Chapter 11

Difficulties in Assessing Dangerousness

- Clinicians who attempt to answer these questions perform risk assessments; using the best available data and research, they try to predict which persons are and which are not likely to behave violently in certain circumstances, give some estimate of the risk for violence, and offer suggestions on how to reduce the risk -The base rate of violence in some groups is low, so clinicians are being asked to predict a phenomenon that rarely occurs. The clinical assessments of persons assessed for violence risk are often conducted in hospitals or prisons, whereas the environment where violence is being predicted is the community. The predictions have often been for long-term risk, which is harder to predict than violence risk over a shorter time frame. The original consensus of researchers was that clinicians could not accurately predict future violence. -Researchers have learned that these predictions can sometimes reach moderate to good levels of accuracy under certain conditions. Specifically, when clinicians have information about a range of historical, personal, and environmental variables related to violence, when they limit their predictions to specific kinds of violent behavior, and when they concentrate on appraising risks in certain settings rather than in all situations, they can assess violence risk with a fair degree of accuracy. Although they still make a large number of errors, they do significantly better than chance. -A number of specialized tools are now available some of which are actuarial. An actuarial tool (such as the Violence Risk Appraisal Guide) uses specified risk factors that are rated and scored, with scores being combined into a final score that is then applied to the prediction in a way that is specified by a formula (which in turn has been developed through empirical research). - Other tools (such as the HCR-20V3, which measures historical, clinical, and risk management variables employ "structured professional judgment." They do not combine scores on included variables to yield a total score. Rather, the evaluator is asked to make a judgment about risk in light of the status of these risk factors. Evidence indicates that good actuarial and structured professional judgment approaches to risk assessment are comparably accurate in predictions of violence

alternatives to mediation

- Many judges require divorcing couples to attempt to settle issues of custody, visitation, and support through mediation, a form of alternative dispute resolution that minimizes the adversarial quality of the typical custody dispute. If mediation fails, the couple can return to court and have the judge decide the issues. The benefits of custody mediation are that resolutions are reached more quickly, and with better compliance among the participants, than with adversarial procedures. -a mediator shall ■ Recognize that mediation is based on the principle of self-determination by the participants. ■ Conduct the mediation process in an impartial manner; disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator; structure the mediation process so that participants make decisions based on sufficient information and knowledge. ■ Assist participants in determining how to promote the best interests of children. ■ Recognize a family situation involving child abuse or neglect or domestic violence and take appropriate steps to shape the mediation process accordingly. ■ Suspend or terminate the mediation process when the mediator reasonably believes that a participant is unable to effectively participate or for other compelling reasons. -Families that go through mediation to determine custody have better adjustment than those going through the more traditional child custody litigation process. Mediation is a beneficial alternative to litigation for couples who are divorcing. Outcomes considered in this meta-analysis include satisfaction with process and outcome, emotional satisfaction, spousal relationship, and understanding children's needs.

reforms of expert testimony have been proposed

- the federal courts do not permit testimony on the "ultimate issue" of insanity in forensic cases. -Most authors and sources of authority suggest that partisanship in expert witnesses should be reduced or eliminated entirely. But there are a few who do not. - Other suggestions have involved reducing the overly adversarial nature of expert testimony by limiting the number of experts on a given topic, requiring that the experts be chosen from an approved panel of individuals reputed to be objective and highly competent, and allowing testimony only from experts who have been appointed by a judge rather than hired by one of the opposing attorneys. -Although these changes would appear to reduce the "hired gun" problem, it is not clear which experts would belong on an approved list, or whether being appointed by a judge ensures an expert's impartiality. Furthermore, some research suggests that jurors might already be inclined to discounted testimony of experts whom they perceive to be "hired guns" because of the high fees such experts are paid and their history of testifying frequently

criticisms of expert witnesses

- under criteria established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (1993) and Kumho Tire Co. v. Carmichael (1999), the judge serves as a "gatekeeper" who must determine whether the theory, methodology, and analysis that are the basis of the expert's opinion measure up to scientific standards. -The Daubert and Kumho decisions apply to all cases in federal court. In-state court, the prevailing standard may also be Daubert—or it may stem from an earlier decision (Frye v. United States, 1923) holding that expert testimony must be based on techniques and process that are "generally accepted" in the field to which they belong. -Judges generally do not perform the gatekeeper function well. Many critics, including experts and judges themselves, believe that the difficulty of distinguishing valid from invalid scientific evidence will result in jurors too often being exposed to "expert" testimony that is based on little more than "junk science" -What are the main problems with testimony by psychological or psychiatric experts? 1. The scientific foundation for much of the testimony offered in court is often less than adequate, 2. Much of the testimony is of limited relevance, 3. Experts are too often permitted to testify about "ultimate issues" (Is the defendant insane? Was the plaintiff emotionally damaged?), which should be left to juries to decide. 4. Expert testimony is frequently used to introduce information that would otherwise be prohibited because it is hearsay. (Experts are permitted to share this information with juries if it is the kind of information they routinely rely on in reaching expert opinions.) 5. The adversarial system compromises experts' objectivity. Experts may have some bias toward the side that retained them. 6. Expert testimony is very expensive, and relying on experts gives an advantage to the side with more money. 7. Testing the reliability and validity of expert opinions through cross-examination is inadequate because attorneys are usually not well equipped to conduct such cross-examination, and juries often fail to understand the significance of the information that is uncovered during the cross-examination. 8. The spectacle of experts disagreeing with one another ultimately reduces the public's confidence in mental health professionals. - criticisms of forensic mental health assessment that he calls "the five I's": ignorance, irrelevance, intrusion, insufficiency, and incredibility. These refer to not knowing (or not using) the proper legal standard; providing evidence that goes beyond what is relevant to the proceeding; offering conclusions that impinge upon the court's domain; providing limited supporting evidence for one's conclusions, and offering conclusions that are not justified by the evidence one does provide.

