Clinical Handbook of Psychiatry and the Law (CLINICAL HANDBOOK OF PSYCHIATRY & THE LAW

336 Pages·2006·1.332 MB·English

by  Paul S. Appelbaum MD, Thomas G. Gutheil MD

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FOURTH EDITION
CLINICAL HANDBOOK OF
PSYCHIATRY
& the LAW
Paul S. Appelbaum, M.D.
Professor of Psychiatry
Director, Division of Psychiatry, Law, and Ethics
Department of Psychiatry
Columbia University College of Physicians and Surgeons
New York, New York
Thomas G. Gutheil, M.D.
Professor of Psychiatry
Department of Psychiatry
Beth Israel Deaconess Medical Center
Harvard Medical School
Boston, Massachusetts
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Library of Congress Cataloging-in-Publication Data
Appelbaum, Paul S.
Clinical handbook of psychiatry & the law / Paul S. Appelbaum, Thomas G. Gutheil.—4th ed.
p. ; cm.
Rev. ed. of: Clinical handbook of psychiatry and the law / Thomas G. Gutheil, Paul S.
Appelbaum. 3rd ed. c2000.
Includes bibliographical references and index.
ISBN-13: 978-0-7817-7891-6
ISBN-10: 0-7817-7891-3
1. Psychiatrists—Legal status, laws, etc.—United States. 2. Forensic psychiatry—
United States. 3. Psychotherapist and patient—United States. I. Gutheil, Thomas G. II.
Gutheil, Thomas G. Clinical handbook of psychiatry and the law. III. Title. IV. Title:
Clinical handbook of psychiatry and the law.
[DNLM: 1. Forensic Psychiatry. W 740 A646c 2007]
KF2910.P75G87 2007
344.7304'1—dc22
2006031593
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Dedication
To our students and colleagues
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About the Authors
Paul S. Appelbaum, M.D., is one of the country’s leading experts on psychiatry and law. He is
Professor and Director, Division of Psychiatry, Law and Ethics, Department of Psychiatry,
Columbia University College of Physicians and Surgeons. Previously, he served as the A.F.
Zeleznik Professor and Chair, Department of Psychiatry, University of Massachusetts Medical
School. Dr. Appelbaum lectures widely on legal and ethical issues in psychiatry, both in the United
States and overseas, and serves frequently as a consultant to clinicians, lawyers, policy makers and
the media. He is a graduate of Columbia College and Harvard Medical School.
Dr. Appelbaum is past president of the American Psychiatric Association (APA), former chair
of APA’s Commission on Judicial Action, and current chair of APA’s Council on Psychiatry and
Law. He is also a former president of the American Academy of Psychiatry and the Law (AAPL),
and of the Massachusetts Psychiatric Society. As a member of the MacArthur Foundation Research
Network on Mental Health and the Law, he conducted pathbreaking research on violence and mental
illness, and on the assessment of decision-making capacity. He is currently a member of the
MacArthur’s Research Network on Mandatory Outpatient Treatment, studying the use of leverage
to achieve compliance in community settings. He was the Fritz Redlich Fellow at the Center for
Advanced Studies in the Behavioral Sciences, and has been elected to the Institute of Medicine of
the National Academy of Sciences.
Author of many research studies, theoretical articles and books, Dr. Appelbaum is a four-time
winner of the Manfred S. Guttmacher Award of APA and AAPL for outstanding contributions to
the literature of forensic psychiatry. His award-winning books, in addition to this one, include
Almost a Revolution: Mental Health Law and the Limits of Change (1994), Assessing Competence
to Consent to Treatment (1998) (with Thomas Grisso), and Rethinking Risk Assessment (2001)
(with several co-authors). He is a recipient of APA’s Isaac Ray Award for outstanding contributions
to forensic psychiatry and the psychiatric aspects of jurisprudence, the Philippe Pinel Award of the
International Academy of Law and Mental Health, and the Seymour Pollack Award of AAPL for
distinguished contributions to forensic psychiatry.
