Forensic Issues

Introduction

Forensic psychiatry is the branch of psychiatry that addresses the intersection of psychiatry and the law. In the practice of medicine, psychiatry, and a variety of other clinical professions, legal or forensic issues are commonly encountered. Confidentiality, for instance, is a key legal and ethical concern in general medical and psychiatric practice but is subject to special treatment in certain addiction treatment settings, which may result in the federal confidentiality statute coming into play. It is important in the clinical practice of addiction medicine and psychiatry to be aware than this statute supersedes state confidentiality laws, broadly defines the confidential doctor/agency–patient/client relationship, and outlines sanctions for violating the statute, which could include loss of federal funding or special tax status for the agency in question. This chapter addresses the range of forensic issues that are relevant for practicing physicians, psychiatrists, and addiction specialists and may be of interest to a wide variety of health care professionals and scientists. Working in forensic environments is, essentially, practicing forensic medicine. For instance, in the preceding example concerning confidentiality, managing the special confidentiality requirements for certain patients or clients with addictive illness requires forensic expertise and knowledge of the federal confidentiality statute and its implications. Furthermore, physicians frequently venture into the forensic realm when they are asked to give opinions about disability, whether a patient can give informed consent for treatment, or whether an intoxicated individual could form the specific intent to commit a crime. Assessing fitness for duty in a physician with alcoholism or comorbid addiction and mood disorder and addressing the relevant regulatory (licensing board) issues, opining about the meaning of a positive drug screen in a medical review officer role, and treating addiction in correctional settings are other examples of the enormous scope of forensic situations in psychiatric and other medical practice. Needless to say, working with attorneys in many contexts and testifying in a court of law are forensic activities commonly encountered in medicine.

Because forensic issues flow from the law, not medicine, many doctors are uncomfortable with the concepts and demands of working at the clinical/forensic intersection. Physicians frequently see forensic issues as intrusive in their work rather than protective of their patients, and many do their best to avoid the courtroom. The authors encourage the reader to cultivate interest in the dynamic body of statutes, courts, and cases that constitute the law; familiarity will breed comfort. From the opposite vantage point, although the law has long addressed problems of mental illness, especially the law regarding criminal responsibility, it has been slow to recognize addictive illness, which until relatively recently was seen as moral weakness or depravity. At least some of this problem has to do with the voluntary element in drug use. Courts and lawmakers are obviously not immune to biased societal attitudes toward individuals with addictive disease; nor are they educated about the nature of such illness.

In this chapter, we have chosen to organize the material according to the forensic context, including civil, criminal, and regulatory environments, and to first review some of the essential differences between the style of thinking and nature of practice in forensic contexts compared with the usual clinical thinking in medical practice. In addition, the authors have chosen to include new and emerging areas of forensic interest, in part to underscore the dynamic nature of this field.

The Forensic Evaluation Process

There are two essential differences in performing any evaluation in a forensic context when compared with performing a clinical examination, be it determining whether someone is disabled, competent to make a will, or criminally responsible. Because the findings and opinions in forensic evaluations are meant to be communicated to another party, confidentiality is limited, although obtaining a release of information for that party is often advisable, depending on the context. In addition, the purpose of the examination is to evaluate and reach conclusions regarding the referral questions, not to provide medical care to the examinee. It is not a doctor–patient relationship in the usual sense. Because an examinee often expects both help and at least a measure of confidentiality, both of these differences should be communicated to the examinee at the outset. Even after such advisement, examinees often lapse into looking upon the physician as a helper, so the physician should be alert to signs of this and be prepared to remind the examinee about the context. It is equally important for examiners to be watchful for signs that they want to help the examinee. Examiners also should carefully consider their feelings about and reactions to the examinee, which if left unattended could interfere with being neutral and objective. If the examiner develops doubts as to whether the examinee is competent to understand or agree to the conditions of examination, the report should reflect how this was assessed and the conclusions reached.

There are other technical differences between forensic evaluations and clinical evaluations. Because of the need to answer specific and complex questions, forensic evaluations often take more time than clinical evaluations and may require several interviews. Consider an examination in which a psychiatrist is asked to opine whether, due to hallucinogen intoxication, a criminal defendant was able to form the specific intent to commit a capital crime. Reviewing all relevant documents such as police investigative records and medical records will be an essential task. Incomplete review of documents will undermine the authority of a forensic evaluation. Collateral information is frequently necessary, often from several sources. In assessing whether or not a physician is alcohol dependent, speaking to his or her spouse, employer, and office and hospital staff will be helpful. Forensic reports should be quite detailed, specifically addressing the referral questions in the context of a complete report, including all the data from the examination. This requires that the referral questions be accurately understood by the examiner. This in turn necessitates spending as much time as necessary communicating with the referring party—a court, lawyer, regulatory board, or employer—and making sure that all relevant documents are in the examiner’s possession.

