Bearing Witness to Change: Forensic Psychiatry and Psychology Practice - 402

bearing witness

Bearing Witness to Change: Forensic Psychiatry and Psychology Practice                            

Ezra Griffith, Michael A. Norko, Alec Buchanan, Madelon V. Baranoski, Howard Zonana   2016    

Whilst in most Western jurisdictions forensic psychiatry and psychology has made significant contributions in advocating, resourcing, and responding to the healthcare needs of people with criminal offending behaviours and complex mental health problems, it remains a profession considered by many with some suspicion and lot of scepticism. In this context, it is a timely text to consider and contextualize the changes faced by forensic psychiatry and psychology practice in the last few decades, in search for pathways to modernize the profession.

The book is set in its objective to bring together collective reflections of a range of highly experienced professionals working at the interface of psychiatry, psychology, and the law. Although the contributors are mostly American and the book has largely North American audience in mind, it provides an overview of many challenges and forthcoming opportunities for the forensic profession that would appeal to most forensic professionals irrespective of jurisdictions.

The book is divided into four broad sections – external influences that have shaped the development of forensic practice, internal changes in the profession in its development into a mature sub-speciality, changing roles for forensic professionals in the healthcare and criminal justice systems, and developments in the practice issues.

History: The common issues of interest under medical jurisprudence of insanity as identified in the first volume of the American Journal of Insanity in mid-19th century (1844) were largely related to the court room — insanity plea in criminal cases, detention and risk, testamentary and financial capacity of mentally ill. However, even as law continues to seek forensic expertise on these issues even after 180 years, forensic professionals have expanded their role outside the courts to jails, hospitals, sexual offending, professional ethics, and academic deliberations on civil rights of mentally ill.

The book has a chapter dedicated to capture the historical context of the development of forensic treatment services in and outside prisons. The first hospital in the world to provide care to mentally ill, Hospital de los Inocentes (Hospital of the Innocents) opened in 1407 in Valencia, Spain. The historical origin in the United States, as a repository of criminals from Great Britain brought with it the problems of mental illness, homelessness, and social nuisances. Into the 19th Century, homelessness was addressed either by appointment of an Overseer for the Poor with a small budget to provide basic services, or by the lowest private bidder to the Government to provide house and feed for an individual, or establishment of private run charity houses. Inadequacy of these provisions in solving the problems of mental illness and debates about the care of mentally ill in the prisons in early 19th Century led to opening of the first free-standing psychiatric hospital in Worcester in 1833.

Further advocacy work by Dorothea Dix from 1843 and stunt by the journalist Elizabeth Cochrane Seaman, to act as a psychiatric patient and successfully getting admitted to a psychiatric institution to expose the deplorable conditions in 1887, assisted in expanding the state public hospital system. However, the social changes in the 20th Century, assisted by ECT in 1939, lithium in 1948, chlorpromazine in 1952, universal use of somatic treatments in institutions by 1960s, 1967 film, Titicut Follies, and increasing concerns about the rising costs of maintaining big asylums gave rise to the deinstitutionalization movement and launching of community mental health centre programs in 1965, thus leading to drop of inpatients by 60% between 1955 and 1980 despite 40% increase in general population.

Court rulings since 1970s on rights of the prisoners to access care, institutions to provide the ordered treatment and right to receive a professional judgement have ensured improved mental health care in prisons, which often are not held against the health care standards as applied in state run hospitals.

The profession also matured In line with the changes in the social and legal attitudes. Mid-1930s saw the beginning of certification exam in psychiatry and set up of American Board of Neurology and Psychiatry. Mid-1960s first saw a group of interested psychiatrists working in the medico-legal area coming together to form an informal training program in forensic psychiatry in a few medical schools. American Academy of Law and Psychiatry was founded in 1969. Disinterest by APA and American Board of Medical Specialities to promote further subspecialities, led to creation of an independent American Board of Forensic Psychiatry in 1976, which offered yearly certification exams. Eventually in 1992 Forensic psychiatry was included by ABMS as a recognized subspeciality in psychiatry. Since then, in sync with the changing certification standards for other medical specialities, forensic psychiatry has also refined training standards from identifying core clinical and didactic experiences, to core competencies, to ‘Milestones’ in an updated accreditation system.

