Underfunding of Psychiatric Services for the Civilly and Criminally Committed.

As illustrated by the State of Oregon, a lack of inpatient psychiatric resources for civil commitment and restoration of competency to stand trial has become an increasing problem. In California, the government of Los Angeles County has studied this problem and identified potential solutions. The proposed solutions not surprisingly involve increased resources, including additional inpatient psychiatric beds. Despite recognition of a potential solution, however, sufficient resources have not yet appeared in Los Angeles County. The study of the civil and criminal commitment systems for individuals with mental illness in Oregon and Los Angeles County reveals considerable overlap between these systems and suggests that the two systems be considered as a part of a single mental health system adversely affected by a variety of factors such as homelessness, substance use, and the COVID-19 pandemic.

Voluntary intoxication, homicide, and mens rea: Past, present, and future.

Voluntary, or intentional, acute intoxication does not qualify for an insanity defense. However, in many jurisdictions, voluntary intoxication can create a diminished capacity to form a specific intent necessary for a criminal offense. This is a type of mens rea defense. Homicide provides a clear example where the absence of a required specific intent can lead to a lesser included crime that does not require that specific intent. Thereby, a mens rea defense may lessen a first-degree murder charge to a lesser degree or even manslaughter, depending on the jurisdiction. After reviewing the history of mens rea defenses and voluntary intoxication, we performed a search of LexisNexis for state statutes and case law regulating the use of voluntary intoxication in mens rea defenses, focusing on homicide-related offenses. In this article, we compare the different approaches that have developed to address this complex issue. We discuss why knowledge of these different approaches is essential to the practicing forensic examiner in relevant jurisdictions and explore developing issues in the area.

Insane Arsonists: An Early 21st Century Sample.

We studied all individuals (n = 41) who had been found not guilty by reason of insanity for arson and who were committed to a California state psychiatric hospital on October 1, 2016 in a cross-sectional analysis. This group of insane arsonists contained 33 (80.5%) males and eight (19.5%) females with a mean age at the time of the index arson of 35.9 years. At least 87.8% (n = 36) were considered to not have been participating in psychiatric treatment at the time of the index arson. Five (12.2%) of the insane arsonists had previously been found not guilty by reason of insanity for arson or had been convicted of having committed arson. Our findings suggest that lack of participation in psychiatric treatment was the most important factor in contributing to the index arson and the most important problem to be addressed in subsequent psychiatric treatment plans.

Determining a Criminal Defendant's Competency to Proceed With an Extradition Hearing.

When a criminal defendant flees from one state (often referred to as the requesting state) to another (often referred to as the asylum state), the requesting state can demand that the asylum state return the defendant through a process called extradition. Only a handful of states have considered a fugitive's right to be competent to proceed with an extradition hearing. Those states fall into three categories. Some states apply the same standard as in criminal trial competency cases. Others apply a more limited competency standard. Two have found that a fugitive has no right to be competent to proceed in an extradition hearing. The particular legal test adopted affects the nature and scope of the competency evaluation conducted by the psychiatrist or psychologist in the extradition hearing. In addition, we are not aware of any state that has considered what happens to the fugitive if he is ultimately found not competent to proceed. Legislation, either state by state or through amendments to the Uniform Criminal Extradition Act, can provide the legal and psychiatric communities with guidance in assessing competency initially and in taking appropriate steps if the fugitive is ultimately found not competent.

Informed Consent at Gunpoint: When Psychiatry Affects Gun Ownership.

As states take more steps to connect patients' gun ownership to their mental health, psychiatrists are being asked to provide mental health information after clinical interviews as well as after confiscation. This move into the patient-physician relationship raises new questions about how psychiatrists should obtain informed consent when interviews may result in reports to legal authorities. Consent warnings are already practiced more in the breach than in the observance and informed consent is imperfect at its best. In communities torn by controversies surrounding gun control, vehement political views will further influence these established themes to result in unprecedented pressures on patient confidentiality. This analysis draws on new movements in ethical theory and behavioral medicine that go beyond balancing principles to question the use of psychiatry in firearm reporting, and support a vigorous practice of informed consent to protect both individuals and the communities they live in.

No duty to warn in California: now unambiguously solely a duty to protect.

In 2013, legislation went into effect clarifying that the Tarasoff duty in California is now unambiguously solely a duty to protect. Warning the potential victim and the police is not a requirement, but a clinician can obtain immunity from liability by using this safe harbor. In situations in which a therapist believes warning might exacerbate the patient's risk, however, alternative protective actions can satisfy the duty to protect. For a clinician to be found liable, those alternative actions would have to be proven negligent. This flexibility can sometimes be crucial in protecting potential victims and thereby, indirectly, patients from the consequences of dangerous action. Explaining the reasoning for the action chosen should obviate any significant liability risk of doing the right thing, even without immunity. Legislation was enacted in 2007 as an attempt to clarify the requirement, but the revised immunity statute at the time retained the phrase 'duty to warn and protect', which perpetuated the now-eliminated confusion. Correctly understanding the California law is important to avoid having the restored flexibility eroded again by belief in a nonexistent duty to warn. The Tarasoff duty originated in California, but since many other states later established similar duties, the developments in California may have national implications.