Thomas G. Gutheil, M.D.,is Professor of Psychiatry at the Harvard Medical School. He has
been associated with the Massachusetts Mental Health Center, Boston, for more than a third of
a century and has served as a staff member there for 33 years. A nationally known teacher, lecturer,
author, and consultant on medicolegal issues, risk management, and malpractice prevention,
Dr. Gutheil is the first Professor of Psychiatry in the history of the Harvard Medical School to be
board-certified in both general and forensic psychiatry.
Dr. Gutheil is a graduate of Harvard College and Harvard Medical School. He is currently
Assistant Director of Medical Student Training and Co-Founder of the Program in Psychiatry and the
Law, Department of Psychiatry, Beth Israel Deaconess Medical Center, Harvard Medical School. He
is also former Visiting Lecturer, Harvard Law School; Lecturer in Psychiatry, Tufts Medical School;
President, Law & Psychiatry Resource Center; former Special Consultant to the Risk Management
Foundation of the Harvard Medical Institutions; Past President, American Academy of Psychiatry
and the Law; and Affiliate Member, Boston Psychoanalytic Society and Institute.
Dr. Gutheil served as an American Psychiatric Association delegate to the American Bar
Association’s Task Force on the insanity defense. In addition, he has served as consultant to the
American Bar Association’s Task Force on Competence to be Executed and as Special Consultant
to the Department of Justice of the Federal Government of Canada. As a twice-board-certified
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About the Authors v
Forensic Psychiatrist, he has served as consultant or expert witness on cases in 44 states.
Dr. Gutheil received the Seymour Pollack Award and the 2005 Golden Apple Award from the
American Academy of Psychiatry and Law for distinguished contributions to the teaching of foren-
sic psychiatry; and the “Teacher of the Year” Award from Continuing Medical Education and the
Psychiatric Times. He received the 1997 Prix Philippe Pinel from the International Academy of
Law and Mental Health for significant contributions to teaching and research in legal psychiatry
and the 2000 Isaac Ray Award from the American Psychiatric Association for outstanding contri-
butions to forensic psychiatry and the psychiatric aspects of jurisprudence. Dr. Gutheil was listed
in the 1994 and 2005 editions of Best Doctors in America for forensic psychiatry and has been
elected a Distinguished Fellow of the American Psychiatric Association. He is the author or
co-author of more than 200 articles, books, and book chapters in the national and international
clinical and forensic literature as well as several teaching audiotapes and videotapes. He is a
three-time winner of the Manfred S. Guttmacher Award for outstanding contributions to the
forensic psychiatric literature. Dr. Gutheil lives and works in the Boston area.
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Preface
In an era in which the pace of change in every aspect of life seems to be accelerating, the field of
psychiatry and law is no exception. Since the first edition of this book won the Manfred
S. Guttmacher Award of the American Psychiatric Association and the American Academy of
Psychiatry and the Law, we have been committed to bringing clinicians the most up-to-date guid-
ance possible on how law affects clinical practice, and how psychiatry can contribute to the law.
This fourth edition is the latest result of that commitment.
The third edition of the Clinical Handbook was written just before the start of the new millen-
nium. Since then, federal regulation has brought substantial changes in clinicians’obligations to
protect the privacy of patients’medical information, at the same time as the spread of electronic
information technology has created unprecedented threats to confidentiality. New data and new
approaches to the assessment of decisional capacity and of violence risk have brought increased
empirical rigor to areas previously dominated by clinical impressions. Outpatient commitment is
increasingly common across the country. Attitudes toward seclusion and restraint and new regula-
tions have moved strongly in the direction of minimizing use and seeking alternative means of con-
trolling violence. The steady stream of new medications for psychiatric disorders, and the often-
conflicting data on their use, have created new liability risks for psychiatrists and underscored the
important role of informed consent. Expert witnesses, not previously accustomed to thinking of the
potential for liability from their activities, have had to face greater scrutiny from ethics commit-
tees, licensure boards, and the courts.
All these developments and others as well are reflected in this updated edition. The acclaimed
format of the earlier editions remains intact. Even as many new references have been added to the
lists at the end of each chapter, we have tried to retain those classic citations that remain timely
even today. In sum, we hope that this fourth edition of the Clinical Handbook of Psychiatry & the
Lawwill offer to clinicians of all disciplines the same caliber of information, guidance, and clinical
wisdom that ensured the popularity of its predecessors.
