▪ Child Psychiatry and the Law
This chapter provides an overview of the interface of child and adolescent psychiatry and the law. These issues arise in many different ways and range from offering testimony; assisting the court in evaluations or custody disputes; in adoption; in helping secure school services; and occasionally, in the context of malpractice. It is important that clinicians have some understanding of the ways in which the legal system works and the myriad of often significantly differing state and local laws as well as federal laws and guidelines. It can be a source of frustration to clinicians and others that even if the law seems straightforward, the legal system may be complex to deal with. Given the nature of the court system, many mental health professionals try, as much as possible, to avoid it—although not always successfully. On the other hand, others may have a practice that includes considerable amounts of forensic work and find this rewarding.
Many aspects of court procedures may be frustrating or confusing, and their adversarial nature is a further complication. Adding to this complexity is the nature of the justice system in the United States with dual federal and state legal systems, each with its own processes for appeal. In both systems, both criminal and civil cases are tried within the general court. In addition, there are various specialized courts (e.g., the juvenile courts), and often specialized courts are the ones involving testimony from mental health experts. This has become increasingly true over the past decade as the emphasis with the juvenile justice system has shifted away from an earlier emphasis on rehabilitation.
PARTICIPATION IN THE JUDICIAL PROCESS
Child and adolescent psychiatrists are frequently asked to give testimony and may be served with subpoenas (Table 26.1), which compel their cooperation either to produce records or other materials or to appear in court or elsewhere to give testimony. Being “served” with a subpoena does not mean that the professional has done something wrong; rather, it means that a lawyer for one party or the other believes that the clinician may have some information relevant to their case. For mental health professionals working for a state or private organizations, notification should be immediately given to the relevant legal representative or to the private practitioner’s attorney. It is particularly important that the mental health provider understand the rules of confidentiality and privacy because some health-related information can remain protected and confidential. In such situations, the patient may be willing to grant a release
of the information or the court may order it, but there are some situations (e.g., if there are claims of malpractice) when special rules may apply.
of the information or the court may order it, but there are some situations (e.g., if there are claims of malpractice) when special rules may apply.
TABLE 26.1 DEFINITIONS OF LEGAL TERMS | |||||||||||||||||
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Similarly, the response to requests for medical records may differ for individuals in private practice and those working for organizations where a central repository of such records exists. In some situations, the patient or parents may request that the child psychiatrist be involved, although it is important that the professional clearly understands the nature of the request (e.g., relative to providing facts or serving as an expert witness). When clinical contact is ongoing, there are other issues to be considered relative to the impact of any involvements or testimony on the treatment.
Some familiarity with the court and court procedures is helpful. Depending on the nature of the proceeding, an appearance in court may be involved, and this might be open or closed,
or the request may involve a deposition (i.e., sworn testimony taken in an attorney’s office). Dress and demeanor should be appropriate. Even though a specific time may be arranged, it is frequently the case that court proceedings run late or that changes in schedule occur. A court reporter will typically transcribe or audio record testimony that become part of the official court record. Often, the testimony begins with a request for the professional to list past training and other qualifications. In instances in which the psychiatrist is present as a fact witness, there is no reimbursement nor can an insurance company be billed for this time. Time spent as an expert witness is, however, typically reimbursed.
or the request may involve a deposition (i.e., sworn testimony taken in an attorney’s office). Dress and demeanor should be appropriate. Even though a specific time may be arranged, it is frequently the case that court proceedings run late or that changes in schedule occur. A court reporter will typically transcribe or audio record testimony that become part of the official court record. Often, the testimony begins with a request for the professional to list past training and other qualifications. In instances in which the psychiatrist is present as a fact witness, there is no reimbursement nor can an insurance company be billed for this time. Time spent as an expert witness is, however, typically reimbursed.
It is important for the mental health professional to realize that both (and sometimes even more) sides will have an opportunity to ask questions. The order of questioning may vary depending on the context. Typically, after the “direct” testimony (questions from the first lawyer), there will be cross-examination by the other attorney (or attorneys) and then a chance for additional (“redirect”) questions from the original attorney followed by another round from the opposing attorney. At the end of the testimony, the judge will indicate that the witness is excused. In some situations (e.g., family or juvenile court), the judge may take a more active role in the questioning process.
