Clinician testimony in suicide litigation: A cause to be uneasy.

This is an illustrative article rather than a research study. We offer opinions and recommendations about what we view as unfortunate clinician testimony in suicide-related malpractice cases, testimony that - inadvertently or not - supports or encourages inadequate care of suicidal patients. The principles apply to both psychiatrists and non-psychiatrists, although the former appear more often in our work. We particularly consider the roles and testimony, in court or at deposition, of psychiatrists, whether as defendants, expert witnesses, or fact witnesses. We cite examples of what we view as poor, disingenuous, dishonest and even dangerous testimony that we believe moves the profession toward unsafe patient care. The examples illustrate what we (and sometimes others) describe as normalization of deviance, pre-suit puffery, self-serving defendant testimony, expert pride supplanting testimonial responsibility, expert arrogance, expert parroting of attorney suggestions, witness ignorance and avoiding facts, unconscious expert bias, inexperience thwarting justice, misleading use of terms such as "predictability," and expert witnesses who lack the direct-care experience that jurisdictions often require in order to opine about defendant clinicians' day-to-day patient care. The examples often reveal concerns beyond the category chosen, and should not be expected to convey all of the facts of a particular case.

Emergency ECT in an incapacitated, medically compromised patient with Huntington's disease.

Electroconvulsive therapy (ECT) is infrequently considered an "emergency" medical procedure; however, there are certain conditions in which there is considerable urgency to initiate ECT. For example, prompt administration of ECT to treat neuroleptic malignant syndrome and malignant catatonia is necessary to improve a patient's overall prognosis and potentially save the patient's life. In this case, a 57-year-old woman with Huntington's disease was admitted to our medical intensive care unit for failure to thrive due to severe psychotic symptoms. Prior to her admission, the patient had become increasingly psychotic and agitated, resulting in her refusal and/or inability to eat. Efforts to treat her severe psychiatric and behavioral symptoms with various psychopharmacological strategies were largely unsuccessful. As the patient's physical health continued to decline, with loss of approximately 35 pounds over 2 months, her family began making arrangements to transfer her to a hospice facility. The day before she was to be transferred, the psychiatry consultation-liaison service recommended ECT. Unfortunately, this recommendation was complicated because the patient was unable to provide consent. This case report describes the legal and administrative process used to ethically and legally administer ECT without consent from the patient or a court-appointed guardian in order to treat a life-threatening condition. To the best of our knowledge, this report documents the first time ECT has been granted "medical emergency" status in Texas.

Managing facility risk: external threats and health care organizations.

Clinicians and clinical administrators should have a basic understanding of physical and financial risk to mental health facilities related to external physical threat, including actions usually viewed as "terrorism" and much more common sources of violence. This article refers to threats from mentally ill persons and those acting out of bizarre or misguided "revenge," extortionists and other outright criminals, and perpetrators usually identified as domestic or international terrorists. The principles apply both to relatively small and contained acts (such as a patient or ex-patient attacking a staff member) and to much larger events (such as bombings and armed attack), and are relevant to facilities both within and outside the U.S. Patient care and accessibility to mental health services rest not only on clinical skills, but also on a place to practice them and an organized system supported by staff, physical facilities, and funding. Clinicians who have some familiarity with the non-clinical requirements for care are in a position to support non-clinical staff in preventing care from being interrupted by external threats or events such as terrorist activity, and/or to serve at the interface of facility operations and direct clinical care. Readers should note that this article is an introduction to the topic and cannot address all local, state and national standards for hospital safety, or insurance providers' individual facility requirements.

Avoiding (or fixing) problems with lawyers and courts.

Clinicians who do work for attorneys and courts sometimes encounter problems in defining their roles, with access to records or litigants, with unexpected changes or additions to their tasks, or with being compensated for their work. Understanding the context of the forensic consultation and the processes commonly employed by lawyers and the judiciary can prevent many problems. Be cautious about "informal" requests from attorneys, particularly if they involve your own patients. Maintain solid business practices and make sure your role, relationship, and financial agreement with the person or entity retaining you are clear, ethical, and well documented before you begin work on a case.

How lawyers view psychiatric experts.

Good lawyers look for integrity in their expert consultants and expert witnesses. They need truthful, accurate information to help them assess and frame cases, win or settle them favorably, and/or withdraw when the case has little merit. Experts should be well qualified to review, interpret, and eventually testify credibly about their portions of the case. They should be able to work with lawyers in the lawyers' own arenas (e.g., courts, hearings) and to convey their opinions to others, such as juries, clearly and without unnecessary distractions.

Law and psychiatry. Doing forensic work, III: marketing your practice.

