A minimum of  3 scholarly peered reviewed article  must be sited using APA format 500 words for each topic 83 and 84

  

Topic 8 DQ1

Ethical issues can arise between psychology and the legal system. What are some examples of ethical issues arising between these two entities? Use examples from this week’s required readings to support your claims. Consider the Christian principles of ethics and read the GCU Statement on the Integration of Faith and Work. How might a person with the Christian worldview address the ethical issues you provided?

Topic 8 DQ2

Compare the legal definition of insanity with the psychological concept of mentally ill. What guiding principles and tools are used by psychologists to determine if a client meets or does not meet the legal definition of insanity? What are the limitations of these methods?

Criminal Responsibility Evaluations: Role of Psychologists in Assessment

Murray Ferguson and James R.P. Ogloff

Centre for Forensic Behavioural Science, Monash University and Victorian Institute of Forensic
Mental Health, Australia

The defence of insanity has been in existence for centuries, but it underwent a significant
reformulation in English law in the first half of the 19th century. Since that time it has
remained largely unchanged. Since its inception, expert evidence in these cases
has primarily been the domain of medicine. In spite of this, more recently psychology
has been gaining acceptance in this field of mental health and law. Victorian legislation
allows for the assessment of mental impairment to be undertaken by psychologists but
some courts have been trepidatious in allowing it. The aim of this article is to outline the
role that psychologists can and do play in the evaluation of those who plead that they
are not criminally responsible on account of mental disorder.

Key words: assessment; criminal responsibility; insanity; mental impairment; psychologist.

What I have

That might your nature honour and
exception

Roughly awake, I here proclaim was

Madness
Wasn’t Hamlet wronged Laertes? Never
Hamlet

If Hamlet from himself be ta’en away,
And when he’s not himself does wrong
Laertes,

Then Hamlet does it not. Hamlet

denies it
Who does it then? His Madness

—Shakespeare (Hamlet)

The idea that one is not responsible for
one’s actions when the actions are the
product of mental illness, such that they
cannot appreciate the nature of their
actions, has in one form or another been
in existence for centuries (Ogloff, Roberts,
& Roesch, 1993). Under law, except for

strict liability offences, to be found guilty
of a criminal act one must not only have
voluntarily committed the act (actus reus),
but also have had the capacity to under-
stand the criminality of the act, or form the
intent to commit a criminal act (mens rea).
‘‘Insanity’’ is a legal term and not a
psychiatric or psychological one. It implies
that, because of the effects of mental illness
on one’s cognitive process, one cannot
form the intent to commit a criminal act
or, if intent is formed, it is formed on the
basis of irrational thinking caused by the
mental illness. Criminal intent is not
negated by virtue of having a mental illness
or even experiencing specific symptoms of
such. It is negated only when such illness
renders a person unable to appreciate or
understand the nature of their behaviour.

Although the use of the insanity defence
in England existed before the 18th century, it

Correspondence: James R. P. Ogloff, 505 Hoddle Street, Clifton Hill, Victoria 3068, Australia.
Email: james.ogloff@forensicare.vic.gov.au

Psychiatry, Psychology and Law
Vol. 18, No. 1, February 2011, 79–94

ISSN 1321-8719 print/ISSN 1934-1687 online

� 2011 The Australian and New Zealand Association of Psychiatry, Psychology and Law
DOI: 10.1080/13218719.2010.482952

http://www.informaworld.com

was rarely used. From 1740 onwards the use
of this defence increased dramatically. In the
60 years to 1800 the insanity defence was
entered 100 times, and resulted in 50 insanity
acquittals in London courts (Moran, 1985);
the majority of these, however, were for
non-violent property offences such as theft.

Today’s use of the ‘‘not criminally
responsible’’ defences in Australia (e.g.,
Crimes (Mental Impairment and Unfitness
to be Tried) Act, Victoria 1997) are steeped
in the results of three sensational cases in
19th century England. These cases set in
motion a number of changes to the outcomes
(R v Hadfield, 1800), expert witness involve-
ment (R v Oxford, 1840), and definition of
the then insanity defence (R v M’Naughten,
1843). In the case of Hadfield this was the
first occasion in which an insanity acquittee
was not by law afforded the right of release
following the verdict of insanity but was
sentenced to indeterminate detention in a
mental health institution. Oxford was the
first recorded case in which ‘‘expert medical’’
witnesses were allowed to provide opinion
evidence rather than fact evidence to which
lay witnesses are limited. Finally, M’Naugh-
ten is the case on which many jurisdictions
today base their definition of criminal
responsibility in the statute law.

Following the acquittal of Daniel
M’Naughten in 1843 for the murder of
Edward Drummond, the private secretary
to Sir Robert Peel, then Prime Minister of
Britain, the House of Lords were asked to
determine a definition of the insanity
defence (Schneider, 2010). Their definition
became known as the M’Naughten rules
(Memon, 2006; Moran, 1985). The rules set
out were in part as follows.

A person is presumed sane unless it can be
‘‘clearly proven that, at the time of the
committing of the act, the party accused
was labouring under such a defect of
reason, from disease of the mind, as not
to know the nature and quality of the act
he was doing; or, if he did it, that he did
not know he was doing what was wrong.

The mode of putting the latter part of the
question to the jury .. . had generally been,
whether the accused at the time of doing
the act knew the difference between right
and wrong.’’

A medical doctor, who never examined
the accused, cannot be asked his opinion
of the defendant’s state of mind at the
time he committed the offence. Such a
question involves a judgement on the
truth of the facts, which is the province
of the jury (R v M’Naughten, 1843, p.
722).

As will be discussed subsequently, the
M’Naughten standard consists of three
substantive elements. First, it must be
determined that the defendant was suffer-
ing from ‘‘a defect of reason, from disease
of the mind’’. Next, evidence must show
that, as a result of the mental disease or
defect, the defendant did not ‘‘know’’ the
‘‘nature and quality of the act he was
doing’’. Finally, the M’Naughten standard
also requires an inquiry to determine
whether the defendant knew ‘‘what he
was doing was wrong’’. Therefore, the
defendant who has a cognitive understand-
ing or ‘‘knowledge’’ of his or her act, but
who does not demonstrate knowledge that
the act was morally wrong, may also be
acquitted under the M’Naughten test. The
M’Naughten test is referred to as a
‘‘cognitive’’ test of insanity because of its
focus on the quality of the defendant’s
thought processes at the time of the crime
(e.g., Low, Jeffries, & Bonnie, 1986).

With rules of criminal responsibility set
out, the next question becomes: who can
assess mental impairment for the purpose
of a criminal responsibility defence? Since
the earliest insanity pleas, the courts have
relied on the observations and testimony of
medical practitioners, initially general
practitioners and, as the field of psychiatry
emerged, it became primarily the domain
of psychiatrists. Following the end of
World War II, the field of clinical psychol-
ogy emerged with great fervour (Ogloff,
Tomkins, & Bersoff, 1996). While

80 M. Ferguson and J.R.P. Ogloff

psychologists had first entered the courts in
the early 20th century, it was this post-war
boom that saw clinical psychology make its
entrance (Viljoen, Roesch, Ogloff, & Zapf,
2003). In the United States psychologists
have been accepted as expert witnesses in
criminal responsibility cases for more than
60 years (see Viljoen et al., 2003 for a
review of relevant cases). In Australia, in
some respects psychologists are still prying
the doors to court rooms open in regards to
criminal responsibility assessments (Freck-
elton & Selby, 2009). This issue will be
addressed below in the discussion of case
law regarding psychologists as expert
witnesses in criminal responsibility
assessments.

