History and function of the psychiatric report
1.5 Contemporary views on the function of the psychiatric report
In modern forensic practice, the written report is the centerpiece of psychiatric evidence and the expert’s major work product; it is not merely the documentation of how the actual work was performed (Griffith et al. 2010) (see Chapter 5 for further discussion of these ideas.). In most cases, the report is the only work product placed on display following many hours of
labors and interactions (Silva et al. 2003; Mossman et al. 2007). Forensic reports serve many functions, which can be summarized into five conceptual roles (see Table 1.1)
Recent authors usually describe the primary function of the psychiatric report as the effective communication of information (Svendsen 1971; Danto 1973; Appelbaum 2010).
The literature emphasizes the problems inherent in speaking to an audience of a different discipline, one with its own peculiar education, culture, and language (Silva et al. 2003;
Hecker & Scoular 2004; Griffith & Baranoski 2007). The literature emphasizes also the layers of narrative complexity present in many reports, and the added challenges this can present to effective communication (Griffith et al. 2010).
The forensic evaluator, in preparing the report, narrates the evaluee’s story, providing the evaluee’s particular perspective about his or her life experience regarding the events which gave rise to the litigation or legal situation (Griffith & Baranoski 2007; Griffith et al. 2010). Presenting the evaluee’s narrative is an essential component of the forensic evaluation; therefore, using the evaluee’s own words and language is generally recommended when possible. Skill at describing important dimensions of the lives of real people provides to the legal audience a portrait of the evaluee that may not be fully visualized by non-clinicians. The expert forensic writer uses such
“portraiture” (Griffith et al. 2010) to help the legal audience understand how the evaluee’s legal history fits into a larger psychological understanding of the evaluee, and conversely to see how the fuller portrait informs the relevant legal considerations at hand.
The evaluator, in the report, also tells the stories of the other individuals involved in the litigation, either as opposing parties, witnesses, or others (Griffith et al. 2010). These other narratives emerge through the presentation of documents such as police reports, victim state-ments, or the evaluator’s interviews. The evaluee may well have a different account of the underlying events than those provided by the opposing parties, witnesses, or others.
A report communicates the results of the evaluation to the retaining attorney or agency.
They not only need to know that an evaluation was conducted, and that it was conducted appropriately, but that the evaluator was able to reach, or not reach, specific expert opin-ions based on data developed according to the methodologies of the evaluator’s profession.
In addition, the report must communicate to the retaining party the expert’s reasoning in reaching specific opinions and in not reaching or rejecting others. The effective report serves as a vehicle through which the retaining party persuades others about the desired legal result.
Of course, the retaining attorney may instruct the evaluator not to prepare a report when the forensic opinion is adverse to the client’s legal interests to protect the attorney from having to provide the adverse opinion to the opposing side.
Similarly, the report communicates the results of the evaluation to the opposing parties.
The retaining attorney can thus utilize the evaluation, as evidenced through the report, to negotiate with the opposing side to further the legal interests of the evaluee. Attorneys may, for instance, request that the evaluator conduct an unusually thorough evaluation, and prepare a lengthy report documenting the evaluee’s mental disorder to then persuade the
Table 1.1 Roles of the forensic report 1. Communicating information 2. Preparing the ground for testimony 3. Facilitating treatment
4. Demonstrating proper conduct of the evaluation 5. Aiding the measurement of clinical and forensic practice
opposing side of the significance of the evaluee’s disorder and legal incapacity. In some situ-ations, the report communicates the results of the evaluation to the responsible court or agency. Reports will necessarily differ when the retaining party is the responsible judge, rather than an attorney or agency. Given that the court-retained expert serves as a non-partisan court consultant, such court-retained reports can flesh out more fully the strengths and weaknesses of forensic opinions on all sides of a given case.
At times, the report may communicate the results of the evaluation to the evaluee/liti-gant. Retaining attorneys sometimes encounter an uncooperative or challenging client and use the evaluator as an intermediary. The report can persuade the evaluee to proceed to trial, settle the litigation, dismiss the litigation, or accept a higher or lower settlement amount. An adverse report, in the face of an obstreperous evaluee, may prompt the retaining attorney to resign his or her representation of the client. At the outset of the evaluation, some retaining agencies query the evaluator regarding the advisability of disclosing the report to the evaluee;
many experts operate under the assumption that all evaluees will have access to the report.
The second role for the psychiatric report emphasized by contemporary literature is to prepare the stage for oral testimony and cross-examination. For the expert, the written report is important to preparation for trial testimony, which may take place long after the evaluation is complete (Wettstein 2010a, 2010b). In such cases and in especially complex ones, a carefully prepared report may be essential to effective testimony (Enfield 1987).
