Special considerations in commitment reports .1 Conduct of the evaluation

10.1 Introduction

This chapter addresses forensic reports related to two forms of commitment: civil commitment to psychiatric hospitals based on mental illness and civil commitment to a variety of facilities for a person who, after serving a sentence for a criminal sexual offense, is found to be a risk to society as a result of some form of “mental abnormality” (the latter such persons are labeled dif-ferently across jurisdictions with terms such as sexual predator or sexually dangerous person).

Societies have over the years dealt with individuals with mental illness by banishing them, keeping them at home, often in deplorable conditions, or by sending them to jails and prisons (Deutsch 1945). The mid-eighteenth century saw a wave of reform regarding the care of the “insane,” which included the establishment of long-term and acute hospitals.

Over time, legal cases shifted the standards for involuntary hospitalization and shaped the commitment process. The key issues and rulings are summarized in Table 10.1. They have been reviewed by Stone (1984) and Appelbaum (1994).

Sex-offender commitment laws were present in over half of US states in the 1960s but pes-simism over the prospects for rehabilitation led to most being repealed in the 1980s. Similar legislation reemerged in the 1990s with the passing of a Washington statute that defines a

“sexually violent predator” as an individual who has been convicted or charged with a sexually violent offense and who has a mental abnormality “which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” These individuals may be committed for an indeterminate period, until deemed safe (Washington Code 71.09.010). In Specht v. Patterson (1967) the US Supreme Court applied most criminal procedural safeguards to sexual offender commitment hearing including: full judicial hearing, assistance of counsel, the right to confront and cross-examine witnesses, and the right to present evidence. Sex-offender commitment laws and related statutes have evolved in large part as a result of case law. The key cases are summarized in Table 10.2.

10.2 Special considerations in commitment reports 10.2.1 Conduct of the evaluation

Civil commitment

The ethical guidelines of the American Academy of Psychiatry and the Law (2005) iden-tify civil commitment proceedings as an exception to the rule that psychiatrists should not offer expert testimony concerning their own patients (see Strasburger et al. 1997). Treating

psychiatrists often testify in these proceedings. When an independent evaluator undertakes a case, it should be made clear to the patient for whom the evaluator is working.

Though a routine part of psychiatric inpatient care, commitment proceedings have a tre-mendous impact on the lives of those affected. There are no instruments to assess whether

Table 10.1 Summary of the evolution of landmark cases relevant to civil commitment for persons with mental illness

Due process safeguards similar to criminal proceedings, including proof survive in the community may not be involuntarily committed

Addington v. Texas

(1979) Standard of proof in

civil commitment “Clear and convincing” adequate; beyond a reasonable doubt not required

Clear and convincing evidence of mental illness and dangerousness both required

Table 10.2 Summary of the evolution of landmark cases related to the civil commitment of sex offenders

Case Issue Ruling

Specht v. Patterson (1967) Indefinite detention in

absence of hearing Most criminal procedural safeguards necessary Allen v. Illinois (1986) Whether proceedings

are civil or criminal in nature

Proceedings are civil: goal is to provide treatment to address dangerousness due to mental disorder

In re Young & Cunningham

(1993) Civil versus criminal

nature of statute Determination of dangerousness

Civil nature affirmed Exerts allowed to testify on prediction of dangerousness beyond recent acts, and least restrictive alternatives must be

Statute reaffirmed as civil in nature, and civil commitment can be used to segregate those who are dangerous to the public and unable to control themselves Kansas v. Crane

(2002)

Necessity of lack-of-control determination

Must have proof of serious difficulty in controlling behavior, but absolute lack of control not required

someone meets commitment criteria. Clinicians must consider risk of harm in a variety of domains. Assessment of suicide and violence risk is critical and methods to do so have been delineated elsewhere (American Psychiatric Association 2003; Pinals et al. 2009). Scales such as a scale of suicide intent (Beck et al. 1979), the HCR-20 (Webster et al. 1997; Douglas et al.

2001), and the Classification of Violence Risk (COVR) (Monahan et al. 2005) may be useful adjuncts to the clinical evaluation of risk in particular cases. Their use in evaluations for sex-offender commitment is discussed below.

Sex-offender evaluations

Many states in the United States require pre-referral assessments to inform prosecutors whether there is a reasonable prospect of a commitment application succeeding. These assessments are often performed by correctional or state employees. In the second stage of the process, pre-commitment assessments, both the state and the respondent may retain their own experts. The experts should be clear on the issue of who the retaining party is and how the information will be used.

