# 01 - 36.1 Forensic Psychiatry

# 36.1 Forensic Psychiatry

Forensic Psychiatry and Ethics in
Psychiatry
 36.1 Forensic Psychiatry
The word forensic means belonging to the courts of law, and at various times, psychiatry
and the law converge. Forensic psychiatry covers a broad range of topics that involve
psychiatrists’ professional, ethical, and legal duties to provide competent care to
patients; the patients’ rights of self-determination to receive or refuse treatment; court
decisions, legislative directives, governmental regulatory agencies, and licensure boards;
and the evaluation of those charged with crimes to determine their culpability and
ability to stand trial. Finally, the ethical codes and practice guidelines of professional
organizations and their adherence also fall within the realm of forensic psychiatry.
MEDICAL MALPRACTICE
Medical malpractice is a tort, or civil wrong. It is a wrong resulting from a physician’s
negligence. Simply put, negligence means doing something that a physician with a duty
to care for the patient should not have done or failing to do something that should have
been done as defined by current medical practice. Usually, the standard of care in
malpractice cases is established by expert witnesses. The standard of care is also
determined by reference to journal articles; professional textbooks, such as the
Comprehensive Textbook of Psychiatry; professional practice guidelines; and ethical
practices promulgated by professional organizations.
To prove malpractice, the plaintiff (e.g., patient, family, or estate) must establish by a
preponderance of evidence that (1) a doctor–patient relationship existed that created a
duty of care, (2) a deviation from the standard of care occurred, (3) the patient was
damaged, and (4) the deviation directly caused the damage.
These elements of a malpractice claim are sometimes referred to as the 4 Ds (duty,
deviation, damage, direct causation).
Each of the four elements of a malpractice claim must be present or there can be no
finding of liability. For example, a psychiatrist whose negligence is the direct cause of
harm to an individual (physical, psychological, or both) is not liable for malpractice if
no doctor–patient relationship existed to create a duty of care. Psychiatrists are not
likely to be sued successfully if they give advice on a radio program that is harmful to a
caller, particularly if a caveat was given to the caller that no doctor–patient relationship
was being created. No malpractice claim will be sustained against a psychiatrist if a

patient’s worsening condition is unrelated to negligent care. Not every bad outcome is
the result of negligence. Psychiatrists cannot guarantee correct diagnoses and
treatments. When the psychiatrist provides due care, mistakes may be made without
necessarily incurring liability. Most psychiatric cases are complicated. Psychiatrists
make judgment calls when selecting a particular treatment course among the many
options that may exist. In hindsight, the decision may prove wrong but not be a
deviation in the standard of care.
In addition to negligence suits, psychiatrists can be sued for the intentional torts of
assault, battery, false imprisonment, defamation, fraud or misrepresentation, invasion
of privacy, and intentional infliction of emotional distress. In an intentional tort,
wrongdoers are motivated by the intent to harm another person or realize, or should
have realized, that such harm is likely to result from their actions. For example, telling a
patient that sex with the therapist is therapeutic perpetrates a fraud. Most malpractice
policies do not provide coverage for intentional torts.
Negligent Prescription Practices
Negligent prescription practices usually include exceeding recommended dosages and
then failing to adjust the medication level to therapeutic levels, unreasonable mixing of
drugs, prescribing medication that is not indicated, prescribing too many drugs at one
time, and failing to disclose medication effects. Elderly patients frequently take a
variety of drugs prescribed by different physicians. Multiple psychotropic medications
must be prescribed with special care because of possible harmful interactions and
adverse effects.
Psychiatrists who prescribe medications must explain the diagnosis, risks, and benefits
of the drug within reason and as circumstances permit (Table 36.1-1). Obtaining
competent informed consent can be problematic if a psychiatric patient has diminished
cognitive capacity because of mental illness or chronic brain impairment; a substitute
health care decision maker may need to provide consent.
Table 36.1-1
Informed Consent: Reasonable Information to Be Disclosed
Informed consent should be obtained each time a medication is changed and a new
drug is introduced. If patients are injured because they were not properly informed of

the risks and consequences of taking a medication, sufficient grounds may exist for a
malpractice action.
The question is often asked: How frequently should patients be seen for medication
follow-up? The answer is that patients should be seen according to their clinical needs.
No stock answer about the frequency of visits can be given. The longer the time interval
between visits, however, the greater the likelihood of adverse drug reactions and clinical
developments. Patients taking medications should probably not go beyond 6 months for
follow-up visits. Managed care policies that do not reimburse for frequent follow-up
appointments can result in a psychiatrist prescribing large amounts of medications. The
psychiatrist is duty bound to provide appropriate treatment to the patient, quite apart
from managed care or other payment policies.
Other areas of negligence involving medication that have resulted in malpractice
actions include failure to treat adverse effects that have, or should have, been
recognized; failure to monitor a patient’s compliance with prescription limits; failure to
prescribe medication or appropriate levels of medication according to the treatment
needs of the patient; prescribing addictive drugs to vulnerable patients; failure to refer a
patient for consultation or treatment by a specialist; and negligent withdrawal of
medication treatment.
Split Treatment
In split treatment, the psychiatrist provides medication, and a nonmedical therapist
conducts the psychotherapy. The following vignette illustrates a possible complication.
A psychiatrist provided medications for a depressed 43-year-old woman. A master’s
level counselor saw the patient for outpatient psychotherapy. The psychiatrist saw the
patient for 20 minutes during the initial evaluation and prescribed a tricyclic drug,
and the patient was prescribed sufficient drugs for follow-up in 3 months. The
psychiatrist’s initial diagnosis was recurrent major depression. The patient denied
suicidal ideation. Appetite and sleep were markedly diminished. The patient had a
long history of recurrent depression with suicide attempts. No further discussions were
held between the psychiatrist and the counselor, who saw the patient once a week for
30 minutes in psychotherapy. Within 3 weeks, after a failed romantic relationship, the
patient stopped taking her antidepressant medication, started to drink heavily, and
committed suicide with an overdose of alcohol and antidepressant drugs. The
counselor and psychiatrist were sued for negligent diagnosis and treatment.
Psychiatrists must do an adequate evaluation, obtain prior medical records, and
understand that no such thing as a partial patient exists. Split treatments are potential
malpractice traps because patients can “fall between the cracks” of fragmented care.
The psychiatrist retains full responsibility for the patient’s care in a split treatment
situation. This does not preempt the responsibility of the other mental health

