Forensic psychiatry is the medical subspecialty, recognized by the American Psychiatric Association since 1991, in which psychiatric expertise is applied to legal issues. The American Board of Psychiatry and Neurology started in 1994 to examine individuals for “added qualifications in forensic psychiatry.” There are about 40 1-year fellowship programs in forensic psychiatry accredited by the Accreditation Council for Graduate Medical Education, USA.

There are four divisions of forensic psychiatry. The first pertains to the legal aspects of general psychiatric practice, such as the civil commitment of involuntary patients, the doctrine of informed consent, the requirement to protect third parties from dangerous patients, and matters of privilege and confidentiality.

The second division of forensic psychiatry covers the assessment of mental disability. This includes the evaluation of individuals who have been injured on the job, the assessment of a plaintiff who claims that he or she was injured and is now seeking compensation from a defendant, and the assessment of the competency of individuals to perform specific acts such as making a will.

The most colorful aspect of forensic psychiatry deals with individuals who have been arrested. This division includes the evaluation of competency to stand trial, the evaluation of a person’s competency to waive his or her Miranda rights, the assessment of criminal responsibility, evaluations that relate to sentencing, and the treatment of incarcerated individuals.

The fourth division of forensic psychiatry is forensic child psychiatry, which includes child custody evaluations, the evaluation of children who may have been abused, and consultation regarding minors who are involved with juvenile court.

Professional Liability

Psychiatrists are less likely than other physicians to be sued for professional negligence. However, we live in a litigious society—most psychiatrists will be the subject of at least one professional liability claim during the course of their professional careers.

In a case of professional liability or malpractice, a patient (the plaintiff) sues the psychiatrist (the defendant). In order to prevail legally, the plaintiff must prove each of four elements: (1) The psychiatrist had a duty of care to the patient, (2) there was a breach of the duty to the patient, (3) the patient was injured, and (4) the negligent care was the proximate cause of the patient’s injury. That is, if it were not for the negligent act, the injury would not have occurred. At a trial, the plaintiff will attempt to prove each of the four elements by a preponderance of the evidence. Both the plaintiff and the defendant may ask expert witnesses to testify.

Psychiatrists are at risk of being sued in many clinical situations. For example, a psychiatrist may be held responsible when a patient commits suicide if: (1) the suicide was foreseeable, (2) the psychiatrist failed to take a proper history from the patient or other individuals, and/or (3) he or she failed to take appropriate precautions. A psychiatrist may be liable for negligent psychopharmacology if a patient sustains injury as a result of: (1) failure to obtain an adequate history, (2) use of a drug that is not efficacious or not indicated, (3) use of the wrong dosage of medication, or (4) failure to recognize or treat side effects. A particular concern is the occurrence of tardive dyskinesia (a serious side effect caused by certain psychotropic medications), especially if the patient and family members were not warned of the risk and if the psychiatrist did not monitor the patient properly for side effects. A lawsuit may arise out of the use of electroconvulsive therapy if its use was inappropriate or if informed consent was not obtained. A lawsuit may arise out of the use of psychoanalysis if the patient did not give informed consent for this treatment, for example, was not advised of alternative treatments to consider.

Psychiatrists have been sued for engaging in sexual conduct with a patient or with the spouse of a patient. Because it has been clearly stated by professional organizations that sexual activity with patients is a breach of the psychiatric standard of care, the major issue in these cases is to prove that the sexual activity occurred. In some cases patients have made false allegations of sexual conduct against psychiatrists. Even if the sexual activity never occurred, the psychiatrist may have mishandled the case through boundary violations that created the foundation for the false allegations (i.e., through negligent management of the transference).

Informed Consent

Informed consent refers to the continuing process through which a patient understands and agrees to the evaluation and treatment proposed by the physician or other mental health professional. Although informed consent is a concept that all psychiatrists claim to endorse, many practitioners do not understand what the concept means or give only lip service to its implementation.

There are three components to informed consent: mental competency, adequate information, and voluntariness. The assessment of competency is discussed later in this chapter.

Regarding the disclosure of adequate information, this generally means the patient should know the nature and purpose of the proposed treatment, the potential benefits and risks, and the alternative treatments that may be considered. The states have set different criteria for the amount of information that a physician should disclose. Some states have adopted the rule that a physician should disclose the amount of information that a reasonable physician would disclose in a similar situation. Most states have adopted a more progressive rule, that a physician should disclose the information that a reasonable patient would want to know about the proposed treatment. Regarding the requirement for giving consent voluntarily, this means the patient should not be coerced or offered inducements by the physician, other members of the treatment team, or family members.

