ever to visit, communicate with, or
regain custody of the child.
The question for the Supreme Court, then, was by
what standard the State must prove its case before there is
a finding of permanent neglect so that parental rights are
terminated. Prior to Santosky, New York State required a
showing, by a fair preponderance of the evidence, that for
more than a year after the child entered state custody, the
agency ‘made diligent efforts to encourage and strengthen
the parental relationship.’ The State had to prove that
during the same period, the child’s natural parents failed
‘substantially and continuously or repeatedly to maintain
contact with or plan for the future of the child although
physically and financially able to do so.’
The process by which permanent neglect findings are
made in New York is similar to that in other states. How-
ever, most states require a standard of proof higher than
New York’s preponderance of the evidence standard.
Indeed, the only analogous federal statute required proof
‘beyond a reasonable doubt’ before parental rights are
terminated.
The United States Supreme Court evaluated the ‘fair
preponderance’ standard applied by New York to these
proceedings, and found it to be unconstitutionally low.
Rather, the Court held that the Due Process Clause of the
Fourteenth Amendment demands that before a State may
sever completely and irrevocably the rights of parents in
their natural child, due process requires that the State sup-
port its allegations by at least clear and convincing evidence.
The ‘clear and convincing’ standard is significantly
higher than the ‘preponderance’ standard being overruled.
Justice Blackmun explained that the greater level of
proof was required because standards of proof must be
consistent with the extent to which a person may be con-
demned to suffer a grievous loss. Thus, in civil proceedings
involving property and money, the ‘fair preponderance of
the evidence’ standard is appropriate because society
is only minimally concerned with the outcome. On the
other end of the spectrum, the ‘beyond a reasonable
doubt’ standard applicable to criminal convictions reflects
the fear of an erroneous finding of guilt and deprivation
of liberty.
In the matter of termination of parental rights, the
Court ruled that the preponderance standard did not
fairly allocate the risk of an erroneous result and therefore
deprived the parents of due process. Specifically, the pre-
ponderance standard wrongly implies that society is
nearly neutral between erroneous termination of parental
rights and erroneous failure to terminate those rights
when, in fact, the consequences of an erroneous result are
not equal. On one hand, for the child, an erroneous failure
to terminate is an ‘uneasy status quo.’ On the other hand,
for the parents the consequence of an erroneous termin-
ation is the complete but unnecessary destruction of their
natural family. Therefore, the Due Process Clause requires
that the standard of proof necessary to terminate parental
rights reflect society’s abhorrence of erroneous results.
CHILD ABUSE CASES
Landeros v. Flood, 551 P.2d 389 (1976)
Can a physician who fails to diagnose battered child syn-
drome, fails to notify authorities of an abused child, and
releases the child back to his mother be held liable for
the reasonably foreseeable harm that results from the
mother’s resumption of abuse? According to the California
Supreme Court, the answer is yes.
Gita Landeros was born on May 14, 1970. During her
first year of life, she was repeatedly and severely beaten by
her mother and her mother’s common law husband. On
April 21, 1971, infant Gita Landeros, then eleven months
old, was brought to the defendant hospital for examin-
ation, diagnosis and treatment. Examination revealed that
the child suffered from a comminuted spiral fracture of
the right tibia and fibula, which appeared to be caused by
a twisting force; bruises over her entire back; superficial
abrasions on other parts of her body; and a non-depressed
linear fracture of the skull. Gita also demonstrated fear
and apprehension when approached. Taken together with
the apparent fact that these injuries had been intentionally
inflicted, Gita exhibited a condition known as ‘battered
child syndrome.’
The complaint stated that proper diagnosis of the con-
dition would have required taking X-rays of Gita’s entire
skeleton, and that such films would have revealed the frac-
ture of the skull. Thus, according to the complaint, the
failure to take such X-rays contributed to the negligent
failure to properly diagnose the infant’s true condition.

Had she been properly diagnosed, it was alleged, proper
medical treatment would have included (and the law
would have required) reporting her injuries to local
law enforcement authorities which, in turn, would have
resulted in an investigation and the placement of the child
in protective custody. Instead, however, the diagnosis was
not made and the child was released to the batterers, who
resumed beating her upon her return to her home.
