AAPL Newsletter American Academy of Psychiatry and the Law January 2013 • Vol. 38, No. 1

continued to point out, objective stan- 2013 Presidential Address dards paled when compared to those of bench scientists. Charles Scott MD: Among recent events, none has Believing Doesn’t Make It So been as powerful a force in the call for improvements in the forensic sci- Sohrab Zahedi MD ences as the Madrid bombing attacks The 2012 On March 12th 1968, Jonas that took place on March 11th 2004. Annual Meeting Rappeport, MD, started what is now In an international effort to bring the of the American known as AAPL with the simple idea responsible individuals to justice, Academy of Psy- of bringing forensic psychiatrists input from the Federal Bureau of chiatry and the together to advance the field’s body Investigation’s fingerprint-matching Law (AAPL) of knowledge. This advancement experts led to the false accusation of was kicked off remains the primary mission today, an American citizen. It turns out fin- by Dr. Resnick’s just like it did at AAPL’s birth. How- gerprint technology is not as accurate entertaining ever, despite significant organization- as once thought. Subsequent lawsuits introduction of the organization’s al growth, the search for scientific prompted Congress to call on the 38th president, Charles Scott, MD, truth has been, and remains, a chal- National Academy of Sciences (NAS) through a presentation of Dr. Scott’s lenge. For example, some among the to evaluate the state of forensic sci- impressive biography spiced with AAPL membership remember that ence in the United States. catchy photographs. the annual meeting of 1982 was NAS produced a 2009 report titled Before medicine, Dr. Scott’s inter- marked by a guest lecture given by “Strengthening forensic science in the est and talents were geared towards Dr. Alan Stone. Emphasizing the United States: A path forward.” The music. A gifted piano player—he lack of scientific basis in forensic good news for forensic psychiatry is performed before an audience of ten psychiatry, Dr. Stone delivered a that despite being poorly defined, it is thousand at age 12—he majored in stinging critique to the organization. a recognized forensic field. There- Baroque Music History in college. The AAPL leadership took mea- fore, the NAS’ recommendations for Dr. Scott’s medical career began sures—with changes in fellowship improving the forensic sciences apply at the Emory School of Medicine. teachings and educational material to forensic psychiatry as well. He completed residency at Walter for the membership—to boost the NAS’ first recommendation was Reed Hospital, and a child and ado- objective aspects of forensic psychi- establishment of reliable methodolo- lescent psychiatry fellowship at atric assessments. However, as critics (continued on page 2) UCSF. After a brief period of military duty, Dr. Scott continued his training with a forensic psychiatry fellowship at Case Western Reserve University with Dr. Resnick as his mentor. Dr. Scott then joined the Tulane University faculty before becoming the director of the UC Davis program in forensic psychiatry. An active member of AAPL and a leader in forensic psychiatry, Dr. Scott was welcomed to loud applause and a standing ovation. Anyone who has attended a lecture by Dr. Scott is aware of his effective but lighthearted and humorous approach to teaching. However, in looking to chart a future course for the organization, Dr. Scott purposeful- ly traded in humor for a serious tone. Incoming President Debra Pinals bids Charles Scott farewell from office with President’s award.

American Academy of Psychiatry and the Law Newsletter January 2013 • 1 American COVER STORY Academy of Presidential Address psychiatrists may become prompted Psychiatry to administer such tests, they are not, continued from page 1 and the Law in general, qualified to do so as stan- gy for the active analysis of evidence. dard forensic psychiatry training Editor While Dr. Scott acknowledged the doesn’t provide adequate training in Charles Dike, MD, MPH, MRCPsych diversity of assessments in forensic this area. psychiatry (malingering, custody The second NAS recommendation Associate Editors assessments, etc), he focused on that was to study and mitigate bias. Philip Candilis, MD of violence risk as an illustrative Applicability of structured evaluation Steven H. Berger, MD example. Two hundred years ago, the methods is prone to various forms of Susan Hatters Friedman, MD German physician Dr. Gall relied on biases that the forensic assessor Neil S. Kaye, MD phrenology to predict dangerousness. brings to the table. The notable exam- Stephen Zerby, MD Fortunately, the search for valid ple comes from the knowledge that methods of assessment continued. By African Americans are more likely to Former Editors mid 20th century, Dr. Meehl illustrat- be diagnosed with a psychotic condi- Victoria Harris, MD, MPH (2003-2008) ed the superiority of actuarial meth- tion compared to white Americans. Michael A. Norko, MD (1996-2003) ods over clinical assessments in the This holds true even when the evalua- Robert Miller, MD PhD (1994-1996) prediction of violence. In 1981, Dr. tor is African American. In short, dis- Alan R. Felthous, MD (1988-1993) Monahan’s landmark study revealed covery and application of valid Robert M. Wettstein, MD (1983-1988) the glaring deficiency of psychia- modalities in the search for forensic Phillip J. Resnick, MD (1979-1983) trists’ and psychologists’ power of truth is contingent upon the profes- Loren H. Roth, MD, MPH (1976-1979) dangerousness predictability—we sional minimizing the subjective Officers were wrong in 2 out of 3 cases. Even aspects of assessment. if Barefoot v. Estelle established the In conclusion, in his presidential President address, Dr. Scott challenged AAPL Debra Pinals, MD legal arena’s willingness to accept such a standard of uncertainty, Dr. to establish a robust scientific basis in President-elect Scott challenged AAPL to do better advancing its body of knowledge. Robert Weinstock, MD by advancing a proposal that the Following the NAS guidelines, the Vice President organization and fellowship training research for this knowledge should be Stuart Anfang, MD sites educate the membership with a based on valid scientific principles, Vice President select group of vetted structured psy- and measures in mitigating assess- Kenneth Weiss, MD chological tests. ment bias should be adopted and Secretary In 2011, Drs. Skeem and Monahan researched. Beyond scientific Richard Frierson, MD reviewed the mainstream array of research, Dr. Scott challenged the Treasurer structured psychological modalities, AAPL membership and Institute on Douglas Mossman, MD including VRAG, COVR, and PCR, Education and Research with the task Immediate Past President used to assess violence risk. These of incorporating gained knowledge Charles Scott, MD instruments are no panacea and do into AAPL’s mission of educating its not replace the clinical interview. participants. This knowledge will The AAPL Newsletter is published by advance the field as the membership AAPL, One Regency Drive, PO Box 30, They have both strengths and limita- Bloomfield, CT 06002. Opinions tions that if used correctly carry the looks to educate future generations expressed in bylined articles and potential for strengthening objectivi- of fellows and rise in standing in aca- columns in the Newsletter are solely ty. Dr. Scott pointed that even if demic, administrative and clinical those of the authors and do not neces- forensic psychiatrists disagree with arenas. sarily represent the official position use of the psychological instruments, In introducing Dr. Scott, Dr. of AAPL or News letter editors. familiarity is essential for ongoing Resnick, a modern icon of forensic Manu scripts are invited for publication basic research, which in turn would psychiatry, described his former in the Newsletter. They should be support AAPL’s mission in establish- mentee as one who has exceeded his sub mitted to the editor via email to ing validity of forensic psychiatry as fellowship director but not Dr. [email protected]. a science. Without this knowledge, Resnick’s expectations for him. In the The Newsletter is published in the reliability of methodology will be same measure, Dr. Scott challenged January (deadline for submission is left to the field of forensic psycholo- the membership to exceed the expec- November 15), April (deadline Febru- tations of AAPL’s 38th president in ary 1), and September (deadline July 1). gy. From a socio-political perspec- tive, the present trend is for statutes advancing the science of forensic www.aapl.org that require these instruments for psychiatry. If the applause and stand- clinical assessment. Legislation in ing ovation that he received is any © 2013 AAPL. ALL RIGHTS RESERVED. Canada, California and Texas speak indication, Dr. Scott will not be dis- to this trend. Even though forensic appointed.

2 • January 2013 American Academy of Psychiatry and the Law Newsletter FROM THE EDITOR

back again. It seemed everyone could AAPL in Montreal speak both languages. I was jealous. Charles C. Dike MD, MPH, MRCPsych For more than a second, I considered moving my children to Montreal for The last culations to understand how far I still a couple of years to immerse them in time AAPL had to go to get to Ottawa. French. I am still thinking... had her annual Ottawa is a lovely, modern and The AAPL meeting was in full meeting in vibrant city, with nice, helpful and swing. In attendance were lots of Montreal, welcoming residents, all of whom international participants and psychi- Canada, in seemed happy, relaxed and easy atrists who enriched the meeting. 2005, urgent going to me. After a tour of the Gov- Two luncheon speakers, David family com- ernor General’s Mansion (equivalent Kaczynski and Brigadier General mitments made of the White House in the US, I was Stephen Xenakis, MD, had electrified it impossible for me to attend. To told), visiting endless beautiful parks the audience on consecutive days make matters worse, I had never of Ottawa, and the Pink River which with their gripping personal stories; been to Canada, and had been look- is actually usually green (don’t ask Kaczynski, about the ravages and ing forward to the meeting as a gen- me), sadly, it was time to depart for well known consequences of his tle way to introduce myself to Cana- Montreal. Of note, the whole city of brother’s psychotic illness, and Gen. da; alas, it wasn’t to be. Incidentally, Ottawa was in celebratory mood, and Xenakis, about army psychiatrists that was the only AAPL annual was decorated in bright colors with working in Guantanamo Bay and meeting I have missed since I statues and pictures of patriots from involvement in torture. The stage was became a member of AAPL over a the American war of 1812; it was the now set for the third luncheon decade ago. 200th anniversary of the war, and address, The Psychopath Test, by So, this time, I was ready. As it many residents of Ottawa proudly Journalist and writer, Jon Ronson. came to me, I thought, why not kill declared to me - once they knew I But it was not to be. Predictions of two birds with one stone - why not was from the US - that they had won massive devastation from Hurricane visit the capital city of Canada, the war. I was surprised there had Sandy, which was about to make Ottawa, as well, before swooping been no mention of the war across landfall, poured in quick and fast. into Montreal, especially since both the border in the USA before I left The airwaves were abuzz with anx- cities were not too far away from and when I came back. Is there a ious anticipation and panic. The anx- each other? Easy decision. Suddenly message in that? Is the war some- iety quickly became contagious. The the AAPL meeting, which is usually thing better forgotten about around third luncheon speaker suddenly can- exciting all by itself, had become here? I wonder… celled; the airways, and in fact, most even more so, with the added adven- The train ride from Ottawa to other means of transportation, were ture of discovering and exploring Montreal was sheer bliss. I swear I no longer safe. Thankfully, Dr. Philip new places, a hidden passion of must have had two to three appetizers Resnick gallantly rose to the chal- mine. before the main meal! All I now lenge and rescued the third and last The weekend before the AAPL recall is the food just kept coming, lunchtime address by giving a pre- meeting, I rented a car and drove up, and for a while, I thought I was on an sentation on paranoia and violence with my family, to Ottawa from CT. airplane flight in 1995 when they fed on short notice. It was vintage Dr. Upon learning of the purpose of my you liberally. The two hour journey Resnick, with punch and pomp. The trip to Canada, the agent at the bor- ended too soon; I was having too meeting was saved. der happily informed me that she had much fun. Sandy, however, continued to bear attended to a couple other visitors And then, Montreal. What a pleas- down ominously around the Eastern from the US who were also going to ant surprise! I thought I had been cat- US. As much as Hurricane Irene had the “conference of psychiatrists in apulted back to early France with struck AAPL with an upper cut the Montreal.” There couldn’t have been cobble stone and narrow streets. It year before in Boston, Sandy was any other conference of psychiatrists seemed like every day was a party promising to do even more harm. from the US in Montreal other than day for some of the locals; lots of Meeting participants living in the AAPL Annual Meeting. Or could young people brightly dressed, and East Coast of the US began to there? young at heart who moved in groups scramble to get home. It was “déjà As soon as we crossed into Cana- and appeared to be either coming vu all over again.” Two consecutive da, the measurement of distance from or going to a party. It was a devastating Hurricanes during an changed immediately to Kilometers relaxed atmosphere indeed! I won- AAPL annual meeting in two con- from Miles, forcing me to reach way dered if Halloween had something to secutive years! What are the back into my early student days in do with it. I was particularly chances? Regardless, the AAPL Nigeria to understand what that impressed by how easily people Meeting was a huge success. And… meant. I had to do quick mental cal- switched from French to English and I love Montreal.

American Academy of Psychiatry and the Law Newsletter January 2013 • 3 REPORTS

journalism. We welcome input, sub- Privilege and Opportunity: Helping missions, and feedback for any of these activities. AAPL Take the Next Steps Forward Although education is a key priori- Debra A. Pinals MD ty, as I have noted, AAPL is much more than just an organization for It is with a work, and I hope to see opportunities education. It is and can be one’s pro- great sense of for us to meet this goal. We have two fessional home. In years past, when I privilege that I strong Program Chairs, Barry Wall, went to my first AAPL meeting in write my first MD, and Stuart Anfang, MD, to Seattle in 1995, I did not know many column as the develop our meeting in 2013 in San of the attendees other than my mentor 39th President Diego. They are busy lining up lun- and my co-fellow. Having previously of the Ameri- cheon speakers and looking for inter- attended other professional meetings, can Academy esting ideas for a mock trial or spe- I found the AAPL meeting refreshing. of Psychiatry cial presentation for the Thursday As it turns out, my first AAPL meet- and the Law (AAPL). The organiza- evening slot. I hope to see many peo- ing was the last one when I knew tion, established in 1969 with its first ple there, including representatives only a small group of people. The President, Jonas Rappeport, MD, has from the international community. meeting was full of enthusiastic par- seen a long line of distinguished In addition to the meeting activi- ticipants, interesting meeting choices forensic practitioners, forensic schol- ties, another goal for this year is to and a content-rich forensic review ars, forensic teachers, and forensic see that AAPL continues to develop course. In addition, the tone of the leaders at its helm. Each of these Maintenance of Certification and attendees was notably friendly. The individuals has taken AAPL forward other educational products. With the same was true at each and every sub- in its development, and I am honored help of many members, we have built sequent conference, so much so that to be among them. over the years, AAPL has evolved In this first column as the organi- into a time of reunion with colleagues zation’s President, I wanted to “Although education is from across the country. describe my experience with AAPL, The warmth I have felt extends to to perhaps call upon other members, a key priority, as I have people like Mary Cimiluca, of Audio including our younger members, to Transcripts, who was given the Ami- become involved and to grow with noted, AAPL is much cus Award this year in recognition of the organization. AAPL means so her devoted service and numerous much to so many people. In looking more than just an orga- contributions to the organization. I ahead, my goal is to continue to nization for education. It began purchasing audio recordings of maintain AAPL’s strengths and its the proceedings at my first meeting, presence as a professional home. is and can be one’s pro- after being so impressed with the The main goal of AAPL has been content. I thought at the time and from its beginning to provide educa- fessional home.” over the years that the woman who tion to its members. The recent Annu- sold the audio recordings was so al Meeting in Montreal is a perfect helpful, and it is only fitting that an example of the outstanding educa- a multiple choice question bank and organization like AAPL recognized tional opportunities that this organiza- are looking at web-based exam tem- Ms. Cimiluca’s efforts. It was a great tion is able to provide its members, plates from which we will be able to pleasure to speak with her in Montre- and Program Chair, James Knoll, IV, offer Online Self Assessment CME al and to hear her walk down memory MD did a terrific job putting it credits. We have also developed a lane as she expressed her appreciation together. Educational sessions at the Performance in Practice patient feed- of having received this honor. This is Annual Meeting included opportuni- back form and two clinical modules just another example of how AAPL ties for case-based learning, audience (on disability and competence to truly represents a place where we can participation and feedback, as well as stand trial assessments). A new set of mingle amongst friends, get CME well-researched content on topics Practice Guidelines is in develop- credits, obtain curbside professional such as community forensic services, ment, and updates of our existing consultations with just about every specialty courts, veterans, ethics, guidelines are underway. In addition, expert on any subject in forensic psy- sleep disorders, and civil forensic the AAPL Institute for Education and chiatry, and find one’s intellectual self evaluations. Research is actively reviewing pro- feeling satisfied. At the recent meeting, our prior posals for training and research that In between meetings, volunteer President and my close colleague, will help move our agenda forward. projects and participation within the Charles Scott, MD, charged us with The Journal and Newsletter continue organizational infrastructure has staying abreast of the current litera- to provide vehicles for peer-review ture and forensic science behind our publication and creative professional (continued on page 18)

