Introduction
Forensic psychiatry is the branch of psychiatry that addresses the intersection of psychiatry and the law. In the practice of medicine, psychiatry, and a variety of other clinical professions, legal or forensic issues are commonly encountered. Confidentiality, for instance, is a key legal and ethical concern in general medical and psychiatric practice but is subject to special treatment in certain addiction treatment settings, which may result in the federal confidentiality statute coming into play. It is important in the clinical practice of addiction medicine and psychiatry to be aware than this statute supersedes state confidentiality laws, broadly defines the confidential doctor/agency–patient/client relationship, and outlines sanctions for violating the statute, which could include loss of federal funding or special tax status for the agency in question. This chapter addresses the range of forensic issues that are relevant for practicing physicians, psychiatrists, and addiction specialists and may be of interest to a wide variety of health care professionals and scientists. Working in forensic environments is, essentially, practicing forensic medicine. For instance, in the preceding example concerning confidentiality, managing the special confidentiality requirements for certain patients or clients with addictive illness requires forensic expertise and knowledge of the federal confidentiality statute and its implications. Furthermore, physicians frequently venture into the forensic realm when they are asked to give opinions about disability, whether a patient can give informed consent for treatment, or whether an intoxicated individual could form the specific intent to commit a crime. Assessing fitness for duty in a physician with alcoholism or comorbid addiction and mood disorder and addressing the relevant regulatory (licensing board) issues, opining about the meaning of a positive drug screen in a medical review officer role, and treating addiction in correctional settings are other examples of the enormous scope of forensic situations in psychiatric and other medical practice. Needless to say, working with attorneys in many contexts and testifying in a court of law are forensic activities commonly encountered in medicine.
Because forensic issues flow from the law, not medicine, many doctors are uncomfortable with the concepts and demands of working at the clinical/forensic intersection. Physicians frequently see forensic issues as intrusive in their work rather than protective of their patients, and many do their best to avoid the courtroom. The authors encourage the reader to cultivate interest in the dynamic body of statutes, courts, and cases that constitute the law; familiarity will breed comfort. From the opposite vantage point, although the law has long addressed problems of mental illness, especially the law regarding criminal responsibility, it has been slow to recognize addictive illness, which until relatively recently was seen as moral weakness or depravity. At least some of this problem has to do with the voluntary element in drug use. Courts and lawmakers are obviously not immune to biased societal attitudes toward individuals with addictive disease; nor are they educated about the nature of such illness.
In this chapter, we have chosen to organize the material according to the forensic context, including civil, criminal, and regulatory environments, and to first review some of the essential differences between the style of thinking and nature of practice in forensic contexts compared with the usual clinical thinking in medical practice. In addition, the authors have chosen to include new and emerging areas of forensic interest, in part to underscore the dynamic nature of this field.
The Forensic Evaluation Process
There are two essential differences in performing any evaluation in a forensic context when compared with performing a clinical examination, be it determining whether someone is disabled, competent to make a will, or criminally responsible. Because the findings and opinions in forensic evaluations are meant to be communicated to another party, confidentiality is limited, although obtaining a release of information for that party is often advisable, depending on the context. In addition, the purpose of the examination is to evaluate and reach conclusions regarding the referral questions, not to provide medical care to the examinee. It is not a doctor–patient relationship in the usual sense. Because an examinee often expects both help and at least a measure of confidentiality, both of these differences should be communicated to the examinee at the outset. Even after such advisement, examinees often lapse into looking upon the physician as a helper, so the physician should be alert to signs of this and be prepared to remind the examinee about the context. It is equally important for examiners to be watchful for signs that they want to help the examinee. Examiners also should carefully consider their feelings about and reactions to the examinee, which if left unattended could interfere with being neutral and objective. If the examiner develops doubts as to whether the examinee is competent to understand or agree to the conditions of examination, the report should reflect how this was assessed and the conclusions reached.
There are other technical differences between forensic evaluations and clinical evaluations. Because of the need to answer specific and complex questions, forensic evaluations often take more time than clinical evaluations and may require several interviews. Consider an examination in which a psychiatrist is asked to opine whether, due to hallucinogen intoxication, a criminal defendant was able to form the specific intent to commit a capital crime. Reviewing all relevant documents such as police investigative records and medical records will be an essential task. Incomplete review of documents will undermine the authority of a forensic evaluation. Collateral information is frequently necessary, often from several sources. In assessing whether or not a physician is alcohol dependent, speaking to his or her spouse, employer, and office and hospital staff will be helpful. Forensic reports should be quite detailed, specifically addressing the referral questions in the context of a complete report, including all the data from the examination. This requires that the referral questions be accurately understood by the examiner. This in turn necessitates spending as much time as necessary communicating with the referring party—a court, lawyer, regulatory board, or employer—and making sure that all relevant documents are in the examiner’s possession.
Medical and Legal Terminology and Reports of Evaluation
Encountering words that sound like clinical terms but are in fact legal terms is a common situation in forensic work. Other words may be “terms of art” within the legal system and cannot be defined. The forensic examiner must learn about and consider the legal framework. For instance, in Colorado, the Medical Practices Act, the law that regulates medical practice, lists “habitual intemperance” as unprofessional behavior for a physician. Habitual intemperance, a 19th-century expression used in many laws created in that era, is not in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Is it the equivalent of a substance use disorder, or a certain severity of substance use disorder? The forensic examiner cannot actually answer these questions without a legal definition. Asking for such a definition from the lawyers involved in the case is always a good step; the evaluator would be told, in this case, that it is a term of art. The examining physician may be unable to say whether their clinical diagnosis meets the standard for this term. The answer may be left to a fact finder, which in the legal system is a judge or jury. The term “disability” appears in the same Colorado statute referenced above. The state may act against a license on the basis that the physician has a disability. Again, this term is legal rather than medical in its meaning, referring to a condition that would meet the statutory requirement for unprofessional conduct. Now the examiner has the complex task of sorting out whether habitual intemperance is a disability, whether a DSM-5-defined substance use disorder is a disability, and the relationship between clinical disability and disability under the statute.
