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Reference Guide on Mental Health Evidence PAUL S. APPELBAUM Paul S. Appelbaum, M.D., is the Elizabeth K. Dollard Professor of Psychiatry, Medicine, and Law, and Director, Division of Law, Ethics, and Psychiatry, Department of Psychiatry, Columbia University and New York State Psychiatric Institute. ConTenTs I. Overview of Mental Health Evidence, 815 A. Range of Legal Cases in Which Mental Health Issues Arise, 815 1. Retrospective, contemporaneous, and prospective assessments, 817 2. Diagnosis versus functional impairment, 819 B. Mental Health Experts, 821 1. Psychiatrists, 821 2. Psychologists, 824 3. Other mental health professionals, 826 C. Diagnosis of Mental Disorders, 828 1. Nomenclature and typology—DSM-IV-TR and DSM-5, 828 2. Major diagnostic categories, 831 3. Approaches to diagnosis, 834 4. Accuracy of diagnosis of mental disorders, 839 5. Detection of malingering, 839 D. Functional Impairment Due to Mental Disorders, 841 1. Impact of mental disorders on functional capacities, 841 2. Assessment of functional impairment, 842 E. Predictive Assessments, 846 1. Prediction of violence risk, 846 2. Predictions of future functional impairment, 851 F. Treatment of Mental Disorders, 852 1. Treatment with medication, 853 2. Psychological treatments, 858 3. Treatment of functional impairments, 860 4. Electroconvulsive and other brain stimulation therapies, 861 5. Psychosurgery, 863 6. Prediction of responses to treatment, 863 G. Limitations of Mental Health Evidence, 865 1. Limits of psychodynamic theory, 865 2. Ultimate issue testimony, 867 813

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Reference Manual on Scientific Evidence II. Evaluating Evidence from Mental Health Experts, 869 A. What Are the Qualifications of the Expert? 869 1. Training, 870 2. Experience, 871 3. Licensure and board certification, 873 4. Prior relationship with the subject of the evaluation, 875 B. How Was the Assessment Conducted? 877 1. Was the evaluee examined in person? 877 2. Did the evaluee cooperate with the assessment? 879 3. Was the evaluation conducted in adequate circumstances? 880 4. Were the appropriate records reviewed? 881 5. Was information gathered from collateral informants? 882 6. Were medical diagnostic tests performed? 883 7. Was the evaluee’s functional impairment assessed directly? 884 8. Was the possibility of malingering considered? 884 C. Was a Structured Diagnostic or Functional Assessment Instrument or Test Used? 885 1. Has the reliability and validity of the instrument or test been established? 885 2. Does the person being evaluated resemble the population for which the instrument or test was developed? 886 3. Was the instrument or test used as intended by its developers? 887 D. How Was the Expert’s Judgment Reached Regarding the Legally Relevant Question? 889 1. Were the findings of the assessment applied appropriately to the question? 889 III. Case Example, 892 A. Facts of the Case, 892 B. Testimony of the Plaintiff’s Expert on Negligence, 893 C. Questions for Consideration, 893 D. Testimony of the Plaintiff’s Expert on Damages, 893 E. Questions for Consideration, 894 References on Mental Health Diagnosis and Treatment, 895 References on Mental Health and Law, 895 814

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Reference Guide on Mental Health Evidence I. Overview of Mental Health Evidence A. Range of Legal Cases in Which Mental Health Issues Arise Evidence presented by mental health experts is common to a broad array of legal cases—criminal and civil. In the criminal realm, these include assessments of defendants’ mental states at the time of their alleged offenses (e.g., criminal respon- sibility and diminished capacity1) and subsequent to the offenses, but prior to the initiation of the adjudicatory process (e.g., competence to consent to a search or waive Miranda rights2). As cases move toward adjudication, evaluation may be required of defendants’ competence to stand trial or to represent themselves at trial.3 Postconviction, mental health evidence may be introduced with regard to sentencing, including suitability for probation and conditions of probation.4 Capital cases uniquely may raise questions regarding a condemned prisoner’s competence to waive appeals or to be executed.5 Postconfinement, mental health considerations may enter into parole determinations. Indeed, the development of 1. 18 U.S.C. § 17 (defining standard and burden of proof for insanity defense); Clark v. Arizona, 548 U.S. 735 (2006) (on the use of testimony for diminished capacity). 2. See Thomas Grisso, Evaluating Competencies: Forensic Assessments and Instruments (2002); Miranda v. Arizona, 384 U.S. 436 (1966) (holding confessions inadmissible unless suspect made aware of rights and waives them); Colorado v. Connelly, 479 U.S. 157 (1986) (holding that mental condition alone will not make a confession involuntary under the Fourth Amendment but may be used as a factor in assessing a defendant’s voluntariness); United States v. Elrod, 441 F.2d 353 (5th Cir. 1971) (holding that a person of subnormal intelligence may be deemed incapable of giving consent). See Wayne R. LaFave, Search and Seizure 92–93 (2004); Wayne R. LaFave, Criminal Procedure 363–65 (2004); Brian S. Love, Comment: Beyond Police Conduct: Analyzing Voluntary Consent to Warrantless Searches by the Mentally Ill and Disabled, 48 St. Louis U. L.J. 1469 (2004). 3. Dusky v. United States, 362 U.S. 402 (1960) (establishing standard for competence to stand trial); Pate v. Robinson, 383 U.S. 375 (1966) (holding that the Due Process Clause of the Fourteenth Amendment does not allow a mentally incompetent criminal defendant to stand trial); Farretta v. California, 422 U.S. 806 (1975) (upholding defendant’s right to refuse counsel and represent himself); Indiana v. Edwards, 554 U.S. 164 (2008) (finding that the standards for competency to stand trial and to represent oneself need not be the same). 4. Roger W. Haines, Jr., et al., Federal Sentencing Guidelines Handbook §§ 5B1.3(d)(5), 5D1.3(d)(5), 5H1.3 (2007–2008). 5. See Ford v. Wainwright, 477 U.S. 399 (1986) (upholding the common law bar against executing the insane and holding that a prisoner is entitled to a judicial hearing before he may be executed); Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (holding that death row prisoners are not barred from filing incompetence to be executed claims by dismissal of previous federal habeas petitions); Panetti v. Quarterman, 551 U.S. 930 (2007) (ruling that defendants sentenced to death must be competent at the time of their execution); Atkins v. Virginia, 536 U.S. 304 (2002) (finding that executing the mentally retarded constitutes cruel and unusual punishment under the Eighth Amendment); Rees v. Peyton, 384 U.S. 312 (1966) (formulating the test for competency to waive further proceedings as requiring that the petitioner “appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.”). 815