In providing testimony, the mental health professional should think about the question and provide a direct and straightforward response delivered clearly. The tendency of psychiatrists (and other professionals called as witnesses) is to provide overly elaborate answers based in part on the psychiatrist’s knowledge of the case. This tendency should be resisted. It is best to firmly give a simple and responsive answer. If something is complex, one can try to explain it but should keep in mind that attorneys (on all sides) will be thinking about potential implications of literally everything that is said. Conversely, the attorney is usually careful to ask questions when he or she thinks he or she already knows the answer. If the question is unclear, ask for it to be rephrased. If the psychiatrist is not able to answer a question, he or she should just say so. If the question is one that can be addressed based on medical record, it is perfectly appropriate to ask to see the record (or other documentation). It is also possible to indicate uncertainty in an answer or to indicate no relevant knowledge of the answer. If called to testify on certain facts (i.e., as a fact-based witness, it is important that the psychiatrist not stray into becoming an expert witness); this is particularly complex when the patient remains in ongoing treatment.
At times, the various attorneys will raise objections; these are of various types, but from the point of view of the witness, it is important to stop speaking and wait for the judge to make a decision and give direction. Often, questions are asked in very specific ways. If the meaning is unclear, the witness should ask for clarification. The lawyer may ask if the psychiatrist can answer a question within a reasonable degree of “medical certainty.” This concept usually means more likely than not but can be a source of confusion for those who constantly cope with uncertainty as they revise diagnoses and treatment plans. Intrinsically, the legal system is divisive, and lawyers may use a number of tactics in questioning in the hope of helping bolster their case. For example, the lawyer may offer up a summary of earlier testimony; often, this is cast in a certain way, and the witness is well advised to carefully listen and correct any errors or misrepresentations. Similarly, witnesses should be careful about rather vague and general questions that may precede a much more specific and loaded one. When being asked about earlier testimony, it is always possible to ask to have a previous answer repeated. Similarly, when asked about medical records, it is also quite reasonable to ask to review the specific material in question.
The demeanor of the witness is important. Often, the process of being a witness is the source of considerable anxiety and fatigue. It is just at such times that the witness will provide a less well-formulated answer. If testimony has been going on for some time, it is reasonable to ask the judge if a short break may be taken.
Depositions are an important aspect of the legal system. They are conducted as part of what the attorneys call the “discovery” phase and help the attorneys involved plan their strategy for trial. They also provide the attorneys (on all sides) a chance to observe a witness. The deposition is a legal proceeding, and testimony obtained becomes part of the court record and can be reviewed or presented at the time of a trial. It is possible for the witness being deposed to have
his or her own attorney present, although this is usually not needed. If there is a question of personal liability or legal action, then legal counsel should be present. Sometimes depositions are videotaped. During a deposition, a judge is not present. Attorneys make objections, but the witness will still be asked to answer the question (the judge can later decide on the objection). The witness will be given a copy of the deposition to review.
his or her own attorney present, although this is usually not needed. If there is a question of personal liability or legal action, then legal counsel should be present. Sometimes depositions are videotaped. During a deposition, a judge is not present. Attorneys make objections, but the witness will still be asked to answer the question (the judge can later decide on the objection). The witness will be given a copy of the deposition to review.
SERVING AS AN EXPERT WITNESS
Child and adolescent psychiatrists sometimes serve as expert witness (e.g., in cases within the juvenile justice system, custody cases, and sometimes suits related to educational services). In this role, the court expects the professional to offer specific information relevant to the case based on his or her new knowledge and experience. In the role of expert, the professional is given somewhat more leeway (e.g., in expressing professional opinions, not just simple facts). Occasionally, a psychiatrist is appointed by the court and issues a report to the judge rather than to a specific attorney (although the other attorneys, if any, will typically have access to it). In working as an expert witness, it is important for all concerned to understand the role of the mental health professional. Standards of proof differ in civil versus criminal proceedings. In juvenile court, the standard of proof is similar to that in an adult criminal court (i.e., beyond a reasonable doubt), but in civil or family court, the standard is a preponderance of the evidence. In serving as an expert witness, it is critical to avoid conflicts of interest (e.g., serving both as an expert witness and treating physician raises issues). The specific requirements for what constitutes a medical expert vary from state to state as, to some extent, do other court procedures.
In dealing with requests to serve as an expert witness, it is important that the mental health professional have a clear understanding of what is being asked. Often, this is reasonable, but sometimes it is not. A clear understanding and agreement on what is be asked will also clarify some aspects of the procedures involved. For example, an evaluation in relation to a custody dispute will typically involve meetings with the parents and child (separately and together), and, if relevant, other important adults in the child’s life. In taking a case, the potential expert witness should be clear that the issues involved fall within his or her areas of expertise (sometimes other issues will, of course, emerge). The initial discussion should also be done so as to reveal any potential conflicts of interest that might exist and gives a chance for the expert to provide a fee schedule, typically an hourly rate, and have an initial review of the basic aspects of the case with the attorney. Given the nature of these assessments and the considerable time they often require, it can be perfectly reasonable to decline an invitation to serve as an expert witness. In some cases, the expert and attorney may agree on an initial record review, after which a decision is made regarding additional work.
