The Psychological Autopsy: a Useful Tool for Determining Proximate Causation in Suicide Cases

The Psychological Autopsy: A Useful Tool for Determining Proximate Causation in Suicide Cases

Douglas Jacobs, MD and Marci Klein-Benheim, PhD

This overview article examines the applications of the psychological autopsy method in determining proximate causation in suicide cases. The article reviews the history of the psychological autopsy and describes its procedure and how it has proved helpful in explicating proximate causation. The five standards cur- rently used by the courts to determine proximate causation in suicide cases are described, as are a variety of applications of the psychological autopsy method, including its application to workers' compensation cases, product liability cases, and medical malpractice cases. In particular, issues of prediction and protection are addressed. Finally, there is a discussion of an application of the psychologi- cal autopsy to criminal cases. The article concludes with a discussion of the is- sues raised in the use of the psychological autopsy during expert testimony and the considerations that should be addressed by an expert witness contemplating the use of the psychological autopsy method.

Until recently, suicide was treated in a Nineteenth century psychiatry was influ- number of Western societies as both im- enced by such religious concepts, viewing moral and culpable. According to English suicide as a sign of moral and mental common law, for example, an individual weakness as well as a felony.2 who committed suicide warranted punish- Modern legal thinking, however, has ment for his act; his property was confis- moved away from blaming the person cated by the crown and a stake was driven who committed suicide for his death. For through his heart at burial.' The criminal- instance, in 1961, all sanctions against a ity of suicide was tied to church doctrine, person who attempted or committed sui- the belief that man's life is not his own.2 cide were abolished in ~n~1and.lThis change reflected the belief that criminal Dr. Jacobs is assistant clinical professor of psychiatry, law could not deter a person who wanted Haward Medical School, Boston, and Executive Direc- to commit suicide. The suicidal person tor, National Mental Illness Screening Project, Welles- ley Hills, MA. Dr. Klein-Benheim is a research associate was no longer viewed as a culpable per- with a consulting firm in Fairfax, VA. Address corre- spondence to: Douglas Jacobs, MD, One Washington son to be handled by the legal system, but St., Suite 304, Wellesley Hills, MA 02181-1706. rather as a troubled person to be handled

Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 165 Jacobs and Klein-Benheim by the mental health system.' That is, the to be a concept that attempts to define, by person who committed suicide was con- means of many factors, when a defen- sidered to have a mental disorder; and, dant's liability will be limited, even where under certain conditions, was not deemed the fact of causation is clearly estab- responsible for his death. Legal liability ~ished.~ for suicidal deaths was instead shifted to In fact, there seem to be at least five those whose actions "caused" the suicide standards used by the courts to determine or failed to protect the potential suicide whether proximate causation exists in sui- from self harm.3 cide cases. The first, the "substantial fac- Legal liability for suicidal deaths is still tor test," holds that an individual's con- focused on the actions of others, or exter- duct is a legal cause of harm if hidher nal forces, that have a temporal relation- conduct had a substantial, as opposed to ship to the suicide. The question that negligible, effect in bringing about that arises, however, is whether there is actu- harm.4 In other words, liability will be ally a causative relationship to the sui- limited to those cases in which the defen- cide. Indeed, the law demands that in dant's conduct was a substantial factor in order for an individual to be held liable producing the suicide.'> The second test, for the suicide of another, there must be a the "but for test," states that the injury reasonable connection between the indi- would not have happened but for the de- vidual's actions or omissions and the sui- fendant's negligence.4 That is, recovery cide. This connection is usually dealt with will be allowed if the suicide would not by the courts in terms of what is called have occurred without the injury.' Al- "proximate cause" or "legal cause," with though the "substantial factor test" and the word "proximate" derived from Fran- the "but for test" are not synonymous, cis Bacon, who, in 1630, stated: "Injure they are often lumped together because, non remota causa, sed proxima, spec- to satisfy the "substantial factor test," it tatur." ("In law, not the remote cause, but must be shown that the injury would not the nearest is looked to.")4 have happened "but for" the defendant's However, there are few concepts in the negligence and that the negligent act was entire field of law that have called forth so important in bringing about the injury more disagreement and/or confusion than that reasonable people would regard it as the concept of proximate ca~sation.~Al- a cause and thereby attach responsibility though the legal periodical output on to it.4 A third test of proximate causation proximate causation throughout the past is foreseeabilityl, 4; that is, recovery will century has been prodigious,4 Prosser be denied because the suicide was an un- (1950) has noted that "proximate cause foreseeable consequence of a negligently remains a tangle and a jungle, a palace of inflicted injury.' Finally, recovery will be mirrors and a maze, and the very bewil- allowed if the decedent did not know the dering abundance of the literature defeats nature of his actions, or knew the nature its own purpose and adds its smoke to the of his actions but was unable to control fog."5 In general, proximate cause seems them because of mental illness.' Indeed,

166 Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 The Psychological Autopsy as Gutheil et aL7 note, whether a person is personal documents; police, medical, and competent (i.e., has the capacity for self- coroner records; and first-person ac- protection and the ability to give informed counts, either through depositions or in- consent) is also considered in suicide terviews with family, friends, coworkers, cases. school associates, and physicians.9 One of On the issue of causation, the plaintiff the major contributions of psychological has the burden of proof, and must show autopsies "has been to introduce the psy- that it is more likely than not that the sui- chosocial context into decisions about the cide resulted from the cause he posited.4 cause of death since examination of post- This will depend heavily upon the opin- mortem remains tell only what lesions ion(~)of experts in the field of suicidol- the patient died with, not what he died ogy; in applying a sequence of events test, from." '' what may appear to be a cause and effect Studies have shown that there are cer- relationship may be discredited scientifi- tain commonalities to suicide completers. cally. Indeed, as schwartzl has noted, Indeed, RO~" found that persons who courts "camouflage with the use of the commit suicide are likely to be unmar- talisman 'proximate cause' the difficult ried, unemployed, living alone, and de- cause in fact question before them: how pressed. Clark and or ton-~eutsch'~ important from the psychiatric viewpoint found that suicide completers are twice as was the defendant's act in bringing about likely to be male, almost always qualify the suicide?" In this article, we will illus- for a psychiatric diagnosis, and more trate how suicidologists can help deter- often than not communicate intent. San- mine proximate causation in such cases. born et a1.13 found that the protoypical Particular attention will be paid to the im- suicidal individual is not currently em- portance of a technique known as the psy- ployed, is experiencing acute stress and chological autopsy. frustration in areas apart from work, and has an alcohol problem. Moreover, such The Psychological Autopsy risk factors for suicide have been found ~hneidman,' in collaboration with the to vary by age group. Adolescent suicide Los Angeles Suicide Prevention Center completers often have a history of phy- and the Los Angeles Medical Examiner's sical and sexual abuse, parental psy- Office, coined the term psychological nu- chiatric problems, and commit suicide in topsy to refer to a procedure used to clas- the context of an acute disciplinary cri- sify equivocal deaths. An equivocal death sis14, 15., elderly suicide completers often is a death in which it is not immediately have a history of chronic or terminal dis- clear whether a person committed suicide ease. 16 or not (e.g., drug-ingestion deaths, single- Psychological autopsies review the car accident deaths). The psychological specifics of the death and the decedent for autopsy method entails reconstructing a suicide risk factors. ~hneidman,' for ex- biography of the deceased through psy- ample, has identified 14 areas for inquiry chological information gathered from in psychological autopsy studies. These

Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 167 Jacobs and Klein-Benheim

areas include: (1) identifying information act or to discover what led up to it."8 That (e.g., age, marital status, religious prac- is, they have helped determine why a per- tices, occupation); (2) details of the death; son had chosen suicide, in terms of their (3) brief outline of the victim's history motivation, personal philosophy, and psy- (e.g., previous suicide attempts); (4) death chodynamics, and why a person had history of the victim's family (e.g., family committed suicide at a particular time. history of suicide, affective illness); (5) As such, psychological autopsies have description of the personality and lifestyle proved helpful in identifying and expli- of the victim; (6) the victim's typical pat- cating pro3imate causation, determining tern of reaction to stress, emotional up- the role of a variety of factors in bringing sets, and periods of disequilibrium; (7) re- about a suicidal death. cent stressors, tensions, or anticipations of trouble; (8) the role of alcohol and Proximate Causation drugs in the overall lifestyle of the victim In recent years, suits have been brought and hislher death; (9) the nature of the against employers, product manufactur- victim's interpersonal relationships; (10) ers, health-care providers, and even fam- changes in the victim's habits and rou- ily members, alleging that such entities tines before death (e.g., hobbies, appetite, were legally responsible for suicidal sexual patterns, and other life routines); death^.^ The following case histories il- (11) information relating to the lifeside of lustrate the usefulness of psychological the victim (e.g., upswings, successes, autopsies in determining liability in plans); (12) assessment of intention; (13) worker's compensation, product liability, rating of lethality; (14) reaction of infor- medical malpractice, and criminal cases. mants to the victim's death; and (15) any Workers' Comperzsation Cases Work- comments or special features of the case. ers' compensation laws provide for the A thorough psychological autopsy will medical care and support of persons in- also delve into factors that speak to ques- jured in the course of employment. In the tions of foreseeability and competency, past few decades, however, courts have such as the decedent's provision of false interpreted worker's compensation laws information or the use of passive coercion to include the mental as well as the physi- or emotional blackmail against others. cal consequences of work-related injury. Over the years, psychological autopsies In fact, emotional trauma related to the have shown broader applicability than job, in the absence of actual physical simply determining the mode of death in trauma, has been deemed sufficient for equivocal cases.I7 They have been used as compensation under such laws. Workers research tools to aid in the understanding with injuries incurred in work-related sui- and prevention of suicide and as therapeu- cide attempts are entitled to disability tic tools to assist survivors coping with benefits and appropriate treatment." suicide.17 In cases of unequivocal suicide, Workers' compensation laws differ be- psychological autopsies have also been tween states (for more detail, see Ref. 19). used to "account for the reasons for the In Massachusetts, for example, three con-

168 Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 The Psychological Autopsy ditions must be met for a suicide victim's boating club in the summer of 1988. She did not estate to receive compensation under the report any changes in his eating or sleeping habits. There was no evidence of loss of energy Workers' Compensation ~ct.~"First, the or difficulty concentrating. personal injury must have arisen out of As events began to unfold, there was a criti- and in the course of employment. Second, cal meeting held at the end of September. 1988. At that meeting, there was concern expressed there must be a causal connection be- about the management of the bank, which upset tween the injury and the act of suicide. Fi- Mr. P. He was noted to be subdued during and nally, it must be proved that, due to the following the meeting. Mr. P.'s secretary, for ex- injury, the employee was of such un- ample, reported that Mr. P. "looked somber and gloomy" but he "picked up several days later." soundness of mind as to make him irre- He kept appointments and continued to carry sponsible for the act of suicide. The last out his duties at work. Unbeknownst to his sec- requirement is noteworthy. Indeed, as the retary, Mr. P. cleaned out his desk at the end of following case illustrates, the law does the work day on October 12 and told her that he would be "in by 1:00 P.M." In retrospect. she not necessarily consider a suicidal act in found this quite unusual. and of itself an irrational act. On the day of his suicide, Mr. P. had break- fast with his wife, dressed in his usual meticu- Case Example: lous dress, and drove the car pool to work. Mr. Mr. P. was a 55-year-old, married, white male. P. then returned to his home, knowing that his He worked for a bank as its chief executive offi- wife would not be at home, and hung himself. cer for ten years. Mr. P. was the CEO during a Mr. P. had written a suicide note. In this note. he period of tremendous growth and change in the described his concern for his family and fear banking industry. In order to respond to the that their wealth would be eroded. He viewed growth in the banking industry, many banks de- his suicide as a solution to the problem. cided to become publicly-owned companies and involved in commercial real estate loans. In this case, there did not appear to be a Mr. P. was described as an extremely respon- recoverable proximate cause connection sible, meticulous person, who took his work se- riously. In the summer of 1986, Mr. P. suffered a between the employee's injury and his act ruptured aneurysm which almost resulted in his of suicide. That is, there was no demon- death. After this near fatal medical condition, strable proof that Mr. P. was of such "un- Mr. P. made concerted efforts to spend more soundness of mind" that he, himself, time with his family. Over the ensuing years, he followed up with his medical doctors in an should not be deemed responsible for his effort to take care of himself. There was no suicide. For instance, the psychological evidence of any psychiatric or substance abuse autopsy did not reveal that the stress that history. Mr. P. was under stress at work. Several of Mr. P. experienced at work produced a the loans that occurred during his tenure were clinical depression. Despite descriptions nonperforming. The person responsible for han- of Mr. P. being distraught and concerned, dling the loans was asked to leave the bank. Mr. P.'s emotional reactions did not appear There was concern about the management of the bank. However, as the chief executive offi- to reach clinical significance. The descrip- cer, Mr. P. was appropriately concerned. In an tion of Mr. P.'s mood and behavior by his effort to respond to the problems at the bank, wife and business associates did not indi- Mr. P. made organizational changes. cate the presence of sufficient symptoma- In his private life, Mrs. P. reports that her husband was able to maintain his usual activi- tology to satisfy the criteria for depression ties. He was nominated to be president of the as described in the DSM-111-R.~' Further-

Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 169 Jacobs and Klein-Benheim more, a person who is depressed will fre- under certain circumstances, specifically quently neglect his physical health, or when they are put in the context of the de- present to physicians with vague somatic tailed life history of the individual who complaints. The medical records demon- wrote the note and committed the act."23 strated that Mr. P. was attentive to his In analyzing Mr. P.'s suicide note, it ap- health in the months preceding his suicide peared that Mr. P. viewed his ability to and there were no descriptions of soft provide for his family's wealth as a major symptomatology. source of his self-esteem. It is not uncom- Furthermore, neither Mr. P.'s wife, sec- mon for men to base their self-esteem on retary, nor business associates noted cog- their work or their ability to provide for nitive impairment or loss of contact with their family. Mr. P. had a self-perception, reality. Mr. P. appeared concerned that his a self-image, that did not allow him to be position was in jeopardy as a result of the embarassed and suffer the shame of his problems at the bank. This was not an un- failure, and this aspect of his personality realistic perception given that there was a did not seem to be caused by the changes possible recommendation that he would and stress he experienced at be moved from an operational position to The judge dismissed the claim, based become chairman of the board. on the fact that lay and medical testimony Thus, the psychological autopsy of Mr. did not show a recoverable proximate P. revealed that he was not of unsound cause relationship between the disabil- mind at the time of his death. He was not itylsuicide and the employment. Accord- suffering from depression, schizophrenia, ing to the judge, Mr. P. committed suicide or alcoholism and, in fact, was not found because he: to have any diagnosable mental disorder. . . . set a careful goal in life for himself; a goal The fact that Mr. P. did not have a psychi- which he attained. The goal of being a success- atric or substance abuse history is un- ful businessman and president of a bank crum- usual, insofar as research has shown that bled and his life was over. Mr. P. was always in proud control of his life and ultimately, with as many as 90 percent of suicide com- dignity, his death. It would be a disservice to the pleter~will suffer from some form of memory of Mr. P. to place the blame for his mental disorder.14 ~iles,~~for example, death on others. Mr. P. was so concerned with found that half of persons who commit responsibility that he probably perceived that the bank's troubles were a failure for which he suicide are depressives, one-fifth to one- was responsible. A man that affected by the im- fourth are chronic alcoholics, and a portance of personal accountability would not significant but smaller number are be likely to shift the responsibility for any of his actions, including those surrounding his death, schizophrenics. to others.20 Moreover, the psychological autopsy suggested that a vulnerability in Mr. P.3 Product Liability Cases Those who personality was the proximate cause of produce products for human use have a his suicide. Although less than 15 percent legal responsibility to ensure the safety of of suicide completers leave notes, such the product's user.3 In light of this, suits notes "can have a great deal of meaning have been brought against pharmaceutical

170 Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 The Psychological Autopsy houses claiming that the medication they with clinical depression. As a result, he produced caused suicidal deaths.3, 25 Suits was started on an antidepressant medica- have also been brought against recording tion by his family physician. and television broadcasting companies al- Thus, the psychological autopsy por- leging that the songs or movies they pro- trayed a proximate cause relationship be- duced precipitated suicidal death^.^ tween the electrocution and the suicide. Take, for example, the following prod- Specifically, the psychological autopsy uct liability case. A 39-year-old man re- found that the man should not be held re- ceived a severe electrical shock when he sponsible for the suicide because of inter- used a drill he had recently purchased at a ceding brain damage and depression. The neighborhood hardware store. He was ad- electrocution incident led to depression, mitted to a local hospital in a coma with a and suicide is associated with depression. diagnosis of post-electrocution syndrome. These formulations from the psychologi- This diagnosis was based on presenting cal autopsy were corroborated by re- symptomatology of confusion, depres- search indicating that brain damage can sion, and memory loss. Approximately lead to, as well as exacerbate, clinical de- five weeks after the electrocution inci- pression.2"ne of the challenges that dent, this man committed suicide by over- arose during the deposition was whether dosing on a medication that had been pre- or not suicide was foreseeable as a conse- scribed for his wife. The issue to be quence of the injury. Although suicide, in resolved in this case was whether or not a and of itself, was not foreseeable in this defect in the drill led to the electrocution particular case, the opinion was offered incident, the subsequent depression, and that there was a continuous chain of ultimately the suicide. That is, could it be events from the electrocution incident to stated with a reasonable degree of med- depression to suicide. ical certainty that the suicide resulted Medical Malpractice Cases Between from the electrocution incident? 1972 and 1983, 20 percent of claims filed A psychological autopsy revealed that against psychiatrists covered by the the man had been in excellent health pre- American Psychiatric Association's pro- mortem. Before the electrocution inci- fessional liability insurance were attribut- dent, he was, by all accounts, a vigorous, able to attempted or completed suicide by healthy, muscular individual; he jogged patients.27 Between 1984 and 1994, 30 regularly and had no prior psychiatric his- percent of claims filed against psychia- tory including psychotherapy, depressive trists covered by the American Psychiatric symptomatology, or suicide attempts. Association's professional liability insur- Following the accident, however, the man ance were attributable to attempted or was found to be "different." He was for- completed suicide by patients.28 It should getful, disoriented, fatigued, and had be noted, however, that the number of nightmares. His affect was noted to be lawsuits against psychiatrists for patient flat, he was disinterested in his usual ac- suicides may not have increased by a full tivities, and had symptoms consistent 50 percent in the past 10 years. Indeed,

Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 171 Jacobs and Klein-Benheim the number of sexual misconduct cases began to conlplain of side effects and an in- filed against psychiatrists appears to have crease in symptomatology. The psychiatrist made changes in the medication. Following the decreased substantially during the same changes in the medication. however. the patient time period.28 made a nonlethal suicide attempt. Nevertheless, patient suicide clearly ac- The psychiatrist reevaluated the patient with counts for a significant number of law- accompanying blood tests and recommended hospitalization. The patient refused to be hospi- suits against psychiatrists and other men- talized. During the subsequent sessions. the pa- tal health professionals. Such lawsuits tient acknowledged her long-term preoccupa- have been placed in three categories. tion with dying, but specifically denied current suicidal ideation. The patient requested that the First, mental health professionals may be psychiatrist not contact family members, indi- sued by surviving family members for not cating that they were aware of her suicide at- providing adequate care, or for not ar- tempt. In the interim, the patient had returned to ranging adequate supervision, when a work. On the morning of the patient's suicide, she hospitalized patient commits or attempts had had her blood drawn for a lithium level as suicide. Second, mental health profes- per doctor's instructions. The claims against the sionals may be sued by surviving family psychiatrist included inappropriate medication members for negligent discharge deci- management and failure to hospitalize. Al- though there was a temporal relationship be- sions when a recently released patient tween the medication changes and the suicide commits or attempts suicide. Finally, attempt, the expert witness demonstrated that mental health professionals may be sued there was no proximate causation. The jury ruled in favor of the defendant doctor. by surviving family members when an outpatient commits or attempts suicide The Issue of Prediction First, the law for failure to assess and treat appropri- demands reasonable care in foreseeable ate~~.~~ situations. The difficulties in predicting In general, however, mental health pro- suicide and other types of dangerous be- fessionals will only be held liable for the havior have been widely touted.31 For ex- suicide of a patient if it is determined: (1) ample, although there are certain com- that they should have predicted that the monalities among suicidal individuals, it patient was likely to harm himlherself; is difficult at any given time to differenti- and (2) that they did not take adequate ate those at acute risk of suicide from steps to protect the patient in light of the those at long-term risk. In fact, a history degree of risk.27 The key words, as you of previous suicide attempts in not neces- will see below, appear to be reasonable, sarily a reliable guide.27' 32 Indeed, 90 anticipated, foreseeable, preventuble, and percent of individuals who attempt sui- controllable. 18, 29, 30 cide do not go on to complete it.33 Case Example: Because of high error rates in predic- A 45-year old woman with a long history of tion of future dangerousness, many courts prior suicide attempts consulted a psychiatrist have held that mental health professionals requesting medication management. The psy- should not be held liable for the suicide of chiatrist took a comprehensive history, ordered relevant blood tests, and appropriately adjusted a patient if their treatment decision, albeit medication. After a period of time, the patient wrong, was not arrived at carelessly or

172 Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 The Psychological Autopsy thoughtlessly and was based on sufficient can be used. For instance, the threat of information. Psychological autopsies, suicide in outpatients may be responded which include a thorough review of the to by increasing the frequency of ses- medical record in conjunction with other sions, focusing the therapy on the elimi- material, can help determine whether the nation of suicidal urges, and prescribing mental health professional had, in fact, medication and/or h~s~italization.~~ made a careful assessment of the situa- In recent years, there has been a strong tion. For instance, if the psychological au- emphasis on the civil rights of psychiatric topsy reveals that the treating professional patients. Indeed, the trend in psychiatry failed to conduct a proper mental status has been to remove the prison-like fea- examination, failed to consult another tures of mental hospitals by abolishing re- practitioner when indicated, failed to straints and encouraging patient responsi- meet with family members, or failed to bility.18 However, as it man" has noted, obtain important information from avail- the problem with such a trend is that able sources (e.g., history of prior suicide "[p]sychiatrists find themselves respon- attempts, access to a firearm), there is a sible for suicidal patients in psychiatric greater likelihood of a court imposing lia- settings which have been deliberately de- bility.27 signed to give the patients maximum free- The Issue of Protection The law also dom of action as part of the therapeutic demands that mental health professionals milieu." Although suicide in general or take certain steps to safeguard individuals psychiatric hospital settings account for at acute risk of suicide. As itm man'^ has only four percent of the total number of noted, "the best precaution against suicide suicides," more than one-third of hospital in or outside of a hospital is the presence suicides result in lawsuits.18 of other people." Under certain clinical In addition, in the treatment of suicidal conditions, hospitalized patients may patients, there exists a delicate balance warrant constant supervision. Although between providing clinical treatment, hospitals continue to improve the physical which involves certain risks, and applying plant, trying to make it as safe as possible, protective, less therapeutic measures.35 no unit is suicide proof. In addition, in de- For instance, while such measures as in- termining when it is safe to discharge a creasing observation, placing a patient in patient who previously had been suicidal seclusion, and using physical or chemical from a hospital, a careful assessment of restraints can reduce the risk of suicide in such factors as the current level of suicide hospital settings, they can also prolong risk, the level of social support available the patient's illness, delay discharge, and outside the institution, and the extent of increase the risk of suicide at some later improvement in the patient's illness must time.27 In addition, a number of outpa- be ~ndertaken.~~~lthou~h it is more chal- tients have committed suicide by overdos- lenging for the therapist to manage the ing on the very medication the psychia- suicidal outpatient than the suicidal inpa- trist had prescribed to treat their tient, there are treatment responses that depression and suicidal urges.

Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 173 Jacobs and Klein-Benheim

As a result, the courts have tended to moved to California. Her mother remarried a find negligence only in cases in which the man who was known to be a transvestite and ul- timately had a sex change operation. The sec- choice of intervention or manner of su- ond marriage did not last long. Shortly there- pervision was unreasonable given the cir- after. Tina's mother remarried for a third time. cumstance~.~~The particular burden in Tina manifested her difficulties at the age of 13 when she made a suicide attempt. She took such cases is not only how one substanti- approximately seventy pills and called a friend ates and documents "a standard of care," who subsequently called the police. She was but how one demonstrates that if the admitted to a pediatric unit at a local hospital, proper standard had been adhered to the where she stayed three days. She was seen in consultation by psychiatrist who deferred diag- suicide may have been prevented. Psy- nosis, recommending family treatment which chological autopsies, in the hands of ex- the mother subsequently refused. Her friends perienced suicidologists, can help to de- were later to testify at depositions that the basis termine whether the standard of care had for the suicide attempt was that Tina's mother had called Tina a "slut." indeed been met. The risk of liability The turmoil in Tina's life began to escalate tends to be greatest when the plaintiff pro- and during the fall of 1984, Tina dropped out of duces experts who testify that the thera- school. Tina had been an A student. but her grades had plummeted in recent months. In the pist did not exercise reasonable care, or ensuing six months, tension mounted at home. did not follow his usual practices in car- In the summer of 1985, Tina and her brothers ing for a patient at risk of suicide and can- attempted to run away from home. Their not explain the de~iation.~' attempts were unsuccessful and they were brought back by the police. Three days follow- Criminal Cases Family members ing one runaway incident, Tina called the police have also been held liable for the suicide because she and her mother were fighting. of "loved" ones. In a 1987 criminal case When the police arrived at the scene they felt it in Florida, for example, a mother was ac- was best to have Tina stay at a friends for the night. The police offered intervention to Tina cused of contributing to the suicide of her and her mother. The mother. however, became daughter. The case was precedent setting angry, claiming that the police always sided in that it was the first time that a psycho- with her daughter. The mother refused follow- up, and Tina did not call the police again for logical autopsy had been used by the assistance. prosecution in a criminal case and that a A week after this incident in August 1985. mother had been convicted of contribut- the mother's current husband called the police ing to the suicide of her daughter. The stating that he was frightened of his wife's vio- lence after he had asked for a divorce. The po- case received a great deal of media atten- lice investigated and confiscated a handgun tion not only because it was precedent set- owned by the mother. On that occasion, the po- ting, but also because the details of the lice asked Tina if she would like to spend the case were salacious in nature (for a more night away from home. Tina replied to the po- lice officer: -'No, she'll be over it by then." detailed description of this case, see What struck the police officer reporting this in- Ref. 17). cident was that someone had "just threatened her with a gun and it was an ordinary thing to Case Example: her." The apparent reason for nonchalance was Tina was the middle of three children. Her par- that the mother frequently terrorized Tina with a ents divorced when she was three. Tina had lit- gun, holding it to her head with the trigger tle contact with her biological father, who had cocked.

174 Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 The Psychological Autopsy

In September of 1985, Tina's mother sepa- factor. This is an important distinction. rated from her husband, ultimately to divorce As ~avens~%elo~uentl~wrote: 'Suicide for the third time. Chaos seemed to reign fol- lowing the divorce. Tina's two brothers were in is the final common pathway of diverse and out of the house. In January 1986, Tina's circumstances, of an interdependent net- mother -'allowed7' Tina to work at a topless work rather than an isolated cause, a knot nightclub. The mother obtained the grand- of circumstances tightening around a sin- father's notary public stamp and forged Tina's birth certificate so that Tina could work. The gle time and place, with the result, sign, mother, filled with admiration, drove her symptom, or act." daughter to work. She took from Tina's earn- A psychological autopsy is a retrospec- ings $200 a week for rent and $100 a week for driving her daughter to and from work. The ac- tive analysis of a person's life, focusing tual rent for the apartment was $465 per month. on the antecedents to suicide. Psychologi- Tina did well at her new job. The mother "al- cal autopsies generate a list of contri- lowed" her to work at a second club starting in buting factors, with some factors more March of 1986. Tina told her friends how she wanted to stop working, but felt she could not relevant than others. In the hands of expe- do anything about it. She secretly started to ac- rienced suicidologists, psychological au- cumulate money. At this point in time. the topsies can help sort out the substantial brothers were away from home and Tina and causes of suicide from the "screen" or her mother were alone, fighting constantly. On the day of her death. Tina and her mother "trigger" causes.' In this case, for exam- got into a violent argument about Tina's work. ple, the psychological autopsy revealed This was reported by Tina's brother who wit- that aggravated child abuse by the mother nessed the argument. Even though Tina was making a lot of money and enjoyed the dancing, (which included such atrocities as forcing she found the work humiliating. Tina had her daughter to dance nude, subjecting pleaded with her mother to let her stop dancing her daughter to verbal abuse, and failing at the nightclubs. After the mother left that day, to seek treatment for her daughter follow- Tina called her friend to learn whether it would be possible to live with her. She told her friend ing an earlier suicide attempt) was a that she had $2000 for a car and thus could significant contributory factor in Tina's move in. The friend stated that her mother was suicide.17 afraid of Tina's mother. She knew that Tina's That is, our reconstruction of Tina's life mother would come after her, that the police would become involved, and that Tina would based on a review of all available material have to be sent back home. Her friend reluc- indicated that had it not been for this tantly and sadly told Tina, "I'm sorry you can't young girl being the victim of an ex- stay with us." A half hour later, on March 24th, 1986, Tina shot herself with a .357 magnum. ploitive relationship with her mother and feeling powerless and hopeless, she The question that the psychological au- would not have committed suicide at the topsy was used to answer was whether the particular time she did. The trial jury as abuse from Tina's mother was a signifi- well as the appellate court agreed, and cant contributory factor in her suicide. found Tina's mother guilty of charges of The question in this case was not whether forgery, procuring the sexual performance the abusive relationship was the sole of a child, and child abuse." She was sen- cause of the daughter's suicide, but rather tenced to one year in prison for forgery; whether it was a significant contributory two years of house arrest for procuring

Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 175 Jacobs and Klein-Benheirn the sexual performance of a minor; and tremely poor psychological environment, three years of probation on the condition filled with humiliation and abuse, and felt that she continue to receive outpatient that there was no way out of this environ- therapy at a mental health clinic for ag- ment aside from suicide. Although there gravated child abuse (i.e., for driving her is always the possibility that there will be teenager to suicide by forcing her to inappropriate applications of this prece- dance nude in a nightclub). dent, it is hoped that the outcome of this It should be noted, however, that this case will serve not to blame the victims, was not the first case to convict someone but rather to direct much needed attention for the mental anguish that leads to sui- toward the rights of children.17 cide. In a 1932 legal case, Stephenson v. State, the Indiana Supreme Court upheld Issues Raised a murder conviction for a man who kid- The use of psychological autopsies in napped a woman acquaintance, attempted legal cases, however, is not without con- to rape her, and failed to sezk immediate troversy. First, it has been argued that the attention for her when she took poison. psychological autopsy fails to meet the The woman died after the defendant took Frye test (whereby it is necessary to show her home.38 The case presented here, that evidence is widely accepted within a however, was precedent setting to the ex- field of specialty) or new standards for tent that it was the first time that a mother expert testimony under Daubert. It has was convicted of contributing to the sui- also been aruged that the psychological cide of her daughter. autopsy procedure when applied to legal In fact, because this was the first time cases raises isues of admissability be- that child abuse charges had been brought cause it is prepared in anticipation of against a parent after a child's suicide, litigation, is based on third party informa- some feared that this case would set a tion, and usually excludes direct exam- precedent for inquiry into the family life ination of the subject in question. Fur- of teens who commit suicide. The Wush- thermore, it has been argued that the ington Post even quoted one individual as psychological autopsy is unnecessary, stating: "The Florida ruling smacks of overly prejudicial, and based on hearsay medieval church law, whereby family element^.^' This section will discuss each surivors were treated as accessories to of these issues in turn. both a sin and a crime."39 However, the Does Not Meet Standards for Expert case presented here was a special case. Testimony Prior to 1993, the landmark This woman had clearly abused her case defining limits on expert testimony daughter, and one of the consequences of was the case of Frye v. United States. This that abuse was suicide. Tina's mother ex- 1932 landmark case, which incidentally ploited her sexually, creating an environ- was without Supreme Court solemniza- ment that made her feel her only worth tion, allowed opinion testimony from was the amount of money she was bring- those generally accepted in the scientific ing in from dancing. Tina lived in an ex- community. The ruling stated that "the

176 Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 The Psychological Autopsy thing from which the deduction is made (2) the reliability of the expert testimony; must be sufficiently established to have (3) the helpfulness of the testimony; and gained general acceptance in the particu- (4) the prejudicial effect of the testimony. lar field in which it belongs."" As noted Furthermore, when expert testimony is above, some have questioned whether the scientific in nature, Daubert gives guid- psychological autopsy procedure meets ance on' how to determine reliability.42 the Frye test. It should be noted that Daubert is actu- For example, in the aforementioned ally a more liberal standard than Frye, and case, Tina's mother appealed her convic- that any testimony previously admissable tion, arguing primarily that the psycho- under the Frye standard should be ad- logical autopsy is an unreliable technique missable under Daubert. Indeed, as that is not generally accepted in the field ~avis~~writes, Daubert differs from Frye of psychiatry and, as a result, should not in that "the lack of general acceptance have been admitted as evidence in a crim- will not in itself prevent the evidence inal trial. On December 13, 1989, how- from being admitted but will require a ever, the appellate court ruled to uphold more in depth inquiry upon which to base the conviction on the basis that there was reliability (p. 1317)." Put another way, the no merit to these arguments. In particular, ruling easily admits scientific evidence the judge ruled that there was no distinc- based on general acceptance, but can also tion between the psychiatrist's expert admit testimony that has not yet gained opinion in this case and the admission of general acceptance if supported by other the psychiatrist's expert opinion to estab- factors (e.g., testability, peer review or lish the defendant's sanity at the time of publication, rate of error, and known stan- committing an offense or to prove the dard~).~~Moreover, for borderline scien- competency of an individual at the time of tific evidence, Justice Blackmun "defi- executing a ~regne,~'in a note for nitely favors admitting the evidence and the Arizona Law Review, similarly con- then deciding the case based on suf- cluded that the psychological autopsy was ficiency, determined by presentation a reliable and accurate technique meeting of opposing experts and evidence and admissibility requirements under Frye. by flushing out problems with the ex- However, on June 28, 1993, the U.S. pert tcstimony by cross-examination (p. Supreme Court changed the federal stan- 1320)."~~This ruling should bode well for dard for expert testimony in their ruling in the admission of the psychological au- the case of Daubert v. Merrell Dow Phar- topsy technique in future cases. nzaceuticals, Inc. The major change initi- Dealing with a Deceased Subject ated by Daubert was to establish a gate- Psychological autopsies have been used keeping role for trial judges, requiring to reconstruct the state of mind of the de- them to make a prelimina~yassessment of ceased by examining school, hospital, and expert testimony. In particular, the judge employment records; police incident re- must assess four aspects of expert testi- ports; and custody disputes; and by read- mony: (1) the qualifications of the expert; ing pretrial depositions taken of family,

Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 177 Jacobs and Klein-Benheim friends, and coworkers. It has been argued degraded by nude dancing, and the guilt that in reconstructing a suicidal individ- associated with this likely intensified her ual's mental state, suicidologists must self-destructive impulses. In addition, conduct face-to-face interviews with Tina felt trapped. She ultimately felt everyone who knew the suicide victim, forced to participate in nude dancing to including the suicide victim himlherself. bring home money to support her mother, That is, how can someone know the state whom she resented supporting. People al- of mind of someone one has never met? It ways look for avenues to escape pain, and should be noted, however, that although in Tina's case, the way out was suicide. one can never know with 100 percent cer- Moreover, from a clinical point of view, tainty what is going on in someone's psychological autopsies of suicide vic- mind, the mind of suicidal individuals has tims with whom the person conducting certain consistencies and, furthermore, the psychological autopsy has had no the certainty for medical expert testimony prior contact removes the vagueness of is based upon a reasonable degree of med- the interpersonal relationship between the ical certainty or "more than likely." mental health professional and the exami- ~hneidman,~~for example, lists 10 com- nee. As such, psychological autopsies in monalities to suicide, including such fac- some ways are more objective and less tors as hopelessness-helplessness, frus- controversial than the analysis of living trated psychological needs, ambivalence, patients.40 However, an ideal addition to and the constriction of thought that leads the psychological autopsy would be to one to see no options. ~~a~~has identified call to the stand (in the trial) the mental three elements common to all suicide health professional who saw the patient in cases: (1) a discrepancy between one's the days or weeks preceding suicide and ego ideal and self-concept; (2) rigid social to incorporate hislher opinions into the conditions; and (3) a lack of alternative psychological autopsy. In most cases of means from which to choose for problem completed suicide, however, the decedent solving or tension reduction. The psycho- has not had contact with a mental health logical autopsy helps to gain insight into professional in the period immediately the relationship among goals, means, con- preceding hislher death, and the decedent ditions, social interaction, and personality is no longer available to be interviewed. of the individual concerned.44 Indeed, as Clark and ~awcett~~report, Like Iga, ~ennin~er~'also theorized a half or more of all persons who die by sui- triadic model for suicide: (1) the wish to cide have never seen a mental health pro- kill (revenge); (2) the wish to be killed fessional in their lives. Thus, suicidolo- (guilt); and (3) the wish to die (escape). In gists are forced to rely on retrospective the aforementioned case, for example, techniques to reconstruct the mind of the Tina had feelings of murderous rage and deceased. revenge toward her mother, which she ex- The Retrospective Nature of the In- pressed symbolically in her use of her strument The retrospective nature of mother's gun to kill herself. Tina also felt the psychological autopsy is an additional

178 Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 The Psychological Autopsy methodological issue. The mood associ- highly desirable to have a police report ated with bereavement at the time of the describing the scene of death (including interview as well as the time lag between the position of the body) and to have the death and the interviews are two evidence gathered at the scene (e.g., factors hypothesized to influence the weapons, pills, poisons, and notes). 18 quality of the information reported.17 For In addition, it has been argued that psy- instance, researchers have expressed con- chological autopsy studies should not rely cern that informants could either exagger- on depositions; inasmuch as they are ate the presence of psychiatric symptoma- elicited in the context of an adversarial tology because of guilt or, alternatively, examination, the expert is unfamiliar with minimize the victim's psychiatric prob- the interviewing skills of the deposer, and lems because of idealization. a rent,^^ informants are not interviewed in a stan- however, did not find an association be- dardized fashion and, as a result, cannot tween time lag and parental reporting of be compared against previous psycholog- psychiatric symptomatology in the sui- ical autopsy studies.I2 Clark and Horton- cide victim within a range of two to six ~eutsch,'~for example, advise that the months. Brent et n1.47 also did not find expert should undertake "a preliminary that having an affective disorder at the case review together with the opposing time of the interview had an impact on the legal parties to identify all knowledgeable information given during the interview. informants and then undertake structured Based on Documentary Evidence It interviews with identified informants in- has also been argued that experts should dependent of the deposition process." Al- not base their opinions on police reports though this process may be ideal, it will and other forms of documentary evi- be difficult to invoke in practice given dence. For instance, police reports are today's legal system. In addition, re- often incomplete as sources of informa- searchers have consistently pointed out tion, perhaps because the police are pri- that the main problem in conducting psy- marily interested in determining whether chological autopsy studies is in obtaining a homicide was committed. itm man," one cooperation for interviews from friends of the pioneers of the psychological au- and family of the suicide victim. 48,49 topsy technique, however, does not be- We do not agree that a psychological lieve that basing psychological autopsies autopsy necessitates direct interviewing on documentary evidence is unusual or of relevant parties. In cases in which di- alarming. For example, police reports and rect interviews are not conducted, some other sources of information compiled care must be taken to ensure that informa- shortly after a death often are more help- tion obtained for the psychological au- ful than personal interviews conducted topsy is reliable. ~eikel'" detailed the months after the fact, when witnesses procedures he employed to increase the have had a change to forget, and conceiv- reliability of the psychological autopsy of ably alter or embellish, the facts.17 More- Lenny Bruce, which included excluding over, in evaluating a possible suicide, it is opinions and reactions of individuals not

Bull Am Acad Psychiatry Law, Vol. 23, No. 2, 1995 179 Jacobs and Klein-Benheim acquainted with the comedian, excluding health care providers, and even family sensational and extreme information, en- members. In general, it is recognized that suring that facts had been verified by an there are multiple factors in assigning re- alternate source, and including only ma- sponsibility for a suicide, including but terial written before the comedian's death not limited to current psychiatric illness, in August, 1966. It should be noted, how- personality disturbance, biological fac- ever, that in legal cases it is not up to the tors, family history, medical illness, and psychiatric expert to determine whether psychosocial stressors. 15, 52, 53 Psycholog- the information has a basis in fact. That is ical autopsies, conducted by experienced up to the state to prove, for the defense to suicidologists, can help the judge and jury rebut, and the jury to decide. The expert's determine which factors are most perti- role is not to question the charges, but to nent to the particular case. question and then determine, within the However, the use of psychological au- limit of hidher expertise, the mind of the topsies is not without controversy. For ex- suicidal victim.17 ample, as Shaffer15 has noted, information from psychological autopsies will often be Conclusion incomplete, being limited to only what the Suicide is a multidimensional phenom- informant has observed. In addition, infor- enon, literally defined as "a crime against mants may be ignorant in such areas as un- ~neself."~'For many years, suicide was detected legal activities or insensitive to associated with crime and with its theo- subjective mental states such as depression logical partner, sin." Although the stigma or anxiety.15 However, despite such limita- attached to suicide has persisted, the re- tions, the psychological autopsy is often cent trend has been to view suicide less as the best method available to study the de- a sin and crime, and more as an unfortu- tailed characteristics of suicide victims nate consequence of mental illness and and, as such, will play an important role in social disorganization.18 Indeed, persons legal litigation surrounding suicides. who commit suicide in England and the United States are no longer penalized. Re- search has also indicated that only 10 per- References cent of persons who commit suicide do 1. Schwartz VE: Civil liability for causing sui- not suffer from some form of major men- cide: a synthesis of law and psychiatry. Vand L Rev 24:217-56,1971 tal illness.14 2. Motto JA: Looking back, in Suicidology: Es- Blame still appears to be an issue in says in Honor of Edwin Shneidman. Edited by Leenaars AA. Northvale. NJ: Jason Aronson, suicide. For example, the responsibility 1993 for suicidal deaths has shifted to persons 3. Berman AL: Forensic suicidology and the psy- deemed in a position to cause a suicide, chological autopsy, in Suicidology: Essays in Honor of Edwin Shneidman. Edited by either by specific acts on their part or by Leenaars AA. Northvale, NJ: Jason Aronson, neglecting their duty to protect the suicide 1993 4. Speiser SM, Krause CF, Gans AW: The Arner- victim from self-harm. Such persons in- ican Law of Torts (vol3). San Francisco: Ban- clude employers, product manufacturers, croft-Whitney, 1986

