Jan 07 News 05 - AAPL

American Academy of Psychiatry and the Law Newsletter January 2014 • 1

AAPL NewsletterAmerican Academy of Psychiatry and the LawJanuary 2014 • Vol. 39, No. 1

(continued on page 2)

On Thursday,October 24,2013, Debra A.Pinals, MDaddressed theaudience as the39th presidentof the AmericanAcademy of

Psychiatry and Law. She was given awarm welcome and introduction byAAPL past president, Dr. Charles Scott,who highlighted her broad experienceand many accomplishments.

Dr. Pinals began by outlining herown professional trajectory – fromforensic psychiatric fellowship directorto acting State Medical Director for theDepartment of Mental Health to hercurrent position as the Assistant Com-missioner of Forensic Services for theDepartment of Mental Health of Massa-chusetts. These multiple administrativeleadership perspectives informed Dr.Pinals’ view of forensic psychiatry asinteracting with multiple overlappingsystems.

At the beginning of the address, Dr.Pinals posed the following questions: 1)should forensic psychiatrists be taking abroader view? 2) How will justice-relat-ed mental health services be funded andhow will funding determine services? 3)Where are forensic psychiatrists inemerging “justice related programdesigns?” 4) How do we train forensicleaders of the future to help chart thebest course?

She then gave a case example toillustrate the difficulties persons withmental illness who are also forensically-involved might have and the systemswith which they might interact.

Dr. Pinals highlighted the issue ofcommunity treatment for the forensical-ly involved people with mental illness:access to a high standard of treatment in

the community, and funding for treat-ment. She explained that forensic psy-chiatry is at the crossroads of behavioralhealth, criminal justice, and multipleforensic settings, and then proceeded tooutline the significant overlap of themental illness and criminal justice sys-tems - there is an over-representation ofpersons with a criminal history in themental health system, and an over-rep-resentation of people with mental illnessin the criminal justice system. Shecalled individuals with mental illnessand forensic involvement as the“crossover population,” and describedhow care for them is delivered acrosscorrectional, psychiatric hospital, andcommunity settings. She observed thatthese individuals are high healthcare uti-lizers and they often have poor healthoutcomes.

Dr. Pinals reflected on the growth ofthis crossover population and highlight-ed several reasons for their growth:lower community crime tolerance thatled to more severe drug policies begin-ning in the 1970s, determinate sentenc-ing and consequent increase in the num-ber of people in prisons and jails, civilcommitment laws, and the closure ofstate hospitals have all been implicatedin shifting landscape of where care isdelivered.

The more recent emphasis on pro-viding care in community settings hasresulted in the placement of more peo-ple with justice-histories out of institu-tional settings. For example, Dr. Pinalsnoted the increase in community place-ment of mentally ill individuals follow-ing the 1999 United States SupremeCourt Decision of Olmsted v. L.C., andthe Civil Rights of Institutionalized Per-sons Act of 1980 (CRIPA), both ofwhich emphasize the right of individu-als with mental disabilities to live in thecommunity when appropriate. In addi-

tion, the United States Supreme Courtdecision of Brown v. Plata of 2011spurred the release of 40,000 inmatesfrom California prisons into the com-munity. The movement for self-determi-nation of people with mental illness hasprovided an impetus for individuals topursue community treatment asopposed to institutional care - a socialjustice issue embodied in the rights ofall persons to live meaningful and pro-ductive lives in the community. Individ-uals with mental illness and correctionalinmates have been participants in con-versations that have helped shape publicpolicy.

In discussing financing for the treat-ment of the population at the crossroadsof criminal justice and mental healthsystems, Dr. Pinals noted that the largestpayer of mental health services is Med-icaid. This is a change from the 1990swhen state and local governments werethe largest payers. Within state expendi-tures, overall bed costs have decreasedwith the closure of many facilities.However, within state mental healthcosts, there has been a rising percentageattributed to forensic beds. Additionally,state expenditures for prisons haveincreased. Dr. Pinals highlighted thataround five million people are super-vised on probation or parole, many withmental illness. These people are largely

2013 Presidential Address

Debra Pinals MD:Forensic Prevention through Policy and Financing Simha Ravven MD

Incoming President Robert Weinstock withAwards Committee Chair Renée Binder

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2 • January 2014 American Academy of Psychiatry and the Law Newsletter

EditorCharles Dike, MD, MPH, FRCPsych

Associate EditorsPhilip Candilis, MD

Steven H. Berger, MD

Susan Hatters Friedman, MD

Neil S. Kaye, MD

Former EditorsVictoria Harris, MD, MPH (2003-2008)Michael A. Norko, MD (1996-2003)Robert Miller, MD PhD (1994-1996)Alan R. Felthous, MD (1988-1993)Robert M. Wettstein, MD (1983-1988)Phillip J. Resnick, MD (1979-1983)Loren H. Roth, MD, MPH (1976-1979)

Officers

PresidentRobert Weinstock, MD

President-electGraham Glancy, MD

Vice PresidentRichard Frierson, MD

Vice PresidentEmily Keram, MD

SecretaryBarry Wall, MD

TreasurerDouglas Mossman, MD

Immediate Past PresidentDebra Pinals, MD

The AAPL Newsletter is published byAAPL, One Regency Drive, PO Box 30,Bloomfield, CT 06002. Opinionsexpressed in bylined articles andcolumns in the Newsletter are solelythose of the authors and do not neces-sarily represent the official position of AAPL or News letter editors.

Manu scripts are invited for publicationin the Newsletter. They should besub mitted to the editor via email [email protected].

The Newsletter is published in January (deadline for submission isNovember 15), April (deadline Febru-ary 1), and September (deadline July 1).

www.aapl.org

© 2014 AAPL. ALL RIGHTS RESERVED.

AmericanAcademy ofPsychiatryand the Law

receiving their care in community men-tal health settings.

With regard to how healthcarereform and the Affordable Care Act(ACA) would affect those with bothmental illness and forensic involvement,Dr. Pinals noted that Medicaid expan-sion will likely encompass many in thiscrossover population. Some of the prosof the ACA are the mandate for parity,and payment methodologies that maywork differently than traditional fee forservice models. There is the hope thatimproved care coordination under newhealthcare delivery schemes will lead toimproved health outcomes. Dr. Pinalsnoted that measures assessing quality ofcare are still evolving as are integratedcare delivery models, which will beespecially important for this populationthat suffers significant psychiatric andmedical illnesses. Some of the weak-nesses of the ACA may be increasedoverall expenses because of a largergroup of people who will receivehealthcare coverage. There will be needfor cost containment.

Dr. Pinals next addressed the issue oftransition from incarceration to commu-nity care, and continuity of health bene-fits and coverage. She explained thathealthcare of the incarcerated popula-tion is state funded. When incarceratedpeople are discharged into the commu-nity it can take months to re-enroll inpublicly funded healthcare coveragesuch as Medicaid and the VA, and toconnect to community services. Sheemphasized the importance of improvedcontinuity between incarceration andcommunity care through continuousenrollment in public health coverage.She spoke about the importance of sus-pension, rather than termination of ben-efits while an individual is incarceratedso that the time to re-enroll upon releasewould be diminished and healthcarecoverage would be continuous.

In closing, Dr. Pinals gave a messageof hope to the future. She describedsteps that could improve the outcome ofjustice involved individuals with mentalillness, and emphasized the importanceof screening for mental illness, includ-ing early pre-trial screening, and referralto appropriate services. She stressed the

importance of minimizing disruption inhealth coverage entitlements so thatindividuals being released from correc-tional and forensic settings do not haveperiods of time where they lack accessto covered healthcare. She also empha-sized the importance of integrating carewith partners in criminal justice andprobation.

Dr. Pinals outlined important areasfor training forensic mental health pro-fessionals in the future. This includestraining in trauma, criminogenic riskand recidivism factors, as well as mod-els of integrated behavioral and physicalhealthcare, and specialized justice andmental health collaborative services.Future forensic mental health profes-sionals need to be familiar with the larg-er systems in which forensic treatmentand evaluation take place and be con-versant in forensic, correctional, andpublic mental health financing andadministration, disability, and other enti-tlements. They should understandaccess to and barriers to benefits acrosssystems.

In conclusion, Dr. Pinals answeredthe questions she had posed. She opinedthat forensic psychiatrists should take abroader view relating to communityforensic services, that they should uti-lize clinical and legal knowledge toinform forensic evaluations and prac-tice, and that forensic psychiatristshould gain experience with newer pro-gram models. She also noted thatforensic psychiatry training shouldinclude education on healthcare and jus-tice systems and their interaction withpolicy and financing, as well as innova-tions in this area.

COVER STORY

“Some of the weakness-es of the ACA may beincreased overallexpenses because of alarger group of peoplewho will receive health-care coverage.”

Presidential Addresscontinued from page 1

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FROM THE EDITOR

Debate aboutthe influence ofviolent videogames and vio-lent media onaggressivebehavior hasbeen raging foryears, but got

louder and shriller following theNewtown tragedy. Certain groupsfought hard to defend their right toown guns, and pointed accusatoryfingers at the mentally ill (“gunsdon’t kill, people do”) and at violentvideo games and movies. I wonderedabout the impact of movies and dwelton it for a while. Are violent moviesassociated with real life violence? Acasual review of the literature indi-cates that media violence has not justincreased in quantity; it has alsobecome more graphic, sexual, andsadistic.1 Surveys have found that 82percent of the American public con-sider movies too violent.2 A study byJames B. Weaver III and Dolf Zill-man, showed that prolonged exposureto gratuitously violent films is capa-ble of escalating hostile behavior inboth men and women and of instigat-ing such behavior in unprovokedresearch participants.3 1000 studies -including a Surgeon General's specialreport in 1972 and a National Insti-tute of Mental Health report 10 yearslater - attest to a causal connectionbetween media violence and aggres-sive behavior in some children. Stud-ies show that the more "real-life" theviolence portrayed, the greater thelikelihood that it will be "learned."4According to the American Acade-

my of Pediatrics, media violence maycause aggressive and antisocialbehavior, desensitize viewers tofuture violence and increase percep-tions that they are living "in a meanand dangerous world." Childrenyounger than 8 "cannot uniformlydiscriminate between real life andfantasy/entertainment… They quicklylearn that violence is an acceptablesolution to resolving even complex

problems, particularly if the aggressoris the hero." Witnessing repeated vio-lent acts can lead to desensitizationand a lack of empathy for human suf-fering.The American Psychiatric Associa-

tion summarized the above findingsand concluded, "The debate is over…For the last three decades, the onepredominant finding in research onthe mass media is that exposure tomedia portrayals of violence increas-es aggressive behavior in children."As these conclusions settled in my

mind, I wondered about the recenttrend of bringing books to life onscreen. Marvel and DC Comic heroessuch as the Avengers, Spiderman,Superman, Spiderman, Iron Man, X-Men, and so on, have been hugelysuccessful. There is no doubt that asin past generations, children andteenagers make up a large and pre-dictable base of comic book readers.The movies involving these charac-ters mostly attract a rating of PG-13. In terms of books, the Harry Potter

and Hunger Games series (authors –JK Rowling and Susan Collinsrespectively) have hit the screen andnow, the Divergent series (author –Veronica Roth) are hovering the hori-zon and will make landfall (movieappearance) in early 2014. Thesebooks have been credited with gettingkids to read. Most attract movie rat-ings of PG 13, denoting the presenceof violence, sex, profanity or otherrisky behavior at the level supposedlyappropriate for someone 13 years oldand over, if such behaviors could everbe seen as appropriate for that agegroup. However, a lot of children lessthan 13 are reading these books, andnow that they have been made intomovies, are clamoring to see themovies. I know of precocious 8-year-olds who have finished reading theHunger Games series (three books),and the Divergent, Insurgent andAllegiant series. As evident in thetwo Hunger Games movies that cameout to much aplomb and acclaim, thecentral theme of the books is survival

through brutal killing and eliminationof strangers thrown together in anarena and watched by fictional coun-try folks on big screens across thecountry. In fact, in the first movie,one of the victims was an adorable 12year old girl specifically targeted andkilled by the other much older contes-tants! The only way to advance andstay alive is to kill, and all methodsof achieving that goal are acceptable.In the most recent Hunger Gamesmovie released around Thanksgiving2013, a nine year old watching themovie with her parents stated that sheknew when to close her eyes so as tonot witness the violent acts that sheknew were coming from having readthe book! Interestingly, a movie rat-ing site for kids, Kids in Mind, ratedthe Harry Potter and the Deathly Hal-lows (part 2) movie released in 2011as 7/10 for Violence and Gore, with10 being the most violence rating.Several questions come to mind:

does reading books that describe vio-lence, physical or sexual, in graphicdetails also lead to desensitization ofviolence and subsequent increase inviolent behavior in real life? Shouldchildren be banned from readingthese books? If not, does it makesense to encourage them to read thesebooks but then prohibit them fromwatching the movies made from thebooks? Once exceptions are made forchildren to watch these PG-13movies, can parents subsequentlyprohibit the watching of other PG-13movies? These are interesting conun-drums indeed.Researchers at the Annenberg Pub-

lic Policy Center and University ofPennsylvania looked at 390 popularmovies released from 1985-2010 inorder to gauge the number of timesviolent characters participate in otherrisky behaviors, and concluded thatthere was very little statistical differ-ence between PG-13 and R-ratedfilms with regards to the characteris-tics of violence. A similar study pub-lished in Pediatrics journal in Novem-ber 2013 indicated that the amount ofgun violence in PG-13 movies morethan tripled since 1985, and last year,

Children Reading Violent BooksCharles C. Dike MD, MPH, FRCPsych


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PRESIDENT’S REPORT


Forensic Consultation on Legal Regulation of Clinical PracticeRobert Weinstock MD


