From impartial expert to adversary in the wake of Ake

In deciding Ake v. Oklahoma, the Supreme Court held that, when defendants demonstrate that their sanity is likely to be a significant factor at trial, the State must assure them access to a competent psychiatrist who will not only examine them but also render other assistance to the defense. There have been 28 known subsequent decisions in which appellate courts have ruled on the validity of Ake-based claims; in only four did the defendant prevail. The case nonetheless raises issues relative to the proper role of the psychiatric expert. The Supreme Court's decisions, although not introducing a new ethical topic, appear to be favoring a more adversarial posture, at least within certain parameters. I suggest that impartiality, independence, and advocacy need not be mutually exclusive concepts and that some of our traditional beliefs about what part we should play in criminal law may have to be modified and expanded.     

Pathological gambling and criminal responsibility

There exists significant interdisciplinary support for eliminating the volitional component of the insanity defense. Somewhat in contrast to this trend is the presentation of pathological gambling as a potentially exculpatory condition in criminal trials. The authors discuss three federal appellate court decisions on this attempted inappropriate usage of psychiatric diagnostic nomenclature. All have upheld convictions, and thereby rejected contentions that such an impulse disorder can form the basis for a valid plea of lack of criminal responsibility. It is suggested that the public interest will be served by statutorily making disturbances of behavioral control insufficient to raise a defense of insanity.     

Incompetent misdemeanants--pseudocivil commitment

Prior to Jackson v. Indiana, psychiatric hospitalization of those found to be incompetent to stand trial often led to an inordinately long confinement, a particularly invidious consequence if the patient had been accused only of a misdemeanor. After a highly publicized murder perpetrated by a patient originally in this category, New York State instituted a rather cumbersome set of procedures designed to assure several layers of review, including involvement of the legal system, prior to increasing privileges or discharging someone committed pursuant to a criminal court order. The effect of this new law on patient care is examined by looking at the hospital course of 52 incompetent misdemeanants at one state facility. They are demographically and clinically quite similar to a control group of persons civilly committed, except for an increased length of inpatient stay. When compared with those sent to the county penitentiary after conviction, the study population differs on several important parameters. Looking like a patient, the incompetent misdemeanant is, however, treated more as a criminal with no indication that public safety is thereby increased or that individual therapeutic objectives are enhanced.     

The presence of counsel at forensic psychiatric examinations

In virtually all situations involving forensic psychiatric assessments, the patient is represented by counsel. But does this fact entitle the lawyer to be present at the clinical evaluation? In a series of New York cases spanning a generation, judges have allowed presence of counsel at the psychiatric examination. The most common reason given for such a conclusion is to assure better cross-examination of the expert witness. Psychiatric evaluations mandated by law necessitate several guidelines different from those of the usual doctor/patient relationship. While we may have to accept the presence of attorneys in our consulting rooms, they should be observers only. To allow active intervention would distort the clinical process.     

Characteristics of assaultive patients with schizophrenia versus personality disorder: six year analysis of the Assaulted Staff Action Program (ASAP)

Literature reviews of individual assaultive patients, repetitively violent patients, and restrained assaultive patients document that persons diagnosed with schizophrenia or personality disorder are at the highest risk to become assaultive. While there has been some initial research of possible predictor variables across diagnostic groups, this six-year retrospective study is the first to compare only persons with schizophrenia or personality disorder on basic demographic and the selected clinical variables of history of violence, personal victimization, and substance use disorder. In this study, the variance suggested that persons with schizophrenia and personality disorder were both likely to be assaultive. Assaults by persons with schizophrenia were somewhat proportional to their presence in the population studied. However, personality disordered patients represented a disproportional increase from the population studied. Younger females with a diagnosis of personality disorder and with histories of violence toward others and personal victimization appeared at increased risk to be assaultive and to require restraints. The findings and their implications for safety and clinical care are discussed.