Evaluations of Dangerousness among those Adjudicated Not Guilty by Reason of Insanity

Edited by Christina M. Finello, JD, PhD
American Psychology Law Society
Winter 2013 News

In many states, following an indeterminate period of hospitalization, individuals adjudicated Not Guilty by Reason of Insanity (hereafter called “acquittees” despite different international legal terminology) are typically discharged under conditional release with provisions for ongoing monitoring and recommitment (Packer & Grisso, 2011). Studies have identified factors associated with conditional release, recommitment, and reoffending in this population. However, few studies have evaluated whether risk assessment measures could assist in predicting recommitment to forensic hospitals.

A number of static factors may be associated with decisions to retain or conditionally release acquittees. For example, Callahan and Silver (1998) found that female acquittees, those with diagnoses other than Schizophrenia and those who committed non-violent offenses, were released most often. Additionally, low psychopathy and older age during one’s first criminal offense increased the likelihood of release (Manguno-Mire, Thompson, BertmanPate, Burnett, & Thompson, 2007). Dynamic and protective variables also influence decisions of retention versus release. For example, researchers identified that acquittees’ treatment compliance and responsiveness, substance use, risk of violence, and availability of structured activities in the community are relevant to release decisions (McDermott, Edens, Quanbeck, Busse, & Scott, 2008; Stredny, Parker, & Dibble, 2012).

Decisions regarding release versus retention involve determinations of future dangerousness (Jones v. United States, 1983), highlighting the relevance of violence risk assessment measures. However, available data do not indicate a strong relationship between scores on risk assessment measures and dispositional decisions. For example, McKee, Harris, and Rice (2007) observed that scores on the Violence Risk Appraisal Guide (VRAG; Quinsey, Harris, Rice, & Cormier, 1998) predicted clinicians’ recommendations for retention versus transfer from a maximum security facility, but did not predict the ultimate decisions. Côté, Crocker, Nicholls, and Seto (2012) reported that, with the exception of previous violence, presence of major mental illness, substance use problems, active symptoms of major mental illness, and unresponsiveness to treatment - the factors of the Historical, Clinical, Risk Management-20 (HCR-20; Webster, Douglas, Eaves, & Hart, 1997) identified by researchers - corresponded poorly (if at all) with those raised by evaluators in review hearings.

The entire article can be found here.

Medical malpractice: Why is it so hard for doctors to apologize?

Fixing a system built on blame and revenge will require bold ways of analyzing mistakes and a radical embrace of openness.

By Dr. Darshak Sanghavi
The Boston Globe
Originally posted on January 27, 2013


DANIELLE BELLEROSE WENT THROUGH HELL for two years trying to conceive, undergoing nine rounds of fertility treatments before she finally got pregnant with twins in late 2003. Shortly thereafter, the then 28-year-old nurse and Massachusetts native developed a complication that required months of bed rest at home. Suddenly, on a June night nearly three months before her due date, Danielle’s uterus began bleeding profusely. At 4:56 a.m. she had an emergency caesarean section at Beth Israel Deaconess Medical Center. Her daughters, Katherine and Alexis, entered the world weighing only about 3 pounds each.

Everything seemed to go well until the end of the first week. When Danielle and her husband, John, visited the unit, Alexis looked fine, but Katherine appeared mottled and pale. Panicked, Danielle found a nurse, and testing confirmed that Katherine was in profound shock due to necrotizing enterocolitis, a devastating intestinal complication that affects premature babies. The infant’s blood had turned acidic. An X-ray indicated a tear in her bowel. Just after midnight, Katherine was taken by ambulance to Children’s Hospital Boston.

Extremely premature infants such as Katherine and Alexis are entirely unprepared to live outside their mother’s womb. After only 30 weeks of gestation, the newborn heart isn’t fully developed, and the intestines can’t easily digest breast milk or formula. At that age, a baby’s brain often doesn’t remember to breathe. In 1963, when President John F. Kennedy’s son, Patrick, was born prematurely, the only thing to do was “monitor the infant’s blood chemistry,” as a newspaper of the day put it. Patrick Kennedy died after two days. By the time Katherine Bellerose was being cared for in the same hospital, however, new treatments had increased survival rates in very low birth weight infants to 96 percent.

Still, at Children’s Hospital, Katherine struggled to survive. Surgeons made a last-ditch effort to save her life by removing her colon, in the hope that this would halt further damage. She failed to improve. Multiple rounds of CPR were performed.

The rest of the story is here.

“Hired guns,” “charlatans,” and their “voodoo psychobabble”: Case law references to various forms of perceived bias among mental health expert witnesses.

By Edens, John F.; Smith, Shannon Toney; Magyar, Melissa S.; Mullen, Kacy; Pitta, Amy; and Petrila, John

Psychological Services, Vol 9(3), Aug 2012, 259-271.