I am honored towrite my firstcolumn as your40th President ofAAPL. This orga-nization and itsmembers havemeant a greatdeal to me

throughout my career. We are instrong shape, and I follow in the lineof many outstanding presidentsincluding Debra Pinals, MD andCharles Scott, MD who will be achallenge to follow. I plan to contin-ue the work they and others havebegun and develop some new initia-tives. Jeffrey Janofsky, MD, is ourvery capable new AAPL MedicalDirector, and I look forward to work-ing with him. We are fortunate tohave the assistance of Jackie Cole-man and her staff who provideinvaluable assistance and a fountainof knowledge about our organization.Please attend the exciting annualmeeting we are planning for Chicagoin October. Christopher Thompson,MD, and Gregory Sokolov, MD, areprogram chairs. Joining and attending committees is

the best way for new members tobecome involved. I plan to use thesecolumns to highlight some aspects ofour practice that in my view do notget the attention they deserve. I startwith consultation to general psychia-trists.Forensic psychiatrists often are

asked by other clinicians to consultabout legal aspects of psychiatricpractice. It is important we are clearto others and to ourselves that we arenot attorneys and cannot substitutefor a lawyer or give legal advice. It isnecessary to include an attorneywhenever there are legal complexitiesand/or a threat of a legal challengeincluding a law suit. But, having saidthat, the forensic psychiatrist can pro-vide an important alternative perspec-tive for the general psychiatrist and

attorney to consider. Attorneys who work for hospitals

and for governmental agencies oreven an organization consider as theirprimary obligation the protection ofthe clinician and the hospital oragency or organization from liability.The attorney who works for a mal-practice carrier or the risk manage-ment advisor also has liability avoid-ance the primary goal. Some suchadvisors, but not all, will also consid-er the welfare of the patient and soci-ety. Others though will need to beencouraged by a clinician to do so.Forensic psychiatrists can be helpfulin alerting other clinicians of the needto tell the attorneys and risk manage-ment advisors that they would like tobalance self-protection against theactions they believe most helpful topatients and society. These other con-siderations sometimes even can pro-tect against other types of liability.The “right” thing may even end upbeing more protective to the psychia-trist since juries likely will be moresympathetic to clinicians who striveto do the best thing as opposed toengaging in extreme self-protection tothe detriment of others.In the case of a hospital or govern-

ment agency, there also is a risk thatthere can be a conflict of interest inthe event of a law suit. Protecting theagency that has a “deep pocket” withmuch more money at risk may be ahigher priority than protecting theindividual clinician who may risk get-ting reported to a data bank. If that issuspected in a potential law suit oreffort to settle the case, it can beadvisable to hire a private attorneywho will have the protection of theclinician as their primary concerneven when less or even not protectiveof the agency.Protection from liability of course

is likely to be the primary considera-tion of the clinician as well andshould therefore be for the forensicpsychiatric consultant also. But on

their own, attorneys do not necessari-ly give significant consideration tothe welfare of the patient and society,except insofar as it is clearly moreprotective of liability. But the clini-cian may well consider patient andsocietal welfare as an independentgoal over and above liability con-cerns. Doing the “right” thing clini-cally and ethically is likely to be asignificant concern by most clini-cians, especially if any additional lia-bility risk is minimal. Unlike someattorneys, clinicians might often bewilling to put themselves at a smallliability risk to do what is clinicallyand ethically right and can pursue thisdiscussion with the attorney.

It is important in the consultativerole to be sure that the other psychia-trist is aware of whatever small liabil-ity risks may exist so as to be able tomake an informed decision what todo. Clinicians should not act contraryto legal advice. The attorney may beneeded to assist in the future if thereis an adverse outcome and can bemore aware of liability risks than theclinician or forensic consultant. Butthe treating psychiatrist or administra-tor can be assisted to explore with anattorney whether there is a legal wayto accomplish the clinical and ethicalgoals the clinician desires. Somepsychiatrists may have liability pro-tection as their only significant con-cern. If so, then they could consultwith their attorney or risk manage-ment advisor and just follow thatadvice. They most likely will wantsometimes at least to balance those

“Forensic psychiatristscan introduce the per-spective of consideringpatient and societal welfare in addition tosolely narrow views ofliability protection”

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MEDICAL DIRECTOR’S REPORT



AAPL: Retrospect and ProspectJeffrey Janofsky MD

It is a realhonor and privi-lege for me to bebeginning workas AAPL's thirdMedical Directorsince our organi-zation's foundingin 1969. I had the

opportunity to work with both ofAAPL's two prior Medical Directors,Jonas Rappeport and Howard Zonana.Although Jonas and Howard had verydifferent leadership styles, both hadan equally strong commitment toAAPL's growth into the premier orga-nization for forensic psychiatry inNorth America. I hope to bring myown commitment to our field andorganization to help continue AAPL'ssuccess. As many of you may know, AAPL

was founded primarily as an educa-tional organization to further excel-lence in practice, teaching, andresearch in forensic psychiatry. Thateducational focus was initially carriedout primarily through our AnnualMeeting and Journal (originallynamed the Bulletin). In Volume 1Number 1 of the Bulletin, AAPL'ssecond President Bob Sadoff wrotethat over 50 members attended theAnnual Meeting in Ann Arbor, Michi-gan and that, "... the opportunity tomeet with each other and share ourideas and discuss new issues in foren-sic psychiatry is invaluable ...” Suchcollegiality has been a core compo-nent of AAPL Annual Meetings since. I attended my first AAPL meeting

in 1985 in Albuquerque as a memberof AAPL's first class of RappeportFellows. I not only learned a greatdeal, but I also began to establish newfriendships that have continued andexpanded as I have gotten to knowother AAPL members through theyears. AAPL is still a small enoughorganization so that members whocome to just a few meetings begin tobe recognized by other members.This recognition and collegialityaccelerates once a member joins a

committee or authors a presentation.Our last meeting in San Diego had753 participants and 134 presenta-tions. Although impressive, suchnumbers do not fully reflect the addi-tional networking opportunities pro-vided by AAPL committee meetingsand informal conversations with col-leagues generating ideas for futureprofessional endeavors. AAPL's education mission has

expanded over the years through aBoard Exam in Forensic Psychiatry,first through AAPL, and later as anofficial American Board of MedicalSpecialties Board through the Ameri-can Board of Psychiatry and Neurolo-gy. AAPL began sponsoring a reviewcourse, first under the auspices ofRichard Ciccone and now under PhilResnick, that provides an intensivethree day overview of key issues inforensic psychiatry. Both the Courseand our Annual Meeting receive highmarks from participants for educa-tional quality.

As our membership grew, our edu-cational products expanded, andadministrative challenges to provideCME for educational activitiesbecame more difficult. It becameclear that professional managementwas required. Jackie Coleman hasably filled the role of AAPL's Execu-tive Director since 1993 to providesuch services. It would simply not be

“AAPL has chosen toattempt to influence thepolicy positions of the AMAand APA through our for-mal liaisons, and informal-ly through the many AAPLmembers who are active inboth organizations.”

possible for AAPL to exist in its pre-sent form without Jackie and herstaff. Maintaining Forensic Psychiatry

Board Certification has become evenmore complex with expanding Main-tenance of Certification (MOC)requirements. AAPL has respondedby providing new educational prod-ucts spearheaded by our EducationCommittee, such as an online CMEself assessment exam and Perfor-mance in Practice (PIP) modulesrequired under the new MOC require-ments. Under the guidance of Howard

Zonana, AAPL began writing PracticeGuidelines for critical areas in foren-sic psychiatry. Guidelines are pro-duced by a workgroup, presented tothe membership and Council for vet-ting and then published in the Jour-nal. AAPL has now produced PracticeGuidelines on the Insanity Defense,Video Recording of Forensic Evalua-tions, Competency to Stand Trial, andPsychiatric Disability. A revision ofthe Insanity Defense Guideline andVideo Guidelines has been completedand revisions of our other Guidelines,as well as potential new Guidelines,are in the works.During his 1998 to 1999 AAPL

Presidential term, Larry Faulkneridentified the importance of a strongresearch foundation in forensic psy-chiatry and the difficulties in fundingsuch a research enterprise. Based onhis recommendations and initiative,AAPL established the AAPL Institutefor Education and Research (AIER)in 2004. AIER has received fundingboth directly from AAPL and fromAAPL members. Lead grantees, whomust be AAPL members, havereceived over $163,000.00 fundingfifteen projects to date in bothresearch and education. More impor-tantly, grantees have been able to useAIER grants as stepping stones tolarger grants and research, a keyunderlying purpose of the Institute. More recently in its history, AAPL

has created formal liaisons with otherorganizations to make AAPL's voiceheard when those other organizationsmade policy that could affect forensic

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PRESIDENT’S REPORT CONTINUED

Forensic Consultationcontinued from page 4

would exacerbate the risk to a poten-tial victim, it can be desirable to dosomething other than warning, andnot automatically be liable for failureto warn as a California appellatecourt had earlier interpreted. As aresult of a subsequent legislativechange to the statute, clinicians desir-ing liability immunity can still get itby the “safe harbor” of warning thepotential victim and the police. Butalternatives again are possible. Inorder to be liable for an alternativeaction, that choice and action wouldneed to be proven negligent. Thischange permitting flexibility whenthe therapist desires it was accom-plished by modifying the existingstatute. Another complex area is pressure to

use statutes designed for involuntarypsychiatric treatment in order to keepinvoluntarily medical patients whoare incompetent to consent to medicaltreatment in a medical unit when theytry to leave despite lacking the capac-ity to understand and appreciate thereason for needing to stay there. Ifthere is also a psychiatric problemneeding involuntary treatment, thenpsychiatric holds or civil commitmentare appropriate and necessary to treatthe psychiatric problem. If the psy-chiatric problem is stable or there isan illness such as major neurocogni-tive disorder that will not respond totreatment, the psychiatric holds arenot appropriate or desirable. Theiruse unnecessarily grafts heavilyrights-driven cumbersome systemsdesigned for psychiatric treatment onto the medical arena that historicallynever required such careful monitor-ing of rights. It can create logisticalproblems such as a need to transporta severely medically ill unstablepatient to a court a distance away fora writ or civil commitment hearing orbe required to discharge the patientunless he agrees to stay. But someattorneys or administrators accus-tomed to using the procedures forinvoluntary psychiatric patients tryingto leave the hospital think it is theonly way to keep a patient from leav-ing the hospital. A useful role forensic psychiatrists

can undertake in consulting in such

concerns with other factors andshould be encouraged to negotiatewith the attorney or risk managementprofessional to try to find a way toaccomplish the clinical and ethicalgoals with minimal liability risk ifpossible. They would not want todefer the clinical decision to an attor-ney. However, if the law clearlyrequires something that is not bestclinically and ethically, there general-ly is no reasonable choice but to fol-low the law unless a way consistentwith the law can be found to accom-plish the desired goal.In most areas of forensic practice

our job is to accept the law as is and,as forensic psychiatrists, apply ourdata to the current legal criteria.However, sometimes if the criteriaare ambiguous, it can be appropriatewith the attorney to test transparentlythe possibility of an alternative inter-pretation that seems better able toaddress the salient considerations thatcan be appealed and potentiallyestablish new precedent. Additional-ly, in appellate cases that will setprecedent when there are issues thathave psychiatric implications, as partof an organization, we may want tofile amicus briefs to try to establish alegal precedent that will extend farbeyond the case at hand. On rareoccasions, there are times the psychi-atric or forensic psychiatric profes-sion may even want to make effortsto change the law by legislation whenthere are laws, or interpretations atthe state or federal level, that signifi-cantly impact clinical or forensicpractice. Some such efforts can besuccessful. So on rare occasions,attempts to change precedent or thelaw might be appropriate either asprofessionals or privately as citizens.In California, because of confusion

caused by an ambiguous poorlyworded immunity statute, it becamenecessary to clarify by statute that theTarasoff duty was a duty to protectand not a duty to warn. Warningpotential victims and the police is theway to obtain immunity from liabili-ty. But in situations in which warning

situations is to try to help persuadeattorneys and administrators to inter-pret silence or even ambiguities inthe law in ways to help patients in thetreatment setting. Rather than inter-pret the ambiguities and silence in thelaw to require things like inappropri-ate psychiatric holds just becausethey are familiar, it would likely bebest for everyone to assist the hospi-tal to develop policies and proceduresin these situations to benefit patientsin addition to avoiding liability. Ifthere is too much resistance in manysuch facilities, it might necessitateefforts to create something like a newalternative capacity-based system todetain patients lacking decisionalcapacity to consent to urgent medicaltreatment including the need to stayin a medical hospital. In situationsqualifying for emergency exceptions,that offers a solution.In conclusion, the forensic psychia-

trist often can provide an importantperspective when consulting to gen-eral psychiatrists about treatment.Although not a substitute for consul-tation with an attorney, forensic psy-chiatrists can introduce the perspec-tive of considering patient and soci-etal welfare in addition to solely nar-row views of liability protection.Being familiar with clinical issues aswell as having some familiarity withthe law, forensic psychiatrists in thisrole may be uniquely qualified tohelp other psychiatrists intimidatedby both the law and attorneys to findways to balance competing consider-ations.

MUSE & VIEWS“I do not suffer from insanity, I enjoyevery minute of it.” -Edgar Allan Poe

Pro se Trial PerformanceA man accused of stealing a woman’spurse decides to represent himself andasks the following question of therobbed victim: “Did you get a good look at my face

when I took your purse?”The defendant was found guilty andsentenced to ten years in jail.

Submitted by Charles L. Scott MD

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM


2013 ANNUAL MEETING - Luncheon Speaker

Luncheonattendees on theopening day ofthe 2013 AnnualAAPL Meetingwere treated to afascinatingglimpse into thelife’s work of

attorney and mediator Kenneth Fein-berg. A graduate of the NYU Schoolof Law, Mr. Feinberg worked in the1970s as an assistant, and then lateras the chief-of-staff for SenatorEdward Kennedy of Massachusetts.Later in his career, he was assignedas a special master overseeing theallocation of billions of dollars offunds after several major Americantragedies, including the September11, 2001 Victim Compensation Fundand the BP Oil Spill Fund. Mostrecently, he was appointed to overseeOne Fund Boston, which was set upto compensate victims of the BostonMarathon bomb attack. Mr. Feinberg,as he playfully reminded the audi-ence, is also the author of two books:Who Gets What: Fair Compensationafter Tragedy and FinancialUpheaval, and What is Life Worth?:The Inside Story of the 9/11 Fund andIts Effort to Compensate the Victimsof September 11th.In his role as a special master, Mr.