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Reference Manual on Scientific Evidence specialty services for probationers and parolees with mental disorders suggests that mental health professionals’ input at this stage is likely to increase in the future.6 Mental health evidence in civil litigation is frequently introduced in personal injury cases, where emotional harms may be alleged with or without concomitant physical injury.7 Issues of contract may turn on the competence of a party at the time that the contract was concluded or whether that person was subject to undue influence,8 and similar questions may be at the heart of litigation over wills and gifts.9 Broader questions of competence to conduct one’s affairs are considered in guardianship cases,10 and more esoteric ones may arise in litigation challenging a person’s competence to enter into a marriage or to vote.11 Suits alleging infringe- ment of the statutory and constitutional rights of persons with mental disorders (e.g., under the Americans with Disabilities Act or the Civil Rights of Institu- tionalized Persons Act) often involve detailed consideration of psychiatric diag- nosis and treatment and of institutional conditions.12 Allegations of professional 6. Jennifer Skeem & Jennifer Eno Louden, Toward Evidence-Based Practice for Probationers and Parolees Mandated to Mental Health Treatment, 57 Psychiatric Servs. 333 (2006). 7. Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (allowing recovery based on emotional distress not accompanied by physical injury); Molien v. Kaiser Foundation Hospitals, 616 P.2d 813 (Cal. 1980) (holding that plaintiff who is direct victim of negligent act need not be present when act occurs to recover for subsequent emotional distress); Rodriguez v. State, 472 P.2d 509 (Haw. 1970) (permitting recovery where a reasonable person would suffer serious mental distress as a result of defendant’s behavior); Roes v. FHP, Inc., 985 P.2d 661 (Haw. 1999) (allowing assessment of damages for negligent infliction of emotional distress when plaintiff was in actual physical peril, even if no injury was suffered); Albright v. United States, 732 F.2d 181 (C.A.D.C. 1984) (holding that alleging mental distress is sufficient to confer standing); Cooper v. FAA, No. 07-1383 (N.D. Cal. Aug. 2008), rev’d and remanded, 596 F.3d 538 (9th Cir. 2010) (discussing mental distress as a result of disclosure of personal information); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007) (holding damages available under § 504 of the Rehabilitation Act when emotional distress was foreseeable). 8. See generally E. Allan Farnsworth, Contracts 228–33 (2004); John Parry & Eric Y. Drogin, Mental Disability Law, Evidence, and Testimony 151–52, 185–86 (2007). 9. See generally William M. McGovern, Jr. & Sheldon F. Kurtz, Wills, Trusts and Estates Including Taxation and Future Interests 292–99 (2004); Parry & Drogin, supra note 8, at 149–51, 182–85. 10. Parry & Drogin, supra note 8, at 138–47, 177–81. 11. Id. at 54. Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001) (finding a state law denying the vote to anyone under guardianship by reason of mental disability in violation of the Equal Protection Clause of the U.S. Constitution and Title II of the Americans with Disabilities Act (ADA)); Missouri Protection & Advocacy Servs. v. Carnahan, 499 F.3d 803 (8th Cir. 2007) (upholding a state law allowing disenfranchisement of persons under guardianship because it permits individualized determinations of capacity to vote). 12. Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998) (holding that ADA coverage extended to prisoners); Clark v. State of California, 123 F.3d 1267 (9th Cir. 1997) (finding state not immune on Eleventh Amendment grounds to suit alleging discrimination under ADA by developmentally disabled inmates); Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) (upholding District Court’s finding that prison conditions, including inadequate mental health provisions, violated the Eighth Amendment of the U.S. Constitution); Gaul v. AT&T, Inc., 955 F. Supp. 346 (D.N.J. 1997) (finding that depression and anxiety disorders may constitute a mental disability under the ADA); Anderson v. North Dakota State Hospital, 232 F.3d 634 (8th Cir. 2000) (finding that a plaintiff’s fear 816

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Reference Guide on Mental Health Evidence malpractice by mental health professionals, including failure to protect foreseeable victims of a patient’s violence,13 invariably call for mental health expert testimony, as do commitment proceedings for the hospitalization of persons with mental disorders14 or who are alleged to be dangerous sexual offenders.15 1. Retrospective, contemporaneous, and prospective assessments Depending on the questions at issue in a given proceeding, evaluators may be asked to assess the state of mind—including diagnosis and functional capacities—of a person at some point in the past, at present, or in the future. Retrospective assessments are called for when criminal defendants assert insanity or diminished responsibility defenses, claiming that their state of mind at the time of the crime should excuse or mitigate the consequences of their behav- iors, or when questions are raised about competence at some point in the past to waive legal rights (e.g., waiver of Miranda rights).16 In civil contexts, challenges to the capacity of a now-deceased testator to write a will or of a party to enter into a contract, among other issues, will call for a similar look back at a person’s functioning at some point in the past.17 A variety of sources of information are available for such assessments. In some cases (e.g., in criminal proceedings), the defendant is likely to be available for clinical examination, whereas in other cases he or she will not be able to be assessed directly (e.g., challenges to a will). Although the person being evaluated will usually have an interest in portraying him- or herself in a particular light, a direct assessment can nonetheless be valuable in assessing the consistency of the reported symptoms with other aspects of the history and current status of the person. Whether or not the person can be assessed directly, information from persons who were in contact with the person before and during the time in question, including direct reports and contemporaneous of snakes did not limit ability to work); Sinkler v. Midwest Prop. Mgmt., 209 F.3d 678 (7th Cir. 2000) (holding driving phobia did not substantially limit major life activity of working and hence was not an impairment under the ADA); McAlinden v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999), cert. denied, 120 S. Ct. 2689 (2000) (reversing summary judgment against plaintiff who alleged that anxiety and somatoform disorders impaired major life activities of sexual relations and sleep); Steele v. Thiokol Corp., 241 F.3d 1248 (10th Cir. 2001) (finding major life activity under the ADA of interacting with others not substantially impaired by obsessive–compulsive disorder). 13. Tarasoff v. Regents of the Univ. of California, 551 P.2d 334 (Cal. 1976). 14. Addington v. Texas, 441 U.S. 418 (1979) (holding that standard of proof for involuntary commitment is clear and convincing evidence); O’Connor v. Donaldson, 422 U.S. 563 (1975) (holding unconstitutional the confinement of a nondangerous mentally ill person capable of surviving safely in freedom alone or with assistance). 15. Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane, 534 U.S. 407 (2002). 16. Predicting the Past: Retrospective Assessment of Mental States in Litigation (Robert I. Simon & Daniel W. Shuman eds., 2002); Bruce Frumkin & Alfredo Garcia, Psychological Evaluations and Competency to Waive Miranda Rights. 9 The Champion 12 (2003). 17. See Thomas G. Gutheil, Common Pitfalls in the Evaluation of Testamentary Capacity, 35 J. Am. Acad. Psychiatry & L. 514 (2007); Farnsworth, supra note 8, at 228–33. 817

