Friday, October 19, 2007

What I Learned Part 2

Here's the second installment in my conference ramblings:

  • The Supreme Court decided in Sutton vs. United Airlines that for the purposes of the Americans with Disabilites Act the disability must be assessed only after attempts have been made to correct the impairment.
  • Liability in medication-related tort claims is best reduced by well-documented informed consent (Duh. But that came up a lot this year so I mention it.)
  • In states that allow for outpatient commitment, only 20% of pretrial detainees who are referred for commitment actually end up getting commitment orders. This is because most of them are either sent to prison prior to a commitment hearing or because they are committed to a hospital for restoration to competence prior to an outpatient commitment hearing.
  • Death Penalty
In 2006 there were 53 people executed, 32 were white and 21 were black. In 2005 there were 1805 whites and 1372 blacks on death row. One out of 12 death row inmates had committed previous homicides. Death penalty aggravating and mitigating factors are set by state statute. Aggravating factors include victim characteristics (law enforcement or firefighting personnel, children, pregnant women), defendant characteristics (previous violent offenses), and offense characteristics (murder committed during the course of a felony, contract killings). By law all possible mitigating evidence is allowed to be heard during the sentencing phase of a death penalty proceeding. Although mental health issues are statutory mitigating factors, sentencing juries actually consider them as aggravators and they are more likely to result in a death sentence. The main purpose of expert mental health testimony in a death penalty hearing is to humanize the defendant and to change the focus of the hearing from the crime to the defendant. It also serves to give the defendant an opportunity to communicate to the jury through the expert. Surveyed death penalty defense attorneys usually prefer psychiatrist rather than psychologist expert testimony. They prefer forensically trained experts with an area of expertise that is relevant to the case, with good testifying skills.
  • Risk Assessment in the U.K.
The U.K. has a relatively new law that allows for the indefinite detention and/or community supervision of violent offenders. This led to the creation of the Risk Management Authority, an administrative body that trains, supervises and regulates official risk management assessors. The assessments are quite exhaustive and includes a minimum 6 hour interview over three days. It is primarily a clinical assessment although it does require the use of at least one "official" approved actuarial tool. There were only 7 orders for assessments filed in 2006. Some offenders refuse to cooperate since they know it could result in a lifetime of supervision and mandatory treatment.

Another development was the creation of a Dangerous and Severe Personality Disorder Service, which essentially is a tool for civil commitment of psychopaths. This has led to 150 referrals a month and an increased number of non-mentally ill sociopaths in forensic hospitals. (One presenter's quote: "The system is swamped.") They are treated with cognitive-behavioral therapy at a cost of $500,000 per inmate per year. Remarkably, there have only been three minor inpatient assaults involving these patients over five years.
  • Liability and risk management in forensic practice
Case law is still defining areas of liability for forensic clinicians. Most liability seems to arise as a result of independent medical evaluations (IME's). The 2006 case Harris v. Kreutzer determined that there was a limited physician-patient relationship created during the IME. The three duties created as a result of this are: 1) to cause no injury during the evaluation (read the Harris case), 2) disclose significant findings to the evaluee (eg. an orthopedic surgeon doing an IME who incidentally discovers a tumor), 3) maintain confidentiality (eg HIPAA compliance)

Most states have limited civil immunity for expert testimony but this is not absolute & varies with jurisdiction. Experts appointed by medical boards for peer review have been sued with varying degrees of success by their evaluees. A forensic expert could face discipline from the AMA, the state medical board, or a specialty organization. In general psychiatric practice most liability comes from suicide or from medication-related injuries.
  • Ethics of Forensic Psychiatry
In 1982 Harvard professor Dr. Alan Stone gave an address in which he suggested that it was unethical for psychiatrists to be involved in expert testimony. The last panel today was an update by Dr. Stone on his position and a response from a number of illustrious colleagues. I can only give this topic pitiful recapitulation here. Stone argued that psychiatry has no absolute truths to offer and that professional consensus is dangerously misleading. Panelists Ezra Griffith, Stephen Morse and Paul Appelbaum responded that it is ethical for professionals to aid the court's search for truth and to promote justice. While acknowledging potential ethical pitfalls, there was a consensus that evolving standards of science provide something to offer.

(Incidentally, in Podcast #14 (No April Fool) I talked about the New York Times article, Brain On The Stand, which quotes Dr. Morse's views on the use of neuroimaging in forensics. Now that I've had a chance to listen to this guy speak it is clear that he is someone to keep an eye on. Interesting things are going to be coming out of U. Penn, particularly with his involvement in the recent $10 million MacArthur grant for neuroscience and the law. This is probably worth a blog post all on its own, when I get the chance. Right now I'm off to dinner.)