4 • January 2013 American Academy of Psychiatry and the Law Newsletter REPORTS

tal/emotional problems; placing his Consensual Sex with a Patient: Does own physical needs and desires before the psychological welfare of Unethical Equate to Malpractice? his patient and violating the standards Howard Zonana MD of ethics for physicians, among other complaints. Psychiatrists a number of ailments including The doctor argued that because he having sex with “libido problems.” The wife was seen was a general practitioner and not a their patients did for physical ailments, but also symp- mental health professional, no “thera- not enhance the toms of depression, anxiety, stress, pist–patient relationship” arose reputation of psy- attention deficit disorder and other between himself and Mrs. T that chiatry. When sur- emotional problems. Mrs. T came to could trigger a mental health special- veys in the 1980s believe that Dr. W had cured her of ist duty to avoid a sexual relationship. indicated that her problems and told him that he Thus the doctor argued that malprac- between 5%-10% of psychiatrists was her “hero” and that she believed tice allegations were legally unsus- reported having sexual contact with she was in love with him. In the tainable under Pennsylvania law. The their patients, the American Psychi- spring of 2002, the two began a sexu- trial court concluded, based on pre- atric Association responded by clari- al relationship that lasted for approxi- liminary motions, that the doctor’s fying the ethical guidelines and mak- mately one year. They would meet at conduct may have been unethical but ing them more stringent so that even the medical center where the doctor it was not a breach of the duty of care contact with former patients was maintained an office, in an automo- when a “general practitioner engages deemed unethical even if years had bile, and at the doctor’s parent’s resi- in sexual relationship with a patient.” past since the original contact. dence. Mrs. T became increasingly On appeal, a divided three-judge Although the general prohibition for panel of the Superior Court affirmed all physicians was incorporated in the the trial court’s decision. The Superi- Hippocratic Oath,1 the ethical guide- “... a sexual relationship or Court granted re-argument en lines for non-psychiatric physicians banc, withdrew the original panel was not directly addressed until the between a non-psychiatric decision, and, in a new 6 to 3 deci- early 1990s when the American Med- sion reversed the trial court’s deci- ical Association first adopted a guide- physician and a patient is sion. The majority opinion held that line that made sexual relationships “a patient does have a cause of action with current patients unethical in their outside the scope of the against either a psychiatrist or general Ethics Code.2 This was expanded in physician’s treatment and practitioner rendering psychological 1998 when the AMA issued a report care when during the course of treat- on “Sexual or Romantic Relations is not actionable as mal- ment the physician has a sexual rela- between Physicians and Key Third tionship with the patient and causes Parties.”3 For psychiatrists, the ethical pratice.” the patient’s emotional or psychologi- prohibition quickly became the stan- cal symptoms to worsen.” They also dard of care in malpractice litigation. stated: “we believe that there is no In many states it was also classified a anxious and depressed; at one point, reason to distinguish general practi- crime by the state legislature.4 she attempted to break off the rela- tioners from psychiatrists when those It was September 2012 when the tionship but the doctor convinced her general practitioners are treating their Pennsylvania Supreme Court first to continue. She finally ended the patients’ psychological problems/con- addressed the question whether a affair in January, 2003. ditions. In both cases the physicians need to maintain the same trust when medical general practitioner who pro- In March, 2003, Mrs. T told her 6 vides “incidental” mental health treat- husband about the affair and four rendering psychological care.” ment to a patient with whom he then months later they filed a lawsuit nam- The three-judge dissent argued that engages in a sexual affair, may be ing the physician, the medical center the allegations did not satisfy the standard applied by an earlier Penn- held to the particularized “specialist and the hospital. The complaint fur- sylvania decision because there was duty” applicable to mental health pro- ther alleged that the doctor was reck- no claim that the doctor proposed fessionals, that prohibits consensual less, negligent, careless and deviated sexual relations as part of his treat- sexual contact with patients, such that from the “standard of care for physi- ment of Mrs. T. The relationship they the doctor may be held negligent in a cians under the circumstances” by: felt, was more accurately character- malpractice claim. Their conclusion instituting and continuing a sexual ized as a “consensual nonmedical was surprising.5 relationship with his patient; failing to end the sexual relationship; failing to sexual affair between a doctor and a Mr. and Mrs. T both began seeing patient”7 that “does not constitute the Dr. W in 1966. They saw Dr. W for insist the wife find another physician several years and he treated them for to treat her for her medical and men- (continued on page 6)

American Academy of Psychiatry and the Law Newsletter January 2013 • 5 REPORTS

Consensual Sex is that sexual relations with the employ transference as a conscious patient, even if ostensibly consensual, therapeutic method. Second, they felt continued from page 5 may be the basis for a viable mal- that imposing the same absolute duty rendering of a medical skill associat- practice claim. They also acknowl- to avoid sexual contact burdens the ed with specialized training.” The dis- edge that no jurisdiction has rejected social utility in general practitioners sent considered the doctor’s conduct the view that a mental health profes- serving as “first stop medical to be unethical but not actionable as sional’s conduct in engaging in a sex- providers” treating mental conditions medical malpractice. ual affair with a patient is actionable that may not be so severe as to The Supreme Court of Pennsylva- in tort. They note, however, that in require a mental health specialist. nia granted cert. and slightly reframed this case the expert’s testimony did Third, they saw the foreseeability of the question. They asked, “Whether, not reflect a sufficiently certain opin- harm stemming from sexual relations for purposes of determining profes- ion that the malpractice caused the as a close call but in the end they sional negligence, a general practi- plaintiff psychological injuries. They viewed this factor as weighing tioner who provides mental health concluded that Pennsylvania would against extending the mental health treatment to a patient is held to the hold mental health professionals to a professional’s duty to general practi- same higher duty as a specialist in standard of care which would include tioners, even if the general practition- psychiatry or psychology?”8 a duty to avoid sexual contact with er has engaged in some degree of Mr. and Mrs. T, in their briefs, their patients. care regarding the patient’s mental cited their expert’s reference to a and emotional well-being. Fourth, study published in the New England they felt that holding general practi- Journal of Medicine in 2000, which “GPs were less likely tioners “providing incidental care” to concluded that general practitioners the same standard would have the were, at that time, providing more than mental health pro- effect of discouraging general practi- than 75% of mental health therapy for tioners from rendering what appears depression. In their view this new fessionals to recognize, to have become relatively routine reality should mandate that mental attention to their patient’s mental and health professional’s duty to avoid understand, and employ emotional well-being. In sum, they sexual contact with patient should be transference as a con- overturned the ruling of the Superior imposed on all medical providers who Court and did not extend the tort lia- render mental health care regardless scious therapeutic bility to general practitioners. of specialty. There is a strong dissent by Justice The majority opinion first notes method.” Todd. She initially notes that this case that the question of duty in tort cases is early in the legal process where all is “a legal determination, assigned in the facts have not been gathered, and the first instance to the trial court and On the issue of extending the duty whether, on the facts posited, Penn- subject to plenary appellate review.”9 to non-mental health professionals sylvania law states with certainty that They also argue that in addition to the majority felt that the great weight no recovery is possible. She notes Pennsylvania it appears that nearly all of authority held that a sexual rela- how the majority minimizes the jurisdictions in the United States hold tionship between a non-psychiatric nature of the mental health treatment medical specialists to some “differen- physician and a patient is outside the by calling it first “incidental” and tiated or heightened standard of care scope of the physician’s treatment then reframing the question to general compared to that governing general and is not actionable as malpractice. practitioners who provide “some practitioners, especially where practi- They commented that there was no degree” of mental health or emotional tioners hold themselves out as spe- evidence before them regarding the counseling, or who prescribe “com- cialists or are board-certified in a spe- transference phenomena and there- mon medications” for depression or cialized field.”10 But they note that fore would not opine on the general anxiety. She feels the pleadings thus neither the Pennsylvania General acceptance of the transference phe- far make it unclear as to the exact Assembly nor the Pennsylvania nomenon in the mental health field, nature of the treatment and the Supreme Court has yet to recognize but they did note that transference is majority’s conclusion is therefore that the standard of care governing not a recognized component in the premature. mental health specialists strictly pro- medical treatment of physical condi- She further characterizes that the hibits mental health professionals tions. They added there was no evi- majority’s concern on placing a duty from engaging in sexual relations dence on the record that the transfer- on general practitioners would create with patients. ence phenomenon was a factor in the a “absolute duty” in general practi- They acknowledge that the domi- instant case. tioners to refrain from sexual rela- nant view among the states that have They also felt that GPs were less tions with patients they are treating considered the issue in the case of likely than mental health profession- for mental health issues and would mental health professionals’ conduct als to recognize, understand, and (continued on page 18)

6 • January 2013 American Academy of Psychiatry and the Law Newsletter REPORTS

of the space they plan to allocate to us. Annual Meeting: Location, I have in my mind an ideally sized and spaced hotel. It doesn’t exist, of Location, Location course. I prefer a large open registra- Jacquelyn T. Coleman CAE, Executive Director tion area that can incorporate our posters and coffee breaks and some When you read AAPL is also grateful to Philip small side areas for seated conversa- this, submissions Resnick, MD, who reached into his tion. To me, the “buzz” of spirited con- for the 2013 awesome armamentarium to produce a versations epitomizes AAPL’s charac- Annual Meeting lunch talk for Saturday, when our ter. I would also like to have every will be flooding scheduled speaker, Jon Ronson, was meeting room on the same floor or eas- in. Our location waylaid by the aforementioned storm. ily accessible between two floors. I am will be the lovely Now on to the topic of how AAPL much less likely to get that wish ful- and picturesque picks meeting locations and hotels. filled. Also, it’s important to note that Hotel Del Corona- There are several factors that go into we have no bias toward any particular do, on Coronado Island off San Diego. these choices, and since the group of hotel chain. Where we end up, even if AAPL met once before at “The people sitting around the table is differ- we end up at the same hotel chain two Del,” in 1990. ent at each stage, people will rank and or three times in a row, reflects simply I have been asked by the 2013 Pro- weigh criteria differently. It always the combination of the best space gram Committee chairs, Stuart Anfang, amuses me when I present a list of available and prices offered. MD, and Barry Wall, MD, to remind properties and cities to the assembled A harder function to describe is how you that civil topics, including child group and someone says “How did you we come up with the list of desirable custody and psychiatric disability, are come up with THAT one?” And the locations. Believe me, there are beach especially encouraged, as well as sub- answer is that the last group of people people and city people, and there are missions related to the President’s sitting at the table gave it to us as a pri- resort people and urban people. I think Theme: Forensic Issues in Public Sec- ority. The “group around the table” are in the end everyone ends up enjoying tor Psychiatry. the Council at either its spring or fall the place and the meeting, even if they This will be our first beach meeting meetings, and the group of officers that think they are temperamentally suited in quite some time. assembles early each year as a budget to another type of place. Also surpris- But let’s linger in the glow of review and strategic planning function ing to many people are the number of charming Montreal a little longer, and of the Academy. It depends on how locations we cannot fit into. Another near the end of this article I’ll write fast the process goes as to who initiates consideration is how many airport con- more about the science, or lack thereof, the choices and who makes the final nections people are likely to have to in picking meeting destinations. choice. make and how many flights arrive at Our attendees seemed to love the As for the speed of our decisions, the nearest city daily. These days with city, and who wouldn’t? Once again a we want to look at market conditions airplanes running full, it’s hard to freak storm caused a few of our partici- first of all. We accelerated our change flights at the last minute, and pants to leave early. I really hope this timetable for picking meeting sites dur- the inability to make the necessary won’t become a habit! ing the recession because we knew that change results in having to miss the The 2012 meeting was the third certain properties we considered very meeting. That is particularly true of highest attended meeting in AAPL‘s desirable were perhaps no longer out flights outside the contiguous US history, one attendee shy of the 1998 of our reach. On the other hand, when states. Orleans meeting. it’s a seller’s market, we will cast our There also seems to be a desire to Meeting attendance was 735, and net more widely. avoid the large cities where APA Forensic Review Course attendance It’s also important to know how meets, since members get a chance to was 220. hotels make their decisions about visit there often. But I also observe There were 95 Canadian attendees whether they find a group such as ours avoidance of what I would call middle- and 29 from other non-US locations: desirable. Each hotel has its own for- tier cities. I don’t think it’s because Australia, Belgium, Chile, Germany, mula for weighing the number of people have been there and hated them. India, Israel, New Zealand, Norway, promised sleeping rooms and food and I think it’s because certain cities have and the United Kingdom. beverage consumption against the characteristics associated with them Our lunches were very well attend- amount of space the group is request- that the average AAPL member finds ed. The Friday lunch with David ing. If we hit the sweet spot combining more desirable and those other cities Kaczynski, the brother of Unabomber the space they have available and their are perceived not to have those charac- Ted Kaczynski was the best-attended in desired profit, they will make us an teristics. ten years. Many who attended that offer. The initial offer will include dis- So let’s see what you think. Here lunch remarked about the emotional counts on sleeping rooms and food and are our destinations in the coming few impact of the talk, the summary of beverage. If we like what a hotel is years: 2014: Chicago; 2015: Fort which is printed in this issue. offering, we then ask to see the layout Lauderdale; 2016: Portland, Oregon.