A clinical interview should be performed whenever possible (Zonana 2000; Boer 2006).

If the assessor is denied access to the person being assessed, efforts at gaining access should be clearly documented. Any denial of access to the client should be explicitly stated in the conclusions as a cautionary caveat and possible limitation.

A review of the limits of confidentiality is critical. Given the high stakes and potential for the broader use of the information obtained in these assessments, other aspects of the evaluation should be reviewed also with the respondents. It is imperative that the interviewer is clear in identifying the agency requesting the assessment and the intended nature and purpose of the assessment. It should also be made clear whether or not a report will be prepared, the form of this report (verbal or written), and to whom the report is being submitted. If the assessment is for legal purposes as opposed to clinical or treatment purposes, this should be stated. It is also important that the respondent understand what will happen to the report, if any, and this may include a warning that there could be cross-examination and that the press may be present.

Corroborating data should be considered essential in the assessment of sexual preda-tors. In collecting these data, the evaluator should be mindful of the issues related to mental abnormality and sexual offending. Specific family issues and dynamics may be helpful in understanding the person and would, therefore, be paramount in a treatment plan. Police synopses of the offenses, court transcripts, victim statements, and evidence and probation and parole reports are also helpful. Records of treatment, counseling, or other contacts with mental health agencies can also reveal valuable information.

Considering the magnitude of the issue under question when assessing sexual predators, testing should be as comprehensive as possible. General as well as specific testing related to sexual preferences and attitudes are important. Most psychometric testing, though not all, requires a licensed clinical psychologist. Some of the more general tests such as a Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and Millon Clinical Multiaxial Inventory-III (MCMI-III) can be most helpful in determining the personality profile of the offender and are helpful also in assessing validity and credibility. In addition, a neuropsychological screen can assist in identifying neuropsychological contributors. Langevin and Watson (1996) and Zonana (1999) outline the most relevant tests related to these assessments.

Sexual preference testing is a specialized field that should only be attempted with the requis-ite experience and qualifications. Three forms of such testing should be considered. Penile tumescence testing (PTT or phallometry) is the single best indicator of a paraphilia (Langevin

& Watson 1996). It involves the measurement of penile volume or circumference when the individual is exposed to a variety of standardized stimuli. It is primarily a clinical technique and caution should be exercised when using this test in the legal context (Zonana 1999).

In Canada PTT is routinely used in clinical and psycho-legal assessments of sexual offenders referred to forensic services. In other jurisdictions, it is more often used as part of a comprehensive treatment approach (Scott 1994). The test can be valuable in confronting

“non-admitters.” Some courts have ruled it inadmissible for the purpose of placing a person (e.g., an incest offender) in a group who would likely commit a sexual offense (Glancy &

Bradford 2007; Federoff et al. 2009). PTT should therefore only be considered as one part of a comprehensive assessment. It should be performed by a recognized laboratory, using standardized test materials, in an appropriate setting, whilst ensuring a procedure respect-ing the dignity of the client. Results should be scrutinized for fakrespect-ing, takrespect-ing into account the client’s mental state, his age and any physical illnesses such as diabetes or prescribed medi-cine that may affect the results of testing.

Visual reaction time testing (VRT; Abel et al. 1998; Abel & Wiegel 2009) has some advan-tages over phallometry. It can be administered in an hour with a laptop computer and does not require naked stimulus material. High figures for sensitivity and specificity have been reported (Johnson & Listiak 1999; Letourneau 2002) but concern remains over the level of independent replication and whether it has reached the accepted standard for admissibil-ity in court (Krueger et al. 1998; Abel & Wiegel 2009). Polygraphy (or the lie detector) is another test that has been used during the assessment and treatment of sex offenders. This, again, has not usually been held to be admissible in court but can be used as an adjunctive test in some circumstances (Zonana 1999).

Sex-offender evaluations for commitment under sexual predator laws also require an esti-mation of risk. Table 10.3 describes the process of risk assessment in these cases. The assess-ment must be thorough and completed by someone with relevant expertise. The outcome of the assessment has profound implications for individual liberty and community safety and the results of these assessments are vigorously argued in the courts. In recent years, considerable attention has focused on the development of actuarial and “structured professional judgment”

measures to predict risk of future danger in general (see above relevant to dangerousness among persons with mental illness) and sex offending risk in particular. Table 10.4 summarizes sev-eral tests that are used along with comments on some of their strengths and weaknesses.