A forensic evaluation has similarities and some important differences from routine clinical evaluations. The issues may have less to do with current diagnosis and treatment than with past status (e.g., mental disorders present at the time a crime was committed). Similarly, in a custody assessment, issues will have to do no only with the child but also with the child’s relationship to the parents and parental capacities to parent. It is particularly important in forensic evaluations that all those involved be clear about the purpose and nature of the evaluation (e.g., a parent should understand that anything she or he says might end up in a report to the court or might be repeated if the psychiatrist testifies in court). Depending on the context, ancillary sources of information (e.g., school records) may be helpful.
It is not the job of the expert to ferret out records or materials; rather, the court or attorneys involved should request relevant records and be informed if it becomes clear that some records have not been provided. Depending on the context, the expert may ask that other consultations be arranged (e.g., psychological testing might be requested to evaluate psychotic thinking, learning difficulties, or intellectual functioning).
Before writing the report, it is often helpful to discuss preliminary findings with the retaining attorney or the judge even before a final report is submitted. This gives them the opportunity to clarify any questions that have not been answered. Such conversations should not, of course,
change the report (unless new facts come to light based on these discussions). Composition of the report should parallel, in many ways, the approach to providing testimony as a witness. The report should be clear; easy to read; and free, as much as possible, of jargon. Usually, it will include a discussion of the background of the case and the questions the psychiatrist is asked to address. A list of interviews conducted, any special procedures or testing, and results of record review should precede a summary of opinions. Direct quotations can be helpful. The report should be professional in its tone and not inflammatory or pejorative. The rational for any specific recommendations should be clear, and the expert should be prepared to defend his or her recommendations in court. The court procedures and advice presented earlier on testifying apply to expert testimony as well. Attorneys retaining expert witnesses will most likely want to go over the material that will be presented in court and the questions that are likely to come up. Depositions are frequently used, and the experts will receive a transcript of the deposition for authentication and correction (e.g., of any medical terms). If followed by later courtroom testimony, statements made in the deposition may be used to challenge the consistency of expert opinion by answers that the expert has made in court.
change the report (unless new facts come to light based on these discussions). Composition of the report should parallel, in many ways, the approach to providing testimony as a witness. The report should be clear; easy to read; and free, as much as possible, of jargon. Usually, it will include a discussion of the background of the case and the questions the psychiatrist is asked to address. A list of interviews conducted, any special procedures or testing, and results of record review should precede a summary of opinions. Direct quotations can be helpful. The report should be professional in its tone and not inflammatory or pejorative. The rational for any specific recommendations should be clear, and the expert should be prepared to defend his or her recommendations in court. The court procedures and advice presented earlier on testifying apply to expert testimony as well. Attorneys retaining expert witnesses will most likely want to go over the material that will be presented in court and the questions that are likely to come up. Depositions are frequently used, and the experts will receive a transcript of the deposition for authentication and correction (e.g., of any medical terms). If followed by later courtroom testimony, statements made in the deposition may be used to challenge the consistency of expert opinion by answers that the expert has made in court.
The process of establishing qualifications may be detailed if the child and adolescent psychiatrist is appearing for one side of the case, especially if opposing experts might testify. The opposing attorney may try to undermine the value of any subsequent opinion offered by indicating during establishment of qualifications that the child and adolescent psychiatrist is inexperienced, or less so, than the opposing side’s expert. The volume of forensic work done by the child and adolescent psychiatrist might be raised not only to challenge his or her experience but also to demonstrate if that is the primary work activity and that the expert is merely a “hired gun.”