Feinberg has repeatedly been handedthe unenviable task of determiningthe extent of financial compensationto be awarded to the victims of horri-ble tragedies. Attuned to the pro-found grief often felt by survivingfamily members, and the need forsome to have their stories personallyheard, Mr. Feinberg insists on afford-ing every victim the opportunity tomeet with him face-to-face. Mr. Feinberg opened his lecture with

the observation that the most difficultpart of his job consists of being con-fronted with the intensity and range ofemotions harbored by people who havesuffered tragic loss. To more skillfully

deal with these emotions, he opined thathe would have been better served by adegree in divinity or psychiatry ratherthan law. His speech consisted of a free-flow-

ing series of narratives about tragedyvictims, some amusing, most devas-tatingly sad. There was the story ofthe man who lost a leg in the BostonMarathon bombing, who responded toan offer of compensation by stating,“how about you give me my legback.” A woman, whose husband diedin the 9/11 attacks, asserted thatinstead of money she wished shecould die in his place. Collectively,these stories underscored the inade-quacy of monetary compensationalone in being able to heal these indi-viduals, and make them whole again.But alas, the dispensing of this typeof compensation is what Mr. Feinberghas been charged to do time and timeagain, sometimes at the behest of thePresident of the United States.

And how does one go about deter-mining the amount of money eachvictim should be entitled to receive?The process, Mr. Feinberg explained,can be quite arbitrary. There is afinite amount of money, and he triesto be as fair as possible, butinevitably there are comparisons andaccusations of bias and mistreatment.“Everyone,” he surmised, “countsother people’s money.” Mr. Feinberg surmised that argu-

ments over compensation often takethe form of who is more “deserving”of it. He cited the example of parents

Kenneth Feinberg, Esq.: Unconventional Responses to Unique Catastrophes: Tailoring the Law to Meet the ChallengesJoseph Chien DO

of a lost son, who after his death in9/11 argued that his fiancée was notentitled to financial compensation. Inan interpretation worthy of a psychia-trist, Mr. Feinberg opined that suchdisagreements were not evidence ofgreed as much an expression ofdenial—to acknowledge the legitimacyof the fiancée would also mean havingto acknowledge a lost future (the pos-sibility of grandchildren, etc.). Somepainful things, it seems, are better keptunderground.Nearing his conclusion, Mr. Fein-

berg thanked the audience andremarked, “I’ve learned over the past25 years, the important work you do.”Judging by the exuberant roar ofapplause after his speech, AAPL mem-bers likewise acquired an appreciationof the important work Mr. Feinberghas done and continues to do.

“Mr. Feinberg surmisedthat arguments over com-pensation often take theform of who is more‘deserving’ of it.”

AAPL Awards CommitteeSeeks Nominations for 2014The AAPL Awards Committeewould like your help. We would beinterested in receiving nominationsby June 1 for the following awards:

Red AAPL - For AAPL memberswho have provided outstanding ser-vice to AAPL, e.g., through commit-tee membership.

Golden AAPL – For AAPL mem-bers over the age of 60 who havemade significant contributions to thefield of forensic psychiatry.

Seymour Pollack Award – ForAPA members (who may not beAAPL members), who have madedistinguished contributions to theteaching and educational functionsof forensic psychiatry.

Amicus Award – For non-AAPLmembers who have contributed toAAPL.

Best Teacher in Forensic Fellow-ship Award – For outstanding fac-ulty member in fellowship program.

Please send your nominations toRenée Binder, MD, Chair of theAwards committee [email protected].

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM



Howard Zonana, MD: Reflections of a Medical DirectorBrian Cooke MD

On the secondday of AAPL'sAnnual Meeting,attendees werehonored to listento Dr. HowardZonana providehis "Reflections

of a Medical Director." Before I getstarted, I must disclose that Dr.Zonana has been one of my mentorssince I had the privilege of trainingunder him at Yale's forensic fellow-ship. Like many he has trained, hehas imprinted on me a permanentimpression of the ideal standard for aforensic psychiatrist. He has made adifference in the personal and profes-sional lives of so many in our field.In fact, on April 22 and 23, 2010, theLaw and Psychiatry Division of YaleSchool of Medicine Department ofPsychiatry hosted a Festschrift tohonor and pay tribute to his contribu-tions to forensic psychiatry. Forensicscholars, faculty, and former fellowsacknowledged his influence. Muchof the Festschrift and his contribu-tions are captured in the December2010 issue of the Journal of Ameri-can Academy of Psychiatry and theLaw (Volume 38, Number 4). Thisnewsletter article can hardly do jus-tice to adequately reflect Dr.Zonana’s career and accomplish-ments.For those unfamiliar, a description

from the Annual Meeting Programsummarizes his numerous accom-plishments: "Howard Zonana, MDhas been Medical Director of AAPLsince 1995. He is only the secondMedical Director in AAPL's historyand has seen many changes in his 18years of service to AAPL. Since1968 he has been on the faculty atYale University School of Medicineand is Professor of Psychiatry and anAdjunct Clinical Professor of Law atthe Yale Law School. Since 1969 hehas been the forensic psychiatry resi-dency-training director at Yale withapproximately 75 graduates from the

program. He has also been active inthe American Psychiatric Associationas Chair of the Committee on JudicialAction and Chair of the Council ofPsychiatry and Law. He also hasserved as a federal court monitor atthe York prison for women in CT,regarding standards of mental healthcare from 1987 to the present. Hewas a member of the ABPN groupwriting the Board exam for ForensicPsychiatry for 15 years, includingservices as Chair. He is a recipient ofAAPL's Golden Apple, Red Apple,and Seymour Pollack Awards. In2012 he won the Isaac Ray award ofthe APA-AAPL."Now back to the AAPL luncheon…

In the style of Bravo TV’s "Inside theActor's Studio," Drs. Stuart Anfangand Barry Wall, Co-Chairs of the Pro-gram Committee, invoked the spiritof James Lipton as they interviewedDr. Zonana for a luncheon version of"Inside the Medical Director'sOffice." The interview was filledwith playful moments that mimickedLipton's style of questioning (e.g.,"What is your favorite word?") andmore serious reflections of Dr.Zonana's experiences with AAPL, theAPA, and the AMA.First, some humorous insights

delivered in response to questionsthat James Lipton would have askedhad he conducted this interview.When Dr. Zonana was five, he want-ed to be an archeologist, and hewould never want to be a boxer. Hisfavorite sound is Mendelsohn's violinconcerto, while he despises the clang-ing noises of children’s toys. If hehad to have a mental illness, hewould want to have hypomania.Things that turn him on emotionallyand spiritually include hiking, music,and sailing. Slapstick comedy, how-ever, is a turn-off. When asked, "Ifheaven exists, what would you like tohear God say as you crossed thepearly gates?” he responded, "I've gotan evaluation for you to do."Now, some serious reflections

about Dr. Zonana's career. His workwas captured by themes of dedica-tion, service, justice, and persever-ance. He worked alongside otherphysicians to improve the profession-alization of our organization and"enhance the stature of our subspe-cialty." While training at Massachu-setts Mental Health Center in Bostonmany years ago, he realized thatforensics, at that time, was a "waste-land" with dubious ethical and legalpractices. He worked for two yearsof service in the training branch ofNIMH. He joined the faculty at Yaleand soon worked with APA to revisethe civil commitment laws. Whenthe NIH offered grants for seed pro-grams, he started a forensic psychia-try fellowship in 1979. He had aninstrumental role in developing ethicsguidelines for AAPL, receiving theapproval of forensic psychiatry as aspecialty, and later the creation of aBoard. He brought Jackie Colemanto AAPL. He worked for three yearswith Drs. Ken Hoge, Paul Appel-baum, and Bob Phillips to get a meet-ing with the AMA’s Council on Ethi-cal and Judicial Affairs (CEJA),because he realized that CEJA ethicsopinions have a huge effect on thepractice of forensic psychiatry. Dr.Zonana knew that AAPL needed tohave a voice within the AMA andplay a more active role.It would be an understatement to

simply state that Dr. Zonana's tirelessservice to our field has had a lastingimpact. His work has shaped ourpractice, our profession, statutes, andpolicy. For those fortunate enough to have

been trained or taught by him, Dr.Zonana's dedication to education alsohas had permanent effects. He hasled the efforts to improve the positionof forensic psychiatrists, clinicians,patients, and defendants alike on botha local and a national level. Quitesimply, the entire profession is grate-ful for his tireless work and dedica-tion. The next Medical Director forAAPL will certainly have big shoesto fill. If those shoes are anythingsimilar to Dr. Zonana’s, they shouldbe hiking boots ready to lead the wayup the nearest mountain.

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM



Danalynn Recer, JD: Capital Defense and Forensic Psychiatry: One Capital Defender’s ViewSylvester Smarty MD


The 44th Annual Meeting of theAmerican Academy of Psychiatry andthe Law (AAPL) was held at the opu-lent Hotel Coronado, in San Diego,California from October 24 to 27,2013. I attended the Saturday lun-cheon talk during which the topic ofdiscussion was capital defense andhow it applied to forensic psychiatry.The scheduled guest speaker wasJudy Clarke, a nationally renowneddeath penalty defense attorney. How-ever, she could not fulfill that obliga-tion because of an unforeseen con-flict. In her place, the discussion wasmoderated by Danalynn Recer, adefense attorney against the deathpenalty based in Texas.Ms. Recer was introduced to the

audience by Stuart Anfang. He toldthe audience that she holds a BA,MA and JD from the University ofTexas. Initially, she worked as a Miti-gation Investigator, before working asan attorney for the Texas ResourcesCenter, an organization that is com-mitted to the repeal of the deathpenalty in Texas. In 2002, she found-ed the Gulf Region Advocacy Center(GRACE) an organization that hasplayed an important role in the estab-lishment of current standards for themitigation of death penalty cases.Ms. Recer started her talk by apolo-

gizing for not being Judy Clarke, butpromised to do her best to emphasizeimportant death penalty issues andhow they applied to the forensic psy-chiatrist. She suggested that althoughmental health does play a very impor-tant role in the adjudication of deathpenalty cases, forensic psychiatry wasoften “misused” by the state to high-light negative aspects of the defen-dant’s history, which will be favor-able towards imposition of the deathpenalty. She promised to try to guidethe audience through the rigorousprocess involved in the mitigation ofdeath penalty cases so as to helpforensic psychiatrists have a better

understanding oftheir role in theprocess.Ms. Recer

informed theaudience that thedeath penalty wasabolished by the

United States Supreme court in 1972because it was “arbitrarily adminis-tered.” At that time, there was no“rational way” of predicting whowould get the death penalty followinga capital conviction. This was evidentfrom the fact that some individualswho had been convicted of veryheinous capital offenses were not sen-tenced to die, while others who com-mitted less heinous capital crimeswere executed. There was the beliefthat race played an important role inthe imposition of the death penalty asevident from the fact that minoritieswere more likely to be sentenced todie than whites. When the SupremeCourt reinstated the death penalty in1976, it was against the argument thatrace was an important factor in thedetermination of who gets the deathpenalty. As a result of “the race argu-ment,” they rejected the death penaltystatutes of states with “mandatorydeath penalty statutes.” The reasoningwas that mandatory sentences did nottake into account the “individual fea-tures of the defendant.” They alsointroduced the idea of “guided discre-tion” in the administration of thedeath penalty.Ms. Recer explained that the princi-

ple of “guided discretion” involvedtwo broad concepts. One was the“objective criteria” which grantedcourts “unlimited power to imposethe death penalty.” The other was“subjective discretion” which grantedthe courts “unlimited power to dis-pense mercy and justice.” The role ofa competent mitigation expert was topresent evidence that would allow thecourts to exercise its power to show

mercy to the defendant.According to Ms. Recer, the United

States Supreme Court in lifting theban on the death penalty stipulatedthat there has to be a narrowingprocess amongst individuals suspect-ed of committing the most heinouscapital crimes. Such a process wouldallow the death penalty to be fairlyapplied. In order to help with the nar-rowing process, the defense shouldnot try to counter the prosecution’sportrait of the defendant as “all bad”with a picture of “all good.” Rather,the defendant should be presented asa human being with flaws like any-body else, so that the jury can devel-op some form of emotional connec-tion to the defendant, thereby makingit easier for them to justify sparinghis/ her life. She described this senseof emotional connection and identifi-cation with the defendant as “neigh-borliness.” The more neighborliness ajury has for a particular defendant,the less likely they would recommendthe death penalty.Ms. Recer gave some examples of

the role of neighborliness in everyday human interaction. She recalledthe witch trials of the seventeenthcentury, noting that those that werekilled were more likely to be thosewho did not fit into the mainstream ofsociety. They included foreigners,people with uncommon accents andthose who lived outside the city lim-its. Based on the same principles, shesurmised that jurors in death penaltycase would reach out and show mercyto defendants that they connect withemotionally. The job of the mitigationspecialist is to help the jurors see thedefendant in a more positive way andhelp them develop more neighborli-ness with the defendant.Ms. Recer referenced the results of

the “Capital Jury Project,” a collec-tion of research studies on the deci-sion-making of jurors involved indeath penalty cases in the UnitedStates. The results suggest that thetwo most important factors in deathpenalty jury decisions is remorse andthe capacity for redemption. The jurywould often spare a defendant if they

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM



perceive that he/she has the capacityto love and if they perceive thathe/she is loved. The higher the levelof neighborliness, the greater thelikelihood that the jury will dispensemercy.Ms. Recer informed the audience

that while the defense tries toincrease the degree of neighborlinessof the defendant for the jury, theprosecution often tries to present thedefendant as very bad. To this end,the prosecution will often call upon aforensic psychiatric expert to attemptto run around the 8th amendment.She gave the example of the case ofEstelle v. Smith (United StatesSupreme Court, 1984) in which theissue of future dangerousness wasraised as an objective requirement forimposing the death penalty. Foryears, the prosecution focused theirdeath penalty phase strategy on high-lighting the most aggressive aspectsof the crime as well as suggesting thedefendant could not be trusted not toengage in similar behaviors in thefuture. To support their argument, theprosecution would often seek the ser-vices of a forensic psychiatrist. Theywould often “goad” the psychiatristinto disregarding the “humanity” ofthe defendant, with the aim of usingthem to avoid the requirements of the8th amendment of the constitution.Most psychiatric experts are oftenoblivious to the way their testimoniesare used to “run around” the 8thamendment. She opined that it wasfundamentally wrong for any expertto focus on only the material aspectsof the crime without consideringother individual factors of the defen-dant before predicting that the indi-vidual is not capable of ever chang-ing.Ms. Recer then discussed the

American Bar Association (ABA)standards for capital representation.She indicated that per case law, capi-tal punishment defense must beginwith a culturally competent bio psy-chosocial history through multicenter,multigenerational and multisystemlife history investigation. Lawyers

cannot choose to do a thorough lifehistory investigation and clients can-not waive their rights to have thisdone. One area of frequent conflict isoften the “Sell” issue involving com-petency to be executed and forcedmedication to ensure competency.She admitted that this was often adifficult scenario and there was noclear case law for reference. Her rec-ommendation was that mitigationinvestigation should still proceedeven if the defendant is not compe-tent.