Informed consent is more than just a signature on a form. As treatment progresses there should be a continuing dialogue regarding the nature of the treatment and its possible side effects. In some circumstances, such as starting a psychotic patient on neuroleptic medication, the patient will be able to discuss these topics coherently only after treatment has begun. In some cases informed consent should involve a discussion with close family members as well as the patient. When a chronically suicidal patient is being discharged from the hospital, for instance, it is useful for the immediate family to understand both the pros and cons of the discharge and for all parties (i.e., patient, family, and psychiatrist) to share and accept the inherent risks.

Civil Commitment

In some circumstances, psychiatric patients are hospitalized involuntarily. The legal bases for involuntary or civil commitment are the principle of parens patriae (i.e., the government may act as “father of the country” to protect individuals who are unable to take care of themselves) and the police power of the state (i.e., the government has the authority to protect society from dangerous individuals). Psychiatrists participate in this process by evaluating patients as to whether they meet criteria for civil commitment. Although the specific procedures vary from state to state, the criteria for involuntary commitment generally include all of the following: (1) The patient has a serious psychiatric disorder, such as a psychosis or bipolar disorder, (2) there is significant risk that the patient will harm himself or others, and (3) hospitalization is the least restrictive alternative. In some jurisdictions, civil commitment is hard to justify (requiring an overt act rather than mere risk of danger) or less difficult to justify (allowing civil commitment if the patient is not likely to take care of basic personal needs).

The Rights of Patients

On many occasions, hospitalized psychiatric patients and institutionalized mentally retarded persons have been railroaded, warehoused, and abused. As a result, state and federal courts and legislators have declared that patients have specific rights. For example, the right to treatment means that civilly committed mental patients have a right to individualized treatment. Likewise, patients also have the right to refuse treatment. That is, a patient who is civilly committed may still be competent to decide whether to agree to use psychotropic medication. If the psychiatrist proposes to use medication even though the patient refuses, he or she should follow the appropriate local procedures. Such procedures may include referring the question to a treatment review committee or asking the court to appoint a guardian for the patient.

In some jurisdictions, psychiatric patients have the following rights: to receive visitors; to send uncensored mail; to receive uncensored mail from attorneys and physicians, although other mail may be examined before being delivered; to confidentiality; to have medical records available to authorized individuals; and to a written statement outlining these rights. An important patient right is that seclusion and mechanical restraint will not be used unless required for the patient’s medical or treatment needs. Seclusion and restraint may not be used for punishment or for the convenience of staff.

Confidentiality

Psychiatric patients have a right to be assured that information they have related in therapy will not be revealed to other individuals. The American Medical Association has promulgated ethical principles for many years, and these principles include the importance of confidentiality. The American Psychiatric Association has published both general principles and detailed guidelines regarding patient confidentiality. In some states, the medical licensing act or a separate statute defines the physician’s obligation to maintain patient confidentiality.

In 1996, the United States Congress passed the Health Insurance Portability and Accountability Act and in 2001, the U.S. Department of Health and Human Services implemented “Standards for Privacy of Individually Identifiable Health Information” (the “Privacy Rule”), which created national standards to protect individuals’ medical records and other personal health information. The federal government took an important medical principle (Hippocrates said, “Whatsoever things I see or hear concerning the life of men, which ought not to be noised abroad, I will keep silence thereon, counting such things to be sacred secrets.”) and created a very detailed set of rules. Many providers responded by becoming unnecessarily legalistic and restrictive in the way they handle protected healthcare information.

The issue of confidentiality in clinical practice is complex. In some situations, confidentiality should be given great importance; but in other situations, it is therapeutically important to share information with other clinicians or people involved in the patient’s daily life. For example, the treatment of chronically ill patients may require continuing collaboration with the individual’s family members and close friends. The sharing of clinical information is almost always done with the patient’s knowledge and consent. In treating a minor, the importance of confidentiality will depend on the patient’s age and developmental level, his or her psychopathology, his or her relationship with the parents, and the specific topic in question. For example, most therapists would maintain confidentiality regarding an adolescent’s sexual activities and occasional drug usage that might be considered part of youthful experimentation. However, therapists would want parents to become aware of a teenager’s sexual promiscuity, pregnancy, serious delinquent behavior, and serious substance abuse. The expectation of confidentiality is not absolute.