In writing reports, physicians should discuss the relationship of a diagnosis or other clinical term to the legal terms used under that statute, regulation, bylaw, or definition in question. For instance, in the preceding example concerning the term “disability”, if a substance-related disorder is found, the report should review how the diagnosis was reached, sort out the relationship of the clinical and legal terms, and acknowledge any outside sources of information used to understand the legal terms, in the process of answering the referral questions.
Working With Attorneys: Testimony
Due to space limitations, the authors give only a brief introduction to these topics. The reader is referred to forensic psychiatry texts or other works for this information. In these areas, the need for neutrality and objectivity, necessary in all forensic work, is paramount. The “hired gun,” a medical evaluator who will testify favorably for any side, regardless of the facts, is anathema to the medical profession. The American Academy of Psychiatry and the Law has published ethics guidelines ; these should be reviewed carefully by physicians anticipating these activities. Remaining neutral may be harder than one imagines because of doctors’ natural wish to be helpful to whomever is asking for their opinion. One must keep in mind that it is actually helpful for an attorney to hear an opinion unfavorable about his or her client or case. In court, even the appearance of advocacy or subjectivity is deadly to the credibility of the medical expert witness. Ultimately, credibility is the only currency of the medical expert. A corollary of this principle is that the attorney representing the opposing side in an adversarial proceeding has a duty to attack the credibility as well as the opinions of the medical expert. Although it is not easy to remain neutral and objective in the face of such attack, it is easier if one conceptualizes it as part of the job.
Psychiatrists and other physicians, as opposed to forensic psychiatrists, may testify only occasionally, so that lessons learned once may be forgotten before the next occasion arises. The authors recommend that physicians consult their forensic colleagues, forensic texts, and the attorneys involved in the case for help in orienting or reorienting themselves to the demands of testimony, be it in court or in deposition.
Compulsion and Responsibility
In all of the legal environments discussed later in this chapter, the psychiatrist may be asked to discuss the voluntary element involved in all substance use and what it means and implies about the character, reliability, credibility, and responsibility of the addicted individual. Kalivas and Volkow have written that understanding addiction must involve understanding why addicted persons continue to be vulnerable to relapse even after extended abstinence and understanding their difficulty in curbing drug-seeking behavior even in the face of serious adverse consequences. The authors will not attempt to review here the many recent advances in understanding of the neurobiology of addiction, as this subject is covered elsewhere in this book. However, a brief review is warranted because the neurobiology may shed light on forensic issues insofar as addiction is associated with the impaired ability to choose abstinence. Generally, as Kalivas and Volkow, and Hyman have argued, the brain circuitry involved in motivation is reorganized and reoriented by repeated use of addictive compounds. Drugs of abuse cause dopamine release in the reward circuitry more powerfully than do the natural reinforcers of behavior, such as food and sex, much less than the everyday reinforcers such as relationships and other enjoyable or rewarding activities. Thus addicted individuals find that drugs of abuse and their cues become more salient than any other source of motivation. Over time, the potent release of dopamine in the reward pathways in response to drugs of abuse becomes attenuated, rendering the brain less sensitive to any motivational stimulus. The drug user then seeks the lost euphoric response and remains less motivated by any other rewarding activity. In addition, an “antireward” system, mediated by the extended amygdala and factors involved in the stress response, causes severe dysphoria when the drug effect wears off. At that point, the addict is motivated to use the drug to seek transient relief from discomfort. In the later stages of addictive drug use, altered dopamine and glutaminergic function in regions of the prefrontal cortex that control self-regulation, inhibitory control, and decision making, make it more difficult to choose to refrain from drug use even in the presence of a genuine wish to stop. These conditions help to explain relapse among those who have faced severe adverse consequences of drug use, and the tenacious nature of the illness.
Bonnie discussed issues concerning an addict’s ability to choose whether or not to use drugs. He rightly pointed out that one can resist a compulsion, and that having a hard choice and having no choice are profoundly different conditions. Although the “voluntariness” of drug-seeking behavior may be altered by addiction due to the neurobiological vulnerabilities of addicts, drug use is not involuntary. Limited volition and lack of volition are fundamentally different. Bonnie explored issues of the addict’s responsibility for becoming addicted, for behaviors caused by addiction, and for sustaining sobriety after diagnosis and treatment. In his analysis, staying sober is the clearest responsibility. Whether or not his view of responsibility for relapse comports with the science of how the brain is enduringly altered by addictive experience, the fact that in some populations the realistic threat of adverse consequences of relapse decreases relapse rates underscores the pragmatism of the concept of responsible choice.
The addiction psychiatrist who is interested in the legal framework for considering these issues should be familiar with landmark judicial decisions in landmark cases. The United States Supreme Court has ruled in three such cases. Robinson v. California held that it was unconstitutional to convict a person for being an addict because to do so would be to punish him for having a disease, in violation of the Eighth Amendment, which prohibits cruel and unusual punishment. But what about behavior caused by or related to addictive illness? Is that punishable? In Powell v. Texas , the high court ruled that an extension or broad reading of Robinson would not hold. Powell was convicted of public drunkenness, and argued that this was a symptom of a disease, alcoholism, and that he was powerless to control it. The Court ruled that Powell could not be found criminally responsible for being an alcoholic but could be found responsible for being drunk in public. The majority of the justices decided that although Powell was an alcoholic, he did not experience an “irresistible compulsion” that he was “utterly unable to control.” Bonnie wrote that the justices in Powell were cautious about accepting that conditions that impair volition (such as kleptomania and pyromania) could excuse criminal conduct, and were reluctant to constitutionalize addiction as a justification for such behavior; to do so would “unsettle the law of criminal responsibility.” Ironically, this case represented Powell’s 100th conviction for public drunkenness. (Criminal responsibility is discussed further, below.)