(Imp: Issac Ray published Medical Jurisprudence of Insanity in 1838. First scientific meeting of the Association of Medical Superintendents of American Institutions for the Insane (later became the American Psychiatric Association) in 1844.)

In the courts: The changes in the American procedural and sentencing laws over the last few decades has witnessed rapidly established roles of forensic professionals as experts in the courts to provide testimony based on their knowledge and prepare reports to assist counsels with competency issues and sentence mitigation options. Rule 702 standardized the admissibility requirements for expert evidence under The Federal Rules of Evidence, since 1975:
A witness who is qualified by knowledge, skill, expertise, training or education, may testify in the form of an opinion or otherwise if, a)The expert’s scientific, technical, or other specialized knowledge will help the trier of the fact to understand the evidence or to determine a fact in issue; b) the testimony is based on sufficient facts or data; c) the testimony is the product of reliable principles and methods; and d) the expert has reliably applied the principles and methods to the facts of the case.

It was amended in 2000 to provide some general standards for the trial court to assess the reliability and helpfulness of the proffered expert testimony:
1) whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independently of the litigation or whether they have developed their opinions expressly for purposes of testifying”; 2) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion; 3) whether the expert has adequately accounted for obvious alternative explanations; 4) whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting”; 5) whether the field of expertise claimed by an expert is known to reach reliable results for the types of opinion the expert would give.

In hospitals, prisons, community: Forensic psychiatry’s original impetus was to develop as an expert field to work with people in contact with the criminal justice system, in the form of providing assessments, consultations, and reports. Interest in proving inpatient care or treatment was not in the original mandate of this subspeciality. It is still reflected in the limited published research in mainstream psychiatric journals about care and treatment issues related to forensic patients.

Over the last few decades, gradually expanding knowledge in the multifactorial influences on criminal behaviour has taken us past the simplistic “deinstitutionalization” hypothesis (linking increase in criminal justice contact by mentally ill population with the closure of asylums), and now accepts the complex relationship between many other social and substance use factors other than mental illness. However, the responsibility for the treatment of criminally insane is still considered as a predominantly psychiatric issue, despite the evidence that reduction of symptoms in itself has a limited effect on criminal recidivism. Given the community expectations and beliefs about mental illness, psychiatry had to develop expertise in working with forensic population in hospitals, prisons, and the community.

There has been a consistent increase in demand for forensic beds since late 1960s with the tide of deinstutionalization. Although forensic institutions have usually cared for people with severe forms of treatment-resistant mental illness and difficult to manage violent behaviours, with an emphasis on community safety and recovery before release from the hospital, there has been an increasing pressure for change of approach with the civil rights act 1980, Olmstead decision in 1999, gathering momentum of recovery-oriented practice and Recovery Movement, and changing ideology of practice and care environment consistent with trauma informed and person centred care. Olmstead vc LC decision mandated discharge of people with mental disabilities to the community as long as professionals determine community placement as appropriate, it is not opposed by the person, and placement can be reasonably accommodated.

However, the appropriate psychological treatment within the limitations of resources and institutional restrictions has presented a significant challenge for recovery in this complex group. Often group based or CBT focused treatments are preferred due to the time-limited and manualised nature of such treatments, but the target for such treatments is to enable intellectual acceptance of the crime and mental disorder and develop superficial strategies to manage day to day stress and conflicts. For many patients, this is all what they can tolerate and commit to, however, for others, where available, psychodynamic therapy has offered a deeper way to engage their curiosity into their lives and their crime, to help them discover the conscious and unconscious conflicts which contributed in the crime and the painful reality of mental illness. Therapy can play an important role in developing deeper insight than the cognitive externalization of responsibility to mental illness, and thus a more nuanced way to assess future risk and active ownership in management.