American Academy of Psychiatry and the Law Newsletter January 2013 • 7 2012 ANNUAL MEETING - Luncheon Speaker

noses, such as PTSD, which would Brigadier General Stephen Xenakis: draw attention to the experience of “We Wear the White Coat at All Times” abuse, to the misuse of psychiatric authority to characterize political or Maya Prabhu MD, LLB cultural beliefs as pathological. In an anecdote about Khadr, and a second It is a pleasure to bers who recall the APA and AMA about another young detainee, he present a synopsis of discussions of 2006 will already observed that even the prisoners them- the first lunchtime know, as part of this heightened selves were able to grasp the distorted speaker at the 2012 scrutiny of the “high-value individ- dynamics in which their mental health AAPL Annual Meet- ual,” military psychiatrists and foren- professionals operated. Dr. Xenakis ing, Brigadier Gen- sic psychiatrists were actively recruit- described how his review of many eral Steven Xenakis. ed to interrogation teams at Guan- such evaluations had caused him to be Currently director of tanamo and elsewhere. Dr. Xenakis concerned that the work of psychia- Child and Adolescent Psychiatry at detailed how prisoners were subjected trists could drift towards becoming a the Psychiatric Institute in Washing- to sleep deprivation, extraordinary tool of coercion as it had, historically, ton, Dr. Xenakis retired from the US sensory overload, and solitary con- in repressive regimes. He expressed Army in 1998 at the rank of brigadier finement, not to mention harsher tech- amazement that in the “span of one general. He is best known for his niques to “break down resistance;” generation,” the United States had work since then calling for the mental and medical professionals travelled from condemning medical humane treatment of detainees in US were then called upon to diagnose and officers at the Nuremberg trials for custody and speaking out against the their collusion with torture to the cur- involvement of medical personnel in rent involvement in the name of abusive interrogations. Dr. Xenakis’ “In a presentation which obtaining intelligence. talk in Montreal seemed most timely, In thinking about the command coming shortly after the return of did not mince words, it structures and operational settings in Omar Khadr to Canada, after a decade which medical personnel were in detention in Guantanamo Bay, was impossible not to “caught,” Dr. Xenakis recognized the Cuba. As Dr. Xenakis went on to share Dr. Xenakis’ feel- very real problem of “dual loyalty”: describe, he had evaluated Khadr’s the tension between fulfilling one’s physical and mental health as part of ing of being “unsettled” role as medical practitioner with the his defense for his military trial imperative to “do no harm,” and the (though Dr. Xenakis did not testify) with the reminder that obligation to support the demands of and had found himself in the news the military mission. He characterized again, now part of the Canadian physicians, close to this as the most “elemental” of con- debate about Khadr’s repatriation. flicts and the source of deep resistance While Dr. Xenakis framed his home, had strayed so far to his stance, both within and without remarks in terms of the role of the the military. Notwithstanding these psychiatrist in 21st century warfare, from their original ther- complexities, citing the work of the story he ultimately told was a apeutic roles.” Human Rights First, with whom he deeply personal one, informed by the and a coalition of retired generals and work with Khadr and others and admirals advocate for the respectful emphasizing this message: that treat the resulting conditions. The US treatment of prisoners, Physicians for despite tremendous political and insti- government then relied on forensic Human Rights, and even experienced tutional pressures, physicians ought evaluations by these practitioners for FBI interrogators, he called for a firm not to let themselves be part of the prosecuting cases before its Military renunciation of the idea that torture is degrading treatment of prisoners, and Commissions and federal courts. effective, necessary or even “Ameri- that clear guidelines for psychiatrists’ Thus, for Dr. Xenakis, the role of can.” He rejected it as an expression of conduct are needed to protect prison- mental health professionals in the new conviction or a useful tool for gather- ers and physicians alike. warfare had become both tactical, at ing reliable intelligence. And he called Dr. Xenakis began his talk with an the level of individual engagement, for AAPL, among other organizations, overview of how psychiatrists and and strategic, as their professional to continue to affirm the core princi- other mental health professionals were opinions had a deep systemic impact. ples of good clinical practice. In per- drawn into the center of the war on Dr. Xenakis expressed profound haps the most heartfelt moment terror since 9/11/2001. He described dismay about the ways he felt that “between colleagues,” Dr. Xenakis this as being the result of a shift in psychiatric opinions had been distort- made a point of thanking AAPL for its military focus from the broader battle- ed – from the failure to document position statement on interrogations in field to the individual combatant physical signs of abuse, to the avoid- (“soldier-centric”). As AAPL mem- ance of appropriate psychiatric diag- (continued on page 14)

8 • January 2013 American Academy of Psychiatry and the Law Newsletter 2012 ANNUAL MEETING - Luncheon Speaker

worried. Ted then spent the next 25 The Unabomber and His Family years living in isolation in a cabin in Brian Cooke MD the woods in Montana. Ted’s withdrawal from his family AAPL atten- weekly attack on his belief systems continued and contact with them was dees were privi- for three years. The family never only through letters. Ten years after leged to listen to a completely understood the purpose or leaving Berkley, he sent a 25-page luncheon address ethics of this project. Ted later told letter to his family describing his given by David his family that this was “one of the realization that his life-long unhappi- Kaczynski enti- worst experiences of [his] life.” ness came from a lack of love from tled, “The Later, while he was working on his his family. He had developed a fixed Unabomber and PhD in mathematics at Michigan, Ted belief that his parents were cruel and His Family.” David is Executive had a psychotic break. He wrote over unloving. This accusation left his par- Director of New Yorkers for Alterna- 30,000 pages of diary entries, which ents confused and asking, “What did tive to the Death Penalty and the later showed his brother “an inner we do wrong?” The family still did brother of Theodore Kaczynski, the world of torture.” The writings car- not suspect mental illness but contin- so-called Unabomber. Although many ried themes of referential delusions ued to think of Ted as “eccentric” and in the audience were probably famil- and paranoia, but no one in the family “unusual but very bright.” iar with the story of Theodore and his David naturally served as the liai- involvement in a series of bombings son between his brother and his par- that caused three deaths and numer- “Despite the FBI spend- ents. In the fall of 1986, he visited ous injuries over 17 years, few Ted in his cabin and they spent two know the story of “Ted” from the per- ing 17 years of search- weeks backpacking together. spective of a brother who truly loved ing for the Unabomber, Although David felt that Ted was him. acting “a little peculiar,” he was Ted, we learn from his brother, spending millions of dol- unaware that he had killed someone was brilliant. He skipped two grades with his first bomb approximately six and graduated from high school at the lars and committing months earlier. age of 15. His IQ was measured at Eventually, it was David’s wife 165. He was the first person in the dozens of federal agents who helped him see that Ted had a family’s community to receive a full mental illness. They took his letters to scholarship to Harvard. Despite these to the search, it was a psychiatrist and asked the question gifts, there were a number of con- that haunts many family members, cerning developments in Ted’s life David’s wife who first “What can we do?” The family felt as that may have contributed to his later knew that his brother if they were “grasping for straws” to actions. David provided a series of reach out and help him. As a desper- these snapshots told through a lens of was, in fact, the ate attempt to show love and support, hindsight and often coupled with the David sent his brother the money he suggestion that perhaps there could Unabomber.” requested when Ted wrote letters ask- have been an earlier intervention to ing for $1000 and later $2000. prevent the tragedy that later ensued. There continued to be extensive David was aware by a young age quite understood the significance. At media coverage of the search for the that his brother was “special.” Ted some point, Ted sought services at the so-called Unabomber. One fateful was different than other children, University’s mental health clinic, but night, David’s wife asked if Ted because he was always alone. Their he “shut down,” could not explain his could be the Unabonber; he told the mother explained to David that when distress to the clinician, and did not audience the question “took my Ted was 9-months-old, he was hospi- receive any treatment. Later, it was breath away.” As excerpts from the talized for two weeks with a rash. learned that at that time Ted had had Unabomber’s “Manifesto” were His parents were only allowed to visit a realization that he could be happy if released to the public, David and his him in the hospital for several hours a he killed a psychiatrist or a scientist. wife spent many painful hours com- week. When Ted came home, his Another important turning point paring the writing in that document to mother felt he was different. For his came while working as a professor at the letters received from his brother. mother, this was a crucial event in the University of California, Berkley, Despite the FBI spending 17 years of Ted’s development. when Ted wrote a letter to his parents searching for the Unabomber, spend- David described another “piece of notifying them he intended to quit his ing millions of dollars and commit- a perfect storm” in Ted’s life. While job. David initially admired this deci- ting dozens of federal agents to the in college, Ted volunteered for a psy- sion, because it was the `60s – a peri- search, it was David’s wife who first chology research project studying od of “drop out and go back to personality in which he endured a nature.” Their mother, however, was (continued on page 14)

American Academy of Psychiatry and the Law Newsletter January 2013 • 9 2012 ANNUAL MEETING - Luncheon Speaker

sions in which the patient believes Phillip Resnick MD: that people have been replaced by Paranoia and Violence imposters), threat/control-override, and persecutory delusions. Dr. Reena Kapoor MD Resnick noted that paranoid people are twenty times more likely than the After a last- audience stating that the doctor had general population to have received minute cancella- acted appropriately. Those who threats in the past. Their hypervigi- tion by Jon Ron- believed that the doctor should have lance about being harmed often son, author of The hospitalized the patient took the posi- begins as a “normal” response to real Psychopath Test, tion that a first episode of psychosis threats, but gradually they develop Dr. Phillip always warrants an inpatient admis- excessive sensitivity to the negative Resnick gave a sion, regardless of the patient’s wish- emotions of others—paranoia. lecture on the rela- es. Those who believed the doctor Dr. Resnick noted that violent acts tionship between paranoia and vio- acted appropriately cited the patient’s carried out by paranoid people are lence during the luncheon on Satur- statements that he was not homicidal day, October 27. Dr. Resnick, whose and had no intent to harm anyone, usually a pre-emptive strike against many contributions to AAPL and thereby indicating that he did not the perceived threat, and they are accomplishments as a forensic psy- meet involuntary admission criteria. often well planned. Common motives chiatrist need no introduction, began This difference of opinion served as for paranoid violence include self- with the outline of a case: defense, defense of children, defense A 32-year-old steel worker in of the world, and defense of man- Youngstown, OH was brought to the “... clinicians should not hood. In response to paranoid fear, emergency department of a local hos- individuals typically react with 4 pital because he was becoming more surrender their profes- strategies: avoidance, protection of paranoid after an argument with a their loved ones, decreased visibility coworker. He was married and had 3 sional judgment to fami- in the community, and enhanced vigi- children. Despite his wife’s concern lance. Projection is a key psychologi- about his mental health in the preced- ly members in cases cal defense mechanism in paranoia. ing weeks, he had refused to see a such as this one, where Dr. Resnick noted that a common doctor prior to the night he was in thought process found in individuals the emergency room. When evaluated the wife promised that who commit violence against roman- by a psychiatrist that night, he was tic partners in defense of their man- noted to be paranoid, but he denied she would keep the hood is, “I love you,” followed by, “I any homicidal ideation or violent hate you,” followed by, “You hate intent. He was prescribed Mellaril, patient safe at home.” me.” and the doctor recommended volun- Dr. Resnick concluded the lecture tary hospitalization for further evalu- with some strategies for managing ation. However, the patient refused. the starting point for Dr. Resnick’s paranoid patients. First, he stated that After a conversation with the patient’s examination of the relationship a therapeutic alliance with the patient wife, who begged the doctor to send between paranoia and violence. is crucial. This alliance can best be the patient home and assured him Dr. Resnick outlined his main achieved by listening to the full para- that she would watch over her hus- teaching points about the case exam- noid story that the patient is telling band until an outpatient follow-up ple. First, he stated that a building without challenging the delusions or appointment could be arranged, the crescendo of paranoia creates a high appearing skeptical. A non-judgmen- doctor discharged the patient from risk of violence. Additionally, he tal stance is very important. In addi- the emergency room. That same night, reminded the audience that clinicians tion, Dr. Resnick noted that paranoid the patient stabbed his wife to death should not surrender their profession- patients often feel threatened by while she was asleep in their bed. al judgment to family members in expressions of caring or intimacy, Following this case history, Dr. cases such as this one, where the wife which they perceive as intrusive or Resnick polled the audience about promised that she would keep the duplicitous. Maintaining distance, whether the emergency room psychia- patient safe at home. Finally, he artic- both physical and emotional, can be trist had fallen below the standard of ulated an important rule about vio- very helpful in making the paranoid care when he discharged the patient lence risk: “Posing a threat is not the person feel more comfortable in the home. Approximately 30% of the same as making a threat.” therapeutic relationship. Ultimately, audience believed that a deviation Several types of delusions have strengthening the therapeutic alliance from the standard of care had been linked with violence: erotoman- can be an important protective factor occurred, with the remainder of the ic, misidentification (Capgras delu- for future violence.

10 • January 2013 American Academy of Psychiatry and the Law Newsletter CHILD COLUMN

forensic child and adult psychiatrists Forensic Aspects of Gay will undoubtedly be called upon as expert witnesses. Their responsibili- Conversion Therapy ties will be two-fold: to bring to the Stephen P. Herman MD court a clear understanding of what gay conversion therapy is supposed Should certain claimed JONAH had him believing to be and why it has been almost uni- “therapies” be all kinds of nonsense about his past. versally condemned, and to make made illegal? The The dean of the law school at UC known findings in the plaintiff which State of Califor- Irvine has stated that government can might elucidate his/her psychiatric nia thinks so. In prohibit healthcare practices that are distress and diagnoses from partici- January 2013 a ineffective or harmful. pating in such unproven therapy. That law went into There are gay conversion centers could mean opining that therapists effect making so- all over the country, attended by men had a direct duty to the plaintiff, were called gay con- and teenagers distraught by their negligent in that duty and caused version or reparative therapy illegal. same-sex attractions. They are given damage. There is much in the psychi- The basis of the law, signed by Gov- to believe that their homosexual urges atric literature to support such find- ernor Jerry Brown, is that there is no can be replaced by “normal” sexual ings. scientific evidence supporting this attraction to the opposite sex, provid- There will always be new and kind of therapy and that, in fact, it ed by these “back to masculinity” intellectual challenging roles for the can cause serious harm to patients. A centers. But many of these boys and forensic psychiatrist. Debunking the federal judge is scheduled to hear men have suffered from the sham myth of gay conversion therapy and from conservative groups who claim therapy and have developed serious supporting plaintiffs who may have the law is an infringement on free symptoms of depression, anxiety and been hurt in such programs will be speech, religion, and privacy. self-loathing. another novel and necessary role for And in New Jersey, four gay men The American Psychiatric Associ- such physicians. once enrolled in this process have ation, in 2000, issued a position state- filed a civil suit against a center ment, Therapies Focused on Attempts called Jews Offering New Alterna- to Change Sexual Orientation tives for Healing, or JONAH. Its co- (Reparative or Conversion Thera- founder, Arthur Goldberg is an ex- pies). The APA noted other organiza- Nominations for convict imprisoned for financial fraud tions, such as the American Psycho- committed in the 1980s. His partner, logical Association, the American AAPL Sought Alan Downing, has called himself a Psychoanalytic Association, the The Nominating Committee of “life coach.” The group claims it has National Organization of Social AAPL will be presenting a slate of worked with Jews and non-Jews to Workers and the American Academy Officers and Council candidates at the correct their same-sex attractions. of Pediatrics have all cited the harm Semiannual Business Meeting in The suit was brought for deceptive caused by these therapies. The posi- May, 2013. practices under the New Jersey tion statement concludes: “Therefore Any regular AAPL member who State Consumer Fraud Act. Neither the American Psychiatric Association would like to be considered for a of the men are licensed therapists, so opposes any psychiatric treatment, position should send a letter to the they are not subject to professional such as reparative or conversion ther- AAPL Office with a statement censure. apy which is based upon the assump- regarding his/her interest in serving One of the plaintiffs had been tion that homosexuality per se is a and a brief summary of activities referred to JONAH by a rabbi when mental disorder or based upon the a within AAPL. he was 18. He attended weekend priori assumption that the patient Open officer positions are: Presi- retreats at $650. He was in a group should change his/her sexual homo- dent-elect (one year); Vice-President and also had private sessions. He sexual orientation.” (one year); Secretary (one year); finally quit the “therapy” after Down- Advocates of conversion therapy Treasurer (two years). Councilors ing had him remove his clothes, touch tend to be fundamentalist Christian serve for three years. Attendance at himself and reconnect with his mas- and right-wing organizations. The both the Annual and Semiannual culinity! He is claiming severe psy- main organization promoting secular Council Meetings is expected of all chological distress from his experi- forms of this therapy is the National officers and councilors. ences with the group. He consulted Association for Research & Therapy Please send statements of interest with a licensed psychologist who has of Homosexuality (NARTH). and activity to Debra Pinals, MD, been helping him develop comfort As challenges are brought to the Chair, Nominating Committee, and confidence in his sexuality. He California law, and more civil suits AAPL, P.O. Box 30, Bloomfield, CT knows he cannot change that and has are filed throughout the country, 06002 by March 31, 2013.