professionals involved in the patient’s treatment. Section V, annotation 3 of the
Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry, states:
“When the psychiatrist assumes a collaborative or supervisory role with another mental
health worker, he/she must expend sufficient time to assure that proper care is given.”
In managed care or other settings, a marginalized role of merely prescribing
medication apart from a working doctor–patient relationship does not meet generally
accepted standards of good clinical care. The psychiatrist must be more than just a
medication technician. Fragmented care in which the psychiatrist only dispenses
medication while remaining uninformed about the patient’s overall clinical status
constitutes substandard treatment that may lead to a malpractice action. At a minimum,
such a practice diminishes the efficacy of the drug treatment itself or may even lead to
the patient’s failure to take the prescribed medication.
Split-treatment situations require that the psychiatrist remain fully informed of the
patient’s clinical status as well as the nature and quality of treatment the patient is
receiving from the nonmedical therapist. In a collaborative relationship, the
responsibility for the patient’s care is shared according to the qualifications and
limitations of each discipline. The responsibilities of each discipline do not diminish
those of the other disciplines. Patients should be informed of the separate
responsibilities of each discipline. The psychiatrist and the nonmedical therapist must
periodically evaluate the patient’s clinical condition and requirements to determine
whether the collaboration should continue. On termination of the collaborative
relationship, both parties treating the patient should inform the patient either
separately or jointly. In split treatments, if the nonmedical therapist is sued, the
collaborating psychiatrist will likely be sued also and vice versa.
Psychiatrists who prescribe medications in a split-treatment arrangement should be
able to hospitalize a patient if it becomes necessary. If the psychiatrist does not have
admitting privileges, prearrangements should be made with other psychiatrists who can
hospitalize patients if emergencies arise. Split treatment is increasingly used by
managed care companies and is a potential malpractice minefield.
PRIVILEGE AND CONFIDENTIALITY
Privilege
Privilege is the right to maintain secrecy or confidentiality in the face of a subpoena.
Privileged communications are statements made by certain persons within a
relationship—such as husband–wife, priest–penitent, or doctor–patient—that the law
protects from forced disclosure on the witness stand. The right of privilege belongs to
the patient, not to the physician, so the patient can waive the right.
Psychiatrists, who are licensed to practice medicine, may claim medical privilege, but
privilege has some qualifications. For example, privilege does not exist at all in military
courts, regardless of whether the physician is military or civilian and whether the
privilege is recognized in the state in which the court martial takes place.
In 1996, the United States Supreme Court recognized a psychotherapist–patient

privilege in Jaffee v. Redmon. Emphasizing the important public and private interests
served by the psychotherapist–patient privilege, the Court wrote: Because we agree with
the judgment of the state legislatures and the Advisory Committee that a
psychotherapist-patient privilege will serve a “public good transcending the normal
predominant principle utilizing all rational means for ascertaining truth”… we hold that
confidential communications between a licensed psychotherapist and her patients in the
course of diagnosis or treatment are protected from compelled disclosure under Rule 501
of the Federal Rules of Evidence.
Confidentiality
A long-held premise of medical ethics binds physicians to hold secret all information
given by patients. This professional obligation is called confidentiality. Confidentiality
applies to certain populations and not to others; a group that is within the circle of
confidentiality shares information without receiving specific permission from a patient.
Such groups include, in addition to the physician, other staff members treating the
patient, clinical supervisors, and consultants.
A subpoena can force a psychiatrist to breach confidentiality, and courts must be able
to compel witnesses to testify for the law to function adequately. A subpoena (“under
penalty”) is an order to appear as a witness in court or at a deposition. Physicians
usually are served with a subpoena duces tecum, which requires that they also produce
their relevant records and documents. Although the power to issue subpoenas belongs to
a judge, they are routinely issued at the request of an attorney representing a party to
an action.
In bona fide emergencies, information may be released in as limited a way as feasible
to carry out necessary interventions. Sound clinical practice holds that a psychiatrist
should make the effort, time allowing, to obtain the patient’s permission anyway and
should debrief the patient after the emergency.
As a rule, clinical information may be shared with the patient’s permission—
preferably written permission, although oral permission suffices with proper
documentation. Each release is good for only one piece of information, and permission
should be reobtained for each subsequent release, even to the same party. Permission
overcomes only the legal barrier, not the clinical one; the release is permission, not
obligation. If a clinician believes that the information may be destructive, the matter
should be discussed, and the release may be refused, with some exceptions.
Third-Party Payers and Supervision.
 Increased insurance coverage for health
care is precipitating a concern about confidentiality and the conceptual model of
psychiatric practice. Today, insurance covers about 70 percent of all health care bills; to
provide coverage, an insurance carrier must be able to obtain information with which it
can assess the administration and costs of various programs.
Quality control of care necessitates that confidentiality not be absolute; it also
requires a review of individual patients and therapists. The therapist in training must

