Textbook of Child and Adolescent Psychiatry

THE AMERICAN PSYCHIATRIC PUBLISHING
Textbook of Child and
Adolescent Psychiatry
ThfrdEdItion·
Edited by
Jerry M. Wiener, M.D.

Mina K. Dulcan, M.D.
-
-Americatl ---
D§y-chiatric
J.-Publishing, Inc.
Washington. DC
london. England
,
Note: The authors have worked to ensure that all information in this book is accurate at the time of publication.
and consistent with general psychiatric and inedi<;:al standards, and that information concerning drug dosages,
schedules, and routes of administration is aq:urate at the time of publication and consistent with standards set by
the U.S. Food and Drug Administration and thf! general medical community. As medical research and practice con
tinue t~ advance, however, therapeutic standards may change. Moreover, specific situations may require a specific
therapeutic response not included in this book. For these reasons and ·because human and mechanical errors
sometimes occur, we recommend that readers follow the adVice of physicians directly involved in their care or the
care of a member of their family.
Books published by American Psychiatric Publishing, Inc., represent the views and opinions of the individual au
thors and do not necessarily represent the policies and opinions ofAPPI or the American Psychiatric Association.
Copyright © 2004 American Psychiatric Publishing, Inc.
AlL RIGHTS RESERVED
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Library of Congress Cataloging-in-Publication Data
Textbook of child and adolescent psychiatry / edited byJerry M. Wiener, Mina R.
Dulcan.- 3rd ed.
p. ; cm.
Includes bibliographical references and index.
ISBN 1-58562-057-2 (alk. paper)
1. Child psychiatry. 2. Adolescent psychiatry. I. Wiener,Jerry M., 1933- II. Dulcan,
MinaR.
[DNLM: 1. Mental Disorders-Adolescent. 2. Mental Disorders-Child. 3. Mental
Disorders-Infant. WS 350 T355 2004]
RJ499. T47 2004
618.92' 89-dc2l
2003056098
British Library Cataloguing in Publication Data
A CIP record is available from the British library..
forensic Psychiatry
John B. Sikorski, M.D.

