FORENSIC PSYCHIATRY AT THE INTERFACE BETWEEN PSYCHIATRY AND THE
LAW John Monahan, Ph.D.
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Forensic Psychiatry and Psychology in the U.S. Legal context
Economic context Expert Psychiatric and Psychological Testimony
Amicus Briefs by the American Psychiatric and Psychological
Associations Psychiatric and Psychological Research for
Evidence-Based Law Making
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Forensic Psychiatry and Psychology in the U.S. Legal
Context
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Psychological Evaluations for the Courts: A Handbook for Mental
Health Professionals and Lawyers (Melton et al, 2007) Free will v.
determinism
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Clinical Handbook of Psychiatry and the Law Appelbaum &
Gutheil, 4 th ed (2007) Clinicians, accustomed to speaking their
own private language, are forced to speak in legal terms. They are
asked whether individuals have acted with appreciation of the
nature of their acts or with the free will to avoid violations of
the law if they so choose. They are sometimes asked to evaluate the
effect of a complex disease process on a remote act that they did
not witness and that the alleged perpetrator may maintain has never
occurred During the process, they must keep in mind that the system
for which they are working (i.e., judicial) denies a fundamental
theoretical premise of much of psychiatry (i.e., that all behavior
is influenced by unconscious forces beyond the control of the actor
and is thus, to some extent, involuntary and predetermined).
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DSM-IV Cautionary Statement It is to be understood that
inclusion [in DSM-IV], for clinical and research purposes, of a
diagnostic category such as Pathological Gambling or Pedophilia
does not imply that the condition meets legal or other non-medical
criteria for what constitutes mental disease, mental disorder, or
mental disability. The clinical and scientific considerations
involved in categorization of these conditions as mental disorders
may not be wholly relevant to legal judgments, for example, that
take into account such issues as individual responsibility,
disability determination, and competency.
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Psychological Evaluations for the Courts: A Handbook for Mental
Health Professionals and Lawyers (Melton et al, 2007) Free will v.
determinism The adversary system: Battle of the experts
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The Adversary System
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Forensic Psychiatry and Psychology in the U.S. Economic
Context
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Texas Mental Health Budget Could Be Cut By as Much as 40%
(KHOU-TV, 2011) Mental health services could see drastic cuts, if a
version of the draft budget passes the Texas Legislature. Texas
ranks 49th in the country in per capita spending on mental health
programs. The proposed budget would cut spending by 40%.
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California Dept of Mental Health (DMH) DMH budget has been cut
29% in the past 2 years. The administration stated its intent to
eventually eliminate the DMH. Responsibility for the programs
administered by DMH would be transferred to other departments. The
administration indicates that as part of its 201213 budget
proposal, it will submit a detailed plan to eliminate this
department.
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Patients in Public Psychiatric Facilities in California
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Expert Psychiatric and Psychological Testimony
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Most Frequent Types of Expert Testimony in U.S. State Courts
Domitrovich, Merlino, & Richardson (2010) Type% %
Psychiatry/Psychology29Sociology8 Medical/Health20Pharmacology4
Chemistry13Statistics4 Toxicology10Engineering/Physics3
Economic9Epidemiology1
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Mental States, Motivations, and Behaviors During Past Events
Adapted from Heilbrun, Grisso, & Goldstein (2009) Capacity to
waive rights Criminal responsibility Abuse and neglect Testamentary
capacity Eyewitness identification
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Deficits in Abilities Relevant to Current Functioning Adapted
from Heilbrun, Grisso, & Goldstein (2009) Competence to consent
to treatment Guardianship Competence in criminal proceedings
Termination of parental rights Civil commitment (current mental
illness)
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Likelihood of Future Behaviors Adapted from Heilbrun, Grisso,
& Goldstein (2009) For denying bail For sentencing (e.g.,
probation or prison, or death) Civil commitment of sexually violent
predators Civil commitment of people with SMI who are likely to be
violent to self or others Child custody
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Amicus Briefs by the American Psychiatric and Psychological
Associations Amicus curiae (friend of the court) briefs are
approved by the Board of Trustees and present to the court the
views of the American Psychiatric Association on matters of mental
illness, patient care, psychiatric practice, and other forensic
issues.
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Graham v. Florida, 2010 Issue: Can a juvenile offender be
sentenced to life in prison without the possibility of parole for a
nonhomicide crime?
