Chapter 49 Forensic Addiction Psychiatry

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DOI: 10.1176/appi.books.9781585623440.359350

Textbook of Substance Abuse Treatment >

Chapter 49. Forensic Addiction Psychiatry

FORENSIC ADDICTION PSYCHIATRY: INTRODUCTION

There is an increasing probability that the addiction clinician will, willingly or not, come into

contact with legal issues in the course of practice. This reflects many trends, including the

widespread use of substances of abuse, increases in the prison population, increase in litigation,

and professional interest in forensic psychiatry. After all, violence, suicide, interpersonal conflicts,

lawsuits, psychiatric commitment, and even crimes (and sentences) are often a part of the lives of

those who misuse substances. Traditionally, such involvement has been divided into the realm of

either the expert forensic consultant or the clinician. With the growth of systems for mandated

treatment as “diversion” from judicial interventions (e.g., drug courts; see Chapter 33 in this

volume, “Community-Based Treatment”), this dichotomy has been blurred further, and many more

addiction psychiatrists may be formally engaged in forensic psychiatry. At a minimum, such work

requires solid clinical skills, but it also requires an adequate familiarity with one’s role in the legal

system.

Clinicians who deal with addiction need a grasp of forensic issues in order to practice with skill and

to communicate effectively in legal settings. This chapter is geared toward the general or addiction

psychiatrist who needs guidance in the intersection of substances and the law. We cannot comment

on every conceivable forensic role of the addiction psychiatrist. Instead, we provide a basic

approach to forensic addiction psychiatry, and then we discuss key points to a variety of settings in

which clinicians may be asked to provide an opinion. For legal issues that come up in clinical care

(such as confidentiality, Tarasoff duties, or liability reduction), rather than in judicial settings, the

reader is directed to Lifson and Simon (1998) or Gutheil and Appelbaum (2000).

FORENSIC PSYCHIATRY: PROCESS

In any situation in which a clinician has been asked to respond specifically to the question(s) of an

authority, the process by which that answer is created is as important as the content of the answer

itself. The pieces of the process that are most important include those that ensure that the

communication is consistent with the ideals of the American Academy of Psychiatry and the Law

(2005): honesty and objectivity. Considerations of this process are discussed below.

Communicating Psychiatric Information to Legal Bodies

“Forensic” (adj.) Used in or suitable to courts of law or public debate

—Garner 2003

Consideration of the practice of forensic psychiatry depends on an understanding of the

fundamental differences between it and clinical work. Although clinical psychiatry and forensic

psychiatry are both based on solid knowledge of current medical information and, when

appropriate, careful assessment of the individual and his or her mental state, they differ in their

goals. Forensic psychiatry is the provision of objective statements regarding psychiatric conditions

for certain audiences that seek responses to specific questions. The forensic psychiatrist’s need to

eschew bias and to “strive for objectivity” is disparate from the clinician’s interest in altruistic

clinical intervention and the clinician’s method of communication with other clinicians. These

differences dictate the need for clinical and forensic practice to be separate and unique approaches

to the individuals, organizations, or institutions with which the forensic practitioner has contact.

Engaging in forensic practice requires an understanding of how to create, communicate, and

protect one’s findings and opinions in manners suitable to courts or other such institutions.Print: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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Basic legal settings

To communicate effectively with the legal world, the clinician must be acquainted with basic rules

and features of American law as well as the particular features of the local jurisdiction (Group for

the Advancement of Psychiatry 1991; Gutheil 1998; Rosner 2003). Whether either party is the

government, a person, an insurance company, or a regulatory body, nearly any case with which a

psychiatrist may become involved is set in an adversarial framework, in which opposing sides are

pitted against each other. More than any other area, it is essential for the forensic expert to

understand his or her limited, yet thoughtful, role: the production of an opinion that is as unbiased

and objective as possible. The opinion or finding should be malleable in the face of further

pertinent information to which the practitioner is exposed, but more than advocating for any

party’s overall position, the expert’s duty is to protect his or her own opinion from intentional or

unintentional distortions, obfuscations, or other misuse by any of the parties.

Fact versus expert witness

Professionals who testify in a deposition, hearing, or trial may do so as witnesses of facts or as

experts. It is important to maintain the distinction between these roles, and one must think ahead

about which role he or she is being asked to perform. A clinician who is asked to describe his or her

patient or who is asked (perhaps via subpoena) to produce his or her records on the patient is

serving as a fact witness. This is very different from the expert, who, in cases of crime or litigation,

has been asked to give an independent opinion related to the legal questions at hand. In judicial

settings, any duly trained clinician is called an expert vis-à-vis the expertise he or she brings to the

setting—one does not need to be an academic superstar to receive this appellation. Clinicians

should be very careful about offering to serve as experts in cases involving their own patients—to

do so almost certainly will affect the treatment, and it may be impossible for the clinician to

maintain the objectivity required of the expert witness. Occasionally, individuals seeking a short

cut to a physician’s legal testimony pose as bona fide patients and attempt to use the medical

record (which is a legal document) to their benefit. It is not uncommon for one parent in a custody

battle to request the clinician to testify on his or her behalf—to do so would inject transference and

countertransference into the therapeutic relationship with both the patient and his or her parents.

