Psychological Injury and Law: Editorial on What Mental Health Clinicians/Practitioners Need to Know

Mental health clinicians and practitioners often deal with cases of psychological injury (e.g., PTSD, pain, TBI), but frequently remain unprepared for the intricacies of providing adequate quality of service and of potential legal challenges of such cases. The editorial lists the areas in which specified knowledge is needed in working with cases of psychological injury and the dangers of being unprepared for court. At the same time, the list constitutes guides to central topics of the journal, Psychological Injury and Law, and its parent organization, the Association for Scientific Advancement in Psychological Injury and Law (ASAPIL). Professionals in mental health should be aware of the risks inherent in working in the field, as well as remedies, such as this journal.     

'Your personality is the intervention': a grounded theory of mental health nurses’ beliefs about hope and experiences of fostering hope within a secure setting

Hope is an important factor in psychological resilience and change, and recovery from mental health difficulties. Recently, there has been an increased focus on recovery-oriented practice within forensic mental health settings. Several policies include calls for mental health practitioners to inspire hope for recovery in the individuals they work with. However, there is little suggestion of how to implement such recommendations in practice or research exploring how staff foster hope in forensic settings. This study used grounded theory to explore nurses’ perspectives and experiences of hope within a medium secure setting. A model was developed from the data that integrated nurses’ beliefs about hope, practices to develop service users’ hope and the emotional impact of this work. The nurses’ values played a significant role in their work to develop hope. Recommendations are made to help manage the emotional impact and address challenges unique to fostering hope within forensic settings.     

EMPIRICAL ANALYSIS OF REFERRAL ISSUES AND “ULTIMATE ISSUE” RECOMMENDATIONS FOR PARENTS IN CHILD PROTECTION CASES*

Mental health professionals frequently respond to requests for clinical information on parents in child protection cases; however, little data exist on the issues precipitating requests or on the controversial practice of offering “ultimate issue” recommendations in forensic clinical reports. We investigated 243 requests for clinical information on parents and 204 clinician reports submitted for use in child abuse and neglect proceedings in a large, urban juvenile court system. We coded 56 objective and qualitative characteristics regarding referral questions, pending legal issues, and four levels of recommendations. We found that the most common referral questions related to service planning, parenting ability, and/or parents' mental health functioning, and the most common pending legal issues were selection or change of a permanency goal and visitation arrangements. Levels of recommendations varied with type of legal decision, in that clinicians always offered direct recommendations for narrow, statute‐based issues (e.g., termination of rights, adoption) and less so for other issues. Community‐based evaluators were more likely to offer direct recommendations than court‐based clinicians. Based on the findings, we offer practice recommendations and directions for further research in forensic parenting assessment.     

The Hippocratic Bargain and Health Information Technology

The shift to longitudinal, comprehensive electronic health records (EHRs) means that any health care provider (e.g., dentist, pharmacist, physical therapist) or third-party user of the EHR (e.g., employer, life insurer) will be able to access much health information of questionable clinical utility and possibly of great sensitivity. Genetic test results, reproductive health, mental health, substance abuse, and domestic violence are examples of sensitive information that many patients would not want routinely available. The likely policy response is to give patients the ability to segment information in their EHRs and to sequester certain types of sensitive information, thereby limiting routine access to the totality of a patient's health record. This article explores the likely effect on the physician-patient relationship of patient-directed sequestration of sensitive health information, including the ethical and legal consequences.     

Forensic mental health assessment in France: Recommendations for quality improvement

The quality of forensic mental health assessment has been a growing concern in various countries on both sides of the Atlantic, but the legal systems are not always comparable and some aspects of forensic assessment are specific to a given country. This paper describes the legal context of forensic psychological assessment in France (i.e. pre-trial investigation phase entrusted to a judge, with mental health assessment performed by preselected professionals called “experts” in French), its advantages and its pitfalls. Forensic psychiatric or psychological assessment is often an essential and decisive element in criminal cases, but since a judiciary scandal which was made public in 2005 (the Outreau case) there has been increasing criticism from the public and the legal profession regarding the reliability of clinical conclusions. Several academic studies and a parliamentary report have highlighted various faulty aspects in both the judiciary process and the mental health assessments. The heterogeneity of expert practices in France appears to be mainly related to a lack of consensus on several core notions such as mental health diagnosis or assessment methods, poor working conditions, lack of specialized training, and insufficient familiarity with the Code of Ethics. In this article we describe and analyze the French practice of forensic psychologists and psychiatrists in criminal cases and propose steps that could be taken to improve its quality, such as setting up specialized training courses, enforcing the Code of Ethics for psychologists, and calling for consensus on diagnostic and assessment methods.     

