Forensics

What is Civil Commitment?

Civil Commitment

• Definition 

  • individual is court ordered into mental health treatment

    • inpatient or outpatient

• Terms/procedures for civil commitment vary by state

  • 5150 (California)

  • Legal 2000, i.e. “L2K” (Nevada)

***LOOK at the pics of the form later ***

What are the pros/cons of outpatient Civil Commitment

Civil Commitment: Outpatient

• Pros

  • Less restrictive environment

  • independence

  • Better services

  • Proactive 

• Cons

  • Intrusive/coercive; population is already vulnerable

  • No true consequences for non-adherence (lacks “teeth”)

Differentiate between Competency vs. Capacity

• What is it?

• Type of Judgement?

• Determined by?

• Assumption?

Competency vs. Capacity

• COMPETENCY: 

  • Ability to decide about a specific issue/action

  • Legal judgment, not medical!

  • Determined by court system

  • All adults are presumed competent → Unless judge determines otherwise

• CAPACITY: 

  • Ability to make informed, rational decisions

  • Medical judgment, not legal!

  • Determined by physician

  • Assessment of psychological ability to understand, appreciate, manipulate information

Describe Capacity:

• Common reason for psychiatry consult: 

• Task specific

• what happens if Fail?

Capacity

• Common reason for psychiatry consult: 

  • help decide if patient has clarity to decline procedures

• Task specific

  • Must answer a question about a SPECIFIC function or decision

• If fail -> referral for competency hearing:

  • Incompetent: substitute decision maker is appointed

    • Often family member

    • Public if unavailable

Define:

• Guardian

• Advance directive

• Power of attorney

• Surrogate decision maker

• Guardian

  • Court appointed

  • For those legally determined unable to care for self

  • private or public

• Advance directive

  • Document giving instructions for when/if a person becomes incapacitated

• Power of attorney

  • Authorization to act on another person’s behalf in legal matters

  • must be specified for health care 

• Surrogate decision maker

  • i.e. Healthcare proxy

  • advocate for incompetent person

  • guardian or individual with power of attorney

List the steps to determine capacity and describe them

• MEMTIP:

How to determine Capacity: MEMTIP: CRAM

• Communication of a stable choice

• Relevant information is understood

• Appreciation of the situation

• Manipulation of information in a rational manner

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Communication of a stable choice

1. Does History/Pe indicate Pt can Communicate

   1. Yes -> proceed; No -> Surrogate/advance directive

2. PT must Communicate a CHOICE

   1. Must be Consistent

      • Can change mind; but not too rapidly

   2. Consistency can be affected by:

      • Impairment of consciousness (delirium)

      • Thought distortion (psychosis)

      • Disruption in short-term memory (dementia)

      • Severe ambivalence

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Relevant information is understood

1. Assess patient’s understanding

   1. What is your present medical condition?

   2. What problems are you having right now?

   3. What problem is bothering you most?

   4. Why are you in the hospital?

   5. Do you have [name the problem]?

2. Patient = receive/retain facts in reasonable way during decision-making process

3. NOTE: To answer these questions, pertinent facts MUST have been explained to the patient by physician

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Appreciation of the situation

1. PT must understand implications/consequences of decision

   • Significance of outcome

   • Implication of decision on future

2. Question Example:

   • What do you and your doctor think might happen if you decide to accept the recommended tx?

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Manipulation of information in a rational manner

1. Pt can assess facts -> use logic -> decision

   1. Describe logic leading to decision

   2. Even if decision = unwise; does the PT use RATIONAL PROCESSES 

   3. “Bad” judgment is a right!

2. Irrational Thought = does not imply capacity

Describe Competency

• Characteristics

• How to Assess? (3)

• Strategy?

Competency

Characteristics:

• snapshot in time

  • Evaluator’s opinion is based on presentation at time of evaluation

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How to Assess; Does the Pt…

• Understand nature of proceedings:

  • What are your charges?