American Academy of Psychiatry and the Law Newsletter January 2013 • 11 FELLOWS CORNER

for patients with eating disorders on Forensic Psychiatry and Eating an involuntary basis. However, a pri- vate facility specializing in the treat- Disorders: Encompassing my Past, ment of patients with eating disorders Present, Future had applied to the Colorado Depart- ment of Human Services to be desig- Patricia Westmoreland MD nated as a facility for patients who When applying to daughter to be discharged from the are civilly committed. A facility with a Forensic Psychia- Eating Disorder Unit, they did not this capability was sorely needed in try Fellowship Pro- have an alternative treatment plan. Colorado. Denver is home to the gram, I stated that The patient was civilly committed ACUTE Center for Eating Disorders my interest in foren- and offered no resistance to treat- at Denver Health, a unit providing sic psychiatry began ment. Several months later, she com- medical stabilization for critically ill during the five years pleted the treatment program and was patients with eating disorders. The I worked for the Iowa Department of discharged after attaining (and then facility applying for involuntary sta- Corrections. I enjoyed working in a maintaining) her goal weight. tus (Eating Recovery Center) had the correctional environment and was Several years later, a social worker expertise to treat the very severely ill looking for a fellowship program involved with the case sent me a patients once they left ACUTE and is where I could further my knowledge newspaper article featuring my for- reputed to treat some of the sickest of correctional psychiatry and my mer patient. She had won a national eating disorder patients in the United interest in criminal forensic evalua- academic scholarship and was about States: patients who are critically tions. I espoused the view that I knew to begin pre-med studies at an Ivy medically ill and close to death who far less about the civil than the crimi- meet the standards for civil commit- nal arena, and did not have much ment. experience in civil forensic practice. “Although eating disor- Involuntary treatment of patients However, I later realized that my with eating disorders is a complicated interest in forensic psychiatry began ders are the most lethal process. In many states (including far earlier than I had originally sus- Colorado) guardianship laws do not pected, and had begun with a civil of psychiatric illnesses, extend to treatment of mental illness. forensic experience. Although eating disorders are the As a resident in a combined inter- mental health profes- most lethal of psychiatric illnesses, nal medicine and psychiatry program, mental health professionals are often I treated psychiatric patients who sionals are often reluc- reluctant to petition the courts for were medically ill. On one such occa- tant to petition the involuntary treatment. The reasons sion, I was working on the Eating for this are multifold and belie the Disorder Unit when I admitted a courts for involuntary complexity of the illness. In patients young woman in her early teens who with eating disorders, competence is was in dire need of treatment for treatment.” usually suspect only in the narrow anorexia nervosa, restricting subtype. area of self-nutrition. Patients often She weighed approximately 60% of provide rational explanations for their ideal body weight, and was seriously League college. She was also recog- behavior and don’t express intent to ill. Her parents, at first eager to have nized for charity work in her commu- die. Eating disorders are chronic ill- her admitted to the hospital, had sec- nity. It was five years since she had nesses, and (with the exception of ond thoughts about our recommended been treated for anorexia, and she had patients with dangerously abnormal course of treatment (which included not been re-hospitalized. I realized electrolytes) the danger of death may having their daughter eat a variety of that treating this patient’s eating dis- not be thought to be imminent by the foods, some of which they feared she order, despite resistance from her courts (Gutheil 1986). There are often may not like). They considered family, was not an exercise in futility. frank mistruths regarding eating dis- removing their daughter from the Years later, as part of my forensic orders. For example, some believe treatment program. Concerned that fellowship, my course work included that mandated treatment is futile, she was gravely disabled due to her case law involving civil commitment. chronicity is inevitable, and eating psychiatric illness, and because her Aware of my interest in eating disor- disorders are indistinguishable from illness was life threatening, I peti- ders, my fellowship director suggest- culturally normative weight concerns tioned the court for involuntary treat- ed that I investigate the status of civil (Andersen 2007). However, patients ment, over the objections of the commitment for patients with eating who are civilly committed gain patient’s parents. At the committal disorders in Colorado. At the time, weight at the same rate as those who hearing, the patient’s parents testified there were no facilities in the state sign in to treatment voluntarily (Wat- that, although they wanted their that were able to provide treatment (continued on page 14)

12 • January 2013 American Academy of Psychiatry and the Law Newsletter SPECIAL POPULATIONS

one remarkable hour of supervision Is Institutional Psychiatry with Dr. Mensch - who was not listed or promoted in the fellowship Incompatible With Being a Parent? brochure but really should have been. Ask a Mensch. It’s difficult to explain how much or why that helped, but afterward, my Stephen Zerby MD morale boost propelled me to work like a dog the rest of the fellowship, business discussing research plans Any form of which I completed and did a pretty and cases, and so forth. When I had correctional or good job, I think. This taught me that interviewed with him for the fellow- institutional psy- there is such a thing as a “make-or- ship spot, I remember crawling out of chiatry must take break” moment. Dr. Mensch had per- his office thinking, “Man that was into account the formed brilliantly by revealing his one brutal interview.” It had felt like a fact that there is true persona at a critical time and mental workout – but the good kind no opportunity deserves praise for having the wis- of mental burn/pain. So, while still for the forensic dom and good heart to do so. In fact- acutely mourning and dragging psychiatrist to practice independently. and this is the most impressive part myself into supervision, he asked me All such work takes place in institu- of the story – to this very day I still how things were going and I replied tional settings often with formidable feel a sense of loyalty to Dr. Mensch that I was really dragging, it was hard management structures in charge of and his department, all resulting from to focus, my energy level was low, Byzantine policies and procedures. that one all-important hour. Be a and so on. He appeared surprised and I truly wish I never had to ask the mensch toward someone and his or asked me why I felt that way. I said question in the title but correctional/ her enduring hard work and loyalty institutional psychiatry has made me may be the result – and the supervi- wonder, sadly. To even ask such a sor’s reward. question would seem ludicrous to a “Leadership is not sim- Now we turn to large institutions child psychiatrist or pediatrician, but ply about enforcing pro- to monitor their mensch-levels. The I question whether our domain of result? Hovering around zero, in my psychiatry and parenthood really mix. tocols and giving orders: opinion. Facing a somewhat similar In normal work settings (I’ve worked situation but now involving my sick in other job settings) having a sick or motivating people to go child, I’ve been looking for another possibly sick child typically elicits Dr. Mensch to jog my morale a bit some form of sympathetic or at least above and beyond in but unfortunately the mensch, like so semi-sympathetic response from col- many other desirable things these leagues. Many adjectives can be used their efforts and reach days, seems to be in short supply, at to describe the experience of seeing a least in these types of settings. Never tough boss put aside his or her tough their full potential is taking into consideration that institu- persona for just a bit while expressing also critical ...” tional cutbacks would include com- sympathy for your sick child: surpris- passion, this past year has been one ing, heartwarming, relieving, hearten- of empathy and humanity deficits. ing, etc. There is so much to be said After proceeding through medical something like, “you know, my mom for such a crucial moment in the school, residency, fellowships, and just died,” assuming he already knew, employer/employee relationship that then working in various clinical set- but the expression on his face told me managers should take note: this could tings, never in a thousand years otherwise. But then – and I’ll never be a crucial once-in-a-job golden would I have expected those in forget this moment – something mag- opportunity to build morale and healthcare professions to conduct ical happened. The serious, grim- thereby enhance performance, but far themselves as such, with empathy faced persona suddenly and unexpect- too often it is squandered through and humanity deficits. Without going edly vanished as he put his hand to morale-crushing bureaucratic non- into details, imagine the above Dr. his jaw asking me in ever so gentle a sense. Grim vignette but with a twist: manner, “What happened?” Immedi- My forensic fellowship was one instead of kindly asking, “what hap- ately the same question came into my trying year for me on a personal level pened?” he had replied, “It is against head albeit slightly altered: “What highlighted by the sudden death of a the law for a supervisor to ask a happened to Dr. Grim? He’s become parent. Not long after the burial, I supervisee personal details. I don’t – well – Dr. Mensch” (as a trainee, recall going for supervision with a care about your family. Have your my child division director wisely famous forensic psychiatrist who was reports been on time and of adequate taught me of the virtues of Men- known for asking pressing and point- quality?” There is little doubt in my ed questions and never ever smiling schdom; a mensch is in essence “a during supervision: it was serious good person”). What followed was (continued on page 31)

American Academy of Psychiatry and the Law Newsletter January 2013 • 13 2012 ANNUAL MEETING - Luncheon Speaker

The Unabomber in as much pain as she was and said, References “It’s not your fault.” This moment 1. Anderson AE. Eating Disorders and continued from page 9 showed David that despite great loss, Coercion. Am J Psychiatry 164: 9-11, 2007 indeed, “Healing is possible.” Just as 2. Guarda AS, Pinto AM, Coughlin JW, knew that his brother was, in fact, the Hussain S, Haug NA, Heinberg LJ. Per- Unabomber. The turning point came many families suffered from the ceived Coercion and Change in Perceived one morning when David awoke with actions of the Unabomber, Ted’s Need for Admission in Patients Hospital- a feeling of “crushing depression” mother had lost her son, and David ized for Eating Disorders. Am J Psychiatry and finally realized that there was at had lost his brother. The impact on 164: 108-114, 2007 AAPL attendees was probably best 3. Gutheil TG, Bursztajn H. Clinicians’ least a 50-50 chance that his wife’s Guidelines for Assessing and Presenting suspicion was correct. This led to summed up by the remark from one audience member that David Kaczyn- Subtle Forms of Patient Incompetence in painful questions of, “Who is my Legal Settings. Am J Psychiatry 143: 1020- brother? Is he evil?” David and his ski’s address was “one of the most 1023, 1986 wife struggled with the dilemma of inspiring luncheons in the past 30 4. Strober, M., Freeman, R., Morrell, W. what to do next, because any decision years.” (1997). The long-term course of severe they made could possibly lead to anorexia nervosa in adolescents: Survival analysis of recovery, relapse, and outcome more tragedy. predictors over 10-15 years in a prospective Soon, David informed the FBI of Eating Disorders study. International Journal of Eating Disor- their suspicions, and then he realized continued from page 12 ders 22, 339-360. he would also need to tell his mother 5. Watson TL, Bowers WA, Andersen AE. that Ted might be the most wanted son 2000) and they are often (in ret- Involuntary Treatment of Patients with Eat- man in America. His mother handled rospect) grateful for this treatment ing Disorders. Am J Psychiatry 157: 1806- the news with grace. In April 1996, (Guarda 2007). Patients are at a criti- 1810, 2000 Ted was arrested without further inci- cal stage for being receptive to such dent. David’s luncheon address did treatment when they are in their teens not focus as much on the develop- or twenties, and early, intensive treat- ments of Ted’s legal case, because it ment is essential if patients are to White Coat recover and remain illness-free five had received much attention from the continued from page 8 media. At some point while incarcer- years later (Strober 1997), as in my ated, Ted made a suicide gesture, patient. 2006: he explained that such civilian which he explained was because he At the time I completed forensic engagement with military practice was did not want to be labeled as a fellowship, Eating Recovery Center a welcome support to him and like- “lunatic.” He was found competent to had been granted the pre-requisite minded colleagues at a time when they stand trial but later denied to proceed status, and was able to treat patients were isolated and marginalized. pro se. Ted refused to pursue an with eating disorders on an involun- In a presentation which did not insanity defense. Almost two years tary basis. I began a clinical practice mince words, it was impossible not to after his arrest, he pled guilty to all of at this facility and a part-time private share Dr. Xenakis’ feeling of being the government’s charges to avoid forensic practice that focuses on “unsettled” with the reminder that trial. involuntary treatment of patients with physicians, close to home, had strayed What happened next, David said, eating disorders and other psychiatric so far from their original therapeutic taught him the meaning of restorative illnesses that cross the medical/psy- roles. Not surprisingly given the sub- justice. On the night Ted accepted a chiatric divide. This is a far cry from ject matter, Dr. Xenakis’ presentation plea bargain, David and his mother the correctional career I had envi- provoked lively questioning, both sup- were invited to meet one of the vic- sioned, but a perfect mix of my expe- portive and critical, but was ultimately tim’s families. The family wanted to rience and training, together with my met with a lengthy standing ovation. personally thank them for turning in aspirations to make a difference in While challenging questions remain, their own family member. David this relatively unchartered area of Dr. Xenakis’ talk was a plea to cringed when his mother told the civil forensic practice. remember that, “the white coat is worn widow, “It’s not really my son. It was Patricia Westmoreland MD com- at all times,” even if there is a military his mental illness.” With anger, the pleted her Forensic Psychiatry Fel- uniform underneath. widow replied, “He knew what he lowship at the University of Col- For a succinct review of issues with was doing.” (This exchange also illus- orado, Denver in August 2012. She is regard to the role of health profession- trates commonly held conflicting per- now attending psychiatrist at Eating als in interrogations, both direct and ceptions regarding mental illness and Recovery Center, consulting psychia- indirect, including references to insanity.) David’s mother realized her trist at Denver Health ACUTE, clini- important opinion pieces and profes- comment was hurtful and said, “I cal instructor in psychiatry at the sional resolutions, see “Commentary: really wish he had killed me instead University of Colorado, and has a It’s About the Fundamentals,” J Am of your husband.” With this, the forensic psychiatry practice in Acad Psychiatry Law 34:4:479-481 widow knew that David’s mother was Denver. (December 2006), Young, J. MD.

14 • January 2013 American Academy of Psychiatry and the Law Newsletter ASK THE EXPERTS

this error. insist on working with an attorney. I Ask The Experts At the beginning of a deposition, require a retainer fee in civil cases when people are introducing them- when working with a plaintiff attor- Neil S. Kaye, MD, and Bob Sadoff, selves, I generally try to remember to ney or in criminal cases when work- MD will answer questions from mem- ask that the ing with a defense attorney. I have bers related to practical issues in the record reflect never had a problem with being paid real world of Forensic Psychiatry. who is paying for by a prosecutor or a district attorney Please send questions to nskaye@ my time and if and have had few problems with aol.com. This information is advisory there is any addi- defense counsel in civil cases so I only for educational purposes. The tional charge, to may extend them the courtesy of authors claim no legal expertise and what address I being billed. should not be held responsible for should send a It is best to charge by the hour any action taken in response to this bill. This formal rather than a flat case rate as one educational advice. Readers should record of financial responsibility car- can’t know in advance how many always consult their attorneys for ries significant legal weight should a hours it will require to review legal advice. The 2013 columns will dispute erupt later. records, examine an individual, or to address a variety of questions submit- I have not yet met a seasoned speak with other involved parties/wit- ted by readers regarding the attorney- forensic psychiatrist who has not had nesses. I usually set a base of 5 hours expert relationship, including com- a billing dispute. There can be signifi- for the retainer fee with the under- mon problems and potential solutions. cant pressure brought upon you to standing that if I work more, I will Dr.’s Kaye and Sadoff have conferred accept payment at a later date. Insur- bill for the balance before releasing on the advice being provided. ers may not want to “pre-pay” and my report. I also return any unused will argue that you don’t know how funds promptly. Q. What can I do to make sure I get many hours you will use and are sure Depositions can pose problems as paid for my time and work prod- you will inflate your billings to match they are mostly requested by the non- uct? How do I deal with a lawyer your retainer. Some governmental retaining attorney, who has no partic- who wants more time for a deposition agencies are not allowed to pre-pay ular obligation to me, since she works than was allotted? What about the and require billing after the fact. Most for the other side. That makes it billing issues? of us start out being strict, then ease extremely important to have a retain- up until we get burnt, and then get er fee for the deposition paid in Kaye: Most forensic psychiatrists set strict again, reasoning that “one bad advance. It is best to have it paid sev- up a fee schedule based on an hourly apple can spoil the whole bunch.” eral days in advance to assure the rate. Those of us with web sites will Lastly, a cleared check should be check clears your bank prior to the post our fees along with a list of ser- required prior to entry into court. deposition. Should the non-retaining vices on the websites (eg.: That allows you to testify with no attorney request more time for the www.courtpsychiatrist.com). At the fear of being “stiffed” if the case goes deposition than was originally agreed same time, it is permissible to charge against the retaining party and allows to, I always request from the non- a flat rate or case rate. It is not per- you to tell the jury that your testimo- retaining attorney a fee for the time missible to charge a fee based on any ny is unhampered, because you have she estimates the deposition will take. outcome of the case (contingency). already been paid. Knowing that depositions may run Requiring a retainer is the best advice beyond the allotted time, I usually do and the retaining party can be billed Sadoff: It is important to have an not schedule anything after a deposi- as needed should the retainer be agreement with the attorney about the tion, allowing me some flexibility. I insufficient. hourly fee or set fee for a particular insist that the attorney bring a blank Mandating the lawyer sign a con- case. Some attorneys prefer to have a check to the deposition to pay for any tract making her responsible for all fee agreement additional time used. It is up to the fees incurred by either side is the rec- signed by both retaining attorney to assure her adver- ommended. Ideally, you should be parties. Some sary brings the check in order for the paid in full prior to releasing any forensic psychia- deposition to go forward. If the attor- report to the retaining party. There is trists prefer to ney needs more time and doesn’t a tendency to be too nice to a lawyer have everything have a check with her, I insist on end- in the belief that such “customer ser- in writing as well. ing on time and rescheduling with vice” will be rewarded with future I have not had a prepayment. I will offer the retaining referrals. Also, if a lawyer or firm or problem with attorney the opportunity to guarantee insurer has used you in the past, attorneys with whom I have worked payment in order to negate the need there is a temptation to believe that as long as there was an established to reschedule. they can be trusted to treat you fairly verbal agreement at the outset. in the future. All of us have made I do not see pro se individuals; I (continued on page 28)

American Academy of Psychiatry and the Law Newsletter January 2013 • 15 PHOTO GALLERY

Larry Faulkner receives the Seymour Pollack award from Renée Binder. Conference venue. The Sheraton Hotel, on the right.