Montana v. Egelhoff is a more recent landmark case. Egelhoff was convicted of murder even though he argued that his blood alcohol level of 0.36% rendered him incapable of the mental state required for conviction of the crime. The Montana criminal code excluded consideration of voluntary intoxication in determining the mental state of a defendant. The Montana Supreme court overturned the trial court, arguing that “all relevant evidence” should be considered when evaluating whether Egelhoff acted “knowingly and purposefully,” the mental state required for conviction. The United States Supreme Court upheld the ruling of the lower court, not the Montana Supreme Court. Although four-fifths of the states permitted the use of information about intoxication in addressing whether a defendant had the mental capacity to form the specific intent to commit a given crime, the Court noted that under well-established common law, voluntary intoxication did not excuse committing a crime. The Court held that general acceptance of taking intoxication into consideration when determining mental state did not make such consideration fundamental. (See below for a discussion of diminished capacity.)
In the future, the neurobiology of choice, volition, and motivation will be better worked out, which will lead to even more spirited discussion of these matters in the courts and in forensic psychiatry. It is wise for all the physicians involved in addiction medicine to keep up with these developments. It will be a challenge to weigh and understand the significance of the effects of illness on behavior and responsibility for that behavior.
Civil Matters
Involuntary Commitment
State and federal laws govern involuntary commitment of a psychiatric patient and/or addicted individual, although there is considerable variation from state to state. Grounds for civil commitment are usually that the individual has a mental disease that is causing dangerousness to self or others or grave disability. Because substance use disorders are mental illnesses according to the psychiatric nomenclature, they qualify as a “mental disease” that causes dangerousness or grave disability. However, there is state-to-state variability in this, as well as variable interpretation of the involuntary commitment statute in a given state over time. Furthermore, some states have separate involuntary commitment laws specific to alcohol and/or drug problems. Those states also may require that an individual committed under such a statute be treated in a facility approved and designated by the responsible state agency. Such a facility need not be a psychiatric hospital. When addictive illness is comorbid with another psychiatric disorder that is also a cause of the dangerousness or disability, civil commitment to a psychiatric facility is appropriate. It is essential for psychiatrists and other physicians to familiarize themselves with the range of statutory obligations and conditions for civil commitment in the jurisdiction in which they practice, including the regulations and case law in situations in which addictive disorder is the mental disease. In states with such laws, familiarity with specific commitment statutes for alcohol or drugs (and in some states it is only one or the other) is similarly necessary.
Civil Competencies
There are many areas in which a psychiatrist may be asked to evaluate whether someone is competent. These include competence to sign into a hospital voluntarily, to consent to other surgical procedures, to sign a contract, and to make a will, among others. Addictive disorders can impair these competencies. Impairment is characteristically caused by problems with cognition or judgment related to intoxication, withdrawal, persistent cognitive problems caused by substance use, or the combined impairment of these functions linked to the addiction and a co-occurring psychiatric illness. In determining competence, one must know the criteria for competence for the particular act in question. It is wise to ask the attorney or court requesting the evaluation to provide the examining psychiatrist with a copy of the statute or case that defines the competence. If the examiner finds that the examinee is not competent, the report should be accompanied by an explanation of how the substance-related illness was diagnosed, how specific symptoms resulted in the compromise of competence, and which criteria for competence are compromised by those symptoms.
Disability
Eligibility for disability benefits and eligibility for protections under disability laws are the two areas covered in this section. The reader should note that “disability” is another word with a meaning that differs across contexts, in this case even across forensic contexts.
If an individual is covered by private disability insurance, the meaning of disability is defined by the policy. The evaluating physician should review that definition and be clear about the criteria before rendering an opinion. Criteria can include being unable to perform all duties of the job or able to perform only one or more duties. The policy may cover disability for a specific job, say, transplant surgeon, or although the examinee is a transplant surgeon the policy may cover only the more general job of physician. In the latter circumstance, even if the physician could no longer work as a transplant surgeon as a result of addictive illness, the examiner could find the doctor disabled under the policy only if the doctor could no longer work in any field of medicine as a physician. In some policies, the coverage is job specific for a period of time, and then general. Some disability carriers do not ask the evaluating physician to render an opinion about disability (a legal adjudication regarding whether they have met policy criteria for being found disabled) but rather ask for an opinion about impairment (a medical conclusion about loss of function). If rendering an opinion that an examinee with a substance-related disorder (or additional other mental disorder) is impaired, the evaluator should describe how the diagnosis was reached, note the symptoms present, and illustrate how the symptoms cause loss of specific functions. If rendering an opinion about disability, one must add an account of the job duties affected by this impairment and address the policy criteria for disability. In looking at these questions, a physician could consider whether the claimant is disabled by active addiction, the need to obtain treatment, the need to pursue recovery activities so extensive as to preclude work, the need to recuperate and convalesce, or the need to handle a specific stressor. Disability companies may be reluctant to consider the risk for relapse as relevant to disability and prefer to address only here-and-now impairments and restrictions related to active disease or treatment. If the examiner believes that relapse is a major clinical risk and danger, it is vital to explain this in detail. For instance, one study of resident anesthesiologists addicted to the parenteral use of fentanyl found that when, after treatment, they returned to the operating room, death was a first symptom of relapse in an extraordinarily high number of cases (although subsequent studies cast doubt on this finding ). It has thus been argued that this specific pattern of addiction renders an anesthesiologist permanently disabled from operating room practice. The authors note that many disability companies stress that losing one’s license to practice one’s profession, even if due to illness, does not necessarily imply that the professional is disabled.
Because both other psychiatric disorders and medical disorders often complicate addictive illness, the presence of such illness should be noted in disability-related examinations. How each disorder affects the other (for an excellent discussion of this, see Weiss ) and the ways in which functional impairment and limitations are produced (or not) are essential aspects of such a discussion.
