FORENSIC PSYCHIATRY AT THE INTERFACE BETWEEN PSYCHIATRY AND THE LAW John Monahan, Ph.D

FORENSIC PSYCHIATRY AT THE INTERFACE BETWEEN PSYCHIATRY AND THE LAW John Monahan, Ph.D.

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

Forensic Psychiatry and Psychology in the U.S. Legal Context

Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (Melton et al, 2007) Free will v. determinism

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).

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.

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

The Adversary System

Forensic Psychiatry and Psychology in the U.S. Economic Context

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%.

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.

Patients in Public Psychiatric Facilities in California

Expert Psychiatric and Psychological Testimony

Most Frequent Types of Expert Testimony in U.S. State Courts Domitrovich, Merlino, & Richardson (2010) Type% % Psychiatry/Psychology29Sociology8 Medical/Health20Pharmacology4 Chemistry13Statistics4 Toxicology10Engineering/Physics3 Economic9Epidemiology1

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

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)

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

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.

Graham v. Florida, 2010 Issue: Can a juvenile offender be sentenced to life in prison without the possibility of parole for a nonhomicide crime?

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.

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

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.

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.

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?

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.

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

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.

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.

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.

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

Validity of the CSRA

Psychiatric and Psychological Research for Evidence-Based Law Making

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.

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

Seung-Hui Cho (Virginia Tech, April 2007)

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.

Students Accessing Care at the Counseling Center (CC) Total N Students Accessing Care Mean % Student Body Accessing Care Public11,1176 Private2,80011 Community00

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

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.

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.

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.

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 reenrollment violate student confidentiality? Should all student arrests be reported to the Dean and potentially result in a referral for treatment?

[email protected]

Documents

FORENSIC PSYCHIATRY AT THE INTERFACE BETWEEN PSYCHIATRY AND THE LAW John Monahan, Ph.D