AAPL staff welcoming members to the conference. Ken Applebaum receives Golden AAPL award.

Steve Noffsinger receives Best Teacher award. Committee chairs presenting reports to council.

16 • January 2013 American Academy of Psychiatry and the Law Newsletter PHOTO GALLERY

Emily Keram honored with the Red AAPL award. Dr. Trestman honors Tara Collins with the Young Investigator award.

Here they are! The next group of Rappeport Fellows pose with AAPL Medical Director, Howard Zonana, being recognized for Susan Hatters Friedman and Britta Ostermeyer. years of meritorious service to AAPL.

Forensic psychiatric practice under a magnifying glass. AAPL members take time to explore and enjoy old Montreal!

Photo Credits: Steve Berger MD; Roni Seltzberg MD; James Wolfson MD

American Academy of Psychiatry and the Law Newsletter January 2013 • 17 REPORTS

Next Steps Forward Newsletter Editor. There is much to 32; 300-308 be proud of as we look back to the 2. AMA Code of Medical Ethics- Opinion continued from page 4 founding of the organization and all it 8.14 Sexual Misconduct in the Practice of has accomplished over the years, and Medicine, Adopted Dec 1990 (JAMA v. allowed me to also stay connected, 266: 2471-2475, 1991) while moving ideas and agendas for- I am grateful and honored to help AAPL take its next steps forward. 3. AMA Code of Medical Ethics– Opinion ward. By continuing with many of the 8.145 – Sexual or Romantic Relations themes of prior Presidents and build- between Physicians and Key Third Parties, ing our pathway brick by brick and Adopted in June 1998. member to member, I aim to continue 4. E.g. See Conn Gen. Stat. Sec. 53a-71. to build AAPL as a “go-to” profes- Consensual Sex Sexual assault in the second degree: Class C sional home for many years to come. continued from page 6 or B felony. Many of our members already help (a) A person is guilty of sexual assault in with this goal through their participa- create a per se cause of action.” She the second degree when such person tion in the organization through Com- argues that the “absolute duty” to engages in sexual intercourse with another mittees and other aspects of gover- refrain from sexual relations with person and: …… (6) the actor is a psy- nance. I have had the chance to meet patients is no different than the chotherapist and such other person is (A) a with Committee Chairs, and they all “absolute” ethical duty currently patient of the actor and the sexual inter- enthusiastically participate in the imposed upon physicians with which course occurs during the psychotherapy ses- organization infrastructure. Based on they must abide. Licensure boards, sion, (B) a patient or former patient of the these discussions, we have asked she notes, are already authorized to actor and such patient or former patient is Committee Chairs to provide a brief take disciplinary action in these cases. emotionally dependent upon the actor, or description of their work so that we “Thus, based on the universal con- (C) a patient or former patient of the actor can put together a compendium of demnation of sexual contact between and the sexual intercourse occurs by means of therapeutic deception; or (7) the actor our Committees. The goal is to share a physician and a patient, in my view, accomplishes the sexual intercourse by this compendium widely to help the social utility of the physician’s inform members more about our means of false representation that the sexual conduct at issue favors recognizing a intercourse is for a bona fide medical pur- Committee structure and to encourage 11 duty of care.” She also felt that the pose by a health care professional…. further participation of additional additional burden of argument to turn 5. Thierfelder v. Wolfert, 52 A. 3d 1251 members. Although our membership general practitioners from treating (September 28, 2012) has been stable over the years, we mental conditions is not credible 6. Ibid. at 1260 need to continue to build on efforts especially in light of the already 7. Ibid. at 1261 like these to enhance opportunities existing prohibition on this conduct. 8. Ibid. at 1261 for membership to grow. I believe by In my view, the dissent got it right. 9. Ibid at 1264 continuing to provide meaningful In general, ethical violations are not 10. Ibid. at 1266 contributions to the members’ profes- always the standard of care for mal- 11. Ibid. at 1285 sional lives, the organization will practice purposes. In the case of sexu- maintain its current vitality. al contact between physicians and As we look at these exciting patients however, the ethical guide- growth areas, it is important to take a lines have generally been interpreted Future AAPL moment to also thank several individ- as the standard of care. Licensure Meeting Dates uals. There are too many to name in boards have been increasingly harsh this newsletter column, but I am on these violations, frequently sus- October 24 – 27, 2013 indebted to our incredible manage- pending a physician’s license to prac- ment staff, including Jackie Coleman, Hotel Del Coronado tice when sexual contact is proved. San Diego, California our Executive Director, Marie West- While we prefer not to see expansions lake, Associate Executive Director, of liability in general, this area has October 23 – 26, 2014 Kristin Loney, Executive Assistant, such a bad outcome for both patients Marriott Downtown and Sara Elsden, Journal Editorial and for the profession that strong Coordinator. They work hard each deterrents are needed. Chicago, Illinois day to keep our organization on track and I have appreciated all their sup- References October 22-25, 2015 port over the years. Thank yous also 1. “…I will come for the benefit of the sick, Marriott Harbor Beach are extended to our Medical Director, remaining free of all intentional injustice, of Ft. Lauderdale, FL Howard Zonana, MD, as well as Ezra all mischief and in particular of sexual rela- Griffith, MD, our tireless and tions with both female and male persons…” October 27-30, 2016 thoughtful Journal Editor, Michael Campbell, M. The Oath: an investigation of Hilton Portland Norko, MD, Associate Editor of the the injunction prohibiting physician-patient Portland, Oregon Journal, and Charles Dike, MD, our sexual relations. Perspect. Biol. Med. 1989;

18 • January 2013 American Academy of Psychiatry and the Law Newsletter ALL ABOUT AAPL - Committees

items refer to past suicide attempts Suicide Risk Assessment: and do not factor into the score gener- ated. The L-SASI is a brief survey of Augmenting Clinical Skills with lifetime intentional self-injurious behaviors. Behaviors are categorized Structured Instruments into suicide attempts and non-suicidal Hal S. Wortzel MD, Suicide Committee acts. The L-SASI also assesses charac- teristics of self-harm behaviors, Dr. Charles Scott, during his Presi- also may benefit from this combina- including intent, method, treatment dent’s Address at the 43rd Annual tion of skills. While a thorough clini- received, and lethality. The RFL is a Meeting, issued a compelling charge cal evaluation remains the standard of 48-item measure of barriers against to our members: enhance our self-effi- care in suicide risk assessment, suicidality, based upon reasons indi- cacy by identifying and learning struc- unstructured clinical examinations viduals may give for not killing them- tured assessment tools to augment our carry the potential to miss some selves when they were thinking about clinical evaluation skills. Two specific aspects of risk assessment when not suicide. Items are rated in terms of areas of assessment were explicitly combined with more structured assess- their importance as a reason for living discussed, violence risk assessment ment tools. Additionally, as suicidality on a scale from 1 (not at all impor- and symptom validity. For instance, may be difficult for some individuals tant) to 6 (extremely important). Six rather than rely upon colleagues from to disclose, a combination of clinical domains are assessed: Survival and other disciplines to perform structured interview and structured assessment Coping Beliefs, Responsibility to violence risk assessment, the forensic tools, including self-report measures, Family, Fear of Suicide, Fear of Social psychiatrist may learn to use the HCR- yields more avenues and opportunities Disapproval, Moral Objections, and 20 in conjunction with his/her own for unearthing thoughts of suicide. Child Related Concerns. clinical risk assessment to more More information about these and robustly and systematically identify other assessment tools may be found risk factors for violence and stratify “Just as violence risk at the website for the Veterans Inte- level of risk. Similarly, the forensic assessment benefits from grated Service Network 19 Mental Ill- psychiatrist might learn to administer ness Research Education and Clinical the Test of Memory Malingering combining clinical and Center (http://www.mirecc. (TOMM) to help assess the validity of va.gov/visn19/research/assessment_too purported memory impairment rather structured assessment ls.asp). Tools should be thoughtfully than call upon a neuropsychologist to combined to capitalize on the respec- deploy this tool. The advantages of techniques, assessing tive strengths of each instrument. The being able to combine clinical evalua- combination of the three suggested tion skills with structured assessment risk for suicide and/or above is a good example. The BSS, as tools seem self evident. a self-report measure, provides the In the spirit of this compelling self-directed violence opportunity for the individual to charge, it seems appropriate to suggest also may benefit from acknowledge struggles with suicidal an additional important area of assess- thoughts in writing, and provides an ment wherein clinical evaluation skills this combination of overall sense regarding the acuity of may be appreciably augmented by the suicidality. The L-SASI provides a addition of structured assessment skills.” more detailed historical perspective on tools: suicide risk assessment. Suicide prior self-directed violent behavior. may be conceived of as a self-directed The RFL is helpful in identifying form of aggression. In fact, the pre- Three examples of useful suicide potential protective factors that might ferred nomenclature for suicide and risk assessment tools include the Beck 5 be augmented or capitalized upon in self-injurious behaviors currently in Scale for Suicidal Ideation (BSS), the helping to mitigate long-term risk. use by both the Center for Disease Lifetime Suicide Attempt Self Injury Collectively, this battery, when Control, Veterans Health Administra- Interview (L-SASI),6 and the Reasons 7 combined with a clinical examination, tion, and Department of Defense is for Living Inventory (RFL). The BSS will provide a robust picture of risk described under a self-directed vio- is a 21-item self-report inventory and protective factors, and put the lence classification system.1-3 A theo- based on the original Beck Scale for 4 clinician in the best possible position retical model offered by Kerr et al. Suicide Ideation, which is the clini- to accurately estimate acute and posits a crucial role for aggression in cian-administered version. Each item chronic risk for suicide. The informa- driving suicidal behaviors. Just as vio- on the scale may be responded to with tion yielded will also guide treatment lence risk assessment benefits from a range of 0-2, 0 representing lowest in identifying risk factors to target for combining clinical and structured and 2 representing highest in terms of extinction, and protective factors to assessment techniques, assessing risk severity. The total scale generates a for suicide and self-directed violence score ranging from 0-38. Two of the (continued on page 28)

American Academy of Psychiatry and the Law Newsletter January 2013 • 19 ALL ABOUT AAPL - Committees

House again voted to push back AMA Meets in Hawaii implementation of the ICD-10, Robert T.M. Phillips MD, PhD, Delegate; Barry Wall MD, Alternate citing numerous encumbrances Delegate; Ryan Hall MD, Young Physician Delegate; Howard Zonana MD, and costs associated with learning and installing a new coding sys- Medical Director tem. Onerous codes cited in ICD- The American Medical Associa- of atypical antipsychotics in pedi- 10 include specifying burns tion’s (AMA) Interim Meeting focus- atric patients. It summarizes occurring while water skiing, and es on advocacy issues. Your AAPL recently developed guidance on injury while attending the opera. delegation participated in the Novem- such use; the report is located at One position is available for a ber 2012 AMA Interim Meeting, held http://ama- young physician to serve in the in Honolulu, Hawaii. assn.org/resources/doc/csaph/i12- AAPL AMA delegation as a Young The meeting began two days after csaph1-atypical.pdf. Physician Delegate. A young physi- the national elections, and Florida’s • Psychiatric populations: The House cian is defined as an individual with- electoral votes were not certified until also passed a resolution encourag- in the first 8 years of practicing since several days into the meeting. The ing the NIMH and local health completing training or younger than meeting tone was subdued, and departments to examine national 40 years of age. The Delegate will national policy resolutions were light, and regional variations in psychi- participate at the Annual Meeting of due to the election’s prior uncertainty. atric illness among immigrant, the AMA Annual meeting held every Our delegation expects more advoca- minority and refugee populations. June in Chicago and the AMA Inter- cy related to the Affordable Care Act Other meeting highlights include im meeting held every November at at the Annual Meeting in June. the following. rotating locations. This is a multi- In spite of relatively light Federal • Physicians as employees: With year commitment. Meetings run from advocacy activity, the AMA House of the increasing number of physi- Thursday evening to the following Delegates voted to leave advocacy to cians entering into employment Tuesday or Wednesday. AAPL covers expand Medicaid eligibility (to 138% arrangements, the House of Dele- expenses for travel, meals, and hotel of the federal poverty level) to states gates approved principles for during the AMA meetings but there is and state medical societies, rather physician employment. These no compensation for time spent on than to support such advocacy at the principles identify and address these activities. Applications are due Federal level. It also voted to pre- some of the unique challenges to March 1, 2013. Interviews will take serve, rather than cut substantially, professionalism and the practice place during the American Psychi- the Prevention and Public Health of medicine arising in the face of atric Association meeting in San Fund, which is needed to promote physician employment. It is locat- Francisco on May 18 and 19, 2013. wellness, prevent disease, and protect ed at http://www.ama-assn.org/ Those chosen for interviews will be against public health emergencies. resources/doc/hod/ama-princi- notified as soon as possible after AMA will also study whether to ples-for-physician- March 1, 2013. The AAPL Executive oppose antitrust exemption status for employment.pdf. Council makes the appointment. health insurance companies via call- • Medical Staff autonomy: The Please contact any member of the ing for repeal of the McCarran-Fergu- House spent considerable time AMA Delegation if you have addi- son Act. debating medical staff autonomy tional questions. Psychiatric highlights include the and due process rights when For more information on the following: physicians are terminated. A actions of the AMA House of Dele- • Ethical Opinions on Continuing report on this topic will be issued gates at the 2012 Interim Meeting go Medical Education: The Council in the future. to http://www.ama-assn.org/ama/pub/ on Ethical and Judicial Action • Push back of the ICD-10: The meeting/index.shtml issued a report amending ethical opinions on CME. The report per- tains to individuals attending CME, not for those who provide it (that opinion was issued last year). The report is located at http://www.ama- assn.org/resources/doc/ethics/ceja- 1i12.pdf. • Atypical antipsychotics in pedi- atric patients: As anticipated, the Council on Science and Public Health issued a report on the use