When it is understood who can assess
responsibility, how to assess it must then be
evaluated. Earliest evaluations of insanity
relied on medical practitioners who had
either been treating the accused, had
treated family members for madness, or
had simply observed the accused in the
court room. Today there are a number of
ways in which clinicians can assess the
mental impairment and mental state of the
accused, even retrospectively. Primarily,
this is done through observation, interview
with the accused and collateral sources, file
reviews (Dietz, 1985; Ogloff et al., 1993;
Simon & Shuman, 2002) and, in the
domain of psychologists for the most
part, the use of structured assessment
instruments. Importantly, clinicians must
be mindful of the motivation of accused
persons to malinger their symptoms for the
purpose of being found not criminally
responsible (Ogloff et al., 1993). Prior to
the introduction of the Crimes (Mental
Impairment and Fitness to be Tried) Act
1997 in Victoria, as was the case in most
States, so-called insanity acquittees were
held under indeterminate detention ‘‘at the
Governor’s pleasure’’. With the introduc-
tion of the new act, however, legislative
reform was put in place to replace the
system that derived from English law in

1800 (Criminal Lunatics Act, 1800). A
discussion of the new procedures of senten-
cing and release of those found not
criminally responsible is beyond the scope
of this article.

This article will discuss the areas
introduced above, beginning with an over-
view of the M’Naughten rules, followed by
a discussion of the relevant statute and case
law in the area of criminal responsibility on
account of mental impairment. The re-
search findings supporting the role and
ability of psychology to undertake the
required components of a criminal respon-
sibility assessment will also be reviewed.
Finally, the article will conclude with a
brief discussion of some practical and
ethical concerns for psychologists working
in this field.

M’Naughten Rules

Definition of the Rules

The terms that constitute the M’Naughten
rules are perhaps not as straight forward as
they might first appear. Various jurisdic-
tions have sometimes interpreted the mean-
ing of the rules, ‘‘defect of reason from
disease of the mind’’, ‘‘nature and quality
of the act’’, and ‘‘wrongfulness’’, in differ-
ent ways. Indeed, while the Victorian law
follows the M’Naughten rules, many no-
table exceptions and distinctions have been
drawn and are noted below.

Mental illness (i.e., disease of the mind),
with respect to Victoria, is defined as
‘‘being a medical condition that is char-
acterized by a significant disturbance of
thought, mood, perception or memory’’
(Mental Health Act, 1986). In law, this is
further expanded to include not only all
forms of physical change to the structure of
the brain but also to every recognizable
disorder, whether or not it can be under-
stood, that involves derangement of under-
standing (for an early discussion see Dixon,
1957). Further, it is understood to be a
disorder of reasoning processes, in part at

Psychology in Criminal Responsibility Evaluation 81

least, caused by stress internal to a person
(McSherry, 1990; Yannoulidis, 2003). Per-
haps a more clear and legally useful
definition has been given in the United
States Court ruling in McDonald v United
States (Slovenko, 1999), where it is defined
as a ‘‘substantial disorder of thought or
mood which significantly impairs judge-
ment, behavior, capacity to recognize
reality, or ability to cope with the ordinary
demands of life’’ (p. 171).

One must be careful in using legal
definitions, however, to define psychiatric
phenomena. What is seen to be useful
legally is not always useful clinically. The
above definition, while useful for under-
standing mental illness under the rules of
criminal responsibility, is a rather vague
understanding of not only the large num-
ber of known mental disorders, but the way
in which persons are idiosyncratically
affected by them. Moreover the apparently
passing mention of ‘‘substantial disorder
of . . . behavior’’ is particularly vexing be-
cause neither the M’Naughten standards,
nor the Victorian law for that matter,
include a volitional prong (Ogloff et al.,
1993). In reality it is the effect of the
symptoms on the person, not necessarily
the disease itself, that are important in
understanding a person’s ability to reason
(Ogloff et al., 1993).

The term wrongfulness can be viewed by
two meanings: moral wrongfulness and
legal wrongfulness. Knowing an act is
morally wrong implies that regardless of
an act’s legality, a reasonable person would
view the act as one that society would not
condone. For an act to be illegal it must be
deemed so under the law of the jurisdiction
in which the act takes place. The issue for
criminal responsibility is that by taking a
view of wrongfulness as simply that which
is legally wrong, the defence is significantly
narrowed. For example, returning to the
case of James Hadfield, while he knew that
killing the King was an illegal act for which
he would be hanged (the reason he

committed the act), he believed that it was
morally the correct decision in that his
action and ensuing death would ensure the
salvation of mankind. Had the law been
restricted to the legal definition of wrong-
fulness, Hadfield’s original wish would
likely have come to fruition. In Canada
the courts had originally adopted the nar-
row interpretation that the accused must
merely know that his or her act was legally
wrong (R v Codere, 1916) This was similar
to the courts in England. Ensuing cases,
however, Chaulk v The Queen (1990) and R
v Ratti (1991), saw the Supreme Court of
Canada overrule a previous decision by one
of its own (Verdun-Jones, 1994). In Chaulk
v The Queen (1990) the Supreme Court of
Canada ruled the following.

In considering the capacity of a person to
know whether an act is one that he ought
or ought not to do, the inquiry cannot
terminate with the discovery that the
accused knew that the act was contrary
to the formal law. That person may well
be aware that an act is contrary to law but
by reason of disease of the mind is, at the
same time, incapable of knowing that the
act is morally wrong in the circumstances
according to the moral standards of
society. This would be the case where
for example the accused by reason of
disease of the mind knew that it was
legally wrong to kill, but kills in the belief
that it is in response to a divine order and
therefore not morally wrong (para. 10).

As in Canada, the High Court of
Australia has ruled that the term ‘‘wrong-
fulness’’ should take the line of the less
restrictive view. In R v Porter (1933),
Dixon ruled that ‘‘what is meant by wrong
is wrong having regard to everyday stan-
dards of reasonable people’’ (para. 189).
This is taken to mean morally wrong as in
Stapleton v The Queen (1952), where it was
also ruled that wrongfulness does not only
imply legally wrong, but that one must be
incapable of appreciating that his act was
wrong according to the ordinary standards
adopted by reasonable men.

82 M. Ferguson and J.R.P. Ogloff

Australian Law

Statute Law

The statute law in regards to the defence of
mental impairment in Australia does have
some jurisdictional differences, but the
jurisdictions generally follow the
M’Naughten rules with some degree of
similarity. Specifically, in the State of
Victoria, which will be the focus of this
article, the Act in which mental impairment
is considered is the Crimes (Mental Im-
pairment and Unfitness to be Tried) Act
(1997). Under s20:

(1) The defence of mental impairment is
established for a person charged with an
offence if, at the time of engaging in
conduct constituting the offence, the
person was suffering from a mental
impairment that had the effect that— (a)
he or she did not know the nature and
quality of the conduct; or (b) he or she did
not know that the conduct was wrong
(that is, he or she could not reason with a
moderate degree of sense and composure
about whether the conduct, as perceived
by reasonable people, was wrong).

While the Commonwealth and other
Australian jurisdictions have chosen to
define mental impairment (Freckelton &
Selby, 2009; McSherry, 1999), Victoria has
refrained. While this serves the purpose of
keeping the interpretation of mental impair-
ment broad and flexible, in reality it
continues to be defined, under the common
law at least, by the same standard set out
under the old insanity legislation as a disease
of the mind (Victorian Law Reform Com-
mission, 2004). It can be argued that this
lack of definition is not problematic given
that it is the M’Naughten elements rather
than the illness itself per se, that determine
the limits of the defence. While a diagnosis of
a mental disorder may be necessary, which
disorder it may be is relatively inconsequen-
tial (Viljoen et al., 2003).