  • Max/min penalty if convicted?

  • Roles of courtroom personnel?

  • Witness/evidence?

• Assist and cooperate with counsel:

  • Who is your attorney?

  • How do you feel about him/her?

  • Do you trust him/her?

• Participate in defense:

  • What pleas are available?

  • What is a plea bargain?

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Potential strategic purposes

• Delay

• Avoid bail

• Avoid expected insanity acquittal

• Seek hospitalization/mental health resources otherwise unavailable

• Obtain mental health recommendations for use in making insanity defense/plea bargaining/sentencing

Describe Competency restoration

• Pre-commitment evaluations outcomes (often in jail)

• Goal of Forensic Facility:

• Restoration treatment:

• Final result:

Competency restoration

• Pre-commitment evaluations occur (often in jail)

  • If Competent -> proceedings resume

  • If not -> suspended; defendant goes to forensic facility

• Goal of Forensic Facility:

  • Restore competency

    • NOT CURE MENTAL ILLNESS

• Restoration treatment:

  • Pharmacological treatment

  • Behavioral interventions

  • Programming/activities

  • Legal education!

• Final result:

  • Reeval:

    • Competent -> Jail

    • Not Competent + prob of restoration -> restoration cont.

    • Not competent + no prob of restoration -> proceedings dismissed (exceptions for major ones)

Describe NGRI:

• What are these rules?

  • McNaughton Rule: 

  • Durham rule: 

  • Model Penal Code (ALI)

  • Insanity Defense Reform Act 

• What are the rules now?

NGRI

• McNaughton Rule: 

  • Not knowing right from wrong

• Durham rule: 

  • unlawful act = product of mental disease/defect ”

    • i.e. “irresistible impulse” 

      • Loss of behavioral control more pronounced than cognitive impairment

• Model Penal Code (ALI)

  • Cognitive aspect satisfied if defendant lacks capacity to appreciate wrongfulness of conduct or can’t conform conduct to law

• Insanity Defense Reform Act 

  • Burden of proof shifted from prosecution to defense

  • Standard of evidence increased from “preponderance of evidence” to “clear and convincing evidence.”

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NOW:

• Resembles McNaughton Rule + : 

  • Defendant has to have severe mental illness @ time of crime

  • Defendant’s ability to control self no longer a consideration

• Most have this; some have ALI

  • EXCEPT: (Montana, Idaho, Utah, Kansas)

Describe HIPAA

• AKA

• Goals

• Examples of PHI

• What can you still do?

• Exceptions

HIPAA

AKA:

• Health Insurance Portability and Accountability Act (1996)

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Goal:

• Gives patients control over the use of their health information

• Defines boundaries for use/disclosure of health records

• Establishes national-level standards 

• Limits use of PHI and minimizes chances of inappropriate disclosure

• Strictly investigates compliance + creates accountable w/ civil or criminal penalties for violation

• Supports cause of disclosing PHI without individual consent 

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Examples of PHI:

• Details related to past, present, future conditions

• Services/treatment provided

• Payment information

• Identifying information

  • Name

  • Address

  • Social Security number

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What can you still do?

• Clinical-to-clinical communication in a patient’s interest 

• One-way conversation is acceptable

  • Ex: Receiving information from a family member without providing information

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Exceptions to confidentiality:

• Medical emergencies

• Legal actions

• Insurance billing

• Protection of vulnerable persons (children, elderly)

• Reportable infectious diseases (TB, HIV, syphilis, gonorrhea)

• Potential victims of patients (Tarasoff rule)

Describe Malpractice

• What is it?

• MC reason for psychiatrist?

• Four elements to establish malpractice?

Malpractice

• What is it?

  • Civil tort related to negligence of duty (omission/commission)

• Most common reason for psychiatrists: 

  • Suicide

• Four elements to establish malpractice:

  • Duty

  • Breach of duty

  • Damage

  • Causation (connection between breach and damage)