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Amicus Brief of the American Psychiatric Assn and the American
Psychological Assn in Graham v. Florida (2010) Research in
developmental psychology and neuroscience confirms and strengthens
the conclusion that juveniles, as a group, differ from adults in
salient ways Juvenilesincluding older adolescentsare less able to
restrain their impulses and exercise self-control; less capable
than adults of considering alternative courses of action and
maturely weighing risks and rewards; and less oriented to the
future, and thus less capable of apprehending the consequences of
their often-impulsive actions. For all those reasons, even once
their general cognitive abilities approximate those of adults,
juveniles are less capable than adults of mature judgment, and more
likely to engage in risky, even criminal, behavior as a result of
that immaturity.
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Graham v. Florida, 2010 (Vote: 6-3) MAJORITY: As petitioner's
amici point out, developments in psychology and brain science
continue to show fundamental differences between juvenile and adult
minds. For example, parts of the brain involved in behavior control
continue to mature through late adolescence. Juveniles are more
capable of change than are adults, and their actions are less
likely to be evidence of irretrievably depraved character than are
the actions of adults. It remains true that [f]rom a moral
standpoint it would be misguided to equate the failings of a minor
with those of an adult, for a greater possibility exists that a
minor's character deficiencies will be reformed
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This Court now holds that for a juvenile offender who did not
commit homicide the Eighth Amendment [banning cruel and unusual
punishment] forbids the sentence of life without parole Because
[t]he age of 18 is the point where society draws the line for many
purposes between childhood and adulthood, those who were below that
age when the offense was committed may not be sentenced to life
without parole for a nonhomicide crime.
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DISSENT: The Court cites developments in psychology and brain
science indicating that juvenile minds continue to mature through
late adolescence. But even if such generalizations from social
science were relevant to constitutional rulemaking, the Court
misstates the data on which it relies. See Moffitt, Adolescence-
Limited and Life-Course-Persistent Antisocial Behavior: A
Developmental Taxonomy, 100 Psychological Rev. 674, 678 (1993)
(cited in APA Brief ) (The well-documented resistance of antisocial
personality disorder to treatments of all kinds seems to suggest
that the life-course-persistent style is fixed sometime before age
18)... In sum, even if it were relevant, none of this psychological
or sociological data is sufficient to support the Court's moral
conclusion that youth defeats culpability in every case.
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Schwarzenegger/Brown v. Planta Issue: Can a court order a limit
to a states prison population, if necessary to remedy the violation
of prisoners constitutional rights to adequate mental health and
medical care?
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Amicus Curiae Brief of the American Psychiatric Assn and the
American Psychological Assn in Schwarzenegger/Brown v. Planta The
[trial] court found that overcrowding in CAs prisons was the
primary cause of the States failure to deliver constitutionally
adequate mental health care to its prison inmates and that no
relief other than a reduction in overcrowding would address the
constitutional violations. Those findingsare consistent with the
clinical experience of professionals with expertise in correctional
mental health care and the scientific literature More than 34,000
of the approximately 160,000 inmates in CAs prisons suffer from
serious mental illness requiring intervention.. Clinical experience
supports the conclusion that crowding may create pervasive and
intractable problems for the provision of minimally adequate mental
health care.
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Brown v. Planta, May 2011 (Vote: 5-4) MAJORITY: For [21] years
the medical and mental health care provided by CAs prisons has
fallen short of minimum constitutional requirements and has failed
to meet prisoners basic health needs. Needless suffering and death
have been the well documented result Because of a shortage of
treatment beds, suicidal inmates may be held for prolonged periods
in telephone-booth sized cages without toilets. A psychiatric
expert reported observing an inmate who had been held in such a
cage for nearly 24 hours, standing in a pool of his own urine,
unresponsive and nearly catatonic
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Brown v. Planta, May 2011 (Vote: 5-4) MAJORITY: For [21] years
the medical and mental health care provided by CAs prisons has
fallen short of minimum constitutional requirements and has failed
to meet prisoners basic health needs. Needless suffering and death
have been the well documented result Prisoners in CA with serious
mental illness do not receive minimal, adequate care. Because of a
shortage of treatment beds, suicidal inmates may be held for
prolonged periods in telephone-booth sized cages without toilets. A
psychiatric expert reported observing an inmate who had been held
in such a cage for nearly 24 hours, standing in a pool of his own
urine, unresponsive and nearly catatonic Wait times for mental
health care range as high as 12 months.