Because the opinions expressed in reports may well need to be defended in court (Hecker
& Scoular 2004; Wettstein 2010a, 2010b), the care with which the report is generated is critical to the ultimate success of the expert’s efforts. As Weiner observed, “Unlike clinical reports, which are typically either praised or ignored but are rarely demeaned, at least not publicly, forensic reports are fair game to opposing counsels whose proper task and duty to their client calls for them to challenge and poke holes in what the psychologist has written, as publicly and embarrassingly as they can” (Weiner 1999, p. 517). Thus, forensic writers are advised to choose their words carefully and construct the report in a way that allows it to be defended successfully upon cross-examination (Appelbaum 2010). The evaluator can repeatedly refer to the report during the testimony rather than having to search through the entire file on the witness stand for particular quotations from the evaluee, clinical data, or other information.
A third role for psychiatric reports emphasized by some authors is facilitating subse-quent mental health treatment for the evaluee. (Mullen 2000; Lindqvist & Skipworth 2000) Reports do this by communicating relevant history, clinical findings, diagnosis, and con-clusions. The report of mental status examination findings can assist the legal audience in appreciating the evaluee’s strengths and deficits, which may be important to issues of dis-position. A well-written report of these findings helps the legal audience to understand psy-chiatric methodology and the conclusions that may be drawn from mental status findings.
Experts may be asked to offer treatment or disposition recommendations in conjunction with their psycho-legal opinions.
Fourth, some have noted the “insurance” or “defensive” value to the author of the psy-chiatric report. Forensic evaluators, as licensed health care professionals, are subject to pro-fessional negligence litigation, propro-fessional association ethics complaints, licensing board complaints, and criminal prosecution in their forensic work (Gold & Davidson 2007). A report allows the evaluator to document the database for the evaluation, evaluation meth-ods, and legal decision-making process in defending against claims of negligence or inten-tional misconduct, even if the interview with the evaluee is documented on audio- or videotape. Forensic reports which, for instance, document the informed consent process
for the evaluation may later be useful to the evaluator if questions arise regarding release to others of information contained in the report.
Finally, a group of related claims concern the possibility that the psychiatric report offers a means by which psychiatric practice, including the practice of the author, can be evaluated and credentialed (Fein et al. 1991; Farkas et al. 1997). The forensic report opens windows to the evaluator’s professionalism and skill (Enfield 1987). It can illustrate the methodologies and util-ity of the evaluator’s profession (Allnutt & Chaplow 2000; Griffith & Baranoski 2007; Wettstein 2010b). Forensic reports can serve as a quality assessment tool in health services research (Skeem et al. 1998; Wettstein 2005; Robinson & Acklin 2010). Forensic reports, it has been argued, can serve as the database for empirical research by the evaluator and others regarding case type, psychopathology, and forensic opinion. They can be compiled and examined by researchers to study forensic methods and expert opinions, and help establish relevant standards of conduct for forensic evaluators themselves (Wettstein 2005; Grisso 2010; Robinson & Acklin 2010).
1.6 Conclusion
Psychiatry in America achieved acknowledgement and identity in the nineteenth century, the same era in which medical expert testimony flourished amid wide criticism. The evils of partisan, paid experts were understood to confuse the jurors. In criminal cases, with lit-tle guidance on mutual discovery of evidence, there seems to be litlit-tle in the way of extant examples of written reports by expert witnesses before the twentieth century. In civil cases, such as the Parish Will Case, the court’s decision to require written expert reports appears to have been an innovation.
This was to the delight of Isaac Ray, who, as usual, was a voice in the wilderness calling for reform. By the time of the 1881 Guiteau trial, however, it was business as usual, with battling experts providing verbal testimony and only publishing their opinions and commentary later.
There were reasons enough to look to reform as a solution to the problems caused by experts’
disparate opinions, but none sufficient in the nineteenth century to cause the legal establish-ment to change to a system of written docuestablish-ments, subject to live cross-examination.
The widespread introduction of the written psychiatric report in the twentieth century has been followed by professional, judicial, and academic input as to what structure the report should have and what its function should be. That function has come to be seen as both broader and deeper than the simple communication of an opinion. Broader, because the report serves other functions too, including preparing the ground for oral testimony.
Deeper, because it is now clear that the provision of even the most basic elements of a report, including a narrative account of events, requires more rigorous description and analysis than it has so far received.
References
Allnutt, S. H. & Chaplow, D. (2000) General principles of forensic report writing.
Australian and New Zealand Journal of Psychiatry 34: 980–987.