Ms. Recer expressed an observationthat there is often the assumption inthe forensic psychiatric communitythat people facing the death penaltyare always malingering. However,based on her experience, most peoplefacing the death penalty are oftenashamed of their crimes and are terri-fied of the trial process exposingthem as weak. For this reasons theywould often chose the death penaltyrather than spend the rest of their lifein prison. As such, they would oftenfight to prevent the revelation ofhumanitarian information about themduring the death penalty phase oftheir trial. To this end, they might firetheir attorneys and go pro se duringthe death penalty phase of their trial.Ms. Recer cautioned that the

biggest mistake the defense can makeis to bring in a forensic psychiatristduring the mitigation phase prior toobtaining a detailed life history. Thisis because in forensic settings, theonly source of information is oftenthe defendant. However, investigatorstrained to gather a detailed life histo-

ry would often talk to several indi-viduals including members of thedefendant’s family, friends, acquain-tances, neighbors, classmates, teach-ers and others that have beeninvolved with them at any time intheir lives. She gave the example of ayoung black male who was convictedof murder in Louisiana. During thesentencing phase, she presented testi-mony from several people from thedefendant’s church and neighborhoodand was able to avoid the deathpenalty without any mental healthtestimony. Avoiding extensive mentalhealth testimony is important becausemitigation is not to explain the crime,but to present the other side. Adetailed life history is usually madeup of several little stories that helpsto change the context of the crime.The forensic psychiatrist who hasaccess to a detailed life history willbe an asset to the defense as they willutilize the available information tobetter conceptualize the backgroundof the crime to the jury since mitiga-tion investigators themselves are nottestifying experts. In specific casesinvolving individuals suffering fromcertain mental health conditions,detailed mental health testimonybecomes important. An example willbe that of an individual sufferingfrom a developmental disability.Ms. Recer rounded out her discus-

sion by taking questions from theaudience. To a question about thenature of life history investigations,she suggested that such investigationshave to be “culturally competent.” Bythis, she meant that the investigatordoes not have to live in the defen-dant’s culture, but must “figure outways to better understand the defen-dant’s culture so that they can be ableto help them.” Another individualwanted a better explanation of theterm “neighborliness.” She explainedthat every case was different. The jobof the defense is to help the jury seethe human qualities of the defendant.This approach to mitigation wasarrived at after the Capital Jury Pro-ject showed that traditional mitiga-tion was not effective because it“over pathologizes the defendant.”


Capital Defensecontinued from page 9

“The jury would oftenspare a defendant if theyperceive that he/she hasthe “capacity to love”and if they pereceive thathe/she “is loved.”

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM


CHILD COLUMN

I Have Two MommiesStephen P. Herman MD


The US Censusof 2000 revealedthat two milliongay and lesbianpeople were con-sidering adop-tion. At least65,000 adopted

children were living with a gay orlesbian parent. California reportedmore than 16,000 children raised bygay or lesbian parents. At the time ofthe census, California was the statewith the highest rate of gay and les-bian parents in the country. Over fourpercent of all adopted children in theUnited States are raised by gay andlesbian parents. One can only assumethat in the census of 2010 these sta-tistics would be higher. With 16states plus the District of Columbianow allowing same-sex marriages,more married gay and lesbian cou-ples are looking to adopt children.Hawaii’s law – the most recent –took effect on December 2. Accord-ing to some statistics, slightly morethan fifty percent of all Americansfavor gay and lesbian marriage. Formost people, finally, the idea thatbeing gay or lesbian means one isalso a pedophile has, fortunately, allbut disappeared from the landscape.For gay men, whether married or

not, one or both of the couple mustadopt to have children of their own.With lesbian couples of child-bearingage, it is common for one of the cou-ple to be the biological mother. Weknow the children of lesbian couplesgrow up with psychological issues atthe same rate as children with hetero-sexual parents. They are not at risksimply because their parents are gay.But couples break up, marriages fail,and, for a small percentage of cou-ples, custody and visitation conflictsarise just as they do with heterosexu-al parents.Some years ago, I was asked to

become involved in a lesbian breakup(before same-sex marriages wereallowed anywhere) in which the bio-logical mother refused to allow her

ex-partner to see their child. Thechild spoke of having two mommiesand was clearly and deeply attachedto both of her parents. The biologicalmother’s position was that she wasthe “real” mother and her ex-partnerwas not. The non-biological parenthad not adopted the child and wasaccused by the mother of having nostanding in court. I testified that thechild was equally attached to both ofher mommies and it would be detri-mental to cut off all contact with hernon-biological mother. The judgeagreed and the non-biological motherwas given extensive parenting timewith her child.

But what if the non-biological par-ent adopts the child and the couplebreaks up? Both parents then haveequal status in the eyes of the court –definitely in New York State and else-where. That is when it becomes com-plicated. That is when a custody bat-tle may begin.I had such a case a few years ago.

Once again, the child, who was sevenyears old, was equally attached toboth of her parents. There was no“psychological parent.” This childwas used to having two mommies.This was her life, and she loved bothof them. How does the judge come toa custody decision in this situation? Itis not easy. In my case, the judgeordered joint custody over the objec-tion of the biological mother. Thisarrangement was bound to fail. Theparents had no interest in co-parent-ing. Unfortunately, the case was lostto follow-up. One can only assumethat the child was headed for trouble,

either by acting in and becomingdepressed (as is common in girls inthis situation) or by aggressive behav-ior (more common in boys.)This past fall, a mother donated an

egg to her female partner and, whenthe child was nine years old, the rela-tionship ended. The Florida SupremeCourt ruled unconstitutional a statelaw which significantly limitedparental rights of the donor in such asituation. The egg donor was found tohave no rights in a lower court. Afterthat ruling, the recipient mothermoved to Australia. But the FloridaSupreme Court overturned that deci-sion and found, in a 4-3 ruling, thatthe donor mother had as much rightto her child as the recipient. The courtwrote:

“It would indeed be anomalous if,under Florida law, an unwed bio-logical father would have moreconstitutionally protected rights toparent a child after a one-nightstand than an unwed biologicalmother who, with a committed part-ner and as part of a loving relation-ship, planned for the birth of thechild and remains committed tosupporting and raising her owndaughter.”

The Florida Supreme court invokedthe equal protection provisions ofboth the state and federal constitu-tions.Also this past fall, the Nevada

Supreme Court declared a child bornin that state can have two legal moth-ers. The Court overturned a lowercourt ruling that held a co-parentingagreement signed by both parents wasunenforceable under state law. Thechild was a product of inseminationin one parent with sperm from anunidentified donor. There was dis-agreement between the parents aboutthe motivation behind the original co-parenting agreement. The sperm

“But for forensic childpsychiatrists, same-sexmarriage will bringsame-sex divorces andcustody battles.”

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM


FELLOWS CORNER

As part of theAAPL forensicreview coursethis past October,I had the opportu-nity to attend Dr.Phil Resnick’sexcellent seminar“Insanity Report

Writing Exercise.” Dr. Resnick pre-sented excerpts from a videotapedinsanity evaluation of a defendantcharged with making terroristicthreats and extortion. Participantswere asked to generate and share theiropinions on the defendant’s sanitywith the group. It turned out that theroom was fairly evenly split “sane”vs. “insane,” with both experiencedforensic psychiatrists and greenhornfellows falling in either camp. Askedto present my opinion as a representa-tive for the “sane” side, I was thesubject of a mini-deposition beforethe audience. Yes, the defendant rec-ognized the wrongfulness of hisactions–he admitted that his actionswere against the law and he expectedto be prosecuted if caught. No, I wasnot impressed by his statements thathe felt divinely ordained to wage waragainst the government (after all,that’s not a defense allowed for reli-gious extremist groups). I took myseat and listened as another fellowexplained how she arrived at theopposite conclusion. The defendantheard the voice of God commandinghim to commit the acts for which hewas being prosecuted. The bizarrespecifics of his crime lent credence tothe idea that his actions were drivenby delusions. Clearly he had a men-tal illness which caused him not toknow the wrongfulness of his acts.Perhaps unsurprisingly, a repeat

polling of the room revealed that ourtestimony had swayed approximatelyno one from their previous position.The fifty-fifty split remained. Dr.Resnick resumed the floor andexplained that he had selected thiscase precisely for its nuance andambiguity, and that it offered anopportunity to examine the issue of

individual bias. Some of us, heexplained, tended to be more “law-and-order types,” placing moreemphasis on individual responsibilityand showing less willingness to let adefendant “off the hook” with aninsanity defense. Likely this focus onpersonal responsibility would mani-fest in other legal scenarios as well,with perhaps a tendency in favor ofdefendants vs. plaintiffs in civil suitsor towards finding defendants compe-tent. Others held opposite biases, Dr.Resnick continued. As mental healthprofessionals, we work to develop

empathy as a professional skill. Weadvocate for the mentally ill in mat-ters of public policy. In dealing withmentally ill defendants, our profes-sionally developed compassion andsense of beneficence can produce abias towards findings of insanity.One of the benefits of working withother fellows and attendings in a fel-lowship is that when multiple evalua-tors come to different opinions aboutthe same cases, we have the opportu-nity to map out where our own indi-vidual set of biases places us in the

spectrum of professional opinions.Just as in psychotherapeutic situa-tions, we cannot eliminate our person-al biases, but by being aware of themwe guard against their leading us toinappropriate decisions.All this makes sense, I thought to

myself, but when did I become a“law-and-order type”? In college, Ivolunteered with Amnesty Interna-tional, participating in demonstrationsagainst the death penalty and writingletters to governments demandingfreedom for prisoners of conscience.I was an avid reader of Noam Chom-sky. At a dinner party last year, Iargued with a friend that it was wrongto see the movie Zero Dark Thirtybecause I had heard that it justifiedtorture for the sake of the War on Ter-ror. Since I of late work in correc-tional psychiatry, I feel compelled tochide family members and acquain-tances who remark that our govern-ment spends too much to provide ser-vices to inmates in jails and prisons.Surely I’m as compassionate as any-one else; just look at my Facebooknews feed! Yet I felt that this particu-lar mentally ill defendant should beheld criminally responsible for hisacts, when half of my colleagues didnot. Of course bias can arise not only

from personal values, but is alsodetermined by our experiences. Wemay unconsciously reflect the collec-tive biases of our communities. I wasraised and educated in Alabama andmoved to the University of Florida formy psychiatric training and my cur-rent fellowship. I have always mademy home in the deep south, an areawhich has a well-deserved reputationfor a more punitive “law-and-order”style of justice. Since 1976, states inthe southern U.S. have executed 1108people, roughly four times as many asthe rest of the nation.1 My currenthome state, Florida, is second nation-wide in number of executions in 2013to date,2 and also achieved nationalprominence (or notoriety) for the“Stand Your Ground” self-defensestatute employed as a defense byGeorge Zimmerman. Though I am

A Surprising BiasMichael Gower, MD


“Throughout my fellow-ship, mentors haveemphasized to me manytimes the benefit of working with mulitple faculty members on evaluations in order to geta sense of each one’s individual style andstrengths and ultimately toassemble parts of eachinto an effective andeclectic personal style.”

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM


FACES OF AAPL

Brooklyn-bornCheryl Wills,MD, caught theforensic bugwhen she pickedup one of RobertSimon’s books.Simon, a former

AAPL president and long-time educa-tor, “thought exactly like I think,” sherecalls. She completed a combinedresidency in general and child psychi-atry at the University of Pittsburghthen made her way to the eminentforensic program at Case Westernwhere she honed her child forensicskills with Phillip Resnick andKatherine Quinn.Back in New York to work with

underserved groups in Buffalo, Dr.Wills conducted her early work in alocal jail, a juvenile detention center,and a long-term inpatient psychiatricunit for children and adolescents.Each setting permitted her to developdifferent aspects of her forensicskillset. She conducted competencyand criminal responsibility assess-ments for adults and children, andfostered rehabilitation of youths withmental disorders and intellectual dis-ability. She also began to introduceforensic psychiatry to residents in aneffort to promote safe and competentclinical practice.Returning to Ohio to work more

extensively in corrections, Dr. Willsspent two formative years in awomen’s prison. The capacity tounderstand how this vulnerable groupmanaged conflict in a more “relation-al” manner reinforced Dr. Wills’appreciation for the gender differ-ences among inmates. The extent oftrauma and the penchant for delayedrather than reactive aggression amongwomen underscored the lack of guid-ance in correctional manuals thatwere written largely for male prison-ers. She also observed the difficultiesyoung women experienced when theywere transferred from juvenile toadult corrections facilities. “Theirimmaturity impeded their capacity to

adapt and they were at least sixmonths behind their same-aged peerswho entered the criminal justice sys-tem directly from the community,”she observes.Dr. Wills’ child psychiatry perspec-

tive was useful here as the threads ofrisk assessment, developmental matu-ration, and adult presentation ofchildhood disorders came together toinform her increasingly nuanced viewof mental health in correctional set-tings. The diagnosis of ADHD was acase in point. The need to uncoverco-morbid illness and develop behav-ioral coping skills allowed for lessreliance on medication – a safer andmore cogent approach for correction-al health. “I never prescribed stimu-lants as this presents a security risk incorrections facilities. Yet, comprehen-sive assessment and treatment result-ed in significant improvement in theemotional stability and well-being ofpatients,” Dr. Wills says. “Womenoften struggle with their roles asmothers, daughters, and partners, andwith rejection and trauma.” Sensitivi-ty to these concerns was critical tofostering therapeutic alliances in thecorrectional setting. These concernsand a higher prevalence of self-injuryamong women combined to under-score the unique nature of the femaleinmate’s experience.Dr. Wills’ forensic mentor, Kathryn

Burns, who also trained at Case West-ern, ultimately recommended that shetake on a leadership position in juve-nile justice in Louisiana in 2001. At atime when advocacy for youths inLouisiana’s juvenile corrections facil-ities was being reinforced by a settle-ment agreement, Dr. Wills brought aclinical and administrative approachto a system that generally addressedproblems by warehousing youthswithout providing rehabilitation. Witha greater emphasis on assessment,treatment, re-training, family involve-ment, and team-building, Dr. Willswas able to influence the juvenilecorrections system to decrease self-injurious behavior and physical

aggression, and raised the quality ofpsychiatric services above the stan-dard of care. Although the systemcould be quixotic, it remained impor-tant to emphasize high standards ofassessment and treatment. When Hurricane Katrina hit, Dr.