In terms of Australian statutory law
there is nothing to suggest that

psychologists are not legally entitled to
conduct mental impairment assessments.
Many Australian States have not enacted
laws that specifically list those who are
entitled to undertake these assessments
(i.e., New South Wales, Northern Terri-
tory, Queensland), while, others have
legislation that specifically stipulates psy-
chologists as professionals who are entitled
to undertake these assessments (i.e., Tas-
mania and Victoria), and the remainder
have neither specifically stipulated psychol-
ogist entitlement nor refused it. In South
Australia, for example, s. 296F of the
Criminal Law Consolidation Act (1935)
states the following.

(1) The court—
(a) must hear relevant evidence and

representations put to the court
by the prosecution and the
defence on the question of the
defendant’s mental competence
to commit the offence; and

(b) may require the defendant to
undergo an examination by a
psychiatrist or other appropri-
ate expert and require the re-
sults of the examination to be
reported to the court.

There is no reason to suggest that psychol-
ogists should not be accepted as an ‘‘other
appropriate expert’’.

Case Law and the Role of the Psychologist

In the past, and currently (see discussion of
case law below), the common law has relied
upon medical practitioners and psychia-
trists to undertake these assessments and
inform the court. Initially, this was the case
largely because effectively clinical psychol-
ogy did not exist until after World War II
(Viljoen et al., 2003). As such, medical
practitioners and then psychiatrists were
relied upon to make medical diagnoses.
While one might reasonably expect that the

Psychology in Criminal Responsibility Evaluation 83

assessing clinician would have a profes-
sional background in the assessment of
mental illness, this does imply that it is the
domain of only psychiatrists or other
medical practitioners.

Early case law in Australia indicated
that, like in Canada and the United States,
mental impairment defence assessments
were the domain of psychiatrists. In A-G
(SA) v Brown (1959), in which a seemingly
unmotivated killing occurred, the High
Court implied that medical evidence is
that which is required in relation to the
mental state of the accused at the time of
the killing. Furthermore, in R v MacK-
enney (1981), it was stated by the bench
that ‘‘a psychologist with no medical
qualifications cannot be called to give
expert evidence whether a defendant is
suffering from any specific disease or defect
or abnormality of the mind. However . . . it
may, in a proper case, be permissible to call
psychiatric evidence. . .’’ (p.271). This is a
curious judgement when one considers the
definition of psychology as ‘‘the scientific
study of the human mind and its func-
tions’’ (Soannes & Hawker, 2005).

In The Queen v D’Aloisio (2006) the
testimony of a clinical psychologist diag-
nosing mental impairment was again
brought into question. In this case the
psychologist’s testimony was rejected be-
cause it was at odds with the evidence of an
experienced forensic psychiatrist. While
Eames did not dismiss the psychological
testimony outright he did rule that the
testimony of a psychiatrist was more
credible and valid than that of a psychol-
ogist with specialized knowledge in the
area. Ultimately, however, the psycholo-
gist’s testimony was questioned not due to
it being that of a psychologist but rather
due to the psychologist’s lack of compar-
able forensic experience to that of the
psychiatrist. Eames stated the following.

I will assume, without deciding the ques-
tion, that [the psychologist] was qualified

to make the diagnosis of major depres-
sion. Nonetheless, whilst I accept that you
had symptoms of depression both before
and at the time of these offences I am not
persuaded as to the accuracy of the
diagnosis of major depression, given [the
psychiatrist’s] failure to make the same
diagnosis. [The psychologist] had vastly
less experience in a forensic context than
[the psychiatrist]. . .. Unlike the hundreds
of court appearances made by [the
psychiatrist], [the psychologist] had given
evidence on few occasions: only once
before in the Magistrates’ Court, once in
the County Court and also (apparently
more than once) to the Medical Registra-
tion Board (at [36]).

A third clinician, also a psychologist,
gave evidence that included diagnosing
mental illness. Although this evidence was
not called into question, it may have been
in large part due to the expert’s support of
the diagnosis of the psychiatrist.

In an earlier judgement in R v Kucma
(2005), Batt expressed the view that psy-
chologists are not qualified to give evidence
on mental impairment. ‘‘In my opinion, the
field of expertise responsive to the matters
raised by s 20 of the 1997 Act is psychiatry,
the discipline concerned with mental
health, and does not include psychology.
The experience of counsel for the respon-
dent that it has always been psychiatrists
who give evidence in cases of insanity or
mental impairment tends to support this
opinion’’ (at [26]). It is of some concern
that judges are of the belief that psychology
is not a discipline concerned with mental
health, and furthermore that this belief is
partially based on the ‘‘experience of
counsel for the respondent’’, in this case
the prosecution.

A review of the case law in Australia
reveals very few cases in which psycholo-
gists’ testimony has been sought and, as
noted above, many have been less than
accepting of said testimony. There are
however, at least three cases in Australia
in which judges have accepted that psy-
chologists are qualified to present expert

84 M. Ferguson and J.R.P. Ogloff

testimony in regards to mental impairment
defence assessments. In the Court of
Criminal Appeal (Victoria) in R v Whit-
bread (1995), Hampel stated the following.

In my opinion the assumption on which
his honour proceeded, namely that the
witness was an expert in his field and
therefore able to express opinions of the
kind which are proffered was perfectly
correct. Standard and medical diction-
aries define ‘‘psychology’’ as a branch of
science which deals with the mind and
mental processes. They refer to ‘‘psychol-
ogy as the science of nature, functioning
and development of the human mind and
the study of the behaviour of the mind.
‘‘A psychologist’’ is an individual who has
made a professional study of and who
practices in the field of psychology. The
definition in the Glossary of Psychiatric
Terminology refers to a psychologist as
‘‘A [sic] person, usually with an advanced
degree, who specializes in the study of
mental processes and the treatment of
mental disorders . . . There is nothing in
the definitions or the literature about the
functions of a psychologist and a psy-
chiatrist which differentiates between
them on the basis that one has more or
less understanding and knowledge of the
nature and functioning of the mind in its
normal or abnormal states (at [28]).

It is quite clear from the comments of
Hampel that there is a place for clinical
psychology in the assessment of mental
impairment for the purpose of criminal
responsibility within the courts of Victoria.
Furthermore, while one of the bench
colleagues of Hampel agreed with him,
the other dissented for reasons of the
admissibility of the evidence in question
but not for the reason that the expert was a
psychologist (Freckelton, 1997). One cau-
tionary note must be stated here. Although
Hampel reported the definition of ‘‘a
psychologist’’ as an individual usually
with an advanced degree, this is not as
likely as other jurisdictions to be the case in
Australia (Freckelton & Selby, 2009).
Although a discussion of the registration
requirements of psychologists is well

beyond the scope of this article it is
necessary to point out that a large number
of Australian psychologists do not have
advanced degrees, or specific training in the
diagnosis of mental disorders, having
completed an honours year and a further
2 years of supervision. Hampel’s
statements should likely be restricted to
clinical psychologists with at least Masters
level training and preferably Doctoral
training.

In further support of psychologists in
the assessment of mental impairment
Hampel went on to say the following.