Abstract

Although in principle the legal system expects and professional ethics demand that expert witnesses be unbiased and objective in their forensic evaluations, anecdotal evidence suggests that accusations of financial bias, partisanship, and other forms of nonobjectivity are common. This descriptive survey of published legal cases expands on an earlier case law review (Mossman, 1999) attempting to encapsulate and summarize key issues concerning perceptions or allegations of bias in mental health expert witness testimony. Using a series of search terms reflecting various potential forms of accusatory bias, a total of 160 published civil and criminal court cases were identified in which 185 individuals (e.g., attorneys, trial and appellate judges, other witnesses) made one or more references to clinicians' alleged lack of neutrality. Allegations most typically involved describing the expert as having an opinion that was “for sale,” or as a partisan or advocate for one side, although aspersions also were made concerning “junk science” testimony and comparing mental health experts to mystics and sorcerers. Our results indicate that diverse forms of bias that go beyond financial motives are alleged against mental health experts by various players in the legal system. Means are discussed by which experts can attempt to reduce the impact of such allegations.

Here are two excerpts:

It should not be surprising that wholesale acceptance of mental health expertise as accurate and neutral is hardly the norm.

Clearly, some judges, attorneys, academics, and jurors view at least some mental health experts-if not the entire field-with a considerable degree of suspicion (Fradella, Fogarty, & O'Neill, 2003), if not overt distain and/or hostility.

and

In terms of putative sources of examiner bias, several forms have been suggested as potentially undermining examiner objectivity (e.g., Saks, 1990).

Perhaps the most pernicious is that opinions are for sale. It is commonly alleged that monetary incentives primarily (or completely) motivate the testimony offered by witnesses characterized as "'hired guns,' 'whores,' and 'prostitutes'" (Mossman, 1999, p. 414).

Although being for sale is frequently lodged as a criticism of expert testimony, allegations of other forms of bias may spring from perceptions that the expert has a particular personal, political, or scientific "ax to grind" in relation to a specific legal issue.

Evidence of advocacy for one's pet cause(s)--whether it is championing a particular examinee's case, the rights of fathers in child custody disputes, or a novel or controversial psychological syndrome (to name but a few possibilities)--may be justifiable grounds for questioning an examiner's objectivity and fairness as well.

For reprint requests, comments, or questions: John F. Edens, Department of Psychology, Texas A&M University, 4235 TAMU, College Station, TX 77843; Contact johnedens@tamu.edu

Thanks to Ken Pope for this information.

Should Forensic Psychiatrists Conduct Psychological Testing?

Frank Dattilio, Ph.D., ABPP, Bob Sadoff, M.D., Eric Drogin, J.D., Ph.D., ABPP, 

and Tom Gutheil, M.D.

Journal of Psychiatry & Law (Vol. 39, #3), Spring 2012

Most forensic experts have encountered at least one civil or criminal case in which a forensic psychiatrist has independently conducted psychological testing.

In some instances, the psychiatrist will consult a psychologist on the interpretation of test outcomes, while in others he or she may simply rely on one of the many computerized scoring programs that provide a "canned" analysis and narrative interpretation of results.

Predictably, this phenomenon has occasionally stirred controversy regarding the clinical, ethical, and legal dimensions of appropriateness of selection, skillfulness of administration, accuracy of scoring, validity of interpretation, sufficiency of training, and codified scope of forensic practice.

The primary purpose of this article is to address the ambiguous nature of psychiatrists employing psychological testing in their forensic work, and to arrive at a definitive answer as to whether or not forensic psychiatrists should offer services in this domain.

Key to making this determination will be a review of what differentiates psychological tests from other forms of assessment, such as appraisals, rating scales, and inventories.

 Also addressed are jurisdictionally based legal and ethical issues and a review of what would constitute adequate training and supervision.

[end excerpt]

A clear distinction needs to be made between what constitutes a 'psychological test' versus an 'appraisal,' 'rating scale,' or 'technique.'   Rating scales, such as the Zung Depression Scale or the Beck Anxiety Inventory, have no standardized format for administration and lack complexity in scoring and interpretation.  Projective techniques (i.e., Draw a Person, etc.) are so variably conducted that their best use is typically in support of psychotherapy formulations as opposed to forensic application.  However, these terms are often interchangeable with the terms 'psychological test' or 'psychodiagnostic test.

[another excerpt]

Forensic psychiatrists without access to--and proper review of--administration manuals may be eroding the reliability of psychological test results from the outset.

[another excerpt]

When asked about psychological tests in court, most psychiatrists respond by saying that they have not been trained to administer, score, or interpret psychological tests and that it would be inappropriate and unethical for them to administer them without proper training.  Furthermore, most psychiatrists do not comment on testing because they are not able to provide a comprehensive or valid response due to their lack of expertise.