breach a patient’s confidence by discussing the case with a supervisor. Institutionalized
patients who have been ordered by a court to get treatment must have their
individualized treatment programs submitted to a mental health board.
Discussions About Patients.
 In general, psychiatrists have multiple loyalties: to
patients, to society, and to the profession. Through their writings, teaching, and
seminars, they can share their acquired knowledge and experience and provide
information that may be valuable to other professionals and to the public. It is not easy
to write or talk about a psychiatric patient, however, without breaching the
confidentiality of the relationship. Unlike physical ailments, which can be discussed
without anyone’s recognizing the patient, a psychiatric history usually entails a
discussion of distinguishing characteristics. Psychiatrists have an obligation not to
disclose identifiable patient information (and, perhaps, any descriptive patient
information) without appropriate informed consent. Failure to obtain informed consent
could result in a claim based on breach of privacy, defamation, or both.
Internet and Social Media.
 It is imperative that psychiatrists and other mental
health professionals be aware of the legal implications of discussing patients over the
Internet. Internet communications about patients are not confidential, are subject to
hacking, and are open to legal subpoenas. Some psychiatrists have blogged about
patients thinking they were sufficiently disguised only to find that they were recognized
by others, including the involved patient. Some professional organizations have
electronic mailing lists in which they ask advice about patients from their colleagues or
make referrals and in so doing provide detailed information about the patient that can
easily be traced. Similarly, using social media to communicate about patients is equally
risky.
Child Abuse.
 In many states, all physicians are legally required to take a course on
child abuse for medical licensure. All states now legally require that psychiatrists,
among others, who have reason to believe that a child has been the victim of physical or
sexual abuse make an immediate report to an appropriate agency. In this situation,
confidentiality is decisively limited by legal statute on the grounds that potential or
actual harm to vulnerable children outweighs the value of confidentiality in a
psychiatric setting. Although many complex psychodynamic nuances accompany the
required reporting of suspected child abuse, such reports generally are considered
ethically justified.
HIGH-RISK CLINICAL SITUATIONS
Tardive Dyskinesia
It is estimated that at least 10 to 20 percent of patients and perhaps as high as 50
percent of patients treated with neuroleptic drugs for more than 1 year exhibit some
tardive dyskinesia. These figures are even higher for elderly patients. Despite the

possibility for many tardive dyskinesia–related suits, relatively few psychiatrists have
been sued. In addition, patients who develop tardive dyskinesia may not have the
physical energy and psychological motivation to pursue litigation. Allegations of
negligence involving tardive dyskinesia are based on a failure to evaluate a patient
properly, a failure to obtain informed consent, a negligent diagnosis of a patient’s
condition, and a failure to monitor.
Suicidal Patients
Psychiatrists may be sued when their patients commit suicide, particularly when
psychiatric inpatients kill themselves. Psychiatrists are assumed to have more control
over inpatients, making the suicide preventable.
The evaluation of suicide risk is one of the most complex, dauntingly difficult clinical
tasks in psychiatry. Suicide is a rare event. In our current state of knowledge, clinicians
cannot accurately predict when or if a patient will commit suicide. No professional
standards exist for predicting who will or will not commit suicide. Professional
standards do exist for assessing suicide risk, but at best, only the degree of suicide risk
can be judged clinically after a comprehensive psychiatric assessment.
A review of the case law on suicide reveals that certain affirmative precautions should
be taken with a suspected or confirmed suicidal patient. For example, failing to perform
a reasonable assessment of a suicidal patient’s risk for suicide or implement an
appropriate precautionary plan will likely render a practitioner liable. The law tends to
assume that suicide is preventable if it is foreseeable. Courts closely scrutinize suicide
cases to determine if a patient’s suicide was foreseeable. Foreseeability is a deliberately
vague legal term that has no comparable clinical counterpart, a common-sense rather
than a scientific construct. It does not (and should not) imply that clinicians can predict
suicide. Foreseeability should not be confused with preventability, however. In
hindsight, many suicides seem preventable that were clearly not foreseeable.
Violent Patients
Psychiatrists who treat violent or potentially violent patients may be sued for failure to
control aggressive outpatients and for the discharge of violent inpatients. Psychiatrists
can be sued for failing to protect society from the violent acts of their patients if it was
reasonable for the psychiatrist to have known about the patient’s violent tendencies and
if the psychiatrist could have done something that could have safeguarded the public. In
the landmark case Tarasoff v. Regents of the University of California, the California
Supreme Court ruled that mental health professionals have a duty to protect
identifiable, endangered third parties from imminent threats of serious harm made by
their outpatients. Since then, courts and state legislatures have increasingly held
psychiatrists to a fictional standard of having to predict the future behavior
(dangerousness) of their potentially violent patients. Research has consistently
demonstrated that psychiatrists cannot predict future violence with any dependable
accuracy.

The duty to protect patients and endangered third parties should be considered
primarily a professional and moral obligation and, only secondarily, a legal duty. Most
psychiatrists acted to protect both their patients and others threatened by violence long
before Tarasoff.
If a patient threatens harm to another person, most states require that the psychiatrist
perform some intervention that might prevent the harm from occurring. In states with
duty-to-warn statutes, the options available to psychiatrists and psychotherapists are
defined by law. In states offering no such guidance, health care providers are required
to use their clinical judgment and act to protect endangered third persons. Typically, a
variety of options to warn and protect are clinically and legally available, including
voluntary hospitalization, involuntary hospitalization (if civil commitment requirements
are met), warning the intended victim of the threat, notifying the police, adjusting
medication, and seeing the patient more frequently. Warning others of danger, by itself,
is usually insufficient. Psychiatrists should consider the Tarasoff duty to be a national
standard of care, even if they practice in states that do not have a duty to warn and
protect.
Tarasoff I.
 This issue was raised in 1976 in the case of Tarasoff v. Regents of
University of California (now known as Tarasoff I). In this case, Prosenjiit Poddar, a
student and a voluntary outpatient at the mental health clinic of the University of
California, told his therapist that he intended to kill a student readily identified as
Tatiana Tarasoff. Realizing the seriousness of the intention, the therapist, with the
concurrence of a colleague, concluded that Poddar should be committed for observation
under a 72-hour emergency psychiatric detention provision of the California
commitment law. The therapist notified the campus police, both orally and in writing,
that Poddar was dangerous and should be committed.
Concerned about the breach of confidentiality, the therapist’s supervisor vetoed the
recommendation and ordered all records relating to Poddar’s treatment destroyed. At
the same time, the campus police temporarily detained Poddar but released him on his
assurance that he would “stay away from that girl.” Poddar stopped going to the clinic
when he learned from the police about his therapist’s recommendation to commit him.
Two months later, he carried out his previously announced threat to kill Tatiana. The
young woman’s parents thereupon sued the university for negligence.
As a consequence, the California Supreme Court, which deliberated the case for the
unprecedented time of about 14 months, ruled that a physician or a psychotherapist
who has reason to believe that a patient may injure or kill someone warn the potential
victim.
The discharge of the duty imposed on the therapist to warn intended victims against
danger may take one or more forms, depending on the case. Therefore, stated the court,
it may call for the therapist to notify the intended victim or others likely to notify the
victim of the danger, to notify the police, or to take whatever other steps are reasonably
necessary under the circumstances.
The Tarasoff I ruling does not require therapists to report a patient’s fantasies; instead,