HOW JUDGES DECIDE WHETHER SOCIAL PARENTS HAVE PARENTAL RIGHTS: A FIVE‐FACTOR TYPOLOGY

Courts have issued conflicting rulings regarding the rights (e.g., custody, visitation) and responsibilities (e.g., child support) of non‐biological gay parents. This analysis establishes a typology of five factors that most commonly influence judges' decisions. These factors include: interpretation of parenting statutes, legislative intent, parental intent, legal documents establishing parenthood, and the child's best interests. Despite these common themes, there is still much discrepancy among court rulings. Based on this analysis, there are steps parents can take to protect their legal rights and living arrangements. Finally, policy suggestions are offered for courts and lawmakers. These legal actors can take steps (e.g., clarifying statutes) that would provide certainty for families in case of parental separation or the biological parent's death.     

To recommend or not recommend: That is still the question

The boundaries around what parenting plan evaluators should and should not say in their reports to Courts has been debated in both mental health and legal circles for decades. The controversy about whether parenting plan evaluators should make specific recommendations to Courts regarding access plans and decision-making rights revolves around varied views of the limits of mental health professionals' knowledge about such matters, whether they are socio-moral or psychological in nature, and the benefits to children and society of facilitating case-resolution. In the conversation presented below a seasoned family law attorney and a psychologist who is a frequent critic of the practice of making specific recommendations debate this area of controversy.     

PARENTING COORDINATION (PC) PRACTICE: A SURVEY OF EXPERIENCED PROFESSIONALS

This study summarizes a survey of experienced North American parenting coordinators (PCs). The survey was modeled after a similar seminal study of child custody evaluators ( Keilen & Bloom, 1986 ) and seeks to establish a similar baseline standard in alternative dispute resolution (ADR) court‐sanctioned PC practices. Results reveal that PC is being practiced across North America by highly experienced practitioners that are multidisciplinary across legal and mental health professions who work by court order. These PCs work with a specific written PC agreement that specifies basis of authority, scope of authority, terms of service, retainer/fees, and grievance procedures. Results characterize PC as an increasingly established hybrid ADR court‐sanctioned role that is effective precisely because of accessibility to families, the unique knowledge base of the family law professional concerning the dynamics of divorcing families, and the court‐granted authority to help families resolve disputes that are generally more familial and psychological than legal in nature.     

“It is not my intention to be a killjoy…”: Objecting to a Licence Application—The Complainers

This paper explores the constructed nature of legal complaints through the adoption of a socio-linguistic model with an emphasis upon pragmatics and elements of conversation analysis. When making a legal complaint, we posit that there is a conflict between effective communication and the uptake of politeness strategies. Furthermore, how complaints are ??worked up?? in situ is a product of the arena in which such complaints are made. Through a textual analysis of the methods of complaining adopted by those who make representations to the licensing authority, for the purposes of objecting to a licence application, we show the tension between making oneself clear and being polite, and how complaints in different settings take different forms. We conclude by exploring the implications of our findings for legal processes??is it reasonable, for instance, to talk of ??consistency?? in testimony if each complaint is worked up in situ??and for pragmatic theory more generally, i.e the applicability of Brown and Levinson??s politeness model for legal processes.     

Evaluating the Reliability of Expert Evidence in Compensation Procedures: Are Diagnosticians Influenced by the Narrative Fallacy when Assessing the Psychological Injuries of Trauma Victims?

The current study investigated whether mental health practitioners are influenced by the narrative fallacy when assessing the psychological injuries of trauma victims. The narrative fallacy is associated with our tendency to establish logical links between different facts. In psychodiagnostic assessments, this tendency may result in overdiagnosis of mental disorders when psychological symptoms can be attributed to a traumatic event. Consequently, legal decision makers may be at risk of awarding compensation for psychological injuries which are not severe enough to justify financial reimbursement. To explore this topic, we asked Dutch mental health practitioners whether they would assign a diagnosis of mental disorder to fictitious symptoms of psychological injury. Each participant was presented with two vignettes. The first vignette described symptoms in terms of a generalized anxiety disorder; the second in terms of a major depressive episode. The vignettes varied in the cause (trauma versus cause not specified) and severity (near threshold of DSM diagnosis versus below threshold of DSM diagnosis) of the symptoms. Results indicated that participants more often assigned a diagnosis of mental disorder if the psychological symptoms had been caused by a traumatic event than if that had not been the case. Further analysis of the data suggested that this difference was due to the high numbers of assigned diagnoses of posttraumatic stress and acute stress disorder in the trauma conditions. It was speculated that participants filled in missing information to justify the assignment of such diagnoses, for example by imagining symptoms of intrusion and avoidance.     