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Reference Manual on Scientific Evidence records, is usually an essential part of the evaluation. Sometimes the available data from all of these sources are so limited or contradictory that they will not allow a judgment to be made of a person’s state of mind at a point in the past. However, most experienced forensic evaluators appear to believe that conclusions regarding past mental state can often be reached with a reasonable degree of certainty if suf- ficient information is available.18 The most straightforward task for a mental health professional is to evaluate a person’s current mental state. In criminal justice settings, concerns about a person’s current competence to exercise or waive rights will call for such evaluations (e.g., competence to stand trial or to represent oneself at trial).19 Civil issues calling for contemporaneous assessments include workers’ compensation and other disability claims and litigation alleging emotional harms due to negligent or intentional torts, workplace discrimination, and other harm-inducing situations.20 At the core of an assessment of current mental state is the diagnostic evaluation described below. As in all evaluations in legal contexts, careful consideration needs to be given to the possibility of secondary gain from manipulation of their presentation for persons being assessed.21 In contrast to contemporaneous assessments, the evaluation of a person’s future mental state and consequent behaviors is fraught with particular difficulty, especially when the outcome being predicted occurs at a relatively low frequency.22 Such predictive assessments may come into play in the criminal process when bail is set,23 at sentencing,24 and as part of probation and parole decisions.25 They often involve 18. Robert I. Simon, Retrospective Assessment of Mental States in Criminal and Civil Litigation: A Clinical Review in Simon and Shuman, supra note 16 at 1, 8; McGregor v. Gibson, 248 F.3d 946, 962 (10th Cir. 2001) (stating that although disfavored, retrospective determinations of competence may be allowed in cases when a meaningful hearing can be conducted). 19. See Dusky v. United States, 362 U.S. 402 (1960) (holding that a criminal defendant must understand the charges and be able to participate in his defense); Godinez v. Moran, 509 U.S. 389 (1993) (holding that a defendant competent to stand trial is also sufficiently competent to plead guilty or waive the right to legal counsel). 20. See, e.g., Kent v. Apfel, 75 F. Supp. 2d 1170 (D. Kan. 1999); Quigley v. Barnhart, 224 F. Supp. 2d 357 (D. Mass. 2002); Rivera v. City of New York, 392 F. Supp. 2d 644 (S.D.N.Y. 2005); Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204 (N.D. Tex. 1996). 21. See United States v. Binion, 132 F. App’x 89 (8th Cir. 2005) (upholding an obstruction of justice conviction and sentencing determination based on a finding that defendant had feigned mental illness). See discussion, infra, Section I.C.2. 22. Joseph M. Livermore et al., On the Justifications for Civil Commitment, 117 U. Pa. L. Rev. 75–96 (1968). 23. United States v. Salerno, 481 U.S. 739 (1987); United States v. Farris, 2008 WL 1944131 (W.D. Pa. May 1, 2008). 24. Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 1981); Barefoot v. Estelle, 463 U.S. 880 (1983). 25. See 28 C.F.R. § 2.19 (2008) for parole determination factors. For probation determination factors, see 18 U.S.C.A. § 356 (2008). See generally Neil Cohen, The Law of Probation and Parole §§ 2, 3 (2008). 818

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Reference Guide on Mental Health Evidence estimates of the probable effectiveness of treatment, especially in the juvenile justice system, where the lack of amenability of juveniles to mental health treatment is frequently a key consideration in decisions regarding transfer to adult courts.26 Pre- dictions regarding behavior related to mental disorders are also seen in civil cases, for example, in the civil commitments of persons with mental disorders and in the newer statutes authorizing the commitment of dangerous sex offenders.27 Damage assessments in civil cases alleging emotional harms will usually call for some estimate regarding the duration of symptoms and response to treatment.28 The inescapable uncertainties of the course of mental disorders and their responsiveness to inter- ventions create part of the difficulty in such assessments, but an equally important contribution is made by the unknowable contingencies of life. Will a person’s spouse leave or will the person lose his job or his home? As a consequence, will the person return to drinking, stop taking medication, or reconnect with friends who have continued to engage in criminal behaviors? At best, predictive assess- ments can lead to general statements of probability of particular outcomes, with an acknowledgment of the uncertainties involved.29 2. Diagnosis versus functional impairment A diagnosis of mental disorder per se will almost never settle the legal question in a case in which mental health evidence is presented. However, a diagnosis may play a role in determining whether a claim or proceeding can go forward. The clearest example in criminal law is embodied in the insanity defense, where the impairments of understanding, appreciation, and behavioral control that comprise the various standards must be based, in one popular formulation, on a “mental disease or defect.”30 In the absence of a diagnosis of mental disorder (including mental retardation and the consequences of injury to the brain), an affirmative 26. Michael G. Kalogerakis, Handbook of Psychiatric Practice in Juvenile Court 79–85 (1992). 27. See O’Connor v. Donaldson, 422 U.S. 563 (1975) (finding that a state may not confine a citizen who is nondangerous and capable of living by herself or with aid); for an example of a sex offender civil commitment statute, see Minn. Stat. § 253B.185 (2008). The constitutionality of civil commitment for dangerous sex offenders was upheld in Kansas v. Hendricks, 521 U.S. 346 (1997) (setting forth the procedures for the commitment of convicted sex offenders deemed dangerous due to a mental abnormality). 28. Gary B. Melton et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers 413–14 (2007). 29. For a more detailed discussion of predictive assessment regarding future dangerousness, see Section I.E. 30. The American Law Institute standard for the insanity defense reads, “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Model Penal Code and Commentaries § 4.01(1) (Official Draft and Revised Comments 1985) (adopted by American Law Institute, May 24, 1962). The federal insanity defense was codified in the Insanity Defense Reform Act of 1984, codified at 18 U.S.C. § 17. See also Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (“[A]n accused is not criminally responsible 819