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5. Horowitz EJ: Clarifying causation: demise of tion Act, Department of Industrial Accidents, the "proximate cause" instruction. Trial 28:80, 1993 1992 21. American Psychiatric Association: Diagnostic 6. Harper FV, James F, Gray OS: The Law of and Statistical Manual of Mental Disorders Torts (ed 2). Boston: Little, Brown, 1986 (ed 3 rev). Washington, DC: APA, 1987 7. Gutheil TG. Bursztajn HJ, Brodsky A, Alexan- 22. Miles D: Conditions predisposing to suicide: a der V: Decision Making in Psychiatry and the review. J Nerv Ment Dis 164:231-46. 1977 Law. Baltimore: Williams & Wilkins, 1991 23. Shneidman, ES: Voices of Death. New York: 8. Shneidman ES: The psychological autopsy. Harper & Row, 1980 Suicide and Life Threatening Behav 11:325- 24. Buie D, Maltsberger J: The psychological vul- 40, 1981 nerability to suicide. in Suicide: Understand- 9. Litman RE: 500 psychological autopsies. J ing, and Responding: Harvard Medical School Forensic Sci 34:63846. 1989 Perspectives. Edited by Jacobs DG, Brown 10. Weisman AD: The psychological autopsy and HN. Madison, CT: International Universities the potential suicide. Bull Suicidology 2:18, Press, 1989 1967 25. Teicher MH, Glod C, Colc JO: Emergence of 11. Roy A: Risk factors for suicide in psychiatric intense suicidal preoccupation during fluoxe- outpatients. Arch Gen Psychiatry 39:1089-95, tine treatment. Am J Psychiatry 147:207-10. 1981 1990 12. Clark DC, Horton-Deutsch S: Assessment in 26. Schoenhuber R, Gentilini M: Anxiety and de- absentia: the value of the psychological au- pression after mild head injury: a case control topsy method for studying antecedents of sui- study. J Neurol Neurosurg Psychiatry 51:772- cide and predicting future suicides. in Assess- 24,1988 ment and Prediction of Suicide, Edited by 27. Klein JI. MacBeth JE, Onek JN: Legal Issues Maris R. Berman A, Maltsberger J. Yufit R. in the Private Practice of Psychiatry. Washing- New York: Guilford Press, 1992 ton, DC: APA 1084 13. Sanborn DE. Sanborn CJ, Cimbolic P: Occu- 28. American Psychiatric Association, Office of pation and suicide: a study of two counties Professional Risk Management Services: per- in New Hampshire. Dis Nerv Sys 35:7-12, sonal communication, 1994 1974 29. Perr IN: Liability of hospitals and psychia- 14. Myatt RJ, Greenblatt M: Adolescent suicidal trists in suicide. Am J Psychiatry 122:631-8, behavior, in Suicidology: Essays in Honor of 1965 Edwin Shneidman. Edited by Leenaars AA. 30. Perr IN: Suicide and civil litigation. J Forensic Northvale, NJ: Jason Aronson, 1993 Sci 19:261-6, 1974 15. Shaffer D: The epiden~iologyof teen suicide: 31. Lande RG: The perils of prediction. Mil Med an examination of risk factors. J Clin Psychia- 155:456-9,1990 try 4Y(suppl 9):36-41. 1988 32. Motto JA: Toward suicide prevention in med- 16. Horton-Deutsch SL. Clark DC, Farran CJ: ical practice. JAMA 210:1229-32, 1969 Chronic dyspnea and suicide in elderly men. 33. Clark DC, Fawcett J: An empirically based Hosp Community Psychiatry 43:1198-1203, model of suicide risk assessment for patients 1992 with affective disorders, in Suicide and Clini- 17. Jacobs DJ, Klein ME: The expanding role of cal Practice. Edited by Jacobs DG. Washing- psychological autopsies. in Suicidology: Es- ton, DC: APA, 1992 says in Honor of Edwin Shneidman. Edited by 34. Robbins E, Gasner S, Kayes J. Wilkinson RH, Lecnaars AA. Northvale, NJ: Jason Aronson, Murphy GE: Communication of suicidal in- 1993 tent: a study of 134 consecutive cases of suc- 18. Litman RE: Psychological aspects of suicide, cessful completed suicide. Am J Psychiatry in Modern Legal Medicine, Psychiatry, and 1lS:724-33. 1959 Forensic Science. Edited by Curran WJ, Mc- 35. Firestonc M, Smith JT, Bisbing SB, Hirsch Garry AL, Petty CS. Philadelphia: FA Davis, HL: Psychiatric patients, in Legal Medicine: 1980 Legal Dynamics of Medical Encounters. 19. Nackley JV: Primer on Worker's Compensa- Edited by American College of Legal Medi- tion (ed 2). Washington, DC: The Bureau of cine. St. Louis: Mosby Yearbook. 1991 National Affairs, 1989 36. Havens LL: The anatomy of a suicide. N Engl 20. McKenna JJ: Decision and Report of the Ad- J Med 272:401, 1965 ministrative Judge of the Department of Indus- 37. Jackson v. Florida, 553 So 2d 719 (Fla Dist Ct trial Accidents. Boston: Workers Compensa- App 1989)

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