Social Security provides disability benefits through Social Security Disability Insurance and Supplemental Security Income. The criteria for a finding of disability are specified in the Social Security regulations but will not be reviewed in this chapter (see Metzner and Buck ) because substance-related disorders alone do not qualify someone for compensation in this system. The Contract with America Advancement Act of 1996 abolished substance use disorders as a cause of disabling impairment. If an individual suffers from other psychiatric or medical disorders and also from addictive disease, he or she may qualify, but only if he or she would continue to be disabled upon stopping the use of substances. In the same way, in the absence of another psychiatric or medical condition, an individual is not eligible for disability benefits under the Veterans Administration for an addictive disorder alone. The reason for this exclusion relates to a United States Supreme Court ruling concerning a Veterans Administration case in which the alcoholic drinking was determined to be willful misconduct, and willful misconduct disqualifies someone for such benefits under Veterans Administration regulations.
Protections from workplace discrimination for disabled persons are offered by the Americans with Disabilities Act of 1990 (ADA). The statute defines a covered disability as one that substantially limits one or more major life activities as a result of illness. The ADA protections require an employer to offer reasonable accommodation to a qualified (disabled) individual in performing his or her basic job functions unless such accommodation would impose undue hardship on the employer. Individuals with addictive disorders may be covered under the ADA, but only in a limited and specific manner. The ADA differentiates alcohol and illegal drugs, and protects those addicted to them differently. Individuals with alcohol dependence are protected under the ADA, but in order for those addicted to illegal drugs to be protected they must be in or have completed treatment for addiction and must not be currently using such drugs. The ADA only protects those addicted to legal but controlled substances if they are under the care of a licensed health care professional. An addict’s posing a danger to the safety of others (or possibly oneself) is not covered under the ADA. Courts have issued contradictory opinions as to whether the employee is protected in cases when performance problems or workplace misconduct is clearly causally related to the addictive disorder. Performance problems caused by using alcohol away from work may not be protected. Recent case law has limited the ADA protections afforded to those with substance use disorders. Although it is settled law that preemployment drug tests are not considered medical tests under the ADA and can therefore can be used by employers to screen out drug using job applicants, a recent Federal Court case differentiated between licit and illicit drugs in these preemployment drug tests. The defendant employers lawfully tested their job applicant for drugs, but denied him a job offer based on a positive result for a prescribed medication. The court found that this action violated the ADA, since the drug test was not in fact for an illegal drug. Employers must therefore carefully distinguish between drugs used illegally, which are a basis for exclusion from job offers, and similar drugs which are used with a legitimate prescription.
Professional Liability
Issues in the prescribing of addictive compounds to a variety of patients and in the management of addicted individuals can give rise to malpractice claims and litigation. The most common allegations in such litigation include that prescribing addictive medication led to the death or suicide of a patient or to the patient developing an addictive illness, or that failure to assess and diagnose addictive illness led to inappropriate prescribing or inappropriate monitoring of addictive medications. Most of these claims involve the prescribing of opioids or benzodiazepines. Less commonly such suits allege failure to recognize alcohol dependence or to consider the risks of cross-addiction. Cross-addiction is sometimes narrowly conceptualized as a person addicted to one drug becoming addicted to another substance. However, a more common cross-addiction problem is relapsing on one’s drug of choice because of exposure to another drug of abuse. Litigation also arises out of the alleged failure to obtain informed consent concerning the addictive characteristics of medications prescribed for a variety of conditions and the ensuing risk of developing addictive illness.
Suicide is the most frequent precipitant for malpractice claims against psychiatrists and is not an uncommon source of claims for other medical practitioners who treat addictions and other mental disorders. Those with addictive illness, alone or with co-occurring other psychiatric conditions, are at significantly increased risk for suicide. Obviously, attempted suicide also is commonly associated with substance intoxication. Substance-related disorders and depression commonly co-occur because addiction causes depression, depression heightens the risk for addiction, or they exist independently and affect each other. Because addiction also affects the social and occupational arenas, morbidity and losses further enhance suicide risk. Clearly, managing suicide risk is an integral part of the job for anyone treating substance-related disorders.
Strategies for managing chronic nonmalignant pain in a person with an opioid or other addictive disorder remain controversial, as is the related question of the frequency with which pain patients develop addictive illness when treated with opioids. All pain patients should be assessed for substance-related disorders and for risk factors for developing such disorders. Assessing the patient, discussing risks with the patient, and documenting one’s reasoning about the risks and benefits of the prescribed treatment are all central to the management of liability risk in these cases.
The forensic assessment of alleged medical negligence requires being familiar with the standard of care concerning the medical practice at issue. Given that malpractice cases involving the management and treatment of addiction may also include questions on a wide range of subjects, such as the treatment of a co-occurring psychiatric illness, the appropriateness of prescribing and following the use of addictive substances, or the meaning of toxicology or autopsy findings in a person with an addictive disorder, it is necessary for the medical expert to know the relevant standards of care, including the presence of controversies and other unsettled areas of clinical protocol. It is vital for medical experts to be clear to referring parties as to the areas and limits of their expertise.
Confidentiality
The federal confidentiality statute (42 CFR, Part 2) was intended to guarantee that an individual who voluntarily seeks treatment for addictive illness is not subject to a penalty that someone who does not seek treatment for the same condition would not suffer—that penalty being loss of confidentiality concerning the addictive condition. Although this law specifically addresses alcohol or drug treatment programs that receive federal funding (such as federal tax-exempt status), it is prudent to consider that it applies to all treatment and evaluation settings. The law greatly restricts communication about such a client or patient without a signed, written release of information. A few examples of communication permitted by the statute include when there is a need to address a life- or health-threatening medical emergency, report a crime committed in the program setting or in which treatment personnel are victims, report child abuse, or respond to a court order (among other conditions). Note that a subpoena is not a court order and is not an exception to the statute. The authors recommend consulting with an attorney knowledgeable about 42 CFR, Part 2, if treatment records are subpoenaed; responding to a subpoena without contesting it has been the source of successful litigation alleging violation of confidentiality. Under the statute, patients may rescind their release of information at any time, except when their treatment is a condition of parole or probation. The law presents many complexities that require interpretation in the context of each treatment situation. When does a person acquire the status of “patient” for whose protection the law provides? At the point of referral, the first phone call, or the first visit? This is only one of the myriad questions that may arise given the breadth and complexity of the law. The structure of each program, agency, or other practice environment may be sufficiently unique that legal consultation is necessary to understand the implications of this statute. Other issues may arise because of conflict between the federal statute and various state laws. Generally, federal law supersedes state law in confidentiality unless state law is more restrictive. Sorting out a program’s or a physician’s risks and responsibilities requires careful thought and often legal input. For a more extensive discussion of 42 CFR, see Brooks.