It is, I think, common knowledge and
experience that some psychologists have a
greater knowledge and qualifications in
the science which is concerned with the
mental states and processes of the mind
than some psychiatrists. Once the ques-
tion of medical treatment of mental illness
is put to one side there is no reason why a
psychologist may not be just as qualified
or better qualified than a psychiatrist to
express opinions about mental states and
processes . . . In my experience I have not
heard an objection taken to the expres-
sion of such opinions by psychologists on
the ground that they are not qualified (at
[28]).

It is also the case that in R v Telford
(2004), psychological testimony was pre-
ferred to that of two psychiatrists. Perry
stated the following.

There are obviously some differences of
opinion between the three medical experts
whose reports are before the Court.
Resolution of those differences is not
made any easier by reason of the fact
that neither counsel saw fit to call any of
the experts to give evidence. I am there-
fore in the position of having to do my
best to come to findings as to the likely
mental state of the accused, on the basis
of the written material alone. Where
necessary to resolve differences, I prefer
the opinions expressed by [the psycholo-
gist]. He had an extended interview with
the accused, and as well, gives an
impressively detailed account of the ac-
cused’s personal history (at [84]).

Psychology in Criminal Responsibility Evaluation 85

In the case of Nepi v Northern Territory
of Australia (Freckelton, 1998; Freckelton
& Selby, 2009, 684) the original judgement
ruled that although the psychologist had
the right to give evidence on psychological
disorders, the testimony in regards to
psychiatric evidence should be inadmissi-
ble. This was based on the earlier case of R
v Peisley (1990) in which Wood opined the
following.

It is important that psychologists do not
cross the barrier of their expertise. It is
appropriate for persons trained in the
field of clinical psychology to give evi-
dence of the results of psychometric and
other psychological testing . . . It is not,
however, appropriate for them to enter
into the field of psychiatry (at [52]).

In Nepi v Northern Territory (1997),
however, Martin on appeal looked not at
what was psychological or psychiatric per
se, but rather what the expertise of the
witness was and whether, as required under
the relevant legislation the psychologist
possessed specialized knowledge as a result
of their study, training or experience. It
was determined that if a psychologist is
possessed of this specialized knowledge, in
this case the diagnosis of post-traumatic
stress disorder, then they should be ac-
cepted by the court as an expert in their
field with the capability of providing the
expert evidence in question.

Given evidence of both support and
rejection for the notion of psychologists
providing assessment and evidence in
criminal responsibility cases, the state of
the common law in terms of the expertise
of psychologists to diagnose remains un-
clear. Having said that, the judiciary has
been accepting of psychologists’ testimony
in a number of cases. Perhaps the hege-
mony of psychiatrists in mental impair-
ment assessments is coming to an end. In
any case, as stated above, under statute law
in Australia there is no restriction on the
admissibility of expert evidence by psychol-
ogists in relation to mental impairment

defence so long as it falls within the
Evidence Act (Cth, 1995; NSW, 1995;
Tas, 2001; Vic, 2008), where under section
79 it is provided that, ‘‘If a person has
specialized knowledge based on the per-
son’s training, study or experience, the
opinion rule [section 76] does not apply to
evidence of an opinion of that person that
is wholly or substantially based on that
knowledge’’ (p. 51). An early criticism of
psychological evidence was that, unlike
that of psychiatry, it was not beyond the
knowledge of the average layperson (Pacht,
Kuehn, Basset, & Nash, as cited in Viljoen
et al., 2003). If, however, psychologists are
providing technical/specialized evidence
then it follows that this early criticism, at
least in the area of mental impairment, is
unfounded.

Assumptions the Law Makes about
Psychology

Under the Crimes (Mental Impairment and
Fitness to be Tried) Act (1997), a number
of assumptions are made about the role
that psychology can play in assessing
mental impairment for the purpose of the
pleas of not criminally responsible on
account of mental impairment. First and
most importantly, there is an assumption
that it is possible to assess a person’s
mental state and mental health at the time
of the offence. This can be difficult given
that assessments are often undertaken well
after the completion of the criminal act.
The law also assumes that psychologists
are capable of diagnosing and assessing
mental illness (in common law this equates
to a ‘‘disease of the mind’’). Furthermore,
the law assumes that not only can psychol-
ogists assess whether a person was mentally
ill at the time of the offence and whether
this may have played some impact on the
offending behaviour, the law must also
assume that psychologists can identify
those who are feigning or malingering their
symptoms. Finally, by putting trust in

86 M. Ferguson and J.R.P. Ogloff

psychologists in informing the court about
matters related to mental impairment, the
law assumes that psychologists will carry
out their professional duties in an ethically
and responsible manner.

Assessment of Mental Impairment

Retrospective Assessment of Mental State

It seems intuitive that assessing an indivi-
dual’s mental state at a time in the past has
some significant problems – especially
when that person may have a poor ability
to adequately describe their experiences
due to the very issue an evaluator is trying
to assess: the mental state. Research has
sought to address the reliability and
validity of retrospective mental state ex-
aminations. Studies assessing reliability are
rare and those assessing validity almost
non-existent (Melton, Petrila, Poythress, &
Slobogin, 2007). The validity of criminal
responsibility evaluations is difficult to
study and measure as a result of the
absence of ‘‘ground truths’’ (Rogers &
Ewing, 1992). As such, research has
assessed validity through studies of agree-
ment between the evidence reported by
expert witnesses and outcomes in the
courts. Agreement has been reported in
the range of 88–93% (Daniel & Harris,
1981; Fukunaga, Pasewark, Hawkins, &
Gudeman, 1981) and psychologists have
been shown to attain high levels of validity
in this regard (Rogers, Wasyliw, & Cava-
naugh, 1984).

There is some discrepancy between the
evaluations of psychologists and psychia-
trists as a result of their training and
theoretical backgrounds. Clinical inter-
views tend to be utilized more readily by
psychiatrists, while psychologists seek to
obtain their information through inter-
views, observations, obtainment of collat-
eral information (Beckman, Annis, &
Gustafson, 1989; Petrila & Poythress,
1983) and the use of objective tests (Borum
& Grisso, 1995). A number of objective

tests have been utilized in the past to assess
mental state and diagnose mental illness
retrospectively. The two most used instru-
ments, the Rorschach and the Minnesota
Multiphasic Personality Inventory-2
(MMPI-2), have both fared poorly at
distinguishing between groups of offenders
found guilty and those found not crimin-
ally responsible (Boehnert, 1985, 1987,
1988; Rogers & Semen, 1983). In light of
the poor performance on these previous
measures the Rogers Criminal Responsi-
bility Assessment Scale (R-CRAS) (Rogers
1984) was developed to quantify specific
symptoms of mental illness related to
mental impairment for the purpose of
assessing criminal responsibility. Studies
have shown the R-CRAS to be a highly
reliable measure for retrospectively asses-
sing symptoms and characteristics that are
associated with criminal responsibility as-
sessments (Rogers & Sewell, 1999). The
Schedule of Affective Disorders and Schi-
zophrenia (SADS) (Spitzer & Endicott, as
cited in Rogers & Sewell, 1999) has also
been shown to have excellent interrater
reliability, and additionally allows clini-
cians to assess symptoms of severe mental
illness at discrete times. Rogers and Cava-
naugh (1981) reported that the SADS, with
slight modification, can be used to retro-
spectively evaluate the accused’s function-
ing at the time the offence was committed.

