Assessing mental illness’ relation to crime

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Animal Mother

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I’ve been asked by an increasing number of attorneys lately to sign statements saying so-and-so’s schizophrenia or meth use disorder likely played a role in some criminal behavior with threats of subpoenas if a signature is not supplied. I’m guessing most of you might not sign such a statement, but it got me curious how these cases are formally assessed. I assume this is usually work completed by a forensic psychiatrist or psychologist? What all goes into such an assessment? Would it always be wrong for a general psychiatrist to offer an opinion?

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I’ve been asked by an increasing number of attorneys lately to sign statements saying so-and-so’s schizophrenia or meth use disorder likely played a role in some criminal behavior with threats of subpoenas if a signature is not supplied. I’m guessing most of you might not sign such a statement, but it got me curious how these cases are formally assessed. I assume this is usually work completed by a forensic psychiatrist or psychologist? What all goes into such an assessment? Would it always be wrong for a general psychiatrist to offer an opinion?

Unless you assess the person yourself, likely over several sessions AND have alot of details of what transpired, how on earth would you be able to answer that? If they subpoena you, just say you cant answer that question. And what does "play a role" mean... exactly? Would be my fist question to them. That's waaaay too vague.
 
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They can subpoena you and you can testify you have no idea. What a bizarre thing to receive. It must be state specific because I've never seen anything like that. They have to hire an expert witness for that kind of commentary.
 
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They can subpoena you and you can testify you have no idea. What a bizarre thing to receive. It must be state specific because I've never seen anything like that. They have to hire an expert witness for that kind of commentary.

Yeah like this is basically why the speciality of forensic psychiatry exists. I'm guessing they're trying to go for some kind of partial insanity plea or make them eligible for a diversion program or something?

Anyway, I agree with the above, let them subpoena you and you can say I have no idea what question you're even asking and have no way to answer such a question since such situations are typically assessed by a full evaluation by a forensic psychiatrist (usually hired by the court or the defendant's attorney) who has all the relevant case details. These dudes are just trying to be cheap by not hiring an expert witness to do it.
 
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Yeah like this is basically why the speciality of forensic psychiatry exists. I'm guessing they're trying to go for some kind of partial insanity plea or make them eligible for a diversion program or something?

Anyway, I agree with the above, let them subpoena you and you can say I have no idea what question you're even asking and have no way to answer such a question since such situations are typically assessed by a full evaluation by a forensic psychiatrist (usually hired by the court or the defendant's attorney) who has all the relevant case details. These dudes are just trying to be cheap by not hiring an expert witness to do it.
This is exactly what they’re doing. They are trying to save a buck.

Let me give you guys a couple hypotheticals. 1. 18yo male has first break psychosis, breaks his neighbors birdbath because he thinks the neighbor is using it to summon demons. Patient gets stabilized. Attorney asks you to write a letter saying he has schizophrenja, had symptoms of psychosis at our visit around the time of the incident, and psychotic symptoms likely played a significant role in his behavior of breaking the birdbath.

This to me seems pretty straightforward, but should someone not forensically trained avoid sharing such thoughts?

2. Alcoholic guy gets drunk, slaps his wife, and is facing DV charges. Attorney wants letter saying alcohol intoxication likely contributed to this behavior, and literature supports a linkage between alcohol use disorder and aggressive behavior.

This seems probably true but less clear than the first case.

How do you respond if subpoenaed? No opinion to both?
 
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This is exactly what they’re doing. They are trying to save a buck.

Let me give you guys a couple hypotheticals. 1. 18yo male has first break psychosis, breaks his neighbors birdbath because he thinks the neighbor is using it to summon demons. Patient gets stabilized. Attorney asks you to write a letter saying he has schizophrenja, had symptoms of psychosis at our visit around the time of the incident, and psychotic symptoms likely played a significant role in his behavior of breaking the birdbath.

This to me seems pretty straightforward, but should someone not forensically trained avoid sharing such thoughts?

2. Alcoholic guy gets drunk, slaps his wife, and is facing DV charges. Attorney wants letter saying alcohol intoxication likely contributed to this behavior, and literature supports a linkage between alcohol use disorder and aggressive behavior.

