We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with an attorney licensed to practice in your state. Now, the details…
“For over a year I have been treating a second year medical student through the Student Health Services at my University Hospital. He is generally a bright and motivated kid but is bipolar and became very erratic during a recent exam period when he began to force himself to stay up to cram. He stopped his medication and began to say that he heard other students talking about him and plotting to make him fail. I contacted his parents and they arranged for a leave of absence and an in-patient admission near their home. When he returned to school he was to continue seeing me but did not make an appointment. I had my staff contact him but before we received an answer, the police called me to say that he had stabbed another student. I came to the station and spoke with him. He said that the other student was poisoning him and that “sometimes you just have no choice but to do something like this to protect yourself.” Fortunately, the other student was not severely injured and recovered fully but my patient is now facing charges of attempted murder. His defense attorney wants to plead him not guilty by reason of insanity and has asked me to come in as an expert. I would like to help – he needs treatment, not prison. What should I expect?”
Oy.
You should expect a conflict between your inclinations as a doctor and what the law requires.
Let’s start with some history to put this in perspective.
What may surprise you is that even as our understanding of the biological and psychological roots of mental illness has increased, we have retreated legally to standards of the mid-19th century.
The 1843 M’Naughton rule of knowing right from wrong was the standard for legal sanity for about a century. However, as psychiatry became a widely accepted discipline, there was a desire for a more medicalized approach to replace this moral one. In 1954, in the Durham case, the U.S. Court of Appeals found that the existing tests for legal insanity were inadequate and substituted a test under which “The question will be simply whether the accused acted because of a mental disorder, and not whether he displayed particular symptoms which medical science has long recognized do not necessarily, or even typically, accompany even the most serious mental disorder.”
This was far more consistent with a psychiatric approach focused on the nuances of individual cases, but it quickly came under criticism from prosecutors. They argued that approach looked to what caused the defendant to commit the crime to the potential exclusion of the crime itself so that, for example, a defendant could not be convicted of a burglary if he stole to finance compulsive shopping arising from obsessive-compulsive disorder.
Most states abandoned this approach by the early 1970’s and today it is retained, in a restricted form, only in New Hampshire.
Primarily due to public ire over the case of John Hinckley, whom many felt “got away with it” by avoiding prison, we have largely returned to M’Naughton’s right/wrong dichotomy. The Federal government and most states, consistent with M’Naughton, place the burden of proof for insanity on the defendant (i.e.; there is a presumption of sanity that the defendant must rebut).
As a physician you will be more comfortable with how the law applies the defense.
For someone to be convicted of most criminal offenses, the state must prove two separate elements, the actus reus (the guilty act) and the mens rea (the guilty thought). If the defendant was not able to actually understand his actions at the time of the crime or to understand that his conduct was wrong, then the mens rea would be lacking. If so, he could not be convicted of the crime.
This is fully consistent with a physician’s understanding of the disabling effect of mental illness.
However, serious mental illness at the time of the crime is not, in and of itself, enough. That disorder must have rendered the defendant legally incapable of culpable conduct. For example, a defendant may have ardently believed that he was Napoleon when he committed an assault but unless that delusion interfered with his ability to understand that assault is wrong, it would not qualify as the basis for an insanity defense.
A recent example of this disparity is illustrated by the Andrea Yates case. She had a long history of depression and post-partum psychosis. She was undeniably actively psychotic when she drowned her children. Still, she was found guilty in her first trial because she ] told the 911 operator she had done something “wrong” and later confessed that she waited until her husband left for work. She also locked up the family dog so as to not be stopped from killing the children. The jury concluded she still knew right from wrong and so was not legally insane, although they agreed that she was psychotic at the time.
There is considerable variation between states in how these principles are applied.