civil commitment

-All 50 states and the District of Columbia have civil commitment laws that authorize the custody and restraint of persons who are a danger to themselves or others or who are so gravely disabled that they cannot care for themselves. This restraint is usually accomplished by a compulsory commitment to a mental hospital. - Beginning around 1970, commitment proceedings began to be reformed, resulting in more legal rights for the mentally ill to resist compulsory commitment. A key case in this reform movement was O'Connor v. Donaldson (1975), in which the Supreme Court held that mental illness and a need for treatment were insufficient justifications for involuntarily committing mentally ill persons who were not dangerous. Similar limits on involuntary hospitalizations were upheld by the Supreme Court in the 1990s (e.g., Foucha v. Louisiana, 1992). The standard for commitment changed from mental illness combined with a need for treatment, to mental illness that is associated with dangerousness or a grave lack of ability to care for oneself. -It has resulted in fewer public hospital beds for mental health treatment, and shorter hospital stays. Exclusive concern with rights can sometimes leave patients without adequate care, housing, or the effective psychiatric treatment that can be provided in some hospitals. . As a consequence, some individuals have not had access to adequate treatment in either hospitals or in the community during these decades

malingering

-Another complication may affect the evaluations of individuals who claim to have suffered psychological harm: Plaintiffs may be motivated to exaggerate their symptoms in order to improve their chances of winning large awards. Sometimes such symptom exaggeration or fabrication (called malingering) involves outright lying. In other cases, a genuine behavioral health disturbance is present, but the plaintiff exaggerates its seriousness. A meta-analysis found that the possibility of receiving compensation for an injury was associated with more frequent reports of pain. It might work in the other direction as well—individuals with more intransigent pain might be more likely to litigate their claims. Or a third influence might affect both; for instance, lifestyle might influence both recovery from injury and propensity toward litigation. - In a review of the ethics of attorneys "coaching" their clients on how to "beat" psychological tests in civil litigation cases, Victor and Abeles (2004) argued that these techniques are well within the ethical boundaries of legal practice and that attorneys often view such coaching as an important part of advocating for their clients. -Another study found that some attorneys believe it to be malpractice not to coach their clients on the malingering's scales of psychological assessments These coaching strategies may be effective. -One study revealed that the F scale on the MMPI-2 (one of the instrument's validity scales designed to detect possible malingering) was not as effective at identifying coached malingerers as at identifying noncoached malingerers. Of course, forensic evaluators who suspect that coaching has occurred are likely to compensate by gathering additional information from sources other than self-report. -some have recommended that clinicians consistently consider response style in forensic evaluations. This refers to whether evaluates are responding as accurately as they can ("reliable"), exaggerating or fabricating symptoms ("malingering"), denying or minimizing symptoms ("defensive"), or failing to engage in the evaluation and respond meaningfully to questions ("uncooperative"). When response style appears anything other than reliable, then evaluators should take extra steps to evaluate it

Assessing Competence to Execute a Will

-Clinicians may also be asked to evaluate whether a person (called a "testator") was competent to execute a will; such competence is a requirement for the provisions of the will to be valid. Called testamentary capacity. -According to one study, situations that may raise concern about capacity to execute a will include the following: There is a radical change from a previous will (seen in 72% of cases); undue influence is alleged (56% of cases); the testator has no biological children (52% of cases); the testator executed the will less than a year prior to death (48% of cases); and the testator suffered from comorbid conditions such as dementia (40% of cases), alcohol abuse (28% of cases), or other neurological/psychiatric conditions (28% of cases) -The legal standard for testators' competence to execute a will is derived from Banks v. Goodfellow (1870), in which the court held as follows: 1. Testators must know at the time of making their wills that they are making their wills. 2. They must know the nature and extent of their property. 3. They must know the "natural objects of [their] bounty." 4. They must know the manner in which the wills they are making distribute their property. - A person cannot be deemed incompetent to execute a will simply on the basis of the presence of a mental illness, unless there is clear evidence that the mental illness specifically interfered with the individual's ability to meet the standard set at the time the will was written. Assessment of this competence focuses on the individual's functional abilities at the time his or her will was written. -First, they recommend structuring the evaluation to conform to the associated legal elements. They suggest using the sources available (e.g., the testator, family, friends, records) to first determine the purpose of the will and why it was written at that time. -Second, they recommend gathering information about the testator's property holdings, which may include asking questions about occupation and salary, tangible property, and intangibles (e.g., bank accounts, investments). -Third, the clinician should determine the testator's "values and preferences" to better understand the family dynamics. Finally, Melton and colleagues recommend that clinicians assess the general consequences of the dispositions outlined in the will. - One of the obvious difficulties in these types of evaluations is that the testator, the subject of the evaluation, is often deceased at the time the question of competence to execute the will arises.