Crossing this line is ethically prohibited by the American Psychiatric Association and American

Association of Psychiatry and the Law guidelines. The reader is referred to Gutheil (1998) for

further details on this question of “wearing two hats.”

Distinctions between medical diagnoses and legal definitions

What does the legal system need from a forensic opinion? Attorneys, juries, and judges need an

explanation regarding an area of expertise. Certain clinical terms that are spoken naturally among

other clinicians may tend to be misunderstood in the adversarial setting. The forensic psychiatrist

should be able to discuss his or her opinion in language that can be understood by a lay audience

while retaining clinical utility. Some terms are easily misused in adversarial settings or even in

laws and regulations. For example, unlike the medical usage of narcotic to refer to an opioid, a

standard law dictionary defines narcotic as “An addictive drug. . .A drug that is controlled or

prohibited by law” (Garner 2003). The clinician communicating with nonmedical bodies must work

to ensure that relevant, yet correct, language is used.

The potential for misuse of language is particularly important in diagnosis. In forensic situations, it

is essential to use diagnostic terms that are accepted by all parties. Addiction is a word that carries

biological, behavioral, and social connotations. It should not be misused in a legal context. Among

physicians, it has been interchangeable with substance dependence, and this has been linked to

demonstrable alterations in neural activity. Some experts also use addiction to distinguish

dependence on illicit substances from chemically induced dependence by medications. However,

the medical community also has come to consider food, gambling, and sexual intercourse as

addictions. Attorneys, clients, and some doctors may apply the suffix -ism to any behavior they

wish to portray as compulsive or uncontrollable. Caution is necessary when addiction is used toPrint: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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discuss behaviors beyond substances of abuse because there has been a backlash to the expanding

application of this word.

In most jurisdictions, the standard is the current classification of mental disorders, the American

Psychiatric Association’s (2000a) DSM-IV-TR. Courts and attorneys frequently misunderstand

DSM-IV-TR substance use disorder diagnoses and need the expert to provide clarification.

DSM-IV-TR has an imperfect fit with the needs of courts: for example, the court often asks the

expert for predictions on the future, or degree of dangerousness, neither of which has a DSM

category. This awkward fit reflects a problem for the psychiatrist in the courtroom—remember that

although one may feel pressured to, one should refrain from making predictions that one cannot

quantify or validate. Courts also should be reminded that an abnormal finding on a test or an

instrument does not imply a diagnosis.

Chemical dependency is another term that is used in legal arenas, frequently in probate or mental

health courts, which may commit individuals to emergency or long-term care. The law defines

chemical dependency in terms of deleterious effects of alcohol or drug use, but it is typically not

specifically tied to DSM criteria. Physicians asked to comment on alleged chemical dependency

must know the legal rather than simply the clinical criteria for this status.

Clinical Assessments for Legal Bodies

Although courts or attorneys may ask for it, there is no such thing as a “complete psychiatric

assessment.” The expert psychiatrist must help the attorney or the court pose a specific question to

be answered in his or her report and testimony. Every forensic psychiatry assessment must be done

with a particular focus and a specific question in mind. The forensic assessment of a subject who

abuses substances must include a thorough review of all history, including medical, psychiatric, and

social function. Collateral sources of historical information are essential. Sinha and Easton (1999)

have provided a useful guide for the Forensic Substance Abuse Evaluation.

In addition, standardized instruments and laboratory tests may be presented as past medical

records, or they may be obtained by the expert. Use of standardized instruments, such as the

Michigan Alcoholism Screening Test, is acceptable because these may provide normalized data with

which to make comparisons. Laboratory studies may be important, depending on the time frame

and setting, but it is essential to know what tests are being ordered and their significance. For

example, a urine drug screen for alcohol gives different information than does a serum

carbohydrate-deficient transferrin (CDT) test. In addition, sensitivity, specificity, and the potential

for false-positive or false-negative results vary in each case; some addiction clinicians and many

forensic psychiatrists are unaware of the qualities of each laboratory study and of the potential for

false-positive results on a test such as the CDT (Fleming et al. 2004). Even the presence of an

abnormal CDT, liver enzyme, or macrocytic anemia level, and any other pathophysiological effects

of exposure to alcohol, does not necessarily imply addiction or dependence, and such claims seem

necessarily incomplete (Baron et al. 2005). To ignore such possibilities serves neither the

individual, the profession, nor justice.