For example, in Texas – where the Yates trial was held – the sole issue is the ability to know that the conduct was wrong and the defendant must rebut the presumption that he did know his conduct was wrong- while in New York the defendant must prove that at the time of the alleged criminal act he “lacked substantial capacity to know or appreciate either (1) the nature and consequences of such conduct, or (2) that such conduct was wrong” and proof of either element can underpin the defense.
In the Federal courts and in Arizona, for example, the defendant most prove insanity by clear and convincing evidence. In other states the burden of proof is a preponderance of the evidence.
Idaho, Kansas, Montana and Utah no longer have the defense at all. This and lesser restrictions have repeatedly been upheld by the Supreme Court, which has taken a neutral stance on the matter as a due process issue, noting “We have never held that the Constitution mandates an insanity defense, nor have we held that the Constitution does not so require.”
The introduction of a Guilty but Mentally Ill option in 20 states acknowledges the mental illness and the need for treatment but not to the exclusion of punishment. It would apply in cases in which the mental illness is seen as mitigating the guilt but not expunging it. The legal consequences are that the convicted defendant goes to prison and will receive treatment there- rather than to a mental health facility. The defendant will complete his sentence even if he is cured, while a defendant found not guilty by reason of insanity would be released upon cure.
So, with this grounding, let’s look at the opening vignette.
The first step is determining whether the patient is even competent to stand trial.
This is a relatively low standard because it only requires that a defendant currently be able to understand the trial process and deal appropriately with his attorneys in the conduct of his defense.
Since it is likely that the patient will be back on his medication and may even be treating with the doctor again by the time of trial, he will probably meet these criteria. However, competency at that point has nothing to do with whether he can raise an insanity defense because that goes to the patient’s mental state at the time that he committed the stabbing.
The statement that the patient made to his doctor is the next issue – it is ambiguous because it simultaneously offers justification (meaning that he would have thought that his conduct was proper, thus supporting the insanity defense) and a sense of regret over, as he saw it, having had to do it (meaning that he would have known that it was inherently wrong, thus countering the insanity defense.)
This will likely be the pivot on which the defense will turn. The expert doctor’s task will be to establish that the patient’s psychotic state so impaired him that he believed that stabbing the other student was a reasonable act of self-protection rather than a criminal act of aggression.
Insanity defenses are rarely successful and the attorney will probably instead look to claiming diminished capacity. This does not exonerate the defendant but it can be used as a mitigating factor to reduce the charge or be reflected in sentencing.
This approach is more congruent with a medical understanding of mental illness because it does not look at it as a morality issue defined by a binary right versus wrong paradigm but as a gray-scale impairment of the ability to process reality. It is also consistent with the rationale for the insanity defense, that society wants to punish the wrongdoer but to treat the sick, because it cognates that even if the defendant was not completely out of decisional control, he could still have been impaired enough to justify an element of mercy.
In advising the attorney and accepting to act as an expert, you should therefore first acquaint yourself with the standards in your state and determine if you will be able to medically make the case. There is real risk here for the defendant pleading insanity, because in order to raise the defense, the patient must first admit committing the crime.
One’s role as a psychiatrist expert will be to guide the jury as to how the facts of the case conform to the state’s standards but – very critically – one cannot express a personal conclusion as to whether or not the patient was insane when the crime was committed. This “ultimate issue” would actually put the doctor in the role of stating whether there was criminal responsibility. Only the jury may do that.
In summary: The raising of mental illness as a set-off to criminal responsibility has returned to a moral calculus of knowing right and wrong that many psychiatrists feel fails to address the medical nature of the condition. The role of the expert psychiatrist when mental illness is being raised as a complete defense (insanity) or partial defense (diminished capacity, Guilty but Mentally Ill) to criminal responsibility is to explain to the jury how the facts of the case conform to state requirements. But only the jurors may make the actual determination of whether the defendant was sufficiently mentally ill to impact on his culpability.