20 • January 2013 American Academy of Psychiatry and the Law Newsletter ALL ABOUT AAPL - Committees

ASD. The panelists were in accord Autism Spectrum Disorders and that characteristics of affected indi- viduals in the criminal justice system Criminal Justice seemed always to work against Ken Weiss MD, and Manish Fozdar MD, Developmental Disability Committee them—aloofness, glibness, lack of empathy and remorse, and apparent At the Annual Meeting, the Com- Dr. Kellaher reported on a inability to recognize the wrongful- mittee sponsored a presentation on teenaged boy with Asperger’s and a ness of their acts. Autism Spectrum Disorders (ASD) highly focused obsession with canine Using examples from cinema and and criminal justice. The panel genitalia. He was arrested for pub- new reports, Dr. Weiss noted the included Committee Chair, Manish licly masturbating while fondling a polarization of responses to behaviors Fozdar, MD, Committee members neighbor’s dog. His lack of insight by individuals with ASD. In the Kenneth Weiss, MD and Alexander was striking, as he told of his intent movie “Adam,” the main character Westphal, MD, and invited partici- to become a veterinarian. As a con- had lost his job and was wandering, pants, Madelon Baranoski, PhD and cession, he noted that his interest in stopping at a schoolyard during Mark Mahoney, Esq. In addition, horses could be problematic. recess. Someone called the police Committee member Denise Kellaher, In Dr. Fozdar’s example of homi- about a suspicious person, and when D.O. displayed a poster on Asperger’s cide, the 21-year-old with ASD killed confronted by police, Adam told the and deviant sexual behavior in a his mother and 2 half-siblings. truth: “I was watching the children.” teenaged boy. “Bobby” showed classic signs of poor One can easily see how the social Much attention has been directed cognition and communication style of towards clinical dimensions and legal such a person pours gasoline onto a implications of Autism Spectrum “... characteristics of fire of suspected criminal behavior. In Disorders (Asperger’s and PDD-NOS the movie, Adam was not charged, in DSM-IV nomenclature). In higher- affected individuals in but in a serious international case, functioning individuals, there is the criminal justice sys- that of Gary McKinnon, there has ambiguity about capacity for criminal been a huge amount of activity. The intent, despite intellectual ability in tem seemed always to Briton hacked into the Pentagon other areas. The presenters shared “looking for evidence of UFOs,” and many examples of adults and juve- work against them – has been criminally charged in Amer- niles with ASD charged with crimes ica. As he sees it, he was simply fol- ranging from possessing pornograph- aloofness, glibness, lack lowing his interests, not spying. Now ic images to gruesome murder. A a cause célèbre, the McKinnon matter recurring theme was assessing the of empathy and remorse, has generated great interest, including subjective state of the defendant in tabloid coverage and British “save situations where there may not be and apparent inability to Gary” (from extradition) campaigns. grounds for a standard defense of recognize the wrongful- Examining psychological studies insanity. of ASD, Dr. Baranoski underscored In Mr. Mahoney’s example of ness of their acts.” the difficulties in assessing trial com- child pornography, we had an illustra- petency. Among them is the frustra- tion of how the overdeveloped inter- tion of defense lawyers who know ests of the person with ASD led the social development, hypersensitivity there is something wrong with the defendant to receiving and possessing to stimuli, and restricted interests. His client, yet cannot identify it. Dr. unlawful material. The defendant’s interests ran towards violent and Baranoski highlighted 3 key issues: reason for the behavior was the pur- pornographic videos and knives, 1) the disparity between verbal capac- suit of his interest, whereas he was which he collected. This was a capital ity and practical reasoning; 2) the odd oblivious to the legal and other impli- case involving many expert witnesses. and yet normal presentation; and 3) cations. Mr. Mahoney characterized Dr. Fozdar showed the difficulty not the presentation of stubborn disregard the intersection of Asperger’s Disor- only in achieving consensus among for authority, arrogance, and defiance. der and criminal justice as “the per- the experts but also in educating the Judges, the psychologist said, often fect storm.” Thus, for example, prose- judge and jury on the nature of ASD see defendants with ASD as an cutorial attitudes toward possession and its implications for culpability. annoyance. Among the psychometric of child pornography include escala- Ultimately, the defendant received a findings was the disparity between tion of penalties based on the quantity life sentence. verbal superiority on vocabulary and of images. In the Asperger’s case, the There is great resistance in the deficient verbal reasoning. The obses- defendant’s highly developed interest criminal system against excusing sive focus on certain words or mean- and accumulation was used as evi- ASD defendants, although the behav- dence of criminality. ior is best explained on the basis of (continued on page 28)

American Academy of Psychiatry and the Law Newsletter January 2013 • 21 ALL ABOUT AAPL - Committees

law and mental health. Virtual Reality and Forensic The hospital is considered to be a maximum secure facility and has Psychiatry in Quebec about 290 beds. Inpatient services The Philippe Pinel Institute of Montreal consist of the following programs: admission and evaluation including France Proulx MD and Kenneth Busch MD, Chair of the International the assessment of the level of danger- Relations Committee ousness, fitness to stand trial and The International Relations Com- presented on the development of tools criminal responsibility; treatment and mittee sponsored its 13th yearly site to be used for the assessments with reintegration program for patients visit at The Philippe Pinel Institute of the CAVE. Avatar, virtual human prone to violent behavior; rehabilita- Montreal during the 43rd Annual replicas in 3D, are developed based tion program for chronically danger- Meeting. The site visit was coordinat- on specific characteristics of gender, ous patients; a program for clients ed through Dr. France Proulx who age and appearance. Virtual environ- from Federal Penitentiaries, including has been a psychiatrist at the Philippe ments are developed as well. The services for sexual offenders; and an Pinel Institute since 1998. She and team is currently working on virtually adolescent program for forensic eval- one of her colleagues, Dr. Joel Watts, replicating one of the treatment units uation and treatment. The outpatient both members of the AAPL, wel- of the Institute. As there is no other department offers consultation to comed a group of participants to the technological setting like it in the clinicians and hospitals regarding vio- AAPL meeting in Montreal this past world, a lot of effort and time are lent patients, to community agencies October. needed, and many specialized staff concerned with mental health and The history of the facility is are involved. When the CAVE is legal issues, and to provincial and strongly linked to forensic psychiatry ready, the individual to be assessed federal detention centers. in Quebec and the Institute now has a will be presented with different stim- The site visit at the Philippe Pinel global reputation as one of the uli, depending on specific assessment Institute was well-received by the world’s foremost sources of knowl- needs. participants. It outlined the impor- edge pertaining to the prevention, After being presented the CAVE tance of developing new ways to assessment and treatment of danger- research project, participants visited assess difficult and violent patients, ous and violent behavior. It was two inpatient units, a leisure activities even in these times of budget cuts. founded in 1970 in direct response to area for patients with a game room, We were especially impressed with the Quebec government’s desire to well-equipped gymnasium and indoor the enthusiasm and accomplishments provide appropriate mental health pool, and the staff library which has a of the program and Staff. We thank care for a group of patients who were large collection of information on Dr. Proulx and Staff for being won- deemed difficult to treat. The Institute forensic psychiatry and extensive derful hosts and for arranging such an was named after the French doctor resources available for research on exceptional visit. Philippe Pinel (1745-1826) who greatly influenced the evolution of psychiatry through substantial reforms in French hospitals. The Institute keeps up with the lat- est technology in assessment of vio- lent patients. A team of researchers, led by Patrice Renaud, PhD, is devel- oping a virtual reality environment (the CAVE: Cave Automatic Virtual Environment) in order to assess indi- viduals with different profiles of deviant behavior: sexual deviance, impulsivity and aggressiveness, and cognitive deficits. Through this research team, the Institute was fund- ed with a grant of more than a million dollars by the Quebec provincial gov- ernment agency for economical development and innovation. Patrice Renaud, PhD and an engi- neer involved in the research project

22 • January 2013 American Academy of Psychiatry and the Law Newsletter ALL ABOUT AAPL - Committees

cial or “research based” prevention School Bullying: Administrators’ programs available and utilized by schools, the evidence base is sparse Responsibilities and Effective and often conflicting. In response to Interventions? this dilemma, school officials strug- gling to comply with the law and Cory Jaques MD, Child and Adolescent Committee protect students may seek out profes- School bullying is a common, ty,” and where “the student harasser sional guidance for recommendations problematic behavior that can disrupt is under the school’s disciplinary on interventions that may decrease children’s lives and development and authority.”3 bullying behaviors. cause significant psychiatric comor- In applying the deliberate indiffer- Forensic mental health experts can bidity. Approximately half of school- ence standard, the court acknowl- assist schools and parents in decreas- aged youth worldwide are affected edged the practical realities of school ing bullying behavior and in mitigat- by bullying.1, 2 Though not a new officials’ ability to respond to student ing the mental health impact of bul- phenomenon, national attention to behaviors. In addition to establishing lying by providing recommendations the problem of bullying rose dramati- clear limits on schools’ liability, this for research based response and cally in the 1990s after several highly standard has also created a require- intervention programs. Additionally, publicized incidents of school vio- ment for school officials to respond the courts continue to seek out pro- lence (e.g., Columbine). Bullying has swiftly to students who report being fessional guidance for recommenda- become increasingly prominent in tions on interventions that may the popular media, heightening pub- decrease these behaviors. lic demands for action to respond to “In Davis v. Monroe, the Over the past two decades, the this public health crisis. research on bullying has grown as Historically, we have vested the Court held that school investigators explore how to inter- teacher with the responsibility of vene effectively and prevent it from protecting children in the school officials may be liable occurring. Because there are few lon- environment. Because most bullying for student (i.e., peer) gitudinal studies regarding the behaviors occur during school set- impact of bullying behaviors, it is tings, teachers in the “post- harassment when they difficult to determine for bullying Columbine” era (i.e., after April victims or bullies themselves a long- 1999) are increasingly expected to are “deliberately indif- term prognosis with any degree of proactively protect children from certainty. Recommendations for harm. ferent to known acts of effective, evidence-based programs Today, many educators struggle to should be backed by data on empiri- keep pace with increasing public student-on-student sexu- cally-identified risk and protective expectations regarding their roles in al harassment.”” factors for school bullying, based on keeping students safe. Inevitably, the findings from prospective, longitudi- courts are increasingly involved in nal research, and incorporate relevant the process, resulting in a rapidly threatened or harassed, thereby research in other fields. evolving legal standard holding potentially mitigating the harm to the Based on the extant literature, sys- school officials accountable for stu- bullied student. tems-based approaches aimed at dent harm. In recent years, most states have changing the culture of the school In 1999, the U.S. Supreme Court taken affirmative steps to reduce or are the best general interventions to established the current judicial stan- prevent bullying. Though many state decrease bullying behavior. School- dard for deciding whether or not anti-bullying legislation or policies wide systems-based approaches have school officials should be held liable mandate school officials to imple- shown the most efficacy in decreas- ment bullying response and preven- ing bullying behaviors, though not all for harm caused by student-on-stu- 5, 6 dent harassment. In Davis v. Monroe, tion programs, they provide little research supports this. Prevention the Court held that school officials guidance on what constitutes an programs that focus on the individu- may be liable for student (i.e., peer) effective program. Bullying behav- als involved, provide classroom harassment when they are “deliber- iors have been difficult for schools to teaching, or incorporate school-wide ately indifferent to known acts of stu- control despite the currently available cultural changes appear to be the dent-on-student sexual harassment,” interventions,4 and school officials most effective in reducing bullying the alleged harassment is “so severe, often lack the time or training to behaviors. pervasive, and objectively offensive evaluate fully the efficacy of these Some interventions, though well- that it effectively bars the victim’s programs. Though there is an meaning, may actually lead to a access to an educational opportuni- increasingly wide variety of commer- (continued on page 29)

American Academy of Psychiatry and the Law Newsletter January 2013 • 23 SPECIAL ARTICLE

“red flags” in order to prove their Forensic Psychiatrists and Attorneys cases. Your opinion will be sought to help the attorney explain the medical on Undue Influence and relationship dynamic that were in Sherif Soliman MD, Susan Hatters Friedman MD, Adam Fried JD, place and may constitute the exertion Carolyn Dessin JD of undue influence. If you are being called to render an Elder financial abuse is a growing document is signed. It further sug- opinion, you can bet that the matter is crime, currently estimated to cost vic- gests that an expert might include tes- highly contested. Due to the circum- tims $2.9 billion annually1. Undue timony about how declining cognitive stantial nature of these cases, the influence, broadly defined as “any act abilities might not be apparent to a quality of evidence gathering by the of persuasion that overcomes the free layperson. attorneys who retain you is highly will and judgment of another2,” is one Courts often suggest that the vul- important. Indeed, the existence of of the primary mechanisms perpetra- nerability of the victim is an impor- one critical fact could sway your tors use to exploit vulnerable elderly tant factor in determining whether he opinion and defeat your credibility if victims. This exploitation can take was unduly influenced. Thus, courts that fact was not known prior to you the form of inter vivos gifts (those often find testimony about how a per- rendering your opinion. Therefore, given while the elder is living) or tes- son’s medical condition could lead to before issuing any opinion on an tamentary gifts (which are given after vulnerability persuasive. Similarly, undue influence case, it would be the elder has died). The distinction prudent to assess the quality of the between influence and undue influ- evidence provided and ask questions ence is usually based on coercion. A “In will contests, the of counsel to assure yourself that vulnerable person is prevented from game-changing facts are not lying in exercising their own free will due to testimony of a lay wit- wait. Such game changing facts could domination by another. The testator include legitimate reasons for the dis- might be imagined to say: “This is ness who knew the inheritance, and evidence of a con- not my wish, but I must do it.”3 deceased testator is trolling beneficiary in the notes of the Forensic psychiatrists are increas- drafting attorney, just to name a ingly called upon to provide expert often accorded greater few. If you cannot be comforted by testimony in cases where undue influ- counsel that you have a full and com- ence has been alleged. Will contests weight than the testimo- plete factual grounding, then you are the most common cases of undue should be more careful about taking influence, though it is relevant in ny of an expert witness on the case. other settings such as guardianships. Wills are most commonly contest- In our workshop at the 2012 AAPL who merely reviewed ed because of changes which are sig- meeting, we discussed relevant legal documents but did not nificant or inconsistent with concepts in undue influence, selected expressed wishes, and/or related to case law, and the proper role of conduct a personal undue influence.4 This is in keeping experts in undue influence cases. with the balance between self-deter- There are a number of recurring examination.” mination and paternalistic protection themes in the undue influence case from one’s own folly that the law law. These are issues that are raised holds in regard. Courts look for evi- frequently enough by courts to war- experts often testify about how dence of harassment and pressure, rant taking them into account when dementia can lead to passivity, which threats to abandon, and deception.4 planning expert testimony. can make a person more vulnerable to In will contests, the testimony of a With respect to the type of evi- undue influence. lay witness who knew the deceased dence needed to support a finding Undue influence cases are univer- testator is often accorded greater that a person has been unduly influ- sally recognized to result from con- weight than the testimony of an enced, courts frequently note that an duct that is rarely perpetrated out in expert witness who merely reviewed ongoing course of behavior must be the open. Whether undue influence documents but did not conduct a per- examined rather than simply looking can be demonstrated, therefore, sonal examination. This has been at the parties’ conduct when a docu- depends on a demonstration of some observed since at least the 1800s ment is being signed. This suggests power differential between the object when Dr. Isaac Ray was involved in that a court may find lay testimony of the gift and the donor together the Pidcock v. Potter, 1871 Pennsyl- about the alleged victim’s conduct with elements of control. Practicing vania Supreme Court case of a con- over a period of time more convinc- attorneys rely heavily on circumstan- tested will. ing than expert testimony that focuses tial evidence and attempt to develop on cognitive ability at the time the what are commonly referred to as (continued on page 29)