Dangerousness and Risk Assessment

-Dangerousness is one of the central constructs of mental health law. Whether a person is now or could in the future be dangerous is an issue that underlies many decisions in our system of justice, including questions of civil commitment. -They actually merge three distinct constructs: (1) risk factors (variables associated with the probability that violence or aggression will occur), (2) harm (the nature and severity of predicted and actual aggression), and (3) risk level (the probability that harm will occur) -In some combination, these factors provide a major justification for involuntarily committing the mentally ill to hospitals. Dangerousness is the basis for requiring therapists to protect third parties from possible acts of violence against them by the patients of these therapists. It is also a reason for denying bail to certain defendants and the justification for hospitalizing defendant's after they have been found not guilty by reason of insanity. Some states also use future dangerousness as one factor a jury can consider when deciding whether to sentence a convicted murderer to life in prison or death by execution

Assessment in Custody Disputes

-First, the emotional stakes are extremely high, and both parents are often willing to spare no expense or tactic in the battle. The children involved are usually forced to live in an emotional limbo in which they do not know in whose home they will be residing, where they will be going to school, or how often they will see each parent. -Second, a thorough custody evaluation requires that the clinician evaluate the children, both parents, and others who have interacted with the child, such as relatives, teachers, and family health care providers. Often, not all the parties agree to be evaluated or do so only under coercion, resulting in a lengthy and sometimes tense process. An alternative arrangement—having the court order the evaluation and designate a neutral expert, with both parties agreeing to this appointment—can help to reduce this perception of bias. -Third, to render a valuable expert opinion, a clinician must be quite knowledgeable. Finally, child custody evaluations are often highly adversarial, with each parent trying to expose all the faults of the other. - Clinicians who conduct custody evaluations must be prepared for challenges to their evaluation methods, scholarly competence, and professional ethics. - There are three major approaches to appointing evaluators: (1) a judge can appoint one clinician to conduct a custody evaluation that is available to all the parties, (2) each side can retain its own expert to conduct independent evaluations, or (3) the litigants can agree to share the expenses of hiring an expert to conduct one evaluation. Historically, most evaluators have preferred either the first or the third option because of the pressures that result when separate experts are hired by each side

Assessment in Workers' Compensation Claims

-In a study investigators analyzed archival MMPI-2s produced by 192 women and 14 men involved in litigation related to alleged workplace sexual harassment and discrimination. Among the women, 28% produced a profile that was within normal limits. The remaining profiles fell into four distinctive clusters representing different approaches to the test items. For example, the first cluster combined a defensive unwillingness to acknowledge problems with evidence of depression and physical complaints. The second cluster involved responding that was neither exaggerated nor defensive, and also featured evidence of depression and physical problems. Both the third and fourth clusters were marked by exaggeration of problems and reports of generalized psychopathology. -One reason for the lack of distinguishing patterns might be that regardless of the injury or the stressor, most people manifest psychological distress through a mixture of physical complaints and negative emotions such as anxiety, depression, and feelings of isolation. -We now turn to the question of whether psychological tests can distinguish between claimants with genuine disorders and those who are exaggerating. The MMPI-2 and MMPI-2-RF contain sets of items that are sometimes used to assess the test-taking attitudes of a respondent. Other tests such as the Validity Indicator Profile and the Test of Memory Malingering have been developed to detect malingering. The typical case of a person trying to exaggerate or fake mental disorder involves the individual answering many items in the "bad" direction, thereby attempting to look as disturbed as possible. However, the strategy might be more complicated in the case of a person who is faking or exaggerating a disorder in a workers' compensation case. Their motivation involves a combination of faking good and faking bad. -A special validity scale composed of MMPI-2 items that tap this simultaneous fake-good/fake-bad strategy has been developed and has had some success in distinguishing between genuine and faked psychological injury claims , although others have argued that the scale is more likely to represent general maladjustment than malingering. One study included a sample of MMPI-2s of worker's compensation and personal injury cases to consider the relationship of various indicators of exaggeration. The investigators concluded that malingering's may take the form of inconsistent responding as well as symptom exaggeration, with patients evaluated at the request of plaintiff attorneys showing a seemingly greater degree of symptom exaggeration and inconsistent responding than did those referred by defense counsel