[another excerpt]

It is our opinion that psychiatrists should never administer psychological tests without intensive training and supervision.  Once again, proper training and education remain critical and, without such training, they should not attempt to incorporate psychological testing into their own examination procedures.  Forensic psychiatrists would need to become familiar with the nuances of standardization and how important it is to the test results and interpretations.  It may also be essential when administering psycho-logical tests to take certain notes regarding observations.  Some of these notes and observations are generated by individuals who administer the tests and score them, interpreting the results on a regular basis, which, obviously, can only come from being very familiar with the tests administered and with scoring.

[another excerpt]

The issue at hand is not one of territoriality--as some might surmise--but rather one of forensic standards and professional ethics, particularly as they pertain to protecting the public.  The appropriate selection, administration, scoring, and interpretation of psychological tests require extensive training and supervision, of a sort that cannot be obtained during a weekend seminar or on the basis of casual, incidental supervision.  Proper testing in forensic cases calls for a thorough grounding in test construction and assessment procedures as well as a firm knowledge of instrumental reliability and validity.  Cross examination on such notions as 'standard error of measurement,' 'confidence intervals,' and 'normative populations' is fair game.  Test users unfamiliar with core psychometric principles expose their reports and testimony to negative scrutiny, imperil the work of retaining counsel, haphazardly affect the fate of litigants, and run the risk of allegations of unethical behavior.  In keeping with the current trend in professional training and development, psychological testing should be viewed as a 'competency'.

The author note provides the following contact information: Frank M. Dattilio, Ph.D., ABPP, Department of Psychiatry, Harvard Medical School, MMHC-Shattuck, 180 Morton St., Jamaica Plain, MA 02130. E-mail: frankdattilio@cs.com.

Thanks to Ken Pope for the information and excerpts.

Norway: Insanity Defense Not Likely

AP Exclusive

It's unlikely that the right-wing extremist who admitted killing dozens in Norway last week will be declared legally insane because he appears to have been in control of his actions, the head of the panel that will review his psychiatric evaluation told The Associated Press.

The decision on Anders Behring Breivik's mental state will determine whether he can be held criminally liable and punished with a prison sentence or sent to a psychiatric ward for treatment.

The July 22 attacks were so carefully planned and executed that it would be difficult to argue they were the work of a delusional madman, said Dr. Tarjei Rygnestad, who heads the Norwegian Board of Forensic Medicine.

In Norway, an insanity defense requires that a defendant be in a state of psychosis while committing the crime with which he or she is charged. That means the defendant has lost contact with reality to the point that he's no longer in control of his own actions.

"It's not very likely he was psychotic," Rygnestad told the AP.

The forensic board must review and approve the examination by two court-appointed psychiatrists before the report goes to the judge hearing the case. The judge will then decide whether Breivik can be held criminally liable.

Rygnestad told the AP a psychotic person can only perform simple tasks. Even driving from downtown Oslo to the lake northwest of the capital, where Breivik opened fire at a political youth camp, would be too complicated.

"If you have voices in your head telling you to do this and that, it will disturb everything, and driving a car is very complex," Rygnestad said.

"How he prepared" for the rampage — meticulously acquiring the materials and skills he needed to carry out his attack while maintaining silence to avoid detection — argues against psychosis, Rygnestad added.

By his own account, the 32-year-old Norwegian spent years plotting the attack. On July 22, he set off a car bomb that killed eight people in downtown Oslo's government district, then drove north to a youth camp on Utoya, a small lake island set amid a quiet countryside of pines and spruces.

There, he spent 90 minutes executing 69 people, mostly teenage members of the youth wing of Norway's governing Labor Party.

The entire story can be found here.

Judge grants The Oregonian's request to release mental health evaluation

By Stuart Tomlinson, The Oregonian
Published June 22, 2011

A Columbia County Circuit Court judge has granted The Oregonian’s May request to release the mental health evaluation of Daniel Butts, officials said today.

Columbia County District Attorney Steve Atchison said Columbia County Judge Ted Grove will allow the release of the Butts’ mental health evaluation on July 15, one week before a scheduled hearing to determine if Butts can aid and assist in his defense.

Atchison said the mental health evaluation of Butts, 21, who is accused of shooting of Rainier Police Chief Ralph Painter on Jan. 5, was completed in mid-April. The evaluation was done by an Oregon doctor who traveled twice to the Columbia County Jail in St. Helens to assess Butts’ mental state.
It will be up to Grove to determine, based on the report, if Butts can assist in his defense. Atchison said the judge could rule that Butts can aid in his defense or is unable to aid in his defense. The judge could also ask for additional evaluations.

Under Oregon law, an aid and assist hearing is held, according to the statute, “if the court has reason to doubt defendant’s fitness.”

It can order an examination to determine if the defendant is incapacitated by mental illness; if he can understand the nature of the proceedings; assist and cooperate with his attorneys; and participate in his own defense.

After a hearing in February, Atchison emphasized that the evaluation and any treatment for mental illness is to make sure Butts can aid in his defense.

The entire story can be read here.