Anlee D. Kuo,JD., M.D.
Forensic psychiatry is a field within psychiatry in States. The Accreditation Council for Graduate Medi
which scientif1c and clinical expertise is applied to le cal Education (1988) also revised its requirements for
gal issues in legal' con tex ts (Rosner 1989, p. 323). child psychiatry training programs to include forensic
Within forensic psychiatry, child and adolescent foren psychiatry as part of training in consultation. However,
sic psychiatry emerged in the last two decades of the teaching and content in forensic psychiatry vary widely
twen tieth cen tury as a subspecialized area of increased among residency programs (Marrocco et al. 1995).
activity, complexity, and utilization (Nurcombe and The intent of this chapter is
Partlett 1994; Schetky and Benedek 1985, 1992,2002).
This development paralleled the maturation of the • To increase awareness and understanding of chil
field of child and adolescent psychiatry as a medical dren's rights
specialty with its own research-oriented database (In • To provide an overview of relevant legal processes
stitute of Medicine 1989), fund of knowledge of hu and forensic psychiatry concepts
man neurobiological development and psychopathol • To provide an understanding of the essential de
ogy (Cicchetti and Cohen 1995), and more specific men ts of a forensic evaluation
clinical application, such as those reflected in the prac • To provide an overview of relevant ethical and legal
tice parameters published by the American Academy issues in the treatment of minors and to highlight
of Child and Adolescent Psychiatry (1995, 1997b, important professional liability concerns
1997c). This rapidly expanding area of forensics is • To highlight some areas of particular activity and
complex and multifaceted and involves a diverse range concern to child and adolescent forensic psychiatry
of topics paralleling the changes and concerns in practice, including issues involving child custody
American society such as the legal rights of children
and divorce, child abuse and neglect, the role of
and adolescents, custody and visitation disputes, child
children as witnesses, youth violence, the juvenile
abuse and neglect evaluations, delinquent behavior
justice system, civil commitment of minors, and spe
and the juvenile justice system, mental disability, civil
cial education
commitment of youths, and special education issues.
• To provide some guidance for further study and en
In response to the growing demands for recog couragement for seeking consultation with col
nized competence in this area, the American Board of leagues and counsel
Medical Specialties officially established forensic psy
chiatry as a subspecialty in 1992 and directed the
American Board of Psychiatry and Neurology to offer
certification in this field. The examination requires The Changing Status of
completion of a I-year fellowship from a program cer Children's Rights
tified by the Accreditation Council for Graduate I\fecl
ical Education (ACGME). Currently, there are 37 i\hny changes have occurred within American society
r\.CGME-accredited certified fellowships in the United and the legal system with regard to the recognition
903
904 • OTHER DISORDERS AND SPECIAL ISSUES
and protection of children's needs, well-b'eing, and bilityand through processes designed to elicit
rights. One can more fullY,appreciate these changes by one's full potential
examining the status of children before the twentieth 6. The right to have societal mechanisms to enforce
century. For example, children have historically been the foregoing rights
viewed as property of the family, particularly the father,
or wards of the state with no political power and few le The recent publication of Mental Health: A Report of
gal rights (Rodham 1973): They were valued for their the Surgeon General (U.S. Department of Health and
economic contributions and were often fully exploited Human Services 1999) and the subsequent Reponofthe
in the workforce before the existence of child labor Surgeon General's Conference on Children~: Mental Health
laws (Nurcombe and Partlett 1994, p. 42). Until 1875, , (U.S. Public Health Seryice 2000) highlighted a na
'no organization existed for the protection of abused tional agenda to promote awareness of children's
or mistreated children. The first prosecuted case of mental health issues and needs. This included the· re
child abuse had to be taken to the Society for the Pre duction of stigma associated with mental illness, con
vention of Cruelty to Animals (American Academy of tinuing to utilize scientifically proven prevention and
Child and Adolescent Psychiatry 1997c, p. 425). Fur treatment services in the field of children's mental
ther evidence of disregard for the special needs of chil health; improving the recognition of the mental
dren is apparent in the treatment of juvenile delin health needs of children; eliminating racial, ethnic,
quents before the twentieth century, when, children and socioeconomic disparities in access to mental
over age 7 who were charged with misconduct were health care; improving the infrastructure for chil
subject to the same criminal proceedings and sanc dren's mental health services across professions; and
tionsas adults (Schetky 2002b, p. 4). increasing the quality of mental health care services
,Beginning in the later part of the nineteenth cen and training providers to recognize and manage men
tury and during much of the twentieth century, tal health issues.
private, professional, and politicalleadt;:rship in the, The changes in society'S perception and treatment
United States increasingly expressed its concern for of children during the twentieth century is similarly re
the care and well-being of children. In 1909, the estab flected in the legal system, in which two legal doc
lishment of the first White House Conference on Chil trines--parens patriae and the best interests of the childr
dren and Youth reflected a growing concern for the were increasingly used by the courts to intervene in
care of dependent children following the sociocultural private family life for the protection of the child.
changes in American society at the turn of the century. Parens patriae empowers the state to 'protect citizens
Subsequent White House conferences in each decade who are unable to protect themselves and has been
focused on child welfare standards; child health and used to justifY state interference with parental prerog
protection; and the rights, needs, and well-being of atives. The concept of the child's best interest was orig
children (Beck 1974). The White House Conference inally acknowledged in Chapsky v. Wood (1881) and has
on Children, convened in 1970 (U.S. Government guided lawmakers and courts to prioritize the child's
Printing Office 1971), asserted the foIlo",ing specific best i.nterests over those of other involved persons, in
rights as central to a child's well-being: cluding the parents. Although these concepts have in
fused the vision of much ,federal legislation and many
1. The right to grow in a society that respects the dig appellate court decisions regarding some aspects
nity of life and is free of poverty, discrimination, ofchild care, education, health, welfare, and juvenile
and other forms of degradation justice, much remains to be accomplished in imple
2. The right to be born and to be healthy and wanted
menting these principles at a practical and universal
through childhood
level.
3. The right to grow up nurtured by affectionate par
ents
4. The right to be a child during childhood, to have
meaningful choices in the process of maturation Overview of the Legal System
and development, and to have a meaningful voice
in the community On a pragmatic and somewhat oversimplified level,
5. The right to be educated to the limits of one's capa law can be viewed as anything that a court havingjuris
Forensic Psychiatry • 9Q5
diction will enforce. This process protects an individu proceedings operate under standard rules of civil pro
al's claim to the p~ssession of property or authority or cedure and evidence, which provide the mechanism
to the eJtioyment of privilege or immunity (Rodham for fact finding, decision making, and enforcement.
1973). Law in the United States is derived from the One important aspect of the legal process is the
U.S. and state constitutions and from federal and state standard of proof or the level of certainty required for
legislation and case law. ajudicial decision. The standard of preponderance of ev
Structurally, the court system can be divided into idence (or more likely than not) is used in most civillitiga
two main categories: state courts and federal courts. tion. The intermediate standard, clear and convincing
The state court system consists of lower courts (or trial evidence, is required in cases of deprivation of righ ts or
courts), higher courts (or appellate courts), and the liberty, such as involuntary civil commitment (Adding
state's supreme court, which serves a supervisory func ton v. Texas 1979), and in cases of termination of paren
tion over trial court decisions. Most of these courts tal rights (Santosky v. Kramer 1982). The highest stan
have general jurisdiction, which means they hear both a
dard of proof, beyond reasonable doubt, is required by
civil and criminal cases arising under state law. However, law in criminal cases, indudingjuvenile court and de
some state courts are considered to be specialized and linquency proceedings (In re Winship 1970) . Physicians
exercise jurisdiction over specific types of cases. Some who testify in court may also be asked if their opinions
of the specialized courts especially pertinent to the are given with a reasonable degree ofmedical certainty.The
child forensic psychiatrist include the juvenile and concept of reasonable medical certainty is not neces
family courts and surrogate courts. Juvenile courts sarily synonymous with any of the legal standards of
have statutory authority over matters relating to juve proof but rather reflects "that level6f certainty equiva
nile delinquency, abuse, and neglect. Family courts lent to what a physician useswhen making a diagnosis
have statutory authority over divorce and child custody and starting treatment" (Rappeport 1985, p. 9). Clini
issues. Surrogate courts have authority over matters re cians must understand the particular standard of
lating to civil commitment, guardianship, adoption, proof that h~ required by the legal matter at hand and
administration of trusts and estates, and contested must be able to articulate and demonstrate their med
wills. ical opinions relative to that standard.
The federal court system consists of federal trial Evidence is of two types: I) legal fact (i.e., what the
courts, 13 U.S. Courts ofAppeal and the U.S. Supreme court accepts as fact) and 2) expert opinion. Both are
Coutt. These courts decide civil and criminal cases presented in the form ofwitness testimony and exhilr .
arising under the United States Constitution and fed its. In this regard, the forensic psychiatrist may be
eral statutes, as well as civil actions in which the parties called to testify as a fact witness or as an expert witness.
are of diverse state citizenship. As in the state court sys As a fact witness, the psychiatrist testifies to a matter
tem, appellate courts serve a supervisory function over perceived or wi tnessed. As an expert witness, he or she
trial court decisions. Unique to the federal court sys testifies to matters of special learning and knowledge.
tem is the existence of the U.S. Supreme Court, which Mental health professionals frequently participate as
serves a supervisory function over federal appellate expert witnesses in the legal arena. However, their ap
court decisions and has appellatejurisdiction to review propriate role in the courtroom continues to be highly
any final state judicial decision. controversial, as demonstrated by the case law on the
Legal proceedings are essentially of two types: civil admissibility of expert testimony.
and criminal cases. Civil cases consist of breach of con The traditional standard for acceptance of scientif1c
tract; property and financial disputes; and torts, in evidence by expert witnesses has become known as the
cluding injury, negligence, professional liability, libel, Frye rule, an opinion thilt stated in part that "while
and slander. These cases involve disputes between the courts will go a long way in admitting expert testimony
plaintiff and defendant, third parties, cross plaintiffs, deduced from a well recognized scientific principle or
and cross defendants. The plaintiff must prove the el discovery, the thing from which the deduction is made
ements of the cause of action. In criminal cases, the must be sufficiently established to have gained general
state lodges the complaint against the defendant, who acceptance in the particular field in which it belongs"
is the alleged criminal. As a result of the presumption (Fryev. United States 1923). In 1975, a new set of federal
of innocence, the state has the burden of proving the rules of evidence was adopted. Rule 702 states, in part,
elements of the charged crime. Both civil and criminal "[I] f scien tific, technical or other specialized knowl
906 iii OTHER DISORDERS AND SPECIAL ISSUES
edge will assist the trier of fact to understand the evi this reason that States rely on psychiatrists asexamin
dence or to determine a fact in issue; a witness quali . ers, consultants, and witnesses, and that priV'l-te indi
fied as an" expert by knowledge, skill, expertise, viduals do so as well, when they can afford to do so.
(p.7)
training or education m?-y testify thereto in the form of
an opinion or otherwise" (Zonana 1994, p. 311). The
U.S. Supreme Court concluded that the expanded fed
eral rule ofevidence superseded the Frye rule and that
The Forensic Evaluation"
trialjudges have the obligation to ensure that "any and
all scientific testimony or evidence admitted is not only
A child and adolescent psychiatrist may become in
relevant, but reliable" (Daubert v. Merrell Dow 1993.
volved in a legal matter as 1) an evaluating or treating
p. 8). This in effect expands the trialjudge's gatekeep
". psychiatrist of a patient who is coincidentally involved
ing and decision-making"functions over the admissibil
in"a lawsuit; 2) as a court-appointed expert for a specific
ity of scientific knowledge and increases the risk that
case; or"3) as a forensic expert contracted by one party
Junk science" or personal opinions will be admitted
·or attorney for the purpose of prOviding consultation,
into the judicial process through expert witnesses. .evaluation, or testimony for one side in a·lawsuit.
In subsequent cases, the Supreme Court upheld
In the first instance, the requirement for confiden
the Daubert ruling and further elaborated on its proper
tiality may be waived by the patient, parent, or legal
application. In General Electric Co. et aL v. Joiner (1997),
guardian; in other circumstances, the therapist or eval
the Supreme Court decided that "abuse of discretion"
uator may be legally required to' report or testiry, such
is the proper standard of review of a district court's de
as when a case falls under mandatory reporting re
cision to admit or exclude scientific evidence under
quirementS for neglect, abuse, or threat of spedfic vi
the Daubert principles. In Ku~;; Tire OJ: (1999), the
olence, or when a patient places his or her mental con
U.S. Supreme Court held that the Daubert principles
dition at issue in advil suit.
apply to all types of expert testimony, gave the trial
"If a subpoena, which is a valid court order, is
judge broad latitude in detennining the reliability of
served, the psychiatrist may be required to release the
expert testimony, and emphasized that tPe Daubert
patient's records to a designated person, and the psy
rules should be applied in a flexible manner to the ex
chiatrist may also be required to give a deposition or
tent relevant in .eachcase. During the past two de-"
court testimony as to his or her evaluation, course of
cades, there has been a burgeoning of civil litigation
treatment, or role in the legal matter. It should be noted
involving expert opinion. including psychiatric expert
that th~ process does not automatically make the treat
opinion, in cases"ranging from product liability to
ing psychiatrist's opinion expert evidence. To be an ex
abuse and harassment. The full impact of these changes
pert witness, the court must qualifY the psychiatrist as
is yet to be felt, Suffice it to say that these changes,
an expert witness in the specific case before the court.
while allowing for a larger inclusion of scientific
In the second instance, courts may choose from a
knowledge and expert opinion, also allow for a much
panel of qualified professionals and appoint an expert
closer scrutiny of methodology, validity, relevance,. and .
to serve as a consultant; to evaluate records or an indi
demonstration of the reasoning supporting the expert
vidual; or to provide consultation,' reports, or testi
conclusions (Zonana 1994).
mony to the court in regard to a specific matter before
The Supreme Court discussed psychiatric testimo
the court. Child psychiatrists working in family and ju
ny in Ake v. Oklahoma (1985):
venile court matters are frequently appointed in this
way. Psychiatrists are also chosen by agreement of the
Psychiatry is not, however, an exact science, and psy
chiatrists disagree widely and frequently on what opposing attorneys, and a stipulated agreement is
constitutes mental illness, on the appropriate diag made to the cOllrt. The psychiatrist should request that
nosis to be attached to given behavior and symptoms, this stipulation or court order include
on cure and treatment, and on likelihood of future
dangerousness. Perhaps because there often is no • A statement of the appointment of the expert pro- .
single, accurate psychiatric conclusion on legal in fessional to proceed with the work
sanity in a given case,juries remain the primary fact
finders on this issue, and they must resolve differences • Th~ purpose of the evaluation, including persons to
in opinion within the. psychiatric profession on the be evaluated and the scope of the evaluator's au
basis of the evidence offered by each party.. ". It is for thority regarding collateral information
Forensic Psychiatry • 907
• The specification of the person to whom the report 5. What conclusiQns-'-in the form of diagnosis, prog
is to be made nosis, opinions, and recommendations-were
• The method of payment offees for the professional made based on what specific data and relative to
services rendered the law and legal guidelines obtaining to the legal
matter under consideration
As in any highly skilled and hazardous professional
work, psychiatrists working in the forensic arena are The psychiatrist should clarify any questions or am
entitled to reasonable and customary professional fees biguities regarding the relevant laws, procedures, or
prevailing in their communities for those specific pro legal gfiidelines -with the attorney involved in the case
fessional services. Fee schedules and methods of pay if that communication is appropriate, with the court if
ment, including retainer fees, should be arranged in. the expert is court appointed, or with the expert's own
advance of the work provided. If a fee is dependent on counsel if in doubt.
the successful outcome of a case, the goal of objectivity If a formal diagnosis is used in the report, it
and honesty is defeated. According to the Opinions of should follow DSM-IWTR format and should be ref
the Council on Ethical and Judicial Affairs of the erenced as such (American Psychiatric Association
American Medical Association (1994), contingency 2000). In developing the expert opinion, the report
fees are unethical. should reflect the particular case data, relevant sci
In the third instance, litigants or their attorneys fre entific knowledge, and applicable law or legal guide
quently contact forensic experts to become partisan lines. The clinical data should show the mental,
experts for their particularside in a case. The work of emotional, and psychological relevance to the legal
the psychiatrist may fall under the duties and obliga issues at hand. The opinion should be articulated in
tions of the attorney-client privilege, which is different a way that clearly reveals to the trier of fact the rea
from the doctor-patient privilege. This may present soning and formulation in the matter rather than a
the psychiatrist with professional and ethical dilemmas simple summary and conclusive opinion. The report
that must be clarified with the contracting attorney, should be comprehensive enough to cover the rele
sometimes assisted by consultation with professional vant topics, document what occurred, support the
colleagues or with one's own attorney. conclusions, and reflect the clinical judgment and
When a psychiatrist is engaged or appointed as a reasoning, but it should not be so long as to become
consultant or evaluator in a legal matter, it is essential argumentative, jargonistic, boring, or unintelligible
that the persons being evaluated or interviewed be to the court.
told and clearly understand the nature and purpose of A deposition provides court-ordered or subpoe
the interview-it is not a confidential or doctor-patient naed testimony under oath to discover or preserve in
privileged interview, and the information obtained may formation to be used at trial or to ascertain informa
be used in a report, deposition, or testimony that the tion that might be used to impugn the credibility of a
psychiatrist may be required to produce in the legal witness at trial. When an expert is sworn in to a trial,
matter. The expert opinion developed by the forensic his or her qualifications are presented to be accepted
expert is rendered in the form of a written report, dep by the court. Only after such acceptance is the direct
osition, or court testimony. examination and opinion rendered, followed by cross
A forensic report should include the following five examination by the opposing attorney. Redirect ques
elements: tions, recross questions, and sometimes the judge'S
own questions may follow.
1. How one was referred or became involved in the An expert who is to testify in court should 1) be
case prepared; 2) be professional; 3) be precise; 4 antici
2. What the purpose was of the evaluation or the legal pate adverse, hypothetical, and adversarial cross-exam
issues to be addressed (not an attorney's theory of ination; 5) speak to the finders offact; and 6) be aware
the case) of personal, professional, clinical, and legal pi tfalls
3. What procedures were performed, including the and vulnerabilities, such as arrogance, ideological ar
dates and locations of interviews, documents re gumentation, countertransference issues, or igno
viewed, and collateral information obtained rance of the legal and ethical directives and bound
4. What observations and findings were made aries of the case.
Johnson (1992), who provide some guidelines for dif