Psychological Damages to Civil Plaintiffs

-The damages a person suffers from a tort can involve the destruction of personal property, physical injuries, and/ or emotional distress. Historically, the law has always sought to compensate victims who are physically hurt or sustain property losses, but it was reluctant to allow compensation for emotional distress. It was required that a physical injury has accompanied the psychological harm or that a plaintiff who was not physically injured was at least in a "zone of danger." More are abandoning the "zone of danger" restriction and allowing recovery for psychological harm suffered when the individual was not within the zone of danger -boat that sank and survivors were compensated because they had PTSD from it -In recent years, the courts have progressed to a view in which psychological symptoms and mental distress are more likely to be compensated regardless of whether the plaintiff suffered physical injuries. Two types of "purely" psychological injuries are now claimed in civil lawsuits: those arising from "negligent" behavior and those arising from "extreme and outrageous" conduct that is intended to cause distress. In the former type of case, plaintiffs are often allowed to sue for psychological damages if they are bystanders to an incident in which a loved one is injured (e.g., a parent sees her child crushed to death when a defective roller coaster—on which the child was riding—derails). -In the case of intentional torts causing psychological distress, a plaintiff must prove that a defendant intentionally or recklessly acted in an extreme and outrageous fashion (sometimes defined as "beyond all bounds of decency") to cause emotional distress. In addition, the plaintiff must prove that the distress is severe. -What kinds of behavior might qualify? Courts have found that a debt collector who was trying to locate a debtor acted outrageously when he posed as a hospital employee and told the debtor's mother that her grandchildren had been seriously injured in a wreck and that he needed to find the debtor to inform him of this fact (Ford Motor Credit Co. v. Sheehan, 1979). -In recent years, an increasing number of cases have dealt with psychological injuries resulting from the tort of sexual harassment, usually in the workplace. Plaintiffs can seek both compensatory damages (payment for injuries suffered) and punitive damages (punishment of the company for its failure to respond properly to the misconduct)

Four Types of Commitment Procedure

-The law permits four types of civil commitment: (1) emergency detention, Patients committed on an emergency basis can be detained for only a specified length of time—usually two or three days—before a review takes place. At that time a preliminary hearing must be held before the patient can be confined any longer. (2) voluntary inpatient commitment, A person may volunteer to enter a psychiatric hospital, although he or she still must meet the criteria for hospitalization but even those who are being hospitalized "voluntarily" may feel pressure from family, mental health personnel, or the legal system to enter the hospital. Individuals who have been provided with more information and given the chance to express their views report feeling less coercion. (3) involuntary inpatient commitment, requires a court order. The criteria for obtaining an involuntary civil commitment vary from state to state; in general, however, the person must be mentally ill and must also be dangerous to self and others, or so gravely disabled as to be unable to provide for his or her own basic needs. To obtain an involuntary commitment, the concerned persons must petition the court for a professional examination of the individual in question. A formal court hearing usually follows the examination. In most states, the hearing is mandatory, and persons whose commitment is sought can call witnesses and have their lawyer cross-examine witnesses who testify against them. (4) outpatient commitment. Emergency detention is the means by which most individuals are initially admitted to hospitals. Is available in nearly all states and allows a patient to be mandated to receive treatment in an outpatient setting, such as a community mental health center, rather than in a hospital. Outpatient commitment often involves conditional release from a hospital. That is, formerly hospitalized patients are ordered to continue treatment in the community. It may also be used prior to hospitalization, as an alternative to inpatient commitment. One study that those released from involuntary hospitalization on outpatient commitment were more likely to use outpatient and residential mental health services and psychotropic medication. However, outpatient commitment should not simply be used as a mechanism for ensuring compliance with treatment if the individual does not meet the commitment criteria (which typically have a public safety component) -A police officer, a mental health professional, or sometimes a private citizen can initiate involuntary detention of another person. Usually, the cause is actual or anticipated harmful behavior by the patient either against self (e.g., attempted suicide) or against others. An examination is performed by a physician or a qualified mental health professional.