Table 50–1 lists some of the many exceptions to confidentiality in clinical and forensic practice, which are mentioned in the Privacy Rule that followed from the Health Insurance Portability and Accountability Act. Clinicians have a strong impulse to discuss case material with colleagues, and these conversations sometimes occur in elevators, cafeterias, and other public places where they can be overheard by strangers. The urge to discuss cases occurs because clinical material is both extremely interesting (so the therapist wants to tell about it in order to show off in some way) and extremely anxiety provoking (so the therapist wants to find reassurance by sharing the case with a colleague). If a psychiatrist is concerned or puzzled about a clinical issue, he or she should confer in a formal setting with a consultant or a supervisor.

The clinician should be aware that any written record may later be read by the patient or by many other people. The wise psychiatrist will protect himself or herself from future chagrin by always keeping this in mind when he or she dictates an evaluation or writes a progress note. Prospective patients should know the limits of confidentiality. One way that therapists can ensure patient understanding of such limits is to provide them with an office brochure that explains that the therapist values confidentiality very highly but that particular exceptions to confidentiality exist.

The right to confidentiality continues after a patient’s death, but it must be balanced against the family’s right to certain information. After a patient’s suicide, for instance, it may be appropriate for the patient’s therapist to meet with family members and close friends and for all of them (i.e., including the therapist) to try to make sense of what happened. That meeting might involve the therapist’s sharing certain kinds of information with the family (e.g., the diagnosis of bipolar disorder, the affection the deceased expressed toward a spouse), but it need not involve extensive or detailed revelations.

Privilege

Confidentiality and privilege are related concepts because they both assert the privacy of information that one person has shared with another. “Confidentiality” is a broad concept that prohibits professionals from revealing information about a client to anyone. “Privilege”—a narrower concept—describes specific types of information that may not be disclosed in a legal setting. Privileged information is almost always confidential; not all the confidential information is privileged.

A person has the right of testimonial privilege when he or she has the right to refuse to testify or to prevent another person from testifying about specific information. For instance, a woman may claim privilege and refuse to testify about conversations she had with her attorney because such discussions are considered private under the concept of attorney-client privilege. Likewise, a man may claim that his therapy is covered by physician-patient privilege and prevent the psychiatrist from testifying about him. On the other hand, the man may waive the right to physician-patient privilege and allow his psychiatrist to testify. It is up to the patient, not the psychiatrist, to make that decision. The psychiatrist should ordinarily go ahead and testify if the patient has waived his right to privilege.

Protection of Third Parties

Occasionally, a patient may reveal that he or she has murderous feelings toward a particular other person. The psychiatrist should assess, of course, the cause and the seriousness of these feelings. In addition, the psychiatrist should devise a treatment plan to protect the other person (i.e., the third party). Ideally, the psychiatrist and patient should cooperate in devising a safety plan. For example, a psychiatrist was treating a patient who had chronic schizophrenia and who expressed thoughts of hurting his parents. The psychiatrist and the patient agreed to a joint telephone call to the parents to inform them of the danger, the patient’s medication was adjusted, and the patient signed a written statement that he would not visit the parents until the crisis had been resolved.

If the psychiatrist and patient cannot agree on a safety plan or if it is clinically inappropriate to attempt such an agreement, the psychiatrist must take steps unilaterally to protect the third party. For example, an acutely paranoid man has told his psychiatrist that he intends to take revenge against his former boss. The psychiatrist protects both the patient and the boss by arranging for the patient’s involuntary commitment to an inpatient facility.

Warning a potential victim is usually done with the patient’s knowledge, if not with his or her permission. But this is not always possible. For example, an extremely angry and jealous man, who has been threatening his wife, has eloped from a supposedly secure inpatient program. It is no longer possible to discuss the issue therapeutically. The psychiatrist immediately notifies the wife and also the police.

State legislatures have adopted a variety of laws and local courts have held a variety of opinions, so psychiatrists should become familiar with the local standards. There could be contradictory practices as a professional moves from one state to another. Some states have laws that protect mental health professionals from liability if they disclose in good faith confidential information to the patient’s intended victim.