Ethical Issues in the
ficult clinicaljudgment. A landmark special section of
the Journal ofthe American Academy ofChild and Adolescent
Clinician's Practice
Psychiatry (1992) was devoted to et:Pical issues. Articles
contained in this section highlighted the integrity and
The province of ethics is generally considered the
vigilance needed in clinical practice (O'Rourke et al.
study of moral pnnciples and values that govern behav
1992) and the ethical and legal conflicts wrought by
ior rather than statutes or legal regulations. Unfortu
developing managed care systems' and other con
nately, ethical guidf;!lines for conducting child and ad
straints on the parameters of care imposed by third
olescent forensic consultations and evaluations have
parties (Geraty et at 1992); they further explored a
not been firmly established. Therefore, the child fo
variety of other general ethical issues in forensic psy
rensiC psychiatrist must look to a patchwork ofresourc
chiatry (Schetky 1992). Ethical principles governing
es to find guidance on ethical dilemmas arising in his
research (Munir and Earls 1992) include. among nu
or her work. The American Psychiatric Association
merous other specific considerations, guidelines for
and the American Academy of Child and Adolescent
protection of children,. appropriate risk-benefit analy
Psychiatry have established ethical standards; however,
sis, informed consent and confidentiality issues, and is
these standards are limited by the fact that they are
sues regarding scientific integrity. Approaches to
based on the guidelines of the American Medical Asso
teaching ethics in child and adolescent psychiatry
ciation with its traditional physician-patient relation
(Sondheimer and Martucci 1992) tend to focus on
ship and the hippocratic principles of beneficence and
three distinguishing dimensions involved in the care
nonmaleficence, which do not exist in the forensic set
and treatment of children:
ting (Sirhon and Wettstein 1997) _As described Dy
Applebaum (1990, 1997), in forensic psychiatry no
physician-patient relationship is established and the 1. The child is a minor and parental involvement is
forensic psychiatrist acts not as a healer but as a provider necessary to some degree.
of testimony in court to further the inte~ests of truth 2. The child's developmental matl:lration expands the
and justice. More recently, the American Psychiatric capacity for understanding and judgment and re
Association has demonstrated an awareness of the crit sponsibility for behavior.
ical need for ethical guidelines specific to the rapidly 3. The child is involved with school and perhaps.other
expanding field of forensic psychiatry. Although they social agencies and institutions that require ex
are limited in scope, some forensic ethical issues ate change of information and collaboration in the
now addressed by the American Psychiatric Associa care and treatment effortS.
tiqn in its PrincipleS ofMedical Ethics With Annotations &
pecially Applicable to Psychiatry (American Psychiatric As Perhaps the most Significant and comprehensive
sociation 2001 b) and in its periodic publishing of the contribution in this field was the publication of Ethics
Opinions ofthe Ethics Committee on the Principles of Medical and Child Mental Health (Hattab 1994). This book as
Ethics With Annotations Especially Applicable to Psychiatry sembles the work of 35 international child and adoles
(American Psychiatric Association 2001a). cent mental health authorities and provides a cross
Despite the limitations in the code of ethics of the cultural perspective on the vexing ethical issues con
American Academy of Child and Adolescent Psychia- . fronting professionals in their vast array of clinical
try, it is relevant and useful becaus.e it recognizes the work, research, and advocacy for children and fami
special ethical tension present in a clinician's work lies.
with children and adolescents. The preamble to the After the official recogni tion of forensic psychiatry
code of ethics states, in part, "The [ethical] issues ... as a subspecialty in 1992, the American Academy of
must be viewed within the context of the overlapping Psychiatry and the Law (AAPL) established ethical
and potentially conflicting rights of the child or ado guidelines applicable to general forensic evaluations
lescen t, of the parents, and of society" (American and developed the AAPL Ethics Committee to assist
Academy of Child Psychiatry 1980, p. 2) This tension district branch ethics committees in cases involving fo
between legal obligations and ethical responsibilities rensic psychiatry issues. Although they are lacking in
in the treatment of adolescents has also been high guidance on many ethical issues unique to child foren
lighted by Berland et al. (1990) and Shields and sics, the AAPL guidelines (American Academy of Psy
chiatry and the Law 1995b) and the published opin ent to attain health or improvement through seeking
ions of the AAPL Ethics Committee (American. professional treatment. The term confidentiality refers
Academy of Psychiatry and the Law 1995a) highlight to the clinician's obligation to hold in confidence in
useful general principles such as the importance of formation obtained from the patient in the course of
striving for honesty and objectivity in the consultation, the professional relationship. Confidentiality rules
avoiding role confusion and conflict of interest, ob govern disclosure of a patient's information to any per
taining fully informed consent, and protecting the ex son other than the patient (Bernet 1998, p. 463). The
aminee's privacy and confidentiality to the maximum legal right of confidentiality belongs to the patient and
extent legally possible. Other useful resources further can be waived only by the patient except as provided
elaborate on these topics (American Psychological As for by statutory exceptions or court order (e.g., when
sociation 1994; Simon and Wettstein 1997) or provide there is a duty to report or a duty to warn or protect a
more comprehensive overviews on the variety of ethi-· specific third party or when the patient puts his or her
cal issues confronting the forensic psychiatrist (Rosner own mental condition at issue in a lawsuit) . This basic
and Weinstock 1990). With regard to child and adoles . legal right of the adult person becomes complicated
cent forensics, Schetky (2002a, p. 15) reviewed some with the legal status of the minor and raises an issue as
important ethical principles and set the stage for fur to who holds the right. In general, a parent legally en
ther exploration. titled to authorize treatment for a minor child holds
the legal right to full information disclosed by the mi
nor (Macbeth 2002, p. 314). In addition, for most pur
poses, .minors cannot consent to or refuse treatment
Legal Issues in the
(Ash and Derdeyn 1997). However, a general trend in
Clinician's Practice
the law has increasingly afforded adolescents the
rights and responsibilities of adults (Ash and Derdeyn
Although ethics codes govern the moral behavior in a 1997), so psychiatrists must be alert to exceptions and
clinician's practice, statutes define and regulate the must carefully review the statutes specific to each state.
business and legal aspect of his or her work. Clinical Somejurisdictions now allow minors to hold confiden
practice is a licensed professional business governed tiality rights based on their age or their ability to con
by statutes that define and regulate the nature of the sent to certain treatments on their own. In 1990, a Cal
practice as well as the duties and responsibilities of the ifornia appellate court upheld the principle that even
practitioner (California Medical Association 2003; if the patient is a minor, that patient is still the holder
Caudill and Pope 1995). Professional business practices of the psychotherapist-patient privilege (Silva v. Haney
are subject to a variety of state, city, and county ordi 1990). The increasingly common situations of separa
nances, as well as federal government regulating bod tion and divorce further complicate this issue. Tradi
ies such as the Drug Enforcement Administration, tionally, the parent with legal custody held the right,
Medicare, and the Internal Revenue Service. States but laws have shown an increasing trend toward pro
vary with regard to laws and rulings governing issues tecting the rights of the noncustodial parent to such
such as confidentiality; informed consent to various information (Macbeth 2002, p. 315).
types of procedures and treatments; and duties to re Regardless of whether the parent or the minor
port, warn, or protect various individuals (Erikson holds the right, a clinician may have a legal duty to
1995; Neinstein 1987). Clinicians should become fa breach confidentiality, to report the condition to the
miliar with the specific laws governing these issues in designated persons or authorities, and to take appro
their state and locality. priate actions to restrain the patient and protect oth
ers from danger of violence if a patient presents an im
minent physical danger to self or others or makes a
• Confidentiality, Privilege, and Duty
specific threat of violence against a particular person.
Although confidentiality and privileged communica Clinicians should familiarize themselves with the spe
tion in the healing arts have a long ethical tradition, cific procedures for notifying authorities and provid
they also are in fact duties and responsibilities created ing involuntary evaluation and treatment in their par
by state statutes to facilitate the communication, trust, ticularjurisdiction (Caudill and Pope 1995).
and confidence that are necessary for a patient or cli During the past two decades, public policy in the
...
form of legislative enactments and appellate court de nal Code No. II 165 et seq.) are very specific with re
cisions has, tended to shift the scope of duty that re- , . gard to the duty of licensed professionals to report
quires licensed clinicians to supersede the obligations what they "know or reasonably suspect" to the locally
of confidentiality in favor of duties to report abuse"ne designated child protective agency, immediately or
glect, or threat of violence. In the landmark case on within a specified time frame. The statutes are equally
v.
the duty to protect (Tarasoff Regents ofthe University of specific regarding 'the mode of reporting the suspected
California 1976), the California Supreme Court ruled abuse or neglect and the duties, procedures, protec
tions, and immunities of the various parties and agen
When a therapist determines, or pursuant to the cies (California Medical Association 2003; Caudill and
standards of his profession should determine" that Pope 1995). These statutesprovide for the conditions
his patient presents a serious danger of violence to
of immunity to the licensed professional regarding
. mother, he incurs an obligation to use reasonable
care to protect the intended victim against such dan mandatory reporting, as well as misdemeanor penal, .
ger. The discharge of this duty may require thether ties for failure to reporL Civil suits against profession
apist to take one or more ofvarious steps, depending als for failure in their duty to report and protect mi
on the nature of the case. Thus, it may call for him to nors have been successful.
warn the intended victim or others likely to apprise Finally, a court may mandate disclosure of confi
the victim of the danger, to notifY the police, or to
take whatever steps are reasonably necessary under dential information and require the clinician to dis
the circumstances. (p.425) close privileged communication in certain legal pro
ceedings. There is much overlap between the rules of
Subsequent appellate court and various state stat
confidentiality and those of privilege, but privilege
utes have attempted to define the nature of the dan
rules apply more specifically to the disclosure of confi
gerousness, its predictability, and procedures forwarn
dential information in judicial, quasi-judicial, and ad
ing or attempting to protect individuals from the
ministrative proceedings. Rules and exceptions to con
threats of dangerous behavior. It appears that the
fidential rights and privileges vary between different
trend is not to require therapists to predict dangerous
states, so clinicians should familiarize themselves with
ness or violence in general but rather to impose the
the relevant statutes in their jurisdiction. In cases aris
, duty to' protect specifically identifiable individuals who ing under federal law, the federal courts uniformly rec
are intended victims by warning them and local police' ognize a psychotherapist-patient privilege Uaffev. Red
authorities ofspecific threats of violence. In reference mond 1996); however, the scope and limits of this
to the behavior of minors in this regard, a California privilege and its exceptions are still evolving in appel
appellate court (Thompson v. Alameda County 1980) late court decisions (Nelken 2000). Frequent excep
ruled that a history of delinquent or violent behavior tions to privileged communication between a psychia
reflecting nonspecific threats of violence not against trist and his or her patient include commitment
specific identifiable victims does not give rise to a duty proceedings, will contests, criminal matters, child cus
to warn or a duty to proted the community at large. tody cases, and implicit or explicit waiver of the privi
Makers of public policy continue efforts to balance lege by the patient or the persoJ?- authorized to act on
the rights of patients' privileged communication his or her behalf (Macbeth 2002).
against the need for disclosure to protect the public, to
protect disturbed individuals from themselves, or to • Informed Consent and Competence
protect vulnerable individuals from abuse or neglect
by persons ~esponsible for their care, The Child Abuse In law, a competent person's prior consent is required
Prevention and TreatmentAct of 1978 provided incen..: before any medical procedure or treatment is under
tives for states to develop statutes addressing child taken, based on the principle of the patient's right of
abuse and neglect. By the early 1980s, each state had self-determination. In general, when the patient is a
in place detailed statutes setting forth specific defini minor, the consent of the parent(s) or legal guardian
tions of reportable conditions, including sexual abuse, is required for consultation, evaluation, treatment, or
sexual assault, sexual exploitation, neglect, maltreat release of information for the minor child unless there
ment, willful cruelty, unlawful or unjustifiable corporal are statutory or appellate court exceptions, which are
punishment, and abu$e in out-of-home care (ten increasi'ngly numerous and varied. Furthermore, the
Bensel et al. 1985). These statutes (e.g" California Pe leading appellate court case in the area of consent
Forensic Psychiatry • 9Il
(Cobbs v. Grant 1972) requires that patients be given own treatment. (Cardwell v. Bechtol 1987). Following. a
sufficient information about complicated procedu~es general trend in the direction of treating minors more
to make an informed choice. In clinical practice, in as adults, state legislatures are also allowing minors to
formed consent requires several elements, including consent to specific types of medical and psychiatric
the following: treatment such as treatment related to sexual behavior
(abortion, birth control, sexually transmitted diseases)
• The clinician must inform the pati~nt of the nature and time-limited outpatient mental health treatment
of the condition and the recommended treatment, (Ash and Derdeyn 1997).
including potential benefits, risks, and potential se The issue of informed consent with minors is prob
rious harm explained in layperson's terms. Alterna lematic because minors may not have sufficient matu
tives to the recommended treatment along with. rity, understanding, or worldly exposure to make an in
,,.
their risks and benefits should also be given.

