The American Psychiatric Publishing Textbook of Forensic Psychiatry

While general clinicians still conduct most forensic assessments, none of the previously published textbooks targets them. In the Preface, the editors of The American Psychiatric Publishing Textbook of Forensic Psychiatry: The Clinician’s Guide acknowledge that their main goal is to create a forensic textbook primarily for the general clinician. The textbook is designed to educate the reader in forensic subjects so that the reader becomes comfortable in case he or she has to “discharge forensic obligations.” The book includes 23 chapters with practice guidelines and suggested reading material. Recognized authorities in the field of forensic psychiatry contribute to the text, making it valuable to forensic specialists as well.

Chapter 1, “Rediscovering Forensic Psychiatry,” by Liza H. Gold, MD, is an overview of the history of forensic psychiatry, the first true subspecialty of medicine. It contains interesting reading about “mad doctors,” in charge of “asylums for lunatics.” The author describes social, scientific, and cultural dynamics of the English and American society of the 18th and 19th centuries. It includes the first cases that involved the use of the insanity defense and testimony by medical professionals as expert witnesses. The chapter also provides historical facts that are not only fascinating to anyone who has an interest in the field, but also show important historical links with the past. This chapter clarifies how precedents of significant importance, such as James Hadfield’s attempt to assassinate King George III in 1800, found its way into today’s landmark cases. Not surprisingly, the challenges that psychiatrists of the past experienced remain valid today.

Chapter 2, “Introduction to the Legal System” was written by Daniel W. Shuman, JD, and outlines the different roles psychiatrists play in clinical practice and the courtroom. He stresses the need to acquire relevant skills and knowledge to navigate unfamiliar waters. He discusses conflicts, including confidentiality, autonomy, and “irreconcilable differences” (distinguishing treating and forensic psychiatrists) that place an ethics barrier between the dual role as therapist and expert for the same patient-litigant. Perhaps the only negative comment that might be made is that the language the author uses, indisputably sophisticated, was at times too complicated for the intended readers to digest during the first and sometimes second readings.

Robert P. Granacher, MD, wrote Chapter 3, “Starting a Forensic Practice.” This chapter describes the start of a practice (as any business) with formation of a mission, a vision, values, and strategies to become successful. He provides helpful hints for the “novice” forensic psychiatrist or general psychiatrist, adding forensics to existing clinical practice. He advises the psychiatrists how to avoid common problems and establish “strategic growth.”

Thomas G. Gutheil, MD contributed Chapter 4, “The Expert Witness.” He offers a precise explanation of the expert witness and how to become one. Dr. Gutheil’s emphasis on “honesty and striving for objectivity” should be incorporated into the career of every expert witness. He talks about pitfalls that are common in forensic practice and advises how to recognize, anticipate, and avoid them. Obvious questions, such as what expert opinion is being solicited or who is paying fees, may become much more complicated, if the expert does not address them early. The best-prepared expert is frequently the most successful in the chaotic legal system.

Robert Weinstock, MD, and Liza H. Gold, MD, are the authors of Chapter 5, “Ethics in Forensic Psychiatry.” They highlight the principal differences in practicing clinical and forensic psychiatry and the “challenging dilemmas” of working in the interfacing fields of psychiatric medicine and law. For example, the forensic psychiatrist does not enter a patient-physician relationship. However, general psychiatrists who are also treating psychiatrists provide most of the expert testimony. Mixing the role of factual and expert witness creates problems in ethical conduct, including conflicts of interest, questions of confidentiality, and ability to provide objective “legally relevant opinion.” Forensic testimony is considered by the American Medical Association (AMA) to be the practice of medicine. As a result, it is subject to peer review and potential punitive action by medical boards for violations of ethics. The authors remind the reader that practicing forensic psychiatry often requires balancing conflicting duties with “traditional medical values.” The forensic psychiatrist is encouraged to seek clarification and guidance from professional organizations such as the American Psychiatric Association (APA) and the American Academy of Psychiatry and the Law (AAPL), if he or she encounters a dilemma in ethics and is not sure how to proceed. Psychiatrists should be aware of the potential pressure they may experience from the retaining attorney and should be prepared to deal with it. The forensic evaluator can be liable if he or she discloses information unrelated to the case, and such disclosures can harm the evaluated person. The evaluator must obtain consent before the interview and remind the client about the purpose of the evaluation throughout the interview. The chapter also discusses the dilemma of the death penalty and problems related to the psychiatrist’s participation in legal cases that involve the death penalty as a possible verdict.