"Marketing" refers to the entire process of bringing a product or service to the public and creating a demand for it. It is not simply advertising. There are good and bad ways to market one's practice, and some that are distasteful or even unethical. The quality and credibility of your work are your most important marketing tools. Reputation and word-of-mouth among attorneys is the largest referral source for most private forensic practitioners. Your professional and business practices, the quality of your staff and their interactions with clients, and your day-to-day availability are all critical. The Internet is important for some practitioners. Practice websites are inexpensive, but they should be carefully constructed and avoid appearing sensational or overly self-serving. Research the basics of websites and website traffic, and don't expect great results for the first year or so. A Web consultant may be helpful, but avoid those who charge lots of money or make grand promises. Paying for advertisements, listings, or brochures is rarely fruitful. Your primary marketing targets are likely to be attorneys, but may include courts and certain government agencies; clinicians are not usually a major referral source. Patients and potential litigants themselves are off-limits; marketing to them is generally unethical.

Law and psychiatry. Doing forensic work, II: fees, billing, and collections.

Forensic practice fees, billing, and collection procedures are quite different from those in general psychiatry. Most forensic practices have far fewer "clients," and individual bills are usually larger. Collections are usually better (and less frequently discounted) in forensic practice, and resolving billing disputes is far more straightforward. Medicare, Medicaid, other insurance coverage, provider networks and agreements, procedure codes, and diagnosis-related groups (DRGs) are all largely irrelevant in forensic work (although sometimes important to direct clinical services in correctional psychiatry or forensic treatment clinics). An understanding of the practicalities and ethics of charging and billing for forensic services greatly simplifies practice management.

Doing forensic work, I: starting the case.

The private forensic work discussed here is performed as an "expert" or "expert witness," defined in law as a person who is allowed to offer opinions to a court. One should not be an expert in forensic matters that involve one's own patients. Initial communication with the potential retaining entity (e.g., lawyer, court, agency, insurance company) should clarify the case, the lack of conflict of interest, one's possible forensic role, and practicalities such as fees, scheduling, and the way in which the work will be performed. One should guard against being misused, or having one's opinions misconstrued, in forensic matters, including being named as an expert witness without actually being retained (a "phantom expert"). Communicating orally with the retaining entity about progress and findings is important; written findings or opinions should be created or communicated only if the lawyer (or other retaining entity) requests them. Opinions should not be rendered without adequate review of complete and credible records and/or other sources, and even then caveats or disclaimers may be ethically or legally required. The forensic work routine almost always begins with record review, and may or may not include examining a litigant or other person.

Psychiatric aspects of criminal responsibility: insanity and mitigation.

Forensic psychiatry expertise may be useful to criminal courts in several ways, including evaluating competence (e.g., to stand trial, waive Miranda rights, confess, plead, represent oneself, or be sentenced), assessing responsibility for alleged criminal behavior, and clarifying mental or psychosocial factors that may mitigate criminal charges or the form and severity of punishment. This column focuses on psychiatric/psychological aspects of mitigation in criminal matters.

Writing reports for lawyers and courts.

Psychiatrists and other mental health professionals are asked from time to time to provide reports that will be used in legal or administrative actions ("forensic" reports, expressing "opinions" beyond personal observations). This article provides general guidance and recommendations for forensic report writing, particularly when the writer has limited forensic experience. Forensic reports are quite different from ordinary clinical reports. Their appearance, purpose, context, format, vocabulary, and legal or administrative "rules" should be carefully considered by professionals who choose to write them. Conflict of interest dictates that most such reports not be written about one's own patients. Requests from complainants or litigants themselves, rather than from lawyers, judges, or agency/company officials, should usually be declined. Although most attorneys and others who ask for reports do so in good faith, some requests, especially last-minute or "rush" demands and those from complainants or litigants themselves, can encourage misguided or even unethical behavior. Clinicians who write forensic reports should adhere to a careful routine of completeness, honesty, and objectivity. They should decline cases in which they sense inappropriate pressure or ethical problems, and treat every report as a lasting and public example of their work, expertise, and professionalism.

So they want you to be their medical director.

Clinicians, especially physicians, who become "medical directors" of facilities or agencies incur more responsibilities than they sometimes realize. Clinical administration, such as medical director roles and duties, creates personal, professional, management, and forensic issues. For some, their day-to-day work changes little; others experience a shift in duties and relationships, particularly duties to and relationships with the organization (as contrasted with its patients) that are unfamiliar to most clinical professionals. One who accepts such a position should understand the organization's needs and expectations and, within bounds of professional ethics, be prepared to meet them. Even medical directors of very small organizations, such as small private hospitals or clinics, routinely, and sometimes unknowingly, incur administrative and/or legal responsibilities for which they may later be held accountable.

Forensic Psychiatry in the People's Republic of China.