The process and the advice for handling of direct, cross, redirect and recross examination in expert testimony are essentially the same as with fact witnesses. In addition to the qualifications of expertise, the testimony of a child and adolescent psychiatrist is expected to meet the general acceptance rule or Frye Test, named after the case of Frye v. United States, which holds that a medical test, procedure, or disorder has been generally accepted in the scientific community. For example, describing that person has a particular syndrome is unlikely to be considered unless it is included in the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM-IV). A new standard for scientific opinion in federal cases was set by the U.S. Supreme Court’s ruling in Daubert v. Merrill Dow Pharmaceuticals, Inc., which determined that the judge is the one to determine if the offered evidence is scientifically valid and if it will assist the court in understanding or determining facts relevant to the case. In addition, this assessment by the judge of expert opinion must be made before it is presented in court before a jury. Sometimes opposing attorneys will object to expert testimony as “hearsay,” as evidence based on the statements or experience of those other than the expert witness. Such evidence is permitted for expert witnesses because the use of others’ statements and experience gathered as part of clinical evaluation is a recognized practice in formulating psychiatric opinions. Opposing attorneys may also ask if the child and adolescent psychiatrist accepts or recognizes another professional as an expert in the field or a particular study, paper, or book as authoritative. This is usually done to present information that may conflict or appear to contradict the evidence presented by the expert witness. It is important to maintain objectivity throughout testimony and avoid the appearance of personal bias. The expert is not a patient advocate in such situations but presents psychiatric opinion and the data on which it is based.
CHILD CUSTODY
Legal conceptualizations of children and childhood have evolved significantly over time. This evolution has reflected many factors, including a desire for encouraging education, changing conceptualizations of the nature of childhood and expectations relative to parent rights and child labor, and advances in extending rights to various groups in the population. Historically, children were viewed within the legal system as “chattels” (property) and, similar to women, had few specific rights. Fathers typically were assumed to “rule” the family and make major
decisions for family members. These notions started to change as women began to demand and receive additional rights and as child development research began to emphasize the important role of parent-child (including mother-child) relationships for healthy development. Courts began to recognize the principle of “best interests of the child” in decision making regarding child custody.
decisions for family members. These notions started to change as women began to demand and receive additional rights and as child development research began to emphasize the important role of parent-child (including mother-child) relationships for healthy development. Courts began to recognize the principle of “best interests of the child” in decision making regarding child custody.
The increasing frequency and acceptance of divorce has raised other issues, with current trends suggesting that about 50% of marriages will end in divorce. Other issues arise given the frequency of single-parent household, particularly for children growing up in poverty. Parental separation and divorce increase the risk for children and adolescents to have various problems, probably doubling this risk relative to intact families. The effects may be seen over both the short and long term. After parental separation, children may exhibit a range of reactions, including anxiety, distress, anger, and sorrow. The nature of difficulties exhibited varies depends on the age and developmental level of the child so that, for example, younger children may have sleep problems or exhibit anxiety but older children or adolescents may experience distress, and academic performance may suffer. Relationships may also be impacted. Issues for adolescents are particularly complex given that the tasks of adolescence include separation from their own family of origin and development of new relationships. Behavioral difficulties can take the form of more externalizing problems (e.g., in conduct and behavioral difficulties) or internalizing ones (e.g., anxiety or mood problems). Complicating issues of psychological adjustment, there may be stresses related to ongoing parental struggles or disputes and to changes in financial circumstances. Mitigating factors include stable relationships with one parent and the presence of a support network (e.g., of peers or other family members). Fortunately, in most cases, children cope effectively with the situation.
Increasingly, the rights of both parents have been emphasized in terms of the need for continued contact with minor children. In most states, the principle of the child’s best interest is now well accepted, although in practice, judges have considerable discretion. Mental health professionals often have been used to clarify what is in the child’s best interest, particularly if the child is young or unable to clearly articulate his or her preferences or if special circumstances (e.g., alleged vulnerabilities in parents or child) make the situation more complex.
In custody disputes, several potential outcomes are possible (e.g., one parent or the other might be awarded custody or custody could be awarded jointly). If one parent is the sole custodial parent, she or he can make all relevant decisions regarding the child. This parent might have physical custody of the child as well, although court-ordered rights of visitation with the other parent might also be imposed. In joint custody, both parents participate in decision making and typically share physical custody of the child. Work in the area of child custody requires skilled clinicians to have an understanding of child development, family functioning, and mental health issues and problems. The consultant must also be aware of the specific applicable laws. In some states, specific additional or ongoing training is required.
The consultant should be particularly careful to respect ethical and professional boundaries (e.g., it is important that the consultant not assume the role of therapist). In initial discussions with all the parties involved, including the child or children, the consultant should carefully explain his or her role and the special nature of the professional contact (e.g., usual confidentiality rules do not apply in the sense that anything that is said may appear in a written report or be noted in testimony to the court).
Referrals should usually come from the court with the agreement of the various attorneys involved and a clear description of the nature of the question(s) to be addressed. Data may be provided or requested from various sources, and a series of clinical interviews is usually conducted, typically with each of the parents and the child or children. Depending on the situation, interviews might be done in the home. Information collected usually includes a review of the history of the child and family, the factors leading to divorce, the psychosocial history of the parents, vulnerabilities in them and the child, areas of strength, and so forth. In some situations, additional consultations (e.g., psychological testing) may be requested.
