The Turbulent Marriage Between Forensic Mental Health and the Legal System

the turbulent marriage between forensic mental health and the legal system

Substance abuse is a global and complex public health concern. In 2014, it was globally estimated that one quarter of a billion people aged 15-64 used at least one drug; in the same year it was estimated that 207,400 persons lost their life stemming from involvement with drugs (United Nations Office on Drugs and Crime [UNODC], 2016). Despite the number of drug-related deaths being stable over the past few years (UNODC), these deaths remain something that can be addressed on the prevention and intervention sides. Furthermore, when considering work productivity, criminal involvement, and healthcare costs, the use of substances costs the United States approximately $700 billion annually (National Institute of Drug Abuse, 2015). In an effort to understand addiction, numerous theories have been implemented; the most prominent theories include moral theories, disease theory, genetic theories, behavioral theories, and sociocultural theories. Modern research now suggests an integrative approach incorporating components of the variety of theories. Given the number of theories coupled with the integration of these theories, it can reasonably be concluded that persons with substance abuse concerns are heterogenous. In this brief writing, I will review the link of substance abuse and criminal involvement, identify the components that make the mental health and law relationship uneasy, review substance abuse related court cases, provide an overview of the Specialty Guidelines for Forensic Psychology, and conclude with a brief discussion on the role of the substance abuse counselor.

Substance Use and Criminal Involvement

In 2014 in the United States, the highest number of arrests was for drug abuse violations followed by larceny-theft and driving under the influence (Federal Bureau of Investigation [FBI], 2015). Although the causal links are not established, there is a clear association between substance abuse and crime; approximately 80% of those arrested will test positive for at least one illegal substance (Klag, O’Callaghan, & Creed, 2005). In the field of substance abuse counseling, approximately 40-50% of community based treatment referrals come from the criminal justice system. Lastly, it has been well understood that persons diagnosed with a mental health condition are generally nonviolent, however, with an added substance abuse diagnosis or concern, the risk of violent behaviors increase (VanDorn, Volavka, & Johnson, 2011). Given that two of the top three arrests are substance abuse related arrests (FBI, 2015) coupled with approximately 80% of arrestees testing positive for at least one illegal substance (Klag, O’Callaghan, & Creed, 2005) and an escalated risk of violent behaviors with comorbid substance use (VanDorn, Volavka, & Johnson, 2011), it would be reasonable to hypothesize that substance abuse is represented across the full spectrum of criminal offenses.

The Turbulent Marriage

The basic role of the mental health practitioner is to assist the trier of fact with scientific or clinical opinions so the trier of fact may address the ultimate legal issue. In the judicial process, mental health practitioners can provide a scientific opinion (opinion supported by evidence from academic journals or studies) or a clinical opinion (often rooted as an art an intuition, or from anecdotal evidence). Turbulence between mental health and law stems from a variety of sources: a gap in training, attitudinal differences, and the state of each profession (Melton, Petrila, Poythress, & Slobogin, 2007). The primary focus on the disconnect between law and mental health has tended to focus on semantic difficulties. Essentially, the two disciplines have different languages. Furthermore, the judicial process is adversarial as it determines guilt or innocence whereas mental health practitioners do not determine guilt or innocence. Mental health practitioners attempt to explain complex human behaviors using psychological testing, historical data and information, and biopsychosocial evaluation. These differences in orientation and training fuel the disconnect between legal professionals and mental health practitioners. In terms of attitudinal differences, mental health practitioners often view attorneys as concerned primarily with the sanctity of legal principles for people with mental illness while disregarding their needs (Melton et al., 2007). Conversely, attorneys may view mental health practitioners as being overly paternalistic and prone to help regardless the cost of liberty (Melton et al., 2007). Another concern related to the uneasy alliance is that legal professionals may question whether there is sufficient rigor in behavioral science research to warrant the admissibility of legal opinions (Melton et al., 2007). Furthermore, legal professionals may pressure the mental health practitioner to answer the ultimate legal issue. Since mental health practitioners are not legal professionals, they should not offer a conclusion on a matter of law. Lastly, a problem arises when questions asked by legal professionals are unanswerable (Melton et al, 2007). For example, in violence risk assessment, the ultimate question may be surrounding predicting if the defendant will commit another violent act. In violence risk assessment a variety of factors and assessment tools are utilized to provide a risk level, identify the components that lead to the risk level, and to provide an intervention response if defendant is released to decrease risk of recidivism. At no time should a mental health practitioner predict that a person will or will not recidivate. It is these fundamental differences in training, attitudinal differences, and the state of each profession that propel the turbulence in this alliance.

