Applebaum

PUBLICATIONS

The Medicalization of "Judicial Decision-Making"

Dr. Paul S. Appelbaum, M.D.
Chairperson, Dept. of Psychiatry, U. Mass. Medical Center

The following article is adapted from the keynote address presented at the
Judicial Training Conference on Mental Health Testimony in the Courtroom
sponsored by Mental Health Legal Advisors Committee and Flaschner Judicial Institute
March 13, 1998.

My goals here are threefold. First, I wish to illustrate the two forms taken by the phenomenon that I call the medicalization of judicial decision-making. I'm referring here to the tendency of many courts to frame difficult questions as if they were susceptible to being answered on the basis of peculiarly medical knowledge or expertise when in fact they're not. I include in this medical category the knowledge and the expertise of the other healing professions as well. So while I will talk in terms of medicine and psychiatry, by no means do I mean to exclude psychology and the other therapeutic and healing professions. Second, I will speculate on the reasons for the phenomenon from both sides, that of the expert witness and of the judiciary. Third, I hope to sketch some remedies that might mitigate the distortions that result from what I consider unwarranted reliance on medical expert testimony.

Let me begin with a caveat. I recognize that many judges and medical experts are aware of the problems to which I refer, and that they do their best to avoid them. Nonetheless, given the strong temptation to succumb to medicalization in the courtroom for reasons that I describe, I believe it is worthwhile and critical to call renewed attention to this issue.

THE PROBLEMS

Transforming Moral Issues into Medical Issues

The medicalization of judicial decision-making takes two forms. First, some courts sometimes permit moral issues to be transformed into medical issues. Consider the example of the adjudication of decision-making competence. Competence, of course, is a threshold requirement for persons to be able to exercise their decision-making rights, to make medical decisions, to manage their property, and in extreme cases even to marry. Persons found incompetent are deprived of those decision-making rights and someone else is appointed to make those decisions for them. In this process, for obvious reasons, psychiatrists are often called upon to examine the allegedly incompetent persons and to testify as to their capacities. Psychiatrists and other mental health professionals are experts in the diagnosis of pathological states affecting the mind. Psychiatrists can be expected to detect abnormalities that lay persons might not, to determine their extent and to describe their effects on relevant aspects of mental functioning. Expert testimony in these areas is perfectly appropriate, indeed, and probably essential to the process in many cases. In practice, however, psychiatrists are often asked to take one additional step: to offer an opinion as to whether a person is or is not competent. Why is this a problem? One might in fact say, if a psychiatrist doesn't know who is mentally competent then who does?

The problem stems from the confusion that is generated between medical or scientific questions that a psychiatrist can legitimately address and legal issues with a moral underpinning that a psychiatrist cannot legitimately address. Examples of medical or scientific questions include the degree of a person's impairment in functions as they relate to decision-making. Also, the subject's understanding of the facts of a given situation and appreciation of the implications of these facts and consequences of a situation are all questions for the medical profession. Finally, the subject's ability to reason rationally, to weigh the risks and benefits, about a situation is clearly a medical issue. But there is a distinction between addressing these functions and addressing legal issues with intrinsic moral underpinnings that flow from this information.

The question of when a person is sufficiently impaired that he or she can fairly be deprived of the power to make decisions for him or herself is a legal matter, not a medical one. Other examples of legal questions which psychiatrists should not answer are when a person is competent to stand trial or is criminally responsible. For psychiatrists to assume this function implies the ability on their part to make moral judgments in an expert fashion. In fact, they have no more of that ability than any lay person does. In effect, the judge who asks for or tolerates psychiatric testimony about the ultimate issue in a hearing in which a legal-moral determination lies at the core of what the court must do is acquiescing in the medicalization of a profoundly moral question.

Unfortunately, my experience leads me to believe that the practice is not rare. Let me share just one anecdote with you. Some years ago I testified at the competence hearing of a man whose son was petitioning to be appointed guardian of his estate. The son's attorney had called me and asked if I would examine the alleged incompetent to evaluate his competence to manage his financial affairs. On my examination, the indicia of moderate dementia were fairly evident. I noted memory loss, difficulty finding words, a general sense of confusion, and specific to the legal issue at hand, functional impairments were fairly evident as well. He could not perform even the simplest calculations. He could not describe to me what his assets were or how much he had. He could not characterize expenditures that might need to be made in order to sustain him, where his money came from for rent or groceries, how much that cost, nor could he or would he account to me for significant amounts of money that he had withdrawn from the bank.