This seems probably true but less clear than the first case.

How do you respond if subpoenaed? No opinion to both?
I mean, if subpoenaed do you really have any choice in how you respond outside doing your best to tell the truth under oath, whatever that truth might be? I mean, at that point don't you just answer questions, and whatever the attorneys and judge and jury (if there is one) make of it, is whatever they make of it, right?

In the first, if you sincerely think psychosis is why the patient did it, then wouldn't you just say that if subpoenaed?

In the second, sure, you could be asked if he has alcoholism and if that might make him violent.

In either instance, affirming mental illness, if present, doesn't necessarily mean a defense based on it goes anywhere or does them any good. In the second example especially I doubt it.

In any case, it's not really your business what the legal system does with your assessment, as long as you are being truthful. That said, I'm not an expert, and my understanding is that many physicians will force the situation with being subpoenaed as it can help free you from some degree of liability for how you respond to all this (assuming you are truthful and just do what legal system requires of you).

I mean, it is your business if this hurts your patient and understandably you may even want to help them.

I don't know, I would consider an attorney that can help me as a physician best navigate these issues. But I don't like talking to anyone else's attorney or dealing with legal issues without legal counsel of my own. Sure it might cost you a few hundred bucks, but as soon as an attorney is calling you is as soon as that same attorney could be slapping you with a lawsuit based on your response. I prefer to be represented before making choices that might result in my being sued.
 
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This is exactly what they’re doing. They are trying to save a buck.

Let me give you guys a couple hypotheticals. 1. 18yo male has first break psychosis, breaks his neighbors birdbath because he thinks the neighbor is using it to summon demons. Patient gets stabilized. Attorney asks you to write a letter saying he has schizophrenja, had symptoms of psychosis at our visit around the time of the incident, and psychotic symptoms likely played a significant role in his behavior of breaking the birdbath.

This to me seems pretty straightforward, but should someone not forensically trained avoid sharing such thoughts?

2. Alcoholic guy gets drunk, slaps his wife, and is facing DV charges. Attorney wants letter saying alcohol intoxication likely contributed to this behavior, and literature supports a linkage between alcohol use disorder and aggressive behavior.

This seems probably true but less clear than the first case.

How do you respond if subpoenaed? No opinion to both?

Yes no opinion to both.

again they’re basically asking you to serve in an expert witness capacity for free. An expert witness should be an independent third party who is not currently treating the patient. That’s the whole disclaimer at the beginning of forensic evals. It will likely significantly affect the treatment relationship if they come back to see you after this at some point one way or another.

If they want an expert opinion they need to pay for an expert witness. Remember that if you offer an opinion one way or the other, you can be called to court to testify about this. What are you gonna tell the judge? “Yeah his lawyer told me he was probably psychotic so I said he was”
 
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I mean you can always run it by your malpractice carrier or risk management if you want...but this isn't really that complicated. You could only be subpoenaed as a fact witness and you could testify to the symptoms you observed during treatment, but you cannot and should not comment on what caused crimes to be committed or what the patient's state of mind was at the time a crime was committed. It's just outside of your scope. You might as well also tell the attorney how best to perform a cardiac bypass. I also concur that you are not some disinterested third party. This is a patient of yours and you have a conflict of interest. Definitely no opinion to the two situations described and if I even had a release to talk to the attorney, I might politely explain the difference between an expert and a fact witness.
 
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Totally unethical. Sounds like the attorney is either a shyster or incompetent. I'd say no and wouldn't let his threat of subpoena affect my decision.
 
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just cite aapls ethical guidelines, and the AMA guidelines that say it is inappropriate for treating providers to opine about forensic matters. Then tell the attorney that you’ll be happy to be subpoenaed, after which your response will be confined to telling everyone that this seems like witness intimidation, and/or attempts at theft of services. If this continues maybe you’ll need to consult the state bar and judge to determine if trying to compel unsupported testimony through threats represents witness tampering, extortion, or an attempt to mislead the trier of fact. Isn’t there a word for coercing someone like that? Let’s let the state bar and judges find out! Maybe they can determine if such actions demonstrate incompetence or outright criminal actions. In the meantime, the attorney can trace the upwardly converging lines of his/her family tree.
 
