The Forensic Examination A Handbook for the Mental Health Professional Alberto M. Goldwaser Eric L. Goldwaser 123 The Forensic Examination Alberto M. Goldwaser · Eric L. Goldwaser The Forensic Examination A Handbook for the Mental Health Professional Alberto M. Goldwaser Eric L. Goldwaser Rutgers Robert Wood Johnson Medical School Sheppard Pratt Health System Psychiatry New York University School of Medicine University of Maryland Medical Center Jersey City, NJ Baltimore, MD USA USA ISBN 978-3-030-00162-9 ISBN 978-3-030-00163-6 (eBook) https://doi.org/10.1007/978-3-030-00163-6 Library of Congress Control Number: 2018959462 © Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Preface This book prepares the mental health professional to use psychiatric skills when looking for and collecting data in a forensic examination and then apply sound clini- cal judgment in evaluating that data and presenting the information gathered through a systematic examination. Based on the experience accumulated in the forensic mental health field, and using the studies conducted as well as the narrative reports prepared as a model, this forensic psychiatric handbook can be read as a practical primer for those mental health professionals (MHPs) interested in using psychiatric and psychological understanding in the courtroom. This is a completely new “game” with its own rules and methods. We anticipate mental health professionals finding the concepts introduced in this book immediately helpful for use in their practices. This book presents important topics concerning human behavior and mental disorders, in a light and evocative style that brings forth recollections of past and present medicolegal cases in which mental aspects were or should have been prominent. As you read the cases presented, you become comfortable with the standards of psychiatric and psychotherapeutic practice. You now know what is expected from the expert witness, and how to communicate with the attorney what is at stake, to consider the legal criteria to adhere to, and how to present the basis of our opinions. We identify strategies for approaching “other” experts’ reports and displaying contradictions. This helps understand the basis (science or advocacy) of the oppos- ing views on the issues at hand. We demonstrate, with illustrations, how apparently average cases become unique, compelling, and of significant importance to attorneys representing clients, in which mental functioning is of essence. Psychiatric aspects considered by jurors, judges, and arbitrators should have now the same clarity we expect from X-rays in orthopedic incidents. This book answers the following questions: How to understand the concept of an adequately “greased” mind? What turns the functioning mind into a troubled mind? How to assess for the predisposing, determining, and triggering factors, when assessing psychic damage? Psychiatric aspects of legal cases are pointed out, as well as the legal criteria for the mental health practitioner to consider in the forensic work. Through these pages, v vi Preface the mental health professional will grasp why, when, and how to use the forensic psychiatric work, knowing the scope, depth, and limits of its contribution. Some of the topics in the vignettes included are forensic psychiatric examina- tions concerning employment matters: sexual harassment and bullying, discrimina- tion, workers’ compensation, disability evaluations; stalking, PTSD and other psychiatric disorders of legal import in diverse settings, competence, criminal and civil (to write, amend, execute a will; to manage financial and personal affairs). There are many ways to reach the goal of being and feeling competent working in this specialized forensic field. Objectivity is paramount though not enough. Besides honesty, clinical knowledge and the application of the scientific method are the key ingredients to become an expert. Early in our career, forensic psychiatry did not come across as an attractive one. Mental health sciences started with the search of how a person’s feeling, thinking, and behaving came together to produce a specific manifestation: a symptom, a sign, a disease, an action, or a particular style of relating to others. We looked for what were the mental tools needed to create those feelings, thoughts, and behaviors, as well as when and how they formed. Lastly, we strived to understand why they expressed themselves at the time they did. Once we harden the scientific and clinical foundations required to develop into a psychiatrist, we can become an expert wit- ness and comfortably sail across the subspecialty (forensics). During our initial days in the practice of clinical psychiatry, the day came when an attorney requested that we examine her client involved in an accident that caused him (personal injury) physical as well as psychological damage (the latter reflected as a psychiatric disorder and/or “pain and suffering”). I was asked to assess for the presence and extent of mental illness or problems, and if present, to ascertain if this was the first time it appeared, was a significant aggravation, exaggeration, or reen- actment of a mental illness that appeared and healed many years ago. Finally, we were to assess if the mental illness complained of was linked (proximately related) to the accident at issue. We recognized that this examination was not like any other we had customarily done until then. We were not expected to provide any treatment or clinical advice to the person being examined, and the concerns for confidentiality were greatly modi- fied. We were expected to focus on certain issues of value for the attorney, and we were going to be paid by that attorney, who was our “client,” rather than by the person sitting before me (examinee) that was the attorney’s client. At the end of the study, we were expected to prepare a report of our findings and mail it to the lawyer, with the description of and the clinical bases of such findings. All this is at first very different and confusing, for we were used to only seeing and treating “patients,” maintaining secret what we learned from them, and advocating for their wellbeing. All these rules go through many transformations when applied to the forensic field. In this distinctive subspecialty, we must train and adhere to being objective, neu- tral, inquisitive, and to position ourselves at equal distance from the forces creating feelings, thoughts, and actions. This proved to be the tool that facilitated our learn- ing this new forensic skill. Crucial was to learn that – as Robert Simon, M.D. said – the forensic mental health professional “is not the engine, but a hood ornament, in Preface vii the vehicle of litigation,” and it provided enough support to walk firmly into this shared field that anticipates from us to state what is clinically and scientifically evi- dent and relevant, in a language appropriate for an audience taken to be psychologi- cally unskilled. We do not mean this volume to be an encyclopedic survey of the field; therefore, vast areas of importance will be included. There is an increasing number of individuals that had been examined in forensic studies that started legal actions and succeeded in malpractice suits against mental health professionals who conducted independent medical examinations (IMEs), largely due to poor quality of the studies and misinterpretation of their legal duties in this context. Judicial immunity for expert witness is no longer sacred and it is eroding due to the unscientific methods used by some mental health professionals that perform these studies without proper restraint, and dispassionate style, using bias and advocacy in their conclusions. Lack of neutrality makes for subjective opinions. We are to uphold the medical mandate to “first of all, do no harm” (pri- mum non nocere) to the examinee, and if we find a clinical situation in need of urgent action, we are required to use proper skill and care to report such finding without delay. The responsibility “not to harm” the examinee applies with the same rigor expected of a treating physician interested in doing well for the patient. In carrying out an IME, professional