it requires them to report an intended homicide, and it is the therapist’s duty to exercise
good judgment.
Tarasoff II.
 In 1982, the California Supreme Court issued a second ruling in the case
of Tarasoff v. Regents of University of California (now known as Tarasoff II), which
broadened its earlier ruling extending the duty to warn to include the duty to protect.
The Tarasoff II ruling has stimulated intense debates in the medicolegal field. Lawyers,
judges, and expert witnesses argue the definition of protection, the nature of the
relationship between the therapist and the patient, and the balance between public
safety and individual privacy.
Clinicians argue that the duty to protect hinders treatment because a patient may not
trust a doctor if confidentiality is not maintained. Furthermore, because it is not easy to
determine whether a patient is sufficiently dangerous to justify long-term incarceration,
unnecessary involuntary hospitalization may occur because of a therapist’s defensive
practices.
As a result of such debates in the medicolegal field, since 1976, the state courts have
not made a uniform interpretation of the Tarasoff II ruling (the duty to protect).
Generally, clinicians should note whether a specific identifiable victim seems to be in
imminent and probable danger from the threat of an action contemplated by a mentally
ill patient; the harm, in addition to being imminent, should be potentially serious or
severe. Usually, the patient must be a danger to another person and not to property; the
therapist should take clinically reasonable action.
HOSPITALIZATION
All states provide for some form of involuntary hospitalization. Such action usually is
taken when psychiatric patients present a danger to themselves or others in their
environment to the extent that their urgent need for treatment in a closed institution is
evident. Certain states allow involuntary hospitalization when patients are unable to
care for themselves adequately.
The doctrine of parens patriae allows the state to intervene and to act as a surrogate
parent for those who are unable to care for themselves or who may harm themselves. In
English common law, parens patriae (“father of his country”) dates to the time of King
Edward I and originally referred to a monarch’s duty to protect the people. In US
common law, the doctrine has been transformed into a paternalism in which the state
acts for persons who are mentally ill and for minors.
The statutes governing hospitalization of persons who are mentally ill generally have
been designated commitment laws, but psychiatrists have long considered the term to be
undesirable. Commitment legally means a warrant for imprisonment. The American Bar
Association and the American Psychiatric Association have recommended that the term
commitment be replaced by the less offensive and more accurate term hospitalization,
which most states have adopted. Although this change in terminology does not correct
the punitive attitudes of the past, the emphasis on hospitalization is in keeping with

psychiatrists’ views of treatment rather than punishment.
Procedures of Admission
Four procedures of admission to psychiatric facilities have been endorsed by the
American Bar Association to safeguard civil liberties and to make sure that no person is
railroaded into a mental hospital. Although each of the 50 states has the power to enact
its own laws on psychiatric hospitalization, the procedures outlined here are gaining
much acceptance.
Informal Admission.
 Informal admission operates on the general hospital model,
in which a patient is admitted to a psychiatric unit of a general hospital in the same
way that a medical or surgical patient is admitted. Under such circumstances, the
ordinary doctor–patient relationship applies, with the patient free to enter and to leave,
even against medical advice.
Voluntary Admission.
 In cases of voluntary admission, patients apply in writing
for admission to a psychiatric hospital. They may come to the hospital on the advice of a
personal physician, or they may seek help on their own. In either case, patients are
admitted if an examination reveals the need for hospital treatment. The patient is free
to leave, even against medical advice.
Temporary Admission.
 Temporary admission is used for patients who are so
senile or so confused that they require hospitalization and are not able to make
decisions on their own and for patients who are so acutely disturbed that they must be
admitted immediately to a psychiatric hospital on an emergency basis. Under the
procedure, a person is admitted to the hospital on the written recommendation of one
physician. After the patient has been admitted, the need for hospitalization must be
confirmed by a psychiatrist on the hospital staff. The procedure is temporary because
patients cannot be hospitalized against their will for more than 15 days.
Involuntary Admission.
 Involuntary admission involves the question of whether
patients are suicidal and thus a danger to themselves or homicidal and thus a danger to
others. Because these persons do not recognize their need for hospital care, the
application for admission to a hospital may be made by a relative or a friend. After the
application is made, the patient must be examined by two physicians, and if both
physicians confirm the need for hospitalization, the patient can then be admitted.
Involuntary hospitalization involves an established procedure for written notification
of the next of kin. Furthermore, the patients have access at any time to legal counsel,
who can bring the case before a judge. If the judge does not think that hospitalization is
indicated, the patient’s release can be ordered.
Involuntary admission allows a patient to be hospitalized for 60 days. After this time,
if the patient is to remain hospitalized, the case must be reviewed periodically by a

board consisting of psychiatrists, nonpsychiatric physicians, lawyers, and other citizens
not connected with the institution. In New York State, the board is called the Mental
Health Information Service.
Persons who have been hospitalized involuntarily and who believe that they should be
released have the right to file a petition for a writ of habeas corpus. Under law, a writ
of habeas corpus can be proclaimed by those who believe that they have been illegally
deprived of liberty. The legal procedure asks a court to decide whether a patient has
been hospitalized without due process of law. The case must be heard by a court at once,
regardless of the manner or the form in which the motion is filed. Hospitals are
obligated to submit the petitions to the court immediately.
RIGHT TO TREATMENT
Among the rights of patients, the right to the standard quality of care is fundamental.
This right has been litigated in highly publicized cases in recent years under the slogan
of “right to treatment.”
In 1966, Judge David Bazelon, speaking for the District of Columbia Court of Appeals
in Rouse v. Cameron, noted that the purpose of involuntary hospitalization is treatment
and concluded that the absence of treatment draws into question the constitutionality of
the confinement. Treatment in exchange for liberty is the logic of the ruling. In this
case, the patient was discharged on a writ of habeas corpus, the basic legal remedy to
ensure liberty. Judge Bazelon further held that if alternative treatments that infringe
less on personal liberty are available, involuntary hospitalization cannot take place.
Alabama Federal Court Judge Frank Johnson was more venturesome in the decree he
rendered in 1971 in Wyatt v. Stickney. The Wyatt case was a class-action proceeding
brought under newly developed rules that sought not release but treatment. Judge
Johnson ruled that persons civilly committed to a mental institution have a
constitutional right to receive such individual treatment as will give them a reasonable
opportunity to be cured or to have their mental condition improved. Judge Johnson set
out minimal requirements for staffing, specified physical facilities, and nutritional
standards and required individualized treatment plans.
The new codes, more detailed than the old ones, include the right to be free from
excessive or unnecessary medication; the right to privacy and dignity; the right to the
least restrictive environment; the unrestricted right to be visited by attorneys, clergy,
and private physicians; and the right not to be subjected to lobotomies,
electroconvulsive treatments, and other procedures without fully informed consent.
Patients can be required to perform therapeutic tasks but not hospital chores unless they
volunteer for them and are paid the federal minimum wage. This requirement is an
attempt to eliminate the practice of peonage, in which psychiatric patients were forced
to work at menial tasks, without payment, for the benefit of the state.
In a number of states today, medication or electroconvulsive therapy cannot be
forcibly administered to a patient without first obtaining court approval, which may
take as long as 10 days.