Approximately two months later, the infant was brought
into a different hospital for medical care for traumatic
blows to her eye and back, puncture wounds over her left
lower leg and across her back, severe bites on her face, and
second and third degree burns of her left hand. This time,
however, the battered child syndrome was diagnosed, the
authorities were notified, and the child was placed in
protective custody.
The infant’s suit alleged that the defendants committed
medical malpractice by failing to diagnose the battered
child syndrome, by releasing the child to the parents, and
by failing to notify the authorities. These failures, it is
alleged, proximately caused the second set of injuries.
The Court addressed where a cause of action should lie
by turning to the standard axioms of medical malpractice:
a physician is required to possess and exercise, in both
diagnosis and treatment, that reasonable degree of know-
ledge and skill which is ordinarily possessed and exercised
by other members of his profession in similar circum-
stances. Therefore, the question is whether a reasonably
prudent physician examining this plaintiff in 1971 would
have been led to suspect she was a victim of battered child
syndrome from the particular injuries and circumstances
presented to him, would have confirmed that diagnosis
by ordering X-rays of her entire skeleton, and would have
promptly reported his findings to appropriate author-
ities to prevent a recurrence of the injuries. Because a jury
can only answer this question of fact by looking to that
standard of care within the medical community, expert
opinion must be elicited at trial.
The defendant doctor and hospital, seeking an affirm-
ation of the lower court’s dismissal of this case for failure
to state a cause of action, argued that battered child syn-
drome was not an accepted medical diagnosis; the failure
to diagnose it therefore cannot constitute malpractice.
However, the California Supreme Court dispensed with
this argument, showing a history of the use of this diag-
nosis, the acceptance of the diagnosis by the California
Court of Appeal, and the longstanding place the diagno-
sis has held in medical literature.
The defendants also argued that the case should be
dismissed for lack of proximate cause, that is, that the
beating by the mother and her husband after the release
from the defendants’ care was unforeseeable at the time
they treated her, and therefore constituted a superseding
cause, which absolved them from any liability. Plaintiff,
on the other hand, averred that because the second beating
was foreseeable, it was only an intervening cause, leav-
ing a finding of liability a possibility. The Court, quoting
precedent, stated that ‘an actor may be liable if his
Civil law and family law cases in forensic psychiatry 827
negligence is a substantial factor in causing an injury, and
he is not relieved of liability because of the intervening act
of a third person if such act was reasonably foreseeable at
the time of his negligent conduct.’ The foreseeability
standard, the Court continued, is applicable even if the
intervening act is criminal in nature. Whether an act is
foreseeable is a question of fact for a jury to determine.
People v. Stritzinger, 34 Cal.3d 505, 194
Cal. Rptr. 431 (1983)
What are the parameters of the psychotherapist–patient
privilege of confidentiality when the patient discloses to
the psychotherapist that he is involved in sexual acts with
a minor? This is one of the issues faced by the California
Supreme Court in Stritzinger.
The defendant, Carl William Stritzinger was convicted
of one lewd act with a minor and six counts of misde-
meanor child molestation. On appeal to the California
Supreme Court, Stritzinger argued that his conviction
was based on a violation of his psychotherapist–patient
privilege and his right to confront witnesses against him.
The Court agreed, and reversed the conviction.
Defendant Carl Stritzinger had, for over a year, been
fondling and engaging in sexual acts with his fourteen-
year-old stepdaughter, Sarah. When the child’s mother
(defendant’s wife) learned of the acts, she arranged for
her daughter and husband to meet with Dr. Walker,
a licensed clinical psychologist. On July 28, 1981, when
Dr. Walker met with Sarah, she revealed to him that
she had been involved in sexual acts with her stepfather.
Pursuant to California law, Dr. Walker reported the con-
versation to the child welfare agency that afternoon.1 The
agency then relayed the information to the sheriff ’s office.
The next day, an investigating sheriff ’s deputy, Deputy
Buttell, discussed the substance of Sarah’s reports of child
abuse with Dr. Walker. In the course of the conversation,
Dr. Walker also informed Buttell that he was scheduled to
meet with Mr. Stritzinger later that afternoon, July 29, and
with Sarah’s older sister, two days later, on July 31.
After Dr. Walker met with both the defendant and
Sarah’s sister, Buttell called him and inquired about the
substance of the meetings. Dr. Walker agreed to discuss
any sexual revelations made by the sister, but hesitated to
discuss any of the defendant’s communications, believ-
ing that they may be confidential.2
1
California Evidence Code section 1014 provides, in part, that ‘the
patient, whether or not a party, has a privilege to refuse to disclose,
and to prevent another from disclosing, a confidential communica-
tion between patient and a psychotherapist … .’