Another law that protects the privacy of patient information is the Health Insurance Portability and Accountability Act of 1996 (or HIPAA), promulgated by the United States Department of Health and Human Services. This law applies to a variety of health care providers, including addiction treatment programs, if they electronically transmit individually identifiable patient information. However, because the confidentiality requirements are stricter in 42 CFR, Part 2, the authors will not address the HIPAA in this chapter.
Duty to Protect or Warn
A physician’s or psychiatrist’s duty to warn or protect a specific person whose safety has been threatened by a patient may be in conflict with other legal and ethical requirements of medical practice, such as protecting the confidentiality of the threatening patient. That the patient has an addiction neither alters the essence of this duty nor makes the conflict easier to resolve. This duty originated with Tarasoff , a California Supreme Court decision. Although this ruling has evolved in California, it is the basis of similar laws or case law in most states. The duty to warn is usually met by notifying the threatened person or the police of the patient’s threat to harm; the duty to protect also may be met by involuntary commitment of the patient. Because law and case law vary so considerably between states, physicians and program personnel should be knowledgeable about the duty as it applies in the jurisdictions in which they practice. A major difference in the manner in which warnings should be given when the threatening patient is in addiction treatment, versus other psychiatric or medical treatment, is that under 42 CFR, Part 2, the notification to the threatened person or to law enforcement should not reveal that the patient has a substance-related disorder.
Child Custody
Child custody proceedings are at best adversarial and at worst a vitriolic environment. Even when divorce is first raised, in the hope to gain leverage or advantage, one parent may threaten the other that his or her real or alleged substance abuse will damage rights to child custody. It is not unusual for these questions to be raised in the custody proceedings, and addiction experts are frequently retained to evaluate such cases. In practice, courts vary considerably in how much weight they give to a mere history of an addiction in a parent. Many courts have ruled that a parent who has obtained appropriate help for his or her addiction and/or can demonstrate recovery or abstinence is not disadvantaged. On the other hand, the court will want to know the evaluator’s opinion as to whether or not the parent has such a condition, his or her degree of insight, whether he or she has had appropriate treatment, the outcome of treatment, the prognosis, and so on. In addition, the evaluator should address the impact of the substance-related disorder on—and its interaction with—other medical and psychiatric illness. The court may ask for the evaluator’s treatment recommendations. The evaluator also should be prepared to discuss the question of whether a child has been harmed or neglected by an addicted parent and the likelihood of this occurring in the future. The standard used by the courts in these proceedings is the parent’s ability to attend to the best interests and safety of the child or children. Occasionally addiction clinicians are asked to administer a court-ordered monitoring program for a custodial parent who misuses, or is accused of misusing, addictive substances. The clinician should assist the court in drafting that plan, but in the final analysis, the clinician must accommodate the final court order, rather than the other way around. The essential elements of a child custody drug and alcohol monitoring program include a definition of the relevant substances, a workable and effective testing protocol, and a selection of random, scheduled, or for-cause testing or some combination thereof. It is important to note that each monitoring program must contain a carefully structured definition of the consequences of a positive or missed test. In protecting the best interests of the child, the consequences of a positive or missed test usually include the immediate transfer of the child to a safe environment. This most commonly involves the person who receives the positive test result—usually a physician monitoring the testing—notifying the other parent, or the other parent’s attorney, of the positive test result.
Criminal Matters
Competence to Stand Trial
Competence to stand trial in a criminal matter is related to the current mental state of the individual charged with a crime, not to his or her state of mind at the time of the crime’s commission. Neither intoxication from a substance of abuse nor withdrawal from such a drug is likely to impair such competence because these conditions would have resolved long before the pretrial process. Nevertheless, accused persons have been known to come to their competence evaluation severely intoxicated in hopes of being found incompetent. Some examples of substance-related conditions that can impact competence include enduring toxic states (such as an amphetamine- or hallucinogen-induced psychotic disorder, which may last for weeks), other persistent conditions (which may last months or longer), and brain injury caused by drug use.
Dusky v. United States is the landmark United States Supreme Court case that defines incompetence to proceed in a criminal matter. It is utilized in all states with minor variations. Dusky states, “The test must be whether he [the defendant] has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as a factual understanding of the proceedings against him.” The competence evaluator must examine carefully the current mental condition of the examinee, asking very specific questions about his or her comprehension of the legal process and assessing the ability to work rationally with the attorney in his or her defense. To determine a defendant’s knowledge of the legal process, forensic examiners frequently ask defendants to recite and discuss the charges against them and the job of the various players in the courtroom. In determining their ability to cooperate with their attorney, it is useful to ask how they decide what is pertinent to discuss with their attorney and how they manage their relationship with their attorney when there is divergence about the best way to defend the case. It is also key to determine how accurately the defendant understands the possible outcomes of various legal strategies in the case. In all cases where the examiner finds incompetence, the written report and subsequent testimony should note the diagnosis and symptoms and describe the manner by which the symptoms interfere with competence criteria in Dusky . The examiner also should recommend any treatment that might restore competence and the likelihood of restoration. Because—as noted above—substance-related disorders only lead to incompetence proceeding under narrow conditions, it is especially important to explain how and why the condition continues to affect the accused, which will require knowledge of the toxicity of the drug responsible for the disorder and/or the nature of the brain injury associated with the use of that substance.