Wills was there. “I was supposed towork in the Superdome,” she recalls,“but the communication systembroke down, so I was in my home forfive days.” She witnessed pain, suf-fering, and trauma of unconscionableproportions, yet “the crisis broughtout the best in many people whomade sacrifices to help others.” Itwas a lesson in overcoming obstaclesthat Dr. Wills would take to heart,applying it to challenges in her ownlife and career.Now back at Case Western as

director of child and adolescentforensic psychiatric services, Dr.Wills works to integrate child, fami-ly, and community forensic serviceswithin the university. She is particu-larly proud of a two-year-old clinic atthe juvenile courthouse. Multi-agency collaboration facilitates treat-ment, while community supportengages parents in ways that ensuregreater attention to justice-involvedand at-risk children in the communityand in juvenile detention and correc-tions facilities.Service to the professional organi-

zations has been an important part ofDr. Wills’ experience. Within AAPL,she has chaired the Criminal Behav-ior Committee, co-chaired the Educa-tion Committee, and served on theExecutive Council. She is bookreview editor of the AAPL Journal,and is an alternate AAPL representa-tive to the APA Assembly. As a former member of the APA

Council on Psychiatry and Law shehas advised the DSM-5 workgroupson forensic matters related to mentaldisorders in children and adolescents.Throughout her service to the profes-sional organizations she has endorsedthe importance of systems building,especially in the form of extendingforensic expertise into the communi-ty. She is confident this can onlyimprove assessment, care and reha-bilitation at every level.

Cheryl Wills MDPhilip J. Candilis MD

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM

ALL ABOUT AAPL


AAPLcontinued from page 5

psychiatry. From its beginning, AAPLhad an unofficial liaison with theAPA, primarily through the APA'sCouncil on Psychiatry and the Law,with many AAPL members servingon the Council or its Committees. Ihad the privilege to be AAPL's firstformal liaison to the American Psy-chiatric Association Assembly whenAAPL was asked, along with sevenother psychiatric organizations, topilot such a program. AAPL first onlyhad a voice in the Assembly, but waslater granted voting membership inthe Assembly's Allied OrganizationGroup. AAPL's current Assembly rep-resentatives Deb Pinals and CherylWills, provide critical guidance dur-ing Assembly debates over issues crit-ical to forensic psychiatry. Mostrecently, Deb and Cheryl worked tire-lessly to shepherd the APA's FirearmsPosition Statement through theAssembly. That Position Statementwas approved by the APA Board ofTrustees in December 2012.Somewhat later AAPL obtained for-

mal representation in the AmericanMedical Association. This requiredthat AAPL ensure that at least 35% ofAAPL members also belong to theAMA. After a several-year effort,AAPL was able to join the AMA isnow part of the American PsychiatricAssociation's delegation. AAPL hasbeen ably represented in the AMA byBob Phillips, Barry Wall, Ryan Halland Howard Zonana. They were justjoined by Jennifer Piel. AAPL's repre-sentation in the AMA most recentlyhelped provide testimony and policyreaffirmation on violence and mentalillness. We helped the AMA conveythe message that as many patients aspossible should have treatment, andthat physicians should address gunviolence in their practices and reducestigma surrounding mental illness.Throughout the years, the AAPL

Council has deliberately chosen not totake formal policy positions on issuesrelevant to forensic psychiatry. Thesole exception was a 2001 call for amoratorium on the death penalty, aposition that was retired this year.

Instead, AAPL has chosen to attemptto influence the policy positions ofthe AMA and APA through our for-mal liaisons, and informally throughthe many AAPL members who areactive in both organizations.How AAPL should proceed in poli-

cy areas remains an open question.Should AAPL begin a process to formits own policy statements? ShouldAAPL attempt more formal liaisonsand relationships with other organiza-tions such as the Residency ReviewCommittee (RRC) that sets require-ments for forensic fellowships, or theNational Commission on CorrectionalHealth Care (NCCHC), the organiza-tion that attempts to improve health-care in jails and prisons? At the Octo-ber 2013 Council meeting, AAPL cre-ated a work group to look into thesefuture policy questions. Please feel free to e-mail me your

thoughts on these or any other AAPLissue you feel is important at [email protected], please put AAPL inthe subject line. If we have not met,please introduce yourself to me at ournext meeting. I look forward toworking with all of you as MedicalDirector in the coming years.

Capital Defensecontinued from page 10

This causes confusion in jurors andengenders negative emotions. Theystart to think, “He so different fromus” there by causing them not to haveany difficulty with imposing the deathpenalty.Ms. Recer ended her discussion by

thanking the audience. She hoped thatshe had provided them with enoughinformation that will help them betterunderstand their role in the deathpenalty process.

recipient claimed she had an equalright to parent the child as her ex-partner in view of the co-parentingagreement. The ex-partner’s argumentwas that the agreement was merely

Child Columncontinued from page 11

written to satisfy the adoption agencyand to provide insurance for the child.Confusing? Absolutely. But for

forensic child psychiatrists, same-sexmarriage will bring same-sex divorcesand custody battles. Physicians shouldunderstand the laws of their state anduse that knowledge as a foundationfor the custody evaluation. The sameprotocols published for child custodyevaluations by all the major behav-ioral organizations should be fol-lowed.Finally, the evaluator should know

that a child can have two mommiesand be healthy and well-adjusted.New laws make complicated cases.

YALE UNIVERSITYDEPARTMENT OF

PSYCHIATRYThe Department of Psychiatry,Yale School of Medicine, isrecruiting an academic psychia-trist for appointment at theAssociate/ Assistant Professorlevel, for a position as a consult-ing forensic psychiatrist. Can-didates must have a minimum of5 years experience in forensicpsychiatry, preferably in an aca-demic setting, be licensed topractice medicine in Connecti-cut and be legally employable.The primary clinical workassignment will be the statemental health authority andteaching of fellows in forensicpsychiatry. Interested candi-dates send CV and list of refer-ences no later than February15th to: Howard Zonana, MD,Yale University/CMHC, 34Park Street, New Haven, CT06519. Yale University is anEqual Opportunity/ AffirmativeAction Employer. Qualifiedwomen and members of under-represented minority groups areencouraged to apply.

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM


ASK THE EXPERTS

\

Ask The ExpertsRobert Sadoff MDNeil S. Kaye MD

Neil S. Kaye, MD, and Bob Sadoff,MD will answer questions from mem-bers related to practical issues in thereal world of Forensic Psychiatry.Please send questions [email protected] information is advisory only

for educational purposes. The authorsclaim no legal expertise and shouldnot be held responsible for any actiontaken in response to this educationaladvice. Readers should always con-sult their attorneys for legal advice.

Q. I am asked by a lawyer to eval-uate a man for a not guilty by reasonof mental disease or defect (NGRI) orguilty but mentally ill (GBMI)defense, but the charges are prettyminor. Any advice on how to proceedwould be appreciated.

Sadoff: It isimportant to staywithin one’s areaof expertise. Weare called upon toadvise the attor-ney with respectto the mentalstate of his/her

client. In criminal cases we evaluatethe client’s state of mind at severaljunctions in the criminal procedure: atthe time of the alleged offense, at thetime of arrest, at the time of trial andsubsequent to trial with respect to dis-position. Depending on the diagnosis,we advise with respect to treatment.If the client has a chronic mental ill-ness that requires treatment, weemphasize the medical needs; if theclient had an acute psychotic disorderat the time of the alleged offense thatrendered him/her legally insane in ouropinion, but the psychosis has remit-ted and the defendant is currentlycompetent to stand trial and is notpsychotic and does not need medicaltreatment, we can emphasize the legalissues.The lawyer and client need to make

their decisions based on a number offactors, one of which is our examina-

tion, evaluation and consultation. Wecan be very helpful in such casesdepending on the diagnosis and rec-ommendation for treatment. Sometimes we have no control of

the matter. In one similar case, Iexamined for the prosecution anelderly man charged with a relativelyminor offense and found him to meetthe legal criteria for insanity in thatjurisdiction. Normally, the defensecounsel would be pleased with suchan opinion about his client, butdefense counsel knew if he werefound to be legally insane, he wouldlikely spend more time in the hospitalthan he would spend in jail for thesame offense. Without consulting me,the prosecutor and the defense coun-sel worked out a negotiated plea thatallowed the defendant to receive pro-bation with treatment. The prosecutorgot his conviction and the defendantgot a reasonable disposition. It allworked without my testimony. Our input may be very helpful in

such cases in order for the lawyer tomake the best decision for the client.We do so by maintaining our role asmedical expert and consultant.

Kaye: This is notan uncommon sit-uation. Lawyersgenerally willfocus on the abili-ty to get a notguilty verdict,often missing thatif the charges areof a “low level,” the client may endup spending more time “locked up” ina mental hospital than would be spentunder a plea bargain or even undersentencing guidelines if found guiltyof the original charges. In moststates, NGRI acquittees are nowgiven the equivalent of an “indefi-nite” sentence where the law prohibitsrelease from a secure mental facilityuntil the treatment team certifies thatthe person no longer poses a dangerto the public. GBMI was conceived in the after-

math of the Hinckley case with theidea that mental illness could be takeninto consideration without it beingexculpatory and with the belief thattreatment would be more readily

available in prison for the person. Infact, there is little evidence that aGBMI verdict results in treatment anydifferent from a guilty plea itself. Aperson so labeled might get additionaltreatment in prison but might alsoface discrimination and taunting byother inmates. There remains a possi-bility that down the road when a pris-oner applies for parole or pardon, thatthe GBMI finding might afford someleniency. This has yet to be shownand many experts question the valueof the GBMI defense.

Sadoff/Kaye: Take home point:Forensic psychiatrists often havemore experience with a mental healthdefense than the attorney for whomthey are working. Sharing your pro-fessional opinion and advice is appro-priate, but remember, you are a doc-tor and not a lawyer. If the lawyerseems open to being educated aboutthis dilemma i.e., civil liberty vs. anot guilty finding, proceed cautiouslyand deferentially.

Nominations Sought

The Nominating Committee ofAAPL will be presenting a slate ofOfficers and Council candidates atthe Semiannual Business Meetingin May, 2014.Any regular AAPL member who

would like to be considered for aposition should send a letter to theAAPL Office with a statementregarding his/her interest in servingand a brief summary of activitieswithin AAPL.Open officer positions are: Pres-

ident-elect (one year); Vice-Presi-dent (one year); Secretary (oneyear). Councilors serve for threeyears. Attendance at both theAnnual and Semiannual CouncilMeetings is expected of all officersand councilors.Please send statements of inter-

est and activity to Robert Wein-stock, MD, Chair, NominatingCommittee, AAPL, P.O. Box 30,Bloomfield, CT 06002 by March31, 2014.

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM

PHOTO GALLERY


Dr. Renée Binder (right), with Dr. Ken Busch, recipient of the Serviceto AAPL Award.

The Program Chairs, Drs. Wall and Anfang, enjoy movie night.

Getting together at the committee dinner.Dr. Binder with Dr. Richard Martinez, recipient of the award for Out-standing Teacher in a Forensic Fellowship Program.

Lunch head table with (left-right) Drs. Janofsky, Weinstock andAnfang.

Dr. Andrew Kaufman (right) presents the Young Investigator Awardto Dr. Jennifer Piel.

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM


PHOTO GALLERY

Dr. Pinals thanks the AAPL committee members.Drs. Wall and Anfang set the tone for the meeting.

Rappeport Fellows with Committee Co-Chairs Drs. Britta Ostermeyer(top left) and Susan Hatters Friedman (bottom left).

Dr. Pinals and Zonana. Dr. Zonana holds his award of appreciationfor his years served as AAPL Medical Director.

Colligiaty during a poster session. Dr. Andrew Kaufman presents the 2012 Poster Award to Dr. BryanShelby.