2
California Evidence Code section 1027 provides an exception to the
psychotherapist–patient privilege. The section provides that ‘There
is no [psychotherapist–patient] privilege under this article if all of
the following circumstances exist: (a) The patient is a child under the
age of 16; (b) the psychotherapist has reasonable cause to believe
that the patient has been the victim of a crime and that disclosure of
the communication is in the best interest of the child.
828 Landmark cases in forensic psychiatry
Addressing Dr. Walker’s concerns for the confidential-
ity of discussions with the defendant, Deputy Buttell
read to Dr. Walker a section of the California Penal Code
which he described as providing an applicable exception
to the psychotherapist–patient privilege. The doctor then
revealed the substance of the conversation to Buttell and,
ultimately, testified over objection at trial about the July
29th session during which the defendant had admitted to
the sexual activity with Sarah.
On appeal of his conviction, defendant claimed that
Dr. Walker’s revelation of the July 29th conversation with
the defendant, and the subsequent testimony at trial, vio-
lated the psychotherapist privilege. The State argued that
the communication was within the exception to privilege
carved out by Evidence Code section 1027, whereas the
defendant claimed that, because the defendant did not
provide any information that had not already been pro-
vided by Sarah, the privilege contained in Evidence Code
section 1014 applied.
The California Supreme Court acknowledged that
while the psychotherapist–patient privilege is grounded
in the patient’s constitutional right to privacy, the privi-
lege is not absolute and may yield to the compelling state
interest of detecting and prosecuting child abuse. In fur-
therance of meeting this state interest, the psychothera-
pist has an affirmative duty to report to a child protective
agency all known and suspected instances of child abuse.
Thus, the Court found (and the defendant conceded)
that Dr. Walker had an obligation to report the substance
of Sarah’s initial communication with him. However, the
trial court was wrong when it permitted testimony
regarding Dr. Walker’s July 29th conversation with the
patient. Because the conversation with Mr. Stritzinger
came after the revelations from Sarah, and because the
therapeutic consultation with the defendant gave Dr.
Walker no reason to suspect additional criminal activity
beyond the incidents described by Sarah earlier and
already reported, the privilege remained intact and the
conversation did not fall into the privilege’s exception.
Moreover, Deputy Buttell had wrongly persuaded
Dr. Walker that the conversations with the defendant
himself were not privileged, and Dr. Walker had a legal
obligation to discuss the conversation with the defen-
dant. In fact, Dr. Walker was under no obligation to make
a second report concerning the same activity. While he
could, of his own volition, report information relevant to
the issue of child abuse, in this case he was reluctant to
divulge the contents of his conversation with the defen-
dant and did so only after being misled by the deputy that
he was obligated to do so by law.
In Stritzinger, the Court limited the intrusion into
the psychotherapist–patient privilege mandated by the
child abuse reporting statute. The compelling state inter-
est of uncovering child abuse is sufficiently served by
the initial report of child abuse by a psychotherapist.
However, beyond the initial report the privilege attaches
to protect the privacy of the psychotherapist–patient
relationship and the encouragement to seek treatment it
engenders.
State v. Andring, 342 N.W.2d 128 (1984)
In State v. Andring the Supreme Court of Minnesota
addressed the scope of the confidentiality of a psychiatric
patient’s treatment under both Minnesota state law and
the federal Comprehensive Alcohol Abuse and Alcoholism
Prevention, Treatment, and Rehabilitation Act. The deci-
sion strongly supported the psychotherapist–patient
privilege: the Court ruled that: (i) the confidentiality of
the physician–patient privileges of the federal act did not
preclude use of patient records in child abuse proceed-
ings; (ii) the medical privilege is abrogated only to the
extent that it would permit evidentiary use of informa-
tion required to be contained in a maltreatment report;
(iii) the patient’s statements made in the course of taking
his social history and during one-on-one therapy session
with registered nurses and with medical students is priv-
ileged; and (iv) the scope of the physician–patient medical
privilege extends to include confidential group psychother-
apy sessions where such sessions are an integral and
necessary part of the patient’s diagnosis and treatment.