I prepared a written report detailing all of this information for the court. I testified to my observations, laying them out in detail, focusing on the description of the symptoms and the functional impairments, and carefully avoiding conclusions about the man's competence in the technical sense of the word or the need for a guardian in the case. From my own legal lay person's point of view, I imagined few more straightforward cases for a judge to adjudicate. But, when my testimony was complete, the judge leaned forward, peered at me and asked, "But doctor, is he competent or not? In asking me that question, the judge was requesting my collusion with him in turning a legal issue with moral roots, the question of when someone should be denied the right to control their assets, into a medical issue, the sort of question one might ask a doctor. That is, I think, the first way in which medicalization begins to permeate the judicial decision-making process is the turning of a moral, legal issue into a medical issue.

Excessive Reliance on Medical Expertise

A second way in which judicial decisions become medicalized is when psychiatric or other medical expertise is overvalued on questions (short of the ultimate legal issue) to which the expertise might legitimately have something to contribute, if only sufficient knowledge existed to be able to form a judgment. Let me use child custody determinations as an example.

Rarely do contested custody determinations proceed without testimony from mental health professionals about the relative fitness of the parents and the best interests of the child. These are incredibly contentious settings with emotions running at a feverish pitch. As an aside, I serve as secretary of the American Psychiatric Association and one of my jobs in that role is to chair the Association's Ethics Appeals Board. Given the minuscule percentage that child custody cases represent in the work of most psychiatrists day to day, the percentage of ethics cases that come to us based on complaints by parties in child custody cases is staggering. So, clearly these are intensely contested, contentious situations for all parties involved.

Many times there are occasions where the basis for mental health professional testimony in child custody matters is necessary and appropriate. Those are cases in which one or the other of the parents has a diagnosable mental disorder and some sort of functional impairment associated with that disorder. In these cases, a demonstration can be made regarding the link between the disorder, the functional impairment and the likely impact on the parent's child raising or supervising capacities. However, these cases are only a tiny percentage of the contested custody cases in which mental health testimony is asked for and provided. The basis for our participation and our comments in the vast majority of child custody cases is much less clear. These are the cases in which neither parent has a mental illness, and the opinions offered by mental health professionals begin to reflect their preferences rather than their actual medical or psychological knowledge.

Take for example, a custody dispute between a single father living an alternative lifestyle in San Francisco and the grandparents living a wholesome, all-American life in Iowa. Unless a body of data, a good study or several good studies, exists to address the outcomes of children raised in each of these circumstances, one would have relatively little to say on a factual or empirical basis regarding the relative desirability of those two situations. One might have a great deal to say, however, about the values implicit in those two situations and the congruence of those values with one's own values. What is likely to happen in this case as in many child custody cases is that the expert testimony goes beyond the description of what can be fairly objectively provided to the courts. It goes beyond the parents' mental state, the children's mental state, and the simple observations of the evaluator. When one goes beyond the level of observation and low level inference, one is in the realm of values. When an evaluator recommends, for example, that a child be placed with a particular party and have a number of visits with another party, we are not learning about the relative capacities of the parties, but instead, the relative values of the evaluators.

Moreover, I wish to underscore that in almost all of these situations, the data do not exist. We do we not have any data comparing children raised by parents living an alternative lifestyle in San Francisco to those raised by traditional grandparents in Iowa. And, we have relatively little outcome data that address simple custody dispute questions like the relative success of children growing up in joint custody arrangements vs. single parent custody arrangements. We do not know what it is like for kids to be moved back and forth between their parent' homes on a monthly, weekly, or daily basis. It is extraordinarily difficult to answer these questions on anything other than an anecdotal or value-laden basis as opposed to a genuinely empirical basis. When mental health professionals respond to what they often correctly perceive as the imperative of offering some concrete recommendations in these very difficult cases, they tend to respond on the basis of theories that are essentially unproved.