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Reference Manual on Scientific Evidence defense of insanity will not prevail.31 Comparable situations exist in civil commit- ment proceedings and work disability determinations.32 Even where the presence of a mental disorder is not an absolute prerequisite to claims involving mental state, it will often play a de facto threshold role. Thus, evidence in cases involving claims of incompetence (e.g., to engage in a contrac- tual relationship) or emotional harms will often address the presence of a diagnosis, even though that may not strictly be required.33 In these cases, failure to establish a diagnosis may be taken by a factfinder as an indicator of the probable lack of valid- ity of the claim. That is, it may be assumed that unless an underlying disorder can be identified, the claimed impairments are bogus. Thus, conflicting testimony over the presence or absence of a diagnosis is common in cases in which mental health evidence is offered, even when not mandated by the operative legal standard. Notwithstanding the threshold role played by a mental disorder diagnosis in many cases, the ultimate legal issue usually will turn on the impact of the mental disorder on the person’s functional abilities.34 Those abilities may relate to the person’s cognitive capacities, including the capacity to make a legally relevant decision (e.g., granting consent for the police to conduct a warrantless search, altering a will) or the capacity to behave in a particular way (e.g., conforming one’s conduct to the requirements of the law, cooperating with an attorney in one’s own defense, resisting undue influence), or both (e.g., skill as a parent, competence to proceed with criminal adjudication). The former set of capaci- ties can be denoted as decisional capacities and the latter set as performative capacities. Many of the legal questions to which mental health evidence may be relevant will involve a determination of the influence of a mental state or disorder on one or both of these sets of capacities. The mere presence of a mental disorder will almost always be insufficient for that purpose. Mental disorder in a criminal defendant, for example, if it does not interfere substantially with competence to stand trial, does not present a basis for postponing adjudication of the case.35 Some degree of mental disorder, including dementia, without affecting relevant abilities, does not provide grounds for voiding a will.36 The point can be generalized to all criminal and civil competency determinations, most assessments of emotional harms, and if his unlawful act was the product of mental disease or defect.”); note United States v. Brawner, 471 F.2d 969 (1972), which overturned the Durham Rule (or “product test”). 31. Tennard v. Dretke, 542 U.S. 274 (2004); Bigby v. Dretke, 402 F.3d 551 (5th Cir. 2005). 32. Addington v. Texas, 441 U.S. 418 (1979) (setting the burden of proof required for involuntary civil commitment as requiring clear and convincing evidence); and Social Security Administration Listing of Impairments, available at http://www.ssa.gov/disability/professionals/ bluebook/listing-impairments.htm. 33. Farnsworth, supra note 8, §§ 4.6–4.8, at 228–34. 34. Grisso, supra note 2. 35. United States v. Passman, 455 F. Supp. 794 (D.D.C. 1978); United States. v. Valierra, 467 F.2d 125 (9th Cir. 1972). 36. Rossi v. Fletcher, 418 F.2d 1169 (D.C. Cir. 1969); In re Estate of Buchanan, 245 A.D.2d 642 (3d Dept. 1997). 820

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Reference Guide on Mental Health Evidence probably to the majority of cases in which mental health testimony is offered: Unless a mental disorder can be shown to have affected a person’s functional capacity, decisional or performative, a diagnosis of mental disorder per se will not be determinative of the outcome.37 Despite its importance to the adjudicative process, mental health evidence is often introduced in the context of a serious stigma that attaches to mental dis- orders38 and considerable confusion regarding their nature, consequences, and susceptibility to treatment.39 Diagnoses of mental disorders often are perceived to be less reliable and more subjective than diagnoses of other medical conditions.40 Symptoms of mental disorders may be seen as reflections of moral weakness or lack of will, and the impact of disorders on functional abilities may not be recognized, or occasionally may be exaggerated.41 The potential impact and limits of current treat- ments are not widely understood. Indeed, even the various types of mental health professionals are frequently confused.42 The remainder of Section I of this reference guide provides background to clarify these issues; Section II considers questions specifically related to the introduction of evidence by mental health experts. B. Mental Health Experts Evidence related to mental state and mental disorders may be presented by experts from a number of disciplines, but it is most commonly introduced by psychiatrists or psychologists. 1. Psychiatrists Psychiatrists are physicians who specialize in the diagnosis and treatment of men- tal disorders.43 After college, they complete 4 years of medical school, during 37. For a brief overview of competency evaluations, see Patricia A. Zapf & Ronald Roesch, Mental Competency Evaluations: Guidelines for Judges and Attorneys, 37 Ct. Rev. 28 (2000), available at http://aja.ncsc.dni.us/courtrv/cr37/cr37-2/CR37-2ZapfRoesch.pdf. For the underlying standard for competency to stand trial, see Dusky v. United States, 362 U.S. 402 (1960). 38. Bruce G. Link et al., Measuring Mental Illness Stigma, 30 Schizophrenia Bull. 511 (2004). 39. Bruce G. Link et al., Stigma and Coercion in the Context of Outpatient Treatment for People with Mental Illnesses, 67 Soc. Sci. & Med. 409 (2008). 40. Thomas A. Widiger, Values, Politics, and Science in the Construction of the DSMs, in Descriptions and Prescriptions: Values, Mental Disorders, and the DSMs 25 (John Z. Sadler ed., 2002). 41. Michael L. Perlin, “Half-Wracked Prejudice Leaped Forth”: Sanism, Pretextuality, and Why and How Mental Disability Law Developed as It Did, 10 J. Contemp. Legal Issues 3 (1999); Michael L. Perlin, “You Have Discussed Lepers and Crooks”: Sanism in Clinical Teaching, 9 Clinical L. Rev. 683 (2003); Michael L. Perlin, The Hidden Prejudice: Mental Disability on Trial (2000). 42. The degree of popular confusion is underscored by the results of a Web-based search for “psychiatrist vs. psychologist,” which turns up a remarkably large number of Web sites attempting to explain the differences between the two professions. 43. Narriman C. Shahrokh & Robert E. Hales, American Psychiatric Glossary 157 (2003). 821

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Reference Manual on Scientific Evidence which they spend approximately 2 years in preclinical studies (e.g., physiology, pharmacology, genetics, pathophysiology), followed by 2 years of clinical rota- tions in hospital and clinic settings (e.g., medicine, surgery, pediatrics, obstetrics/ gynecology, orthopedics, psychiatry).44 Graduating medical students who elect to specialize in psychiatry enter residency programs of at least 4 years’ duration.45 Accredited residencies must currently offer at least 4 months in a primary care setting in internal medicine, family medicine, or pediatrics, and at least 2 months of training in neurology.46 The remainder of a resident’s time is spent learning psychiatry, including inpatient, outpatient, emergency, community, and consulta- tion settings, and with exposure to the subspecialty areas of child and adolescent, geriatric, addiction, and forensic psychiatry. Residents will be taught how to use treatment techniques, among them medications and various forms of psycho- therapy. Elective time is usually available to pursue particular interests in greater depth or to engage in research. Didactic seminars, including sessions on neurosci- ence, genetics, psychological theory, and treatment, and supervision sessions with experienced psychiatrists (and sometimes mental health professionals from other disciplines) complement the clinical experiences.47 After completion of 4 years of residency training, a psychiatrist is designated as “board eligible,” that is, able to take the certification examination of the American Board of Psychiatry and Neurology in adult psychiatry.48 Successful completion of this examination process results in the psychiatrist being designated “board certi- fied.” Psychiatrists who desire more intensive training in a subspecialty area of psychiatry—for example, child and adolescent or addiction psychiatry—can take a 1- or 2-year fellowship in that area. The psychiatrist who has completed an accred- 44. Medical schools in the United States are accredited by the Liaison Committee on Medical Education, which establishes general curricular and other standards that all schools must meet. Standards are available at http://www.lcme.org/standard.htm. Students can elect to extend their medical school training by taking additional time to conduct research or to obtain complementary training (e.g., in public health). 45. Residents who choose to combine adult and child psychiatry training can do so in a 5-year program, or can follow their 4 years of adult residency with 2 years of child training. Some residents will also extend their residency training by adding a year or more during which they conduct laboratory or clinical research. 46. Psychiatric residencies are accredited by the Accreditation Council on Graduate Medical Education. Program requirements are available at http://www.acgme.org/acwebsite/rrc_400/400_ prindex.asp. 47. See descriptions of several leading psychiatry residency training programs on their Web sites: Columbia University (http://www.cumc.columbia.edu/dept/pi/residency/index.html); Johns Hopkins University (http://www.hopkinsmedicine.org/Psychiatry/for_med_students/residency_ general/); Harvard/Longwood Psychiatry Residency (http://harvardlongwoodpsychiatry.org/). 48. Information regarding qualifications for board certification and the examination process is available from the American Board of Psychiatry and Neurology at http://www.abpn.com/Initial_ Psych.htm. 822