formed judgment about the nature of the condition,
• The patient's choice is voluntary and is not coerced complicated procedures, or potential consequences.
by the providers of the service. Explanations should be adapted to their level of com
• The patient has competence and capacity to con prihension and ability to consent. As a practical mat
sent. ter, psychiatric consultation, evaluation, and treatment
with most children and adolescents usually takes place
In addition to statutory definitions and case law in in the interactive context of involvement and cnnsent
terpretation, the professional practice standard pre of the child and parents (or legal guardian), who have
vailing at the time arid in the community is the stan usually arranged for the initial consultation and evalu
dard of proof for matters involving informed consent ation and who participate in the treatment planning
i.: (Arata v. Avedon 1993). and pay for the services.
Informed consent from the parent(s) or legal
guardian for minors should be reflected in the medi • Civil Commitment
cal records and should include indications for the use
of the medication relative to the patient's condition, The occasional clinical necessity for hospital treatment
potential short- and long-term effects, possible side ef of seriously disturbed children and adolescents may
fects, and specific consent for the administration of bring their rights to liberty and self-determination into
the medication. As part of obtaining consent for the conflict with the rights, responsibilities, and duties of
treatment plan, there should be an explanation of the parents, legal guardians, and state agencies. Clinical
nature of and necessity for the privileged communica guidelines (American Academy of Child and Adoles
tion between patient and therapist and, where appro cent Psychiatry 1989) for such hospitalization includes
priate, an articulation of the legal requirements that 1) a qualified psychiatrist's evaluation; 2) diagnosis by
set forth when confidentiality must be broken and DSM criteria; 3) severity of impairment in two or more
when information about abuse or threat or danger to areas of daily functioning; 4) likelihood of benefit
self or others must be reported by the therapist to spe from the proposed treatment; 5) prior consideration
cific persons or agencies. of less-restrictive treatment procedures and the judg
In considering a minor's competence to consent to ment that they are inappropriate or inadequate to
treatment, states provide various statutory exceptions meet the patient'S needs; 6) the child's encourage
to the general requirement of parental consent. In ment to voluntarily participate in the admission, treat
mostjurisdictions, emancipated minors can consent to ment planning, and discharge process; and 7) parents'
their own treatment. These include minors who are full information about and participation in the hospi
older than age 15, living away from parents, and eco talization and treatment planning decisions.
n omically self-sufficien t; married (or divorced) mi In the governing U.S. Supreme Court case regard
nors; minors on active duty in the United States armed ing hospitalization of minors (Parham v. JR. 1979), the
services; and minors who have been emancipated for righ t of paren ts to seek and secure hospital treatment
cause with a specific court order. A "mature" minor or for their minor children was affirmed, provided that
one whom the courts determine is sufficiently mature independent medical reviews-and not necessarily an
to appreciate the nature, extent, and consequences of aclversarial due process legal review-confirm the na
the medical treatment may also consent to his or her ture of the illness and the likelihood of benefit from
a
the proposed'treatment. Moreover, this independent The essential elements of professional negligence or
medical review must have the power to deny admission malpractice are sometimes referred to as the four D's
if medical standards and legal requirements are not of negligence:
met. In addition, the youth has the right to periodiC re
views of treatment procedures and of the hospital con • Duty-a duty of care was owed to the patient by the
finement. The findings in Parham were subsequently physician.
extended to a Pennsylvania case, Secretary ofPublic Wel • Dereliction-the duty of care was breached.
fare ofPennsylvania v, Institutionalized Juveniles (1979), • Damages--the patient experienced actual damage
in which the Supreme Court decided that the Parham due to the breach of duty.
procedural safeguards offered sufficient protection of • Direct causation-the dereliction was the direct
the minors' "liberty interests." However, the Court also cause of the damages.
concluded that parents cannot waive the rights of mi
nors to due process civil commitment procedures and The plaintiff's case must demonstrate these ele
that minors have the right to challenge the psychiatric ments to the trier offact, whereas the defense attempts
diagnosis within 72 hours and a right to a formal adver to demonstrate that one or more of these elements did
saryhearingwithin 14 days of hospitalization. not or could not have occurred according to the stan
States can afford more extensive due protections dard of care prevalent in the community at the time.
than those required in Parham v.JR (1979). In a Cal The standard of proof in malpractice cases is prepon~
ifornia Supreme Court case, In Tl? Roger S. (1977), the derance of evidence (Le., more likely than not). As
court gave minors age 14 and over the following pro concepts regarding civil liability have been expanding
cedural' safeguards: entitleme~t to administrativ~ (Guyer 1990), mental health professionals involved in
hearing by a neutral fact finder before commitment, civil litigation are increasingly involved in the evalua-:
notice of the reasons for the proposed action, right to tion, treatment, and damage assessments regarding
counsel, the opportunity to present evidence and other plaintiffs and defendants (Schetky and Guyer
cross-examine witnesses, and proof by a preponder 1j190). By the same processes, mental health profes
ance of the evidence that the minor has a mental ill sionals are having their own professional procedures
ness and will be benefited by the treatment. and behaviors scrutinized for negligence or breach of
duty and may find themselves vulnerable to claims for
• Professional Liability inadequate evaluations, failure to obtain informed
consent, or a myriad of other improper actions or
During the past two decades, the increase in claims omissions. Residency training programs in child and
and awards for professional malpractice has not by adolescent psychiatry have also been successfully sued
passed psychiatrists and other mental health provid for patient mismanagement and other claims involy
ers. Because of recently expanding case law and legis ing faculty and trainees (Wagner et al. 1993).
lation in matters such as psychic trauma and legal The increasing involvement of mental health pro
, liability, mental health professionals are increasingly fessionals in child sexual abuse cases and a gtowing
vulnerable to claims and suits based on matters such as body ofliterature on repressed memories and the sug
abandonment of patients, battery, breach of confi gestibility of child witnesses has fueled the emergence
dentiality or duty, failure to follow established or com of new areas of litigation. One evolving area of litiga
munity standards of care, failure of duty to report or tion involves third-party claims brought by parents
protect against harassment or abuse of patients, negli against their child's therapists. In 1994, a California su
gence, improper treatment, wrongful injury, or other perior court allowed a father to successfully sue his
alleged violations of federal or state laws regarding daughter'S ther~pist for negligence and intentional in
professional responsibilities and practice, fliction of emotional distress after the therapist had
In accordance with the principles and precedents suggested memories of sexual abuse to the daughter
of tort law or civil wrongful behavior rather xhan of and encouraged her to confront the father (Ramona v.
criminal behavior, a professional practitioner may be !sabella'1994) The court foum;! that the therapist owed
liable for behavior that unintentionally resulted in a duty of care to the paren t because he was involved in
harm or ir:Uury to a patient or to a third party that the therapy of the child and had become a client along
could have or should have been reasonably prevented. wi th the daugh ter. However, in Althaus v. Cohen (1998) ,
the court found no such duty of care to the parents of tody dispu'tes (Nurcombe and Partlett 1994, p. 91).
an alleged victim of abuse because it would create a The model legislation of the Uniform Marriage and
breach of the therapist's fundamental duty to her pa Divorce Act approved by the American Bar Association
tient and would destroy the therapeutic process. Other in 1974 (Group for the Advancement of Psychiatry
new areas of litigation involve claims for implanting 1980) contains a section regarding the best interests
false memories of abuse and attempts to overturn pre criteria, According to the relevan t section (Section
vious convictions based on the suggestibility of child 402); the court shall determine custody in accordance
witnesses (Commonwealth of Massachusetts v. Amirault with
.
the best interests of the child . and shall consider
LeFave 1999). This is a new and evolving area of case all relevant factors, including the wishes of the parents
law, and the full impact of these decisions is yet to be and the child; the interactions of the child with those
known. who may significantly affect his or her best interests;
Another rapidly emerging area of ethical and legal' the child's adjustment to his or her home, school, and
vulnerability for mental health professionals involves community; and the mental and physical health of all
the cost-containment purposes of managed care over individuals involved (Group for the Advancement of
riding the independent clinical judgment of attending Psychiatry 1980; Nurcombe and Partlett 1994, p. 92).
physicians with regard to patient-care decisions. When The majority of states have adapted their statutes
a managed care company denies coverage for a service (either wholly or in modified form) from the concept
for "lack of medical necessity," the physician has four and language of the Uniform Marriage and Divorce
duties: First, the physician should appeal the decision Act. For example, California Family Code, Section
(Wickline v. California 1986). Second, the physician 3011 et seq., concerning the custody of children, pro
should discuss the issues raised by the managed care vides, in part, "it is the public poli~y of this state to as
company with the patient. The patient should be in sure minor children frequent and continuing contact
fonned that the insurer has refused to pay and that the with both parents ... and to encourage parents to share
patient has the option of paying out-of-pocket or ap the rights and responsibilities of child rearing." In
pealing the decision. Third, there is always the duty to awarding child custody, the court makes a determina
treat the patient in an emergency, even without pay tion in the best interests of the child, considering
ment. Fourth, the physician should develop alternative among other factors it finds relevant-th e h eaI th, safe
treatment plans in the face of the denial of a preferred ty, and welfare of the child; allegations of abuse and
treatment plan by the managed care company. neglect; and the habitual or continued illegal nse of
controlled substances or the continual abuse of alco
hol (California Family Code 3011). "The court shall
• Child Custody and Divorce also c'onsider, among other factors, which parent is
In the past generation, there has been an increase in more likely to allow the child frequent and continued
divorce, remarriage, single-parent families, step contact with the noncustodial parent. .. and shall not
parenting families, and alternative families (Shiono prefer a parent custodian because of that parent's sex"
and Quinn 1994). As a result, there is perhaps no issue (California Family Code 3040). Family Code 3042 also
at the interface of psychiatry and the law that has states, in part, "if a child is of sufficient age and capac
grown more in volume, permutations of detail, and ity to reason so as to form an intelligent preference as
hostile conflict than the law in regard to child custody, to custody, the court shall consider and give weight to
child access, and perhaps parental responsibility and the wishes of the child in making an order granting or
financial obligations (Hyde 1984). This has occurred modifying custody."
in the context of the recently burgeoning social sci Despite the general acceptance of the "best inter
ence research data on children and families undergo ests" principle (Goldstein et aL 1996), the concept re