FORENSIC PSYCHIATRIC CONTENT: AREAS OF FORENSIC ADDICTION

EXPERTISE

Violence and Crime and Substances

The connections between violence, crime, and substances have been recognized to some extent for

most substances of abuse, but these links continue to be elucidated. In this chapter, we discuss

violence toward others, but the various associations between substances of abuse and suicide have

been studied as well (for a review, see Mack and Lightdale 2005).

Violence and aggression

Aggression is defined as overt behavior with the intent to inflict noxious stimulation or to behave

destructively toward another organism. Violence is aggression among humans. Hostility is defined

as unfriendly human attitudes, including tantrums, irritability, refusal to cooperate, and suspicion.Print: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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All of these behaviors can cause significant short- and long-term problems for the actor, and it is

important to consider the ways in which substances of abuse may promote these behaviors.

Substances of abuse may promote aggression, hostility, or violence by heightening physiological or

psychological states, including anxiety, paranoia, confusion, agitation, irritability, grandiosity,

sensation, motor reactivity, or vigilance. The effects of substances on such behaviors are

independent of major mental disorder (Steadman et al. 1998). Substances may effect aggression,

hostility, or violence during intoxication or withdrawal, during a substance-induced psychiatric or

neurological state, or as a result of the comorbidity that comes with use. These effects vary

according to the particular substance: intoxication may be associated with irritability, grandiosity,

poor judgment, confusion, or psychosis, all of which may lead to aggression. Withdrawal also might

include agitation, delirium (which often includes violence, albeit disorganized), or anxiety.

Substance-induced psychiatric states (mental disorders caused by ongoing use of a substance)

might create conditions with some increased violence risk, including reversible or irreversible

cognitive deficits, mood disorders, psychosis, or seizures. Finally, comorbid conditions add to

violence risk (Steadman et al. 1998; Swanson 1994), especially when the patient is nonadherent to

treatment or has a personality disorder as a comorbid condition.

Crime is distinct from violence in that it is a social construct. Crime is also linked to substance use,

although a causal relationship cannot be as well defined as in the case of violence. Of the people

arrested for violent offenses, 70% test positive for substances of abuse (Sinha and Easton 1999).

Evidence suggests that alcohol use commonly precedes or accompanies violence between sexes,

especially among male perpetrators (Leonard and Quigley 1999), and that the risk of child abuse

and child neglect is increased when substances are used (Schuck and Widom 2003). In the United

States, 34% of the risk for community violence is attributable to substance use (Swanson 1994).

Forty percent of the risk for homicide by Finnish men was found to be attributable to alcohol use

(Eronen et al. 1996).

Comorbid substance use and psychiatric disorders

There is a significant difference in the dangerousness associated with severe mental disorders

when substance abuse enters the picture. Investigation, particularly the MacArthur Violence Risk

Assessment Study, has shown that persons with co-occurring substance use and psychiatric

disorders are more frequently violent than are persons in the general population who do not have a

psychiatric or substance use diagnosis or persons who have severe mental illness alone (Steadman

et al. 1998; Swartz et al. 1998). The most important findings over the past decade have shown that

violence is not usually associated with major mental disorders that occur in isolation: perhaps only

4% of reported violence is the result of mental disorders (Swanson 1994). However, when these

mentally ill patients use substances, the risks of violence increase dramatically (Steadman et al.

1998). Added to this risk is the finding that treatment noncompliance increases the risk of violence

(Torrey 1994) and that treatment noncompliance increases with substance use (Swartz et al.

1998). This line of research has shown that substances play an important role in violence among

those with major mental disorders.

Alcohol

The documented relationship between alcohol and aggression is based on epidemiological evidence

(Murdoch et al. 1990) and “laboratory” evidence in which intoxication is effected in controlled

environments (Bushman and Cooper 1990) followed by situations engendering anger toward

others. Note that individuals with antisocial personality disorder are 21 times more likely to

develop alcohol use disorder (Moeller and Dougherty 2001). Alcohol use can include physiological

states that have risks of aggression.

Intoxication causes behavioral dyscontrol and adrenergic reaction

Withdrawal includes agitation, restlessness, or delirium in severe states

Neurological injuries or disease caused directly or indirectly by alcohol

Cognitive impairment following chronic usePrint: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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Given these scenarios and others, it is important to consider history and future risk of violence in

those who use alcohol heavily.

Cannabis

There is an increasing understanding that cannabis is not as benign as previously thought, and this

includes literature on cannabis, violence, and crime. Cannabis, which remains the most widely used

illicit substance worldwide (United Nations 1997), may affect the tendency to be violent or

disruptive in heavy users who are experiencing withdrawal. A cannabis withdrawal syndrome with

increased cortisol-releasing factor (Tanda et al. 1997) and aggression, restlessness, and irritability

has been defined and recognized by some investigators (Budney et al. 2004). In addition, both

youth and adult cannabis users frequently have comorbid psychiatric disorders.

