Basic Law for Psychiatrists

From the Forensic Psychiatry Review Course, presented by the American Academy of Psychiatry and the Law

Phillip J. Resnick, MD, Professor of Psychiatry, Case Western Reserve University School of Medicine; Adjunct Professor, Case Western Reserve University School of Law; and Director, Court Psychiatric Clinic, Cleveland, OH

Educational Objectives

The goal of this program is to improve the practitioner’s familiarity with basic law as it relates to clinical practice. After hearing and assimilating this program, the clinician will be better able to:

1.   Distinguish between matters of fact and matters of law.

2.   Explain different types of court dismissals.

3.   Define such legal terms as stare decisis, amicus curiae, and habeas corpus.

4.   Briefly discuss issues related to the right to privacy.

5.   Discuss components of criminal and tort law that have bearing on medical malpractice and negligence.

Faculty Disclosure

In adherence to ACCME Standards for Commercial Support, Audio-Digest requires all faculty and members of the planning committee to disclose relevant financial relationships within the past 12 months that might create any per­sonal conflicts of interest. Any identified conflicts were resolved to ensure that this educational activity promotes quality in health care and not a proprietary business or commercial interest. For this program, the faculty and plan­ning committee reported nothing to disclose.

Acknowledgments

Dr. Resnick was recorded at Forensic Psychiatry Review Course, held October 26-28, 2009, in Baltimore, MD, and sponsored by the American Academy of Psychiatry and the Law. The Audio-Digest Foundation thanks Dr. Resnick and AAPL for their cooperation in the production of this issue. The next Forensic Psychiatry Review Course will be held October 18-20, 2010, in Tucson, AZ.

Legal process: stare decisis  —  refers to precedent, important issue in law; means “let the decision stand”; courts follow policy of standing by established precedents and not disturbing settled points;  precedent of superior court must be followed by inferior courts in that jurisdiction; precedents set by United States Supreme Court bind all lower courts; dicta  — expressions in court’s opinion that go beyond facts of spe­cific case before court, and therefore reflect individual views of their author; not binding in subsequent cases

Civil law: plaintiff vs defendant; intent (particularly in tort law) to “make injured party whole”

Matters of fact: those ascertained by senses (eg, testimony of witnesses who describe what they have per­ceived); determined by trier of fact (judge or jury)

Matters of law: those decided by application of statutory rules or precedent to facts at hand; judge determines matters of law; errors of law may be appealed; if reasonable persons could not disagree about facts, matter becomes issue of law (eg, appeals judge may overrule jury verdict if it can be shown to be based on emo­tional reaction to facts, rather than on facts themselves; error of law made when verdict not put aside by trial judge)

Types of court dismissals: no cause of action; summary judgment (judge’s decision to dismiss civil action without trial as matter of law when no genuine issue of material fact exists); directed verdict (judge can dis­miss case by direct verdict after plaintiff’s case or after both sides have presented cases when “as a matter of law, reasonable persons could not differ, and there is no valid basis for lawsuit”); judgment notwith­standing verdict (motion for judge to set aside jury verdict); lack of jurisdiction

Appellate court: bases its decision on record developed by trial court, briefs (written memoranda of law) sub­mitted by opposing counsel, and occasionally, oral arguments by counsel; decides only whether trial judge made errors of law; recognizes 2 types of errors of law, based on premise that “one is entitled to a fair trial, but not a perfect trial”

Harmless error: minor error that would not alter outcome of case; trial judge may be given notice of how case should have been handled, but appellate court would not overturn case on this basis

Reversible error: error that may have caused unjust outcome; appellate court overturns case; potential errors include improper charge to jury, and admission of inadmissible evidence or exclusion of admissible evi­dence

United States Supreme Court: receives »10,000 cases every year, hears »100; court grants or denies certiorari, meaning it will or will not hear case; litigants have right to appeal case to appellate court, but no right to ap­peal to state or US Supreme Court

Amicus curiae: “a friend of the court”; brief submitted to court to help court decide case (eg, by American Psy­chiatric Association); amicus curiae briefs submitted in 85% of US Supreme Court cases

Habeas corpus: “may you have the body”; writ to challenge being held against one’s will (eg, in jail, in psy­chiatric hospital); keeper of detainee (eg, jailer, psychiatrist) must provide court with proof of legal basis for detention