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM


ALL ABOUT AAPL - Committees

The local, state, and national mediaoften relay concerns that youth in thechild welfare system (a.k.a. “fosteryouth”) are being “over medicated”or inappropriately medicated. Giventhe disruption in family bonds andhigh rates of traumatic exposures, itis not surprising that youth in fostercare and juvenile detention facilitiescommonly experience social, emo-tional, and behavioral problems. Ide-ally, psychotropic medications areprescribed after a thorough assess-ment and, if appropriate, trials of psy-chotherapeutic or behavioral inter-ventions. Such medications shoulddecrease the frequency and severityof significant psychiatric symptomsand allow for the youth to engagemore fully in much needed psy-chotherapeutic treatment. For fosterand detained youth (i.e., youthdetained in juvenile justice facilities),however, information often is diffi-cult to access and stepwise, algorith-mic treatment may be neither prag-matic nor available. In these circum-stances, government oversight (typi-cally via an independent consultationwith another psychiatrist) can behelpful and important.Most studies on the use of medica-

tions in foster youth utilize data fromMedicaid claims. In its 2008 report,which surveyed Medicaid claimsfrom Florida, Maryland, Massachu-setts, Oregon, and Texas, the GeneralAccounting Office showed that 21%to 39% of foster youth received a pre-scription for a psychotropic medica-tion compared to 5% to 10% of chil-dren not in foster care.1 The Agencyfor Healthcare Research and Quality(an agency within the United StatesDepartment of Health and HumanServices) funded a study of antipsy-chotic prescribing based on Medicaidclaims from 13 states which foundthat utilization of antipsychotics in2007 was much higher among fosteryouth than among non-foster youth—

12.4% versus 1.4%, respectively.2Although Medicaid data provideabundant information about the useof psychotropic medications in fosteryouth, little data exist about the useof psychotropic medications amongdetained youth who are generally notMedicaid-eligible while detained.Existing studies analyze data from aparticular state or local jurisdiction,and knowledge of general nationaltrends in “juvenile justice” psy-chotropic prescribing is lacking. Another important issue is the

increase in Medicaid spending onpsychotropic medications over thepast decade. For example, Minneso-ta’s Medicaid spending on antipsy-chotic medications for childrensurged from $402,000 in 2000 to $6.8million in 2006. Interestingly andperhaps of concern, primary care doc-tors wrote many of these prescrip-tions. Recognizing that the primarycare doctor is often the first to see thepatient, the Mayo Clinic established aconsultation service so child and ado-lescent psychiatrists could provideguidance to primary care physicians.3Critics of child and adolescent psy-

chiatry have offered several hypothe-ses to explain the increase in psy-chotropic prescriptions in youth, andfoster youth in particular. Theseinclude: utilizing flawed diagnosticmethods, pathologizing normalbehavior, succumbing to the influenceof the pharmaceutical industry, failingto provide alternate psychosocialtreatments, and not resisting financialincentives to medicate. Other possiblecontributing factors include: pooraccess to therapists trained in evi-dence-based treatments, lack of coor-dination of available services, overallshortage of child psychiatrists, andinsufficient state oversight of psy-chotropic prescribing to youth in statecustody (i.e., foster youth anddetained youth). Conversely, manyfoster youth have unmet mental

health needs and may not be receiv-ing pharmacotherapy, although theycould benefit from it. The United States legislature recog-

nized and addressed some of theseconcerns in passing the Child andFamily Services Improvement andInnovation Act of 2011. This actmandated that states use both trainingand technical assistance to overseepsychotropic prescribing and thatthese efforts be documented in thestates’ strategic child welfare sys-tems’ plans. In these plans, each statemust include an outline of: (1) proce-dures to monitor and treat “emotionaltrauma” associated with a child’smaltreatment and removal from his orher home; and (2) protocols for theappropriate use and monitoring ofpsychotropic medications. The Chil-dren’s Bureau instructed states toaddress the following areas: (1) Com-prehensive and coordinated screen-ing, assessment, and treatment plan-ning; (2) informed and shared deci-sion-making and methods for ongo-ing communication between the pre-scriber, the child, his/her caregivers,and all other service providers; (3)effective medication monitoring; (4)availability of consultation by aboard-certified or board-eligible childand adolescent psychiatrist; and (5)mechanisms for accessing and shar-ing accurate and up-to-date informa-tion and educational materials relatedto mental health and trauma-relatedinterventions. In April 2012, theAdministration on Children and Fam-ilies (ACF) released the InformationMemoranda on “Promoting the Safe,Appropriate, and Effective Use ofPsychotropic Medications for Chil-dren in Foster Care.” To help statescreate and implement oversight pro-tocols, ACF convened a summit inAugust 2012: “Because Minds Mat-ter: Collaborating to Strengthen Man-agement of Psychotropic Medicationsfor Children and Youth in FosterCare.” This summit brought togetherrepresentatives/leaders from the childwelfare, Medicaid, and mental healthsystems from all fifty states, the Dis-trict of Columbia, and Puerto Rico.

Overseeing Psychotropic Medicationsfor Youth in State CustodyLoretta A. Sonnier MD, Cory Jacques MD, and Christopher Thompson MDChild and Adolescent Committee


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In their 1954 decision in Massey v.Moore, the Supreme Court held thatit would be a denial of due process torequire an insane man to stand trial ina state court without counsel. Theopinion read, “No trial can be fairthat leaves the defense to a man whois insane, unaided by counsel, andwho by reason of his mental condi-tion stands helpless and alone beforethe court.” As we close 2013, theyear that marked the 50th anniversaryof Gideon v. Wainwright, the histori-cal Supreme Court decision holdingthat criminal defendants have a rightto counsel at state expense, we do sowith the news that the promise ofGideon has been extended to non-cit-izens with serious mental disordersfacing deportation who no longermust stand hopeless or alone beforethe court. In 2010, the American Civil Liber-

ties Union, Public Counsel, and acoalition of organizations filed Fran-co-Gonzalez v. Holder, a class actionlawsuit brought to ensure counsel fornoncitizens with serious mental disor-ders that render them incompetent torepresent themselves in removal(deportation) proceedings. The classmembers made up a compellinggroup of immigrants, many of whomwere permanent legal residents of theUnited States, who because of psy-chotic disorders or intellectual dis-abilities were incapable of advocatingfor themselves in a system wherethey had no right to counsel. Before Franco-Gonzalez v. Holder,

Immigration and Customs Enforce-ment, the largest arm of the UnitedStates Department of HomelandSecurity, deported most noncitizenswith mental disorders who remainedunidentified in the system andremoved in proceedings that theycould not understand or participate in.Others were held for years becauseimmigration judges were unwilling toproceed against them. One such case

where access to lawyers is extremelylimited. In Mr. Franco’s case,because he had no attorney and theGovernment did not provide him one,there was no one to seek redress forhis detention. Though there was anactive legal orientation program in atleast one of the facilities in which hewas held, he had never signed up andcould not even write his full name.Mr. Franco has been one of many.

On any given day, thousands ofimmigrants with serious mental disor-ders are held in immigration deten-tion, most of them without access to alawyer. As we so often see, untreatedor under-treated chronic serious men-tal disorders lead to encounters withlaw enforcement and in turn Immi-gration and Customs Enforcementcustody via cooperation between fed-eral and local authorities. In the sameway that persons with mental disor-ders are over-represented in the crim-inal context, they are also over-repre-sented in removal proceedings andimmigration detention.Franco-Gonzalez v. Holder, howev-

er, has brought change to the horizon.In April of 2013, the Federal DistrictCourt ordered legal representation forimmigrant detainees with mental dis-orders and Judge Dolly M. Geeissued a permanent injunction hold-ing that the Rehabilitation Actrequires the government to provideclass members with a Qualified Rep-resentative in their immigration pro-ceedings, the first opinion recogniz-ing the right to appointed counsel inimmigration proceedings for a groupof immigrants. The permanent injunc-tion also requires the government toprovide bond redetermination hear-ings for class members who havebeen detained for more than 180days. Although this ruling is not yetpublished, the district court did pub-lish one of its preliminary injunctionrulings at Franco-Gonzales v. Holder,727 F. Supp. 2d 1034 (C.D. Cal.2010)In anticipation of the Court’s

injunction, the Governmentannounced that it will develop poli-cies nationwide that address the three

Franco-Gonzalez v. Holder: The Promise of Gideon for Immigrants with Serious MentalDisordersKristen Ochoa MD, MPH, Human Rights and National Security Committee

was Mr. Franco-Gonzalez himself, aman with moderate intellectual dis-ability who was detained for four anda half years without an opportunity toask a judge for bond despite the factthat his case was administrativelyclosed and there were no openremoval proceedings pending againsthim. About two months into deten-tion, Mr. Franco’s removal proceed-ings were administratively closedbecause of a competency evaluationwhich stated “he had no clue as towhat type of court Your Honorpresided over, what the possible out-comes might be, or how to defendhimself at trial.” How can an incompetent person

remain in detention for four and ahalf years with no procedures inplace to evaluate his restorability orrelease him? How we got to such aplace is the result of two aspects ofour immigration removal system: Amandatory detention statute passed in1996, requires that many people,including those with certain minorcriminal convictions, be detainedthroughout their removal proceedingswithout the opportunity to seekrelease on bond before a judge.Because proceedings may takemonths or years, this has contributedto a significant increase in the num-ber of immigrants detained on anygiven day. Because of mandatorydetention, the immigration detentionsystem has grown exponentially, with9,011 detainees per day in federalimmigration custody in 1996 and33,330 detainees per day in 2011. The other aspect of our immigration

removal system that led us to thisplace is the lack of a right to counselat government expense, the sameright that millions of criminal defen-dants in our country receive. Themajority (about 86%) of immigrantsin detention have no lawyer. Theyoften do not have the resources tohire a lawyer or are held in locations

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM



American Medical Association: 2013 Annual Meeting HighlightsRobert T.M. Phillips MD, PhD, Delegate; Barry Wall MD, Alternate Dele-gate; Ryan Hall MD and Jennifer Piel MD, JD Young Physician Delegates;Howard Zonana MD, Medical Director

The American Medical Associa-tion’s (AMA) Interim Meeting focus-es on advocacy issues. A chief AMAfocus over the past decade has beenfinding a permanent solution for theSustainable Growth Rate (SGR) for-mula, part of a complicated mecha-nism that determines physicians’Medicare payments. This year’s Inter-im meeting included robust discus-sion on the SGR because of newsfrom Capitol Hill that a legislativeproposal is in play to end it, but withsignificant cost offsets, including aten-year freeze on future physicianpayment increases to help pay for theaccumulated debt from postponingSGR cuts in the past. Ultimately,there was collaboration and consen-sus within the House of Delegates toallow the Board to negotiate for thebest possible outcome. That said, theHouse of Delegates added languageto resolutions still calling for privatecontracting and for the AMA to con-tinue to advocate for future physicianpayment increases. At the time of thisreport deadline a Congressional bipar-tisan proposal is still a work inprogress, but comments offered byphysician groups appear to be underserious consideration as SGR repeallegislation is being seriously consid-ered and prepared for mark-up inearly December. Psychiatric highlights of the Interim

meeting include the following:AMA Code of Ethics modernization

progress: For the first time since1957, the AMA Code of MedicalEthics will be comprehensivelyupdated for clarity, consistency, rele-vancy and ease of use. The AMACouncil on Ethical and JudicialAffairs (CEJA) leads this project,which involves reorganizing the Codeand reformatting nearly every ethicalopinion. The old code consisted ofnine mixed chapters, and the newcode is divided into eleven intuitive-ly-divided chapters arranged around

core topics. Each ethical opinion willidentify the foundational ethical val-ues of the opinion, define the generalcontext of the guideline, and set outexplicit ethical responsibilities byproviding specific guidance. Thisprocess has been in the works for fiveyears, and APA and AAPL have hadpreliminary input. What remain aretwo public comment periods, postingof an online draft and, ultimately, afinal draft for action by the AMAHouse of Delegates in November2014.

Ethical Opinions on Gifts to Physi-cians from Industry: The House ofDelegates approved a CEJA report ongifts to physicians from industry. Itincludes statements that physiciansshould decline cash gifts in anyamount from an entity that has adirect interest in physician treatmentrecommendations and to decline anygifts for which reciprocity is expectedor implied. The report does notaddress accepting drug samples,which can be of significant value;CEJA will address this later in a sepa-rate report. Call for national policy on drug

abuse: The House of Delegatesapproved a report by the AMA’s

Council on Science and Public Healthurging the formation of a comprehen-sive national policy on drug abuse. Itspecifically advised that the federalgovernment and the public shouldacknowledge that federal efforts toaddress illicit drug use via supplyreduction and enforcement have beenineffective. The report calls forresearch to determine the conse-quences of long-term cannabis useand supports the modification of stateand federal laws to emphasize public-health strategies to reduce cannabisuse. Reproductive parity and right of

physician conscience: The House ofDelegates passed a number of resolu-tions ensuring that hospital mergersand acquisitions do not lead torestrictions on women’s reproductivehealth care services. CEJA is workingon a report addressing the implica-tions for patients when a physician’spersonal moral beliefs are in conflictwith patient choices, especiallyregarding abortion. Other subjects addressed at the

meeting related to gun-safety coun-seling in undergraduate medical edu-cation, a call for Congress to supportfurther research into gun violenceepidemiology, promoting healthawareness and preventive screeningsfor individuals with disabilities, andproviding culturally-competent men-tal health care for at-risk communi-ties. This was Dr. Zonana’s last AMA

meeting, as he has retired as AAPL’sMedical Director. AAPL hosted areception at the AMA for his years ofservice to AAPL as Medical Directorand past President, and for his yearsin AMA as Alternate Delegate andAAPL Medical Director. The currentAMA President and Immediate PastPresident, as well as members of theAMA Board, attended the reception.The large number of attendees anddignitaries attest to the high esteem inwhich Dr. Zonana is held, and to theimportance of AAPL’s role in theAMA House of Medicine. In addi-tion, APA hosted a separate receptionfor James Scully, M.D., for his yearsof service to the AMA as the MedicalDirector and CEO of APA.

“The report calls forresearch to determinethe consequences oflong-term cannabis useand supports the modifi-cation of state and feder-al laws to emphasizepublic-health strategiesto reduce cannabis use.”

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM



The Diagnostic and Statistical Man-ual, now updated to the 5th edition,has numerous changes that impactgender related issues. In this article,the Gender Issues Committee willattempt to clarify these changes andhelp readers understand the impact ofthese modifications. We will specifi-cally address the new elements in thediagnosis of eating disorders, para-philic disorders, and gender dyspho-ria (previously called gender identitydisorder), and the addition of premen-strual dysphoric disorder.

