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Abstract:
This Article takes a critical approach to the assumptions underlying current practices of violence risk assessment. The Article first explicates a fundamental difference between how mental health researchers now interpret the phrase violence prediction and how they understood that phrase in the 1970s. Applying a critical approach, the Article then shows that courts and mental health professionals may need to abandon the hope that more accurate methods of predicting violence will help clinicians make better decisions about potential violence. Although this result may seem disappointing, it can liberate mental health professionals from regarding patients as statistical sources of risk and can encourage them to treat patients instead as sources of initiative and moral worth. The Article then provides a moral and legal framework for reformulating the Tarasoff rule. Taking the view that consequentialist, predictive approaches to formulating the duty to protect are ethically questionable (as well as scientifically impractical), the Article suggests that assigning therapists a duty to intervene in response to a patient's explicit, credible threat is consistent with the view that patients (along with other humans) ought to be treated not merely as means, but always as ends in themselves. This Article received the American Psychiatric Association's 2008 Manfred S. Guttmacher Award for outstanding contributions to the literature in forensic psychiatry.

risk, assessment, Tarasoff, violence, prediction, Kant, Kantian

Abstract:
Background: In medicine, diagnostic accuracy is usually evaluated against a near-infallible criterion - a "gold standard" - for true disease status. Most mental health classifications have no gold standard, however, and absence of agreed-upon truth is common for psycholegal assessments.

Aims: To show that even without a gold standard, accuracy of forensic assessments can be quantified using latent class methods and receiver operating characteristic (ROC) analysis.

Method: Using redacted court reports, clinicians rated 156 hospitalized criminal defendants on their Dusky-defined competence to stand trial and on their understanding, appreciation, and reasoning about criminal proceedings. Multiple ratings per evaluee permitted estimation of ROC parameters using maximum likelihood and Bayesian approaches.

Results: Raters were highly accurate, with ROC areas averaging 0.967 or more.

Conclusions: Accuracy of forensic examinations can be quantified numerically despite the absence of a diagnostic gold standard. Methods used in this study should be applicable to many other psycholegal questions where quantifying accuracy would have scientific and evidentiary value.

competence to stand trial, adjudicative competence, ROC analysis, diagnostic accuracy, maximum likelihood, Bayesian, gold standard

Abstract:
Ineffectiveness of prescription drugs, hidden drug hazards, and advertising violations have led to several drug recalls and numerous lawsuits against pharmaceutical companies in recent years. These suits have involved several varieties of medications, but psychoactive medications have figured especially prominently. A recent $1.4 billion settlement by Eli Lilly & Company related to improper promotion of its top-selling drug olanzapine included the largest individual corporate criminal fine in U.S. history.

Improper promotion is far from the sole reason why olanzapine and other “second-generation” antipsychotic (SGA) drugs have become so successful. Rather, the widespread adoption of SGAs represents a collective judgment error by the medical profession. For policymakers, the olanzapine litigation is important because it provides an impetus for learning what makes certain drugs successful and for understanding processes that determine medication choices, physicians’ judgments, and expenditures for drugs. Litigation will not solve problems with these processes, so understanding them is crucial if regulatory agencies and other entities wish to avert future medical judgment errors and suboptimal uses of healthcare dollars.

To promote this understanding, we first describe the rapid switch from older drugs to SGAs and summarize recent evidence suggesting that the switch was improvident. We then review the lawsuits brought against Lilly, which exemplify the many types of liability claims that drugs may generate. We next describe marketing techniques that drug companies use to get physicians to prescribe their products, the special features of SGAs that have contributed to their huge success, and the ways that pharmaceutical companies exercise virtually total control over the information doctors use to prescribe drugs. We suggest that funding more independent, comparative effectiveness studies and giving pharmaceutical companies incentives to generate and disclose more information about their products’ flaws might produce better medications, help physicians make better treatment decisions, and improve patient safety.