Substance Abuse and the Legal System

The historical view of addiction is that it is a moral deficiency as opposed to an illness. Essentially, the choice theory of addiction where the person makes the immoral choice to use or abuse substances. In the medical model, addiction is seen as a disease or illness where an addicted person has little or no control over their use of substances. There is also the hybrid view where the person with an addiction may make poor or immoral decisions to put themselves in risky situations and if they use they have little or no control in stopping their use. In terms of the judicial process, the issue of defining addiction as well as adjudicating illegal acts that stem from an addiction arise. In the U.S. Supreme Court case Robinson v. California (1962), the court held that addiction was a disease and states were prohibited from turning addiction into a criminal offense. Essentially, the court adopted the medical model of addiction and by prosecuting a person for having an addiction would constitute cruel and unusual punishment. In Easter v. District of Columbia (1966), the court added that criminalizing an addiction violated a person’s right to equal protection. Although these rulings were in support of the medical model, the maladaptive behaviors associated with addiction still existed. In Powell v. Texas (1989), the court held that a person with an addiction may be convicted of behaviors stemming from addiction. Essentially, the court understands that an addiction is a disease, however, the illegal activity or behavior can be prosecuted. There are two issues stemming from this information, and perhaps others. The court understands that a person with an addiction cannot control their use and when intoxicated may exhibit erratic, dangerous, and illegal behaviors. However, the illegal behaviors of the person with an addiction are criminalized. This leads to the debate whether the court actually adheres to the understanding of the medical model as the behaviors are driven by the person’s addiction. However, the adherence to the medical model has increased the use of falsified reports of having an addiction as it is used as a mitigating factor during sentencing or during the judicial process to absolve blame for a criminal act. For example, a person without an addiction robs a convenience store and later claims that the money was used to purchase alcohol as they have an addiction. These issues coupled with the strained relationship between the legal system and mental health complicate the successful and accurate processing of these cases

Early Involvement in the Judicial Process

Given the link between criminal justice involvement and substance use coupled with the uneasy alliance between mental health practitioners and legal professionals, the importance of this topic cannot be understated. In a majority of cases where a psycholegal question exists, the forensic psychologist is most appropriate to navigate those difficult situations. However, the substance abuse professional may have a significant role in these cases as well. It has been my experience that graduate students in the behavioral sciences (psychology, social work, marriage and family therapy) are minimally exposed to substance abuse counseling. This is not a critique of these programs (as I graduated in a psychology program) as there is a significant amount of material that needs to be covered and substance abuse is generally covered in one class. Generally, the substance abuse professional is not a part of the judicial process. Their role is generally post-adjudication and sentencing where they provide substance abuse counseling to the offender that is mandated by the court or through community corrections (probation, parole, drug courts). Given this information, it may be relevant for forensic psychologists to consult with substance abuse professionals during the judicial process as they formulate their assessment results. The involvement of a substance abuse professional may add an extra layer of understanding and potentially increase the strength of the assessment results.

Specialty Guidelines for Forensic Psychology

The expansion of forensic psychological practice through academic journals, textbooks, and educational and training opportunities led to the implementation of the Specialty Guidelines for Forensic Psychology. These guidelines are informed by the American Psychological Association’s “Ethical Principles of Psychologist’s and Code of Conduct;” these guidelines advise the psychologist’s professional behaviors, endeavors, and conduct in forensic arenas (American Psychological Association, 2013). It is important to distinguish an ethical standard from a guideline; the former is mandatory whereas the latter is aspirational in nature. In summary, these guidelines are designed to improve the quality of forensic psychological services, however, they are not an enforceable standard if the practitioner deviates. The guidelines include the following domains: responsibilities, competence, diligence, relationships, fees, informed consent/assent/notification, conflicts in practice, privacy/confidentiality/privilege, methods and procedures, assessment, and professional and other public communications. These guidelines were developed for the psychologist when engaged in the practice of forensic psychology. Although these guidelines are used in psychology, they are a useful tool for practitioners outside of psychology to turn to when faced with psycholegal questions. Furthermore, these guidelines may serve as a catalyst for the creation of guidelines in the other areas of the behavioral sciences.

Conclusion

The goal of this brief writing was to provide a platform to advocate for earlier involvement of the substance abuse professional in the judicial process and to establish the need for increased training in substance abuse counseling in the behavioral sciences. When answering a psycholegal question, the forensic psychologist is most appropriate (assuming competence). The substance abuse professional may provide valuable information to answer the psycholegal question, however, the substance abuse professional is not trained in this area. Therefore, I would recommend forensic psychologists that have less training in the substance abuse field retain and consult with substance abuse professionals in substance abuse related cases.

I will be exploring this area in greater detail as I will be completing a presentation titled Forensic Psychology and Addiction Counseling: Ethical Dilemmas and Preparation for Legal Proceedings at the Evolution of Addiction Treatment conference in February 2017 in Los Angeles, CA. This would be a great opportunity to increase your understanding in this area as well as network with other professionals in the behavioral sciences. I hope to see you there!
References
American Psychological Association. (2013). Specialty guidelines for forensic psychology. American Psychologist, 68(1), 7-19. doi: 10.1037/a0029889

Federal Bureau of Investigation. (2015). Crime in the United States 2014; Uniform crime report. Retrieved from https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/persons-arrested/main

Klag, S., O’Callaghan, F., & Creed, P. (2005). The use of legal coercion in the treatment of substance abusers: An overview and critical analysis of thirty years of research. Substance Use & Misuse, 40, 1777-1795. doi: 10.1080/10826080500260891

Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd Ed.). New York, NY: The Guilford Press.

National Institute of Drug Abuse. (2015, August). Trends and Statistics. Retrieved from http://www.drugabuse.gov/related-topics/trends-statistics

United Nations Office on Drugs and Crime [UNODC] (2016). 2016 World drug report. Vienna, Austria: Author.

Van Dorn, R. Volavka, J., & Johnson, N. (2012). Mental disorder and violence: Is there a relationship beyond substance use? Social Psychiatry and Psychiatric Epidemiology, 47. doi: 10.1007/s00127-011-0356-x

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