Posttraumatic Stress Disorder: Current Concepts and Controversies

The diagnosis of posttraumatic stress disorder (PTSD) sometimes is raised in compensation claims, in tort settings, and in other medical–legal settings. Accordingly, health-care and legal professionals working in these areas need to be familiar with the current findings and controversies concerning the disorder. The purpose of this article is twofold. First, we review the most important findings concerning the clinical features, etiology, and treatment of PTSD. Second, we examine six major controversies concerning the disorder that are relevant to psychologists and other medical–legal practitioners: (a) the issue of what qualifies as a traumatic stressor, (b) the question of whether traumatic stress causes brain damage, (c) the validity of the concept of delayed-onset PTSD, (d) the recovered memory controversy, (e) the question of whether PTSD can arise when the person has no memory of the trauma (e.g., due to concussion), and (f) issues concerning PTSD malingering. Throughout this article we offer recommendations for psychological and other medical–legal practice in relation to the evaluation of PTSD claims.     

Conceptualising legal culture and lawyering stress

Recent evidence of the prevalence of stress and mental health issues among Australian lawyers has led to calls for legal culture to be changed to promote a better work–life balance and wellbeing for practitioners. Yet three decades of empirical studies in North America have shown consistently high levels of job satisfaction among lawyers. This paper investigates the role of legal culture in sustaining the paradox of satisfied lawyers under working conditions that may be conducive to stress. Drawing on Bourdieu's theory of practice and the literature on work stress, the paper conceptualises the relationships between the demand of legal work, the culture of legal practice, and lawyering stress. It concludes with a discussion of the implications of this kind of analysis for reforming the legal profession. In spite of the difficulty of cultural change, the paper argues that as consciousness is raised and the field changes, alternative models of practice will need to emerge, so that lawyering stress may become a mechanism for change not reproduction.     

Reducing medical complaints and litigation in Malaysia: turning patients' voices into opportunities

One of the most important ironies of modern health care is that public expectations are rising faster than the ability of health services to meet them. Patients nowadays no longer want to be treated as passive recipients of medical care but as co-producers or partners able to manage their illnesses. Thus, it is not surprising that poor communication and failure to take into account the patient's perspective are at the heart of most formal complaints and legal actions in Malaysia. The difficulties of existing complaint procedures in Malaysia have become manifest over the years and this has been accentuated by patients becoming more willing to challenge the decisions of medical practitioners and health service management in court. To reduce the number of complaints and risks of litigation, a more patient-centred approach should be adopted. When patients voice their concern by making a complaint or inquiry, this should be seen as a unique source of information for health care services on why adverse events occur and how to prevent them. As well as reducing future harm to patients, better management of complaints should restore trust and reduce the risk of litigation, through open communication and a commitment to learn from the problem. The existing procedures for patients to be heard in Malaysia should be reviewed and incorporate features such as responsiveness, accessibility, impartiality, simplicity, speed and accountability.     

Therapists Behind Bars: Criminalizing Gay‐to‐Straight Conversion Therapy

Conversion therapy is a practice used to “change” an individual's sexual orientation from homosexual to heterosexual. Parents who expose their child to conversion therapy drastically increase the child's likelihood of developing anxiety, depression and self‐destructive behavior. Currently, 18 states ban mental health professionals from conducting conversion therapy. However, in those states, if a mental health professional conducts the therapy, the penalty is only a relatively small fine for unprofessional conduct. Additionally, to report their therapist, victims must file a complaint, which poses difficulties for minors. This Note proposes a criminal statute for mental health professionals who conduct conversion therapy.     

Patients' rights to complain in Finnish psychiatric care: An overview

Cuts in resources for Finnish psychiatric care may jeopardize the realization of patients' rights in mental health settings. The right to complain is a basic right of all patients in Finland, and is especially important to patients treated involuntarily and also to those who have experienced coercive treatment methods during their hospitalizations. In Finland, a patient's right to complain is guaranteed by law, both in legislation and in national quality recommendations. The complaint process in Finland is very complex, and there are several ways to make a complaint that are not always familiar to patients with severe illnesses. Psychiatric patients may have cognitive impairments that make the formulation of a complaint difficult. Despite help from the patient ombudsman, unbalanced power structures in psychiatric hospitals, insufficient information and long evaluation of appeals makes the complaint process very demanding for psychiatric patients.     