In this second instance of what I'm calling the medicalization of the decision-making process, the judicial system relies on, and in fact demands, testimony in the absence of any real evidence. An example of this phenomenon in the criminal realm is the use of psychiatric testimony about future behavior, particularly the prediction of future dangerousness for sentencing purposes. In states with a death penalty, it is rare not to have psychiatric or other expert evidence presented at the penalty phase for a variety of reasons. In some cases, it is an easy way, and maybe the only way, to get facts before the court regarding the privations the defendant suffered as a child and adolescent. But also because in many of these states, the question of whether or not to impose the death penalty turns on the likely future behavior of the defendant and the likelihood that the capital offense or other criminal acts will be repeated. The irony, of course, is that almost none of these defendants will have the opportunity to repeat such actions if the question is are they susceptible to capital punishment. In these cases, the alternative is almost always life in prison, and in many states, without possibility of parole. The repetition of the behavior within a foreseeable time frame is extraordinarily unlikely.

Nonetheless, psychiatrists are routinely trotted before the courts in these cases and asked to speak to important issues the answers to which are not known and cannot be known. Testimony regarding these issues represents the injection of values and opinions into judicial decision-making under the guise of the presentation of medical fact.

THE REASONS

Why does this problem I call the medicalization of judicial decision-making exist? Why do experts succumb to the temptation to offer moral judgments as if they constituted medical facts? Why do judges allow, and sometimes insist that such testimony be offered in their courtrooms? The factors that influence each side of the equation are distinct and worth exploring.

Personal Values

The first reason that experts offer value-laden testimony in the guise of medical or scientific information relates to the influence, and often the subtle influence, of personal values on everything we do. One can point to any number of situations in which an expert's personal values are likely to shape his or her testimony, especially when an ultimate moral judgment is involved. A number of years ago, two psychologists named Homant and Kennedy, conducted a survey of sixty-five psychiatrists and psychologists, regarding their attitudes toward the insanity defense. The more likely the psychiatrists and psychologists surveyed were to believe that the locus of criminal responsibility lay with society at large, the more likely they were to favor the insanity defense as a general principle. The more likely the psychiatrists were to favor the insanity defense in general, the more likely they were to say a person should be found not guilty by reason of insanity, when presented with a vignette of a defendant who was pleading not guilty by reason of insanity.

One can see a less subtle, but very real, influence of values in other situations as well. Advocates for battered women testify that abused women who murder their spouses suffer from battered women's syndrome. The entity, as something other than an abstraction, is highly controversial and some would say highly questionable, but that does not stop many experts who have assumed the mantle of advocacy from testifying that such women were acting in self defense.

Crusaders against childhood sexual abuse testify that plaintiffs who recover memories decades after incidents of alleged abuse are reporting veridical recollections and therefore testifying truthfully. These are circumstances in which no one on earth except the person him or herself and the perpetrator knows whether or not this person is testifying truthfully.

Researchers who have spent their lives studying the effects of environmental toxins are only too happy to testify in court that insecticides, organometallic compounds, or other contaminants have not only caused severe harms to defendants, but also rendered them incapable of conforming their behavior to the requirements of the law. Many of you will remember the striking moment in the trial of John Hinckley, Jr. for the attempted assassination of President Reagan when a psychiatric expert stood before the court pointing to a CT scan, an x-ray picture of the brain, of John Hinckley. He construed atrophy of the surface of the cortex as the reason why John Hinckley, Jr. was not able to control his behavior when he attempted to assassinate President Reagan. Of course it is certainly possible for the values of experts to affect the reporting of supposedly objective observations and philosophers of science know full well that there is strong question as to whether any observation is "objective" in the sense in which that word is usually used. All of our observations are affected by our pre-existing theories. We tend to see the things that we're looking for. The impact of values even on pure observation is certainly a real phenomenon and one to be careful about, as is true for efforts to summarize the scientific literature, which varying sides of the debate tend to summarize very differently looking at the same evidence, the same data. Nonetheless, the likelihood of values impacting on opinions regarding ultimate issues in a case is even greater.