ing the process and effects of divorce, especially high mains ambiguous and indeterminate; leaving judges
conflict custody divorce cases, which pose a significant with wide discretion to interpret it in a variety of ways.
workload for the courts (Behrman 1994; Hethering As a result of this vagueness, the courts have increas
ton 1989; Kelly 1988; 2000; RosebyandJohnston 1998; ingly relied on the expertise of child mental health
Wallerstein 1991). professionals to assist in the determination of best in
The legal doctrine ofthe best interests of the child terests (American Academy of Child and Adolescent
is the current guiding principle in deciding child cus Psychiatry 1997b). To promote and maintain stan
dards of care and assist those engaged in this special taken varied approaches· to the issue. Some jurrsdic
ized work, guidelines for evaluating child custody tions equate homosexuality with parental unfitness,
disputes have been published by the Americ?-n Psycho whereas other jurisdictions have opposed the use of
logical Association (1994), the American Association sexual orientation in determining the outcome of visi
of Family and Conciliation Courts (1994), the A.rlleri tation or custody disputes (In re Birdsall 1988 ).
can Psychiatric Association (1988)' and the Judicial Grandparent.$, stepparents, and other third parties
Council of California (2002). A number of mental are increasingly seeking visitation rightS or custody of
health professionals have also published important children. States vary in their approach to these issues.
guiding principles (Bernet 1998; Herman 1999). With regard to stepparents obtaining custody of a
While clinicians and court personnel struggle to as child, the general trend in the courts app~ars to favor
certain and articulate the "best interests of the child" the natural parent over the nonbiological parent un
in any particular case, they may be guided by the com less "clear and convincing evidence" (Herman 1990)
mentary of the California Supreme Court's perception or "exceptional circumstances" (Herman 1990) sup
(In re Marriage of Carney 1979) that port placement with the nonbiological parent. All 50
states have enacted some form of grandparent visita
The essence pf parenting .. .lies in the ethical, emo tion legislation, but the visitation statutes vary in their
tional, and intellectual guidance. the parent gives to
the child throughout his formative years, and often
degree of permissiveness (Scott 2000),. In a recentrul
beyond. The source of this' guidance is the adult's lng on this controversy, the U.S. Supreme Court (Troxel
own experience of life; its motive power is parental v. Granville 2000) concluded that the broad language
love and 'concern for the child's well-being; and its of a Washington State visitation statute allowing "any
teachings deal with such fundamental matters as the person" to petition for visitation rights "at any time"
child's feelings about himself, his relationships with
unconstitutionally infringed on the parents' "funda
others, his system ofvalues , his standards ofconduct,
and his goals and priorities in life (p. 739). mental righ~" under the Fourteenth Amendment to
raise their family free from governmental in terference
The application of such wisdom requires careful clini (Troxel v. Granville 2000). Future cases will likely con
cal observation and judgment in the exceedingly com tinue to attempt to define the boundary between pa
plex labyrinth of child custody evaluations and proce rental autonomy and the state's authority to impose
dures (Ames and Huntington 1991; Ash and Guyer visitation or custody rights of stepparents, grandpar
1986; Herman1990; Kelly 1991). ents, and other third parties in furthering the best in
Current social forces have engendered special is terests of the child.·
sues in child custody disputes that complicate the eval A tragic outcome of child custody disputes is the
uation and present additional challenges to the foren serious problem of parental kidnapping. An under
sic expert. The special issues involve a diverse range of ground network has even developed to assist parents
topics such as infant placement and custody (Horner who are fleeing with their children from what is per
and Guyer 1993), homosexual parenting, rights of ceived as an unjust legal system (Herman 1990). Schetky
stepparents and grandparents, parental kidnapping, and Haller (1983) reviewed the agonizing conflicts cre
the mentally ill parent, sexual abuse .allegations, pa ated in the child, the legal aspects of the problem, and
rental relocation (Shear 1996), and controversies aris attempts to deal with the issue. The forensic examiner
ing from advances in reproductive technologies (Ber confronted with this type of case should be familiar
net 1998; Herman 1990; Nurcombe and Pardett with the relevant state laws, federal laws (Uniform
1994). The highly controversial issue of alienation in Child Custody Jurisdiction and Enforcement Act and
children of divorce is currently being reformulated the Parental Kidnapping Prevention Act) and interna
(Kelly and Johnston 2001). tional agreements (1988 International Child Abduc
The emotionally charged topic of homosexual tion Remedies Act and the 1980 Hague Convention on
parenting is particularly complex and challenging. the Civil Aspects of International Child Abduction)
The mental health literature on homosexual parent that provide some procedures and sanctions to ad
ing appears to suggest no appreciable differences in. dress this issue (Weiner 2000).
parenting abilities or in the psychological health and R:egardless of whether the evaluation involves gen
sexual odentation of the child (Binder 1998). Despite eral issues or more complex situations as described
these findings in the literature, legaljurisdictions have previously, the examiner should be prepared to deal
with a potentially high-conflict, emotionally intense ceedinglycomplicated area of family law. In May 2000,
process, Divorcing parents are often dissatisfied with the American Law Institute approved a project called
the adversarial nature, high costs, and inefficiencies of the Principles of the Law of Family Dissolution to ex
the court system involved with divorce litigation (Pru amine the present state of legal development in this
ett and Jackson 2001). Studies have alsoshown signifi area of the law; to clarify underlying principles; and to
cant negative outcomes on child and parent from the suggest future direction for public policy in the issues
adversarial process (Kelly 2000). of dissolution, child and spousal support, property di
Mediation provides an important alternative to the vision, and custody of children (Kay 2000). Twenty
adversarial process and has increased in availability first-century lawmakers should consider the proposed
and utilization in the past decade (Kelly 2000). In sev legal framework and .standards as they continue to ad
eral states-including California, Maine, New Mexico, dress the constant challenges and complexities of this
Connecticut, and Maryland-mediation is mandated rapidly evolving area of the law.
by the court before custody litigation begins (Herman
2002) .The process of mediation differs in the legalju • Child Abuse and Neglect
risdictions throughout the country, but the current lit
erature suggests increased overall satisfaction among The apparent incidence of child abuse and neglect has
the involved parties and more frequent joint custody dramatically risen since the passage of the Child Abuse
and coop¢ration between parents (Ash and Derdeyn Prevention and Treatment Act in 1978 (Larner et al.
1997). 1998). Mter implemen tation of the federally man
The child custody evaluator should be knowledge dated guidelines, all states passed laws requiring des
able about the two usual outcomes of a custody dis ignated persons to report child abuse and neglect
pute-that is, joint custody or sole custody-and the (Nurcombe and Partlett 1994, p. 137). Reporting of
potential effects of these outcomes on the child. In allegations continues to rise as a result of this federal
joint legal custody, both parents have legal decision legislation and increased media attention (Quinn
making powers regarding the child. In joint physical 2002). Failure to report can result in civil liability for
custody, the parents have responsibility for co-parent negligence and malpractice (Landeros v. Flood 1976) or
ing. In sole custody, one parent has this power. Cur even in criminal penalties as specified by statutes (Nur
rent literature reflects a lack of consensus on the best combe and Partlett 1994, p. 138). The mandated re
custody arrangement for children (Binder 1998), but porting is an exception to confidentiality, and the re
relevant research studies support certain generaliza porter is granted immunity from suits for negligence
tions on this topic. Interparental conflict, the psycho or defamation if the suspected case of abuse is reported
logical health of the parents, and the quality of par in good faith (Quinn 2002). State laws vary in their le
ent-child relationships appear to be among the most gal definition of terms related to the maltreatment of
important predictors of a child's adjustment to divorce children, so clinicians should familiarize themselves
(Ash and Derdeyn 1997; Kelly 2000). High levels of in with the statutes in their specific jurisdiction. Variabil
terparental conflict-whether in the conflict of the ity is especially wide in sexual abuse definitions, in
marriage or in high-conflict divorce situations-ap which the age of both the child and the perpetrator as
pear to have an especially negative influence on the well as their relationship determines the nature of the
psychological adjustment of children (Roseby and offense and the penalties involved (Quinn 2002).
Johns ton 1998). The effect of the parent's and child's In child maltreatment cases, the forensic evaluator
gender on postdivorce adjustment is another increas can perform a variety of functions, including assess
ingly important area ofstudy. The literature appears to ment of the nature and extent of harm to the child;
suggest that girls are less well adjusted in families with evaluation of parental fitness; and recommendations
father and stepfather custody, and boys are less well ad regarding placement, treatment, or termination ofpa
justed in mother-custody families (Binder 1998). Fur rental rights (American Academy of Child and Adoles
thermore, in mother-custody families, boys may have cent Psychiatry 1997c). The forensic evaluation may be
improved adjustment with regular paternal contact, used in a variety of legal proceedings, including crimi
provided the father is reasonably healthy (Binder nal prosecution, dependency and guardianship ac
1998) . tions, custodial dispute, termination of parental rights,
Child custody evaluations involve a dynamic, ex and tort litigation (Barnum 1997).
a
916 • . OTHER DISORDERS AND SPECIAL ISSUES
To address questions related to thenatu're and ex tion in these cases requires awareness of the' complex
tent of harm, the forensic examiner should familiarize ities in the system and an understanding of its poten
himself or herself with the clinical patterns aSsociated tial impact on the child. For example, numerous
with child maltreatment. Several authors have provided studies have described the difficulties in this popula
reviews of the most recent literature regarding the tion of children, including physical probl~ms, psycho
clinical patterns, differential diagnosis, and long-term logical and emotional issues, and academic difficulties
consequences associated with ,child abuse and neglect (Rosenfeld et al. 1997). The emotional impact of the
.(American Academy of Child and Adolescent Psychia . parent-child separation on the child, contradictory
try 1997c; Bernet 1993; Kaplan et al. 1999; Nurcombe demands on the biological and foster parents, and a
and Pardett 1994). In addition to the clinical patterns system that lacks the resources to address the special
of physical abUse, sexual abuSe Victims manifest a wider needs of this population create an especially difficult
and greater frequency 'of inappropriate sexual behav- . situation for a child who already has problems (Roseri- '
lors than nonabusedchildren (Bernet 1998). Al feld et al. 1997). Yet despite this neg~tive p~rspective,
though physical and sexual abuse have been the focus evidence also indicates that foster care can have posi
of most studies, emotional maltreatment is likely the tive outcomes, induding improved health, social func
most frequent form of abuse and neglect, with the tioning, and academic performance (Rosenfeld et al.
strongest relationship to long-term psychological func 1997). The literature also suggests that certain risk fac
tioning (Kaplan et al. 1999). However, relevant studies tors (e.g;, poverty, alcoholism, parent mental illness,
are lacking because of the perception that it is less low education) and protective factors (e.g., intelli
damaging than physical and sexual abuse (Kaplan et gence, positive emotional ties, external support sys