Sanity and Diminished Capacity
The question of sanity in a criminal case has to do with the state of mind of the defendant at the time of commission of the criminal act, not with his or her mental state at the time of trial. The insanity defense has its roots in the common law of England, which recognized that under specific circumstances a mentally ill person should not be held responsible for a criminal act. In the majority of states in the United States, the definition of insanity applies to defendants who, as a result of mental disease or defect, are unable to know or understand the nature and quality of their criminal act or are incapable of distinguishing right from wrong in relation to that act. This test is referred to as the M’Naghten Standard, named after the defendant in an 1843 case in England. M’Naghten is a cognitive standard, referring to what a defendant fails to know and understand. Several states use both the cognitive test and a volitional test. The volitional arm is often modeled after the standard published by the American Law Institute. This volitional test considers that defendants can avoid criminal responsibility if they were, as a result of mental disease or defect, unable to conform their behavior to the requirements of the law. In most cases and jurisdictions, substance use of any kind, even when the defendant has a substance use disorder, is not an allowable defense under an insanity plea in a criminal case. Most courts have found that voluntary ingestion of a substance of abuse does not excuse criminal behavior. That drugs of abuse and addictive illness can impair volition, however, may be relevant in states with a volitional arm in the law that governs the insanity defense. Clearly, it is imperative that forensic examiners know the laws in the state or states in which they practice so that they know exactly the applicable definition(s) of insanity, including the conditions that are excluded as arguments. When in doubt, the examiner should request that the referring court or attorney give him or her a copy of the relevant laws and cases.
A few specific clinical situations involving substance use may be relevant to sanity even under a strict cognitive test, such as involuntary intoxication, in which the defendant was poisoned or tricked into using a drug that resulted in criminal behavior. Another example is when a criminal act was committed during a withdrawal delirium. In a few states, a persistent drug-induced psychosis may be an admissible factor in an insanity defense. People v. Kelly is a California case in which Kelly attempted to kill her mother after recent exposure to mescaline and a long history of hallucinogen use. She believed that her mother was “with the devils.” She had a previous history of persistent psychotic states related to drug use and remained psychotic for several months after she attempted to kill her mother. The court ruled: “We hold that such a temporary psychosis which was not limited merely to periods of intoxication…and which rendered defendant insane under the M’Naghten test constitutes a settled insanity that is a complete defense to the offense here charged.” In other states, in lower courts, cases similar to Kelly have not been opened to the insanity defense. Kelly also referred to “settled psychosis” and brain damage; brain damage due to addiction under certain circumstances may be used in an insanity defense. Kelly also termed Kelly’s mental condition as one of “pathological intoxication,” further confusing an already puzzling concept. “Pathological” or “idiosyncratic” intoxication is a state in which an individual undergoes a strange and previously unfamiliar reaction to drug exposure. There are a few jurisdictions in which the occurrence of pathological intoxication has qualified a criminal defendant to use the insanity defense.
Diminished capacity is another important legal concept in the domain of criminal responsibility; it is a partial defense, and, as in Egelhoff (see section “Compulsion and Responsibility”), voluntary ingestion of a substance of abuse may be considered relevant. This defense applies only in cases in which a conviction requires proving that the defendant had the specific intent to commit the crime, meaning that the defendant had to deliberate or harbor the thought of the specific crime. Specific-intent crimes include first- and second-degree murder, as opposed to most felonies, which require proving only general intent for conviction. If upon examination a forensic evaluator finds, and the fact finder—the judge or jury—agrees, that due to ingestion of a drug of abuse a defendant could not form the specific intent to commit second-degree murder, then the accused can only be found guilty of the lesser charge of manslaughter. Like the insanity defense and most other matters considered in this chapter, the diminished capacity (or “diminished responsibility”) defense varies between jurisdictions. In fact, California has abolished the diminished capacity defense and replaced it with the concept of diminished actuality. Under this structure, the issue thus becomes whether a defendant actually formed specific intent, not whether he or she had the capacity to do so. A psychiatrist or other forensic evaluator cannot opine on the question of what actually happened; this is a question that can be addressed only by the finder of fact. The evaluator may still testify about the state of mind of the accused and the effects of drug use on his or her mental state. This may provide some information for the fact finder about specific intent. Knowing current state law is again necessary for psychiatrists and other forensic evaluators involved in evaluating someone in which such a defense is being considered.
In alcoholic blackouts, there is anterograde amnesia for some or all events that transpired during a drinking experience. In typical cases, the individuals are described by others as behaving purposefully, but they cannot recall their actions. Controversy about whether blackouts should be considered under the concept of diminished capacity rests on the issue of whether or not the individual experiencing the blackout is capable of forming criminal intent. The blackout syndrome certainly occurs, and memory loss is an essential feature, but whether or not behavior performed during a blackout is intentional is not clear.
Imperfect self-defense is another construct in which substance use may be relevant in a criminal defense. The essential element is that the defendant believes, incorrectly, that he or she was in danger and the criminal act was thus believed to be in self-defense to prevent bodily harm or injury. Consider a person who kills another because of such a belief—a paranoid delusion caused by chronic stimulant dependence. If persuaded that this were the case, a court might find such a defendant guilty of manslaughter rather than murder.
Sentencing
The sentencing phase of a criminal trial is another arena in which a court may hear expert testimony about substance use and addiction, although it is difficult to predict whether this testimony will be seen as aggravating or mitigating. Consider a vehicular homicide case in which at sentencing the addiction expert presents information about the defendant’s severe sedative dependence and how sincere and successful the accused has been in subsequent recovery since the homicide. The defense may call the expert in hopes that the jury will think about a lesser sentence but find the jury members irate that the defendant did not responsibly seek treatment before anyone was killed, and thus be inclined toward a harsher sentence. Similarly, in death penalty cases, it may be difficult to predict whether testimony about drug or alcohol use or addiction will be viewed as aggravating or mitigating by a judge or jury. The ability of the expert witness to communicate effectively is of paramount importance in this phase of a criminal trial.