RIGHT TO REFUSE TREATMENT
The right to refuse treatment is a legal doctrine that holds that, except in emergencies,
persons cannot be forced to accept treatment against their will. An emergency is defined
as a condition in clinical practice that requires immediate intervention to prevent death
or serious harm to the patient or another person or to prevent deterioration of the
patient’s clinical state.
In the 1976 case of O’Connor v. Donaldson, the Supreme Court of the United States
ruled that harmless mentally ill patients cannot be confined against their will without
treatment if they can survive outside. According to the Court, a finding of mental illness
alone cannot justify a state’s confining persons in a hospital against their will. Instead,
involuntarily confined patients must be considered dangerous to themselves or others or
possibly so unable to care for themselves that they cannot survive outside. As a result of
the 1979 case of Rennie v. Klein, patients have the right to refuse treatment and to use
an appeal process. As a result of the 1981 case of Roger v. Oken, patients have an
absolute right to refuse treatment, but a guardian may authorize treatment.
Questions have been raised about psychiatrists’ ability to accurately predict
dangerousness to self or others and about the risk to psychiatrists, who may be sued for
monetary damages if persons who are involuntarily hospitalized are thereby deprived of
their civil rights.
CIVIL RIGHTS OF PATIENTS
Because of several clinical, public, and legal movements, criteria for the civil rights of
persons who are mentally ill, apart from their rights as patients, have been both
established and affirmed.
Least Restrictive Alternative
The principle holds that patients have the right to receive the least restrictive means of
treatment for the requisite clinical effect. Therefore, if a patient can be treated as an
outpatient, commitment should not be used; if a patient can be treated on an open
ward, seclusion should not be used.
Although apparently fairly straightforward on first reading, difficulty arises when
clinicians attempt to apply the concept to choose among involuntary medication,
seclusion, and restraint as the intervention of choice. Distinguishing among these
interventions on the basis of restrictiveness proves to be a purely subjective exercise
fraught with personal bias. Moreover, each of these three interventions is both more and
less restrictive than each of the other two. Nevertheless, the effort should be made to
think in terms of restrictiveness when deciding how to treat patients.
Visitation Rights
Patients have the right to receive visitors and to do so at reasonable hours (customary

hospital visiting hours). Allowance must be made for the possibility that, at certain
times, a patient’s clinical condition may not permit visits. This fact should be clearly
documented, however, because such rights must not be suspended without good reason.
Certain categories of visitors are not limited to the regular visiting hours; these
include a patient’s attorney, private physician, and members of the clergy—all of
whom, broadly speaking, have unrestricted access to the patient, including the right to
privacy in their discussions. Even here, a bona fide emergency may delay such visits.
Again, the patient’s needs come first. Under similar reasoning, certain noxious visits
may be curtailed (e.g., a patient’s relative bringing drugs into the ward).
Communication Rights
Patients should generally have free and open communication with the outside world by
telephone or mail, but this right varies regionally to some degree. Some jurisdictions
charge the hospital administration with a responsibility for monitoring the
communications of patients. In some areas, hospitals are expected to make available
reasonable supplies of paper, envelopes, and stamps for patient’s use.
Specific circumstances affect communication rights. A patient who is hospitalized in
relation to a criminal charge of making harassing or threatening phone calls should not
be given unrestricted access to the telephone, and similar considerations apply to mail.
As a rule, however, patients should be allowed private telephone calls, and their
incoming and outgoing mail should not be opened by hospital staff members.
Private Rights
Patients have several rights to privacy. In addition to confidentiality, they are allowed
private bathroom and shower space, secure storage space for clothing and other
belongings, and adequate floor space per person. They also have the right to wear their
own clothes and to carry their own money.
Economic Rights
Apart from special considerations related to incompetence, psychiatric patients
generally are permitted to manage their own financial affairs. One feature of this fiscal
right is the requirement that patients be paid if they work in the institution (e.g.,
gardening or preparing food). This right often creates tension between the valid
therapeutic need for activity, including jobs, and exploitative labor. A consequence of
this tension is that valuable occupational, vocational, and rehabilitative therapeutic
programs may have to be eliminated because of the failure of legislatures to supply the
funding to pay wages to patients who participate in these programs.
SECLUSION AND RESTRAINT
Seclusion and restraint raise complex psychiatric legal issues. Seclusion and restraint
have both indications and contraindications (Table 36.1-2). Seclusion and restraint have

become increasingly regulated over the past decade.
Table 36.1-2
Indications and Contraindications for Seclusion and Restraint
Legal challenges to the use of restraints and seclusion have been brought on behalf of
institutionalized persons with psychiatric illnesses or cognitive disabilities. Typically,
these lawsuits do not stand alone but are part of a challenge to a wide range of alleged
abuses.
Generally, courts hold, or consent decrees provide, that restraints and seclusion be
implemented only when a patient creates a risk of harm to self or others and no less
restrictive alternative is available. Table 36.1-3 lists additional restrictions.
Table 36.1-3
Restrictions for Seclusion and Restraint
INFORMED CONSENT
Lawyers representing an injured claimant now invariably add to a claim of negligent
performance of procedures (malpractice) an informed consent claim as another possible
area of liability. Ironically, this is one claim under which the requirement of expert
testimony may be avoided. The usual claim of medical malpractice requires the litigant
to produce an expert to establish that the defendant physician departed from accepted