Professional Ideology

A second reason for experts' willingness to cross the line between medical and moral judgments relates to the role of professional ideology. This is not unique to psychiatry and the other mental health disciplines, but we certainly provide a good example. Testimony may be influenced by non-empirically verified beliefs about models of understanding human behavior. As an example, I refer back to a disaster in Buffalo Creek, West Virginia when a dam, owned by a mining company, burst and flooded the village immediately downstream, killing a fair number of the villagers and severely traumatizing many others.

Forty-two survivors sued the company that owned the dam and were interviewed, three to five years after the flood, by psychiatrists and psychologists for the plaintiffs and the defendants. Two teams of mental health professionals conducted these interviews for the plaintiffs and one team for the defendant. Both plaintiff teams were significantly more likely to report present symptoms than were the defendant's team. One of the two plaintiffs' teams not only reported significantly less recovery, but a broader array of initial symptoms as well. Particularly interesting about this case is the fact that no overt shopping for experts occurred. All of the experts who testified were the ones who were initially hired by the attorneys for both sides. But the reports and the rationale for the reports that they offered were very, very different.

Defendant's experts looked for "objective" symptoms using what a well-known psychiatrist, Les Havens in Cambridge, calls an objective-descriptive approach to psychiatric symptomatology. Whereas plaintiffs' experts looked not only for objective symptoms, but also for underlying motives for behavioral changes and underlying mechanisms of behavioral change. They used symptoms only to support their conclusions about the psychodynamic mechanisms that underlay these people's evident distress, and to trace those mechanisms back to the flood itself. The authors of this research report, Zusman and Simon, found that the plaintiffs' experts were all psychoanalytic in orientation, while the defendant's were generally biologic or objective-descriptive in their orientation. The psychoanalytic experts are by nature, by professional ideology, more likely to look for and therefore find the underlying impact of the prior events that would support the plaintiffs' case. The defendant's experts with their more descriptive orientation will look for what's on the surface if you will, and I don't mean that in a pejorative sense, and will not be particularly interested in the presumed underlying dynamic mechanisms. Therefore, if you are an attorney who is representing plaintiffs in a civil case, you're better off getting somebody with a psychodynamic orientation; and if you're a defense attorney, you're better off getting somebody with a biologic orientation. In criminal cases it probably works the other way.

The Attorney-Expert Relationship

Of some significance to the actual testimony is the courtship process that goes on between an attorney and an expert. The relationship starts with a phone call from the attorney to the doctor. The attorney tells the doctor, for example, that he has the most egregious case of malpractice that he has ever dealt with in his 20 years. He tells the doctor about the case and asks him to be an expert in order to rectify the injustice that occurred. A litany of egregious behavior is laid out for the expert by a friendly, empathic-sounding attorney, who thereby provides an initial frame for the way the expert is likely to see the case. At the very least, the expert now has to overcome the barrier of that initial presentation and understanding in order to reach a contrary judgment. Furthermore, overcoming that barrier is made even more difficult as the process continues and the relationship between expert and lawyers develops.

The Adversary Process

The influence of the adversary process itself is a fourth factor that leads an expert to testify in a manner biased towards the position of the party who hired him. Granted it is difficult to imagine any other way of adjudicating these cases, and it is not my opinion that we should do away with the adversary process even if we could. But, there is no question that the adversary process enhances an "us against them" orientation, as well as the need for "yes or no" answers in cases like custody cases or criminal matters. In the law, there is no middle ground. The adversary system discourages qualification of conclusions. Suppose for a minute that my testimony included the clause "in most cases" or "as best I can tell" or "within the limits of the data available to me." There is no doubt that, within a flash, the attorney for the opposing party would be up there asking me to describe the limits of the data. He would ask how on earth I could draw any conclusions at all given the limits of the data, and what kind of doctor am I in the first place to come into court and attempt to testify on the basis of such limited data, and didn't my mother wear army boots as well.

A lawyer is less likely to use an expert who cant or won't state definitive opinions. Furthermore, lawyers are likely to pressure their experts to reinforce their opinions or alter their reports. There is some bargaining that goes back and forth between experts and attorneys. "Send me a draft." "Let me take a look at it just to make sure you've covered all the bases." Well, the attorney takes a look at the draft and then the call comes. "There's that sentence in the third paragraph where you write, unfortunately there are no empirical data to support this conclusion." Do we really need that? Isn't that just going to distract everybody from the real conclusion in the case?î Some experts succumb and some refuse to succumb, but the adversarial process certainly makes it easier for them to succumb. In general, most experts on the stand will tend to put aside the qualifications or hesitations of the sort that they might offer in an academic conference or paper.