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In California, the requirement of mens rea was eliminated after the Harvey Milk case, wherein a jury bought the idea (only in California could this happen, methinks) that his murderer was rendered mentally incompetent by having ingested sugar and artificial ingredients in Twinkies. The outrage was predictable, and as a result there is no consideration of mental state, no matter how extreme, in California criminal law. As if all cases of mental impairment are on a par with Twinkie intoxication. No matter for most, anyway, as nearly all cases are plea bargained to avoid what for many would equate to a form of extinction. Any judge not about to retire is horrified at the prospect of being accused by his opponent at election time, of not being tough enough on crime. Justice is obscured by political, sociological and business considerations (since the prison system is now largely a private enterprise). The best way to avoid this or any other legal no-win scenario is to never have the occasion to speak to a police officer, because once the system is activated, the meat grinder is set to automatic, and exculpatory evidence is unlikely to be heard. Unless one is a celebrity, of course.
I remember being accosted by a disturbed man as I went into my office in downtown Seattle many years ago. He somehow picked me out and started screaming at me. I informed the elevator operators that a disturbed man was “tailing” me and to call the police if he stepped into the elevator with me.
I also had a highly disturbed patient ask me to get him on “State disability” for a non-existent injury. He was not very communicative and placed small leaves from plants in each of my treatment rooms, even if there were patients already in them. I didn’t ask him why he did this.
I knew there was no possibility of getting him on any disability program for any foot or ankle disorder. But I also wanted to be safe. So I played along with him and re-scheduled him several weeks later. I did fill out an application and explained in the application that although I had no injury to report, this patient asked me to send it in, and appeared highly disturbed. The state refused the claim, as it should have. Perhaps he was eligible in some way for his mental disorder, but I was not licensed to make this diagnosis or representation.
Unfortunately, he DID show up for the subsequent visit. I put on an acting performance for him, almost “crying” at how unreasonable the state was for rejecting his application. He seemed satisfied and never returned. Fortunately he never asked for a copy of the documents. I would have been bound by law to give them to him.
We have basically closed (most) of our mental health hospitals and instead house them in prisons, unless the patients are wealthy and can afford mental hospitalization.
We are rightly very frightened by mentally disturbed individuals and fear for our safety when around them. While most are not dangerous, a small percentage are extremely dangerous. As a member of the public we usually cannot identify who is and who is not. Even psychiatrists have difficulty with that.
Like you, I want no part of them. Ever. Despite that fear, they still are among us. Some will murder us or a member of our family.
Michael M. Rosenblatt, DPM
This an excellent summary of a very complex area of forensic psychiatry.
The psychiatrist is treating the patient. It is understandable that he or she would want to help his patient. However, at this point, the psychiatrist is fact witness.
In general, the treating psychiatrist should not offer an opinion regarding NGRI, competency, etc, but may advise his patient, provide facts, medical records and collaborate with the judicial system as the patient releases of confidentiality and the law allow.
The American Academy of Psychiatry and the Law, have adopted ethical guidelines. The website is: http://www.aapl.org/ethics.htm.
I have copied from IV. Honesty and Striving for Objectivity (commentary):
Psychiatrists who take on a forensic role for patients they are treating may adversely affect the therapeutic relationship with them. Forensic evaluations usually require interviewing corroborative sources, exposing information to public scrutiny, or subjecting evaluees and the treatment itself to potentially damaging cross-examination. The forensic evaluation and the credibility of the practitioner may also be undermined by conflicts inherent in the differing clinical and forensic roles. Treating psychiatrists should therefore generally avoid acting as an expert witness for their patients or performing evaluations of their patients for legal purposes.
Treating psychiatrists appearing as “fact” witnesses should be sensitive to the unnecessary disclosure of private information or the possible misinterpretation of testimony as “expert” opinion. In situations when the dual role is required or unavoidable (such as Workers’ Compensation, disability evaluations, civil commitment, or guardianship hearings), sensitivity to differences between clinical and legal obligations remains important.
When requirements of geography or related constraints dictate the conduct of a forensic evaluation by the treating psychiatrist, the dual role may also be unavoidable; otherwise, referral to another evaluator is preferable.