Diagnosis

Clinical psychologists are specialists in the
assessment, diagnosis and treatment of
psychological problems and mental illness
(American Psychological Association,
2002; Australian Psychological Society
[APS], 2007), and diseases of the brain
(MedicineNet, 2007). While past research
has indicated that diagnosis of specific
psychiatric disorders has had marginal
interrater reliability (Matarazzo, 1983),
according to the American Psychological
Association (1992) diagnosis is where the

Psychology in Criminal Responsibility Evaluation 87

greatest agreement between criminal re-
sponsibility evaluators occurs. Research
has shown that many clinical psychologists
are able to reliably diagnose mental dis-
orders (Viljoen et al., 2003). But this does
not mean that all psychologist or clinical
psychologists are competent to diagnose
and undertake mental impairment defence
assessments.

Like the medical profession, psychol-
ogy is a discipline with wide-ranging areas
of practice and expertise. Furthermore,
training in psychiatry does not in and of
itself render one competent to undertake
mental impairment assessments, and nor
does training in clinical psychology. One
must have training and qualifications
specific to the assessment of mental im-
pairment before they can be thought of as
competent to perform such evaluations. So
too this is the case in psychology. A
postgraduate degree in clinical psychology
is necessary but not sufficient to render
someone competent to undertake mental
impairment assessments. But as in psychia-
try and other disciplines involving those
who are called as expert witnesses, the
competence of the expert is in some ways a
matter for the court to decide. That is, the
court decides whether, given the indivi-
dual’s training, qualifications, and experi-
ence, their testimony should be admissible
and how much weight it should be given
when coming to a decision about the
matter at hand.

There can be no argument that an
individual properly trained in clinical
psychology, with practice experience in
assessment of mental illness, is well suited
to diagnosing mental illness. Further train-
ing in respect to the specific and specialized
area of mental impairment defence assess-
ments, however, is necessary. But this is
also the case for any other mental health
professional undertaking such evaluations.

Under the Crimes (Mental Impairment
and Fitness to be Tried) Act (1997), a person
must have been suffering a mental

impairment. At common law this has been
construed as suffering a disease of the mind.
The Diagnostic and Statistical Manual of
Mental Disorders-IV-Text Revision (Amer-
ican Psychiatric Association, 2000) is one
resource used by psychiatrists and psychol-
ogists in making diagnoses of mental dis-
orders or diseases of the mind. While this has
become the standard assessment tool, it is
not without its caveats in the area of mental
health and law. The American Psychiatric
Association (2000) acknowledges that there
is a risk of diagnostic information being
misunderstood or even misused. ‘‘These
dangers arise because of the imperfect fit
between the question of ultimate concern to
the law and the information contained in a
clinical diagnosis . . . When used appropri-
ately diagnoses and diagnostic information
can assist decision makers in their determi-
nations’’ (American Psychiatric Associa-
tion, 2000, p. xxxiii). One must remember
that although a diagnosis of mental impair-
ment or disease of the mind is necessary, it is
not sufficient for the negation of criminal
responsibility. It is necessary to separately
assess functional mental capacity or impair-
ment (Simon, 2002). A person with schizo-
phrenia may still be able to understand the
nature of their actions and that the act in
question is wrong (both morally and leg-
ally). It is ironic that if Daniel M’Naughten
were tried under the current standard of
M’Naughten rule in Victoria, he would have
been found guilty because he knew both the
nature and quality of the act and that what
he was doing was wrong (Memon, 2006).

Psychologists must be careful in pro-
viding their evidence around diagnosis and
mental state to ensure that the meaning of
constructs and terms are clear to the
decision-maker (judge or jury), assisting
them in the ultimate issue decision. Because
a psychologist giving evidence is not the
trier of fact, their role is to speak to the
mental state and mental impairment pre-
sent at the time of the offence. It is not their
responsibility to form an opinion about the

88 M. Ferguson and J.R.P. Ogloff

ultimate issue but to provide information
for others to make that decision.

Malingering

The ability of properly trained and experi-
enced clinical and forensic psychologists to
accurately differentiate real symptoms
from those that are feigned is critical in
criminal responsibility evaluations (Cornell
& Hawk, 1989). The intentional produc-
tion or exaggeration of psychological
symptoms motivated by external incentives
is commonly known as malingering (Amer-
ican Psychiatric Association, 2000). Two
characteristics that differ between assess-
ment in forensic and civil evaluations of
mental impairment are ensuring that in-
vestigative procedures fall within legal
criteria and ensuring that due considera-
tion is given to malingering or exaggeration
(Waysliw & Cavanaugh, 1989). In clinical
settings, clients may distort the truth in an
unconscious manner, but rarely have rea-
son to actively deceive or manipulate the
clinician (Melton et al., 2007). In the case
of criminal behaviour, deception may be an
attempt to avoid criminal prosecution,
incarceration and in some jurisdictions
(although not Australia) the death penalty
for capital crimes (Bourg, Connor, &
Landis, 1995; Melton et al., 2007).

While psychologists should be mindful
of malingering when undertaking any for-
ensic evaluation, they should be comforted
in the fact that research suggests that
psychologists are quite adept at assessing
it. Bourg et al. (1995) conducted a study to
assess the accuracy with which clinical and
forensic psychologists could distinguish be-
tween malingerers and insanity acquittees.
Participants were asked to review a variety
of psychological data from one of four cases
(two cases of malingering, two cases of
insanity). Results showed that 86.4% of
psychologists accurately categorized indivi-
duals into the two groups. Interestingly,
both forensic and clinical psychologists rated

their confidence in having made the correct
decision as moderate (M ¼ 3.0 on a scale of
1–6). Further studies have found similar
results, with correct classification reaching as
high as 90% (Kucharski, Ryan, Vogt, &
Goodloe, 1998).

Studies of malingerers have noted some
specific symptoms and clinical indicators
indicative of feigning. Symptoms often
expressed by malingerers include auditory
and visual hallucinations, mutism, depres-
sion or melancholia, mania and even mental
retardation. Clinical indicators include over-
acting, calling attention to the illness, lack of
subtle signs or residual schizophrenia, and
sudden onset of symptoms (Cornell &
Hawk, 1989; Resnick, 1993).

Like the R-CRAS and SADS, there are
also structured assessment tools that can be
used for the evaluation of malingering in
forensic contexts. The MMPI/MMPI-2 has
been the subject of extensive research in the
assessment of malingering. Results have in
some respects been variable across various
studies but with careful interpretation the
MMPI/MMPI-2 is thought to be the most
empirically supported among conventional
tests (Melton et al., 2007). Another useful
tool in the assessment of malingering in the
forensic context is the Personality Assess-
ment Inventory (PAI) (Morey, 1991). Re-
search has consistently shown the PAI to be
valid for screening potential malingers
(Boccaccini, Murrie, & Duncan, 2006). Its
validity in this respect, however, is limited to
the Negative Impression Scale (Kucharski,
Toomey, Fila, & Duncan, 2007; Rogers,
Sewell, Cruise, Wang, & Ustad, 1998) and
the Malingering Index (Rogers, Sewell,
et al., 1998). The Structured Interview of
Reported Symptoms (SIRS) was specifically
designed to assess feigning and related
response styles (Rogers, Bagby, & Dickens,
1992). The SIRS has been extensively
validated (Rogers, 2001), including a screen-
ing version (Norris & May, 1998).