Cannabis use is frequently a part of the lives of those who commit crimes. Cannabis use is highly

associated with crimes involving weapons and crimes such as reckless endangerment and

attempted homicide (Friedman et al. 2001). Of all those convicted of homicide in New York State in

1984, marijuana was the “most commonly used illicit drug” (Spunt et al. 1994). Cannabis

dependence is associated with increased violent crime (Arseneault et al. 2000). Finally, one study

that compared the effect of drugs on the likelihood of violence between groups of youths of “high”

and “low” delinquency found the only significant effect to be mediated by cannabis (Friedman et al.

2003).

Other substances

Data support increased risk of violence when other substances are used, including opioids

(especially during withdrawal); phencyclidine (PCP), in which the risk occurs during the agitation

and confusion of intoxication; cocaine, which has risk of violence to others during the irritability or

psychosis of intoxication and a risk of agitation during withdrawal; and nicotine, which has a risk of

agitation during withdrawal.

Effect of Substance Use Disorders on the Criminal Process

The criminal process is a stepwise pathway that jumps from the prohibited action (the actus reus)

to prosecution of and the assignment of blame (conviction) for the action. Along the way, various

events in law enforcement or judicial settings call for decisions on how to proceed: whether to

report an incident, whether to prosecute, under what crime to prosecute, whether the defendant

may stand trial, whether he or she can be held responsible, whether he or she had—or could have

had—the requisite “evil mind” (mens rea) or intent for that crime, what the punishment should be,

and so forth. The opinion of the addiction expert may be helpful with any of these decisions. The

criminal defendant’s addictive disorder is particularly important in terms of the mitigation of

responsibility, when substance use treatment is mandated as an alternative to incarceration, or

when the long-term medical or psychiatric effects of substances interfere with the defendant’s

ability to proceed in the criminal process. However, intoxication or addiction alone is almost never

accepted as a complete defense in determining responsibility for a criminal act. Each state has laws

that may relate to the potential for intoxication or addiction to be a mitigating factor for culpability

in certain crimes. Potential experts should understand the nuances of these positions. In each

state, laws define specific criteria that must be met as a part of any expert’s opinion, and the

expert must have a grasp of that legal language before engaging in any consultation.

Criminal defenses

In a few special situations, responsibility cannot be assigned to a criminal offender. These

situations include “insanity,” involuntary intoxication, and being otherwise incompetent (such as

being a minor). Over time, case law and statutes have almost completely eliminated voluntary

intoxication as a defense against responsibility for any crime. However, involuntary intoxication

may be exculpatory. This term reflects situations in which intoxication occurs via trickery, under

duress, or as a result of a previously unknown vulnerability to an atypical reaction to a substance

or side effect of medication (Myers and Vondruska 1998). Some jurisdictions have specificPrint: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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guidelines and limitations for an acceptable involuntary intoxication defense (Downs and Billick

2000). A possibly exculpatory condition is “settled insanity”: a situation in which long-term use has

led to a chronic brain injury that is different from an acute intoxication or toxic psychosis (Slovenko

1995).

Although voluntary intoxication is not an excuse for criminal acts, it may alter the law under which

the individual is prosecuted (Slovenko 1995). When “specific intent” is required to be convicted of

a particular charge (e.g., murder rather than manslaughter for a homicide), voluntary intoxication

has been successfully used as a defense against intent (that the perpetrator could not have had the

specific intent required for a murder conviction). In some states, when accidents occur while a

person is intoxicated, the forensic psychiatrist is asked to investigate the presence or absence of

mens rea when the substance was first ingested (Wagenaar and Toomey 2002). The psychiatric

expert must check with the attorney as to which charge is a specific intent crime and which rules

apply in the relevant jurisdiction for that case.

The concept that an intoxicated offender may not be able to recall or comment on an act because

he or she was in a state of “blackout” is very controversial in legal context. This has been advanced

as a defense for culpability and for mens rea. This condition is supported by little evidence-based

medical information, but most addiction psychiatrists and lay people are familiar with the clinical

phenomenon. Forensic psychiatrists, especially those without much experience in addiction

psychiatry, may misuse, inappropriately downplay or identify, or otherwise misapply the term

blackout. Concerns about malingering have fed doubt in the courtroom about whether and how the

occurrence of a blackout can be clearly determined. One study found that blackouts can occur

during criminally relevant behavior, but they rarely occurred at blood alcohol concentrations of less

than 250 mg/100 mL. A good approach is to seek subjective data such as blood alcohol

concentrations and to analyze the nature of the offense because blood alcohol concentrations high

enough to produce blackouts also would likely impair fine motor control and make it difficult to

perform acts such as firing at a target from a far distance (van Oorsouw et al. 2004). It is

important to distinguish this effect of intoxication from amnesia: a blackout is a period for which

memory is not ever recorded, whereas in amnesia, previously known information is forgotten.