The effect of all these pressures of the system is to minimize expressions of doubt and discussions of possible alternative viewpoints. Moreover, cross-examination often drives experts into even more rigid positions as a natural defensive reaction. And, in my experience, it doesn't change much according to gender. Men and women seem to react the same way when confronted with these situations.

Financial Incentives

Let me suggest a fifth factor that drives experts to behave in this way. I deliberately list it last because it is usually listed first in the media, as if it had the most important impact on these behaviors. I think it probably has the least, but it sometimes has an impact nonetheless. That is financial factors. The development of medical and other expert witness services and advertisements by professional expert witnesses in the National Law Journal or other magazines of trial attorneys produces a pressure to make sure one has useful opinions to keep the flow of cases coming in. An individual whose opinions are not useful because they're too cautious or qualified may well not get the call when the next case comes along. This is a major problem for experts whose legal work represents a significant part of their income. People who earn most of their income from seeing patients or running an inpatient unit and do some cases on the side are somewhat better able to resist this kind of pressure than people whose livelihood depends on the next call coming in.

Unfortunately, there are some witnesses who in the trade we gossip about as "buyable," but they are few and far between and not particularly well respected. It is a small community and they become known in short order. Consequently, financial incentives as a factor for this phenomenon of medicalization really pale in significance against these other factors that lead experts to move outside the legitimate scope of their expertise.

Searching for Certainty in Difficult Cases

Finally, why are judges willing to accept the medicalization process? Given that I am a psychiatrist, I know well how psychiatrists behave, but I am not a judge, and therefore can only speculate about why judges behave the way they do. Part of the motive, it seems to me, must be a desire to make use of whatever expertise exists for deciding difficult or impossible cases. And it is difficult to argue with that urge to gather whatever expertise can be gathered. But, this is not the whole story. It doesn't explain judicial reliance on such testimony to address non-empirical issues, as in the determination of decision-making competence, or in child custody cases where such testimony lacks grounding in scientific knowledge or research and is laden with values.

The medicalization of legal issues in these cases, I think, should be seen as a search for certainty, an understandable enough process but one that has deleterious consequences. Faced with wrenching decisions like sentencing, custody, termination of parental rights, it's natural enough to want to believe that one is making them correctly. But when the courts are forced to make decisions that cant be objectively determined to be right or wrong, they simply cant be sure. How can that desire for certainty be met? It is not a legitimate answer to turn to pseudoscience or to the expression of scientific sounding opinions that in fact cloak value judgments. This medicalizes the issue so that it appears to be technical rather than one that addresses profound moral questions. As I say, this is an understandable tendency, but it is one that threatens to distort the judicial decision-making process.

SOLUTIONS

How might we cope with this tendency? Let me suggest one way that is not likely to help us with this dilemma. The many proposals to improve the quality of expert testimony, like peer review, a credentialing process, the use of court appointed experts, and greater selectivity in determining the admissibility of expert testimony, all address a different issue and are not likely to be particularly helpful here. It is possible that these changes may improve the quality of the experts' factual testimony regarding their observations and medical or scientific conclusions. But, even the most qualified expert whose testimony has been scrutinized for its relevance, probative value and scientific validity is still not qualified to offer opinions on legal and moral as opposed to medical and scientific questions.

If experts are to be limited to their legitimate roles, testimony on ultimate legal issues must simply be disallowed by statute, as Congress did in the Insanity Defense Reform Act of 1984. As a result of this Act, federal courts and mental health experts are simply not allowed to say whether or not they think somebody is criminally responsible or should be found not guilty by reason of insanity in a particular case. They can say everything else. Experts are forced to recognize the limits of their roles and live within them. Judges in such circumstances need to be prepared to bite the moral bullet, without looking for medical answers to moral questions. Life may be a little more difficult, but the outcome is likely to be fairer, and that after all is what the whole process is about.

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