al. 1999).' tem) likely influence the outcomes of a child's foster
Assessment of parental capacity and prognosis is a care experience (Rosenfeld et al. 1997). Numerous
challenging task, because a clinical consensus on this confounding variables make definitive conclusions on
standard remains to be developed. Barnum (2002), this issue difficult. However, the government and so
providing the most recent guidance on this issue, of cial agencies have made some efforts to improve the
fers <l- theoretical framework for understanding parent plight of these children. To address concern about the
ing, discusses the impact of developmental issues and lack of stable, healthy, consistent attachments in this
parental strengths and weaknesses on parenting capac population? the federal government. enacted the
ity, and describes specific techniques for assessimirit. Adoption Assistance and Child Welfare Act of 1980
Clinical opinions regarding this issue will be central to .(P.L. 96-272) "to end the drift of children in foster
the adjudication and disposition of a child maltreat care and encourage plans for permanency." The law
ment case. Based on the findings, the juvenile court mandates social agencies to make "reasonable efforts"
may decide to return the child home with further diag to help the biological family remedy the issues leading
nostic or therapeutic interventions or commit the to removal of the child and, in case family reunifica
child to custody of the state with a requirement of tion efforts fail, to begin permanency-plans within 18
home-based services and periodic reports to the court 20 months of foster care placement (Rosenfeld et al.
'(Nul-combe and Pardett 1994, p. 143). However, if par 1997, p. 449). Other promising developments include
ents are deemed incapable of providing a safe environ the increasingly popular use of kinship care and ther
men t for the child, the child may be removed from the . apeutic foster can~ programs (Rosenfeld et al. 1997;
home and placed in foster care or institutional care U.S. Public Health Service 2000, p. 176; Wasserman et
with plans for eventual reunification (Wasserman et at al. 2002). Unfortunately, positive changes in the foster
2002). care system are undermined by a managed care system
Foster care is an increasingly utilized temporary that seeks to decrease child welfare expenses. Ulti
placement option for the child who is removed from mately, public policy makers will have the difficult if
the home. Social policy and increasing prevalence of not impossible task of allocating diminished resources
substance abuse, human immunodeficiency virus in to provide high levels ofspecial care for a growing pop
fection, and homelessness in the late 1980s led to a . ulation in an already overbu~dened system.
dramatic increase in the foster care population Although the law mandates that reasonable efforts
(Wasserman et aJ. 2002) and growing concern for the be made to encourage reunification with the family,
future welfare of these children. Appropriate consulta the state is entitled to petition for termination of pa
rental rights if family reunification has failed and the Academy of Child· and Adolescent Psychiatry l:997c;
child has been in foster care for 18 months (Adoption Ceci and Bruck 1993). Even adults are susceptible to
Assistance and Child Welfare Act of 1980, P.L. 96-272). suggestion, as evidenced by research on the phenomena
Certain crimes (e.g., murder, rape, sexual abuse) even of "recovered memories" and "repressed memo
warrant the; automatic pursuit of termination of paren ries"(Corelii et a1. 1997). The negative consequence of
tal rights (Schetky 2002d). The legal standard for ter suggestive interviewing techniques includes errors
mination of parental rights is clear and convincing evi about the source of the information as well as major
dence (Santoshy v. Kramer 1982). Nurcombe and Partlett details of the peripheral and central events, such as
(1994, p. 147) and Schetky (2002d) described specific falsely reporting that a person had touched their pri
criteria to be considered in termination proceedings vate parts (Bruck and Ceci 2002, p. 139). Several sig
such as the child's need for permanency, continuity of nificant contributors to this literature include Loftus
relationships with siblings and extended family mem (1997), Loftus and Pickrell (1995), and Poole and
bers, special needs of the child, quality of the parent Lindsay (1995, 2001).
child relationship, and capacity for attachment and These controversies have ledtoa large body oflit
adoptability. The :forensic examiner should also be fa erature on the appropriate assessment of allegedly
miliar with the various possible outcomes of termina abused children, including appropriate interview
tion proceedings, including long-term foster care; le techniques to minimize bias and distortion (American
gal guardianship; emancipation; and closed, open, or Academy of Child and Adolescent Psychiatry 1997c;
kinship adoptions (Schetky 2002d). Bernet 1998). In general, the current literature sug
gests that interviewers should start with an open-ended
question; progress to more focused questions if neces
sary; and avoid leading questions, repetitive question
The Child as Witness ing, questions promoting speculation or fantasy, and
manipulation of the emotional tone to direct the inter
Because of a frequent lack of physical corroboration, viewee (Ceci and Bruck 1993; Schetky and Benedek
allegations of sexual abuse often require a child's testi 2002, p. 154). These studies suggest that memory ap
mony. This is less likely to be the case in allegations of pears to be most accurate when elicited through free
physical abuse because the physician can testifY to the recall without the use of cueing, leading questions,
abuse based on his or her observations or a medical di suggestive interviewing, or multiple interviews.
agnosis of the battered child syndrome. In sexual Trained child clinicians will find their knowledge of
abuse cases, the child's testimony can be critical to de child development most valuable in these interviews,
termining the likelihood of sexual abuse. because children have age-related differences in mem
A number of widely publicized cases of allegations ory, cognitive abilities, language skills, range of experi
of sexual abuse in the 19805 and 1990s led to much re ence, and emotional maturity.
search on the accuracy of children's memory and the The child's credibility is ultimately determined by
reliability and suggestibilityof their statements. From the judge orjury and not the forensic expert. However,
a developmental perspective, the literature suggests the forensic expert may give expert testimony on this
that memory-especially short-term memory-and re topic. Several authors have described factors that can
tention begin to exist functionally at age 3, undergo a assess the credibility of a child (American Academy of
major developmental shift at age 6, and continue to Child and Adolescent Psychiatry 1997c; Benedek and
improve with age (Clark 2002, p.130). Although re Schetky 1987a, 1987b; Green 1986; Nurcombe and
search has shown that children are capable of accu Partlett 1994, p. 172; Raskin and Esplin 1991). Some of
rately recalling information, studies also indicate that these factors include spontaneity of statements, age
they are highly susceptible to suggestion (American appropriate terminology, general consistency in state
Academy of Child and Adolescent Psychiatry 1997c; ments, appropriate affect, and consideration of moti
Ceci and Bruck 1993). There appear to be significant vational factors (such as in divorce-related circum
age differences in suggestibility, with preschool chil stances) (American Academy of Child and Adolescent
dren being disproportionately more vulnerable to sug Psychiatry 1997b; Derdeyn et a1. 1994). However, stud
gestion than either school-age children or adults, but ies have shown that even well-trained professionals
the age differences are a matter of degree (American cannot reliably differentiate between true and false
reports when'these reports have been influenced by has decided eight cases that balanced the best .inter
suggestive interviewing techniques (Ceci and Bruck' ests and cognitive' and emotional capabilities of a
1993), This may be explained by the current scientific child witness against the constitutional rights of de
literature, which suggests that memory is constructive fendants to protections against self-incrimination
rather than reconstructive in nature and that retrieval (Fifth Amendment), the right to confront and cross
is influenced by current attitudes, feelings, and beliefs examine witnesses (Sixth Amendment), and due
(CoreIli et al. 1997). Therefore, the factors for assess process (Fourteenth Amendment) (Kermani 1991,
ing credibility cannot be used definitively to deter 1993). In the most recent decision in this series
mine whether abuse has occurred. (White u. Illinois 1992), the court recognized what
A child's testimony is only valuable if he or she is , amounts to a specific hearsay exception: The testi
competent. Competence refers to the child's ability to mony of a physician was admitted and did not vio
testify in court in a reliable and meaningful manner. late the defendant's Sixth Amendment rights be
Several authors have contributed to the literature on cause the child's statement to the physician' was'
this topic (American Academy of Child and Adoles "a spontaneous declaration" made to the physician
cent Psychiatry 1997c; Nurcombe and PartIett 1994, for the purpose of medical dIagnosis and treatment.
p.168). In general, a child's competence is detennined Clinicians working in this area should be aware of
by four criteria: the capacity to register the event, the additional state and local jurisdiction rulings and of
ability to accurately recall and recount the event" the current standards of assessment related to the par~
ability to distinguish truth from falsehood, and the ca ticular case and status of the child witness.
pacity to communicate based on personal knowledge of
the facts' (Nurcombe and Partlett 1994, p. 169).
The evaluation and prosecution of maltreatment
cases may subject the child victim to multiple assess Youth Violence
men ts and evaluations in home, school, clinical, or
police settings (Arthur 1986) and may require the The current surge in youth violence in the United
child to participate in depositions and pretrial hear States has permeated the national consciousness and
ings and to testify in court as a witness (Office ofJu media and has prompted school administrators, law
veniIe Justice and Delinquency Preven tion 1994). In enforcement officials, policy makers, and mental
addition 'to child protective services and juvenile court health professionals to more closely examine this com
dependency proceedings, these evaluations and plex issue. The forensic psychiatrist may serve as a con
sometimes the child's own testimony as a witness sultants in risk assessment, risk management, and pre
may',be required in criminal proceedings against the vention of violence.
perpetrator, as well as in civil litigation for claims of A growing body of literature has recently devel
psychiC damages. There has been concern about the oped, beginning with the neurodevelopmental impact
effect of this process on the child witness because of ofviolence in childhood. Results of the studies suggest
the child's particulaxJevel of cognitive ,md emouon- , that exposure to violence and trauma and the neuro
al development. A number of suggestions and at physiological adaptations to this exposure can alter
tempts have been made to reduce the number of nonnal development of the child's brain and can lead
evaluations and to modify prosecutorial procedures to changes in physiological, emotional, behavioral,
(Arthur 1986; Office ofJuvenile Justice and Delin cognitive, and social functioning (Perry 2002, p. 192).
quency Prevention 1994). The precedent-setting Children raised in violent communities or in homes
U.S. Supreme Court decision in this area (lWleeler v. with chronic parental violence appear to be at higher
United States 1895) indicated that a 5-year-old boy risk for psychiatric disturbances, delinquent behavior,
"was not by reason of his youth, as a matter of law, and an increased likelihood of becoming perpetrators
absolutely disqualified as a witness" and further of aggressive and violent behavior themselves (Perry
ruled that the question of competence "depends on 2002, p. 208). A large number ofstudies on the impact
the capacity and intelligence of the child, his appre of me'dia violence on children reveal that it increases
ciation of the difference between truth and false risk for aggressive behavior (Singer et al. 1998), desen
hood, as well as his duty to tell the former"(p. 254). sitizes youths to violence in the real world (American
During the past decade, the U.S. Supreme Court Medical Association 1996), creates a perception of the
world as a dangerous and unfriendly place (Singer et