David Andring was charged with three counts of crim-
inal sexual misconduct in violation of Minnesota law for
engaging in sexual conduct with his ten-year-old step-
daughter and eleven-year-old niece. While out on bond
and awaiting trial, Andring voluntarily entered a crisis unit,
where a social history was taken by a registered nurse.
After being admitted with a diagnosis of acute alco-
holism and depression, he received one-on-one counseling
with staff physicians and medical personnel. He also par-
ticipated in daily two-hour group therapy sessions which
were also attended by other patients and supervised by
physicians and registered nurses. Those present at the
group therapy sessions were told that the sessions were
confidential and that only the staff would have access to
information disclosed. Defendant related his experiences
of sexual conduct with young girls during the counseling
sessions, during the taking of the social history with the
registered nurse, and during the group therapy sessions.
Prosecutors, upon learning of defendant’s treatment,
sought disclosure of the inculpatory information imparted
by him during his treatment. The trial court denied dis-
closure of the admissions made during the taking of the
social history and the one-on-one treatment sessions, but
granted disclosure of admissions made during the group
sessions.
On appeal, the defendant argued that all the disclo-
sures sought by the State were covered by the federal
Comprehensive Alcohol Abuse and Alcoholism Preven-
tion, Treatment, and Rehabilitation Act (‘alcohol treatment
act’). The alcohol treatment act, which covered the crisis
unit because the unit received federal funding under the
alcohol treatment act, extends a broad privilege to patients’
identity, diagnosis, prognosis and treatment. Further,

these regulations purport to preempt any state law which
requires disclosure of those items privileged by the alcohol
treatment act. Thus, defendant argued, the Minnesota
Maltreatment of Minors Reporting Act, a state law requir-
ing disclosure of suspected abuse, was preempted by the
federal alcohol treatment act. Consequently, defendant
continued, there could be no disclosure of admissions
made at the crisis unit.
The Minnesota Supreme Court disagreed with the
defendant’s analysis, holding that the intent of Congress
could not have been to prevent the disclosure of child
abuse. Indeed, in order for states to qualify for federal
funds for child abuse programs, Congress required states
to enact a statute providing for specific child abuse report-
ing. Moreover, both the child abuse regulations and the
rules enacted to implement the alcohol treatment act
were promulgated by the Secretary of Health and Human
Services. No doubt, Congress did not intend to preempt
the very state statutes that it itself had mandated. There-
fore, the confidentiality of patient records provision of
the alcohol treatment act does not preclude the use of
patient records in child abuse proceedings.
Having dispensed with the preemption question, the
Court sought to determine just how much of the medical
privilege is abrogated by the mandatory minor maltreat-
ment report. The answer, the Court found, was located
in the limited reporting requirements set forth in the
Minnesota reporting statute. Specifically, a minor mal-
treatment report must only ‘identify the child, the parent,
guardian, or other person responsible for his care, the
nature and extent of the child’s injuries and the name and
address of the reporter.’ [Minn. Stat. § 626.556(7)]. The
aim of the statute, the Court noted, is the protection of
the children, not the punishment of those who mistreat
them. This is shown by the policy behind the reporting
act: ‘to protect children whose health and welfare may be
jeopardized through physical abuse, neglect or sexual
abuse; to strengthen the family and make the home safe
for children through the improvement of parental and
guardian capacity for responsible child care.’ Thus, law-
makers were cognizant when drafting the law that the
child may return to the same home environment in which
the maltreatment occurred, and intended the continued
encouragement for child abusers to seek treatment.
Addressing the facts in Mr. Andring’s case, the Court
noted that prosecutors, at the time they sought the dis-
closure of the confidential admissions, were already aware
of, and prosecuting Mr. Andring for, the criminal sexual
activities. Therefore, the purpose of additional disclosure
of the medical records would not be to protect the child,
but rather for the purpose of prosecution. In the light of
the fact that disclosure would not serve the reporting
purposes, and the fact that the continued confidentiality
of the treatment of child abusers promoted the important
goal of having them seek treatment, the Court refused to
permit disclosure of the history taken by the nurse and the
admissions made during the one-on-one therapy sessions.
Civil law and family law cases in forensic psychiatry 829
In the group therapy sessions, however, the boundaries
of confidentiality were more difficult to define. Ordinarily,
the mere presence of other people when a confidential
communication is uttered vitiates the confidentiality –
after all, it would appear axiomatic that a person cannot
claim that information is secret after he has intentionally
divulged it in public. Nonetheless, in a decision boldly
deferential to the importance of group therapy, the
Minnesota Supreme Court ruled that the issue is prop-
erly analyzed in terms of whether the third persons are
necessary and customary participants in the treatment.