ETHICAL, LEGAL, AND PROFESSIONAL PRACTICE ISSUES INVOLVED IN ACTING AS A PSYCHOLOGIST PARENT COORDINATOR IN CHILD CUSTODY CASES

The use of Psychologist Parent Coordinators in child custody cases (called Special Masters in California) is becoming increasingly prevalent across the country. This postdivorce parenting coordination role is a legal/psychological hybrid, demanding knowledge and skill in legal domains (legal procedure, relevant case law, etc.), psychological domains (child development, family systems, etc.), and dispute resolution (mediation and settlement processes). Situated in the interface of legal and psychological paradigms, Parent Coordination may be reviewed by multiple legal and psychological regulatory bodies. Coming from varying perspectives, the practice guidelines and mandates of these legal, ethical, and licensing agencies impose multiple standards of review of Parent Coordination. A brief overview of the legal and psychological review processes applicable to Special Master work in California, as they relate to common issues that confront the Parenting Coordinator across the country, is the focus of this article. They suggest that the current lack of coordination of review processes creates a minefield of professional risk for the psychologist who chooses to practice in this role.     

Law Students on Interdisciplinary,Problem‐Solving Teams: An Empirical Evaluation of Educational Outcomes at the University Of Denver's Resource Center for Separating and Divorcing Families

Models of lawyering in separation and divorce disputes are evolving to emphasize interdisciplinary collaboration, problem solving, alternative dispute resolution, and changes in legal education that reflect these changes in practice. At the University of Denver's Resource Center for Separating and Divorcing Families (Center), supervised law and mental health graduate students worked as a team to provide assessment and service planning, mediation, therapy, and agreement drafting to parents. Evaluation results showed client satisfaction, and that students acquired new knowledge, skills, and values in line with a collaborative, problem‐solving orientation. Strengths and weaknesses of the model are considered.     

Implementing the Mental Health Act 2007 in British general practice: Lessons from Ireland

Changes in mental health legislation (e.g. Mental Health Act 2007 in England and Wales, Mental Health Act 2001 in Ireland) have generally improved adherence to international human rights standards, but also present challenges to primary care providers. When mental health legislation was substantially reformed in Ireland, 62.9% of general practitioners (GPs) felt the new legislation was not user-friendly. Majorities of GPs who felt the legislation affected their practice reported increased workloads (85%) and various other difficulties (53%). GPs who had received training about the legislation were more likely to find it user-friendly (43% versus 30.9%), and informal training (e.g. from colleagues) was just as likely as formal training to be associated with a GP finding it user-friendly. With similar changes to mental health legislation being introduced in England and Wales, it is significant that informal training is just as good as formal training in helping GPs work with new mental health legislation.     

Correctional Policy for Offenders with Mental Illness: Creating a New Paradigm for Recidivism Reduction

Offenders with mental illness have attracted substantial attention over the recent years, given their prevalence and poor outcomes. A number of interventions have been developed for this population (e.g., mental health courts). They share an emphasis on one dimension as the source of the problem: mental illness. Their focus on psychiatric services may poorly match the policy goal of reducing recidivism. In this article, we use research to evaluate (a) the effectiveness of current interventions, and (b) the larger viability of psychiatric, criminological, and social psychological models of the link between mental illness and criminal justice involvement. We integrate theory and research to offer a multidimensional conceptual framework that may guide further research and the development of efficient interventions that meaningfully reduce recidivism. We hypothesize that the effect of mental illness on criminal behavior reflects moderated mediation (i.e., the effect is direct in the case of one subgroup, but fully mediated in another); and that the effect of mental illness on other “recidivism” is partially mediated by system bias and stigma. We use this framework to propose three priorities for advancing research, articulating policy, and improving practice.     

When special needs categories for exceptional students overlap mental health diagnoses: The Canadian experience and its Charter implications

This paper explores Canadian 'educational' categorical systems for special needs students and their relation to mental health diagnoses. Parents wishing to access special education services for their children are generally required to consent to their children being formally assessed. Frequently, the school board committee will require a psychological or psychiatric assessment which may lead to diagnosis of a mental health disorder that overlaps with the special needs category to which the child is assigned. This paper explores whether Canadian parents of exceptional students are in fact providing fully informed and voluntary consent given: (a) frequent parental lack of understanding of the overlap between the so-called 'educational' special needs category and a mental health diagnosis; and (b) the power of the school board to proceed with a special education placement based on a particular category even without parental agreement. The argument is made that making special education service eligibility contingent on meeting the criteria for one or more government approved categories of 'disorder' or 'impairments', some of which overlap mental health diagnoses, infringes Canadian Charter s.15 equality rights as well as s.7 liberty and security of the person rights.