medical practice. But in a case in which the physician did not obtain informed consent,
the fact that the treatment was technically well performed, was in accord with the
generally accepted standard of care, and effected a complete cure is immaterial. As a
practical matter, however, unless the treatment had adverse consequences, a
complainant will not get far with a jury in an action based solely on an allegation that
the treatment was performed without consent.
In the case of minors, the parent or guardian is legally empowered to give consent to
medical treatment. By statute, most states, however, list specific diseases and conditions
that a minor can consent to have treated—including venereal disease, pregnancy,
substance dependence, alcohol abuse, and contagious diseases. In an emergency, a
physician can treat a minor without parental consent. The trend is to adopt the so-called
mature minor rule, which allows minors to consent to treatment under ordinary
circumstances. As a result of the Supreme Court’s 1967 Gault decision, all juveniles must
now be represented by counsel, must be able to confront witnesses, and must be given
proper notice of any charges. Emancipated minors have the rights of an adult when it
can be shown that they are living as adults with control over their own lives.
Consent Form
The basic elements of a consent form should include a fair explanation of the procedures
to be followed and their purposes, including identification of any procedures that are
experimental, a description of any attendant discomforts and risks reasonably to be
expected, a description of any benefits reasonably to be expected, a disclosure of any
appropriate alternative procedures that may be advantageous to the patient, an offer to
answer any inquiries concerning the procedures, and an instruction that the patient is
free to withdraw patient consent and to discontinue participation in the project or
activity at any time without prejudice.
Some theorists have suggested that the form can be replaced by a standardized
discussion that covers the issues noted above and a progress note that documents that
the issues were discussed.
CHILD CUSTODY
The action of a court in a child custody dispute is now predicated on the child’s best
interests. The maxim reflects the idea that a natural parent does not have an inherent
right to be named a custodial parent, but the presumption, although a bit eroded,
remains in favor of the mother in the case of young children. As a rule, the courts
presume that the welfare of a child of tender years generally is best served by maternal
custody when the mother is a good and fit parent. The best interest of the mother may
be served by naming her as the custodial parent because a mother may never resolve the
effects of the loss of a child, but her best interest is not to be equated ipso facto with the
best interest of the child. Care and protection proceedings are the court’s interventions
in the welfare of a child when the parents are unable to care for the child.
More fathers are asserting custodial claims. In about 5 percent of all cases, fathers are

named custodians. The movement supporting women’s rights also is enhancing the
chances of paternal custody. With more women going to work outside the home, the
traditional rationale for maternal custody has less force today than it did in the past.
Currently, every state has a statute allowing a court, usually a juvenile court, to
assume jurisdiction over a neglected or abused child and to remove the child from
parental custody. It usually orders that the care and custody of the child be supervised
by the welfare or probation department.
TESTAMENTARY AND CONTRACTUAL CAPACITY AND COMPETENCE
Psychiatrists may be asked to evaluate patients’ testamentary capacities or their
competence to make a will. Three psychological abilities are necessary to prove this
competence. Patients must know the nature and the extent of their bounty (property),
the fact that they are making a bequest, and the identities of their natural beneficiaries
(spouse, children, and other relatives).
When a will is being probated, one of the heirs or another person may challenge its
validity. A judgment in such cases must be based on a reconstruction, using data from
documents and from expert psychiatric testimony, of the testator’s mental state at the
time the will was written. When a person is unable to, or does not exercise the right to,
make a will, the law in all states provides for the distribution of property to the heirs. If
there are no heirs, the estate goes to the public treasury.
Witnesses at the signing of a will, who might include a psychiatrist, may attest that
the testator was rational at the time the will was executed. In unusual cases, a lawyer
may videotape the signing to safeguard the will from attack. Ideally, persons who are
thinking of making a will and believe that questions might be raised about their
testamentary competence hire a forensic psychiatrist to perform a dispassionate
examination antemortem to validate and record their capacity.
An incompetence proceeding and the appointment of a guardian may be considered
necessary when a family member is spending the family’s assets and the property is in
danger of dissipation, as in the case of patients who are elderly, have cognitive
disabilities, are dependent on alcohol, or have psychosis. At issue is whether such
persons are capable of managing their own affairs. A guardian appointed to take
control of the property of one deemed incompetent, however, cannot make a will for
the ward (the incompetent person).
Competence is determined on the basis of a person’s ability to make a sound judgment
—to weigh, to reason, and to make reasonable decisions. Competence is task specific,
not general; the capacity to weigh decision-making factors (competence) often is best
demonstrated by a person’s ability to ask pertinent and knowledgeable questions after
the risks and the benefits have been explained. Although physicians (especially
psychiatrists) often give opinions on competence, only a judge’s ruling converts the
opinion into a finding; a patient is not competent or incompetent until the court so
rules. The diagnosis of a mental disorder is not, in itself, sufficient to warrant a finding
of incompetence. Instead, the mental disorder must cause an impairment in judgment

for the specific issues involved. After they have been declared incompetent, persons are
deprived of certain rights: they cannot make contracts, marry, start a divorce action,
drive a vehicle, handle their own property, or practice their professions. Incompetence
is decided at a formal courtroom proceeding, and the court usually appoints a guardian
who will best serve a patient’s interests. Another hearing is necessary to declare a
patient competent. Admission to a mental hospital does not automatically mean that a
person is incompetent.
Competence also is essential in contracts because a contract is an agreement between
parties to do a specific act. A contract is declared invalid if, when it was signed, one of
the parties was unable to comprehend the nature and effect of his or her act. The
marriage contract is subject to the same standard and thus can be voided if either party
did not understand the nature, duties, obligations, and other characteristics entailed at
the time of the marriage. In general, however, the courts are unwilling to declare a
marriage void on the basis of incompetence.
Whether competence is related to wills, contracts, or the making or breaking of
marriages, the fundamental concern is a person’s state of awareness and capacity to
comprehend the significance of the particular commitment made.
Durable Power of Attorney
A modern development that permits persons to make provisions for their own
anticipated loss of decision-making capacity is called a durable power of attorney. The
document permits the advance selection of a substitute decision maker who can act
without the necessity of court proceedings when the signatory becomes incompetent
through illness or progressive dementia.
CRIMINAL LAW
Competence to Stand Trial
The Supreme Court of the United States stated that the prohibition against trying
someone who is mentally incompetent is fundamental to the US system of justice.
Accordingly, the Court, in Dusky v. United States, approved a test of competence that
seeks to ascertain whether a criminal defendant “has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding—and whether he
has a rational as well as factual understanding of the proceedings against him.”
Competence to Be Executed
One of the new areas of competence to emerge in the interface between psychiatry and
the law is the question of a person’s competence to be executed. The requirement for
competence in this area is believed to rest on three general principles. First, a person’s
awareness of what is happening is supposed to heighten the retributive element of the
punishment. Punishment is meaningless unless the person is aware of it and knows the