Psychodynamic concepts inform us that unresolved distress from past relationships can be re-enacted in present relationships, particularly when a relationship evokes memories of loss, trauma, dependence, vulnerability, and need for care; when these are mixed with distortions induced by mania or psychosis, it can lead to violence. We recruit psychological defences to cover up painful reality of illness or violent acts, or internal sense of loss and pain. These defences help us in maintaining internal homeostasis in face of fear and anxiety, and to contain unconscious internal aggression. Whilst failure of these defences, under intensity of illness, can lead to violence, re-establishing of these defences may give a perception of recovery. However, it remains vulnerable to the coming together of triggers in the future. Psychodynamic psychotherapy offers help in understanding the defensive structure of the patient, explore the impact of trauma and loss on the development of mental functioning and interpersonal relationships, and offer an improved sense of agency and coherent autobiographical understanding.

For the patients who are unable to tolerate the emotional demand of insight developing therapies, can benefit with the recent developments in behavioural focused programs in forensic settings. The behaviour model of aggression considers the maladaptive behaviour a result of interaction between internal factors, external environmental factors, interpersonal interactional factors, and socio-cultural factors; thus, restraint, seclusion, or PRN use does not result in the desired long term modification in such behaviours. Instead, a behavioural analysis of problem behaviour – setting events and vulnerabilities as the context of behaviour / antecedents and triggers for the behaviour / precursor behaviours the actual problem behaviour / consequences and the response – provides the important information to then consider the appropriate behavioural intervention – environment change, differential reinforcement of alternative adaptive behaviours, token economies to promote prosocial behaviour by offering rewards, or the loss of positive reinforcement when maladaptive behaviour occurs.

Cognitive-behavioural approaches are effective in modifying behaviours, and recent development of group based programs such as DBT, Schema focused therapy, or brief behavioural activation are easier to implement in resource poor settings. Positive Behavioral Support model is a comprehensive approach that incorporates the science of applied behavioural analysis, and promotes proactive and data-driven strategies based on comprehensive assessment of an individual and environment ( It is based on the last two decades of research. It views behaviours as goal-directed and interconnected with physiology, situation, cultural and institutional factors, cognitions and feelings; thus, behaviour as having a distinct and important function, which may have an adaptive function at the start, but overtime has become maladaptive. It has a number of integral components to address individual and system factors, with emphasis on proactive rather than reactive interventions.

Along with the development in the professional therapies, there has been increasing recognition of the role of peer support in mental health as part of the recovery movement since early 1990s. However, peer involvement in forensic, similar to the challenges in integrating mainstream concepts of recovery, is still a controversial area with limited progress made so far. Although forensic peer support can help with instilling hope, providing role modelling, and support with the step of re-integration in the community, the unique challenges in forensic are in defining boundaries around the peer work in secure settings, differences in power and priviledges between professionals and peers, and the socio-cultural influences of fear and control. The chapter on merits and barriers to peer support in forensic notes examples of forensic peer training programs, intervention program, and success with leadership involvement.

Once discharged in the community, there are two main models for managing forensic patients with needed expertise of forensic clinicians – parallel and integrated models. For any service the initial challenge is to define the target population in need for expert forensic input – whether only those referred by a criminal justice agency and with ongoing legal oversight? Only with serious mental illness? Any discrimination on the basis of criminal offences? Andrews and Bonta’s Risk-Need-Responsivity approach emphasizes on individual treatment needs, thus selecting the group at the intersection of violence risk and mental illness in addition to those at the intersection of criminal justice involvement and mental illness. This expands the application of forensic expertise to a much broader group based on the need as assessed by psychiatric clinicians. Forensic treatment programs offer psychotherapy, medication, case management, housing, vocational supports, along with specialized approaches to address ‘anti-social’ cognitions with programs like Modified Reasoning and Rehabilitation (R&R2M), Moral Reconation Therapy (MRT), and programs for modulation of affect and impulsivity. It also provides active focus of staff wellbeing through supervision and reflective practice groups. Integrated forensic expertise can help with clinician attitudes towards forensic patients, convert leveraged care (ordered by law) into a therapeutic approach, successfully collaborate with the criminal justice agency, and achieve balance between patient’s choice and public safety. Future of community forensic care will have to invest in additional research into treatment efficacy, involve dynamic risk assessment as standard of care, include modified principles of the recovery movement, consider development of forensic peer services, work on reducing the stigma of mental illness, and make stronger presence in training and education programs for future psychiatric clinicians.