al. 1998), and potentially leads to greater risks ofpsy Dependency, Delinquency, and
chological and social problems (Singer et al. 1998).

However, not all children are similarly affected by vio
the Juvenile Court
lence, and protective factors such as the parent-child The juvenile court system in the United States origi
relationship and age have also been described (Al-Ma nated as a result of the progressive and reform move
teen 2002, p. 220). ments at the end of the nineteenth century. The sys
The wave of school shootings in the mid and late tem was seen as a way to move minors out of the adult
1990s fueled a growing concern about school vio criminal justice system and into specialized proce
lence and led to much inquiry about risk assessment dures and programs to meet their best interests and re
and prevention of violence in children and adoles habilitative needs. This specialized system was devel
cents. A growing body ofliterature has attempted to oped in every state through enabling legislation that
identify factors associated with aggressive, violent, established a local county court with original jurisdic- '
antisocial, or delinquent behavior. Disruptions in tion over the care, rehabilitation, treatment, supervi
early development, abnormal neurotransmitter lev sion, and disposition of minors ,....ho came to the atten
els, mental illness, learning disabilities, exposure to tion of the juvenile court for the following reasons:
violence, certain parenting styles, substance use, 1) dependency, neglect, or abuse; 2) incorrigibility or
neurological impairment, and socioeconomic class truancy, now called status offenses; or 3) delinquency
are among some of the causal factors implicated in offenses, that is, violation of laws that if committed by
an increased risk of delinquent or aggressive behav an adult would be subject to the jurisdiction of the
ior (SchetkY2002c,p. 234). The wide diversity of the criminal court.
associative factors speaks to the complexity of this is The prevailing concepts of parens patriae in com
sue and may explain why clinicians face a daunting mon law provided the justification for the develop
task when trying to identity youths at high risk for vi ment of this juvenile court and probation system,
olence. Several authors have discussed the limits of which exercised responsibility for minors who violated
the ability to make long-term predictions of violence the law, were not properly cared for, or could not oth
and have offered more realistic approaches to the erwise exercise proper control over themselves. Juve
problem, such as more ongoing involvement with nile courts in each coun ty (Edwards 1992; Guyer 1985)
high-risk students; more frequent assessments tar had wide discretion, latitude, and encouragement to
geting risk of imminent danger (rather than long act in an informal, highly indiVidualized fashion, utiliz
term predictions); and the creatioI) of a supportive, ing a wide variety of procedures and interventions in
positive school environment with good communica the care, rehabilitation, "reform," or treatment of the
tion between school administration and students abused, abandoned, neglected, incorrigible, or delin
(Mulvey and Cauffman 2001). quent minors within theirjurisdictions.
The heightened awareness of school violence has If a youth was deemed to be beyond the rehabilita
prompted school administrators, policy makers, and tive capabilities of the local juvenile court detention,
mental health professionals to implement a variety of probation, or state training school facilities, the youth
prevention and intervention programs. Schetky and was transferred--or waived-to the jurisdiction of the
Benedek (2002, p. 239) and Pittel (1998) delineated adult criminal court in that county. In the first juvenile
guidelines for taking a violence and weapons history. court intervention ruling (Kent v. Unifed States 1966)'J
Some ofthe preventive programs that have resulted in the Supreme Court held that the decision to transfer
positive outcomes include conflict resolution, inter or waive ajuvenile to adult criminal court is "critically
personal problem-solving techniques, bullying reduc important." It therefore must provide fairness and due
tion programs, supervised recreation after school process involving a fair (though informal) hearing, as
hours, mentoting programs, parent management sistance of counsel with access to social service records,
training, and family therapy (U.S. Department of a written record of the proceedings indicating the
Health and Human Services 2001). Because all of findings of the court, and a reason for the transfer or
these described programs have practical and method certification to the adult criminal court so that the pro
ologicallimitations that curtail their effectiveness, fur ceedings may be reviewed on appeal.
ther research is warranted. Substantial reform was brought to the operation of
th'ejuvenile' court system in the Suprer;e Court's sec that spedfic·charges against minors age ~4 years and
ond decision on proceedings (In re Gault 1967). The older may be filed directly in a court of criminal juris
court articulated five basic constitutional rights in the diction without a judicial determination of unfitness
adjudicatory phase of the juvenile court procedures: under thejuvenile court law (Manduley v. Superior Court
ofSan Diego 2002),
1. Adequate notice of tri<il at all stages 'The increased readiness to waive juveniles to adult
2. Right to counsel court has resulted in a heightened concern about the
3. Right to confront witnesses in cross-examination issue of competence in the juvenile. The curren t stan
4. Privilege against self-incrimination, both before dard for competence to stand trial is "whether a defen
and during trial . . dant has sufficient present ability to consult with his
5. Proper appellate revie~, including the right to tran lawYer with a reasonable degree of' rational u~der
scripts of the proceedings standing and whether he has a rational as well as factu
al understanding of the proceedings against him"
Concerning other procedural matters, the Su-, (Du$ky v. United States 1960). A number ofscreening in
preme Court held that a higher standard of proof (i.e., struments can assist the examiner in determining a ju
beyond a reasonable doubt) was required in juvenile venile's competence: the Georgia Court Competency
delinquency adjudications (In re WinshiP 1970). How Test, the MacArthur Competence Assessment Tool,
ever, there is no constitutional right to a trial byjury in and McGarry's Competency Assessment Interview.
juvenile delinquenCY adjudication (McKdverv. Pennsyl Other authors l-J.ave also made important contribu
vania 1971). Moreover, state statutes may provide for tions to the literature on this topi!;: (Grisso 1998a; Rat
juvenile pretrial detention when it is determined that ner 1992).
a particular juvenile presents a "serious risk" or that Although competence to stand trial is the most
thejuvenile "may before the return date commit an act common competence referral, competence to waive
which, if committed by an adult, WOUld, constitute a Miranda rights and to be executed are becoming sig
crime'" (SchaU v. Martin 1984, p. 2405~. Many unre nificantly more important as morejuveniles are trans
solved and ongoing procedural due process concerns ferred to adult court. In Fare v. Michael (1979), the U.S.
continue to challenge the juvenile justice system, par Supreme. Court determined that the juvenile's waiver
ticularly as more juveniles are tried in adult courts. of his Miranda rights must be determined in light of
, T he iSsue ofsearch and seizure has become increasingly the totality of the circumstances, including factors
pertinent as schools seek to deal with the presence of such as the individual's comprehensiop ofthe warning
weapons and drugs in schools. In NewJersey v. T.L.D. and the context surrounding the confessions. Grisso
(1985), the Supreme Court found Iio violation of (1998b) elaborated on this issue and developed four
Fourth Amendment rights when a principal searched standardized tools to assist the examiner in this ques
a student's purse for drugs without a search warrant. tion. The constitutionality of executing ajuvenile is
Other important controversial areas include confes variable based on the juvenile'S age and the jurisdic
sions and the limits ofinterrogation. . tion .. In two separate (;ases, the U:S. Supreme Court
An ala~ing increase in youth violence in the past held that execution of an offender age 15 or younger
decade had led to a movement away from the rehabil . is unconstitutional (Thompson v. Dklalwma 1988) and
itative ideal of the original juvenile court system to- , that ajuvenile may be subject to the death penalty for
ward the, direction of holding more violent youths re crimes committed at age 16 or 17 (Stanford v. Kentucky
sponsible as adults. Many states have passed "get 1989). States with the death penalty statute vary in
tough" laws allowingmorejuveniles to be tried in adult their minimum age requirement, but the range is be
court (Snyder and Sickmund 1995). Some of these tween ages 16 and 18 years.
laws--such as the 1996 Michigan Juvenile Justice Re In many of these waiver cases, child and adolescent
form Legislation (Clark I996)-automatically place a psychiatrists are often called on to evaluate and pro
juvenile in adult court for certain violent offenses, and vide testimony to the court regarding thejuvenile's de
others increase the number of offenses for which a ju gree of dangerousness to the community, risk assess
venile could be waived at'the discretion of the district ment, and the juvenile'S amenability to treatment or
attorney (direct file waiver) or after ajudicial hearing. rehabilitation (Barnum 1987). Although realistic limi
Most recently, the California Supreme Court affirmed tations prevent mental health professionals from mak
ing actual predictions about an individual's future vio Service 2000), the development of newer interven
lent behavior, several studies have identified both risk tions such as multisystemic therapy and therapeutic
factors and protective factors that are generally.associ foster care has improved outcomes and has led to a
ated with chronic delinquency and increased rates of more optimistic outlook on the future of this growing
violence (Deprato and Hammer 2002. p. 268; Hoge et population.
aJ. 1996; Kirkish et aI. 2000; Steiner 1997). Many stud Clinicians providing consultation, forensic assess
ies have focused on the high prevalenc~ of mental dis ment (O'Shaughnessy 1992), evaluation, or treatment
orders in this population (Deprato and Hammer 2002, services in the juvenile court system (Kalogerakis
p. 269; Foley et al. 1996; O'Shaughnessy 1992). Al 1992) should be familiar not only with the general phi
though no assessment instrument exists to accurately losophy of laws and procedures but also with the local
predict future violence, several instruments assess complexities and cross-currents that animate or con
mental and personality disorders, including the Min found cities and communities and that are reflected
nesota Mul~iphasic Personality Inventory-Adoles and acted out-sometimes with a vengeance-,-:-by the
cent, the Millon Adolescent Clinical Inventory, the participants in the j;"'venile court setting. The Task
Child Behavior Checklist, the Hare Psychopathy Force on Juvenile Justice Reform (American Academy
Checklist-Youth Version, and the Massachusetts of Child and Adolescent Psychiatry 2001) provided the
Youth Screening Instrument (Grisso et al. 2001; Scott most recent initiative, with specific recommendations
2002, p; 293). Practice guidelines have also been devel regarding areas such as determinations of competence
oped for assessing these youths and can assist the fo and standards for treatment within the juvenile justice
rensic examiner in his or her work in these cases (Ash system.
and Derdeyn 1997, p. 1498).
Consultation on the disposition of the youth from
the juvenile court system involves a comprehensive
knowledge of both current disposition options and ef School-Related Legal Issues
fective treatment models. Dispositions to be consid
ered include waiver to adult court as described above, In the American tradition, education of children and
diversion before adjudication, probation, community adolescents has been the province and responsibility
placement, and commitment to a correctional facility offamilies and local government through parochial or
(Sacks and Reader 1992). Diversion programs defer nonsectarian private schools or through the local pub
the youth's adjudication and offer an opportunity for lic school districts, which operate through enabling
dismissal of the charges if the juvenile can successfully state legislation. It was not until the latter half of the
complete a treatment program such as an individual twentieth century that the federal government provid
and family counseling, educational, vocational, or rec ed more than statistical information about the condi
reational intervention or rehabilitation for substance tion of education (U.S. Department of Education
abuse in cooperation with the juvenile drug court 1993).
(Nurcombe and Partlett 1994). Probation is multifac In the landmark Supreme Court decision ending
eted and can include drug counseling, weekend con segregation as a legal policy in public school (Brown v.
finement in a local detention center, and community Board ofEducation 1954), the court affirmed the princi
and victim restitution (Snyder and Sickmund 1995). ple that education is a "right which must be made avail
Twenty years ago, the literature on delinquency pre able to all on equal terms." The rights of the handi
sen ted a pessimistic view on the outcomes of treatmen t capped were established by Congress with the passag(':
and interventions. Treatment programs such as resi of the Civil Rights Act of 1973, Section 504, which
dential treatment centers failed to consider the multi states, in part, "No otherWise qualified handicapped
faceted nature of delinquency and tended to approach individual in the United States ... shall solely by reason
the problem in a fragmented and unidimensional of her or his handicap be excluded from participation
manner (Deprato and Hammer 2002, p. 274). The in, be denied the benefits of, or be subject to discrimi
you th often reverted to antisocial, delinquen t behavior nation under any program or activity receiving federal
once he or she returned to his community. As de financial assistance." These principles were articulated
scribed in the report of the Surgeon General's Confer relative to schools and handicapped children by Con
ence on Children's Mental Health (U.S. Public Health gress in the Education for All Handicapped Children
Act of 1975 (P.L. 94-142, Section 611, 88 stat 579 et can AGademy of Child and Adolescent Psychiatry
seq), which stated that the purpose of the act was to en- .. 1997a). Clinicians consulting with school' programs
sure that "all handicapped children have available to (Behrman 1996; Berkovitz 200la, 2001 b; 13erkovitz
them a free appropriate public education which .em and Sinclair 2001;Jellinek 1990; Sikorski 1996) should
phasizes special education and related services de be aware that DSM-JV-TR diagnostic criteria are not
signed to meet their unique needs. " Public Law 94-142 synonymous or interchangeable with. the educational
provided for the definitiori of various handicapping code definitions used by the local and state education
conditions, including but not limited to learning dis al authority (California Department of Education
abilities, serious emotional disturbance, mental retar 2002). Each state must develop implementing legIsla
dation, and speech and language impairment. It also tion and codes of regulations that follow federal law to
. pI'ovided numerous procedural processes, including
be eligible to receive federal supplemental education
that "free and appropriate public education" and "re
funding. In 2002 the 108th Congress was scheduled to
lated services" be assessed and provided through an
reauthorize these and other discretionary programs
"individualized educational plan" in the "least restric
and the federal funding stream to these programs that
tive environment" with procedural rights and protec
define, support, and advance the educational and re
tions, including written notice, parental consent, due
lated services to children with defined disabilities.
process administrative review, andjudicial review after
all administrative remedies are eliminated. In 1991,
Congress amended this law, changIng the name of the
statute to the Individuals With Disabilities Education