Feeding and Eating DisordersThe DSM-5 includes several

changes to the chapter devoted toEating Disorders. The most consider-able changes include the addition ofBinge Eating Disorder and revisionsto the diagnostic criteria for BulimiaNervosa and Anorexia Nervosa. Inthe DSM-IV, Binge Eating Disorderwas diagnosable only as Eating Dis-order Not Otherwise Specified(NOS). Prompted by studies suggest-ing that many individuals diagnosedwith Eating Disorder NOS actuallyhave Binge Eating Disorder, theDSM-5 now recognizes Binge EatingDisorder as its own diagnostic entity.Binge Eating Disorder is character-ized by recurring episodes of eatingsignificantly more food in a shortperiod of time than most peoplewould eat under similar circum-stances, with episodes marked byfeelings of lack of control. Personswith Binge Eating Disorder may eattoo quickly, even when not hungry,and may eat alone to hide binge-eat-ing behaviors which are often accom-panied by feelings of guilt, embar-rassment or remorse. The disorder isassociated with marked distress, andepisodes occur, on average, at leastonce a week over the course of atleast three months. Binge Eating Dis-order is distinguished from mereovereating in that it is more severe,less common, and associated withmore significant psychological and

Gender Oriented Changes in DSM-5Anna Glezer MD, Aimee Kaempf MD, Susan Chlebowki MD, Gender Issues Committee

physical problems.The criteria for Bulimia Nervosa

and Anorexia Nervosa have severalsmall but important changes. ForBulimia Nervosa, the frequency ofbinge eating and compensatorybehaviors required for diagnosis hasbeen reduced from twice weekly (asproscribed by the DSM-IV) to onceweekly. The most notable change forAnorexia Nervosa is the deletion ofthe DSM-IV requirement of amenor-rhea which could not be applied tocertain patient groups includingmales, pre-menarchal females,females taking oral contraceptivesand post-menopausal females. A stat-ed goal of the above changes is toprovide diagnoses that more accurate-ly describe the signs and symptomsexhibited by individuals with eatingdisorders. With these changes, fewerpatients will be diagnosed as EatingDisorder Not Otherwise Specified,and more will have a specific diagno-sis to help guide treatment.Gender Dysphoria

The DSM-IV described GenderIdentity Disorder as: a strong and per-sistent cross-gender identificationcoupled with a persistent discomfortwith his/her sex or sense of inappro-

priateness in the gender role of thatsex. In making the changes for DSM-5, one of the driving forces of thechange was the sense of stigma asso-ciated with the term, Gender IdentityDisorder. The rationale was thatfocusing on the dysphoria is moreclinically appropriate than the genderidentity per se, moving towards amore dynamic view of gender ratherthan the binary, and a move awayfrom a focus on gender nonconformi-ty. Even so, there continues to be adebate in the LGBTQ communityregarding the inclusion of this in amanual of mental disorders at all, notdissimilar from the debate years agothat led to the removal of homosexu-ality from the DSM. The World Pro-fessional Association for TransgenderHealth, an internationally recognizedauthority on the treatment, education,and research related to transgenderhealth, positively notes also the inclu-sion of an “exit clause,” whereby anindividual who has resolved his or herincongruence no longer meets criteriafor the disorder. Removed is the sexu-al orientation specifier, whichacknowledges that sexual orientationand gender identity are two separatefeatures.Gender Dysphoria was also given

its own chapter, separate from sexualdisorders and paraphilias. Finally,there were changes made in how todiagnose the condition in children,who may not be able to verbalizetheir discomfort or desires as an ado-lescent or adult.

Paraphilic Disorder and Sexual Dys-functionsThere have been a number of

changes in these chapters, includingits separation from issues of genderidentity, as discussed previously, andthe creation of two separate chaptersfor sexual disorder and paraphilic dis-orders. With respect to sexual disor-ders, sexual aversion disorder hasbeen eliminated due to rare use andminimal research. Vaginismus anddyspareunia have been integrated intoone disorder, called genito-pelvicpain/penetration disorder due to thehigh comorbidity of the two and the


“There continues to be adebate in the LGBTQcommunity regarding theinclusion of this in amanual of mental disor-ders at all, not dissimilarfrom the debate yearsago that led to theremoval of homosexuali-ty from the DSM.”

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM



Report of the APA AssemblyDebra A. Pinals MD, AAPL Assembly Representative and Cheryl Wills MD,AAPL Assembly Alternate Representative

The APA Assembly took place inWashington, D.C. from Nov 8-10,2013. Of note, one major issue over-shadowing the meeting was the pas-sage during the week of the meetingof the Final Rule related to parity.There was a great deal of excitementabout this development.In addition, Saul Levin, MD, MPA,

attended the Assembly meeting as hisfirst one in his role as CEO/MedicalDirector of the APA. Dr. Levindescribed many priorities, includinghis strong interest in “bringing alliedorganizations under the tent” of theAPA as a way to be more productive. Dr. Levin is also working with staff

to do an environmental scan of howthe APA is doing in terms of commu-nication with members, media pres-ence and internal organization. Hefeels that the current healthcarereform agenda should be one whereAPA, as the psychiatrists within theHouse of Medicine, is a key resourceto general practitioners and others andhe is hopeful that the subspecialtyorganizations will contribute to theAPAs thinking about this. Dr. Levinattended a meeting of the AlliedOrganizations at the Assembly, ofwhich AAPL is a member, and spokedirectly to the group and heard fromeach of the organizations represented.Drs. Wills and Pinals were present tohelp represent AAPL at this meeting. In addition, former Congressman

Kennedy gave an inspiring speechabout his advocacy in getting theMental Health Parity and AddictionEquity Act passed. He also spokeabout his personal story of recoveryand his foundation of One Mind forResearch, which he is hoping willfund a significant amount of neuro-science research. Mr. Kennedy alsospoke of the importance of setting upappropriate processes to help facili-tate true implementation of parityrules especially in the context of theFinal Rule issued by the Departmentsof Treasury, Labor, and Health and

Human Services.Dr. Howard Goldman spoke of a

workgroup looking to develop infor-mational products for members inrelation to healthcare reform. One ofthe sections of this work group exam-ines public sector impact. A commentwas made on the Assembly floor fromAAPL representation regarding theimportance of considering justiceinvolved youth and adults in develop-ing recommendations.

Of interest to AAPL was also thePosition Statement on DetainedImmigrants with Mental Illness: Thisposition statement was crafted by theCouncil on Minority Mental Healthand Health Disparities and the Coun-cil on Psychiatry and the Law andstates that the APA should urge feder-al policy makers and responsibleagency officials to ensure thatdetained individuals with mental dis-orders receive appropriate mentalhealth treatment. Background infor-mation is included in this paper relat-ed to challenges in mental health ser-vices for those detained throughImmigration and Customs Enforce-ment (ICE). This position statement went to the

Joint Reference Committee and somemodifications were made. Thesechanges may be returned to the Coun-

cil on Psychiatry and the Law for onemore review, after which it will bereviewed by the Board of Trustees forfinal approval. This paper will be ahelpful resource to AAPL memberswho are working on matters pertain-ing to immigrants and mental illness. Another interesting Action Paper,

entitled “Unsafe and UncontrolledAccess to Mental Health RecordsAffecting 21.5 Million Veterans” waspassed on the Assembly Floor. Thispaper asks the APA to petition the VAto halt online disclosure of mentalhealth notes in the absence of clinicaloversight. There was a further resolution in

this action paper asking that the Com-mittee on Electronic Health Records,the Council on Psychiatry and theLaw, the Ethics Committee and theCaucus of VA Psychiatrists to cometogether to develop a position state-ment and training for members ondocumentation and access to docu-mentation by patients. The issueraised interesting forensic issues notonly relevant to confidentiality andpotential misuse of information, butalso to concerns that documentationabout sensitive issues (e.g., violentthoughts) might not be documentedaccurately for fear of patient retalia-tion. Arguments in favor of online access

for patients included the importancethat mental health records be treatedsimilarly to medical records and thatpaternalism toward patients may notbe appropriate. After the debate with-in the Assembly, the Action Paperpassed as it appeared that the requestto petition for a halt might allowmore time for position statements tobe developed regarding direct patientaccess to one’s own sensitive medicalinformation. AAPL representation continues to

monitor actions at the APA throughthe Assembly and reports regularly toAAPL Council about these activities.If AAPL members have any questionsor comments, please feel free to con-tact us through the AAPL office.

“APA should urge federal policy makersand responsible agencyofficials to ensure thatdetained individuals withmental disorders receiveappropriate mentalhealth treatment”

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In order to meet the new statutoryrequirements set forth in the Childand Family Services Improvementand Innovation Act of 2011, stateagencies have employed differentapproaches. One approach is todevise and implement parameters thatautomatically trigger a “prior autho-rization” process or require expertconsultation before a prescription canbe filled. Most states also developedpsychiatric consultation hotlines toassist primary care physicians inmaking their treatment decisions.Some states will not reimburse doc-tors who do not follow the recom-mendations of the psychiatric consul-tant. Another approach is to keepMedicaid prescription registries in

Overseeing Psy-chotropic Medicationscontinued from page 18

order to analyze the prescribing pat-terns of physicians and determine the“top prescribers” of antipsychoticmedications. The states with the mostcomprehensive and collaborativeplans appear to be Florida, Maryland,Massachusetts, Minnesota, and Texas,where detailed websites guide theoversight of prescribing psychotropicmedications to children and adoles-cents.4 Essentially, the Child and Family

Services Act of 2011 is the federalgovernment’s response to concernsabout the prevalence of psychotropicmedication use by foster youth. ThisAct mandated that states evaluate,modify, and monitor the mentalhealth treatment they provide for chil-dren and adolescents. The impact ofthese government interventions is yetto be determined and likely will haveimpacts other than the reduction of

psychotropic medication use. Hope-fully, it will improve the quality ofcare for youth in state custody.

References1. Government Office of Accountability:Foster Children: HHS Guidance Could HelpStates Improve Oversight of PsychotropicPrescriptions. Reissued on December 15,2011 2. Rubin, D., et al., Interstate variation intrends of psychotropic medication useamong Medicaid-enrolled children in fostercare, Children and Youth Services Review(2012), doi:10.1016/j.childy-outh.2012.04.0063. Olson J: Minnesota limits psych drugsfor kids. Minneapolis Star Tribune. June 5,20124. Summary of State Programs to AddressPsychotropic Medication Use in Children inFoster Care. Available at: http://www.med-icaid.gov/Medicaid-CHIP-Program-Infor-mation/By-Topics/Benefits/Prescription-Drugs/Downloads/CIB-Posting.pdfAccessed November 6, 2013

Silence is Not Always PrivilegedPaul O’Leary MD, Chair of the Law Enforcement Liaison Committee

United States Supreme Court hasruled in multiple cases (Minnesota v.Murphy, 465 U. S. 420, 427; Robertsv. United States, 445 U. S. 552, 560;Berghuis v. Thompkins, 560 U. S.370) that silence does not invoke aprivilege that must be claimed. InSalinas v. Texas, the Supreme Courtupheld the Texas Courts’ ruling thatMr. Genovevo Salinas’ Fifth-Amend-ment rights were not violated whenthe prosecution used the fact that hedid not answer a policeman’s questionduring an interrogation as evidence ofhis guilt. On December 18, 1992, two broth-

ers were shot and killed in theirHouston home. The only witness wasa neighbor who heard gunshots, sawsomeone run out of the brothers’home and speed away in a dark-col-ored car. The investigation led policeto Mr. Salinas, who had been a guestat a party the victims hosted the nightbefore they were killed. When Policevisited Mr. Salinas’ parents’ home, hismother agreed the police could comein, his father agreed they could takehis shotgun for ballistics testing andMr. Salinas agreed to accompany

police to the station for finger print-ing, “to be used for exclusionary pur-poses.” As Mr. Salinas was voluntary, he

was not placed in custody and notread his Miranda rights. While therehe participated in an hour-long inter-view, answering most of the officer’squestions. However, when he wasasked if his shotgun “would matchthe shells recovered at the scene ofthe murder,” he declined to answer.The officer waited, then asked otherquestions which Mr. Salinasanswered. At the end of the inter-view Mr. Salinas was detained foroutstanding traffic warrants. Howev-er, he was soon released after theprosecution thought there was insuffi-cient evidence to charge him with themurders. A few days later, a friend of Mr.

Salinas, Damien Cuellar, stated hehad heard Mr. Salinas confess to thekillings. With this statement, theprosecutors decided to charge Mr.Salinas. It took police 15 years toonce again locate Mr. Salinas, whowas living in the Houston area underan assumed name when they arrested

him in 2007.During the first trial, prosecutors

focused on the ballistic evidence, hisfriend’s statement, and his attendingthe party at the brothers’ home. Thetrial ended in a mistrial. During thesecond trial, prosecution emphasizedthe pre-arrest silence during thepolice interview in their closing state-ments, highlighting the fact Mr. Sali-nas failed to answer the polices’question about the shotgun, insteadhe “[l]ooked down at the floor, shuf-fled his feet, bit his bottom lip,cl[e]nched his hands in his lap, [and]began to tighten up.” The jury returned a guilty verdict

and sentenced him to 20 yearsimprisonment. Mr. Salinas appealed.Both Texas courts affirmed the ver-dict. The Supreme Court reportedly“granted certiorari to resolve a divi-sion of authority in the lower courtsover whether the prosecution may usea defendant’s assertion of the privi-lege against self-incrimination duringa noncustodial police interview aspart of its case in chief.” However,the Court found it unnecessary toanswer that question, as “petitionerdid not invoke the privilege duringhis interview.” Instead the Supreme


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Gender OrientedChangescontinued from page 21

difficulty in differentiating one fromthe other. In recognition of the possi-bly artificial separation of desire andarousal in women, sexual desire andarousal disorders have also beencombined into one illness – femalesexual interest/arousal disorder.The chapter previously entitled

Paraphilias is now called ParaphilicDisorders in order to emphasize thatto meet the criteria for a mental ill-ness, an individual needs to sufferdistress or impairment. It alsoacknowledges the fact that certainindividuals may have non-main-stream sexual practices and this doesnot constitute a mental disorder. Forexample, an individual who engagesin transvestitism does not necessarilysuffer from a mental illness unlessthat activity causes distress and func-tional impairment for that individual.There had been discussion in thecommittee about the inclusion ofCoercive Paraphilia. It was decidedthat this would not be included in theDSM-5, that rape is not a mental ill-ness, but a criminal act. This decisionhas significant implications for invol-untary sexual predator commitmentstatutes. Finally, specifiers of “inremission” or “in a controlled envi-ronment” were added to the para-philic disorders in recognition ofthose whose symptoms may be diffi-cult to assess in a restricted environ-ment.