Medical and Legal Terminology and Reports of Evaluation

Encountering words that sound like clinical terms but are in fact legal terms is a common situation in forensic work. Other words may be “terms of art” within the legal system and cannot be defined. The forensic examiner must learn about and consider the legal framework. For instance, in Colorado, the Medical Practices Act, the law that regulates medical practice, lists “habitual intemperance” as unprofessional behavior for a physician. Habitual intemperance, a 19th-century expression used in many laws created in that era, is not in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Is it the equivalent of a substance use disorder, or a certain severity of substance use disorder? The forensic examiner cannot actually answer these questions without a legal definition. Asking for such a definition from the lawyers involved in the case is always a good step; the evaluator would be told, in this case, that it is a term of art. The examining physician may be unable to say whether their clinical diagnosis meets the standard for this term. The answer may be left to a fact finder, which in the legal system is a judge or jury. The term “disability” appears in the same Colorado statute referenced above. The state may act against a license on the basis that the physician has a disability. Again, this term is legal rather than medical in its meaning, referring to a condition that would meet the statutory requirement for unprofessional conduct. Now the examiner has the complex task of sorting out whether habitual intemperance is a disability, whether a DSM-5-defined substance use disorder is a disability, and the relationship between clinical disability and disability under the statute.

In writing reports, physicians should discuss the relationship of a diagnosis or other clinical term to the legal terms used under that statute, regulation, bylaw, or definition in question. For instance, in the preceding example concerning the term “disability”, if a substance-related disorder is found, the report should review how the diagnosis was reached, sort out the relationship of the clinical and legal terms, and acknowledge any outside sources of information used to understand the legal terms, in the process of answering the referral questions.

Working With Attorneys: Testimony

Due to space limitations, the authors give only a brief introduction to these topics. The reader is referred to forensic psychiatry texts or other works for this information. In these areas, the need for neutrality and objectivity, necessary in all forensic work, is paramount. The “hired gun,” a medical evaluator who will testify favorably for any side, regardless of the facts, is anathema to the medical profession. The American Academy of Psychiatry and the Law has published ethics guidelines ; these should be reviewed carefully by physicians anticipating these activities. Remaining neutral may be harder than one imagines because of doctors’ natural wish to be helpful to whomever is asking for their opinion. One must keep in mind that it is actually helpful for an attorney to hear an opinion unfavorable about his or her client or case. In court, even the appearance of advocacy or subjectivity is deadly to the credibility of the medical expert witness. Ultimately, credibility is the only currency of the medical expert. A corollary of this principle is that the attorney representing the opposing side in an adversarial proceeding has a duty to attack the credibility as well as the opinions of the medical expert. Although it is not easy to remain neutral and objective in the face of such attack, it is easier if one conceptualizes it as part of the job.

Psychiatrists and other physicians, as opposed to forensic psychiatrists, may testify only occasionally, so that lessons learned once may be forgotten before the next occasion arises. The authors recommend that physicians consult their forensic colleagues, forensic texts, and the attorneys involved in the case for help in orienting or reorienting themselves to the demands of testimony, be it in court or in deposition.