punishment’s purpose. Second, a competent person who is about to be executed is
believed to be in the best position to make whatever peace is appropriate with his or her
religious beliefs, including confession and absolution. Third, a competent person who is
about to be executed preserves, until the end, the possibility (admittedly slight) of
recalling a forgotten detail of the events or the crime that may prove exonerating.
The need to preserve competence was supported recently in the Supreme Court case
of Ford v. Wainwright. But no matter the outcome of legal struggles with this question,
most medical bodies have gravitated toward the position that it is unethical for any
clinician to participate, no matter how remotely, in state-mandated executions; a
physician’s duty to preserve life transcends all other competing requirements. Major
medical societies, such as the American Medical Association (AMA), believe that doctors
should not participate in the death penalty. A psychiatrist who agrees to examine a
patient slated for execution may find the person incompetent on the basis of a mental
disorder and may recommend a treatment plan, which, if implemented, would ensure
the person’s fitness to be executed. Although room exists for a difference of opinion
regarding whether or not a psychiatrist should become involved, the authors of this text
believe such involvement to be wrong.
Criminal Responsibility
According to criminal law, committing an act that is socially harmful is not the sole
criterion of whether a crime has been committed. Instead, the objectionable act must
have two components: voluntary conduct (actus reus) and evil intent (mens rea). An evil
intent cannot exist when an offender’s mental status is so deficient, so abnormal, or so
diseased to have deprived the offender of the capacity for rational intent. The law can
be invoked only when an illegal intent is implemented. Neither behavior, however
harmful, nor the intent to do harm is, in itself, a ground for criminal action.
M’Naghten Rule.
 The precedent for determining legal responsibility was
established in 1843 in the British courts. The so-called M’Naghten rule, which, until
recently, has determined criminal responsibility in most of the United States, holds that
persons are not guilty by reason of insanity if they labored under a mental disease such
that they were unaware of the nature, the quality, and the consequences of their acts or
if they were incapable of realizing that their acts were wrong. Moreover, to absolve
persons from punishment, a delusion used as evidence must be one that, if true, would
be an adequate defense. If the delusional idea does not justify the crime, such persons
are presumably held responsible, guilty, and punishable. The M’Naghten rule is known
commonly as the right–wrong test.
The M’Naghten rule derives from the famous M’Naghten case of 1843. When Daniel
M’Naghten murdered Edward Drummond, the private secretary of Robert Peel,
M’Naghten had been suffering from delusions of persecution for several years, had
complained to many persons about his “persecutors,” and finally had decided to correct
the situation by murdering Robert Peel. When Drummond came out of Peel’s home,

M’Naghten shot Drummond, mistaking him for Peel. The jury, as instructed under the
prevailing law, found M’Naghten not guilty by reason of insanity. In response to
questions about what guidelines could be used to determine whether a person could
plead insanity as a defense against criminal responsibility, the English chief judge
wrote:
1. To establish a defense on the ground of insanity, it must be clearly proved that, at the
time of committing the act, the party accused was laboring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act he
was doing, or if he did know it, he did not know he was doing what was wrong.
2. Where a person labors under partial delusions only and is not in other respects insane
and as a result commits an offense, he must be considered in the same situation
regarding responsibility as if the facts with respect to which the delusion exists were
real.
According to the M’Naghten rule, the question is not whether the accused knows the
difference between right and wrong in general; rather, it is whether the defendant
understood the nature and the quality of the act and whether the defendant knew the
difference between right and wrong with respect to the act—that is, specifically whether
the defendant knew the act was wrong or perhaps thought the act was correct, a
delusion causing the defendant to act in legitimate self-defense.
Jeffery Dahmer (Fig. 36.1-1) killed 17 young men and boys between June 1978 and
July 1991. Most of his victims were either homosexual or bisexual. He would meet and
select his prey at gay bars or bathhouses and then lure them by offering them money
for posing for photographs or simply to enjoy some beer and videos. Then he would
drug them, strangle them, masturbate on the body or have sex with the corpse,
dismember the body, and dispose of it. Sometimes he would keep the skull or other
body parts as souvenirs.

FIGURE 36.1-1
Cases of persons in the legal system. A. Harry K. Thaw. In 1908, Thaw, a millionaire
playboy, was convicted of killing architect Stanford White at Madison Square Garden
in New York City. He was found legally insane and sent to a mental institution from
which he was ultimately released in 1924. He died in Florida in 1947 at the age of 76
years. B. Winnie Ruth Judd. Known as the “trunk murderess” of the early 1930s, Judd
was saved from execution by a sanity hearing. She was committed in an Arizona state
hospital from which she made her seventh escape in 1962. She was found in 1969
working as a receptionist. An Arizona Board of Pardons and Parole recommended her
freedom in 1971. She died in 1998 at age 93 years. C. Dan White. The former San
Francisco supervisor killed San Francisco mayor George Moscone and supervisor
Harvey Milk at City Hall in 1978. White’s “Twinkie defense” helped reduce his crime
from murder to manslaughter, for which he served 5 years. White committed suicide a
few days after he was released from prison. D. John Hinckley, Jr., who attempted to
assassinate President Ronald Reagan in 1981, was declared not guilty by reason of
insanity. He is currently a patient in a mental hospital in Washington, DC. E. Serial
killer Ted Bundy exhibited antisocial behavior at its most extreme and dangerous.