biases expert witnesses might have

-The more common problem that may influence many experts, however, is what has been called "allegiance bias" or "retention bias." The question of whether experts can remain impartial and accurate without regard to which side has retained them has been explored recently through research. -These influences can impair the impartiality and accuracy of evaluations and testimony presented by forensic clinicians, particularly in the context of an adversarial system. ■ Representativeness—overemphasizing evidence that resembles a typical representation of a prototype (e.g., making attributions about an individual's motivation because that individual resembles a "drug addict" in many ways); ■ Base rate neglect—judging the likelihood of an outcome without considering information about the actual probability of this outcome, as conveyed by base rates (e.g., predicting a serious act of violence by someone who shows predictors consistent with a group that rarely behaves this way); ■ Availability—overemphasizing the probability of occurrence when similar instances are easy to recall (e.g., from a recent, highly publicized case); ■ Confirmation bias—selectively gathering and interpreting evidence that confirms a hypothesis while ignoring evidence that might disconfirm it ■ WYSIATI (what you see is all there is)—organizing activated information to derive the most coherent "story" while leaving out nonactivated information (e.g., by focusing on information that has been "activated," perhaps via confirmation bias, and consequently constructing an account that is excessively consistent because it excludes contradictory information); and ■ Anchoring—information encountered first is the most influential. -One such debiasing strategy is to conduct forensic evaluations that are guided by foundational principles, and basing expert testimony on the results of such evaluations. Another is to conduct training, and periodically review one's professional performance, by reviewing whether the biases described in the last paragraph are affecting performance. A third debiasing strategy, aimed more at the public perception of experts' impartiality and accuracy, is to avoid public comment regarding ongoing cases, particularly in social media formats (e.g., Twitter) in which the depth and nuance of the comment is severely limited. -A more modest reform would involve simply banning any reference to witnesses as providing expert testimony, a term that suggests that jurors should give it extra credence. Instead, judges would always refer— in the presence of juries—to opinion testimony or witnesses. I -n addition to deleting any mention of expert testimony, federal judge Charles Richey (1994) recommended that juries be read a special instruction before hearing any opinion testimony in order to reduce its possible prejudicial impact

effects of custody arrangements

-There appear to be several advantages to joint custody arrangements. In a meta-analysis of 21 studies, Bauserman (1997) concluded that children in joint custody fared better than children in sole custody on a number of measures related to adjustment and interpersonal relations. Fathers benefited from joint custody because they had more frequent contact with their children. Joint custody was advantageous for mothers because it afforded them greater opportunity for courtship; as a result, these mothers re-partnered more rapidly than mothers with sole responsibility for their children, a situation that may be economically beneficial for the children -Some research has also addressed the impact of having one or both parents who are gay or lesbian on the subsequent adjustment of children in custody following a divorce or other ending of the parental relationship. Research to date provides no evidence that lesbian and gay parents differ from heterosexual parents in these domains. - . Researchers have also looked at the children of never-married parents. Based on this evidence, it appears that the most significant effects of divorce on children occur in the first year or two. Temporary behavioral changes are frequent, including problems in emotional regulation, disturbed sleep patterns, behavioral or academic problems, grief reactions, and loyalty conflicts. Most parents and children return to a behavior that is more typical for them after this one- to the two-year period - Both the well-being of the primary parent and the level of parental conflict are major factors influencing outcomes. Children from families in which the parents had a great deal of conflict seem to do better following divorce than do children from low-conflict families. Importantly, around 75% of children whose parents divorce will not experience significant developmental challenges or long-term negative effects of the divorce - It now appears that parents with joint physical custody do not differ in their cooperativeness or conflict from parents with sole physical custody. Indeed, the quality of the relationship between parents and children is more strongly associated with outcomes than are conflict and poor parenting, except when the conflict is extreme. -Risk factors: ■ stress of the initial separation ■ diminished parenting ■ loss of significant relationships (including extended family, e.g., grandparents), and friends ■ multiple moves ■ financial problems (the stress of which can affect parenting style or quality) ■ either parent becoming involved with a new partner - -Protective factors: ■ The custodial parent is competent and well adjusted -The noncustodial parent has regular and consistent contact and (particularly important) takes an active interest in the activities and school performance of the child ■ A good relationship between parent and child ■ The custodial parent has extended family support

Assessment of Psychological Damages

-When a mental health professional assesses a plaintiff, the clinician will typically conduct an evaluation that, like most evaluations, includes a social history, a clinical interview, and a number of psychological tests and specialized forensic measures. One major difference, between standard clinical evaluations and forensic assessments is the much greater use of third-party interviews and review of available records in forensic examinations. - First, forensic experts must be sure that their opinions are based on accurate information, and self-reported information in the context of litigation is not necessarily accurate. Second, forensic experts are often asked to evaluate an individual's psychological condition at some specific time or in some particular situation in the past. Therefore, clinicians must use independent sources of information, when possible, to verify their descriptions and judgments about such matters. Using data from these sources, the clinician arrives at an opinion about the psychological condition of the person in question. -The more difficult question the clinician must answer in litigation is whether the psychological problems were caused by the tort, aggravated by the tort, or existed before the tort. The clinician needs to consider whether certain psychological conditions might have contributed to the plaintiff being injured in the first place. There is no established procedure for answering these questions, although most clinicians try to locate records and other sources of information that help -In some situations, a plaintiff might allege that he or she was targeted for harassment precisely because the defendants knew of some prior difficulty that made the plaintiff vulnerable to a particular kind of harassment. In such cases, the clinician must consider this additional information before reaching a conclusion about the significance of the prior psychological problem.