Commentary: Pursuing justice in death penalty trials.

The capital trial, by its nature, is fraught with emotionally disturbing elements that jurors must face when deciding the ultimate fate of a guilty defendant. A confluence of mitigating and aggravating factors influences a capital jury's decision to impose a sentence of death. The presence or absence of defendant remorse in these cases may make all the difference in whether a capital defendant's life is spared. This commentary examines the onerous emotional toll encountered by capital jurors in light of the findings of Corwin and colleagues regarding defendant remorse and juror's need for affect. The commentary also presents practical and ethics-related considerations that should be kept in mind when reflecting on their study.

Psychiatric ethics: foundational and evolutionary.

As with the basic and clinical sciences, the field of medical ethics, in particular, that of psychiatric ethics, has grown and developed during the last four decades, the time when Dr. Eugene Brody edited the Journal of Nervous and Mental Disease. In this paper, the authors will consider a series of ethical problems that psychiatrists have identified in their clinical practice and suggest paths to resolution that may artfully balance conflicts in core moral beliefs.

Competence to be executed: An ethical analysis post Panetti.

Competence to be executed evaluations in effect can prevent an execution or remove the last meaningful impediment to it. Forensic psychiatrists have primary duties to the legal system and truth and honesty, but like all other areas of medical consultation also should balance conflicting secondary traditional medical ethical duties. Participation in a legally authorized execution so violates medical roles, that it is ethically prohibited by the American Medical Association and American Psychiatric Association. This prohibition includes treatment intended to restore competence to be executed. However, despite the primary treatment intent otherwise being appropriate ethically, like relieving suffering or fostering prison safety, if competence to be executed almost predictably would be a treatment result, at least the risk of this result should be considered ethically as if it were intended. In contrast, competence to be executed assessments can be ethical. Diamond's approach of performing honest evaluations only for the defense is an ethical option for such assessments. However, it is challenging to persuade judges and juries of the objectivity of such honest legitimate assessments. Most practitioners therefore likely would consider assessing competence to be executed for either side. This ethically hazardous position necessitates sensitivity to potentially seriously conflicting duties and roles.

The slayer statute and insanity.

It is common law that persons cannot benefit from their crimes. For this reason, most states have enacted slayer rules that prevent a killer from sharing in the victim's estate. However, terms in the slayer rules, such as willful and unlawful, can be difficult to apply, as illustrated by the situation in which a slayer is found not guilty by reason of insanity. The Washington Supreme Court has recently addressed whether a man who killed his mother and was then found not guilty by reason of insanity in criminal court can inherit a portion of his mother's estate.

Revisiting the deific-decree doctrine in Washington state.

The deific-decree exception to Washington's M'Naughten insanity standard first appeared in case law a quarter century ago in State v. Crenshaw. A few subsequent cases have attempted to refine the contours of the deific decree; however, the deific-decree doctrine has had only limited utility as a basis for the insanity defense. After about a decade of no activity in this area, the Washington courts have recently revisited the deific-decree doctrine in a case involving two defendants.

Commentary: intoxication and settled insanity--unsettled matters.

The role of exogenous substances in the genesis of mental symptoms has found relevance in some jurisdictions when a defense of settled insanity is raised. However, the current nosology and knowledge base reveal ambiguity and unresolved questions about the present science related to settled insanity.

Commentary: restorability of incompetence to stand trial--implications beyond predictive equations.

Since the United States Supreme Court ruling in Sell v. U.S. (539 U.S. 166 (2003)), the prediction of which incompetent criminal defendants are likely to be restored has assumed greater importance. A sophisticated mathematical approach shows promise in achieving this goal. But perhaps more importantly, the data used to construct the predictive equations for restorability yielded findings that may have far-reaching implications involving psychiatry and the community at large.

Back to the past in California: a temporary retreat to a Tarasoff duty to warn.

The original Tarasoff decision created a duty for California psychotherapists to warn potential victims of their patients. After rehearing the matter two years later, the California Supreme Court, in the landmark second Tarasoff decision, changed the duty to warn to a duty to protect potential victims, with warning as only one of the options for discharging that duty. Despite this change, the Tarasoff duty frequently was referred to erroneously as a duty to warn. This misunderstanding and an ambiguous California immunity statute culminated in "simplified" jury instructions and two appellate court decisions in 2004 in which it was assumed without question that there was a duty to warn, with liability for not doing so regardless of rationale. As a result of persistent lobbying by the California Psychiatric Association and other mental health groups, a recent bill corrected the problem created by the courts, returning the Tarasoff duty to a duty to protect.