The phantom expert: unconsented use of an expert's name and/or testimony, as a legal strategy.

The authors explore the forensic, legal, and ethical issues involved in a spectrum of attorney practices involving designating experts without notifying them. Recommendations are offered for dealing with this unethical practice, including exposure of the practice, reportage to bar association ethics committees, and continued open discussion and research.

The psychologically vulnerable witness: an emerging forensic consulting role.

The role of witness consultant is emerging as forensic psychiatrists and psychologists provide valuable input as participants in witness development teams. Anecdotally, retained experts also have undertaken a witness consultant role when asked or pressured to do so by the retaining attorney. Forensic psychiatrists and psychologists with extensive treatment and testimony experience may be of assistance to attorneys in preparing psychologically vulnerable clients and nonparty witnesses to tell their stories effectively at trial. In addition to litigation, other venues of witness consultation include administrative, congressional, and state legislative proceedings. In litigation, the witness consultant works directly with the attorney in support of the attorney's counselor role with the client. As an agent of the attorney, the identity of the witness consultant is shielded by the attorney-client privilege. The witness consultant does not meet face to face with the witness unless otherwise indicated. Collateral sources of information are used in providing witness consultation. The witness consultant can identify and provide management techniques for the psychological issues that threaten to impair a witness's ability to testify effectively. The consultant also may be able to assist the attorney who is experiencing difficulty in his or her relationship with a client or a nonparty witness.

Defensive psychiatry and the disruption of treatment boundaries.

Defensive psychiatry refers to any act or omission that is performed not for the benefit of the patient but to avoid malpractice liability or to provide a legal defense against a malpractice claim. Defensive practices that produce deviant treatment boundaries usually take the form of clinically unnecessary prohibitions that disturb the therapist's position of neutrality. A distinction is drawn between boundary violations, boundary crossings and boundary issues. Typical clinical issues that provoke defensive treatment boundaries include managing patients with sexual transferences and potentially violent patients that may require the therapist to warn and protect endangered third parties. Defensive boundaries are usually created by unrecognized or uncorrected therapists' countertransferences.

Maintaining treatment boundaries in small communities and rural areas.

Psychiatrists and other mental health professionals practicing in small communities and rural areas encounter unique situations and customs that may complicate the task of maintaining treatment boundaries. Boundary adjustments are frequently required that do not disturb the psychiatrist-patient relationship. The authors discuss specific boundary problems that arise in maintaining the psychiatrist's neutrality; fostering the psychological separateness of the patient; protecting confidentiality; ensuring that the psychiatrist has no previous, current, or future personal relationship with the patient; preserving anonymity of the psychiatrist; and establishing a stable fee policy. Four vignettes illustrate boundary issues that may be encountered in psychiatric practice in small communities. The authors suggest that applying the rule of abstinence, which states that the therapist must abstain from obtaining personal gratification at the expense of the patient, can help therapists distinguish between boundary issues, crossings, and violations.

The suicide prevention contract: clinical, legal, and risk management issues.

In the managed care era, mental health professionals increasingly rely upon suicide prevention contracts in the management of patients at suicide risk. Although asking a patient if he or she is suicidal and obtaining a written or oral contract against suicide can be useful, these measures by themselves are insufficient. "No harm" contracts cannot take the place of formal suicide risk assessments. Obtaining a suicide prevention contract from the patient tends to be an event whereas suicide risk assessment is a process. The suicide prevention contract is not a legal document that will exculpate the clinician from malpractice liability if the patient commits suicide. The contract against self-harm is only as good as the underlying soundness of the therapeutic alliance. The risks and benefits of suicide prevention contracts must be clearly understood.

Chronic posttraumatic stress disorder: a review and checklist of factors influencing prognosis.

