As we begin our study of Psychiatry and Law, a caveat is in order. You will often wear "two hats." As clinician, your duty is to your patient. Your patient brings you a problem and you seek to diagnose and treat it, and thereby ease suffering and improve functioning - the common goal of the psychiatrist-patient relationship. As a forensic psychiatrist, your duty is to the law. A court wants psychiatric input to assist it to answer a primarily legal question. This role requires an approach which may be uncomfortable at first. You are not an advocate for one party or the other. You must be objective and objectivity is "fact heavy." You seek corroboration of facts whenever possible, challenge your own findings, look for facts that would disconfirm your conclusions, and consider the possibility of malingering in every assessment. There is usually some motivation to malinger in any forensic examination. Time pressures are significant. The clinician's understanding of a case can be allowed to evolve over time - sometimes considerable time. The forensic examiner does not have this luxury.
All legal systems share elements in common: laws, ways to make laws, agencies to determine infractions of laws, people who enforce laws, and some agency to resolve disputes between individuals. There are two major philosophical traditions in the law: natural law and legal positivism. The first emphasizes the law's reliance on moral values. The second emphasizes the right of the "sovereign" to proclaim the duties of the populace. In the end, both traditions seek to control social behavior for the common good. There are two doctrinal sources of power invoked by government to do so. The first is the "police power" to legislate for the protection of the community from injury by an individual. The second is "parens patriae" which proclaims government to be the "father of last resort" with inherent power to legislate for the protection of the individual whose incompetence places him or her at risk.
A law is an enforceable command from government that seeks to proscribe or otherwise regulate some aspect of behavior - either prospectively or retrospectively. There are four sources of law: the constitution, statutes, regulations, and stare decisis (judge-made, means "stand by precedent"). The subject matter of law is broadly divided into two branches: criminal and civil. Criminal law redresses wrongs done to the State. All crimes are defined by a specific union of an actus reus and mens rea. Crimes are subdivided into felonies and misdemeanors. The State must prove blameworthiness (guilt) beyond a reasonable doubt to a moral certainty. Punishment is the aim of the criminal law. Civil law regulates interactions between private parties. Its three major subdivisions are contracts, property, and torts. Malpractice is one type of tort (civil wrong). Rather than guilt, the ultimate issue is "liability" which is proven by a simple preponderance of evidence; i.e. a" feather's weight" more than half.
Both federal and state courts have inferior and superior trial courts, intermediate courts of appeal, and supreme courts. Trial courts litigate facts. Appellate courts litigate questions of law. A civil case begins when a plaintiff's attorney serves the Complaint on the defendant. The Complaint lists the parties, allegations, and relief sought. The defendant has a statutory period within which to serve her Answer. This ends the Pleading Stage and begins the Discovery Stage. Discovery is the method by which parties seek to compel evidence prior to trial. It includes depositions, interrogatories, subpoenas, court-ordered examinations, and requests for "admissions." After Discovery, the Motions Stage follows wherein plaintiff may request summary judgment and defendant may request dismissal. After the Motions stage, Trial Stage begins. A criminal case begins with an arrest, which is followed by an Information and a Preliminary Hearing before a judge or a presentation to a grand jury requesting an Indictment.
A demand to appear in person and/or produce records. If the subpoena seeks patient records, you have a duty to lawfully resist. You must respond but not acquiesce without more. In some circumstances, records may be turned over to a special master for in camera review. Call your lawyer. As a general rule, don’t release medical information to anyone without the signed authorization. Some exceptions follow. Patient records are defined at Health & Safety Code § 1795.10 and at Civil Code § 56.05. Records do not include information given in confidence to the provider by third parties other than by another provider. Such information should be clearly indicated to preclude its inadvertent release. Some statutes command records be maintained three years after termination of patient contact (some suggest 30 years). However, if feasible, records should be retained indefinitely. |
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Burden of Proof |
Identifies the party with the responsibility to prove an issue in dispute. |
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Standard of Proof |
The weight of evidence required in order to decide a particular question. Reasonable cause, probable cause, clear and convincing, proof beyond a reasonable doubt. |
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Cause in Fact |
"But for" or "scientific" cause. |
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Proximate Cause |
Legal cause. Typically, proximate cause involves policy considerations that limit scientific cause. |
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Trier of Fact/Law |
Of fact: jury or judge sitting without a jury. Of Law: the judge. |
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Deposition |
Testimony under oath taken outside of Court for use in Court. |
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Guaranteed by Fifth and Fourteenth Amendments. Has substantive as well as procedural arms. Defines right to fundamental fairness as well as notice, opportunity to be heard, impartial decision-maker, and a decision based on evidence. Invoked whenever government denies a right or benefit. |
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| Equal Protection | Fourteenth Amendment. No class of persons may be denied protection given others similarly situated. Basis of much civil rights law. Has been extended to aspects of mental health law. An early case was Brown v. Board of Education decided in 1954 by the Supreme Court under former California Governor Earl Warren. | ||||||||||||||||||||||
Evidence |
Materials presented at trial to prove a fact in dispute more or less likely to be true. |
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Habeas Corpus |
A writ demanding a restrained person be brought before a judge to determine whether due process has been followed. Is in addition to any other right to hearing. The LPS Act provides a statutory habeas corpus following Section 5250 certification (see W&! 5275). This is not to be confused with the Great Writ of Habeas Corpus. Click here for a discussion of the Great Writ of Habeas Corpus. |
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Hearsaye |
Any out-of-court statement offered in court to prove the truth of the matter asserted. Exception for expert witness testimony. |
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Interrogatory |
Written questions given to party in case to be answered under oath outside of court for use in court. |
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Who wants the record? What statutes apply? Does the record contain confidential information? What statutes apply? Has the patient received notice or either authorized release or waived privilege? When do I respond? Do I send copies or the original? Do I need a lawyer? What is the significance of the “produce by” date? What if patient signs a general release but verbally directs you otherwise? What if you send records and then discover patient lied? What if there is a demand for records of a deceased patient? What if the information requested is only whether a patient has a record? |
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Statutes (Click on California Law in seminar website to access text of statutes)
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