Chapter 6, “Psychiatric Diagnosis in Litigation” was written by Robert I. Simon, MD, and Liza H. Gold, MD, and addresses the concerns of the use of the Diagnostic and Statistical Manual (DSM) in litigation. The main problem is that the court may misuse or misunderstand the diagnostic information. For example, it is important to be aware that psychiatric diagnoses, even if accurate, do not necessarily represent the degree of impairment that one might suffer in case of civil litigation. One should be aware that judges and attorneys usually focus on the diagnosis and that pinpointing the diagnosis may derail the psychiatrist’s efforts to address key points in the litigation. The authors discuss the differences between the categorical diagnosis model of the DSM and the dimensional model of their implications for forensic psychiatry.

In Chapter 7, “The Forensic Examination and Report,” authored by Robert M. Wettstein, MD, gives helpful hints for writing reports and collecting data and provides an analysis of multiple sources. He suggests performing several interviews with the evaluee, obtaining corroborative data, and reconciling data that are in conflict. It is very useful, according to the author, to monitor the pattern of one’s own opinions, have regular peer reviews, and understand the limitations of forensic opinions and the presence of countertransference.

Robert L. Sadoff, MD, authored Chapter 8, “Working with Attorneys.” He discusses the wide range of problems that psychiatrists may encounter while working with retaining attorneys. Most psychiatrists lack legal experience, and legal expertise guarantees problems for those who are not familiar with general principles of forensic practice. Dr. Sadoff suggests that work with an attorney begin with clarification of the role: expert versus fact witness. He also discusses matters such as fee negotiations and avoidance of conflict of interest such as being the treatment provider and expert. Any psychiatrist who decides to provide an expert opinion should be aware of the fact that retaining attorneys have a tendency to provide information and records that will help to build their case and not necessarily to create an objective opinion. The psychiatrist should ask the retaining attorney about preferences concerning the form of the report and provide it to him or her, while guarding the confidentiality of the records. It is appropriate for an expert to change some words in the report, at the request of the attorney, only after careful consideration. It is not appropriate or ethical to change the report only to serve the purpose of an attorney’s case, when the report contradicts previously formed objective expert opinion. Psychiatrists are cautioned against giving definitive diagnoses, even if requested by lawyers. Dr. Sadoff also discusses documents that most psychiatrists are not familiar with, such as subpoenas and court orders, and how to respond. Later, he discusses depositions, hearings, and cross-examination, which psychiatrists may face during the litigation process.

Chapter 9, “Psychiatric Malpractice and the Standard of Care,” was written by Donald J. Meyer, MD, and Robert I. Simon, MD, and opens Part II, “Civil Litigation.” This chapter is a must-read for any practicing psychiatrist. The authors provide essential information for everyone who is involved in caring for patients. They discuss the “4 D’s”—duty, deviation, damages, and direct cause—that plaintiffs must demonstrate in malpractice suits. Psychiatric malpractice cases remain among the lowest in frequency, compared with those in other medical professions, but their number is on the rise. Reading the chapter arms the psychiatrist with knowledge of how to practice safely, and as a result, decreases the physician’s anxiety about being wrongfully sued. It is not a secret that most of the malpractice cases that involve psychiatrists are related to the suicide of their patients. Proper documentation is crucial for demonstration of standard or customary care. The chapter involves discussion of “what is and how to determine” standards of care. An expert participating in a malpractice case must be familiar with the legal language that describes the standard of care and only participate by giving an expert opinion in the area of his or her expertise. The authors highlight that standards of care change along with new knowledge in the field and one has an ethical and professional duty “to stay abreast.”

Chapter 10, “Civil Competency,” by Ralph Slovenko, JD, PhD, treats one of the most frequently used terms in the forensic psychiatric setting. The presence of competency in one area may not necessarily mean it is present in another. The author discusses what elements should be present to determine a person’s competency to consent for medical care, to make a will, to enter into a contract, to be a witness, or to have professional competency and to determine the competency of a minor to consent to treatment. The reader also will find discussions involving the Americans with Disabilities Act of 1990. The chapter clarifies the specific role of the psychiatrist in the determination of the presence or absence of a “psychiatric impairment or state that creates the impairment in judgment” related to specific issues. Dr. Slovenko cites several landmark case briefs to illustrate the topics covered. When discussing professional competency, the author states that disciplinary actions against an impaired physician take months or longer, no matter how dangerous or incompetent the conduct may be, and that disciplinary actions or expulsions are rare. He bases his findings on the data collected by a sociologist from the University of Michigan. One hopes these findings are valid. A quick look at the Board Briefs, however, still shows far too many disciplinary actions and revocations of licenses for one to rest comfortably in Virginia.