Co-participants in group therapy, the Court continued,
are not ‘casual third persons who are strangers to the psy-
chiatrist/psychologist/nurse–patient relationship.’ Rather,
the participants become part of the diagnostic and thera-
peutic process. The Court then went on to discuss the
many benefits of group therapy, and observed that a rul-
ing which excluded group therapy from the scope of the
psychotherapist–patient privilege would seriously limit
the effectiveness of group therapy as a highly therapeutic
treatment modality.
DeShaney v. Winnebago County Department
of Social Services, 489 U.S. 193 (1989)
In DeShaney, the United States Supreme Court ruled that
there is no violation of the United States Constitution
when a governmental agency is aware that a child is being
abused by his parent yet fails to protect the child. Here, the
Court narrows the relevant definition of state action to the
affirmative harming of a child, and finds that the agency
bears no constitutional duty to prevent the harm to a child.
Born in 1979, infant Joshua DeShaney was beaten by
his father, Randy DeShaney, from his first year of life. The
Winnebago, Wyoming Department of Social Services
(‘DSS’) was aware, from reports by Randy’s girlfriend
and suspicious markings on Joshua’s body found during
a January 1983 emergency room visit, that abuse was tak-
ing place, yet had insufficient evidence to retain Joshua in
the custody of the court. As a result, it entered into a
voluntary agreement with the father that, in exchange for
the juvenile court’s dismissing the child protection case
and returning Joshua to his father, the father would take
certain steps such as enrolling Joshua in a preschool pro-
gram, entering into counseling, and encouraging his girl-
friend to move out of the house.
Over the next several months, DSS caseworkers noted
suspicious injuries on Joshua during home visits. They
suspected abuse and recorded the observations in their
files, but failed to act further. They also found that Randy
had not abided by the terms set forth in the agreement: the
child had not been enrolled in school and the girlfriend
had not moved out. In November 1983, the emergency
room notified DSS that Joshua had been treated once
again for injuries they believed to be caused by child
abuse. On the caseworker’s next two visits to the DeShaney
830 Landmark cases in forensic psychiatry
home, she was told that Joshua was too ill to see her. Still,
DSS took no action.
In March 1984, Randy DeShaney beat four-year-old
Joshua so savagely that he fell into a life-threatening coma.
Emergency brain surgery revealed a series of hemorrhages
caused by traumatic injuries inflicted over a long period
of time. Joshua did not die, but suffered brain damage so
severe that he was confined for the rest of his life to an
institution for the profoundly retarded.
Joshua and his mother brought suit under 42 U.S.C.
§ 1983 alleging that DSS had deprived Joshua of his liberty
without due process of law, in violation of the United
States Constitution. At issue was the question of whether
Joshua had had a constitutional right to DSS’ protection
from his father. The Court ruled that he did not. First, the
Court pointed out that the Due Process Clause applies
only to State action, and that the protection of life, liberty
and property it affords only pertains to governmental
intrusion on these rights – not private attacks. Nor, the
Court observed, does it require the government to take
affirmative steps to prevent such private attacks. Said the
Court, ‘while the State may have been aware of the dan-
gers that Joshua faced in the free world, it played no part
in their creation, nor did it do anything to render him
more vulnerable to them.’
Justices Blackmun and Brennan, writing in separate
dissents, argued that the State did have a role in Joshua’s
harm. By channeling all matters of child abuse to DSS, the
State of Wisconsin has ‘directed’ citizens and governmen-
tal agencies to ‘depend’ on DSS to protect children. In this
case, all reports of abuse made to the sheriff ’s department
were referred to DSS, as were the reports from emergency
room. From there, it was DSS that decided what steps to
take to protect Joshua. Further, this centralization of the
handling of cases of child abuse ‘relieve[s] ordinary citi-
zens and governmental bodies other than DSS of any sense
of obligation to do anything more than report their suspi-
cions of child abuse to DSS. If DSS ignores or dismisses
these suspicions, no one will step in to fill the gap.