Pregnancy, Harm to the Fetus, and Child Abuse
In alarming developments, pregnant women have been successfully prosecuted for harming their fetuses by abusing drugs. Laws enabling such prosecution are becoming more common [Adams]. As of 2014, the only states in which such prosecutions have been upheld are South Carolina and Alabama. The first two South Carolina cases are instructive. In Regina McKnight v. State of South Carolina , McKnight’s stillborn child’s blood contained cocaine metabolites. She was charged with homicide by child abuse and sentenced to a 20-year jail term. In Cornelia Whitner v. State of South Carolina , Whitner’s child was taken from her care after testing positive for cocaine metabolites. Whitner was prosecuted under South Carolina’s child neglect statute for having exposed her fetus and subsequent child to cocaine. She was sentenced to a jail term of 8 years. The Supreme Court of South Carolina upheld these decisions upon appeal. The United States Supreme Court denied certiorari —that is, declined to review either case on further appeal. This was despite numerous national professional organizations, such as the American Academy of Addiction Psychiatry and the American Psychiatric Association, having filed amicus briefs on behalf of McKnight . However, in 2008 the Supreme Court of South Carolina reversed the McKnight decision based on the ineffective assistance of counsel.
In Whitner , the potential harm to the fetus was considered to be information that she should have considered to be “…well documented and in the realm of public knowledge….” Thus, the court considered Whitner “on notice that her conduct in utilizing cocaine during pregnancy constituted child endangerment,” as if knowledge could be expected to serve as the antidote to addictive drug use. The Court in McKnight reasoned similarly, finding that she had the requisite criminal intent to kill her child (defined as “the person causes the death of a child under the age of eleven while committing child abuse or neglect, and the death occurs under circumstances manifesting an extreme indifference…to human life” ). To our knowledge, the defense of these and similar cases has not involved the argument that criminal intent was marginal or absent as a result of the addiction. It is also counterintuitive to believe that addicted pregnant women have had the intent to harm their fetuses, any more than pregnant women who consume alcohol or nicotine, the most common drug-related causes of fetal harm. The successful prosecution of these cases followed from the interpretation that the South Carolina child abuse and neglect statutes applied to the unborn. McKnight pointed to sections of those statutes that addressed harm due to corporal punishment and/or abandonment, which could only apply to children. The Court considered whether “this demonstrates that the statute was clearly intended to apply only to children. However, section 16-3-85 (B) [of the statute] also defines harm as inflicting or allowing to be inflicted on the child physical injury … and failing to supply the child with adequate health care … Either of these provisions may clearly be applied to an unborn child. Accordingly, given the language of the statute, and this Court’s prior opinions defining a child to include a viable fetus, we find the plain language of the statute does not preclude its application to the present case.”
An interesting twist on such prosecutions is Lovill v. Texas , in which Lovill, a pregnant probationer in treatment for cocaine addiction, experienced relapse, thereby violating her probation. The state of Texas decided to incarcerate her in order to protect her fetus, although such probation violations are typically treated with less-restrictive actions. This action was reversed on appeal. The Court of Appeals ruled that the prosecution represented a violation of Lovill’s 14th Amendment protection against sex discrimination: “The evidence shows (1) that Lovill was treated differently than others who violated the terms of their probation but were not pregnant, and (2) that her pregnancy was a motivating factor in the decision to prosecute.”
There are many criticisms of these decisions and similar prosecutions across the country. In most cases, there is a strong argument that science does not support the reputed harm attributed to drugs of abuse such as cocaine. Ironically, similar charges have not been brought against women who use the two drugs of abuse that are most closely associated with fetal harm, alcohol and nicotine, although such prosecutions are possible under most of these laws. (In a Wisconsin case a woman was prosecuted for alcohol use during pregnancy, but this case was dismissed. ) As was argued in a similar case in Maryland following Robinson , addiction is a disease, not subject to punishment and not cured by self-discipline or health warnings. Criminal penalties are likely to result in harm to newborns by virtue of separating them from their mother. Perhaps most important, it is likely that once it is known that mothers will be prosecuted under these conditions, they will avoid seeking medical care during pregnancy, including treatment for addictive illness or the many causes of fetal and maternal morbidity. Thus mothers will be deterred from seeking care for themselves and their fetuses, their medical care and health will be undermined, and the very children intended to be protected by these legal actions will experience greater endangerment. These recent decisions are important lessons in how, even in relatively well-informed contemporary times, the legal system can act on biased presuppositions and endanger the very individuals it is trying to protect. These cases also underscore the importance of the legal and medical/psychiatric communities communicating about such legal movements so that they can be addressed through the work of professional organizations serving as amici . Adams has provided a recent review of the history, cases, and legal and social arguments related to these laws.
Addiction in Criminal Populations
A great majority, up to 95% in some studies, of individuals in prisoner populations have some form of addictive illness. Estimates from 2004 found that half of prisoners in federal and state prisons met criteria for drug abuse or dependence. More than half of state and federal prisoners reported being under the influence of drugs or alcohol at the time of their criminal offense. These findings raise the important question of the relationship between substance use and criminality. Of course, this is a broad subject in which there are opposing views. One idea is that criminals become involved with drugs along with other criminal activities and that incarceration is the correct punishment. Another analysis argues that drug-abusing individuals commit crimes related to and caused by their addiction. A corollary of the latter analysis is that treatment is the only remedy for criminal behavior caused by addictive illness; punishment is less likely to remedy such behavior. Studies that show decreased criminal recidivism following addiction treatment support this point of view. These ideas also have given rise to the development of alternatives to incarceration such as drug courts (discussed below) and similar diversion programs. Court-ordered, coerced addiction treatment has been found to be effective.
Despite the fact that so many prisoners have addictive disorders and that their crimes were committed while they under the influence, only about 40% of state and federal prisons provided on-site addiction treatment in 1997. Only about one-third of state and one-fourth of federal inmates reported receiving drug or alcohol treatment in that year.
Standards for correctional mental health care have been published by The National Commission on Correctional Health Care in 1999 and the American Psychiatric Association in 2000. The principle behind these recommendations is that the same level of mental health services should be provided to each individual in the criminal justice system as is available in the community. The situation in correctional addiction treatment falls short of this target.