Interview of the child should be done as appropriate to the developmental level of the child with careful attention to evidence of attachments and relationships with the parents. Exploration of the parent’s views of the child and of the home environment and observation
of the parent-child interaction are all relevant. Collateral sources of information (e.g., from pediatricians, schools, and so forth) may also inform the process.
of the parent-child interaction are all relevant. Collateral sources of information (e.g., from pediatricians, schools, and so forth) may also inform the process.
A final written summary typically includes a review of the background of the consultation, including the specific questions of interest to the court and a summary of the sources of information used by the evaluator. Usually, the next section of the report provides a narrative description of the process of the assessment and summaries of interviews and observations, and the final section includes recommendations and conclusions. After the report has been submitted, conferences with the various parties or a deposition may be requested.
Various special issues or situations may arise in custody assessment (e.g., the rights of grandparents or stepparents to visitation, issues of reunification of children with parents who have been abusive or neglectful). Issues increasingly arise from new approaches to reproductive technologies (e.g., the woman carrying the child to term may not be the biological mother). Courts frequently turn to mental health consultants in these situations. Often, the preference of courts is to honor biological relationships, but clear evidence of the child’s best interest may outweigh such considerations. Visitation of grandparents has been an area of active legislation and litigation in recent years. Most states now give some form of visitation right to grandparents, but the U.S. Supreme Court has placed some limitations on such rights.
Increasingly, fathers seek custody, and the past presumption that mothers should automatically be custodial parents, particularly of infants and young children, has given way to views that seek to minimize anxiety over separation and continue to foster parent-child relationships and attachments. As a result, frequent visitation and joint custody arrangements are encouraged. In such situations, consistency should be a goal, with regular and predictable transitions rather than unpredictable and irregular ones. When the parents have had a bitter divorce, joint custody arrangements and visitations can continue to serve as a source of continued conflict, sometimes to the detriment of the child’s development. Issues of gay and lesbian parents have also assumed increasing prominence in recent years. Available data suggest that children developing in families with such parents are not at increased risk. Various states have differing views on these matters, as reflected both in legal precedents and legislation. For the evaluator, issues of the child’s best interest and relationships should remain guiding principles. For some parents, desperation after adverse legal decisions leads to parental kidnapping. These situations are fraught with risks for the child, and consultants should be familiar with relevant state and federal laws in the area.
Alleged sexual or other types of abuse occur with some frequency as part of disputes regarding children’s custody. These issues can be extremely difficult to sort out and require a thoughtful approach on the part of a highly experienced clinician. In such situations, several steps may be taken to avoid potential bias and effects of coaching or indoctrination (e.g., use of open-ended rather than leading questions). In other situations, allegations may center around a parent being unfit based on the presence of some specific mental health problem (e.g., schizophrenia). In general, having a disorder of any kind is rather less relevant than the demonstrated ability of the parent to serve as parent and the impact, if any, of the parent’s difficulties on the relationship with the child.
The highly mobile nature of U.S. society means that increasingly, divorced parents live at some distance from each other. In most states, there is recognition that parents may need to move, although specific issues may arise that lead to a revisitation of custodial or visitation issues. These can be some of the most difficult and challenging cases for the courts. Typically, the needs and developmental level of the child, the preference of the child (if he or she is capable of expressing one), the need for the move, the ability for parents to work collaboratively even at a distance, and existing custodial arrangements are all factors to be considered.
Special considerations arise when one parent has a history of violent behavior or such behavior is alleged on the part of the divorcing spouse. A history of domestic violence is one of the factors increasingly recognized by courts in determining child placement. In some states, there is a “rebuttal presumption” of allowing sole or joint custody if a parent has been violent. In these cases, careful assessment is also indicated to be sure that the allegations of violence, the nature of the violent behavior and level of danger involved, and the risk to the child are evaluated and verified.
Given the considerable financial burden of extended court proceedings and the divisive nature of such processes, interest has centered on alternative approaches to resolution of divorce and child care issues. Alternative resolution techniques attempt to provide less confrontation and divisive approaches to these problems by providing information and helping parents seek mutually satisfactory approaches to resolving disputes. Several states have now explicitly fostered this approach (e.g., mandating either private or court-appointed mediation before a trial is scheduled). An awareness of the potential negative effects of chronic marital conflict, including after divorce, has led to development of various intervention programs. These aim to minimize negative effects of conflict and the adversarial process and help parents cope and parent more effectively.
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