Wisconsin’s child-protection program thus effectively
confined Joshua DeShaney within the walls of Randy
DeShaney’s violent home until such time as DSS took
action to remove him. Conceivably, then, children like
Joshua are made worse off by the existence of this program
when the persons and entities charged with carrying it
out fail to do their jobs.’ In this way, the dissent argued
that the majority’s notion that DSS took no affirmative
steps is misplaced. Rather, the dissent maintained, DSS
took affirmative steps by, for example, setting up the
counseling program. This active intervention triggered a
fundamental duty to aid the boy once the State learned of
the severe danger to which he was exposed.

Criminal law and forensic psychiatry
HOWARD OWENS
COMPETENCE IN CRIMINAL CASES
Dusky v. United States, 362 U.S. 402 (1960)
The Dusky case provided the opportunity for the Supreme
Court to define the test for competence to stand trial in a
criminal case. The defendant, Milton Dusky, had been con-
victed in U.S. District Court in Missouri of kidnapping
and interstate transport of a minor. Dusky asserted on
appeal that the trial court erred in three ways: first, in
finding him competent to stand trial; second, in submitting
the question of insanity to the jury for decision; and third,
in instructing the jury according to the M’Naghten test
for insanity. The U.S. Court of Appeals upheld the lower
court on all three issues.
Dusky was originally charged, along with two juvenile
co-defendants, with abducting a fifteen-year-old girl and
driving her across state lines, where the two boys raped her
and Dusky attempted to rape her. His attorney raised the
issues both of his competence and insanity, and he was
hospitalized for examination at a federal medical center
for four months. A psychiatric report gave a diagnosis of
‘Schizophrenic Reaction, chronic undifferentiated type,’
marked by visual hallucinations and complicated by alco-
holism. A later report stated that the defendant was ‘unable
to properly understand the proceedings’ and ‘unable to
adequately assist counsel.’ In support of this opinion, the
report noted that Dusky felt he was being ‘framed.’ One of
the experts testified that, while the defendant did under-
stand the charges and the basic elements of court proced-
ure, he was ‘unable properly to assist in his own defense
“due to an inability to interpret reality from unreality,” and
to “suspicions” and “confused thinking.”’ In spite of this
testimony, the trial court ruled that the defendant had
sufficient mental capacity to stand trial, citing the fact
that he was oriented and, ‘based on the limited evidence’
available, that he was able to assist counsel. Dusky was
then convicted at trial.
The Court of Appeals declined to overrule the verdict,
holding that ‘how much mental capacity or alertness a
91
defendant must have to be able to assist his counsel’ was
‘a question of fact for the trial court.’ The Court noted its
policy that a trial judge not be required to believe evi-
dence he or she found unconvincing and pointed out
that, as a result, the judge was not bound by the conclu-
sions of expert witnesses. The court also upheld the
conviction on the other two issues presented.
In a brief per curiam decision, the Supreme Court
overturned Dusky’s conviction. It held that the record
was insufficient to support the conclusion that the defend-
ant was competent to stand trial in the first place; there-
fore, the Court did not have to address the insanity
issues. The case was remanded to the District Court for a
new hearing on the issue of Dusky’s competence and for
a new trial, if he was found competent.
Although the Court did not spell out its rationale for
the decision in any detail, it endorsed the position taken
by the solicitor general that ‘the test must be whether [the
defendant] has sufficient present ability to consult with
his lawyer with a reasonable degree of rational under-
standing – and whether he has a rational as well as factual
understanding of the proceedings against him.’ The Court
clearly believed that the trial judge needed more infor-
mation than he had available to decide the issue of com-
petence, and that he had relied on inadequate criteria – the
mere facts that Dusky was oriented and had ‘some recol-
lection of events’ – without attending to the question of
the defendant’s rational understanding of the facts.
Wilson v. U.S., 391 F. 2d 460 (1968)
Robert Wilson was charged with five counts of assault
and robbery in Washington, DC. Because of a head
injury suffered in a car chase following this crime spree,
Wilson had a permanent, retrograde amnesia with no
recollection of the events charged in his indictment. He
was admitted to St. Elizabeth’s Hospital, where evalu-
ation revealed that he had a normal mental status except
for the amnesia. Psychiatric reports to the court, how-
ever, concluded that he was not competent to stand trial
832 Landmark cases in forensic psychiatry

because of his amnesia. Although he was able to under- trial and was therefore not given consideration when the
stand the charges against him, the defense argued that he trial court ru