Paul S. Appelbaum, M.D.
Thomas G. Gutheil, M.D.
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How to Use This Book
“I’m a clinician, not a lawyer. All I want to do is help people. Why doesn’t the law just let me do
my job?”
This plaintive cry of the clinician, which can be heard these days echoing down hospital corridors,
through the recesses of private offices, and in the interview rooms of outpatient clinics, expresses
the raison d’êtreof this book. Decry it as they may, mental health professionals of every theoretical
orientation and in all types of practice settings can no longer afford to be ignorant of the law. Court
decisions, statutes, and administrative regulations have so affected clinical practice that few every-
day decisions can be made without awareness of the legal rules governing such actions and, equally
important, of the effect that those rules may have on the treatment of the patient.
The problems that arise from this situation are generically different from those with which cli-
nicians (or lawyers) have been accustomed to dealing in the past. Rather than facing a dilemma that
comes clearly labeled as “clinical” or “legal,” clinicians now frequently confront problems in which
the clinical and legal aspects are so intertwined that they seem nearly inseparable; neither the lawyer
nor the clinician, using only the tools of his primary discipline, can take fully into account the com-
plexities of such a situation. Only with an understanding that passes freely across disciplinary
boundaries can one perceive the relation between the components of the problem and anticipate the
impact on the problem as a whole of an intervention in either the legal or the clinical realm.
Of course, the ideal solution to the needs created by this radical change in the requirements for
clinical practice would be for every clinician to have available for consultation an expert in legal
psychiatry whose knowledge encompasses both worlds. Although such experts have assumed con-
sultants’roles in some of our larger psychiatric teaching centers, there are too few of these indi-
viduals to make the goal of easy access for every clinician a realizable one.
We hope that this book provides the next-best alternative: a manual for ready reference that
will become the point of departure when questions arise about the impact of law or regulation
on the daily practice of psychiatric and psychological care. Mental health clinicians from all dis-
ciplines and from every level of training will find this work designed to respond to the questions
both complex and mundane that develop in the customary course of practice. Psychiatrists who
are unfamiliar with the area will find this handbook a useful study aid in preparation for the
forensic psychiatry sections of the specialty board examinations. Lawyers and law students who
want to understand—from the critical perspective of the clinician—the issues in mental health
law will also be able to begin their researches here.
It is the firm conviction of the authors that textbooks or reference works that attempt to divorce
the legal from the clinical, as so many do, are bound to fail to be handy tools for the clinician who
must, of necessity, relate everyaspect of her work to its effect on patient care. Likewise, works that
try to impart only a dry list of legal rules for the clinician to memorize and obey, without convey-
ing an understanding of, or an appreciation for, the legal reasoning that underlies them, will be
equally unsuccessful; legal rules apply only to a unique factual situation and often survive only
until the next court ruling or session of the legislature. The clinician who is able to understand the
basis for the rule will, on the other hand, be able to apply the basic concepts to unfamiliar cir-
cumstances and, when the law changes, to follow knowingly its evolution. Hence, this book con-
sistently strives to accomplish two ends: (1) always to interrelate the legal and the clinical aspects
of an issue; and (2) to convey whenever possible something of the history of the law’s approach to
viii
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How to Use This Book ix
a problem, in the recognition that today’s rule is in most cases merely the most recent unstable
equilibrium that the historically contending sides of the argument have attained.
A word is in order, too, about what this book is not.It is most emphatically not designed to give
legal advice or to take the place of a consultation with a competent attorney. Rather, the informa-
tion contained herein will help the clinician decide when to contact an attorney (and describe how
to avoid coming to the pass where that becomes a necessary step). In addition, because the com-
ments one elicits from an attorney are commonly as cryptic as those from one’s physician, this
book should help the clinician understand the basis for the legal advice he receives.
This is not, moreover, a comprehensive textbook of psychiatry and law. Not only would a work
of that magnitude require several times the bulk of this volume, but in consequence, it would be
so unwieldy as to frustrate the busy clinician in search of an accessible and easily understandable
explanation. For similar reasons of convenience, we have chosen not to burden the reader with a
profusion of footnotes. Instead, each chapter concludes with a representative bibliography, which
provides a way to investigate in greater depth.