Malingering is likely to be a serious
issue in forensic assessments, especially

Psychology in Criminal Responsibility Evaluation 89

when criminal responsibility is a question,
with estimated prevalence in the range of
10–25% (Heinze, 2003; Lewis, Simcox, &
Berry, 2002; Rogers, Salekin, Sewell, Gold-
stein, & Leonard, 1998; Rogers, Ustad, &
Salekin, 1998). With training in its detec-
tion (Rogers, 1997; Rogers & Bender,
2003), however, and the use of the afore-
mentioned evaluation instruments, clini-
cians have the tools required to correctly
assess this phenomenon in forensic assess-
ments. While the skills to carry out these
assessments are attainable, it is the respon-
sibility of the practitioner to ensure that
they have sufficient expertise in the area
before embarking on work in this field.

Ethical Practice

If psychologists are to play an active role in
assisting courts to make determinations of
criminal responsibility, it is important that
psychologists carry out these duties in a
professional and ethical manner. Although
no specific guidelines are in place in
Australia to inform psychologists about
ethical issues specific to their foray into the
legal system, guidance can be found in other
jurisdictions such as the Medico-Legal
Guidelines published by the Medical Practi-
tioners Board of Victoria (2006), and the
Expert Witness Code of Conduct (Supreme
Court of Victoria, 2005). Furthermore,
guidance specific to psychologists can be
found outside of Australia. For example, the
Committee on Ethical Guidelines for For-
ensic Psychologists, a joint taskforce of the
American Psychological Association and the
American Psychology–Law Society, has
developed specialty guidelines for forensic
psychologists (Committee on Ethical Guide-
lines for Forensic Psychologists, 1991).
Briefly, those guidelines relate to the assess-
ment of criminal responsibility and suggest
that psychologists should serve only where
they have specialized knowledge in the area,
they must inform the court of limits to their
competency, and decline referrals when they

may not be able to prevent their own
personal values and moral beliefs from
interfering with their work. Furthermore,
psychologists must always have available for
the court all evidence used in the formation
of their expert opinion, they must have
approval of the legal party to access third
party or collateral information, unless access
is ordered by the court, and psychologists
must refrain from giving evidence when they
have managed nothing more than an
inadequate evaluation of the legal party.

To put this into the current context,
psychologists should not engage in criminal
responsibility assessments unless they have
undergone specialist training in the areas of
mental state examinations, diagnosis of
mental illness related to the forensic popula-
tions, and assessment of malingering. One
criterion, at the very least, in the Australian
context should be membership of or at least
eligibility for membership in both the
College of Forensic Psychologists and the
College of Clinical Psychologists of the APS.
Furthermore, as outlined in the APS Code
of Ethics (APS, 2004a) and the Ethical
Guidelines (APS, 2004b) psychologists
should use psychological assessment instru-
ments only with appropriate training and
experience, and psychologists must ensure
that tests are ‘‘chosen, administered and
interpreted appropriately and accurately’’
(p. 54). Although an array of assessment
instruments is available for use in mental
impairment evaluations, many of which
have been found to be both valid and
reliable, psychologists are responsible for
ensuring their proper use. Being insuffi-
ciently trained in the use of such instruments
and selecting inappropriate assessment tools
will render their outcomes invalid and
negatively impact on psychologists’ reputa-
tion for competence in diagnosing.

Conclusion

The legal rules governing what is known
today as the Not Criminally Responsible

90 M. Ferguson and J.R.P. Ogloff

on Account of Mental Disorder defence,
were established in the outcomes of three
significant English law trials, those of
James Hadfield, Edward Oxford and Da-
niel M’Naughten. In the intervening years
since 1843, the rules governing this defence,
previously known as the insanity defence,
have remained largely unchanged. Initially
evaluations of the accused pleading not
criminally responsible fell first to medical
practitioners and then, with the develop-
ment of mental health specializations,
psychiatry. Psychology’s first foray into
the courts came in the early 1900s but it
was not until the birth of clinical psychol-
ogy after World War II that psychologists
began evaluating criminal responsibility
(Viljoen et al., 2003). Although psycholo-
gists’ capacity to diagnose has generally
been accepted in the United States and, to
a lesser extent, Canada, this is far from the
case in jurisdictions such as Australia. In
spite of this, psychology has continued to
insert itself where possible with varying
degrees of success. Indeed, the second
author has prepared reports and given
evidence in many mental impairment cases
without question or incident.

In the current legislation in Australia
and, more specifically Victoria, there is
nothing that prohibits criminal responsibil-
ity evaluations being undertaken by regis-
tered psychologists. Indeed, there is a
precedent for the appropriateness of such
opinions being expressed by psychologists in
Victoria (R v Whitbread, 1995), but this has
not come without its critics. Despite the
ongoing confusion in the case law at present,
psychology does have much to offer in
regard to this area of law. Requirements of
evaluations of criminal responsibility re-
quire a number of difficult tasks, but tasks in
which many clinical psychologists have
competence. As discussed above, assessing
criminal responsibility often requires eva-
luation well after the commission of the act.
Research has shown that mental health
professionals and clinical psychologists in

particular are quite capable of this. The use
of structured assessment tools such as the
SADS and R-CRAS has greatly increased
the reliability and validity of such assess-
ments. Research has also shown that psy-
chologists are capable of reliably diagnosing
mental illness, which, although a require-
ment of the mental impairment defence, is in
reality a side issue. It is the assessment of the
components of the M’Naughten rules that
are the basis of the evaluation. Having said
that, it is important to remember that the
role of psychology is not to decide on the
ultimate issue in law. Although psychology
can assist the trier of fact in determining the
mental state and underlying mental illness, it
the task of the trier of fact (i.e., the judge or
jury) to determine whether the experiences
of the accused, at the time of the offence,
were enough to prevent him or her from
reasoning about the nature and quality of
the act in question or to prevent him or her
from knowing that the act was morally
wrong.

Finally, in order for psychologists to
continue to develop their role in the
discipline of law, and gain the respect of
those in the discipline, psychologists must
continue to work in a professional and
ethical manner. This includes knowing and
acknowledging the limits of their specia-
lized knowledge, and not overstepping
these boundaries. One issue in Australia is
the immense variability in the educational
and experiential background of psycholo-
gists. While there is no doubt that a
significant number of psychologists have
the expertise to undertake forensic work,
and more specifically mental impairment
assessments, it must be clear that being a
psychologist, just like merely being a
medical practitioner, is not enough. As in
medicine, where mental impairment assess-
ments are conducted by a specialist trained
forensic psychiatrist, so too in psychology
these assessments should be conducted
only by specialist trained clinical and
forensic psychologists.

Psychology in Criminal Responsibility Evaluation 91

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Contents lists available at ScienceDirect

International Journal of Law and Psychiatry

journal homepage: www.elsevier.com/locate/ijlawpsy

Forensic mental health evaluations in the Guantánamo military commissions
system: An analysis of all detainee cases from inception to 2018

Neil Krishan Aggarwal⁎

Clinical Psychiatry, Department of Psychiatry, Columbia University Medical Center, Committee on Global

T

hought, Columbia University, New York State Psychiatric
Institute, United States

A B S T R A C T

Even though the Bush Administration opened the Guantánamo Bay detention facility in 2002 in response to the September 11, 2001 attacks in the United States, little
remains known about how forensic mental health evaluations relate to the process of detainees who are charged before military commissions. This article discusses
the laws governing Guantánamo’s military commissions system and mental health evaluations. Notably, the US government initially treated detainees as “unlawful
enemy combatants” who were not protected under the US Constitution and the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment, allowing for the use of “enhanced interrogation techniques.” In subsequent legal documents, however, the US government has excluded
evidence obtained through torture, as defined by the US Constitution and the United Nations Convention Against Torture. Using open-source document analysis, this
article describes the reasons and outcomes of all forensic mental health evaluations from Guantánamo’s opening to 2018. Only thirty of 779 detainees (~3.85%) have
ever had charges referred against them to the military commissions, and only nine detainees (~1.16%) have ever received forensic mental health evaluations
pertaining to their case. Of these nine detainees, six have alleged mental torture while in US custody. This paper shows that leaders in the United States and Europe
should consider whether counterterrorism policies that supersede traditional health and human rights complicate the ability of future governments to prosecute cases
when successive leaders change laws, a pertinent consideration as North American and European states grapple with the return of foreign fighters.