antipsychotic, second-generation, side effects, off-label

Abstract:
This article provides a psychiatric perspective on the problems Atkins raises for courts that handle death penalty cases. In contrast to the overarching aim of the majority's opinion in Atkins - making the administration of capital punishment more equitable - the Supreme Court's latest prescription of psychiatric help may only add a new layer of complexity and confusion to the already capricious process through which the U.S. criminal justice system imposes death sentences. The article briefly review's the Supreme Court's 1989 Penry decision, focusing on the role that evidence of mental retardation played in death penalty cases before Atkins was decided. The article then looks at how the Supreme Court majority in Atkins characterized the appellant's mental condition and the diagnostic process. Subsequent sections discuss: the process of diagnosing mental retardation, the ambiguities in that process, and the way that courts and legislatures may distort clinical diagnosis for use in legal proceedings; the contradiction between professional organizations' treatment of, and response to, Atkins and these organizations' customary stance on the use of diagnoses for non-clinical purposes; potential implications for capital defendants with psychiatric problems as incapacitating as, or more disabling than, mental retardation; the potential effect of Atkins on testimony by mental health experts; the effect of such testimony in future death-sentencing determinations.

death penalty, psychiatric expert testimony, mental retardation, diagnoses

Abstract:
This article describes a mathematical framework for conceptualizing the accuracy of forensic experts' opinions on competence to stand trial (CST) and explains how an expert's expressed opinion about CST can be decomposed into four elements: (1) contextual requirements of the defendant (determined partly by the defendant's past actions) that lie outside the defendant's future control; (2) personal attributes of the defendant that are relevant to competence; (3) the expert's intrinsic ability to distinguish competent from incompetent defendants; and (4) the expert's wish to favor or avoid certain types of outcomes (e.g., a preference to avoid seeing an incompetent defendant stand trial for a serious charge). Because experts are imperfect and have varying levels of confidence in their opinions, one can describe the accuracy of CST assessments by using receiver operating characteristic (ROC) analysis. The article describes some types of insights one might derive from ROC analyses of CST assessments if experts, at least for research purposes, expressed opinions as graded levels of confidence. Although no satisfactory gold standard exists for establishing the truth about a defendant's competence, statistical methods developed over the past two decades may allow investigators to make inferences about the diagnostic accuracy of experts' CST assessments.

competence to stand trial, expertise, receiver operating characteristic analysis, gold standard

Abstract:
In its June 2003 decision in Sell v. United States, the Supreme Court issued guidelines for forcible administration of medication to restore competence to stand trial. Among those guidelines is a requirement that the proposed treatment be medically appropriate. This requirement forces both testifying and treating physicians to consider some under-appreciated ethical issues: How can it be proper, or medically appropriate, for a physician to treat a patient when success makes the patient eligible for prosecution, a guilty verdict, and punishment? Can any meaningful consideration of what is medically appropriate treatment for a patient ignore the consequences of treatment which, in the case of many incompetent criminal defendants, includes the likelihood that they will regain competence, be prosecuted, and be punished? Where defendants are charged with capital crimes, can it ever be medically appropriate for doctors to administer antipsychotic therapy, knowing that if convicted, their patient would face life in prison at the very least, and could possibly be sentenced to death?

This Article explains why medicating incompetent defendants is ethical, despite the practical consequences of such treatment. After reviewing background information, the Article lays out what the author believes is the strongest argument - grounded in medical ethics, as opposed to legal concerns - that one might advance for opposing the treatment of many incompetent defendants. Using a Kantian conceptualization of punishment's justification, the Article shows that the same principles that permit fair, justly administered punishment also provide physicians with an ethical imperative to give defendants competence-restoring medical therapy.

competence to stand trial, psychotropic medication, restoration, punishment, retribution, Kantian

Abstract:
Antipsychotic medications figure prominently in the rapidly-growing field of mental disability law. Although the properties of antipsychotic medications are medical matters, legal scholars, judges, and practicing attorneys often need to understand what these drugs do. Yet the legal database - the principal or sole information source cited and consulted by legal thinkers - is often a source of confusion or misinformation about the actions of antipsychotic drugs and the scientific basis for prescribing them. The potential for misunderstanding antipsychotic treatment has increased since the arrival of "novel" or "aytpical" antipsychotic drugs, which cause fewer side effects than drugs that were commonly used a few years ago. Courts and legal scholars must evaluate antipsychotic drugs without being misled by distorted and increasingly outdated descriptions that appear in case law and secondary legal sources.