Forensic psychiatry is practiced somewhat differently in the People's Republic of China (PRC) than in the United States. In the United States, psychiatrists and psychologists often work at the interface of mental health and criminal, civil, family, correctional, and law enforcement matters. Their roles in the United States are sometimes consultative and sometimes more direct, sometimes as agency or government employees but often as private forensic practitioners. In China, forensic roles have only recently expanded from the criminal law context. Forensic psychiatrists are almost always government agents/employees, and evaluations usually address only criminal responsibility. One of the authors (Dr. Gao), after spending almost a year in the United States working with Dr. Reid and other professionals, introduced several new forensic concepts to Kangning Hospital in the coastal city of Shenzhen. Many of those concepts have changed forensic procedures in the Guangdong region and are spreading more broadly in China.

When lawyers call clinicians.

Every psychiatrist, psychologist, and psychotherapist gets calls from attorneys from time to time, often with a request involving a patient. Patients sometimes ask their clinicians to become involved in their legal matters. Such calls and requests may sound straightforward, but they are often misleading, incomplete, or misunderstood. One should avoid being reflexively "helpful" when a lawyer calls or a patient makes such a special request. There may be no obligation to respond, or to respond immediately, although subpoenas must not be ignored; promptly contacting an appropriate supervisor, facility risk manager, malpractice insurance carrier, or one's own attorney is often the best course of action. Office staff such as secretaries and receptionists should also be trained and cautioned regarding the principles discussed here.

Preventing suicide.

About 35,000 people commit suicide every year in the United States. Almost all are seriously, but treatably, mentally ill. Most come to the attention of a physician, in an emergency room, primary practice setting, or psychiatric hospital or office, during the days, weeks or months before they die. Since 1995, suicide has been the second most commonly reported of all Joint Commission hospital sentinel events (not just psychiatric events). Suicide is involved in the majority of psychiatric malpractice lawsuits. It takes life from patients, parents from children, children from families, and valuable people from society. Suicide is a terrible way to lose a relative or friend, leaving much greater damage than most natural or accidental death. This paper discusses four points to be considered by those who want to improve this situation: 1) Suicide is rarely "voluntary" in any clinical sense of the term; 2) A great many suicides are preventable once a clinician becomes involved; 3) Suicide is worth preventing; 4) There are practical approaches to prevention that work.

Borderline personality disorder and related traits in forensic psychiatry.

Persons with borderline personality disorder (BPD) and related traits appear in many forensic psychiatry settings. Their clinical hallmarks affecting judgment, insight, impulsivity, motivations, and regulation of emotions, as well as their frequently chaotic lives (internal and external), inaccurate perceptions, rationalizations, and comorbid syndromes can have a marked effect on many civil, criminal, and institutional (eg, corrections) issues. Individuals with BPD are overrepresented in civil, criminal, and child custody forensic situations. The character psychopathology of these individuals is substantial, but is often not obvious to laypersons, including lawyers, judges, and jurors. The presence of BPD rarely affects basic responsibility for the person's actions, nor does it usually compromise most forms of competency. Function, not diagnosis, is the key arbiter of forensic relevance. BPD is associated with an increase in the likelihood of doctor-patient problems, including patient complaints and lawsuits that may not be deserved. Forensic professionals evaluating persons with BPD and related traits should be aware of personal and professional bias, particularly that associated with true countertransference.

Prognosis after suicide attempt: standard of care and the consequences of not meeting it.

A significant number of people who attempt suicide and survive eventually die by their own hands, many within a year of the index attempt. A history of multiple past attempts further increases risk of eventual suicide. That most attempters do not later die by suicide is a statistical fact that should not distract psychiatrists and other mental health professionals from the substantial increase in risk associated with a suicide attempt. Short-term intensive treatment, often with psychiatric hospitalization, reduces immediate risk, but the standard of care often requires more than just a few days of generic inpatient care. Before discharging patients, the psychiatrist should be reasonably certain that the conditions associated with the attempt and initial suicide risk have improved in some significant and lasting way. Although for many patients, severe suicide risk is a relatively transient condition, patients should not be discharged just because they say they feel better or show superficial signs of lessened risk. Before sending the patient into the community, the psychiatrist should have good reason to believe that the dangerous condition(s) that precipitated the attempt and hospital admission have been ameliorated, and that the important improvements in the patient and his or her environment, on which the patient's safety relies, are both real and stable.

Resource document on the use of restraint and seclusion in correctional mental health care.

This resource document discusses the use of seclusion or restraint for purposes of mental health intervention in correctional facilities. Correctional mental health standards essentially state that seclusion or restraint, when used for health care purposes, should be implemented in a manner consistent with current community practice. The community practice was significantly impacted and revised during July 1999, after the Health Care Financing Administration defined rules for the use of seclusion and restraint in facilities that participate in Medicare and Medicaid. Since few correctional facilities are Medicare or Medicaid participants, these rules had little impact on the use of seclusion or restraint for mental health care purposes in correctional systems. Consequently, many correctional health care systems have not developed policies, procedures, or practices that are consistent with current community practice. This document provides guidance in remedying such problems, with a focus on areas relevant to timeframes, settings, and monitoring.