1. Introduction

This article describes how forensic mental health evaluations fit
within the legal process of all cases that have been processed through
Guantánamo’s military commissions system from 2006 to October
2018. The United States Congress (2006) passed the Military Commis-
sions Act of 2006 (also known as “MCA 2006”) so that these commis-
sions at Guantánamo could try any “unlawful enemy combatant” for
war crimes. Since the passage of this act, only one study (Aggarwal,
2015) has examined how mental health has been invoked in detainee
cases before the military commissions system. This study is now dated
since the American government passed new laws and statutes in 2016.
Moreover, that study took a random sample of cases rather than ex-
amining all cases comprehensively. The Department of Defense (DoD)
has hosted an open-source website (https://www.mc.mil/home.aspx)
with motions from prosecution and defense teams, legal rulings, and
court transcripts for all detainees, permitting researchers to trace how
cases evolve once the government files criminal charges. This article is
laid out as follows: Section 2 discusses the laws governing the military
commissions system and mental health evaluations, Section 3 presents
the methodology of how documents were retrieved from the DoD
website, Section 4 presents results on which cases have used forensic
mental health evaluations and for what reasons, and a final section is

devoted to discussion. This paper addresses a topic of timely interest by
analyzing non-state militants who are processed through an entirely
different legal and mental health system outside of the civilian sector,
with lessons for countries now struggling to process militants from the
Islamic State who have returned to North America and the European
Union (Wright, 2018; Boutin et al., 2016).

2. Laws for military commissions and mental health evaluations
at Guantánamo

Federal laws and statutes clarify the process for forensic mental
health evaluations at Guantánamo. MCA 2006 defines the purpose of
mental health evaluations: “It is an affirmative defense in a trial by
military commission under this chapter that, at the time of the com-
mission of the acts constituting the offense, the accused, as a result of a
severe mental disease or defect, was unable to appreciate the nature
and quality or the wrongfulness of the acts” (United States Congress,
2006, p. 17). A detainee must prove that any mental disorder, if pre-
sent, limited his responsibility for a criminal act: “The accused in a
military commission under this chapter has the burden of proving the
defense of lack of mental responsibility by clear and convincing evi-
dence” (United States Congress, 2006, p. 17). A judge orders the mili-
tary commission to ascertain whether the detainee met this burden of

https://doi.org/10.1016/j.ijlp.2019.01.003
Received 16 October 2018; Received in revised form 5 December 2018; Accepted 14 January 2019

⁎ Corresponding author at: 1051 Riverside Drive, Unit 11, New York, NY 10032, United States.
E-mail address: aggarwa@nyspi.columbia.edu.

International Journal of Law and Psychiatry 64 (2019) 34–

39

Available online 29 January 2019
0160-2527/ © 2019 Elsevier Ltd. All rights reserved.

T

http://www.sciencedirect.com/science/journal/01602527

https://www.elsevier.com/locate/ijlawpsy

https://doi.org/10.1016/j.ijlp.2019.01.003

https://www.mc.mil/home.aspx

https://doi.org/10.1016/j.ijlp.2019.01.003

mailto:aggarwa@nyspi.columbia.edu

https://doi.org/10.1016/j.ijlp.2019.01.003

http://crossmark.crossref.org/dialog/?doi=10.1016/j.ijlp.2019.01.003&domain=pdf

defense: “The military judge shall instruct the members of the com-
mission as to the defense of lack of mental responsibility under this
section and shall charge them to find the accused— (1) guilty; (2) not
guilty; or (3) subject to subsection (d), not guilty by reason of lack of
mental responsibility” (United States Congress, 2006, p. 17). The last
charge only exists “if a majority of the members present at the time the
vote is taken determines that the defense of lack of mental responsi-
bility has been established” (United States Congress, 2006, p. 17).

In 2006, the DoD published a document known as the Rules for
Military Commissions (RMC) to detail legal standards for evaluating this
last charge of a detainee’s lack of mental responsibility. Under Rule 504,
a military commission can be convened by an official known as a
“convening authority” such as the Secretary of Defense or an individual
whom the Secretary designates (Department of Defense, 2006). Under
Rule 706 – titled “Inquiry into the mental capacity or mental respon-
sibility of the accused” – a commission member, military judge, or at-
torney either from the prosecution or defense team can apply for a
mental examination (Department of Defense, 2006). A “706 Board” (as
they are known) must consist “of one or more persons” and “[e]ach
member of the board shall be either a physician or a clinical psychol-
ogist” (Department of Defense, 2006, p. II-56). The 706 Board must
answer four questions:

A) At the time of the alleged criminal conduct, did the accused have a
severe mental disease or defect? (The term “severe mental disease or
defect” does not include an abnormality manifested only by re-
peated criminal or otherwise antisocial conduct, or minor disorders
such as nonpsychotic behavior disorders and personality defects.)

B) What is the clinical psychiatric diagnosis?
C) Was the accused, at the time of the alleged criminal conduct and as a

result of such severe mental disease or defect, unable to appreciate
the nature and quality or wrongfulness of his or her conduct?

D) Is the accused presently suffering from a mental disease or defect
rendering the accused unable to understand the nature of the pro-
ceedings against the accused or to conduct or cooperate intelligently
in the defense?” (Department of Defense, 2006, pp. II-56-57).

The board’s conclusions are circulated to the official who ordered
the examination, the detainee’s confinement official for security pur-
poses, all participating attorneys, the convening authority, and, if
charges have been referred, to the military judge. The full report is
released only to the defense team and medical personnel caring for the
detainee to protect the detainee’s confidentiality, unless authorized by
the convening authority or a military judge (Department of Defense,
2006). Rule 909 allows the convening authority to hospitalize or treat
the detainee if he is found incompetent and to reconvene the commis-
sion upon the restoration of competency. The convening authority can
also override a determination of incompetence to continue the trial: “In
making this determination, the military judge is not bound by the rules
of evidence except with respect to privileges” (Department of Defense,
2006, p. II-93). The process for forensic mental health evaluations is
unchanged in subsequent legislation and policy documents such as
MCA 2009 (United States Congress, 2009), 2011’s Regulation for Trial by
Military Commission (Department of Defense, 2011a), 2016’s Military
Commission Trial Judiciary Rules of Court (Department of Defense,
2016a), and 2016’s Manual for Military Commissions United States
(Department of Defense, 2016b).

Notably, the DOD has not publicized information on how forensic
mental health evaluations are completed in practice. For example, there
is no public knowledge on who selects the members of the 706 Board,
how the precise number is determined, and whether this number
changes by case or by availability when the military commissions are in
active session. The type of information that evaluators can access is
currently not public knowledge despite concerns from journalists and
human rights advocates that military clinicians shared detainee medical
information with interrogators to exploit ailments (Slevin & Stephens,

2004). It is also not known whether these experts work independently
on separate evaluations that are aggregated into one report or if they
produce a single report collaboratively. Nor is it publicly known how
interpreters are selected when detainees speak foreign languages, what
the qualifications of the interpreters are, and whether they are gov-
ernment employees or independent contractors.