Compulsion and Responsibility

In all of the legal environments discussed later in this chapter, the psychiatrist may be asked to discuss the voluntary element involved in all substance use and what it means and implies about the character, reliability, credibility, and responsibility of the addicted individual. Kalivas and Volkow have written that understanding addiction must involve understanding why addicted persons continue to be vulnerable to relapse even after extended abstinence and understanding their difficulty in curbing drug-seeking behavior even in the face of serious adverse consequences. The authors will not attempt to review here the many recent advances in understanding of the neurobiology of addiction, as this subject is covered elsewhere in this book. However, a brief review is warranted because the neurobiology may shed light on forensic issues insofar as addiction is associated with the impaired ability to choose abstinence. Generally, as Kalivas and Volkow, and Hyman have argued, the brain circuitry involved in motivation is reorganized and reoriented by repeated use of addictive compounds. Drugs of abuse cause dopamine release in the reward circuitry more powerfully than do the natural reinforcers of behavior, such as food and sex, much less than the everyday reinforcers such as relationships and other enjoyable or rewarding activities. Thus addicted individuals find that drugs of abuse and their cues become more salient than any other source of motivation. Over time, the potent release of dopamine in the reward pathways in response to drugs of abuse becomes attenuated, rendering the brain less sensitive to any motivational stimulus. The drug user then seeks the lost euphoric response and remains less motivated by any other rewarding activity. In addition, an “antireward” system, mediated by the extended amygdala and factors involved in the stress response, causes severe dysphoria when the drug effect wears off. At that point, the addict is motivated to use the drug to seek transient relief from discomfort. In the later stages of addictive drug use, altered dopamine and glutaminergic function in regions of the prefrontal cortex that control self-regulation, inhibitory control, and decision making, make it more difficult to choose to refrain from drug use even in the presence of a genuine wish to stop. These conditions help to explain relapse among those who have faced severe adverse consequences of drug use, and the tenacious nature of the illness.

Bonnie discussed issues concerning an addict’s ability to choose whether or not to use drugs. He rightly pointed out that one can resist a compulsion, and that having a hard choice and having no choice are profoundly different conditions. Although the “voluntariness” of drug-seeking behavior may be altered by addiction due to the neurobiological vulnerabilities of addicts, drug use is not involuntary. Limited volition and lack of volition are fundamentally different. Bonnie explored issues of the addict’s responsibility for becoming addicted, for behaviors caused by addiction, and for sustaining sobriety after diagnosis and treatment. In his analysis, staying sober is the clearest responsibility. Whether or not his view of responsibility for relapse comports with the science of how the brain is enduringly altered by addictive experience, the fact that in some populations the realistic threat of adverse consequences of relapse decreases relapse rates underscores the pragmatism of the concept of responsible choice.

The addiction psychiatrist who is interested in the legal framework for considering these issues should be familiar with landmark judicial decisions in landmark cases. The United States Supreme Court has ruled in three such cases. Robinson v. California held that it was unconstitutional to convict a person for being an addict because to do so would be to punish him for having a disease, in violation of the Eighth Amendment, which prohibits cruel and unusual punishment. But what about behavior caused by or related to addictive illness? Is that punishable? In Powell v. Texas , the high court ruled that an extension or broad reading of Robinson would not hold. Powell was convicted of public drunkenness, and argued that this was a symptom of a disease, alcoholism, and that he was powerless to control it. The Court ruled that Powell could not be found criminally responsible for being an alcoholic but could be found responsible for being drunk in public. The majority of the justices decided that although Powell was an alcoholic, he did not experience an “irresistible compulsion” that he was “utterly unable to control.” Bonnie wrote that the justices in Powell were cautious about accepting that conditions that impair volition (such as kleptomania and pyromania) could excuse criminal conduct, and were reluctant to constitutionalize addiction as a justification for such behavior; to do so would “unsettle the law of criminal responsibility.” Ironically, this case represented Powell’s 100th conviction for public drunkenness. (Criminal responsibility is discussed further, below.)

Montana v. Egelhoff is a more recent landmark case. Egelhoff was convicted of murder even though he argued that his blood alcohol level of 0.36% rendered him incapable of the mental state required for conviction of the crime. The Montana criminal code excluded consideration of voluntary intoxication in determining the mental state of a defendant. The Montana Supreme court overturned the trial court, arguing that “all relevant evidence” should be considered when evaluating whether Egelhoff acted “knowingly and purposefully,” the mental state required for conviction. The United States Supreme Court upheld the ruling of the lower court, not the Montana Supreme Court. Although four-fifths of the states permitted the use of information about intoxication in addressing whether a defendant had the mental capacity to form the specific intent to commit a given crime, the Court noted that under well-established common law, voluntary intoxication did not excuse committing a crime. The Court held that general acceptance of taking intoxication into consideration when determining mental state did not make such consideration fundamental. (See below for a discussion of diminished capacity.)

In the future, the neurobiology of choice, volition, and motivation will be better worked out, which will lead to even more spirited discussion of these matters in the courts and in forensic psychiatry. It is wise for all the physicians involved in addiction medicine to keep up with these developments. It will be a challenge to weigh and understand the significance of the effects of illness on behavior and responsibility for that behavior.

Civil Matters