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Prisoners suffering from physical illness also receive severely
deficient carePrisons were unable to retain sufficient numbers of
competent medical staff, and would hire any doctor who had a
license, a pulse and a pair of shoes. Prisons have backlogs of up
to 700 prisoners waiting to see a doctor The medical and mental
health care provided by Californias prisons falls below the
standard of decency that inheres in the Eighth Amendment. This
extensive and ongoing constitutional violation requires a remedy,
and a remedy will not be achieved without a reduction in
overcrowding. It is so ordered.
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DISSENT: The [trial] court ordered the premature release of
approximately 46,000 criminalsthe equivalent of three Army
divisions... The prisoner release ordered in this case is
unprecedented, improvident, and contrary to the [law]. The majority
is gambling with the safety of the people of California. Before
putting public safety at risk, every reasonable precaution should
be taken I fear that todays decision will lead to a grim roster of
victims. I hope that I am wrong. In a few years, we will see.
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California Static Risk Assessment (CSRA) 22 Items to Predict
Recidivism 2 demographic items Age Gender 20 items on prior
criminal sentences Number of felony sentences Felony sentences for
murder, manslaughter, sex, violence, weapons, property, drug and,
escape offenses Misdemeanor sentences for assault, sex, weapons,
property, drug, alcohol, and escape offenses Revocations of
probation or parole supervision
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Validity of the CSRA
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Psychiatric and Psychological Research for Evidence-Based Law
Making
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Outpatient Commitment in New York Increased medication
adherence Reduced inpatient hospital admission Reduced inpatient
hospital days Reduced arrest rate No differences with the
comparison group in perceived coercion, working alliance, or
treatment satisfaction Statute renewed for 5 years.
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Interventions Used by Colleges to Respond to Student Mental
Health Crises Monahan, Bonnie, Davis, & Flynn, Psychiatric
Services, in press. State population: 8,100,000 Student population
Public 4-yr colleges (15 colleges): 206,338 Private 4-yr colleges
(24 colleges): 76,752 2-yr community colleges (24 colleges):
177,121 Total student population (63 colleges): 460,211
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Seung-Hui Cho (Virginia Tech, April 2007)
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In the spring of 2010, the Joint Commission on Health Care of
the Virginia General Assembly, conducted a survey to gatherfor the
first timecomprehensive empirical information from each public and
private college in the Commonwealth regarding the adequacy of
students access to mental health services and the ways in which
colleges respond to students mental health crises. Findings from
this survey will be reported to the Joint Commission and may inform
recommendations for legislative or other policy changes to improve
both student access to mental health services and institutional
responses to mental health crises.
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Students Accessing Care at the Counseling Center (CC) Total N
Students Accessing Care Mean % Student Body Accessing Care
Public11,1176 Private2,80011 Community00
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Care Accessed at the CC: Suicidal Ideation and Ideation of
Violence to Others Mean % at CC w Suicidal Ideation Mean % at CC w
Ideation of Violence to Others Public154 Private121
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Involuntary Medical Withdrawal [The College] reserves the right
to require a medical withdrawal if the student: Presents an
ongoing, clear and present danger to self and/or others; [or] Shows
potential for presenting a clear and present danger, and refuses to
cooperate with treatment recommendations. 91% of private
collegesbut only 47% of public colleges have involuntary medical
withdrawal.
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Psychiatrist/Psychologist Recommendation for Reenrollment at
the University of Virginia DSM-IV diagnosis; # of times patient was
seen by you since withdrawal; prescribed medications and dosages
Issues addressed in treatment Functional difficulties which need to
be addressed in continued treatment or which may pose difficulties
in relation to students reenrollment [including homicidal or
suicidal ideation/intent] Your recommendation: patient is/is not
ready to return Recommended treatment plan if patient returns:
continued treatment is/is not necessary.
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August 24, 2010 A new [computer] prompt each fall will ask that
students disclose relevant criminal arrests or convictions [i.e.,
all arrests/convictions except minor traffic violations] and will
also remind them of their continuing duty to do so within 72 hours
of any future such incident. For more serious infractions, there
may be a meeting [with the Dean] to discuss what the student is
doing to prevent a repeat offense and also an offer of information
regarding counseling, alcohol or substance abuse resources.
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Questions from the Survey for the Virginia Joint Commission on
Health Care Should community colleges have counseling centers?
Should colleges be required to have procedures for involuntary
medical withdrawal for MH reasons? Does the
psychiatric/psychological clearance for re- enrollment violate
student confidentiality? Should all student arrests be reported to
the Dean and potentially result in a referral for treatment?