Proof: burden of production  —  indicates which side must raise issue; for example, in affirmative defense, such as insanity, duress, or entrapment, defense must raise issue and provide “more than a scintilla of evidence”; in criminal trial, prosecution has burden of proving guilt beyond reasonable doubt

Standards of proof: high in criminal case, because human freedom, as well as stigma of being convicted felon, at stake (“better to let 10 guilty men go free than convict one innocent man”); state must prove its case “be­yond reasonable doubt”; beyond reasonable doubt  —  estimated to be >90% certainty; preponderance of evidence  —  used to determine cases involving monetary interests alone; must have ³51% certainty; clear and convincing evidence  —  intermediate standard; estimated at 70% to 80%; more at stake than dollars, but less than imprisonment (eg, civil commitment, termination of parental rights, competence to terminate life support, deportation, denaturalization); O.J. Simpson  —  case exemplifies applications of standards; acquit­ted of criminal charges (prosecution did not convince jury of his guilt beyond reasonable doubt); lost civil suit (based on preponderance of evidence) and ordered to make monetary restitution to families of victims

Burden of proof: on prosecution (state) in proving guilt beyond reasonable doubt; in federal trials on insanity, burden may be on defense to provide clear and convincing evidence; for civil commitment, burden on state (ie, depending on type of trial, burden can go in either direction)

Probable cause: reasonable belief that person has committed crime; objective standard measured against what prudent person would believe

Reason to believe: subjective standard, used for, eg, mandatory reporting of child abuse; immunity provided as long as reporting person had genuine belief based on good faith; requires lowest level of certainty

Constitutional issues: First Amendment provides freedom of speech; Fifth Amendment provides right not to incriminate oneself and right to due process in federal trials only; 14th Amendment provides right to due process in state trials; Sixth Amendment provides constitutional right to assistance of attorney; Eighth Amendment bans cruel and unusual punishment

14th Amendment: amendment most often involved in landmark cases; passed in 1868 after American Civil War to protect former slaves from southern state laws; broad areas covered include right to equal protec­tion and right to due process; use of equal protection clause indicates comparison of 2 classes of individ­uals who should have same rights

Equal protection arguments: rational relationship test  —  state must show rational basis for treating one class of citizens differently from another; strict scrutiny  —  some cases deserve strict scrutiny because of historical discrimination against certain groups (eg, blacks, Jews); cases deserving strict scrutiny al­most always found to be violation of equal protection; sex not always basis for strict scrutiny

Due process: substantive due process  —  deals with violations of “fundamental fairness”; procedural due process  —  determination of how much process due (eg, is indigent person entitled to court-appointed attor­ney? does person have right to trial by jury [as opposed to trial by judge]?); every type of hearing or trial has certain amount of guaranteed due process; the greater the stakes, such as loss of liberty or life, the greater the due process

Matthews v Eldridge: case in which US Supreme Court presented analytic approach to determine how much process due; 3 factors to be weighed by trial court  —1) private interest affected by governmental action (eg, will individual lose money? liberty? life?); 2) governmental interest; 3) risk for error on both sides (eg, risk associated with government unjustly taking away benefits vs those of individual continuing to receive money unjustly; risks associated with being hospitalized unjustly vs those associated with not hospitalizing individual who needs care)

Privacy: US constitution does not specify right to privacy; derived from “penumbras and emanations” of First, Third, Fourth, Fifth, and Ninth Amendments example  —Roe v Wade, which dealt with woman’s right to pri­vacy in making decisions about her body

Civil Action for Deprivation of Rights: also called 42 U.S.C 1983 or simply 1983; statute of US Code; origi­nally known as Ku Klux Klan Act; created to prevent terrorism against freed slaves; holds individuals liable for depriving others of rights guaranteed under Constitution and laws of United States; companion to 14th Amendment that provides mechanism for citizens to execute their civil rights, including those for equal pro­tection; Lessard v Schmidt  —  example of civil action under 42 U.S.C. 1983; Lessard claimed that her hospital­ization under the civil commitment statutes of Wisconsin deprived her of liberty without sufficient due process; federal court found state statute of civil commitment unconstitutional

Civil law: tort defined as civil wrong; tort law  —  effort to make injured person whole again through financial restitution; shifts financial loss away from injured party to tortfeasor (wrongdoer); unlike in criminal law, blameworthiness not necessary (tortfeasor in civil action can be held financially responsible for injury de­spite, eg, duress, insanity)