Mental health clinicians are often asked to evaluate prognosis in individuals with posttraumatic stress disorder (PTSD) in clinical, administrative, and legal contexts. Although chronicity of PTSD has been addressed in a number of trauma studies, the data have not been integrated into a coherent approach to the assessment of prognosis. In this paper, the peer-reviewed PTSD literature is surveyed to assist clinicians in making informed prognostic evaluations of the course of PTSD in adults. Potential risk factors, grouped into 11 categories (PTSD stressors, PTSD symptoms, current comorbidity, lifetime comorbidity, childhood separation and abuse, demographics, life stressors, family history, support, treatment, and functional impairment), are reviewed. Knowledge of these risk factors, and of factors associated with chronic PTSD, is helpful in assessing the potential for or degree of chronicity present at the initial evaluation of the patient, as well as in measuring treatment response during the course of therapy. Early identification and the appropriate treatment and management of remediable risk and associated factors may help prevent the development of chronic PTSD. Longitudinally assessing the response of treatable risk factors should provide an additional means for evaluating prognosis. A PTSD Prognostic Checklist, which rates risk and associated factors in each category, is proposed. Validity and reliability have not yet been established for this instrument. It is hoped that clinicians will use and conduct research on it as an initial step toward advancing its scientific utility.

Conducting forensic examinations on the road: are you practicing your profession without a license?

Psychiatrists and other mental health professionals retained in civil or criminal litigation are frequently required to travel to a state in which they are not licensed to perform assessments and offer testimony. Adverse professional and legal consequences may await the unwary peripatetic forensic expert. Failure to address local practice requirements may result in disqualification to testify as well as civil and criminal liability, professional disciplinary action, and denial of liability insurance coverage. In this article, the authors address preventative measures to avoid charges of practicing without a license when the forensic expert crosses state lines.

Therapist-patient sex. From boundary violations to sexual misconduct.

It is the therapist's ethical, professional, and legal duty to establish and maintain treatment boundaries consistent with the provision of good clinical care. The therapist must guard against progressive boundary violations that are damaging to patient care and that may also lead to sexual exploitation of the patient.

Attorneys' pressures on the expert witness: early warning signs of endangered honesty, objectivity, and fair compensation.

While most attorneys practice ethically and treat their retained experts fairly, there are a few that do otherwise. The authors describe "early warning signs" of the likelihood that the attorneys attempting to retain the psychiatric expert witness may compromise the expert's honesty and striving for objectivity. Experts themselves may have certain vulnerabilities that interfere with their ability to detect those early warning signs. Recommendations for the expert are offered.

Forensic issues in the psychiatric emergency department.

To function effectively in the ED, mental health clinicians must be able to: Competently evaluate and manage psychiatric patients in acute crisis. Obtain informed consent for treatment or procedures from patients or substitute health care decision makers. Develop clinical data about patients from collateral sources, such as family members and current treaters. Retrieve records of previous admissions to the ED or hospital psychiatric unit. Conduct competent suicide and violence risk assessments that direct clinical interventions. Conduct risk-benefit assessments before discharging suicidal or potentially violent patients. Observe basic safety precautions and procedures with potentially violent patients. Work with community mental health facilities for the follow-up care of chronically mentally ill patients. Possess a working knowledge of the legal regulation of mental health practice, especially as it applies to evaluating and treating patients in the ED. Obtain legal consultation when in doubt about matters of law affecting patient care.

Murder masquerading as suicide: postmortem assessment of suicide risk factors at the time of death.

Postmortem assessments of suicide risk factors present at the time of death were used to expose a murder masquerading as a suicide. Postmortem assessment of clinically based suicide risk factors in equivocal suicide cases should readily meet prevailing evidentiary criteria of "reasonableness." Assessing the presence or absence of suicide risk factors can assist in clarifying the question of suicide intent at the time of death. However, discerning the motives for suicide is usually a more difficult task. Forensic opinions should avoid conclusory statements that invade the province of the fact finder in determining criminal responsibility.

The credible forensic psychiatric evaluation in multiple chemical sensitivity litigation.

The forensic psychiatrist must be able to perform a credible psychiatric evaluation and render a competent psychiatric opinion in hotly contested multiple chemical sensitivity (MCS) litigation. Forensic psychiatrists are often requested to evaluate MCS claimants by third party payers, employers, lawyers, and government agencies regarding health care costs and disability payments, workers' compensation claims, unemployment benefits, workplace accommodation reimbursements for special housing and environmental needs, civil litigation, and other claims. The credible forensic psychiatric evaluation of MCS litigants is described using the multiaxial diagnostic system of DSM-IV. Forensic psychiatrists must avoid becoming polarized by the current MCS controversy. The ethical requirements of honesty and striving for objectivity can be met by keeping separate the roles of therapist and expert, staying abreast of the scientific literature regarding MCS, and understanding the role of the psychiatric expert in MCS litigation.