This article discusses the legal significance of, and unresolved issues related to, the recent advances in the psychopharmacology of psychoses. The article summarizes psychiatry's current views on the nature of schizophrenia and its pharmacotherapy, the legal and policy consequences stemming from the high cost of novel antipsychotics, and potential sources of liability that might arise from financially motivated decisions about drug choices. The article then reviews litigation on the right to refuse treatment with antipsychotic medication, focusing on how the benefit and side effect profiles of novel agents have influenced courts' perceptions of and decisions about involuntary administration of these drugs. The article also presents a short quantitative summary of published cases that mention novel antipsychotic agents.

Abstract:
U.S. courts frequently require forensic examiners to offer opinions concerning the likelihood that criminal defendants found incompetent to stand trial can have their competence restored through treatment. Yet no jurisdiction has established legal guidelines for testimony concerning restorability, and several authors have suggested that mental health professionals cannot accurately predict whether treatment to restore competence will succeed. This study asked whether reliable information that is consistently available at the time of examination might support empirically grounded opinions about the likelihood of restoration. Using records from all 351 inpatient pretrial defendants who underwent competence restoration at a state psychiatric hospital from 1995 through 1999, I evaluated whether several types of information that are reliable and that could consistently be made available to forensic examiners - including evaluees' demographic characteristics, diagnoses, symptom patterns, criminal charges, number of prior public sector hospitalizations, and cumulative prior length of stay (LOS) - would predict outcome of restoration efforts. I modeled the probability of successful restoration using logistic regression equations, and evaluated the equations' predictive accuracy using k-fold cross-validation and receiver operating characteristic (ROC) analysis. Lower probability of restoration was associated with having a misdemeanor charge, longer cumulative LOS, older age, and diagnoses of mental retardation, schizophrenia, and schizoaffective disorder. Although the overall rate of successful restoration for felony defendants was 75 percent, logistic equations allowed selection of subgroups with high predicted probabilities of restoration (>90%) and low probabilities of restoration (<35%). In cross-validation simulations, predictive equations had ROC areas of 0.727 for all defendants, and 0.735 for felony defendants. These findings provide scientific support for testimony that two types of incompetent evaluees have well-below-average probabilities of being restored: chronically psychotic defendants with histories of lengthy inpatient hospitalizations and defendants whose incompetence stems from irremediable cognitive disorders (such as mental retardation). Nonetheless, courts may still deem low probabilities of success to be substantial enough to warrant attempts at restoration.

courts, forensic examiner, criminal defendant, incompetent to stand trial, competence restoration, prediction, logistic regression, probability, schizophrenia, mental retardation, cross-validation, expert opinion, testimony

Abstract:
Daubert v. Merrell Dow Pharmaceuticals (1993) held that trial judges should permit expert scientific testimony only when the reasoning or methodology underlying the testimony is scientifically valid, and ... properly can be applied to the facts in issue. Vallabhajosula and van Gorp (V & vG, 2001) have suggested that when the Daubert standard is applied to tests for malingered cognitive deficits, courts should deem admissible only results that meet this mathematical standard: assuming a pretest probability of .3, a positive score on the malingering test should yield a posttest probability of at least .8. This paper shows that V & vG's criterion may lead to misunderstandings about the kind of information maligering measures provide. After reviewing cases that have discussed both the Daubert decision and malingered cognitive deficits, this paper uses data from the Test of Memory Malingering (T.N. Tombaugh, 1996) to provide a general characterization of the mathematical properties of malingering measures. The paper then describes how pretest knowledge about malingering is combined with knowledge about a test's performance to generate a posttest probability of malingering. The results can help mental health experts respond to Daubert-inspired challenges to conclusions based on malingering measures.

Cognition Disorders, Malingering, Psychological Tests, Bayes Theorem, Predictive Value of Tests, ROC Curve