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Reference Guide on Mental Health Evidence ited fellowship49 is eligible for additional board certification in that subspecialty.50 Although fellowship training and board certification indicate expertise in a par- ticular area of psychiatry, some psychiatrists are recognized by the courts as having developed equivalent levels of expertise by virtue of extensive clinical experience and self-designed instruction (e.g., continuing education courses, remaining current with the professional literature).51 Forensic psychiatry is the subspecialty that focuses on the interrelationships between psychiatry and the law.52 Hence, forensic psychiatrists are particularly likely to offer evidence as part of court proceedings. Fellowship training in forensic psychiatry involves a 1-year program in which fellows are taught forensic evaluation for civil and criminal litigation and become involved in the treatment of persons with mental disorders in the correctional system.53 They also learn about the rules and procedures for providing evidence in legal proceedings and for working with attorneys. However, training and/or board certification in forensic psychiatry are not necessarily the best qualification for expertise in a particular case. Although forensic psychiatrists are likely to have more expertise than general psychiatrists for certain kinds of evaluations that are the focus of forensic training (e.g., competence to stand trial, emotional harms), when issues are raised concern- ing other substantive areas of psychiatry (e.g., the effects of psychopharmacological agents on a civil defendant’s ability to drive at the time of an accident that allegedly resulted in injury to the plaintiff), a psychiatrist who specializes in that area will often have greater expertise than someone with forensic training. 49. Accredited subspecialty training is currently available in addiction, child and adolescent, forensic, and geriatric psychiatry, and in psychosomatic medicine. Psychiatrists are also eligible for training in hospice and palliative medicine, pain medicine, and sleep medicine. See accreditation standards at http://www.acgme.org/acwebsite/rrc_400/400_prindex.asp. Fellowship programs also exist in some subspecialty areas for which accreditation and board certification are not available, e.g., research, psychopharmacology, and public and community psychiatry. 50. Typically, when new subspecialties are recognized and accreditation standards are developed, a certain period of time (e.g., 5 years) is allowed for psychiatrists who have gained expertise in that area by virtue of experience or alternative training to achieve board certification. Thus, many psychiatrists who are today board certified in a subspecialty have not completed a fellowship. 51. For a comparable determination involving a counselor, see Leblanc v. Coastal Mech. Servs., LLC, 2005 WL 5955027 (S.D. Fla. Sept. 7, 2005) (quoting Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962) for the proposition that the determination of a psychologist’s competence to render an expert opinion is a case-by-case matter based on knowledge, not claim to a professional title). 52. See the definition of forensic psychiatry offered by the American Academy of Psychiatry and the Law: “Forensic psychiatry is a medical subspecialty that includes research and clinical practice in the many areas in which psychiatry is applied to legal issues,” available at http://www.aapl.org/ org.htm. Psychiatrists who have been certified in adult or child psychiatry by the American Board of Psychiatry and Neurology, and who have completed a forensic psychiatry fellowship, can take the examination for subspecialty certification in forensic psychiatry. A description of the requirements for certification can be found at http://www.abpn.com/fp.htm. Board certification must be renewed by taking a recertification examination every 10 years. 53. See the accreditation standards in forensic psychiatry at http://www.acgme.org/acWebsite/ downloads/RRC_progReq/406pr703_u105.pdf. 823

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Reference Manual on Scientific Evidence the ability of an instrument or test to foretell a person’s condition or behavior at some point in the future. When the results of an evaluation using an instrument or test are offered in evidence, clarification of the extent to which reliability and validity have been demonstrated is an essential aspect of determining admissibility and weight. Indeed, based on its discussion in Daubert, when the U.S. Supreme Court referred to the “reliability” of a scientific technique, it was encompassing both reliability and validity as usually understood in the social sciences.380 Which aspects of reli- ability and validity are relevant to a particular case will depend on the purpose for which the data from the test are being introduced. For example, if the evidence is addressing change in a person’s test results over time, a measure’s test-retest reliability becomes crucial. If more than one evaluator was involved, interrater reliability may be key. Discriminant validity will be relevant when two states or conditions must be distinguished from each other and predictive validity when forecasts of future mental state or behavior are being made. Careful evaluators will only use instruments or tests that have had the relevant types of reliability and validity confirmed in peer-reviewed publications and will be prepared to cite such data should questions be raised. Of course, some tests are so widely used over a sustained period that their reliability and validity are generally accepted (e.g., the MMPI-2) and do not ordinarily need to be demonstrated again prior to introduc- ing data based on an evaluation in which they were employed. However, the reli- ability and validity of some longstanding tests (e.g., the Rorschach ink-blot test) remain controversial,381 and data even from established tests can be used to reach conclusions of uncertain validity. Thus, novel uses of instruments or tests may also require that their psychometric characteristics for that purpose be demonstrated. 2. Does the person being evaluated resemble the population for which the instrument or test was developed? Reliability and validity once established are not necessarily universally applicable. If an assessment technique is being used on someone drawn from a different population than the one for which the instrument or test was developed, and the new group is likely to differ in some material way, reliability and/or validity may need to be reestablished. An example with regard to reliability might be the use with a child of an instrument that was developed to measure symptoms of mental disorders in adults.382 Either the nature of the symptoms that adults experience or 380. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). 381. Lilienfeld et al., supra note 127. . Lilienfeld 382. The frequently differing presentations of mental disorders in children have led to the development of instruments intended specifically for use in that population. See, e.g., David Shaffer et al., NIMH Diagnostic Interview Schedule for Children, Version IV (NIMH DISC-IV): Description, Differences from Previous Versions, and Reliability of Some Common Diagnoses, 39 J. Am. Acad. Child & Adolescent Psychiatry 28 (2000). 886