Finally, the clinician will not find enumerated in this work the particular details of law and reg-
ulation that govern practice in the 51 diverse jurisdictions of this nation. Even had we attempted
such a task, the rapid changes of case law and statute would have made the work outdated before
it reached the reader’s hand. For specific features of the laws that govern their work, all clinicians
should become familiar with the applicable statutes and regulations in their jurisdictions. Statutes
and regulations are easily available online today, from federal and state government websites and
a number of private services. These materials often appear unnecessarily intimidating to the non-
lawyer but can yield much useful information if used as one would any other reference work: care-
fully locating the information desired in the index (e.g., mental health law, psychotherapist-patient
privilege) and reading the relevant statutes or regulations. An alternative is to contact the local
branch of the professional organization for each of the mental health disciplines to ask for their
guidance in comprehending the implications of the appropriate laws.
Now, something about the format of this work. Because most mental health clinicians need both
to acquire a basic overview of legal issues in their work and to have a ready reference when future
questions arise, this handbook has been designed with both purposes in mind. Those with little
background in the field will want to read it through to acquaint themselves with the basic issues.
Then, as needed, they can use the detailed table of contents of each chapter, with their numerous
subheadings, and the frequent cross-references in the text to locate rapidly the information that
they need.
Each chapter is divided into seven sections:
I. CASE EXAMPLES
These case summaries open each chapter on a clinical footing and attempt to frame the legal and clin-
ical issues that will be discussed. Based on real (but thoroughly disguised) cases from the authors’
consultative and supervisory experience, they are presented in two parts, this first part intended to
give the reader a chance to think through the issues for himself before grappling with the solutions
posed by the collective experience of the legal and mental health systems in the epilogue.
II. LEGAL ISSUES
This section reviews, highlights, and interprets the most important legal cases and statutes, while
always attempting to convey the rationale that underlies the law’s approach. Historical, ethical, and
philosophical perspectives are also offered. Emphasis is placed on those legal issues most directly
related to everyday clinical work, but special situations, such as criminal forensic evaluations, are
covered as well.
III. CLINICAL ISSUES
In recognition of the impact of abstract legal doctrines on actual clinical practice and on the sub-
jective experience of the patient, this section describes these effects and outlines practical means
of coping with them within the treatment context. Also addressed are the clinical issues involved
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x How to Use This Book
in more traditional forensic work, including evaluations performed for the courts, as well as the
clinical effects of a variety of legal procedures.
IV. PITFALLS
The pitfalls section of each chapter addresses the psychological difficulties that clinicians face in
attempting to deal with problems of a mixed clinical and legal nature. Although the dynamic psy-
chiatrist might label these pitfalls as manifestations of the counter-transference, they represent
obstacles to good patient care about which all clinicians, regardless of theoretical orientation,
should be aware.
V. CASE EXAMPLE EPILOGUES
Integrating the material contained in the preceding sections, these follow-ups return to the cases
described at the beginning of the chapter and outline their resolution. They also serve as a handy
self-assessment of the reader’s understanding of the chapter.
VI. ACTION GUIDE
A unique operational summary of the chapter, the Action Guide places the elements discussed in
the chapter into a condensed, action-oriented framework. It serves both as a quick-reference out-
line for appropriate responses to clinical-legal dilemmas and as a means for rapid review of the
material in each chapter.
VII. SUGGESTED READINGS
Each chapter is followed by a selection from the most notable, provocative, and useful articles
and books on the topic, designed to serve as an entry point into the literature for clinicians and
lawyers alike.
It is our hope that this book will contribute to increased mutual understanding on the part of
both the clinical and legal disciplines, whose respective representatives differ from their counter-
parts only in having undergone a different kind of professional training. That understanding is
indispensable to a reconciliation between the legal and mental health systems that would permit
the realization of the legitimate goals of each without negating the ends of the other; it should be
apparent that only a sympathetic understanding of both traditions of caring for and about people
will lead to the attainment of this reconciliation.
Paul S. Appelbaum, M.D.
Thomas G. Gutheil, M.D.