Workers' Compensation

-When a worker is injured in the course of his or her job, the law provides for the worker to be compensated through a streamlined system that avoids the necessity of proving a tort. Prior to workers' compensation, a person who was injured at work had to prove that the employer was responsible for a tort in order to receive compensation. This was difficult because employers had several possible defenses to the worker's claim. As a result, many seriously injured workers and their families were denied any compensation for their work-related injuries. -For their part, workers give up their right to pursue a tort case against their employers, and if they are compensated, the size of the award they receive is determined by (1) the type and duration of the injury and (2) their salary at the time of the injury. Workers can seek compensation for ■ physical and psychological injuries suffered at work ■ the cost of whatever treatment is given ■ lost wages ■ the loss of future earning capacity -Determining how much impairment in future earning capacity a given mental disorder or psychological condition might produce is very difficult. Many states require evaluators to use the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA, 2007). The Guide provides five categories of impairment, ranging from "no impairment" to "extreme impairment," that clinicians can use to organize their descriptions of a claimant. -Both employers and employees should benefit from a process in which workers' claims can be resolved fairly quickly, which is a major goal of the workers' compensation system. Formal trials are not held, and juries do not resolve these cases; they are heard and decided by a hearing officer or commissioner. (These decisions can be appealed.) They often drag on for years as both sides go through a process of hiring one or more experts to examine the worker and give opinions about the injuries and any disability suffered. -Claims for mental disability usually arise in one of two ways, though there is a third (less likely) basis for a claim as well. First, a physical injury can lead to a mental disorder and psychological disability. A common pattern in these physical-mental cases is for a worker to sustain a serious physical injury (e.g., a broken back or severe burns) that leaves the worker suffering chronic pain. -The second work-related pathway to mental disability is for an individual either to suffer a traumatic incident at work or to undergo a long period of continuing stress that leads to substantial psychological difficulties. -. In a third kind of case, known as mental-physical, work-related stress leads to the onset of a physical condition such as high blood pressure. Many states have placed restrictions on these types of claims, and psychologists are seldom asked to evaluate them. -The number of psychological claims in workers' compensation litigation has increased dramatically in the last 25 years. First, the rise in psychological claims might be due to the increased percentage of female workers. A second possibility is that a shift in the job market from manufacturing and industrial jobs to service-oriented jobs has produced corresponding increases in job-related interpersonal stressors and decreases in physical injuries. A third possibility is that claims of psychological impairments are motivated primarily by financial incentives, generating a range of cases in which genuine impairments are mixed in with exaggerated or false claims of disability

what is a tort

-When one party is injured by the actions of a second party, the injured individual can sue the second party to recover monetary damages as compensation for the injury. This action is covered by an area of civil law known as torts. A tort is a wrongful act that causes harm to an individual. Tort law, on the other hand, provides a mechanism to remedy the harms that individuals have suffered from wrongful acts by another party. As illustrated by the O. J. Simpson case, both criminal punishment and civil remedies can be sought for. -First, torts occur in situations in which one individual owes a duty, or has an obligation, to another. For instance, a physician has a duty to treat patients in accordance with accepted professional standards, and individuals have a duty not to harm others physically or psychologically. -Second, a tort typically requires proving that one party breached or violated a duty that was owed to other parties. The breached duty can be due to negligence or intentional wrongdoing. Negligence is behavior that falls below a standard for protecting others from unreasonable risks; it is often measured by asking whether a "reasonable person" would have acted as the civil defendant acted in similar circumstances. Intentional behavior is a conduct in which a person meant the outcome of a given act to occur. -Third, the violation of the duty must have been the proximate cause of the harm suffered by a plaintiff. A proximate cause is one that constitutes an obvious or substantial reason why a given harm occurred. It is sometimes equated with producing an outcome that is "foreseeable." - Fourth, a harm, or loss, must occur, and the harm has to involve a legally protected right or interest for which the person can seek to recover damages that have been suffered. If it can be established that (1) there was a duty, (2) that was breached, (3) which proximately caused the (4) resulting harm, then a tort can be proven in a civil lawsuit

Assessing Fitness to Be a Parent

-agency is responsible for the protection of children will intervene if it receives a credible report that a child is being abused or neglected. After an investigation, the agency might file a petition asking a court to remove the child from the home and arrange placement with a relative or in foster care. In such cases, the issue before the court is whether the child should be left with the parents or removed from the home because of parental unfitness. -The question for the evaluator is what arrangement protects the child's well-being, while properly respecting the rights of the parents. The state must protect children from parents who cannot or will not provide adequate food, shelter, and supervision. The state must also protect children from parents who abuse them, physically or psychologically. A clinician might recommend that the child be placed temporarily in foster care and that the parents receive training in parenting skills as a condition of having the child returned to them. -In extreme cases— those in which parents abandon a child or are clearly incapable of caring for a child—the state might seek to terminate parental rights. This is done most often when relatives or others wish to adopt the child. -12-year-old Gregory Kingsley asked a Florida judge in 1992 to terminate his parents' right to function as parents on his behalf. Gregory had been removed from his home and placed in foster care, but when the state attempted to return him to his birth parents, Gregory objected and tried to sever his parents' ties to him. Both the trial judge and an appellate court ruled in Gregory's favor