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Reference Guide on Mental Health Evidence the ability of adults to describe their symptoms could be substantially different with children, leading to greater difficulty in applying the instrument or test. Thus, it might be prudent for an evaluator to ascertain that data exist showing good reli- ability in this new population before using this assessment approach. An example involving validity is the use of predictive scales, such as instruments to assess risk of future violence, with a different group than the one from which the predictive algorithm was derived.383 Concretely, if a predictive test is based on a criminal, but nonmentally disordered sample, applying it to persons with mental disorders—for whom very different variables may affect their behavior—is dubious in the absence of data demonstrating that it is valid in the latter group and vice versa. It should be emphasized, however, that reestablishing reliability and validity is only necessary when the original group and the new population are likely to differ in some relevant way. Why an instrument developed in California, for example, would not be as reliable and valid when used in Texas is not at all clear. Moreover, the nature of the instrument or test will play a role. Diagnostic tests are likely to differ in their characteristics across populations only if the disorders or the ways in which they manifest themselves are different, which will not usually be the case. Predictive tests, however, may be more sensitive to cultural, socioeconomic, geographic, and other considerations that could introduce new predictors of future conditions or behaviors into the mix. In addition, tests that involve comparisons with broader populations are said to be “normed” against those groups,384 and the comparative data (e.g., the evaluee is in the lowest quartile of performance) may be invalid unless the test is renormed for the group of which the person being evaluated is a member. Thus, whether additional reliability and validity testing is required for a new use, or whether a test must be renormed before being used in this way, is necessarily a fact-specific determination. 3. Was the instrument or test used as intended by its developers? Established reliability and validity are necessary but not sufficient to deter- mine whether an instrument or test has yielded reliable and valid results. Unless the assessment approach was applied in the manner intended by the developers, the data on reliability and validity may simply not be applicable to a particular use. Three possible areas of deviation relate to training in, administration of, and scoring of the assessment tool. a. Training Some instruments and tests are so straightforward in their use that little or no train- ing is required. Reading the instructions accompanying the assessment tool might be 383. See, e.g., John Monahan et al., The Classification of Violence Risk, 24 Behav. Sci. & L. 721 (2006). 384. For a good discussion of norming in the forensic context, see Grisso, supra note 2, at 56–59. 887

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Reference Manual on Scientific Evidence sufficient. In some cases, though, training may be required to ask the questions prop- erly, especially when followup probing of responses is necessary or when evaluees are asked to perform tasks that must be conducted in a particular way. Diagnostic instruments, in particular, may have complex “skip-out” rules, that is, procedures for determining when to include or omit certain questions based on the person’s responses to previous questions.385 When information is acquired at least in part from existing records, rather than from the evaluee directly, rules may exist for how the information should be identified and abstracted. All of these characteristics of an assessment approach may require elaborate training for proper implementation.386 Sometimes the training can be acquired from test manuals, but for more complex instruments or tests, face-to-face training with an opportunity to practice adminis- tration is necessary. Developers of such instruments or tests may offer such training in 1-day or multiday seminars that professionals can arrange to take.387 Thus, a key question in assessing data based on an instrument or test is whether proper use requires special training, and if so, whether the assessor was trained in the technique. b. Administration Even if training was obtained, the reliability and validity of an instrument or test will depend on whether the assessor administered the test in the proper way. Many assessment tools require that questions be asked in a given sequence and that they be phrased in a particular way. After an incorrect response, it may be permissible to ask the question again, but only a certain number of times. Probing of responses may be needed, but only certain probes may be permitted. Some tests are timed, with a given period allotted for the completion of a particular task. Deviations from any of these requirements could make the published data on the psychometric characteristics of the tool inapplicable to its use in a particular instance. Thus, a second crucial question is whether the instrument or test was administered in the same way as it was when its reliability and validity were established. c. Scoring Assessment tools generally require that evaluees’ responses be scored in some way. For some instruments and tests, the scoring is simple and self-evident, for example, the number of positive responses is totaled to yield the score for the test, or evaluees themselves are asked to indicate the severity of their symptoms on a 385. The Diagnostic Interview Schedule, which is widely used in epidemiological studies of mental disorders in the United States, is an example. See a description of the latest version of the instrument at http://epi.wustl.edu/CDISIV/dishome.aspx. 386. Indeed, some psychological and neuropsychological tests should be administered only by psychologists trained in their use. 387. The creator of the popular Psychopathy Check List (PCL-R), for example, offers an extensive training program for clinicians and researchers desiring to learn proper administration of the instrument. See the Web site at http://www.hare.org/training/. 888

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Reference Guide on Mental Health Evidence 1-to-7 scale. Or the results could be calculated by a computer program that auto- matically applies the relevant algorithm, generates statistical data, and even draws comparisons with broader groups, such as the general population or persons with a particular disorder. Often, however, particularly when evaluees’ verbal or narrative responses are elicited, more complex scoring rules exist. An instrument assessing the severity of symptoms, for example, may require the person administering it to categorize responses along a numerical scale,388 and specific capacity assessment tools frequently require similar judgments to be applied.389 Published data on the reliability of scoring may indicate that it is possible for an instrument to be scored in the same way by many different raters, but unless the person administering the instrument in this particular circumstance adheres to the usual rules, the results of the evaluation may not be comparable to those that would be obtained by another rater and may be invalid as well. Hence, a third important question when such evidence is introduced deals with whether the rules for scoring responses were properly applied. D. How Was the Expert’s Judgment Reached Regarding the Legally Relevant Question? In evaluating testimony from mental health experts, as noted in the preceding sections, their training and the manner in which they conduct their assessments is vital information. However, the value of an expert’s opinion also depends on the process by which the data were assessed and a conclusion was reached. 1. Were the findings of the assessment applied appropriately to the question? a. Were diagnostic and functional issues distinguished? Mental health professionals without experience in performing particular forensic evaluations may fail to recognize that the legal question being asked deals with a person’s functional capacity, not with some aspect of their clinical state per se.390 As a result, they may mistakenly base their opinions on the presence of a particu- lar diagnosis or symptom cluster rather than on the person’s capacity to perform in the legally relevant manner. Studies over many years indicate that this has occurred frequently in testimony regarding defendants’ competence to stand trial, in which experts often conflated the presence of psychosis with incompetence, and concluded that any psychotic defendant was ipso facto incapable of proceed- 388. E.g., the Brief Psychiatric Rating Scale. See Overall & Gorham, supra note 122. 389. E.g., the MacArthur Competence Assessment Tool for Treatment; Thomas Grisso & Paul S. Appelbaum, MacArthur Competence Assessment Tool for Treatment (MacCAT-T) (1998). 390. See Dusky v. United States, 362 U.S. 402 (1960); Thomas Grisso, Competency to Stand Trial Evaluations: A Manual for Practice 1–23 (1988). 889