Anonymous (1882a) The Guiteau trial. American Journal of Insanity 38: 303–448.
Anonymous (1882b) Guiteaumania. American Journal of Insanity 39: 62–68 (reprinted from British Medical Journal, June 24, 1882).
Anonymous (1882c) Case of Guiteau. American Journal of Insanity 39: 199–207 (reprinted from the Journal of Medical Science, July 1882).
Anonymous (1938) The Uniform Expert Testimony Act. Columbia Law Review 38: 369–375.
Appelbaum, K. L. (2010) Commentary: the art of forensic report writing. Journal of the
American Academy of Psychiatry and the Law 38: 43–45.
Bigelow, G. T. & Bemis, G. (1844) Report of the Trial of Abner Rogers, Jr. Boston: Charles C.
Little and James Brown.
Bucknill, J. C. (1882) The plea of insanity in the case of Charles Julius Guiteau. American Journal of Insanity 39: 181–198.
Ciccone, J. R. (1992) Murder, insanity, and expert witnesses. Archives of Neurology 49: 608–611.
Danto, B. L. (1973) Writing psychiatric reports for the court. International Journal of Offender Therapy and Comparative Criminology 17: 123–128.
Enfield, R. (1987) A model for developing the written forensic report. In Innovations in Clinical Practice: A Sourcebook, vol. 6, ed.
P. A. Keller & S. R. Heyman SR. Sarasota, FL: Professional Resource Exchange, Inc., pp. 379–394.
Farkas, G. M., DeLeon, P. H., & Newman, R.
(1997) Sanity examiner certification: an evolving national agenda. Professional Psychology 28: 73–76.
Fein, R. A., Appelbaum, K. L., Barnum, R., et al.
(1991) The designated forensic professional program: a state government-university partnership to improve forensic mental health services. Journal of Mental Health Administration 18: 223–230.
Giorgi-Guarnieri, D., Janofsky, J., Keram, E., et al. (2002) AAPL practice guideline for forensic psychiatric evaluation of defendants raising the insanity defense. Journal of the American Academy of Psychiatry and the Law 30 (suppl): S1–S40.
Gold, L. H. & Davidson, J. E. (2007) Do you understand your risk? Liability and third-party evaluations in civil litigation. Journal of the American Academy of Psychiatry and the Law 35: 200–210.
Gold, L. H., Anfang, S. A. S., Drukteinis. A. M., et al. (2008) AAPL practice guideline for the forensic evaluation of psychiatric disability.
Journal of the American Academy of Psychiatry and the Law 36 (suppl): S1–S50.
Griffith, E. E. H. & Baranoski, M. V. (2007) Commentary: the place of performative
writing in forensic psychiatry. Journal of the American Academy of Psychiatry and the Law 35: 27–31.
Griffith, E. E. H., Stankovic, A., & Baranoski, M. V. (2010) Conceptualizing the forensic psychiatry report as performative narrative.
Journal of the American Academy of Psychiatry and the Law 38: 32–42.
Grisso, T. (2010) Guidance for improving forensic reports: a review of common errors. Open Access Journal of Forensic Psychology 2: 102–115.
Gutheil, T. G. (2005) The history of forensic psychiatry. Journal of the American Academy of Psychiatry and the Law 33: 259–262.
Hammond, W. A. (1866) Opinion Relative to the Testamentary Capacity of the Late James C.
Johnston, of Chowan County, North Carolina.
New York: Baker, Voorhis & Co.
Harno, A. J. (1938) Uniform Expert Testimony Act. Journal of the American Judicature Society 21: 156–159.
Hecker, J. E. & Scoular, R. J. (2004) Forensic report writing. In Handbook of Forensic Psychology: Resource for Mental Health and Legal Professionals, ed. W. T. O’Donohue &
E. R. Levensky. New York: Elsevier Science, pp. 63–81.
Hoffman, B. F. (1986) How to write a psychiatric report for litigation following a personal injury. American Journal of Psychiatry 143: 164–169.
Lee, C. A. (1870) Medical Opinion of Charles A. Lee, M.D., in the Matter of Carlton Gates, Deceased. New York: William J. Read.
Lewis, E. B. (1894) The Law of Expert Testimony.
Philadelphia: Rees Welsh & Co.
Lindqvist, P. & Skipworth, J. (2000) Evidence-based rehabilitation in forensic psychiatry.
British Journal of Psychiatry 176: 320–323.
Mohr, J. C. (1993) Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America.
Baltimore: The Johns Hopkins University Press.
Mossman, D., Noffsinger, S. G., Ash, P., et al.