Forensic expertise in the area of deviant sexual behaviours is another expanding domain at the intersection of public safety, law, and medical expertise. Last few decades have seen significant developments in assessing paraphilic disorders, diagnosis, treatment, and risk assessment. Richard von Krafft-Ebing (German psychiatrist) first published a treatise on human perversions – Psychopathia Sexualis – in late 19th century. It was fist included in DSM in 1952 under “personality disorders and certain other nonpsychotic mental conditions”, before evolving into a more distinct category in DSM-III under ‘Paraphilias” as part of “Psychosexual disorders”. DSM-IV moved paraphilias under “Sexual and Gender Identity Disorders”, with six months duration of “recurrent, intense sexually arousing fantasies, sexual urges, or behaviours” with associated impairment. DSM-5 has given its own separate heading “Paraphilic Disorders”, with a significant distinction between paraphilia and paraphilic disorders. It is usually separated based on abnormal activity preference – voyeurism, exhibitionism, frotteurism, sadism, masochism – or abnormal target preference – paedophilia, zoophilia, fetishism, transvestism. Voyeurism is the most common (12-4%), paedophilia (3-5%), exhibitionism (2-4%), sadism (2-30%). Zoophilia, although rare, is associated with the highest crossover paraphilic behaviours. Assessment may include, other that comprehensive psychosexual history, physiological measures as penile plethysmography (changes in penile tumescence in response to sexual interest) and Abel Assessment of Sexual Interest (visual reaction time to assess sexual interest). Common actuarial risk prediction tools for sexual recidivism are VRAG and SORAG (both incorporates PCL-R, the Cormier-Lang Criminal History Score for Violent and Non-Violent offences, and DSM diagnosis). Other tools include STATIC-99, STATIS-2002, Minnesota Sex Offender Screening Tool, and Sexual Violence Risk -20. Regarding recidivism, strongest predictors include sexual deviancy and antisocial orientation (meta-analysis by Hanson and Morton-Bourgon 2005). There is also recent evidence of possible clustering of sexual offending in families. Treatment without impairment or distress is not indicated. Effective pharmacological agents include SSRI, MPA, CPA, or LHRH. Recent guidelines for the biological treatment of Paraphilias by the World Federation of Societies of biological psychiatry (2010) gives useful algorithm. CBT based group therapies and psychosocial support are also found to be effective. Studies indicate effectiveness of treatment, support the idea that paedophilic interests can change over time and differ from sexual orientation, and risk of recidivism can decline the longer a sex offender remains offence free in the community. Courts often rely on assessment by Forensic clinicians for diagnosis and risk assessments, and in some cases for preventative detention. Ongoing challenges for clinicians are in obtaining informed consent for the assessment, distinction between clinical and forensic implication of the diagnosis (interest in child pornography may benefit with clinical intervention, but diagnosing it as paraphilic disorder may have significant legal implications), and the issues of validity and reliability of DSM diagnosis in establishing whether an offender presents with a mental abnormality or personality disorder, which often is the essential requirement for any legal proceedings.