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Reference Manual on Scientific Evidence ing to trial.391 Similar problems may occur in hearings on guardianship or contests regarding testimonial capacity, where the person’s ability to manage or dispose of assets might be thought incorrectly to turn solely on the clinical question of whether dementia is present, as opposed to the legal issue of whether the person retains the necessary capacities despite his or her condition.392 This problem may be more likely to occur—and to go undetected—when experts are allowed or encouraged to address the ultimate legal issue in their testimony.393 When experts are permitted to testify to the ultimate question, the importance of probing their reasoning is magnified.394 Experts can be asked to identify the relevant functional capacities and to speak directly to the impact of the person’s mental state on those capacities.395 That allows their reasoning processes and the correctness of their assumptions about the relevant functional standard to be tested. b. Were the limitations of the assessment and the conclusions acknowledged? Most assessments are imperfect. Evaluees are less than cooperative. Records are unavailable. Evidence from witnesses is conflicting. Inadequate time is avail- able. Or the evaluator may simply have forgotten to ask about some piece of information that would have been helpful. Experts should be able to identify the limitations of their evaluations, and the possible impact of those less-than-optimal aspects of the assessments. It is unlikely that an expert would be prepared to offer testimony if he or she believed that the limitations rendered the opinions invalid. But competent experts should be able to explain why, despite the limitations (which can occur even in the best evaluations by the most experienced experts), their evaluations were adequate to allow them to draw the conclusions that they intend to present. A comparable set of limitations can occur when conclusions are drawn and opinions formulated. Just as all assessment tools have error rates, so do expert wit- nesses, although their rates are difficult to subject to statistical analysis. Errors may be introduced by inadequacies in the data available or the uncertainties inherent in particular determinations, especially predictions of future mental states and behaviors. As noted above, it is often impossible to specify the contingencies that may arise in a person’s life that could influence their mental states and actions. Thus, any prediction, no matter how firmly grounded in available data, has a 391. See, e.g., A. Louis McGarry, Competence for Trial and Due Process Via the State Hospital, 122 Am. J. Psychiatry 623 (1965). More recent studies suggest that this is now a less common problem, as educational efforts among mental health professionals who do such work have had a positive impact. Robert A. Nicholson & Karen E. Kugler, Competent and Incompetent Criminal Defendants: A Quantitative Review of Comparative Research, 109 Psychol. Bull. 355 (1991). 392. See Parry & Drogin, supra note 8, at 149–51. 393. See Section I.G.2, supra. 394. See Parry & Drogin, supra note 8, at 429–31. 395. Buchanan, supra note 319. 890

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Reference Guide on Mental Health Evidence degree of uncertainty attached to it that a competent expert should be expected to acknowledge. c. Are opinions based on valid empirical data rather than theoretical formulations? From the development of Freud’s theories in the late nineteenth and early twen- tieth centuries until the present, many mental health professionals have based their clinical approaches on psychoanalytically inspired concepts. Some of these concepts have been confirmed scientifically (e.g., the existence of unconscious mental states), whereas others have not (e.g., dreams always represent the fantasied fulfillment of wishes). Although psychoanalytical theories and the psychodynamic psychotherapies that derive from them have declined in popularity in recent decades, many mental health professionals have received psychodynamic training and use the concepts they have learned to assess and treat their patients. Regard- less of the possible utility of these theories from a clinical perspective, which is controversial and may depend on the condition being treated, they are arguably more problematic when they serve as the basis for conclusions offered as part of legal proceedings. Nor are psychoanalytical theories the only ones that mental health professionals use; alternative approaches may be based on theories that have a greater or lesser degree of empirical support. To the extent that expert opinions are introduced to inform the judgments of legal factfinders, it is important for them to be based, insofar as possible, on empirically validated conclusions rather than on untested or untestable theories. That appears to be the import of the U.S. Supreme Court’s decision in Kumho Tire.396 As Slobogin plausibly maintains, some legal questions (such as those concerning past mental states) may not easily lend themselves to approaches based on scientific methods, but expert opinions may nonetheless be of assis- tance to the finders of fact.397 At a minimum, it would seem fair for an expert to indicate when that is the case, so that the factfinder can make an informed judgment about the appropriate degree of reliance to be had on that opinion. And when empirically tested approaches are available, it would appear to be incumbent on an expert to use them or to be prepared to explain why they were not employed. 396. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (holding that the Daubert standard for admitting expert testimony also applies to nonscientists). 397. Christopher Slobogin, supra note 305. 891

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Reference Manual on Scientific Evidence III. Case Example A. Facts of the Case John, a 25-year-old Army veteran who saw combat in Iraq, had begun to have anomalous experiences in the 4 years since his discharge from active duty. At first, he believed that people were staring at him, though he was not sure why. Later, he came to the conclusion that they thought he was a drug addict or a criminal, ideas confirmed when he heard voices coming through the walls of his apartment, which he attributed to the neighbors, saying, “He’s using drugs” and “He steals things.” To avoid people’s stares, John left his apartment less often, spending most of his time listening to loud music, which helped to drown out the voices. He also found that alcohol made it easier to ignore the voices, and began to drink up to a gallon of wine each day. One evening when the voices were particularly loud and insistent, he began banging on the walls of his apartment and yelling that he would kill the neighbors if they did not stop talking about him. Thirty minutes later, the police arrived to take him to the local Department of Veterans Affairs (VA) hospital, where he was admitted to the psychiatric unit. Over the course of his hospitalization, he received antipsychotic medication and participated in group therapy. By the end of his hospital stay, although he still wondered whether people were staring at him oddly, he no longer heard people’s voices making derogatory statements about him. He denied having thoughts of hurting himself and other people. When asked whether he would continue taking his medication and would attend outpatient sessions, he said he would. Fourteen days after admission, John was discharged to outpatient care. Immediately after discharge, John stopped his medication, and he never saw his outpatient therapist. As he became more suspicious of his neighbors, he again began to hear them talking about him, and he resumed drinking several bottles of wine each day to deal with the situation. Three weeks after discharge, while he was on his way to the grocery store to pick up more wine, a passerby acci- dentally bumped into John. Reacting with fury, John pummeled the older man with his fists, then began beating him with a broomstick that he found on the sidewalk nearby. It took four people who lived in nearby buildings to pull John off his victim. In the wake of the assault, the victim brought suit against the VA for neg- ligence in John’s treatment. The suit alleged that VA mental health staff should have known that John was dangerous as a result of his mental disorder and not fit for discharge. Damages were claimed as a result of physical injuries and the development of PTSD. 892