Joan B. Gerbasi, MD, JD, in Chapter 11, “Forensic Assessment in Personal Injury Litigation,” points out that personal-injury cases involve evaluation of the claimant’s current, as well as past and future, functional condition. Such an assessment is a very challenging task. She covers the conduct of psychiatric evaluation, establishment of a psychiatric diagnosis, causation, evaluation of possible malingering, degree of disability, and evaluation of current treatment and prognosis. The evaluator must be ready to answer questions or to provide an opinion on the relationship between the traumatic event and the injury, disability, and psychiatric diagnosis. To be able to provide such answers, the evaluator must be very familiar with claimant’s past and present levels of functioning. Dr. Gerbasi emphasizes the necessity of gathering a detailed history and data from collateral sources, to be able to render a valid opinion. Most frequently seen disorders are discussed: post-traumatic stress disorder (PTSD), conversion disorder, malingering, and head injury. The chapter is illustrated with clinical vignettes that make the author’s points very clear and memorable.

Chapter 12, “Personal Injury and the Legal Process,” by Marvin Firestone, MD, JD, is one of the textbook’s key chapters. It has several vignettes that highlight the frequent dilemmas that the forensic evaluator may face during work on a personal-injury case. Was the injury the direct result of trauma? Has the level of functioning changed since the incident? Does malingering or a preexisting condition play any role in the presentation of symptoms? The chapter discusses the interactions with the retaining attorney, collection of a database, interview of the plaintiff, and writing of the forensic report. There also is discussion of the rendered opinion on legal matters, including treatment, prognosis, and anticipated effect on the levels of personal, social, and employment functioning. Other important aspects of expert work—deposition, testimony, demeanor and presentation at trial—are discussed as well.

Albert M. Drukteinis, MD, JD, notes in Chapter 13, “Disability,” that clinicians are often asked to evaluate or provide an opinion on different types of disabilities: short‐ and long‐term impairment, workers’ compensation cases, personal‐injury cases, or fitness for duty, for example. Familiarity with the process also helps to minimize the number of mistakes one may make in such a complex process. The mental disorder does not necessarily lead to impairment, and impairment does not always result in disability. Dr. Drukteinis refers to the AMA Guides to the Evaluation of Permanent Impairment. Psychiatric impairment evaluation requires assessment of activities of daily living, social functioning, concentration, persistence, pace, and decompensation in complex or work‐like situations. The Social Security Administration (SSA) has its own set of rules for determination of disability. It views the disabling psychiatric condition as one that leads to an individual’s inability to work or engage in activity that provides substantial gain for the period of at least 12 months. It also has several levels of severity, as in the AMA guide. The definition of disability varies. In the case of private insurance, it is defined as the inability to perform functions of the job that the insured had at the time of signing the insurance policy. One may be eligible for private insurance disability compensation but not for Social Security Disability Insurance, since it requires the complete inability to work. The chapter discusses the assessment process and gives excellent hints for writing an objective report. How do you approach the evaluation of disability when the client tells you “I can’t take the stress of work any more.” What data should the evaluator use to address this problem? The answers can be found in this chapter.

Chapter 14, “The Workplace,” is written by Liza H. Gold, MD. Litigations involving employers and employees are on the rise. Awards and legal fees can be very large in these cases. Forensic psychiatrists and psychologists are called on to provide expert opinions on the matter of employment‐related cases with increased frequency. Testimony of an expert regarding mental or emotional damage, causation, and prognosis may significantly influence the outcome of a litigation. The three main goals in employment‐related evaluations are establishing psychiatric diagnosis, causation, and disability.