Intentional torts: occur when wrongdoer has prior knowledge that harm might result from his or her actions; include false imprisonment, violation of civil rights of patient, defamation of character (eg, labeling patient malingerer or liar); may or may not be covered by malpractice insurance, depending on policy

Unintentional torts: defined as behavior that creates unreasonable risk of causing harm or failure to exercise usual standard of care; also called negligence or malpractice; 4Ds of negligence  —  there must be duty to injured party; there must be dereliction or breach of that duty; breach of duty must be direct cause of damages; and there must be actual damages that result from breach of duty

Damages: actual damages  —  financial remuneration for expenses directly related to injury (eg, medical bills, lost wages); also called compensatory damages, and may include pain and suffering; punitive damages  —  also called exemplary damages (set example to deter others from engaging in conduct); compensation for malicious or wanton act; physicians rarely sued for punitive damages (usually com­pensatory damages only); noneconomic damages  —  those for pain and suffering or mental anguish; ad­dressed by tort reform

Respondeat superior: “let the master answer”; also called vicarious liability; physicians may be held liable for acts of their employees (eg, if staff does not maintain confidentiality of patients, physician-employer can be held responsible)

Discovery: purpose to “avoid surprises” during trial and narrow issues to be litigated; attorneys exchange inter­rogatories (written questions to be answered in writing) for documents and tangible evidence; subpoena duces tecum (command for person to appear with documents) may be issued; discovery depositions taken first from fact witnesses, then from expert witnesses (to determine, eg, in malpractice suit, whether physician provided less than standard of care); last may be physical or psychiatric examination of injured party

Criminal law: components include actas reas (forbidden act) and mens rea (guilty intent)

Mens rea: penal code recognizes 4 levels; specific intent  —includes acting purposely (consciously intending act) or knowingly (aware that conduct criminal); must be proven beyond reasonable doubt; general intent  —includes acts of specific intent and acts committed “recklessly” (with conscious disregard of risk); use in criminal defense  —  in case of diminished responsibility, attorney may argue that defendant lacked requisite mens rea to form specific intent; negligence  —  actor should have been aware of risk; not considered criminal under common law unless made so by specific statute

Types of crimes: misdemeanor  —  maximum incarceration 6 to 12 mo in jail; felony  —  incarceration ³12 mo in prison; felony murder doctrine may dictate that deaths occurring during course of certain other crimes be considered murder (eg, bank teller has heart attack and dies after robber points gun at him or her; death may be considered felony murder even though bank robber did not intend to kill teller); in states that have death penalty, felony murder can be capital crime

Plea bargaining: occurs much more frequently than trials (85%-95% of criminal cases)

Quasi-criminal proceedings: include civil commitment, juvenile delinquency, and sexual predation; objective is rehabilitation rather than punishment

Suggested Reading

Applebaum, PS: Law & psychiatry: mental retardation and the death penalty: after Atkins. Psychiatr Serv 60:1295, 2009; Ashworth A: Principles of Criminal Law, 4th ed. New York: Oxford University Press, 2003; Chemerinsky E: Constitu­tional Law: Principles and Policies 3rd ed. New York NY: Aspen Publishers, 2006; Emanuel SL: Constitutional Law. New York NY: Aspen Publishers, 2004; Garner BA ed: Black’s Law Dictionary, 9th ed. St. Paul MN: West Publishing Co., 2009; Glannon JW: Civil Procedure: Examples and Explanations, 6th ed. New York NY: Aspen Publishers, 2006; Hall RC, Resnick PJ: Psychotherapy malpractice: new pitfalls. J Psychiatr Pract 14:119, 2008; Melton GB et al: Psychologi­cal Evaluations for the Courts, 3rd ed. New York: Guilford Press, 2007; Shapiro DL: Torts, damages, and malpractice. Psychol Inj and Law, 2:100, 2009; Shuman DW: Introduction to the legal system, in RI Simon and LH Gold, eds, The American Psychiatric Publishing Textbook of Forensic Psychiatry, Washington, DC: American Psychiatric Publishing, 2004; Slovenko R: Psychiatry in Law/Law in Psychiatry, vols. 1 and 2. New York: Brunner-Routledge, 2002.