Thus, the recommendation is that the treating psychiatrist should not act as the expert witness, but should refer to a non-treating psychiatrist for an opinion on NGRI and other legal issues regarding this patient.
This an excellent summary of a very complex area of forensic psychiatry.
The psychiatrist is treating the patient. It is understandable that he or she would want to help his patient. However, at this point, the psychiatrist is fact witness.
In general, the treating psychiatrist should not offer an opinion regarding NGRI, competency, etc, but may advise his patient, provide facts, medical records and collaborate with the judicial system as the patient releases of confidentiality and the law allow.
The American Academy of Psychiatry and the Law, have adopted ethical guidelines. The website is: http://www.aapl.org/ethics.htm.
I have copied from IV. Honesty and Striving for Objectivity (commentary):
Psychiatrists who take on a forensic role for patients they are treating may adversely affect the therapeutic relationship with them. Forensic evaluations usually require interviewing corroborative sources, exposing information to public scrutiny, or subjecting evaluees and the treatment itself to potentially damaging cross-examination. The forensic evaluation and the credibility of the practitioner may also be undermined by conflicts inherent in the differing clinical and forensic roles. Treating psychiatrists should therefore generally avoid acting as an expert witness for their patients or performing evaluations of their patients for legal purposes.
Treating psychiatrists appearing as “fact” witnesses should be sensitive to the unnecessary disclosure of private information or the possible misinterpretation of testimony as “expert” opinion. In situations when the dual role is required or unavoidable (such as Workers’ Compensation, disability evaluations, civil commitment, or guardianship hearings), sensitivity to differences between clinical and legal obligations remains important.
When requirements of geography or related constraints dictate the conduct of a forensic evaluation by the treating psychiatrist, the dual role may also be unavoidable; otherwise, referral to another evaluator is preferable.
Thus, the recommendation is that the treating psychiatrist should not act as the expert witness, but should refer to a non-treating psychiatrist for an opinion on NGRI and other legal issues regarding this patient.
This an excellent summary of a very complex area of forensic psychiatry.
The psychiatrist is treating the patient. It is understandable that he or she would want to help his patient. However, at this point, the psychiatrist is fact witness.
In general, the treating psychiatrist should not offer an opinion regarding NGRI, competency, etc, but may advise his patient, provide facts, medical records and collaborate with the judicial system as the patient releases of confidentiality and the law allow.
The American Academy of Psychiatry and the Law, have adopted ethical guidelines. The website is: http://www.aapl.org/ethics.htm.
I have copied from IV. Honesty and Striving for Objectivity (commentary):
Psychiatrists who take on a forensic role for patients they are treating may adversely affect the therapeutic relationship with them. Forensic evaluations usually require interviewing corroborative sources, exposing information to public scrutiny, or subjecting evaluees and the treatment itself to potentially damaging cross-examination. The forensic evaluation and the credibility of the practitioner may also be undermined by conflicts inherent in the differing clinical and forensic roles. Treating psychiatrists should therefore generally avoid acting as an expert witness for their patients or performing evaluations of their patients for legal purposes.
Treating psychiatrists appearing as “fact” witnesses should be sensitive to the unnecessary disclosure of private information or the possible misinterpretation of testimony as “expert” opinion. In situations when the dual role is required or unavoidable (such as Workers’ Compensation, disability evaluations, civil commitment, or guardianship hearings), sensitivity to differences between clinical and legal obligations remains important.
When requirements of geography or related constraints dictate the conduct of a forensic evaluation by the treating psychiatrist, the dual role may also be unavoidable; otherwise, referral to another evaluator is preferable.
Thus, the recommendation is that the treating psychiatrist should not act as the expert witness, but should refer to a non-treating psychiatrist for an opinion on NGRI and other legal issues regarding this patient.
thanks for the above. All 3 of my faces of Eve can each have their own version! Regards.