Chapter 15, “Competency to Stand Trial and the Insanity Defense,” by Phillip J. Resnick, MD, and Stephen Noffsinger, MD, begins with the reminder that The United States Constitution guarantees the right to be represented and to the substantive and procedural due process of law in its Sixth and Fourteenth Amendments. The authors provide guidance for performing competency‐to‐stand‐trial (CST) and insanity‐defense evaluations. The present test for competency to stand trial is derived from the landmark case of Dusky v. U.S., 362 U.S. 402 (1960). The standard of proof is a preponderance of the evidence (i.e., more than 51%, or more likely than not). The evaluator of CST must know the standards of the local jurisdiction concerning CST, review of relevant records, examination of the defendant, and submission of a written report. An important point is that most of the states prohibit the use of a CST evaluation to prove the defendant’s guilt. Every evaluator should inquire about the defendant’s understanding of the charges and their severity; the concept of plea agreement; the roles of the judge, defense attorney, prosecutor, jury, witness, and victim; and the adversarial nature of court procedure. All these concepts and more are found in this chapter.

Also discussed are several models of insanity-defense standards and recommended steps an evaluator should undertake to render an opinion on the matter of insanity. A quality evaluation requires review of medical records, collection of collateral information concerning the events from various sources, knowledge of the defendant’s behavior surrounding the offense, an interview with the defendant, and review of a detailed account of the crime. After the evaluator forms an opinion, there should be a statement in the exact language of the jurisdictional standard. Rationale for the opinion must be logical, to establish credibility for jurors and judges. Finally, the authors discuss common mistakes evaluators make while performing CST and sanity evaluations.

Howard Zonana, MD, J. Adrienne Roth, PhD, and Vladmir Coric, MD, collaborated on Chapter 16, “Forensic Assessment of Sex Offenders.” The evaluation of sex offenders deals with many legal, ethical, medical, and other problems. Issues that each evaluator must be familiar with when evaluating sex offenders are covered and include, in part, degree of confidentiality, potential evaluation limitations, and conflicting legal interests. The authors stress familiarity with ethics guidelines established by several professional organizations regarding the conduct of a proper evaluation.

Also reviewed are several psychophysiological tests that are used in the process of sex offender evaluations, their applications, and limitations. Special attention is given to hypnosis, its applications, limitations, and admissibility in court. Toward the end of the chapter, the authors talk about evaluation of sex offenders for the purpose of management and prediction of likelihood of reoffense, using a spectrum of “static” and “dynamic” variables that may influence recidivism.

In Chapter 17, “Psychiatry in Correctional Settings,” authors Jeffery L. Metzner, MD, and Joel A. Dvoskin, PhD, ABPP, report that nearly 2 million people are incarcerated in the United States. One in five inmates requires “some form of psychiatric intervention.” General psychiatrists provide most of the psychiatric services. Familiarity with the correctional setting is very important for providing the appropriate level of care.

Certain aspects of psychiatric evaluation in the correctional setting, limitations of confidentiality, and American Psychiatric Association and National Commission on Correctional Health Care standards and guidelines for correctional mental health are all discussed. The authors also provide vignettes illustrating several potential scenarios that psychiatrists involved in correctional mental health may encounter: inmate suicide, jail diversion, psychiatrists’ dual-agency roles, and involvement with evaluations for disciplinary boards.

From Debra A. Pinals, MD, and Marilyn Price, MD, comes Chapter 18, “Forensic Psychiatry and Law Enforcement.” This chapter discusses areas in which psychiatrists may interact with law enforcement to provide mental health training and education for the purpose of recognizing and managing mentally ill persons. The evaluation of cases of “suicide by cop” (when a person intent on suicide incites potentially deadly defensive actions against himself by a police officer) is also covered. The chapter presents potential assistance that qualified psychiatrists may offer in crisis negotiations. The authors also discuss the role a psychiatrist can play in acting as a consultant to crisis negotiation teams and fitness-for-duty evaluation of law enforcement officers. These skills are not always taught in psychiatry residencies or in forensic psychiatry fellowship programs.

