AAPL: Ask the Experts-2022
Neil S. Kaye, MD, DLFAPA
Graham Glancy, MB, ChB, FRC Psych, FRCP
Neil S. Kaye, MD, DFAPA and Graham Glancy, MB, ChB, FRC Psych, FRCP (C), will answer questions from members related to practical issues in the real world of Forensic Psychiatry. Please send questions to [email protected].
This information is advisory only, for educational purposes. The authors claim no legal expertise and should not be held responsible for any action taken in response to this educational advice. Readers should always consult their attorneys for legal advice.
Q: I was asked to do a record review for a custody case involving a 16-year old (turning 17 in 2 months.) I’m board certified in Forensic and Adult Psychiatry, but not Child/Adolescent. In my private practice I do treat a few 15-17 year olds. Would you say to take the case or not?
Kaye: Thanks for a great question. If you are comfortable doing the evaluation and you feel competent and expert to do so, the board certification means nothing. I take cases from newborn to 110 if I feel I am appropriately knowledgeable and experienced regarding the specific issue.
That being said, child custody is often a cesspool and a nightmare. I never get into those cases unless I am guaranteed unfettered access to all parties for as long as I feel is needed. Of course, get a retainer and make certain billing and payments are kept up to date. Rarely will anyone like your opinion or report and the desire to use experts to club the other parent is all too common (okay, call me cynical, but I was in one case where each side spent 10 Million Dollars to try to destroy the other side and they had the money to do so…) Remember, you might need to see mom, dad, the child, GAL, teachers, do site/home/school visits, grandparents, significant others, etc.
As to the less obvious question you raise: I think it would extremely difficult to render a custody decision based solely on a record review. If the question is simply “capacity to parent” you might be able to pare it down, but expect the lawyers/court to change the questions later to things you never really assessed.
This is a civil case and presumably the parties involved are available to be evaluated. The AAPL Ethics Guidelines addresses a similar issue in the Section IV, noting that honesty and striving for objectivity, require
an earnest effort to examine the defendant. Of course, that reference is to a criminal case and custody is a civil matter. So, it may not be unethical, but at a minimum it would be necessary to note the limits of the evaluation. I would qualify my opinion and indicate in any reports that there was no personal examination conducted and consequently the opinion is limited by the absence of a personal evaluation.
Glancy: I agree with Dr. Kaye that family law can be as vitriolic as, or more so, than other types of law. In custody cases, emotions are high and this is transmitted to respective counsel and consequently it is not unusual for there to be a bare knuckle brawl. I believe I have read that there are more complaints against forensic mental health professionals in custody cases than in any other type of case. If the case comes to court you should also expect rigorous cross-examination.
The AAPL ethics guidelines state “Expertise in the practice of forensic psychiatry should be claimed only in areas of actual knowledge, skills, training, and experience.”1 Although board certification or subspecialty status does not necessarily reflect actual knowledge, skills, training, and experience, the absence of this qualification may render one vulnerable to this claim. Once this issue has been raised, unless you can definitively define your training and experience that proves that you are qualified, I would say that this is an area that you should avoid.
Assessing one or both parents for any issues that may bear upon the parenting capacity would likely be within the expertise of a forensic psychiatrist who does not have qualifications in child and adolescent psychiatry. I would recommend including a caveat that this assessment does not represent a full custody assessment but is limited to the stated purpose. A full custody assessment, however, requires constituents that go well beyond a forensic assessment of one or both adult parties. In my opinion, a full custody assessment is best left to those who routinely perform these types of assessments.
A forensic assessment generally involves a full psychiatric and forensic interview, mental status examination, and in particular perusal of any significant collateral information. According to the AAPL ethics guidelines “Honesty, objectivity and the adequacy of the clinical evaluation may be called into question when an expert opinion is offered without a personal examination”. This is followed by advice to make every effort to interview the evaluee in person. In this case, I would urge the member to follow this advice. I would call counsel and discuss the above with them. It may well be that counsel is retaining you merely to do a paper review in order to clarify the issues with a view to making a decision as to whether a full assessment is warranted. For instance, if the question is whether a documented diagnosis of adjustment disorder in one parent disqualifies them from joint custody, you may well be able to advise counsel that a full assessment would be unlikely to come to this conclusion and counsel may want to divert their energy to other facets of the case. The expert should clarify that this is a preliminary assessment and this may often be offered in verbal form.
One point of relevance, pertains to an experience that I have had various times. This involves a lawyer retaining you to do a preliminary report or a paper review that emerges much later and you find yourself on the stand being cross examined on this inadequate report. Sometimes, in this situation, the lawyer may have said that they only need a short report because some sort of quick resolution is imminent. When this resolution did not work out, often months or years later, you are left wondering why your assessment was inadequate. The solution is that the report should be clearly labelled as a preliminary opinion that may be attenuated by further information or assessment.
Take Home Points:
Knowing what you know is knowledge; knowing what you don’t know is wisdom. Act wisely.
- American Academy of Psychiatry and the Law. (2005). Ethics Guidelines for the Practice of Forensic Psychiatry.