More biases in workers compensation by experts

-attorneys often retain the same expert to conduct evaluations of different cases. An expert who is repeatedly hired by the same attorney, whether a plaintiff's or defense attorney may risk opining what the attorney wants rather than rendering impartial opinions about each case. One study investigated this issue by examining whether psychological assessments of workers' compensation claimants were related to the side that had retained the expert. ■ Plaintiff experts gave impairment ratings to claimants that were nearly four times larger than the impairment ratings assigned by defense experts. ■ Defense experts concluded that MMPIs completed by claimants were invalid or malingered in 72% of their evaluations, whereas plaintiff experts reached this conclusion in 31% of their evaluations. ■ Of the 19 experts who had conducted three or more evaluations, 17 tended to do so almost exclusively for one side. -A better measure of evaluator impartiality involves the proportion of "useful" opinions (i.e., opinions helpful to the referring attorney) relative to the overall number of referrals. For example, an evaluator who has conducted 90 evaluations for the defense and 10 for plaintiffs might appear less impartial than the evaluator who has done 50 for the defense and another 50 for plaintiffs. However, looking more closely at the "usefulness" proportion might reveal that the first evaluator has reached a conclusion favorable to the referring attorney in 50% of the defense cases and 45% of the plaintiff cases, whereas the second evaluator has favored the referring attorney in 98% and 100% of defense and plaintiff cases, respectively. - Even if experts are reasonably impartial, attorneys may selectively introduce expert opinions depending on whether those opinions support their side. -This is comparable to the "file drawer problem" encountered by investigators performing meta-analysis: Because research reporting nonsignificant differences is often not accepted for publication, such results tend to languish, unpublished, in a file drawer, which limits the accuracy of the investigator's ability to determine an overall "effect" of a research phenomenon based on all the evidence. - Even if forensic evaluators can be reasonably impartial, they still conduct such evaluations in the context of an adversarial system, and decisions about whether to introduce such reports as evidence are often made by attorneys who are advocates for their clients. It is these kinds of concerns that prompted the writing of a series of "best practice" books in forensic mental health assessment. These books describe several different kinds of civil questions relevant to this chapter. One focuses on evaluation for workplace disability. The second such book addresses the topic of workplace discrimination and harassment. A third describes the process of conducting evaluations for personal injury claims more broadly. These books discuss the steps that potential evaluators can take to promote thorough, accurate, and balanced evaluations on this topic.

Assessing Competence to Make Treatment Decisions

-the first step might be to break down the explanation of the treatment decisions facing the patient into smaller bits of information. If there were still an impasse between the patient and treating professionals after such a presentation, it would be important to administer a clinical assessment instrument to determine whether a given patient lacks the necessary ability to reach a competent decision. -Such an instrument—the MacArthur Competence Assessment Tool for Treatment Decisions (MacCAT-T)—is now commercially available. The research for the MacCAT-T, conducted as part of a larger MacArthur Research Network on Mental Health and Law study on competencies, coercion, and risk assessment, focused on the capacities of individuals with severe mental disorders to make decisions and give informed consent about their own psychiatric treatment. Researchers in the MacArthur Treatment Competence Study developed a series of structured interview measures to assess the four basic abilities—understanding information, applying information, thinking rationally, and expressing a choice—involved in legal competence. -Standardized interviews, using items of this type, were conducted with three groups of patients—those with schizophrenia, those with major depression, and those with heart disease—and with groups of people from the community who were not ill but were demographically matched to the patient groups. Only a minority of the persons in all the groups showed significant impairments in competent decision-making about various treatment options. However, the patients with schizophrenia and major depression tended to have a poorer understanding of treatment information and used less adequate reasoning in thinking about the consequences of treatment than did the heart patients or the members of the community sample. The more serious the symptoms of mental disorder the poorer the understanding. -These results obviously have implications for social policies involving persons with mental disorders. First, contrary to popular impressions, the majority of patients suffering from severe disorders such as schizophrenia and major depression appear to be capable of competent decision-making about their treatment. On the other hand, a significant number of patients— particularly those with schizophrenia—show impairments in their decision-making abilities.