24 • January 2013 American Academy of Psychiatry and the Law Newsletter ALL ABOUT AAPL - Committees

guardianship and conservatorship are “Least Restrictive Constraints”: used—the one for personal care issues, the other for estate). The core issue in Expert Role in the Assessment of Capacity in these matters is mental competency or Conservatorships & Guardianship capacity, typically in relationship to Stephen Read MD, Geriatric Psychiatry and the Law Committee concerns about acquired cognitive impairment and/or dependency. The aging of society is one of the meaningful autonomy, is the greatest Therefore, the special assessment dominant facts confronting the United concern in this population. What can tools required for forensic assessment States and, indeed, the entire world in be expected to add to this fear is the of older persons are the cognitive the coming decades, as a result of recognition that the Alzheimer’s dis- mental status examination and applica- increased longevity and lower fertility ease process, as with so many of our tion of the findings of that examina- rates. Life expectancy has increased chronic “geriatric” conditions, begins tion to the issues of competence and from 47 years in the United States at many years prior to the onset of identi- capacity and, in addition, to the vul- the turn of the 19th to the 20th century fiable symptoms. nerability of that potentially impaired to today’s anticipated life expect-ancy On the other hand, the late recogni- person to external influence, i.e. to at birth of over 80. In the United tion of dementing illnesses and condi- exploitation or abuse.4 “Evaluating the States, the proportion of the popula- tions results in these persons being Dementing Millionaire,” the panel tion aged >65 years is projected to exposed to the hazards of financial from the Geriatric Psychiatry and the increase from 12.4% in 2000 to 19.6% exploitation and abuse, loss of wealth, Law Committee at the Montreal meet- in 2030, with numbers of those aged and other dangers. Expert opinions ing illustrated the challenges in these >65 years more than doubling: 35 mil- about the capacity of elders can there- evaluations, most specifically the issue lion in 2000 up to an estimated 71 fore be expected to be a “growth of how a court crafts rules for a person million in 2030. More dramatically, determined to require guardianship the number of persons aged >80 years within the mandate for the “least is expected to increase from 9.3 mil- “... the late recognition restrictive” loss of autonomy. lion in 2000 to 19.5 million in 20301. Mr. K was a successful entrepre- By 2025, the proportion of the popula- of dementing illnesses neur in a technically specialized field. tion aged >65 years is projected >15% Approaching the age of 80, he had in 48 states (all but Alaska and Cali- and conditions results comprehensive evaluation of a com- fornia), with Florida leading the way in these persons being plex neuropsychiatric disorder. Opin- at 26%.2 ions of severe impairment with poor Among the results of these dramat- exposed to the hazards long-term prognosis led to guardian- ic changes, the geriatricians of today, ship and court-ordered succession of such as the author, who trained in pro- of financial exploitation the trusteeship of his estate (including grams for the “elderly” often defined his business interests and several prop- as adults 65 years of age and older, and abuse, loss of erties), with a total worth in the tens of and sometimes 55, are finding these millions of dollars. days that those “young-old” are bring- wealth, and other Contrary to expectations, however, ing their 80+ and 90+ year-old parents psychiatric, neurologic, and medical to the doctor. In addition to living dangers” treatment after the imposition of the longer, we are living better: many are guardianship resulted in significant active in retirement, not a few contin- industry” in coming decades, and, improvement in Mr. K’s mentation. ue to work. One finds that geriatricians increasingly, the questions before the The guardian, conservator, and are more often focused on the “old- court will not be simple up or down guardian ad-litem appointed by the old,” typically defined as those 80 determinations of capacity or lack court to manage Mr. K’s affairs agreed years of age and older. While the thereof, but of how much loss has to support a petition to allow Mr. K potential for further extensions of the occurred, and how family and courts greater involvement in his affairs. life span are of great interest, there are can best accommodate these losses, Among other things, Mr. K wanted some indications that indefinite length- while preserving the person’s greatest to change the designated successor ening is still beyond our reach: the US of autonomy. trustees of his trust, including his Census Bureau prediction of a dramat- Two areas predominate in the prac- daughter and a major financial institu- ic increase in centenarians in the 21st tice of forensic geriatric psychiatry: tion, and also to alter the beneficiaries Century (from 37,000 in 1990 to at testamentary capacity and the determi- of his estate. The successor trustees in least 69,000 in 2000, and up to nation of the need for guardianship (in turn did not find persuasive the evi- 160,000 in 2030,3 has not materialized. this article referring to court-ordered dence of improvement and did not Fear of “Alzheimer’s,” i.e. dementia oversight of a ward; in Idaho, the support the idea of revising the terms that brings dependency and loss of jurisdiction of the case presented, both (continued on page 26)

American Academy of Psychiatry and the Law Newsletter January 2013 • 25 ALL ABOUT AAPL - Committees

Constraints K was able to sustain alertness and practical reviews of actual demon- mental energy and to display an strable function on specific tasks by continued from page 25 impressive body of knowledge of Mr. K. of the guardianship. Several experts the technology and the business Dr. Beaver reported evaluations of were retained to assist the court’s eval- details of his career at these Mr. K that bracket Dr. Read’s uation of the proposals. The presenta- encounters. Mr. K’s cognition had assessments in time. Dr. Beaver tions in the symposium included: improved dramatically, illustrated reviewed the concept of executive 1. A review of the complex history, by his score on the Mini-Mental functions. He also stressed the symptomatology, and initial test State Exam of 27+/30 (from < 20 at value of documenting a subject’s findings of Mr. K, with a question UCSF). Mr. K also conveyed his capacity to perform specific tasks, of the reliability of etiologic diagno- avid interest in the subject of his using established practical instru- sis of cognitive impairment, even business as being his “life’s work.” ments such as the Texas Functional from highly specialized centers, Dr. Read opined that these findings Living Scale6 to assess a person’s especially as a basis for assump- belied the certainty of the UCSF actual functional skills. He conclud- tions about future capacity. prognosis of DLB, and, at a mini- ed that while Mr. K’s attention and The diagnosis of a dementing ill- mum, that treatment of the compli- preserved knowledge base were ness depends primarily on findings important considerations, persistent of deficits in multiple areas of men- deficits in the areas of executive tal function, which may include “... treatment of the function constrained the extent to neuropsychological testing. The which Mr. K’s involvement should etiologic diagnosis of dementia complicating neurologi- be allowed to expand. involves the pattern of those cal and psychiatric dis- 4. Robert Weinstock, MD, Chair of deficits, but also an understanding the Geriatric Psychiatry and the of the course and evolution of the orders, including alcohol Law Committee and our new Presi- symptomatology, data that are typi- dent-Elect, discussed the ethical cally dependent on information abuse and dependence, aspects of elderly capacity evalua- from family and close observers. tions. Increasingly, laboratory data and bipolar disorder, and Dr. Weinstock framed his remarks neuro-imaging findings lead to bet- in terms of the fundamental issue ter recognition of specific disor- then re-introduction of illustrated in the case presentation: ders.5 Evaluation at UCSF had The challenges facing a court in resulted in a diagnosis of probable medications for his terms of providing appropriate Dementia with Lewy Bodies Parkinsonian symptoms oversight and protection regarding a (DLB), with emphasis that Mr. K person with a dementing illness, had an irreversible, certainly pro- had led to Mr. K’s signif- while ensuring the “least restric- gressive dementing process. How- tive” terms as regards a person’s ever, at the time of evaluation, icant improvement.” liberties, both for the immediate therefore, it was not clear whether issue and for future care. Issues Dr. the diagnosis of DLB was in fact Weinstock addressed include the correct. cating neurological and psychiatric significance of collateral informa- 2. Presentation of the findings at disorders, including alcohol abuse tion in both diagnostic and func- extended geriatric psychiatric and dependence, bipolar disorder, tional assessments, including the assessment by Dr. Read in relation- and then re-introduction of medica- possibility that family or other ship to Mr. K’s goals and the man- tions for his Parkinsonian symp- observers can bias the examiner’s date to craft rules for guardianship toms had led to Mr. K’s significant view of the course of illness, a that are the “least restrictive” in improvement. Although improve- powerful consideration—whether terms of liberty issues. ment was not “cure,” Dr. Read or not the bias is intentional or Dr. Read assessed Mr. K in two opined that Mr. K had regained sub- inadvertent—as possibly was a fac- extended sessions on a single day stantial, but partial ability to play a tor in the UCSF evaluation. The after a review of the UCSF findings meaningful role in his company and examiner may therefore be in a and records of other assessments strongly supported the desirability position of making judgments about and the course of treatments. Dr. of a greater role for Mr. K in his which “facts” are true. There is Read also conducted an extended company—while retaining the con- also, of course, an ethical conflict if subsequent telephone interview to struct of the guardianship. an opinion about capacity is assess Mr. K’s specific understand- 3. Presentation of findings from neu- requested from a treating physician ing and appreciation of a later com- ropsychological test results by or psychiatrist—who risks being plex negotiation about changing Craig Beaver, PhD, focused on the characterized as acting against his institutional successor trustees. Mr. areas of executive function and of (continued on page 27)

26 • January 2013 American Academy of Psychiatry and the Law Newsletter ALL ABOUT AAPL - Committees

Constraints failed—consistent with the opinions of wealth in December 2007 was $65.9 all evaluators that Mr. K had not in trillion, plunged to $48.5 trillion dur- continued from page 26 fact regained sufficient capacity to rec- ing the first quarter of 2009 and then patient’s interests or breaching confi- ommend such action. Further negotia- recovered partially to $54.2 trillion by dentiality. He also said that some peo- tions about the management of Mr. the end of 2009, wealth of those ple who lack the capacity to make K’s trust continued for nearly a year Americans age more than 75 fluctuat- complex decisions still retain the more, during which time Mr. K’s con- ed much less.7 capacity to make more general deci- dition continued to fluctuate but over- For the importance of inheritance in sions like who is and is not trying to all to decline. In the end, Mr. K had wealth transfers, a 2010 study estimat- help him. Challenging as it might some satisfaction: he was allowed to ed that the “Baby Boomer” generation sometimes be there may be an ethical stay in his (remodeled) home in Sun could expect to receive approximately obligation to try to clarify this differ- Valley with his long-time caregivers $8.4 trillion in inheritance overall, ence. Finally, Dr. Weinstock noted the and the daughter he had come to mis- with up to $40 trillion in wealth key role of DSM terminology and trust resigned as successor trustee. changing hands by inheritance by concepts in court deliberations. For However, his business involvement 2050.8 Given the well-known inci- example the obvious presence of was not increased and his choice to dence of cognitive impairment and Parkinsonism may have worked change institutional successor trustees dependency with increasing age, dis- against Mr. K, both in his presentation did not proceed. putes about wills and management of to the court, and in terms of psy- Responses in the discussion follow- wealth in impaired elders will become chomotor effects in neuropsychologi- ing presentations highlighted the recog- more frequent and expert opinion on cal testing. Dr. Weinstock also com- nition of these issues among audience these matters will be in greater mented on the forensic consequences attendees. The absence of consideration demand. Demand for expert opinion of the coming DSM-V, specifically of vulnerability to undue influence was about geriatric issues, and greater regarding the new category of “Neu- raised. The presenters had chosen not expertise in geriatrics, is to be antici- rocognitive Disorders,” which dis- to address this issue on the grounds of pated in coming years. places the current diagnostic terminol- time. However, we noted that the ogy and may thereby increase a deficits in executive function are pri- References: court’s difficulty in understanding marily associated with damage to 1. U.S. Census Bureau. International data- the basis for an expert’s recommen- frontal lobe brain damage, and these base. Table 094. Midyear population, by age dations. are most closely associated with and sex. Available at The resolution of the case further impairment in the ability meaningfully http://www.census.gov/population/www/pro- illustrated that, in addition to the evo- to manage finances and business. jections/natdet-D1A.html lution of medical and scientific con- Frontal lobe damage is also associ- 2. Campbell PR. Population projections for cepts in the area of brain function and ated with impairments in the interper- states by age, sex, race, and Hispanic origin: sonal and affective processes sub- 1995 to 2025. U.S. Bureau of the Census, capacity, the law also continues to Population Division, PPL-47, 1996. Avail- evolve. The parties appeared headed sumed in the concepts of “social able at http://www.census.gov/population/ to a “middle ground,” i.e. some expan- brain,” concepts that await more pre- www/projections/stproj.html. sion of Mr. K’s role in the operation of cise tools and characterization that will 3. http://www.census.gov/prod/99pubs/p23- his business, but in the context of be relevant to an expert contribution to 199.pdf maintaining the supervision of the the issue of influence. 4. Read S, Weinstock R. Forensic Geriatric Psychiatry. In: Simon RI, Gold LH (eds). court by means of guardianship. In We note as well that our colleague nd Sherif Soliman, MD had organized a Textbook of Forensic Psychiatry, 2 Edi- addition, recognizing his retained tes- tion. Washington DC, American Psychiatric tamentary capacity would allow modi- thoughtful symposium on the topic of Association Press, 2010, pp 505-528. fication of his beneficiaries. influence earlier in the meeting. We 5. Miller BL, Boeve BF. The Behavioral However, during the evaluation/ look forward to further contributions Neurology of Dementia. New York, Cam- deliberation actions, an interval court on forensic geriatric psychiatry at bridge University Press, 2009. decision in Idaho, the jurisdiction of future AAPL meetings. 6. Cullum CM, Saine K, Chan LD, et al: A In conclusion, Mr. K’s case illus- performance-based instrument to assess Mr. K’s guardianship (for personal and functional capacity in dementia: The Texas medical issues) and conservatorship trates the magnitude of disputes about Functional Living Scale. Neuropsychiatry, (for financial matters), changed the capacity issues, as well as the likeli- Neuropsychology and Behavioral Neurology rules: It was held that no change in hood that law will evolve along with 14:103-108, 2001. financial oversight and involvement our growing knowledge base. Consid- 7. Bricker J, Kennickell AB, Moore KB et al: could be considered for a person eration of wealth distribution by age “Changes in U.S. Family Finances from simultaneously under guardianship of further suggests the likelihood of a 2007 to 2010: Evidence from the Survey of large growth in disputes about Consumer Finances,” Federal Reserve Bul- his personal affairs. letin, June, 2012. Negotiations to try to find an agree- finances in elder persons in the com- 8. www.metlife.com/assets/cao/mmi/publica- ment that would allow for at least tem- ing decades. For example, while the tions/studies/2010/mmi-inheritance-wealth- porary abrogation of the guardianship total value of all U.S. household transfer-baby-boomers.pdf

American Academy of Psychiatry and the Law Newsletter Januaty 2013 • 27 ALL ABOUT AAPL - Committees