In healthcare systems: Forensic psychiatry has traditionally focused on public safety by ensuring containment and adequate treatment for mentally ill. However, there is a growing awareness that the profession needs to also play an active role in creating more just and inclusive society by engaging in dialogue around political, social, and economic determinants of health and illness. The book includes a successful model in the state of Connecticut that has over the last two decades worked to bring together mental health and addiction services with recovery oriented models in the community involving combination of care management, peer support, assertive outreach, and case management. Like in the United States, high rates of mental illness and substance use among prisoners in Australia, creates at least three distinct groups with mental health care needs in the prison – only with mental illness, with mental illness and substance use, and only with substance use – with high rates of recidivism and re-incarceration. Untreated mental illness and active addiction are significant barriers to community re-integration. Funding is often targeted at the acute services for mental illness and detoxification, whilst ongoing issues of social discrimination, housing, poverty, and unemployment continue to perpetuate mental health and substance use problems. Alternative use of limited funding for social programs for criminals can focus on low-cost outpatient and rehabilitation services and community-based recovery supports addressing the social determinants of ill-health and crime. Sequential Intercept Model as proposed in 2006 by Munetz and Griffin provides a map of how people with mental illness come in contact with criminal justice system and various junctures where they can be identified for specific mental health and substance use interventions. Evidence that punishment and deterrence-based approaches have little impact on recidivism, and community based healthcare approaches can be more successful and cost-effective than treatment in incarcerated settings do implore Forensic psychiatry to shift its focus from containment and control in the service of public safety, to building services to be recovery and citizenship-oriented. However, this shift would have to also address other politico-economic impediments as different funding sources for correctional based healthcare and community healthcare, cross-system collaborations, and partnerships across agencies and stakeholders.

Forensic psychiatry (including psychology and social work) has played an important role in creating new pathways for people with mental illness who encountered the legal system. A multidisciplinary partnership at the interface between systems – mental health, law enforcement, and justice. Whilst progressive policies of deinsutionalization and recovery movement have provided opportunity for community living, it has also created a treatment gap for people who lack insight into their need for treatment or are too disorganized to access resources. Contact with the legal system can be an opportunity to link back into treatment. Steadman and others, through their work in establishing the National Coalition for the Mentally Ill in the Criminal Justice System in 1991, came up with the concept of Boundary Spanners — people who understood the different systems involved and were seen as insiders by all systems. Specialized courts including family courts, community courts, drug courts, domestic violence courts, and specialized mental health courts have been formed in various jurisdictions, whilst others have considered options like court supervised diversion programs or the Sequential Intercept model of mental health system diversion (outreach and engagement program for persons after arrest or any point of their involvement with the criminal justice system; run by mental health system, not the court employees; discuss treatment options and seeks consent, to provide a viable alternative to the courts). There are other programs which offer diversion options even at the initial contact with the criminal justice system, include community policing, pre-booking diversion (someone with untreated mental illness at high risk of offending), and Police-initiated diversion. Forensic psychiatry can play an important role as a boundary spanner as an evaluator and consultant to highlight issues like how to evaluate success of such diversion programs, complex dynamics in failed cases, right to refuse the treatment, importance of comprehensive information in the busy justice system, ethical issues about confidentiality and role diffusion.

Forensic Psychiatry Ethics: Complex challenges for forensic psychiatry in attempting to balance the legal issues, stakeholders, and the impact of psychiatric medicine on personal autonomy and personal safety. While law presumes every man to be sane, competent and accountable, psychiatry considers influence of mental illness on people’s will, choice, and judgement to be on a continuum. Tension of values in balancing of community safety and person’s liberty; tension between professions of judges and psychiatrists in their risk analyses; tensions of strategy between who weight actuarial and clinical factors differently. Ethical principles – underlying value system, whether medical or legal. Seymour Pollack (founder of AAPL) considered the ultimate legal objective of Forensic consultation as justice, rather than therapeutic objective. Paul Appelbaum (1997), agreed with Pollack’s position and proposed justice and truth-telling (beneficence) as the primary ethical principles, with the protective value of respect for the person. Truth encompassed the subjective truth of the professional’s opinion and the objective truth of the forensic literature. This view became the prominent framework for a generation of forensic professionals, but had limitation outside of expert evidence work. Griffith (1998) argued for the cultural influence on forensic work and introduced the cultural formulation tool to discern the cultural bias. Candilis and Martinez introduced ‘robust professionalism’ (2006), as a term to join traditional principles of medical ethics to the narrative context of forensic practice. Norko (2005) argued for compassion for a fellow man as a foundation ethical tenet. Alec Buchanan (2014) likewise argued for respect for the dignity of individuals as a primary guiding principle (principles as the basic theoretical framework, professional identity as the role in the system, and professionalism as how the professional carries out the role informed by the principles. For forensic clinician, professional identity could be confused, whether a medical professional or an agent of the law?)