Among the many kinds of treatment programs offered in correctional settings, the most successful are residential programs, including therapeutic communities, which require 6–24 months to complete. The most successful groups in terms of success with criminal recidivism are those individuals who complete a therapeutic community treatment in prison and, upon release from incarceration, enter a community-based residential therapeutic community or other aftercare. Jails and prisons also utilize less-intensive programs, especially for those who reside in the general population of prisoners (as opposed to higher security levels or protective custody), which may engage a prisoner up to 4 hours a day—short-term programs in which the goal is to motivate inmates to obtain addiction treatment in the community when released, that is, group and individual therapies modeled after outpatient community treatment. Twelve-step programs are generally available, although in many jails and prisons not widely so—that is, there are few meetings, and they may not be available throughout the facility. Twelve-step programs are often problematic to utilize in correctional settings because of their emphasis on openness and honesty, whereas in most other prison venues the “convict code” (“don’t rat on another inmate”) and the need for protecting oneself physically and emotionally rule inmate behavior. It is important to underscore that most correctional programming for the treatment of substance use disorders consists of self-help groups such as 12-step meetings and educational groups, rather than clinical, therapeutic, and pharmacotherapeutic interventions. Standards for the treatment of substance use disorders in correctional settings have been articulated but may not be employed. Similarly, standards for detoxification are included in these guidelines, but the availability of this care is not uniform, which unfortunately leads to morbidity and mortality in correctional settings.
In addition, there is a high rate of comorbid psychiatric illness among criminal offenders with addiction problems. However, there are few treatment programs in jails and prisons for this population. In correctional settings, there is a long history of bifurcation between the systems that address addiction problems and those that treat mental illness. The paucity of programming for comorbid conditions in part reflects this legacy. Another problem is that therapeutic communities and other residential programs in correctional settings are psychologically stressful because of their emphasis on one-to-one confrontational techniques. This makes it troublesome to tolerate, if not contraindicated, for inmates with moderate-to-severe mental illnesses. More intensive psychiatric services and modified therapeutic community techniques are necessary for this population.
Drug Courts
Drug courts have taken hold in the popular imagination: one newspaper story reported that as an addicted woman graduated from a drug court program, “Prosecutors and public defenders applauded when she was handed her certificate; a policewoman hugged her, and a child shouted triumphantly, ‘Yeah, Mamma!’ ” Although such optimism is encouraging, the drug court model deserves a rigorous evaluation. The diversion of nonviolent drug offenders to drug courts is increasingly popular and, as defined by the United States Department of Justice, “…(integrates) substance abuse treatment, sanctions, and incentives with case processing to place nonviolent drug-involved defendants in judicially supervised rehabilitation programs.”
Engendered in the late 1980s as the crack cocaine epidemic overwhelmed US jails and prisons, drug courts have evolved as collaborations between the justice system and addiction treaters—collaborations based on the ability of the two camps to speak and understand the other’s professional language. Studies reveal that the high up-front cost of drug courts often—but not always—pay off in terms of improved outcomes for addicts and benefits to society, economic and otherwise. Challenges to the drug court model include the obvious bias to help addicts who commit crimes over other addicts who do not, objections to a government mandate for participation in quasi-religious programs such as Alcoholics Anonymous, inadequate data on the overall economic benefits of drug courts, and a philosophical concern about providing punishment for relapse.
Formal drug courts first arose in Judge Stanley Goldstein’s 1989 Miami Circuit Court in response to the huge numbers of cocaine-linked offenders flooding the local jails. The prevailing ethos in the late 1980s was a simplistic response to addiction best exemplified by Nancy Reagan’s 1982 recommendation that people should “just say no” to drugs. It quickly became apparent to the court that addicted offenders responded well to the treatment services offered, and made quantifiable gains in terms of reduced criminal activity, educational strides, employment, and stabilized family interactions.
By establishing similar drug court dockets within their courts, judges around the country quickly followed Miami’s lead, integrating to various degrees drug law enforcement with addiction treatment. By 2007, all 50 states had active drug courts, with 1932 judges serving on a total of 1662 drug courts nationwide, and with 386 more drug courts in the planning stages.
The concept of therapeutic jurisprudence, which came to fruition in the late 1980s, was defined as “the study of the extent to which substantive rules, legal procedures, and the roles of lawyers and judges produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.” This paradigm shift for the legal system was matched by a similar shift in the drug treatment system, an acceptance of the role of coercion in the treatment of addicted individuals:
Addicts need not be internally motivated at the outset of treatment in order to benefit from it. Indeed, addicts who are legally pressured into treatment may outperform voluntary patients, because they are likely to stay in treatment longer and are more likely to graduate.
Unlike the judicial coercion inherent in civil commitment proceedings, entrance into a drug court system necessitates a choice by the addicted offender. He or she may choose to accept the legal consequences of the crime, a choice some make in order to avoid treatment. In many circumstances, the drug treatment entails a longer time under judicial supervision than the threatened jail sentence.
The US Government Accountability Office (GAO) conducted a 2005 meta-analysis of adult drug courts, in which they evaluated 23 programs and found demonstrable reductions in criminal recidivism, although less clear results for actual reductions in drug use. This was confirmed in a 2012 study. The GAO study clearly demonstrated the financial benefits of the drug courts. Generally, the drug court model costs substantially more than the non–drug court model. However, the authors conclude that reductions in recidivism would more than compensate for this increased up-front cost. Another study reached similar conclusions.
Sentencing in drug courts will involve orders to maintain sobriety, attend treatment and support groups, and participate in tissue screening, as well as other requirements that are essentially clinical in their thrust. Addiction specialists are often asked to evaluate criminal offenders related to such sentencing issues. As in other areas of the law that make use of the concept of therapeutic jurisprudence—mental health courts and parental psychiatric evaluation in child-custody disputes—it behooves the addiction specialist to become familiar and comfortable with the actors and institutions of the legal system.
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