Premenstrual Dysphoric Disorder(PMDD)The initial diagnostic criteria for

“late luteal phase dysphoric disorder”appeared in Appendix A of the DSM-III. In DSM-IV, late luteal phase dys-phoric disorder was renamed “pre-menstrual dysphoric disorder” (May1993) and the diagnostic criteria weremodified slightly. However, PMDDwas not yet recognized as a disorderand was noted in appendix B under“Criteria Sets and Axes Provided forFurther Study.” According to theDSM-IV the essential features are


symptoms such as markedlydepressed mood, marked anxiety,marked affective lability, anddecreased interest in activities. Thesesymptoms regularly occur during thelast week of the luteal phase in mostmenstrual cycles during the past year.The DSM-5 requires at least 5 symp-toms in the majority of the cycles.The symptoms begin must improve,not remit, within a few days of theonset of menses and become minimal,not absent in the week followingmenses. The DSM-5 placed PMDD under

Depressive Disorders in the maintext. Recognition of PMDD as a dis-order and placing in the main textwill facilitate diagnosis, treatment,and future research directions into theetiology and management of this ill-ness. Those concerned about patholo-gizing normal female reproductionmay be shown that this conditionaffects only a small minority ofwomen, with prevalence rates 2-5%in the general population.

Concluding CommentsThese primarily gender oriented

issues were selected for purposes ofthis article, but it is not an all-inclu-sive description of all the changes inthis newest edition of the DSM thatmay relate to gender differences. Thechanges are noteworthy as they signi-fy more research initiative andthoughtfulness being placed on issuesrelated to gender differences. It willbe valuable to see how these changesare incorporated into clinical practiceand the impact on treatment.

References:1. DeCuypere, G., Knudson G., & Bockt-ing, W. Response of the World ProfessionalAssociation for Transgender Health to theProposed DSM 5 Criteria for Gender Incon-gruence. Online: http://www.wpath.org/uploaded_files/140/files/WPATH%20Reac-tion%20to%20the%20proposed%20DSM%20-%20Final.pdf.2. Frances, A. (2013) DSM-5 Rejects Coer-cive Paraphilia: Once Again ConfirmingThat Rape Is Not A Mental Disorder. Psy-chiatric Times. May 12, 2013.3. Keel, P.K., Brown, T.A., Holm-Denoma,J. Bodell, L.P. (2011) “Comparison ofDSM-IV versus proposed DSM-5 diagnos-


tic criteria for eating disorders: Reduction ofeating disorder not otherwise specified andvalidity. International Journal of EatingDisorders 44(6) 553-560.4. Lev, A. I. (2013). Gender dysphoria: Twosteps forward, one step back. Clinical SocialWork Journal 41:288–296.5. Moran, M. DSM to Distinguish Paraphil-ias From Paraphilic Disorders. PsychiatricNews. May 3, 2013.6. Duschinsky, R., & Chachamu, N. (2013).Sexual dysfunction and paraphilias in theDSM-5: Pathology, heterogeneity, and gen-der. Feminism & Psychology, 23(1), 49-55.7. Zucker, K. J., Cohen-Kettenis, P., Dresch-er, J., Meyer-Bahlburg, H., Pfäfflin, F., &Womack, W. M. (2013). Memo outliningevidence for change for gender identity dis-order in the DSM-5. Archives of SexualBehavior, 42(5), 901-914.

Court reaffirmed in a 5-4 ruling thatthe privilege to remain silent is notinvoked by remaining silent duringnoncustodial police interrogation,with two exceptions; a person neednot testify at trial to invoke the fifth,and if the government involuntarilycoerced forfeiture. The Court decision was down its

conservative/liberal split, with Alito’sjudgment joined by Chief JusticeJohn Roberts and Justices AnthonyKennedy, Clarence Thomas andAntonin Scalia. Though the Courtdid not find it necessary to addressthe question of privilege against self-incrimination during a noncustodialinterview, Thomas, joined by Scalia,concluded that precustodial silence,even if claimed, was not a privilege,as it did not compel one to give self-incriminating testimony. As the question of whether claimed

precustodial silence is privileged hasyet to be answered, simply claimingthe fifth while talking with policewould appear insufficient to ensureprotection. On the other hand notclaiming the fifth ensures one’ssilence may be use as proof of guilt.reemphasizing the importance ofknowing when to shut up.

Silence is Not AlwaysPrivilegedcontinued from page 23

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AAPL Chief Photographer Signs OffSteven Berger MD

As you know, I am retiring as theChief APPL Photographer. The pho-tographs are used only for thenewsletter. Perhaps there will be moreuses for these photos as time goes on.Eugene Lee from Arkansas will bereplacing me as chief of the “Photog-raphy Committee” His email [email protected]. The 3 continuing photographers are Roni Seltzberg in [email protected] Wolfson in [email protected] Newman in [email protected] a new additional photographer isAlyson Kuroski-Mazzei in North Car-olina [email protected] will make assignments as

needed. The Editor of the AAPLNewsletter, Charles Dike, will letEugene know if particular photos areneeded. So far, his only specificrequest is photos of the lunch time

speakers. Charles’ email [email protected]. For the lunches, the “photography

committee” is given 1 ticket for eachlunch. Eugene will decide who getseach ticket. With the ticket comes, ofcourse, the obligation to take the pho-tos of the lunch speaker and headtable guests. I think a good idea is toinclude the name placards in the pho-tos of the head table guests. In gen-eral, the photos turn out better if thesubjects are asked to smile and lookat the camera.In the current system, each photog-

rapher hands in his or her photos toJackie, Kristin, or Marie on Saturdayor Sunday. The easiest way is to putthe photographer’s sandisk intoKristin’s computer and upload thephotos to her computer. PerhapsEugene or Alan knows how to trans-fer photos from an iPhone to Kristin’scomputer as a batch, rather than 1photo at a time. That might be aneven easier system.

At times, people have asked me fora copy of a photo. My practice hasbeen to email the photo to them thesame day or next day. They like that. Eugene is now in charge. I greatly

appreciate the help of Roni, James,and Charles during the last 15-20years, or whatever it’s been. Thanksto all of you.

The Human Rights and National SecurityCommittee Wants YouEmily A. Keram MD, Human Rights and National Security Committee

The Human Rights and NationalSecurity committee invites interestedAAPL members to join our commit-tee. Although members may feelthey lack the knowledge and experi-ence to contribute meaningfully toour work, it is our belief that themost helpful asset for prospectivemembers is a desire to bring consen-sus to a variety of opinions regardingthe expanding role of the forensicpsychiatrist in the area, within an eth-ical framework.The committee focuses on identify-

ing and exploring ethical issues thatarise in the context of human rightsand/or national security cases andpolicy, evaluating available subjectmatter for evidence of soundness andbias, and providing collegial support

to prevent and manage role diffusion,secondary trauma, and burnout.Committee members participate in

discussions, training, and casesregarding evaluation of asylum appli-cants, child soldiers, politicaldetainees, and accused terrorists.Examples of consultation and train-ing include policy developmentregarding institutional managementof hunger strikes, psychiatrist partici-pation in national security investiga-tions and interviews, and the ethicalchallenges faced by military psychia-trists.We base our explorations on histor-

ical and current advancements in thefield of human rights and internation-al humanitarian law. Various interna-tional agreements guide our discus-

sions, such as the Geneva Conven-tions (treatment of POW’s), the Con-vention on the Rights of the Child(involvement of children in armedconflict), and the World MedicalAssociation’s Declaration of Malta onHunger Strikers.Through our work, we’ve become

familiar with the complex history ofthe interplay between human rightsand national security. We’ve appreci-ated learning this history as we’veobserved earlier professionals strug-gling with the tensions between thesetwo, sometimes competing, priorities.We emphasize a pragmatic and

open-minded exploration of the roleof forensic psychiatry in these mat-ters. We place value on opposingviewpoints, using them as a startingpoint from which to achieve consen-sus within an ethical framework.If you are interested in joining the

committee, please contact EmilyKeram, MD at [email protected].

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM



Violent Bookscontinued from page 3

exceeded the amount of gun violencein top-grossing R-rated movies.While it is quite impressive to

watch little children reading andenjoying books 500 pages and over,should parents be worried about howthe violent content in the books willaffect their children? Does the vio-lence in the books translate to real lifeviolence as has been suggested forviolence in movies? It seems researchintended to answer these questionswould be greatly appreciated by par-ents trying to avoid raising the nextColumbine, Aurora or Newtownshooters.

References:1. Violence in Media Entertainment: http://www.media-awareness.ca/english/issues/violence_enter-tainment.cfm?)2. Times Mirror Media Monitor. TV Vio-lence: More Objectionable in EntertainmentThan in Newscasts. March 24, 1993.)Media Education Foundation -http://www.jacksonkatz.com/PDF/Children-Media.pdf3. Effects of prolonged exposure to gratu-itous media violence on provoked andunprovoked hostile behavior. Journal ofApplied Social Psychology. Vol 29, No 1,145-165, 19994. American Academy of Pediatrics PolicyStatement, Volume 95, Number 6 - June1995Gun Violence Trends in Movies:Brad J. Bushman, Patrick E. Jamieson, IlanaWeitz and Daniel RomerPediatrics; originally published onlineNovember 11, 2013; http://pediatrics.aap-publications.org/content/early/2013/11/06/peds.2013-1600

far from uncritical in my feelingsabout these issues, perhaps my senseof a “neutral” position is differentcompared to that of a native ofBoston, California, or Iowa. Another profound and potentially

unrecognized influence on our biasesis made by our teachers and profes-sional mentors. During that seminar,I realized that I had chosen to empha-size the defendant’s admission that heexpected criminal prosecution, ratherthan the statements from the mouth ofGod justifying his actions, because Iwas hearing the voice of a particularattending! In all of the unsuccessfulinsanity defenses I remembered frommy work in the fellowship, we haveemphasized statements or actions ofthe defendant in which they recog-nized the legal wrongfulness of theiract, either implicitly or explicitly.The defendant in Dr. Resnick’s caserecalled these examples for me. Thecountervailing evidence in this case,arguing for the defendant’s insanity,simply didn’t speak as loudly to me,because in the insanity cases when wehave determined the defendant wasinsane there were no examples inwhich we emphasized moral versuslegal wrongfulness. Throughout myfellowship, mentors have emphasizedto me many times the benefit ofworking with multiple faculty mem-bers on evaluations in order to get asense of each one’s individual styleand strengths and ultimately toassemble parts of each into an effec-tive and eclectic personal style. Howright they are!Without recognition of our personal

biases, we are subject to errors injudgment because of them. And it isonly by confrontation with otherswith dissimilar views, those withexperiences different from our own,that we are able to recognize thesebiases. My experience at AAPLallowed me to appreciate a certaindegree of personal bias that I wouldnot have recognized working onlywithin my fellowship. Obviously thishighlights the benefits of participatingin national professional organizations

Fellows Cornercontinued from page 12

and interacting with others in our pro-fession. In a larger sense, it speaks tothe need for us as forensic psychia-trists to engage with other disciplines,including creative arts, history, andthe humanities. As forensic psychia-trists it is our professional obligationto continuously strive for truth andobjectivity. If we never venture fromour own intellectual comfort zones,we miss out on vital opportunities forgrowth.

References:1. Number of Executions by State andRegion Since 1976. Death Penalty Informa-tion Center Web site. http://www.death-penaltyinfo.org/number-executions-state-and-region-1976 Published 2013. AccessedDecember 6, 2013.

Michael Gower, MD is a Fellow inForensic Psychiatry, University ofFlorida, Department of Psychiatry

Franco-Gonzalez v.Holdercontinued from page 19

major aspects of the lawsuit: Screen-ing and competency evaluations forcertain detainees, legal representationfor incompetent detainees, and bondhearings after six months of deten-tion. Whether this comes to fruitionremains to be seen, but the progressis undeniable. As Robert F. Kennedysaid in 1963, if not for Mr. Gideon’striumph, “the vast machinery ofAmerican law would have gone onfunctioning undisturbed. But… theCourt did look into his case ... andthe whole course of American legalhistory has been changed.” TheFranco litigation carries on thatpromise of Gideon. And as its effortsproceed, there is real hope that thedue process rights of noncitizens willnot only be affirmed, but extended.

Dr. Ochoa serves as a pro-bonoexpert in Franco-Gonzales v. Holderand is an Assistant Clinical Professorin the Department of Psychiatry andBiobehavioral Sciences at the DavidGeffen School of Medicine at UCLA.

2014 Annual Meeting Call for Papers

Submission Deadline:

March 1, 2014www.aapl.org

49360_JAN.2014_Jan 07 News 05 2/14/14 12:02 PM

AAPL NEW MEMBERS


FORENSIC PSYCHIATRIST

The Department of Psychiatry atthe University of Florida Collegeof Medicine-Jacksonville ispleased to announce an openingfor an experienced forensic psy-chiatrist. This position is for afull time faculty member at thenon-tenure accruing level ofAssistant/Associate Professor.Candidates must possess a MDdegree or equivalent and be qual-ified for an unrestricted physicianlicense in Florida. Successfulcandidates must also be board eli-gible/board certified in forensicpsychiatry. Must have completeda subspecialty fellowship inforensic psychiatry; possessexcellent diagnostic skills andhave a strong interest and com-mitment to teaching, service andresearch. Salary and academicappointment commensurate withexperience and training. Theposition will advertise until anapplicant pool is established andwill continue until the position isfilled.

Qualified applicants should sub-mit a letter of interest whichincludes a discussion on theirgoals for resident education, acurriculum vitae and three lettersof recommendation to: P. NicoleTaylor, MD Committee Chair,Department of Psychiatry, UFCollege of Medicine – Jack-sonville, 580 West 8th Street, BoxT-11 Jacksonville, FL 32209, orapply on line at www.jobs.ufl.eduby referencing requisition num-ber 0904244 position number00028387 or [email protected].

Applications will be accepteduntil an applicant pool is identi-fied.

49360_JAN.2014_Jan 07 News 05 2/17/14 12:39 PM

AAPL NewsletterAmerican Academy of Psychiatry and the LawOne Regency DrivePO Box 30Bloomfield, Connecticut 06002

Charles Dike, MD, MPH, MRCPsych, Editor

PRSRT STDU.S. POSTAGEP A I D

HARTFORD, CTPERMIT NO. 5144

49360_JAN.2014_Jan 07 News 05 2/14/14 12:03 PM

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