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Reference Guide on Mental Health Evidence B. Testimony of the Plaintiff’s Expert on Negligence At trial, the plaintiff introduced testimony from a board-certified forensic psy- chiatrist, Dr. A, who was 20 years out of residency training and had not directly treated patients for the past 13 years. Dr. A had reviewed the medical records of John’s treatment and the police records of the assault, but he had not examined John directly. On direct examination, he testified that John had a diagnosis of schizophrenia, with a number of risk factors for violence, including having killed enemy combatants in Iraq, excessive alcohol consumption, and delusions of per- secution. It was Dr. A’s opinion that the VA treatment team had failed to abide by the standard of care because they had not used a structured violence risk- assessment instrument to determine John’s dangerousness. Moreover, although they had obtained a CT brain scan that had shown frontal lobe injury from an old automobile accident, the team had failed to recognize that this constituted an additional risk factor for violence. However, Dr. A believed that, even on the basis of the available information, at the time of hospital discharge it was reason- ably foreseeable that John would be violent, and thus he should not have been allowed to leave the hospital. C. Questions for Consideration 1. Given that Dr. A had devoted himself entirely to forensic evaluations and had not actually treated a patient for 13 years, should he have been con- sidered qualified to offer opinions about whether John’s evaluation and treatment had conformed to the standard of care? 2. How reliable were Dr. A’s conclusions regarding John’s diagnosis and like- lihood of committing an act of violence, given that he did not examine John or speak directly to anyone who had been in contact with him, but relied solely on hospital and police records? 3. What information would be needed to determine whether the failure to use a structured violence risk-assessment tool should be considered evi- dence of negligence? What information would be needed to determine whether the alleged failure to recognize the relationship between CT evidence of frontal brain damage and the risk of violence should be con- sidered evidence of negligence? 4. Is the assertion that John’s violence was reasonably foreseeable sufficient to establish a prima facie case for the plaintiff? If not, what type of data should Dr. A have presented to support his testimony? D. Testimony of the Plaintiff’s Expert on Damages A second expert, Dr. B, a clinical psychologist in general clinical practice, offered testimony on the mental health consequences of the assault. Dr. B had been treat- 893

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Reference Manual on Scientific Evidence ing the victim prior to the assault and had been seeing him weekly for cognitive behavioral therapy since the assault. She testified that the patient described hav- ing intrusive thoughts about the attack, nightmares, difficulty concentrating, and startle responses when people came near him without his having noticed them. He also felt overwhelming anxiety walking down the street where the attack had occurred. Dr. B diagnosed the victim as suffering from PTSD and had used a structured assessment tool to help make the diagnosis. On cross-examination, she admitted that she had only seen three or four cases of PTSD in her 5 years of practice and that the diagnosis was based entirely on the victim’s report of his symptoms. Although she had not considered the possibility that the victim was malingering, she considered it very unlikely. Because of his symptoms, she concluded to a reasonable degree of psychological certainty that he was disabled from working in his job as a middle manager for a utility company. On cross- examination, she admitted that she did not know exactly what his job entailed and had not determined how each of his symptoms might interfere with his work—but she nonetheless believed that normal work performance was not pos- sible given his condition. E. Questions for Consideration 1. Should Dr. B be qualified as an expert with regard to the damages suffered by the plaintiff? 2. To what extent should the following considerations affect the weight given to Dr. B’s testimony: a. Dr. B had been treating the plaintiff prior to the attack, and continued to treat him afterward. b. Dr. B has seen only three or four cases of PTSD in her practice. c. Dr. B’s diagnosis was made on the basis of the patient’s self-report, without corroboration from collateral informants, and she had not considered the possibility that he might be malingering. 3. What information regarding the structured assessment tool that was used in making the diagnosis of PTSD would be needed to determine whether the results of the assessment should be admissible? 4. Was an appropriate evaluation done with regard to the extent of the vic- tim’s work disability? If not, what additional information should have been obtained and by what means? Should the testimony as offered have been admissible? 894

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Reference Guide on Mental Health Evidence References on Mental Health Diagnosis and Treatment American Psychiatric Association, American Psychiatric Association Practice Guidelines for the Treatment of Psychiatric Disorders: Compendium 2006 (2006). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR (4th ed. Text Rev. 2000). American Psychiatric Publishing Textbook of Clinical Psychiatry (Robert E. Hales et al. eds., 5th ed. 2008). Kaplan and Sadock’s Comprehensive Textbook of Psychiatry (Benjamin J. Sadock et al. eds, 9th ed. 2009). Alan F. Schatzberg et al., Manual of Clinical Psychopharmacology (6th ed. 2007). Stephen M. Stahl, Essential Psychopharmacology: The Prescriber’s Guide (3d ed. 2009). References on Mental Health and Law Paul S. Appelbaum, A Theory of Ethics for Forensic Psychiatry, 25 J. Am. Acad. Psychiatry L. 233 (1997). Paul S. Appelbaum & Thomas G. Gutheil, Clinical Handbook of Psychiatry and the Law (4th ed. 2007). Deborah Giorgi-Guarnieri et al., American Academy of Psychiatry and the Law Prac- tice Guideline for Forensic Psychiatric Evaluation of Defendants Raising the Insanity Defense, 30 J. Am. Acad. Psychiatry L. S1 (2002). Thomas Grisso, Evaluating Competencies: Forensic Assessments and Instruments (2d ed. 2002). Gisli H. Gudjonsson, The Psychology of Interrogation and Confessions (2003). Glenn J. Larrabee, Forensic Neuropsychology: A Scientific Approach (2005). Gary B. Melton et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (3d ed. 2007). Douglas Mossman et al., American Academy of Psychiatry and the Law Practice Guide- line for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 35 J. Am. Acad. Psychiatry L. S3 (2007). Mental Disorder, Work Disability, and the Law (Richard J. Bonnie & John Monahan eds., 1997). John Monahan, The Scientific Status of Research on Clinical and Actuarial Predictions of Violence, in Modern Scientific Evidence: The Law and Science of Expert Testimony (David L. Faigman et al. eds., 2007). Michael L. Perlin, Mental Disability Law, Civil and Criminal (2d ed. 2002). 895

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Reference Manual on Scientific Evidence Retrospective Assessment of Mental States in Litigation: Predicting the Past (Rob- ert I. Simon & Daniel W. Shuman eds., 2002). Richard Rogers, Clinical Assessment of Malingering and Deception (3d ed. 2008). Christopher Slobogin, Proving the Unprovable: The Role of Law, Science, and Speculation in Adjudicating Culpability and Dangerousness (2006). Robert M. Wettstein, Treatment of Offenders with Mental Disorders (1998). 896