psychological autopsy

attempt to determine the mode of death by considering known behavior of the deceased -Their use has spread over the years, and now they are encountered most often in cases such as determining the cause of death in situations where an insurance company could deny death benefits if the policyholder committed suicide; assessing claims in workers' compensation cases that stressful working conditions or work trauma contributed to a worker's death or suicide; evaluating a deceased individual's mental capacity to execute or modify a will, and assessing the validity of an argument occasionally made by criminal defendants that a victim's mode of death was suicide rather than homicide. -Most of them rely on information from two sources: interviews with third parties who knew the decedent and prior records. Some investigators concentrate on more recent data, generated close in time to the person's death. What was the person's mood? Were there any pronounced changes in the person's behavior? Others—especially those who take a developmental perspective on behavior—look for clues early in the person's life. - A review of research on psychological autopsy studies revealed specific life events (particularly interpersonal conflict) as risk factors for suicide, with some evidence that the greater the conflict, the higher the risk. However, limitations of psychological autopsy studies suggest the need for complementary research into life events prior to serious suicide attempts. -In cases involving workers' compensation claims and questions of whether insurance benefits should be paid, the courts have usually admitted psychological autopsy testimony; in criminal cases or in cases involving the question of whether a person had the mental capacity to execute a will, the courts have been more reluctant to permit the testimony. Judges are more hesitant to allow expert testimony in criminal cases than in civil ones. One reason for the courts' hesitancy in permitting psychological autopsy testimony in cases involving the validity of wills might be that, in such cases, the state of mind of the deceased is the critical question for the jury. Allowing expert testimony on this matter might therefore be viewed as invading the province of the jury, a perception that judges usually want to avoid.

advance medical directive preferences

documentation indicating future treatments one will accept should one be incapacitated -- Investigators surveyed 405 outpatients of 30 primary care physicians and 102 members of the general public on the topic of advance directives, which were preferred by 93% of the outpatients and 89% of the general public. When people were asked to imagine themselves incompetent and with a poor prognosis, they decided against life-sustaining treatment about 70% of the time. -. But for living wills to be effective, individuals must be able to generate preferences that are stable over time and across changes in health. In studies that examined the stability of advance directives, participants were asked to record their preferences for various life-sustaining treatments (e.g., cardiopulmonary resuscitation [CPR]) in different medical scenarios, such as coma. After an interval ranging from one month to two years, these individuals recorded their preferences again. The average stability of preferences across all judgments was 71%, suggesting that over time periods as short as two years, there were substantial changes in stated treatment preferences -.Most people are unaware that their preferences change; they mistakenly believe that the preferences they express in the second interview are identical to those they provided in the first interview. Preferences are also dependent on the context in which they are made. For example, when patients recently discharged from hospitals are asked about their desire for life-sustaining treatment, they show a characteristic "hospital dip"; they report less desire for interventions than they did prior to hospitalization—and less than they do several months after their discharge.

risk assessment

estimation of the probability that a person will behave violently

civil competency

legal context in which one's mental ability to complete a specific task is questioned -. A competent individual is expected to be able to (1) understand basic information that is relevant to making a decision; (2) apply that information to a specific situation in order to anticipate the consequences of various choices; (3) use logical—or rational—thinking to evaluate the pros and cons of various strategies and decisions; and (4) communicate a personal decision or choice about the matter under consideration. - Planning about future medical treatments is formalized through what are known as advance medical directives, in which patients indicate what kinds of treatment they want should they later become incapacitated and incompetent to make treatment decisions. One of the most important of these advance directives is the "living will," in which a patient essentially asserts that he or she prefers to die rather than to be kept alive on a ventilator or feeding tubes. -The ethical and practical issues involved in determining patients' competence to issue advance medical directives are substantial, but the trend revealed in Supreme Court decisions such as Cruzan v. Director, Missouri Department of Health (1990), is to recognize that patients have great autonomy in accepting or rejecting a variety of treatments and health care provisions.

future best interests of the child

prevailing standard for custody decisions -About 40-50% of marriages in the United States now end in divorce. As of 2015, 26% of households with children in the United States were single-parent families. There are also a variety of other family arrangements. . Second, the prevailing assumption was that awarding custody of young children (sometimes called children of "tender years") to their mothers was usually in their best interests but it was diminished. -Courts should consider the following criteria: (1) the wishes of the child; (2) the wishes of the child's parents; (3) the relationships between the child and the parents, siblings, and significant others who interact with the child; (4) the child's adjustment at home and school and in the community; and (5) the physical and mental health of the parties involved. - Most states permit two kinds of custodial arrangements—sole and joint custody, each with two aspects (physical and legal). Physical custody refers to the living arrangement, whereas legal custody concerns the responsibility for decision-making. In sole custody, the child will live only with one parent (although the other parent may be granted visitation rights), and/or all legal decision-making authority for that child will rest with one parent. In joint custody, both parents can retain parental rights concerning decisions about the child's general welfare, education, health care, and other matters (this is called joint legal custody), and the child can alternate living in the home of the mother and in the home of the father according to the schedule provided in the custody decision (this is called joint physical custody).Usually, one parent is designated the residential parent, and the child spends more time living at the home of that parent. - In general, families that are functioning better at the time that custody is awarded are more likely to ask for joint custody than families that are experiencing ongoing difficulties The three main differences between sole custody and joint custody are as follows: 1. Joint custody distributes the frequency of interaction more evenly between the children and each parent. 2. Joint custody requires more interactions between the divorced parents and generates more demands for cooperation concerning the children. 3. Joint custody results in more alterations in caregiving arrangements, along with more separations and reunions between children and parent