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As a forensic psychiatrist doing mitigation evaluations is my bread and butter. They are probably trying to save money. I would stay out of it as a treating clinician. These cases don’t go to trial so I don’t know how they are going to subpoena you. I would just ignore it. If the case is going to trial they could subpoena you as a fact witness. That happens even if there are psychiatric experts testifying and you would not be asked to opine on the relationship between crime and offense conduct. Also it would be pretty useless to sign something like that. When I do these reports I provide very detailed reasoning for my opinions and have reviewed the discovery related to the offense and access to much more info than a treating psychiatrist would.

typically what I do is explain how the mental disorder or substance use disorder contributed to the offense conduct. In some cases it’s strong enough to say but for the mental illness they would not have committed the offense. Usually attorneys are selective about asking me to do these evaluations. Occasionally it is a fishing expedition (ie they don’t know if there is anything). Basically the report will tell the story of the pts life and how these circumstances impacted the defendant. I usually make detailed treatment recommendations and they can be diverted to treatment rather than prison depending the offense. Common dx are addiction, psychosis, bipolar, personality disorders

ps if you are employed by a healthcare system then these requests should go to legal or risk management and not you. If they do come to you you should fwd them to risk for further guidance. Which may or may not be helpful but it’s unlikely they would want you getting involved in this without their knowledge
 
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just cite aapls ethical guidelines, and the AMA guidelines that say it is inappropriate for treating providers to opine about forensic matters.
You have a link to this?
 
You have a link to this?

It's in the AMA's code of ethics in Chapter 9 section 7.1: Medical Testimony:

9.7.1 Medical Testimony Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice.

Whenever physicians serve as witnesses they must:
(a) Accurately represent their qualifications.
(b) Testify honestly.
(c) Not allow their testimony to be influenced by financial compensation. Physicians must not accept compensation that is contingent on the outcome of litigation.

Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interests paramount by:
(d) Protecting the confidentiality of the patient’s health information, unless the physician is authorized or legally compelled to disclose the information.
(e) Delivering honest testimony. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case.
(f) Declining to testify if the matters could adversely affect their patients’ medical interests unless the patient consents or unless ordered to do so by legally constituted authority.
(g) Considering transferring the care of the patient to another physician if the legal proceedings result in placing the patient and the physician in adversarial positions.

Physicians who testify as expert witnesses must:
(h) Testify only in areas in which they have appropriate training and recent, substantive experience and knowledge.
(i) Evaluate cases objectively and provide an independent opinion.
(j) Ensure that their testimony:
  • (i) reflects current scientific thought and standards of care that have gained acceptance among peers in the relevant field;
  • (ii) appropriately characterizes the theory on which testimony is based if the theory is not widely accepted in the profession;
  • (iii) considers standards that prevailed at the time the event under review occurred when testifying about a standard of care.

Organized medicine, including state and specialty societies and medical licensing boards, has a responsibility to maintain high standards for medical witnesses by assessing claims of false or misleading testimony and issuing disciplinary sanctions as appropriate.


Technically, a physician can testify in a case that their patient is involved in and doesn't directly go against the code of ethics if you are testifying on behalf of your patient per the bolded. However, because of the potential to harm or inadvertently affect the patient-physician relationship, it's generally accepted that physicians do not testify in court proceedings of their patients except as witnesses of fact, and often times lawyers or courts will provide documentation specifying the specific facts in question regarding their diagnosis or treatment.

In general, it is inappropriate for a patient's physician to testify as an expert witness or to make statements outside of medical facts obtained through patient encounters. The possible effects of testimony towards the physician-patient relationship by doing so is exactly why expert witnesses are a thing. Questions like: "What is their diagnosis?", "What are the symptoms?", "How effective has their treatment been?" are fair questions for a patient's treating physician to answer in court. Questions like: "Do you think their diagnosis played a role in X event?" "Are patients with Y diagnosis more likely to commit crime Z?" or "Do you think your patient is responsible for their actions?" are not appropriate questions for a treating physician to answer and should be deferred to someone who has performed an independent evaluation.

Link: https://www.ama-assn.org/sites/ama-...-browser/code-of-medical-ethics-chapter-9.pdf
 
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