Conclusion'
Act (IDEA) (P.L. 102-119), and declared its purposes:
Clinicians working at the in terface of law and psychia

1. To provide assistance to states to develop early try should proceed with caution, maintain a current
intervention services for infants and toddl~rs knowledge base in their areas of clinical work, develop
with disabilities and their families and to assure systems of maintaining awareness of the relevant laws
free appropriate public education to all children in their local jurisdiction, and exercise sound clinical
.and youth with disabilities. judgment. If in doubt, they should seek the consulta
2. To ensure that the rights of children and adoles
cents with disabilities from birth to age 21 and tion of experienced colleagues or the advice of their
their families are protected. . . own counsel.
3. To assist states and localities to provide for early
intervention services and the education of all
children with disabilities.
4. To assess and assure the effectiveness 'of efforts to References
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7
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What is forensic psychiatry and how does it relate to child and adolescent psychiatry?

What is forensic psychiatry and how does it relate to child and adolescent psychiatry?

What developments paralleled the emergence of child and adolescent forensic psychiatry?

What developments paralleled the emergence of child and adolescent forensic psychiatry?

THE AMERICAN PSYCHIATRIC PUBLISHING

Textbook of Child and

Jerry M. Wiener, M.D.

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Textbook of child and adolescent psychiatry / edited byJerry M. Wiener, Mina R.

Dulcan.- 3rd ed.

Includes bibliographical references and index.

ISBN 1-58562-057-2 (alk. paper)

1. Child psychiatry. 2. Adolescent psychiatry. I. Wiener,Jerry M., 1933- II. Dulcan,

[DNLM: 1. Mental Disorders-Adolescent. 2. Mental Disorders-Child. 3. Mental

Disorders-Infant. WS 350 T355 2004]

RJ499. T47 2004

A CIP record is available from the British library..

John B. Sikorski, M.D.

Forensic Psychiatry • 907

Johnson (1992), who provide some guidelines for dif­

910 • OTHER DISORDERS AND SPECIAL ISSUES

their risks and benefits should also be given.

912 • OTHER DISORDERS AND SPECIAL ISSUES

916 • . OTHER DISORDERS AND SPECIAL ISSUES

2002). care system are undermined by a managed care system

world as a dangerous and unfriendly place (Singer et

chological and social problems (Singer et al. 1998).

920 • OTHER DISORDERS AND SPECIAL ISSUES

all administrative remedies are eliminated. In 1991,

Congress amended this law, changIng the name of the

statute to the Individuals With Disabilities Education

Clinicians working at the in terface of law and psychia­

California Penal Code, 11165 etseq

Card~ell v Bechtol, 724 SW 2d 739 (Tenn 1987)

Caudill OB, Pope KS: Law and Mental Health Professionals:

losers and survivors. Child Dev 60: 1-14, 1989 971-974,1993

New York, Guilford, 1993, pp 462-479 nn.27,34:529n.l02

,. pp191-204 , . Schetky DH: Ethical issues in forensic child and adolescent

Pruett MK,Jackson TD: Perspectives on the divorce process:

parental perceptions of the legal system and its impact on

family relations.JAm Acad Psychiatry Law 29:18-28, 2001

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