Chapter 19, “Malingering,” was written by John W. Thompson Jr, MD, H. W. LeBourgeois III, MD, and F. William Black, PhD. Malingering includes deception. It is no surprise that very few practitioners feel comfortable in making this diagnosis. In most cases, a diagnosis of malingering effectively terminates a therapeutic relationship. Nevertheless, clinicians should always consider this diagnosis, especially in situations involving forensic matters. Malingering has been acknowledged since biblical times. People malinger illnesses to avoid harm or combat or to profit from compensation. According to some statistics, malingering occurs in about 7 percent of nonforensic, 20 percent of forensic, and 33 percent of personal-injury cases. The most prominent conditions malingered in the forensic setting are psychosis, PTSD, and amnesia or other cognitive deficits. Certain disorders of the somatoform spectrum may be easily mistaken for malingering, and practitioners should be familiar with them. The authors provide several case scenarios of malingered presentations and suggest an appropriate approach in establishing, ruling out, and dealing with malingering. The chapter is very well written and will be useful in clinical and forensic practice.

Chapter 20, “Children and Adolescents” by Peter Ash, MD, is for psychiatrists involved in providing expertise in criminal or civil matters involving juveniles, who perform a different role than psychiatrists evaluating adults. The role is one of advocate for the well-being of the juvenile examinee. As with any evaluation, the consultant needs to clarify the role he or she is to play before making the decision to take the case. The author warns about the danger of being both the treating psychiatrist and the expert. Next, the author discusses the role a clinician may play when his or her patient is going through a divorce involving a child-custody dispute. He also reviews the assessment of parents in cases of abuse and neglect, delinquency cases in juvenile court, and threats made by school students. The authors outline key differences to show that forensic child and adolescent psychiatry occupies a unique position in the field of forensic psychiatry.

Alan R. Felthous, MD, notes in Chapter 21, “Personal Violence,” that a forensic psychiatrist is frequently asked to provide consultation regarding the assessment of a violent individual in the community, the criminal justice system, or a malpractice litigation. The author emphasizes that the assessment of the risk of violence is a dynamic process and involves taking into account several internal (toxic, metabolic factors) and external (frustration, provocation, loss, social environment) factors, as well as relevant history and static factors. Two clinical vignettes are provided to illustrate appropriate management of violence by establishing diagnosis and treatment, and by providing appropriate warning to potential victims of violent threats. Next, the author discusses several potential scenarios about when the evaluator may be asked to make an assessment of violence before future disposition, such as placement on parole, probation, or placement after an NGRI judgment. The author outlines evaluations of workplace violence and steps the evaluator should take before the opinion can be rendered in a violence assessment. Dr. Felthous provides information about expert involvement in cases of violence against patients or staff on inpatient grounds, proper discharge procedures, assessment of applied standards of care, and related liability. Finally, he briefly discusses potential liability of a treating psychiatrist when his or her patient is involved in a motor vehicle accident or in a violent episode while in treatment as an outpatient. As noted in previous chapters, the knowledge of jurisdictional law is vital for providing psychiatric care and rendering an expert opinion.

Douglas Mossman, MD, is the author of Chapter 22, “Understanding Prediction Instruments.” Psychiatrists frequently make predictions pertaining to treatment choice, future violence, or recidivism. In recent years, several instrumental tests have been developed to assist in the assessment of risk. The author discusses advantages and limitations of the HCR-20 (Historical, Clinical and Risk management items), VRAG (Violence Risk Appraisal Guide), and SORAG (Sex Offender Risk Appraisal Guide) instruments in clinical and forensic psychiatry.

Daniel Brown, PhD, wrote the final entry, Chapter 23, “The Evolving Standard in Forensic Psychological Testing.” Experts perform forensic assessments differently, which results in a lack of standardization and frequently criticism. In recent years, significant efforts have been made to establish more standardized and structured interviews and examinations. To minimize the influence of personal bias, the author recommends using a battery of psychological tests, such as MMPI-2, MCMI-2, and SCID-II, to test different variables. Such an approach is more likely to reduce error in expert opinion and increase the value of testimony. Dr. Brown also suggests the use of appropriate forensic consent procedures and the selection of generally accepted instruments. These instruments should have standardized methods of administration, scoring, and interpretation. The expert should evaluate other relevant sources (e.g., medical records, depositions) and provide an opinion that is relevant to the question and should disclose limitations and alternatives that may affect the certainty of the rendered opinion.

From the point of view of a forensic psychiatric resident, this textbook contains a great deal of pertinent information, helpful advice, and necessary guidance. The textbook provides excellent study materials to build skills in a field that is undergoing constant change. It clearly would help the general psychiatrist who performs some forensic evaluations. For the experienced forensic psychiatrist, it may supply an interesting update.

• American Academy of Psychiatry and the Law