Psychiatrists' duties in discharging sicker and potentially violent inpatients in the managed care era.

Psychiatrists have certain clinical responsibilities and legal duties to patients treated in managed care settings. They include disclosure of all treatment options, the exercise of rights of appeal for any care they believe will materially benefit patients regardless of allocation guidelines or gatekeeper directives, continuance of emergency treatment, and reasonable cooperation with utilization reviewers. An additional duty--to warn and protect endangered third parties--will likely increase as cost-containment measures curtail the length of hospitalization. The author discusses these duties in the context of sicker and potentially violent patients. He cautions psychiatrists to be careful not to prematurely discharge these patients because of pressures from managed care organizations. The policies of such organizations can place psychiatrists and patients in a precarious position by limiting the time and resources for diagnosis and the assessment of the risk of potential violence. These responsibilities and duties often can be turned into clinical opportunities that enhance the therapeutic alliance with patients.

Clinically based risk management principles for recovered memory cases.

Controversy over cases involving so-called recovered memories of sexual abuse has threatened to divide the mental health field, just as lawsuits based on recovered memories have sometimes divided children from parents and others. The authors review issues in this controversy, including the role of misdirected advocacy for recovered memory by some practitioners, the distinction between the actual events and patient's narrative truth as a factor in the therapeutic alliance, and the contrast between therapeutic and legal remedies. They recommend nine clinically based risk management principles to guide clinicians in dealing with cases involving recovered memory. They include the need for documentation and consultation; the value of psychotherapeutic neutrality, maintaining a calm perspective, and understanding the difference between historical and narrative truth; the incompatibility of the roles of treater and forensic expert; the risks of special therapies such as hypnosis; awareness of the roles of other professionals and the significance of the patient's family; and the importance of knowing when to end treatment.

Video voyeurs and the covert videotaping of unsuspecting victims: psychological and legal consequences.

Video voyeurs employ state of the art technology to gain access into the most private places where victims are covertly videotaped. Women are the usual victims of video voyeurs as they change their clothes, perform natural functions or engage in sexual activities. When the videotaping is discovered by the victim, serious psychological harm may result. A civil suit is the most common legal remedy sought. Criminal sanctions, when available, are often insufficient compared to the seriousness of the crime. While unauthorized, covert audiotaping is forbidden by both federal and state codes, videotaping is often not specifically mentioned. It appears that legislators do not fully appreciate the burgeoning of covert videotaping, the technological advances that have greatly expanded the possibilities for voyeuristic viewing and the harm done to victims of video voyeurs. Appropriate criminal sanctions need to be included in privacy statutes for unauthorized, video surveillance with or without accompanying audio transcription.

Clinical risk management of the rapid-cycling bipolar patient.

Important clinical-legal issues surround the management of patients with rapid-cycling bipolar disorder (RCBD). An increased risk of liability exposure may exist for improper diagnosis and treatment, lack of informed consent, inadequate assessment of the risk of violence toward self and others, and failure to monitor the patient. Practice guidelines may facilitate defensive practices by psychiatrists, which can increase the risk of liability. Clinical risk management combines professional expertise and knowledge of the patient with an understanding of the legal issues governing clinical practice to provide good care to patients and only secondarily to limit legal liability. A working understanding of the legal issues surrounding patient care in general and the RCBD patient in particular should provide more comfort and wider latitude in helping these difficult-to-treat patients.

Toward the development of guidelines for the conduct of forensic psychiatric examinations.

Guidelines for conducting forensic psychiatric consultations and evaluations have not been clearly established. The authors offer and discuss such guidelines, which are based upon the boundary guidelines in general psychiatric practice, ethics principles in general psychiatry, ethics principles in forensic psychiatry, and the relevant case and statutory law. These guidelines are intended to assist the psychiatrist in appropriately conducting forensic evaluations whether in litigation or administrative proceedings.

Between the chair and the door: boundary issues in the therapeutic "transition zone".

Empirical and consultative experience reveals that damaging boundary violations begin insidiously and are progressive. During the segment of the therapy session that occurs "between the chair and the door," patients and therapists are more vulnerable to committing boundary excursions and violations. We suggest that inchoate boundary violations with a potential for damaging progression usually first appear within this interval. This part of the session can be scrutinized for early warning of boundary violations and studied for its instructive value in risk management and prevention of sexual misconduct.