Bundy was executed in Florida in 1989 after confessing, without showing any
remorse, to the murder of 36 women. (Some authorities estimate the number was
probably closer to 100.) F. Jeffrey Dahmer. His murder trial for the deaths of 17
young men and boys gained widespread notoriety after accusations of cannibalistic
practices were made. Dahmer was killed in prison by a psychotic inmate in 1994.
(Figure A, courtesy of United Press International, Inc.; Figures B to F courtesy of
World Wide Photos.)
On July 13, 1992, Dahmer changed his plea to guilty by means of insanity. That
Dahmer could plan his murders and systematically dispose of the bodies convinced the
jury, however, that he was able to control his behavior. All of the testimony bolstered
the notion that, as with most serial killers, Dahmer knew what he was doing and
knew right from wrong. Finally, the jury did not accept the defense that Dahmer
experienced a mental illness to the degree that it had disabled his thinking or
behavioral controls. Dahmer was sentenced to 15 consecutive life terms or a total of
957 years in prison. He was killed by an inmate on November 28, 1994.
Irresistible Impulse.
 In 1922, a committee of jurists in England reexamined the
M’Naghten rule. The committee suggested broadening the concept of insanity in
criminal cases to include the irresistible impulse test, which rules that a person charged
with a criminal offense is not responsible for an act if the act was committed under an
impulse that the person was unable to resist because of mental disease. The courts have
chosen to interpret this concept in such a way that it has been called the policeman-atthe-elbow law. In other words, the court grants an impulse to be irresistible only when it
can be determined that the accused would have committed the act even if a policeman
had been at the accused person’s elbow. To most psychiatrists, this interpretation is
unsatisfactory because it covers only a small, special group of those who are mentally
ill.
Durham Rule.
 In the case of Durham v. United States, Judge Bazelon handed down a
decision in 1954 in the District of Columbia Court of Appeals. The decision resulted in
the product rule of criminal responsibility, namely that an accused person is not
criminally responsible if his or her unlawful act was the product of mental disease or
mental defect. In the Durham case, Judge Bazelon expressly stated that the purpose of
the rule was to get good and complete psychiatric testimony. He sought to release the
criminal law from the theoretical straitjacket of the M’Naghten rule, but judges and
juries in cases using the Durham rule became mired in confusion over the terms product,
disease, and defect. In 1972, some 18 years after the rule’s adoption, the Court of
Appeals for the District of Columbia, in United States v. Brawner, discarded the rule. The
court—all nine members, including Judge Bazelon—decided in a 143-page opinion to
throw out its Durham rule and to adopt in its place the test recommended in 1962 by the
American Law Institute in its model penal code, which is the law in the federal courts

today.
Model Penal Code.
 In its model penal code, the American Law Institute
recommended the following test of criminal responsibility: Persons are not responsible
for criminal conduct if, at the time of such conduct, as a result of mental disease or
defect, they lacked substantial capacity either to appreciate the criminality
(wrongfulness) of their conduct or to conform their conduct to the requirement of the
law. The term mental disease or defect does not include an abnormality manifest only by
repeated criminal or otherwise antisocial conduct.
Subsection 1 of the American Law Institute rule contains five operative concepts:
mental disease or defect, lack of substantial capacity, appreciation, wrongfulness, and
conformity of conduct to the requirements of law. The rule’s second subsection, stating
that repeated criminal or antisocial conduct is not, of itself, to be taken as mental
disease or defect, aims to keep the sociopath or psychopath within the scope of criminal
responsibility.
Guilty but Mentally Ill.
 Some states have established an alternative verdict of
guilty but mentally ill. Under guilty but mentally ill statutes, this alternative verdict is
available to the jury if the defendant pleads not guilty by reason of insanity. Under an
insanity plea, four outcomes are possible: not guilty, not guilty by reason of insanity,
guilty but mentally ill, and guilty.
The problem with guilty but mentally ill is that it is an alternative verdict without a
difference. It is basically the same as finding the defendant just plain guilty. The court
must still impose a sentence on the convicted person. Although the convicted person
supposedly receives psychiatric treatment, if necessary, this treatment provision is
available to all prisoners.
Some famous cases of persons declared not guilty by reason of insanity are illustrated
in Figure 36.1-1.
OTHER AREAS OF FORENSIC PSYCHIATRY
Emotional Damage and Distress
A rapidly rising trend in recent years is to sue for psychological and emotional damage,
both secondary to physical injury or as a consequence of witnessing a stressful act and
from the suffering endured under the stress of such circumstances as concentration camp
experiences. The German government heard many of these claims from persons
detained in Nazi camps during World War II. In the United States, the courts have
moved from a conservative to a liberal position in awarding damages for such claims.
Psychiatric examinations and testimony are sought in these cases, often by both the
plaintiffs and the defendants.
Recovered Memories

Patients alleging recovered memories of abuse have sued parents and other alleged
perpetrators. In a number of instances, the alleged victimizers have sued therapists who,
they claim, negligently induced false memories of sexual abuse. In an about-face, some
patients have recanted and joined forces with others (usually their parents) to sue
therapists.
Courts have handed down multimillion dollar judgments against mental health
practitioners. A fundamental allegation in these cases is that the therapist abandoned a
position of neutrality to suggest, persuade, coerce, and implant false memories of
childhood sexual abuse. The guiding principle of clinical risk management in recovered
memory cases is maintenance of therapist neutrality and establishment of sound
treatment boundaries. Table 36.1-4 lists the risk management principles that should be
considered when evaluating or treating a patient who recovers memories of abuse in
psychotherapy.
Table 36.1-4
Risk Management Principles for Cases of Recovered Memories of Abuse in
Psychotherapy
Worker’s Compensation
The stresses of employment can cause or accentuate mental illness. Patients are entitled
to be compensated for their job-related disabilities or to receive disability retirement
benefits. A psychiatrist is often called on to evaluate such situations.
Civil Liability
Psychiatrists who sexually exploit their patients are subject to civil and criminal actions

in addition to ethical and professional licensure revocation proceedings. Malpractice is
the most common legal action (Table 36.1-5).
Table 36.1-5
Sexual Exploitation: Legal and Ethical Consequences
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