In some situations, intoxication alone may directly establish a defendant as guilty. Crimes such as

driving while intoxicated or driving under the influence are called “strict liability crimes.” For such

charges, mens rea is not required for a conviction; the actus reus is simply the intoxication. All that

is required is evidence that the legal standard for intoxication was met. Some states have

mandated maximum sentences in cases in which death resulted from a driver who was driving

while intoxicated or driving under the influence. These sentences are applied even if the influence

by the substance is shown to have played a minimal role in the events leading to the death.

Sentencing recommendations

Following a criminal conviction, a defendant enters the sentencing phase of the legal process. In

various jurisdictions, psychiatric opinions may play an important role in the sentencing phase. The

psychiatrist can wield great influence in identifying substance use disorders and in making clear

recommendations for treatment both during a sentence and after the sentence would be completed.

A recent case in the federal system, United States v. Booker (2005), provides leeway to U.S. district

court judges to diverge from sentencing guidelines if the presence of psychiatric disorders

(including substance use disorders) substantially affected some part of the criminal behavior.

Correctional addiction psychiatry

A record proportion of the American population is currently under some sort of criminal justice

supervision, and most of these individuals have active substance use disorders or dual diagnoses

(Abram et al. 2003; Peters et al. 1998). Correctional tends to refer to the settings in which

individuals in the criminal justice system are under some sort of supervision during the stepwise

course through the judicial process: not only institutions of incarceration (jails or prisons) but also

the periods in which the individual lives in the community under supervision either before a trialPrint: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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(pretrial release), as a part of punishment (probation), or as a manner of early release from

incarceration (parole or supervised release). As a result, psychiatrists must be prepared to advise

on screening, treatment, making recommendations for release conditions, and also being a part of

the treatment for those reentering the community. Both the American Psychiatric Association

(2000b) and the National Commission on Correctional Health Care (2003) have developed

guidelines for correctional facilities, and the Office of Juvenile Justice and Delinquency Prevention

(2005) has created guidelines for clinicians who come into contact with incarcerated youths.

Incarceration is a setting in which the individual is removed from the community, and the attention

that needs to be given by addiction specialists at the various stages of incarceration varies

according to the setting and its purpose. Broadly speaking, the individual exist in three very

different incarceration ecologies: 1) the lockup (on arrest); 2) jail (following arraignment, during

trial, prior to sentencing, or in sentences of up to 1 year); and 3) prison (postsentencing for more

than 1 year). Substance-related disorders may appear at any point in the incarceration process, and

ongoing, focused surveillance should be a part of every correctional system. For example,

appropriate short-term clinical attention may be needed to treat the aggression of intoxication,

reducing the potential for morbidity and mortality associated with intoxication (e.g., cocaine) or

withdrawal (e.g., alcohol).

Proper recognition of substance use disorders can lead to long-term benefits for the institution and

for society: when individuals receive treatment for addiction, research has shown that focused

rehabilitation-oriented treatment can lead to favorable outcomes following incarceration, including

decreasing drug use and criminal activity and improving overall functionality (Gendreau 1996;

Mateyoke-Scrivner et al. 2004), and it is more so if aftercare is provided (Griffith et al. 1999). A

recent study in England reported substantial decreases in criminality in individuals with substance

use disorders following voluntary participation in either residential or outpatient treatment

programs (Gossop et al. 2005). Unfortunately, in reality, the typical levels of available psychiatric

and medical services differ greatly among these settings (Weinstein et al. 2005). Psychiatrists

should be advocates for ensuring that appropriate services are available at these various stages.

Screening

Any drug of abuse may be carried by an individual when he or she enters custody directly from the

outside world, and many arrestees have been using just prior to arrest. This intake is a critical

moment when the staff must carefully examine the individual for intoxication, overdose, or active

withdrawal from any substance—especially alcohol, benzodiazepines, or other sedatives. Those who

are surrendering often have a “last hit” before entering incarceration. Ironically, for long-term

users who are not actively intoxicated or in withdrawal, the opportunity to be referred to

rehabilitation programs can be missed at screening. The clinician should use all available data,

including testing and medical history, to guide more detailed screening.

Substance use disorder prompts further, specialized medical assessment for associated pathology

such as infectious disease, cardiac injury, or thromboembolic events or potential (Baillargeon et al.

2003). Screening for substance use disorders also must be geared to detect comorbid psychiatric

conditions, which are common among the addicted incarcerated population.

Treatment and rehabilitation

The correctional setting provides the opportunity for abstinence, treatment, and possibly

rehabilitation. Several studies have shown that residential treatment during incarceration followed

by continued care in the community led to reduction in recidivism and relapse (Belenko and Peugh

2005). However, because of the lack of standardized and validated clinical assessment tools in

correctional facilities, little information is available about the treatment needs of inmates.