Some studies have suggested that actuarial tools may be more accurate than clinical judgment alone (Grove & Meehl 1996) and some experts suggest that actuarial tests should be used alone without the confusion of clinical judgment (Quinsey et al. 1998b). Others have suggested that the assertion that actuarial tests should be used in the absence of a clinical interview is unsupported by data (Zonana 2000; Boer 2006).

10.2.2 Content of the report

Civil commitment

Civil commitment proceedings often take place without a formal written report. An affidavit or a brief petition to the court requesting a hearing serves as the written data that set the stage. Depending on the state, petitions require a summary of the symptoms and how they link to the commitment criteria.

After the petition is received, testimony of the witness is the primary basis upon which the court relies to render a decision regarding commitment. In some jurisdictions, report

Table 10.3 Aspects of assessment for sexual predators (modified from Glancy &

Regehr 2004) Clinical interview Limits of confidentiality Historical factors Dynamic factors Corroborating data Family

Legal data

Previous treatment records Testing

Psychometric MMPI/MCMI Neuropsychological Tests for malingering Biomedical

Neuroimaging Endocrine Sexual preference Penile plethysmography Visual reaction time Polygraphy Attitude and history

Clarke Sexual History (SHQ-R) (Langevin & Paitic 2005) Abel & Becker Cognition (Abel et al. 1984)

Attitudes Towards Women Scale (Check 1988) Burt Rape Myth Scale (Burt 1980)

Michigan Alcoholism Screening Test (Selzer 1971)

Substance Abuse Subtle Screening Inventory-III (Miller & Lazowski 1999) Drug Abuse Screening Test (Skinner 1982)

Predictive tests*

RRASOR

Static 99/Static 2002 SONAR

MnSOST SVR-20

Risk Matrix 2000/Sexual PCL-R

SORAG/VRAG

* Described further in Table 10.4.

Table 10.4 Summary of actuarial prediction tests for sex offenders (modified from Glancy & Regehr 2004) Includes any form of minor violence

(SVR-20; Boer et al. 1997) Easy to use

Dynamic and static factors

templates are provided by the courts as documents required for completion prior to a com-mitment hearing. In these cases, there may be little if any flexibility in what is included in the report and how the information is organized. In those regions or settings when a report is required but there are no set parameters for what to include, it is recommended that the report be structured similarly to other forensic reports.

Generally for civil commitment to proceed the court must find a nexus between mental illness and a risk of harm if the person is not committed. In some states mental illness is defined by DSM category (e.g., Nevada Revised Statutes 433.164), though this is unusual.

Massachusetts is more typical in defining mental illness as a “substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, cap-acity to recognize reality or meet the ordinary demands of life” (104 Code of Massachusetts Regulations 27.05).

Risk for the purpose of mental health commitment is generally a three-fold con-cept: risk of harm to self by virtue of suicidal behavior or intent, risk of physical harm to others, and inability to care for self, also referred to as “grave disability.” Some jurisdictions make allowance for the commitment of an individual who is in need of treatment if other factors exist, who presents a risk to the rights of others or who lacks the capacity to make responsible treatment decisions (Ohio Revised Code s. 5122.01(B)(4); South Carolina Code 44-17-80(A)(1)). A small number of jurisdictions incorporate a standard that justifies com-mitment on the grounds of a risk of physical deterioration if not so committed (e.g., Kansas Statute 59-2946(f)(3)) and of people who present a risk of harm to property (e.g., Alaska Statutes 47.30.915(10)(B)).

Clinical and judicial decision-making around the legal standards have proven challenging at times (Lidz et al. 1989). Jurisdictions vary as to whether the risk must be based on a recent act (e.g., Pennsylvania Statutes s. 7310(b)) or whether there would have to be a substantial likelihood of serious risk of harm (e.g., Mass. General Laws, c. 123) if the person were not committed.

Finally, since Lake v. Cameron (1966) commitment criteria have increasingly included reference to the need to adopt the least restrictive alternative for treatment of the respond-ent. Though the exact meaning and ethical analysis of least restrictive alternative remains subject to debate (Lin 2003), in general the evaluator must explore whether other treatment settings (e.g., outpatient, day programming, residential placements) are available that would sufficiently mitigate the risk presented.