References Ask The Experts 1. Crosby AE, Ortega L, Melanson C: Self- Autism Disorders continued from page 15 directed Violence Surveillance: Uniform continued from page 21 Definitions and Recommended Data Ele- While I am aware that some col- ments. Center for Disease Control and Pre- ings can throw a wrench into the leagues charge more for the first hour vention, Division of Violence Prevention, competency determination. Neu- of a deposition, it is my belief that a Atlanta, GA, 2011. Available at ropsychological testing can help to standard hourly rate is best for all http://www.cdc.gov/violenceprevention/pdf/S unravel these issues. work, including depositions and court elf-Directed-Violence-a.pdf. Accessed on Dr. Westphal outlined the com- November 13, 2012 appearances. 2.VISN 19 MIRECC Self-Directed Violence plexity of issues in criminal justice. I usually charge my regular hourly Resouces, November 9, 2012. Available at In the social domain, the interactive or day rate for travel, since that is http://www.mirecc.va.gov/ visn19/education/ effects of ASD characteristics—spe- time that I would normally spend nomenclature.asp. Accessed November 13, cialized interests, sexual urges, lack working. If one must stay overnight, 2012 of insight, touch sensitivity, aversion a charge for a full day and partial day 3. Brenner LA, Breshears RE, Betthauser to authority, mindblindness, and cog- LM, et al: Implementation of a suicide nitive rigidity—conspire toward poor for the following day is appropriate. nomenclature within two VA healthcare set- A day rate equal to 8-10 times the tings. J Clin Psychol Med Settings 18:116- outcomes. There has been a spike in hourly rate is customary. 28, 2011 literature citations for ASD, Dr. West- When asked about your 4. Kerr DC, Washburn JJ, Feingold A, et al.: phal said, but not in the forensic area. rates/billings, it is best to answer as Sequelae of aggression in acutely suicidal Accordingly, there is still confusion clearly as possible so that it is clear adolescents. J Abnorm Child Psychol about whether ASD is associated 35:817-30, 2007 with “malice.” This conflation would that you have nothing to hide or to be 5. Beck AT, Steer RA, Ranieri WF: Scale for ashamed of, especially if the billing Suicide Ideation: Psychometric properties of tend to augur poorly for the person would “shock” a “typical” juror who a self-report version. Journal of Clinical Psy- with ASD accused of a crime. might earn far less annually. chology, 44:499-505, 1993 Greater attention must be paid to sort- I explain to the attorney: “your 6. Linehan MM, Comtois KA: Lifetime ing out the differences between ASD check is my key to the courtroom Parasuicide History. University of Washing- and other offenders. Dr. Westphal, door.” Being paid in advance not only ton, Department of Psychology, Seattle, WA, citing Woodbury-Smith, noted that, 1996. Available at http://depts. relative to the non-ASD group, ASD assures you will be paid, but also washington.edu/ brtc/files/L-SASI%20 eliminates any implication that your Count.pdf. Accessed on November 9, 2012 non-offenders were impaired on tests testimony is biased or dependent on 7. Linehan MM, Goodstein JL, Nielsen SL, of executive functioning, theory of the outcome of the case. If the case Chiles JA: Reasons for Staying Alive When mind (mentalizing), and fear recogni- runs longer than planned and I am You are Thinking of Killing Yourself: The tion. Neuroimaging may help us dis- required to come back to court again, Reasons For Living Inventory. Journal of criminate apparent overlap in behav- Consulting and Clinical Psychology 51:276- ioral phenotypes between ASD and as with a deposition, I ask to be paid 286, 1983. Available at http://depts.washing- in advance for the additional time. ton.edu/brtc/files/RFL72.pdf. Accessed on psychopathy, thus better informing Working with attorneys is a labor Novemeber 9, 2012 criminal justice. of mutual trust. The attorney trusts that the expert will provide an unbi- MUSE & VIEWS ased professional examination, evalu- ation, and consultation to the attor- Defendant following the judge’s order. Sorta…. ney, who will provide the agreed A man who stole two pairs of underwear after being told he would need upon fee requested by the expert. clean skivvies to serve weekends in jail may need even more drawers — he’s been sentenced to even more time in jail. Alvin Rogers, 33, of Painter, was sentenced to five years with two years, six Suicide Assessment months suspended for third-offense shoplifting. Substitute Circuit Judge continued from page 19 Glen A. Tyler, presiding in Northampton Circuit Court, noted that Rogers had already paid the $17.85 in restitution. target for amplification. From the Defense attorney Paul Watson told the court late last year that a person medicolegal perspective, such a checking in for weekends in the Accomack County Jail is required to bring process would clearly meet, if not two sets of underwear. exceed, any established standard of “And that is exactly what he took,” said Watson. care for suicide risk assessment. Hence, the Suicide Committee wel- Source: http://www.delmarvanow.com/article/20130114/ comes the charge issued by Dr. Scott, NEWS01/130114007/VA-SHORE-Man-gets-jail-time-after- and respectfully offers these additional stealing-underwear-way-jail?gcheck=1 tools for optimizing suicide risk Submitted by Charles L. Scott MD assessment.

28 • January 2013 American Academy of Psychiatry and the Law Newsletter ALL ABOUT AAPL - Committees

School Bullying Undue Influence evant psychiatric issues involved, the relationship dynamics correlated with continued from page 23 continued from page 24 undue influence, and the appropriate worsening of behaviors by creating a Evaluations should consider that limitations of psychiatric expert testi- hostile school environment. These undue influence represents a course mony in this setting. counterproductive interventions of conduct, not a single event. In include the “zero tolerance” policy, reviewing records, consideration References: suspension or expulsion of bullies, should be given to conditions or med- 1. “The MetLife Study of Elder Financial Abuse Crimes of Occasion, Desperation, mediation and conflict resolution ication effects leading to increased vulnerability. Dementia, alcoholism, and Predation Against America’s Elders.” with peers, anger management MetLife, June 2011. groups, and utilization of student mood disorder, and psychotic disor- 2. West’s Encyclopedia of American Law, der symptoms can make persons Edition 2. Copyright 2008 The Gale Group, groups to attempt to “police” bully- 5 ing behavior. more vulnerable to undue influence. Inc. Researchers continue to explore Rationale for changes, consideration 3. Madoff, Ray D, “Unmasking Undue of how decisions are made, and fami- Influence” (1997). Boston College Law potential interventions for individuals School Faculty Papers. Paper 63, p579. and school systems to mitigate the ly tensions are all relevant. It is important for forensic psychi- http://lawdigitalcommons.bc.edu/lsfp/63 effects of bullying, as well as pro- 4. Hall RCW, Hall RCW, Myers W, Chap- grams to prevent this ever-increasing atric testimony in these cases to be man MJ: “Testamentary Capacity: History, problem. Additional research on the appropriately limited to areas of Physicians’ Role, Requirements, and Why potential long-term comorbidities expertise, to be scientifically ground- Wills are Challenged.” Clinical Geriatrics, associated with specific types of bul- ed in medical and psychiatric princi- 17(6):18-24, 2009. 5. Shulman, et. al. “Assessment of testa- lying is critical to tailoring effective ples, and to avoid addressing ultimate issues such as whether undue influ- mentary capacity and vulnerability to undue interventions. Without this, school influence.” American Journal of Psychiatry children will continue to suffer from ence actually occurred. Forensic psy- 164: 722-727, 2007. bullying behavior and school offi- chiatrists should request all available 6. Spar JE, Garb AS: “Assessing competen- cials will face uncertainty in assess- information including medical cy to make a will.” American Journal of ing their own liability for responses records, nursing notes, financial Psychiatry 1992; 149:169–174 to this growing societal problem. records, depositions, and access to people who were familiar with the alleged victim. If the alleged victim is AAPL Awards Committee Seeks References: Nominations for 2013 1. Wang J, Iannotti RJ, Nansel TR. School living, a personal examination should bullying among adolescents in the United be sought, though this is sometimes The AAPL Awards Committee would States: physical, verbal, relational, and of limited value if the alleged vic- like your help. We would be interested cyber. J Adolesc Health 2009;45(4):368- tim’s health or cognitive function has in receiving nominations by June 1 for 375. deteriorated significantly since the the following awards: 2. Mishna F, Cook C, Gadalla T, et al. alleged undue influence. Cyber bullying behaviors among middle Red AAPL - For AAPL members who and high school students. Am J Orthopsy- Forensic psychiatric expertise is have provided outstanding service to chiatry 2010;80(3):362-374. most relevant to two areas of undue AAPL, e.g., through committee mem- 3. Davis v. Monroe City Board of Educa- influence: victim vulnerability and bership. tion, 526 U.S. 629 (1999). relationship characteristics that give 4. Merrell KW, Gueldner BA, Ross SW, et Golden AAPL – For AAPL members rise to or suggest the presence of over the age of 60 who have made sig- al. How effective are school bullying inter- undue influence. Forensic psychia- vention programs? A meta-analysis of nificant contributions to the field of intervention research. School Psychology trists should look for and explain how forensic psychiatry. certain victim characteristics such as Quarterly 2008;23(1):26-42. Seymour Pollack Award – For APA dementia, mental illness, physical ill- 5. Fonagy P, Twemlow SW, Vernberg EM, members (who may not be AAPL et al. A cluster randomized controlled trial ness, or personality traits render vic- of child-focused psychiatric consultation members), who have made distin- tims more vulnerable to undue influ- guished contributions to the teaching and a school systems-focused intervention ence. Forensic psychiatrists can also to reduce aggression. J Child Psychol Psy- and educational functions of forensic chiatry 2009;50(5):607-616. look for “red flags” of undue influ- psychiatry. 6. Vreeman RC, Carroll AE. A systematic ence such as secluding the victim, indoctrinating the victim, and dis- Amicus Award – For non-AAPL mem- review of school-based interventions to pre- bers who have contributed to AAPL. vent bullying. Arch Pediatr Adolesc Med paraging independent thought in the 2007;161(1):78-88. victim.6 Best Teacher in Forensic Fellowship Before agreeing to render an opin- Award – For outstanding faculty mem- Dr. Jaques is a third-year psychia- ion in a case of alleged undue influ- ber in fellowship program. try resident at the Semel Institute for ence, it is critical for forensic psychi- Please send your nominations to Renée Neuroscience and Human Behavior atrists to understand the legal context Binder, MD, Chair of the Awards com- at UCLA. in which such cases are filed, the rel- mittee at [email protected].

American Academy of Psychiatry and the Law Newsletter January 2013 • 29 ADS

POSITION OPEN AAPL Delegate – AMA Young Physicians Section

One position is available for a new fellow or recent graduate interested in serving in the AAPL AMA delegation as a young physician delegate to the AMA House of Delegates (HoD). A young physician is defined as an individual within the first 8 years of practicing since completing training or younger than 40 years of age. It is important for applicants to realize this is potentially a multiyear commitment. Applicants would need to be members of both the AMA and AAPL. The duties of the AAPL young physician delegate would be to actively participate at the annual AMA House of Delegates meeting in Chicago, usually held in June and the Interim HoD meeting usually held in November at rotating locations. Meetings for young physicians usually begin on Thursday evening and run to the following Tuesday or Wednesday. Attendance at both meetings for the full length of time is required. It is expected that the AAPL young physi- cian would actively participate in the YPS debates and leadership structure (e.g. serving on YPS handbook review or refer- ence committees) as well as participate in the psychiatric caucus (APA, AAPL, AACAP). The psychiatric caucus is instru- mental in advocating for psychiatric concerns in the house of medicine by helping to develop policy, educating physicians of all specialties about psychiatric concerns, and at times running candidates for leadership positions in the AMA. In addition residents would need to be available (e.g. phone, internet) to participate in pre-meeting planning (e.g. review of proposed policies) with the AAPL delegation, the psychiatric caucus and the AMA YPS. It is also expected that the young physician would come to the Annual AAPL meeting in order to attend the Council meeting with the rest of the AAPL delegation. AAPL covers expenses for travel, meals, and hotel during the AMA meeting but there is no compensation for time spent on these activities. Application letters for this position should state experience and interest in organized medicine and are due March 1, 2013. Interviews, if deemed necessary by the Search Committees, will take place in San Francisco, May 18 and 19, 2013. Those chosen for interviews will be notified as soon as possible after March 1, 2013. Appointments will be made by the AAPL Executive Council.

Advertise In the AAPL Newsletter

For rates and Information,

Call AAPL at 800-331-1389 Or [email protected]

30 • January 2013 American Academy of Psychiatry and the Law Newsletter ADS

Ask a Mensch Position Description continued from page 13 Medical Director mind that the outcome would have American Academy of Psychiatry and The Law been far different: instead of gaining The Council of the American Academy of Psychiatry and the Law believes that the morale and momentum simply by function of Medical Director, while changing in scope over the organization’s twenty- being a member of the Homo sapiens five year history, has been useful in promoting the growth and stability of the organiza- club, I would very likely have lost tion. heart and my morale would have Although the executive and administrative functions of the organization are now handled plummeted even further. There would by professional association managers, the Council wishes to have, for an additional period have been no way I would still have of time, the benefit of perspective unique to medicine as a profession and psychiatry as a felt a sense of warmth and loyalty to specialty. The following job description has been developed based on this philosophy. my program. Truly, it is difficult to A. Responsibilities of the Medical Director think of a more effective morale- 1. Assist in the development and implementation of policies adopted by the Executive killer than the grim response above. Council and make regular reports to the executive Council. Leadership is not simply about 2. Serve as a resource for the Executive Director. enforcing protocols and giving 3. Coordinate interactions between AAPL and other organizations (e.g. APA, ABPN) orders: motivating people to go above based on policies adopted by the Executive Council. 4. Respond to calls from media. This can include referring calls requiring particular and beyond in their efforts and reach expertise to other AAPL members. their full potential is also critical, but 5. Provide expertise and support to committee chairs; assist in liaison and management there seems to have been a drought in of issues where committees overlap; undertake intensive and specific projects involving this form of management skill lately. committees or publications as requested by the Executive Council. Dr. Mensch has a special place in 6. Supervise the development and revision of guidelines, working with task force Chairs my heart after all these years and he to assure consistency and continuity. has modeled the kind of fellowship B. Organizational Structure director I have tried to be. I have The Medical Director reports directly to the President and Council and is supported skipped the Dr. Grim persona and just administratively by the Executive Office. stuck with Mensch, opting to not C. Term of Office switch back-and-forth between the Five years with the possibility of reappointment to additional terms two in such a Kleinian manner. But being a mensch is far more than per- D. Remuneration forming mitzvahs (good deeds). It’s $29,630 for 2013. Cost-of-living increases are given in same amount as to staff. A 1099 also about being the person you will be issued for this amount. The Medical Director is not an employee and no taxes or would like your residents, fellows, benefits are paid. and other supervisees to be. Man- E. Expenses agers everywhere in our institutional Travel and housing for AAPL Annual Meeting and travel and housing for 2-3 nights and correctional settings should take (depending on travel time) of APA Annual Meeting. Other expenses reimbursed as heed: when it comes to boosting determined by the Budget Committee. AAPL does not customarily reimburse for meals, morale, loyalty, and work ethic, Dr. nor does it pay for registration fees, e.g. for AAPL, APA Annual Meetings. Mensch is not only the good way to Application Process go – it’s also smarter. The announcement is being made by postal mail and email and in the Newsletter.

Deadline for applications is March 1, 2013. Applications must be emailed to the 2013 Annual Executive Office [email protected]. Meeting Letters should consider the following and be accompanied by a full C.V.: Vision for AAPL; Goals as Medical Director; Why the applicant is suited for the Call For Papers position.

Applications will be reviewed by a Task Force that will determine the candidates to be interviewed by the Council. Submission Interviews will be held on either Saturday evening or Sunday morning at the APA deadline: Annual Meeting in San Francisco. No exceptions will be made. Every effort will be made to notify participants in time to obtain reasonable accommodation and March 1, 2013 flights, but AAPL will not reimburse for travel to the interview. www.aapl.org Letters of support will not be considered.

American Academy of Psychiatry and the Law Newsletter January 2013 • 31 AAPL Newsletter PRSRT STD American Academy of Psychiatry and the Law U.S. POSTAGE One Regency Drive P A I D PO Box 30 HARTFORD, CT Bloomfield, Connecticut 06002 PERMIT NO. 5144 Charles Dike, MD, MPH, MRCPsych, Editor