Substance use disorders in this population are often accompanied by a variety of other concerns,

including mental health issues, unemployment, and lack of education, which make successful

treatment and recovery more difficult; these issues typically are not addressed by currently

available resources (Belenko and Peugh 2005).Print: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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The available resources for long-term treatment of addictions vary greatly among the incarcerated.

Unfortunately, most prison systems do not address addiction in long-term inmates, and when

available, long-term residential programs fail to address treatment issues of inmates with shorter

terms of incarceration (Belenko and Peugh 2005). In some systems, addiction is addressed only in

the last months of incarceration. Other systems have ongoing Alcoholics Anonymous meetings,

education, and group and even individual psychotherapies.

The lack of access to adequate treatment for addicted and mentally ill people in the general

population contributes to the large numbers who are arrested. Also, unfortunately, substances do

make their way to prisoners, for whom short-term detoxification may be the appropriate first step.

Nonincarceration correctional settings

For both those referred directly to probation and those released after some period of incarceration,

the risks of ongoing use are tremendous. Yet, this represents an important period in which

abstinence can be maintained while in the community. For those who are being released from

incarceration, this risk is present regardless of whether the release is sudden, planned, or after a

short time or a long time. In vast numbers of U.S. jurisdictions, the capacity for local justice

systems to create a solid plan for care and monitoring is low. Upon discharge, both those with

substance use disorders and those with substance use disorders comorbid with psychiatric

conditions are at high risk for relapse, which may affect criminality as well. One Scottish study

found that of the increased deaths after release, many had injection drug use, especially with HIV

(Bird and Hutchinson 2003). Data suggest that psychosocial aspects of reentry are the most

important in reducing relapse and recidivism (Rounds-Bryant et al. 2004).

Addiction psychiatrists may work with parole boards, probation officers, or pretrial service agencies

to mandate treatment following release. Depending on the prevailing law, parole, probation, or

pretrial agencies may mandate treatment according to their own authority by referring the case to

the court or by referring parolees to mandated treatment programs (see the section “Mandated

Treatment: The ‘In Between'” later in this chapter). When asked by a court to suggest a treatment

plan for the parolee, the addiction psychiatrist should offer multiple modes of multidisciplinary

treatment and surveillance. One should consider residential, group, or day treatment; medication

management; and other treatments. The period of treatment should be for a minimum of 1 year.

Random screens are best done twice weekly. Attendance at activities should be required. The

clinician should reevaluate at regular intervals.

Civil Matters and Family Law

Civil law is the part of the judicial system that addresses conduct and conflict among a wide range

of noncriminal human interactions—from family issues such as divorce and custody to personal

injury, negligence, wills, and estates. Individuals involved in such matters may be encumbered by

addictions. As in criminal proceedings, the psychiatrist may be asked to play a role in civil cases as

either a fact or an expert witness. The psychiatrist may be asked to place substance use in the

context of past behavior or to make predictions about future behavior. We review several

frequently visited topics in this section. For issues relating to the workplace, see Mack et al.

(2005).

Family and matrimonial law

In disputes over divorce, custody, guardianship, adoption, or child safety, the substance use of any

involved party is commonly at issue. The fiercely adversarial nature of these proceedings often

impedes the formation of a valid picture. In such situations, the evaluating psychiatrist functions

best when appointed by the court rather than being retained by either opposing side. It is crucial to

evaluate all involved parties. Appropriate consent must be obtained before the examination of a

minor. The psychiatrist is often asked to comment on the substance use of parents and its effects

on the child. Although the presence of a substance use disorder does not necessarily mean lack of

parental fitness, it certainly is a factor that should be considered. Recommendations for custody

and visitation may be made with substance abuse treatment as a condition.Print: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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Personal injury

Substance abuse issues often arise when one party that alleges injuries sues another party for

damages. Either side may allege that the other was intoxicated at the time of the injury and may

seek the help of a psychiatrist to establish or to negate such claims. The effect of long-term

addiction also may be raised. Injured parties may blame the party that provided the substance of

abuse. Many cases have exposed the liability of bars, bartenders, and parents of minors (Mack et al.

2005). For example, parents who allow a minor to serve alcohol or to use alcohol on their premises

may be breaking the law and are exposing themselves to civil liability. Sexual harassment cases

may be brought in either criminal or civil settings, and addictions may be raised as an issue in such

cases as well.

Disability

Claims of disability based on addictions may be made to private insurance companies or to the

federal government. Addiction psychiatrists are naturally the experts of choice for such cases. They

may be retained by the individual claiming disability or by the insurance company for an

“independent medical examination.” If the case goes to court, expert testimony will be included.

Any physician who completes paperwork certifying disability should consider the possibility that he

or she may be called to testify about his or her findings in court. Management of addictions in

patients with chronic pain complaints is clinically complex; this complexity translates into the

expert question of whether returning to work is possible. The treating psychiatrist might do well to

refer a patient for consultation with an addiction psychiatrist or pain expert when faced with such a

question.