The complexity of conflicting roles that forensic psychiatrists are asked to perform interacting with the criminal justice system is highlighted in the issues relating to preventative detention and therapeutic jurisprudence (study of the effects of law and the legal system on the behaviour, emotions, and mental health of people. A multidisciplinary examination of how law and mental health interacts). Whilst psychiatrists are called to exert their skills in selecting people at risk of presenting repeated threat to the community, the infrequency, randomness, and low base rate of really serious offences raises ethical issues in curtailing individual’s freedom on the basis of imperfect prediction tools. Psychiatry’s involvement in the issues related to public safety are undermined by the high false positive rates of current prediction tools, limitation of resources to provide long-term inpatient care, and the history of past abuses in long term institutional settings. The key issue related to psychiatry’s involvement in the public safety is whether long-term detention is in the interest of patient – it is debatable.

Narrative and Performance in Forensic Psychiatry: How should a forensic specialist present the required written or oral information to the varied audience, within the ethical framework, whilst also being aware of the potential subjective bias, partisanship, and the effect of the local culture. It proposes to consider forensic evaluation and oral and written communication as performative narrative. Realise the connection of narrative and performance to specific domains of forensic work. The concept of portraiture helps in capturing the nuances of human experience, as shaped by the context, and giving voice to this experience, either as a witness, interpreter, or preoccupation. This provides an alternative to the empirical description shaped by legal parameters, to be used for some legal purpose. Forensic evaluation should encourage the evaluee to present a complete story of involvement with the legal system, and the evaluator should become the voice of a narrator to carry out the meaning-making in a balanced way, thus making humility and compassion as the founding stones of forensic ethics. Narrative approach also encourages the specialist to observe – how and when do we know that our story, in which we report that an event has taken place, does not make sense? Gutheil paralleled court proceedings to that of a theatre, and expert’s oral presentation should convey the drama in the language level of the audience. Presenter’s dress, demeanour, and body language are all part of the performance task. Bank attempted to capture this in his ‘courtroom communications model’. Narrative as a specific linguistic technique to report past events in a profound interactive way to an audience, by setting up a hierarchy of reportable events and making a choice on its importance so as to direct audience’s attention to the best narrative. Credibility of the narrator depends on the extent to which audience believes his narrative. Credibility can be enhanced by focusing on the key question of ‘ how did that happen?’ thus developing a theory of causality. Reports of objective events and reports of third-person version adds to the credibility. It highlights the difference between traditional, structural approach to narrative (Labov) and pragmatic, performance-based approach (Bamberg; Lanellier), and their relevance to forensic work. It also points out the inevitable ‘point of view’ of the narrator, which makes the narrative almost always a way of working on the listener or reader, as much as a way of working on the story events by choosing to exaggerate or diminish aspects of factual truth. Thus, it should always be consciously rooted in strong ethical ground.

New emerging areas: With the changing geopolitical reality of the 21st century world, economic and safety priorities, and terrorist activities, there is a worldwide flux of people crossing borders. This has opened new opportunities for forensic professionals to assist immigration legal teams for mental health assessments in asylum claims, treatment recommendations, and consultations for legal professionals. The book describes one such model of collaboration in asylum seekers’ cases.

Shortcoming of the book: does not cover forensic psychiatry’s excursions in civil and work related injury and compensations litigations.