(2007) AAPL practice guideline for the forensic psychiatric evaluation of competence to stand trial. Journal of the American Academy of Psychiatry and the Law 35 (suppl): S1–S72.
Mullen, P. E. (2000) Forensic mental health.
British Journal of Psychiatry 176 307–311.
Nicholson, R. A. & Norwood, S. (2000) The quality of forensic psychological assessments, reports, and testimony: acknowledging the gap between promise and practice. Law and Human Behavior 24: 9–44.
Ordover, A. P. (1974) The use of written direct testimony in jury trials: a proposal. Hofstra Law Review 2: 67–95.
Overholser, W. (1953) The psychiatrist as expert witness. In The Psychiatrist and the Law. New York: Harcourt, Brace and Co., pp. 103–134.
Pollack, S. (1971) Psychiatric consultation for the court. In Offender Therapies Series APTO Monograph #3: The Court and the Expert: Writing Reports, vol. 1, Essays in Comparative Psychiatry, ed. F. Ferracuti.
Published by The International Journal of Offender Therapy, July.
Pollack, S. (1974) Suggested format for psychiatric report to attorney or court. In Forensic Psychiatry in Criminal Law. Los Angeles: University of Southern California, pp. 171–173
Ray, I. (1873) Contributions to Mental Pathology.
Boston: Little, Brown and Co. Facsimile edition (1973) with an introduction by J. M.
Quen. Delmar, NY: Scholars’ Facsimiles &
Reprints.
Redfield, I. F. (1866) The Law of Wills, 2nd edn.
Boston: Little, Brown, and Co., Part I.
Report of the Proceedings in the Case of the United States vs. Charles J. Guiteau, tried in the Supreme Court of the District of Columbia, holding a Criminal Term, and beginning November 14, 1881, 3 vols. (1882).
Washington, DC.
Robinson, R. & Acklin, M. W. (2010) Fitness in paradise: quality of forensic reports submitted to the Hawaii judiciary. International Journal of Law and Psychiatry 33: 131–137.
Rosenberg, C. E. (1968) The Trial of the Assassin Guiteau. Chicago: University of Chicago Press.
Silva, J. A., Weinstock, R., & Leong, G. B.
(2003) Forensic psychiatric report writing. In Principles and Practice of Forensic Psychiatry, 2nd edn., ed. R. Rosner. London: Arnold, pp.
31–36.
Simon, R. I. (2007) Authorship in forensic psychiatry: a perspective. Journal of the American Academy of Psychiatry and the Law 35: 18–26.
Skeem, J. L., Golding, S. L., Cohn, N. B., et al.
(1998) Logic and reliability of evaluations of competence to stand trial. Law and Human Behavior 22: 519–547.
Svendsen, B. B. (1971) Denmark: Psychiatrists, the medico-legal council and the courts. In Offender Therapies Series APTO Monograph
#3: The Court and the Expert: Writing Reports, vol. 1, Essays in Comparative Psychiatry, ed.
F. Ferracuti. Published by The International Journal of Offender Therapy, July, 1971.
Watson, A. S. (1978) On the preparation and use of psychiatric expert testimony: some suggestions in an ongoing controversy.
Bulletin of the American Academy of Psychiatry and the Law 6: 226–246.
Watson, J., Brown, D. T., Ranney, M. H. G., et al. (1857) The Parish Will Case Before the Surrogate of the City of New York. New York: John F. Trow.
Weiner, I. B. (1999) Writing forensic reports.
In The Handbook of Forensic Psychology, 2nd edn., ed. A. K. Hess & I. B. Weiner. New York: John Wiley & Sons, Inc., pp. 501–520.
Wettstein, R. M. (2005) Quality and quality improvement in forensic mental health evaluations. Journal of the American Academy of Psychiatry and the Law 33: 158–175.
Wettstein, R. M. (2010a) The forensic psychiatric examination and report. In The American Psychiatric Publishing Textbook of Forensic Psychiatry, 2nd edn., ed. R. I. Simon & L. H.
Gold. Washington, DC: American Psychiatric Publishing, Inc., pp. 175–203.
Wettstein, R. M. (2010b)
Commentary: conceptualizing the forensic psychiatry report. Journal of the American Academy of Psychiatry and the Law 38: 46–48.
Wigmore, J. H. (1910) A Pocket Code of the Rules of Evidence in Trials at Law. Boston: Little, Brown and Co.
Winslow, F. (1854) Lettsomian Lectures on Insanity. London: John Churchill.
Chapter
22
The Psychiatric Report, ed. Alec Buchanan and Michael A. Norko. Published by Cambridge University Press. © Cambridge University Press 2011.