Other areas

An addiction psychiatrist may have special expertise in other areas of civil law. In malpractice

cases, a patient may allege that a physician caused him or her to become addicted to substances, or

a patient may claim that his or her physician was impaired by substances. Of the impaired

physicians in state health and recovery programs, 50%–70% are there because of substance use

disorders. Because workplace actions frequently lead to legal consequences, the addiction

psychiatrist is frequently involved in consultation regarding the workplace (Wagenaar 2001). The

presence of substance use is frequently a part of retrospective challenges to testamentary capacity

(Shulman et al. 2005; Spar and Garb 1992).

Addiction and Administrative Law

Administrative law refers to the expectations, due process procedures, and practices of various

regulatory bodies that have oversight over the status of individuals involved in professions,

athletics, the military, and other areas of social activity (sometimes including driver’s licenses). For

example, when a state medical board investigates a physician, it adheres to its own regulations and

requirements, also known as administrative law. In some cases, military or other administrative

law proceedings require psychiatric input about addiction. These include noncivil and noncriminal

institutions such as athletic, security, licensing, or ethics bodies. The English Civil Aviation

Authority or the American Federal Aviation Administration may hold hearings on pilots licenses, and

entry into sensitive government employment may be barred by a history of substance use alone.

Driver’s license questions are usually handled in general criminal courts, but decisions on

noncriminal aspects of driving may be decided by administrative bodies in some states.

Each institution or organization has different interests when considering substance use.

Administrative bodies may seek evidence about a licensee’s degree of substance use and its effect

on ability to perform, or other bodies may be attempting to determine whether the individual

should be offered employment. The key tool for the expert is the language of the regulations or

statutes under which the individual is being scrutinized. This ranges from the person being

“alcoholic” to having been intoxicated with a blood alcohol level greater than 0.04% (above which

airplane flying is impaired; Dave 2004). In some cases, the forensic expert is asked by an employerPrint: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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to perform a “fitness for duty” evaluation; in other cases, an individual who is in the process of

losing his or her status has the right to bring forth evidence (in the form of an expert’s opinion)

that he or she does not have problems with substances. When their opinions are in opposition to

the interests of the individual, forensic experts often weather a great deal of scrutiny and criticism

because the livelihood or other special aspects of the individual’s life are at stake.

MANDATED TREATMENT: THE “IN BETWEEN”

Between functioning as a clinician and as a forensic expert, physicians play a part in a growing

number of settings in which treatment is mandated by a body of authority (usually a court). The

cascade of names and laws for these systems might be confusing: these provisions may overlap in

some jurisdictions, they may have different names despite similar procedures and goals, and

motions for these systems occur in different types of courts (courts themselves may have different

names in different jurisdictions). In some areas, individual judges have created such courts de

novo without state legislation.

Court-ordered treatment has two major avenues. Although they may lead to the same end, these

systems represent different goals. First are the systems designed to move disordered criminal

offenders out of the justice system into treatment. Second are the laws that provide for the

involuntary commitment (inpatient or outpatient) of patients whose disorder has endangered

themselves or others (Monahan et al. 2005). Many of these systems are exclusive for either

substance use or psychiatric treatment, and many jurisdictions have systems for only one of these

two realms of treatment. A central dilemma of all of these programs is whether treatment of

addictions is possible when it is forced on the individual (given the success of these programs,

however, this dilemma should spur important academic thought about addiction treatment

generally). Psychiatrists with knowledge of addictions can play a major role in these proceedings,

and judges are often welcoming of such advice.

Criminal Diversion

Diversion refers to institutions, practices, and laws that divert criminal offenders who have a

mental disorder or a substance use disorder out of the standard criminal justice system and into

alternatives. This may occur at many different points in the criminal process, including prearrest,

prearraignment, pretrial, in lieu of punishment, or after some punishment. A comprehensive review

of the rationales for, and of the many types of, diversion programs can be found in a volume by the

Council of State Governments (2002). The core feature of diversion is that an authority releases the

offender from further blame or from punishment in return for engaging in treatment. Typically, the

offender must express to the authority (police, prosecutor, or judge) a voluntary willingness to

engage in treatment. It is unclear whether this willingness represents a wish for treatment or a

simple avoidance of criminal proceedings.

Drug courts are one type of diversion found in a limited number of jurisdictions. Drug courts

mandate treatment and seem to have low recidivism rates and lead to education, cost savings, and

drug-free infants. These programs are generally for nonviolent offenders with less serious charges

(e.g., misdemeanors). These institutions may protect the patient or the public from violence or

accidents, and they may reduce expenditure on incarceration or hospitalization, but some states

require a mental disorder other than a substance use disorder to be present. However, being in a

drug court may obscure the presence of a psychiatric disorder, and those involved should advocate

for awareness and diagnosis in such cases (Hagedorn and Willenbring 2003). Some have called for

the growth of co-occurring courts that deal with persons with both major mental disorders and

substance use disorders.