Sex-offender commitment

As with mental health commitments, in writing a report the evaluator needs to be aware of the sex-offender commitment statute in the particular jurisdiction, including whether it is institutional and/or outpatient-based. All sex-offender commitment statutes require the presence of some kind of mental abnormality, typically defined as a congenital or acquired condition that affects the emotional, cognitive, or volitional capacities of the individual and that predisposes the person to commit sexually violent acts.

The second general issue for reports in all jurisdictions is the risk for violence. The risk for violence must be tied to the mental illness or mental abnormality. Generally the statutes use the term “likely” as the standard required for commitment. Others may use “more likely than not.” It may be helpful to discuss with counsel prior to the evaluation and to state expli-citly in the report how those phrases are interpreted. If this is not done at the outset it may be a focus of a challenging cross-examination. A third issue, just as was reviewed in the sec-tion related to commitment of persons with mental illness, is the issue of “lesser restrictive

10.3.1 Introduction

For civil commitment, the introduction should contain the basic circumstances of admis-sion, relevant dates, and facts (legal and clinical) that articulate the context. In sex-offender commitment, it is important to differentiate whether this is a referral assessment or pre-commitment assessment. Many states in the Unites States require pre-referral assessments, which can inform prosecutors whether there is a reasonable prospect of success at a prob-able cause hearing. For both civil and sex-offender commitment, the question is whether the respondent fulfills the criteria in that jurisdiction. It can be helpful to quote directly at the outset the legal standard as defined by statute or case law, including whether the least restrictive alternative needs consideration.

The evaluator should list all pertinent information reviewed. For those being civilly com-mitted following a short-term hospital stay, relevant documentation may include emergency detainment papers, emergency mental health assessments, and progress notes. Documentation identified in reports related to the longer-term patient will likely include a more extensive list of information obtained over the course of the hospitalization and the review may be less focused on the initiating documentation. Sex-offender commitment evaluations, more than traditional alternative” in some jurisdictions. This is again an issue that needs to be discussed with counsel prior to the evaluation.

10.3 The report

The elements of the psychiatric report that were described in Chapter 7 and that warrant dis-tinctive treatment in reports on civil and sex-offender commitment are shown in Box 10.1.

Box 10.1 Topics warranting distinctive treatment in civil and sex-offender commitment reports

mental health civil commitment evaluations, are frequently very adversarial. This makes using a variety of collateral sources and listing those sources in the report particularly important.

10.3.2 Background

For civil commitment evaluations, the background content should contain traditional clinical historical information of relevance. More detailed information regarding the respondent’s his-tory of violence or public safety risk-taking behaviors, suicide attempts, and concerns related their ability to care for themselves historically will lend weight to the opinions. Although jurisdictions often use their own interpretation of mental illness to qualify for civil commit-ment, the evaluator may be asked about diagnosis directly and may be asked how symptoms of a particular diagnosis might meet commitment criteria. Thus, it remains critical for the evaluator to articulate in the background data the basis for any diagnostic conclusions.

In sex-offender commitment, a thorough personal and family history is necessary in all reports and particularly so where the issue of a diagnosis of personality disorder may be crucial to satisfy the criterion for mental abnormality. Sometimes counsel will hold back damaging information hoping that you will skip over it or not include it in your report.

This exposes you to destructive cross-examination and is poor practice. Where there are concerns that this might be happening, retaining counsel can be asked directly whether any information has been held back. An evaluator should generally reference in the text actual file information referenced (e.g., “according to interview with subject’s wife, page 12, tab 2”).

This goes to the weight of the testimony and also prepares the evaluator for cross-examina-tion, when they would have to cite the exact information.

10.3.3 Current events/circumstances

Especially in circumstances where there is an acute hospitalization, any information that relates to the more recent events that lead to the need to petition for the respondent’s com-mitment will be of assistance in laying out the evaluator’s thinking. Data describing the course of the current hospitalization should be presented as a separate subsection. A detailed review of daily events is not needed, but a review of themes should be included if they relate to the commitment question (e.g., episodes within the hospital of self-injurious behavior, medication non-adherence, and/or aggression).

Especially in circumstances where there is an acute hospitalization, any information that relates to the more recent events that lead to the need to petition for the respondent’s com-mitment will be of assistance in laying out the evaluator’s thinking. Data describing the course of the current hospitalization should be presented as a separate subsection. A detailed review of daily events is not needed, but a review of themes should be included if they relate to the commitment question (e.g., episodes within the hospital of self-injurious behavior, medication non-adherence, and/or aggression).