Involuntary Treatment

Mandated treatment exists in some jurisdictions for those with serious and pervasive substance use

disorders who have been or will likely become dangerous to themselves or others. Various states,

counties, and the federal government have been developing ways in which to intervene (Gerbasi et

49. 2000). Thomsen and Appelbaum (2002) have commented on the valid legal basis for thisPrint: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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approach. The U.S. Supreme Court ruled in 1961 in Robinson v. California that “A state might

establish a program of compulsory treatment for those addicted to narcotics. Such a program might

require periods of involuntary confinement, and penal sanctions might be imposed for failure to

comply with established treatment procedures” (Robinson v. California 1962).

As of 1997, 31 states and the District of Columbia had statutes specifically allowing involuntary

treatment or commitment for substance-dependent individuals. This treatment can be inpatient,

outpatient, or partial hospitalization. The criteria and process for commitment vary by state, but

usually they require a judicial hearing in which the individual’s or the community’s safety is

believed to be endangered by the refusal of the patient to receive treatment. Even in states in

which these statutes exists, we have found that many clinicians and families (and even judges or

attorneys) are unaware of them and, as a result, fail to benefit from the legal avenues available to

enhance patients’ entry into or compliance with essential treatment and care.

LIABILITY FOR THE FORENSIC EXPERT

Although the increased popularity of forensic psychiatry has been attributed in part to its insulation

from the various liabilities inherent in clinical care, any professional who performs high-stakes

evaluations and who must communicate them under great scrutiny (including legal requirements

for honesty) faces many liabilities. It is difficult enough to speak in a courtroom or even in front of

a stenographer, but it is even more difficult to do so under oath, in a cross-examination, under

criticism, with media attention, under the threat of complaints to professional or ethical boards, or

even with accusations of perjury (which is a criminal offense) (Binder 2002). The forensic expert is

always well served to be in the position of “friend to the Court,” as is the case in drug courts, in

which case he or she is asked to be a neutral expert rather than appearing to be beholden to one of

the parties, but even that position is not a complete shield from criticism or accusations of bias.

Gutheil and Simon (2005) provide a review of the narcissistic vulnerabilities of the forensic expert

that may impede one’s work in this field. The threat of complaints or lawsuits may rise in forensic

settings in which the practitioner appears to have a conflict of interest—a good example includes

“fitness for duty” examinations, in which it is clear that the examiner, who may hold the “key” to

the evaluee’s livelihood, has been hired by the organization or institution. Avoiding real or apparent

conflicts of interest is one important task that helps in the protection of a valid opinion or finding.

CONCLUSION

Both the clinician and the expert may be confronted with legal situations in which substance use

plays an important role. The professional’s role may be very different in these various situations,

and it is essential to enter this area with a clear understanding of one’s responsibilities and

obligations to one’s patient, retaining attorney, profession, and own ethics and the law. One should

never hesitate to clarify these issues through consultation with a peer, a local medical society, or

an attorney. Involvement with the legal issues as they relate to addictive disorders is a complex,

yet potentially rewarding role one can play as a clinician. In this manner, mental health knowledge

can be suitably and effectively conveyed to social institutions that need it.

KEY POINTS

Being engaged in forensics has risks and liabilities.

Know your audience to communicate suitable information.

Substances of abuse increase the risk of violence in individuals.

Correctional settings vary in the status of the individual.

Special types of mandated treatment and “diversion” may have effects on reducing recurrent criminal

behavior.

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SUGGESTED READING

American Academy of Psychiatry and the Law: Ethics guidelines for the practice of forensic psychiatry. Adopted

May 2005. Available at: http://www.aapl.org/pdf/ETHICSGDLNS.pdf. Accessed April 13, 2007

American Psychiatric Association: Psychiatric Services in Jails and Prisons, 2nd Edition. Washington, DC,Print: Chapter 49. Forensic Addiction Psychiatry http://www.psychiatryonline.com/popup.aspx?aID=359354&print=yes…

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American Psychiatric Association, 2000

Binder RL: Liability for the psychiatrist expert witness. Am J Psychiatry 159:1819–1825, 2002

Group for the Advancement of Psychiatry, Committee on Psychiatry and Law: The mental health professional

and the legal system. Rep Group Adv Psychiatry 131:1–192, 1991

Steadman HJ, Mulvey EP, Monahan J, et al: Violence by people discharged from acute psychiatric inpatient

facilities and by others in the same neighborhoods. Arch Gen Psychiatry 55:393–401, 1998

Torrey EF: Violent behavior by individuals with serious mental illness. Hosp Community Psychiatry

45:653–662, 1994

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