In contrast to prior documents, the Manual for Military Commissions
United States (Department of Defense, 2016b) specifies legal standards
for the relevance and admissibility of evidence, as well as the admission
of expert witness testimony. The military judge possesses sole discretion
to scrutinize the qualifications of expert witnesses and standards for the
admissibility of evidence: “Preliminary questions concerning the qua-
lification of a person to be a witness, the existence of a privilege, the
admissibility of evidence, an application for a continuance, whether to
protect the identity of a witness… shall be determined by the military
judge” (Department of Defense, 2016a, b, p. III-2). The military judge
also makes decisions about the condition of facts and the probative
value of evidence: “When the probative value of evidence depends upon
the fulfillment of a condition of fact, the military judge shall admit the
evidence upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition. A ruling on the
sufficiency of evidence to support a finding of fulfillment of a condition
of fact is the sole responsibility of the military judge” (Department of
Defense, 2016a, b, p. III-2). The manual excludes evidence obtained
through torture: “No statement, obtained by the use of torture, or by
cruel, inhuman, or degrading treatment (as defined by section 1003 of
the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or
not under color of law, shall be admissible in a trial by military com-
mission, except against a person accused of torture” (Department of
Defense, 2016a, b, p. III-7-8). The manual defines the term “torture, or
by cruel, inhuman, or degrading treatment” to be “cruel, unusual, and
inhumane treatment or punishment prohibited by the Fifth, Eighth, and
Fourteenth Amendments to the Constitution of the United States, as
defined in the United States Reservations, Declarations and Under-
standings to the United Nations Convention Against Torture and Other
Forms of Cruel, Inhuman or Degrading Treatment or Punishment done
at New York, December 10, 1984, without geographical limitation”
(Department of Defense, 2016a, b, p. III-10). The manual conspicuously
returns to a definition of torture that the Bush Administration tried to
change in originally permitting “enhanced interrogation techniques.”
Whether statements made during “enhanced interrogation techniques”
can be excluded as evidence obtained through torture becomes a sig-
nificant point of contention in detainee cases, as we shall see ahead.

3. Methodology for document search and retrieval

All legal documents were retrieved from Guantánamo’s Office of
Military Commissions website (https://www.mc.mil/CASES.aspx)
which allows users to search for information by individual cases. All
cases are searchable whether or not charges are active or inactive and
whether cases are on appeal or completed. The website was searched
from July through October 2018.

3.1. Inclusion criteria for the dataset

All cases that have gone through the military commissions process
since its inception in 2006 were included in this study as long as any
request by any party was made for a detainee to receive a mental health
evaluation. Cases without any request for a mental health evaluation
were excluded, which represents the majority of cases: of the 779 men
detained at Guantánamo since its opening in January 2002, the Bush
Administration has released 532, the Obama Administration released
197, the Trump Administration released 1, and 9 have died in custody,
leaving 40 in detention as of August 2018: of these remaining 40, 26
have not been charged with a crime or cleared for release (American
Civil Liberties Union, 2018).

N.K. Aggarwal International Journal of Law and Psychiatry 64 (2019) 34–39

35

https://www.mc.mil/CASES.aspx

3.2. Search method to identify cases

To determine whether or not a case had a mental health evaluation,
the terms “mental,” “psychological,” “psychologist,” “psychiatric,”
“psychiatrist,” and “706” [for “706 Board”] were entered in the search
field for every single case. To ensure that all cases with a mental health
evaluation were analyzed, cases that were not identified with the above
search terms were also searched manually, leading to no unidentified
cases. In cases with a forensic mental health evaluation, each document
pertaining to a mental health evaluation was downloaded and read in
entirety.

3.3. Data extraction and analysis

Data were extracted into a spreadsheet and classified according to
whether a mental health evaluation was being requested for one of four
reasons according to the legal texts covered in section two. The four
reasons for the evaluation were to determine if: (1) the accused suffered
a mental disease or defect at the time of the alleged criminal conduct
(“criminal responsibility”), (2) the accused could not presently under-
stand the nature of the legal proceedings or cooperate in his defense due
to a mental disease or defect (“defense participation”), (3) the accused
is requesting a mitigation in sentencing due to the presence of a mental
disease or defect (“mitigate sentencing”), or (4) the accused is alleging
physical or mental torture in US custody (“mental torture”).

In cases where forensic mental health evaluations were requested,
additional variables were extracted such as date of birth, nationality, all
legal charges, reason for the mental health evaluation, psychiatric di-
agnoses (if declassified), and the current status of the case to provide
context. All documents on mental health evaluations are cited in the
bibliography with Internet links for independent scholarly verification.

4. Results

4.1. All cases before the military commissions with a request for a forensic
evaluation

Table 1 lists all cases before the military commissions system and
whether or not mental health evaluations were requested. Cases appear
in alphabetical order with the Arabic definite article (“al” or “el”) re-
corded before the transliterated family name, as is the scholarly con-
vention in Middle Eastern Studies (International Journal of Middle
Eastern Studies, 2018). Of the twenty-six cases in which thirty detainees
have ever been charged, nine (34.6%) have had requests for forensic
mental health evaluations. In 2014, the military commissions separated
Ramzi bin al Shibh’s case from the other individuals accused of com-
mitting the 9/11 attacks under the case United States v. Khalid Shaikh
Mohammad et al. based on concerns that he was not competent to stand
trial, until the military judge ruled that his mental health evaluation
would not introduce undue delays (Department of Defense, 2014c). His
case has since been included with the other four.

4.2. Demographics of detainees with forensic mental health evaluations

Table 2 lists all forensic mental health evaluations that have been
ordered by reason for the evaluation, from the start of Guantánamo’s
military commissions system through October 2018. At the time that
charges were referred, the detainees ranged in age from their twenties
through fifties: Omar Khadr (b. 1986) was the youngest and Ibrahim
Ahmed Mahmoud al Qosi was the oldest (b. 1960). The nationality
profile of Afghans, Saudis, Sudanese, and Yemenis fits the demographic
backgrounds of foreign fighters who have traditionally fought for Al
Qaeda and the Taliban (Bergen, 2002). The sole exception is Khadr who
was born in Canada and received Canadian citizenship, but whose
parents moved at different times during his childhood to Canada, Pa-
kistan, and Afghanistan (The Canadian Press, 2015).

4.3. Most common charges against detainees with legal definitions

All detainees were charged with at least two offenses. The most
prevalent charge was conspiracy (6 detainees). The Department of
Defense (2016b) specifies this offense as:

“Any person subject to this chapter who conspires to commit one or
more substantive offenses triable by military commission under this
chapter, and who knowingly does any overt act to effect the object
of the conspiracy, shall be punished, if death results to one or more
of the victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does not
result to any of the victims, by such punishment, other than death”
(p. IV-23).

The second most prevalent charge was providing material support
for terrorism (5 detainees). The Department of Defense (2016b) spe-
cifies this offense as:

“Any person subject to this chapter who provides material support
or resources,
knowing or intending that they are to be used in preparation for, or
in carrying out, an act of terrorism (as set forth in paragraph (24) of
this section), or who intentionally provides material support or re-
sources to an international terrorist organization engaged in hosti-
lities against the United States, knowing that such organization has
engaged or engages in terrorism (as so set forth), shall be punished”
(p. IV-20).

Comparatively, only 3 detainees were charged with terrorism,
which the Department of Defense (2016b) specifies as:

“Any person subject to this chapter who intentionally kills or inflicts
great bodily harm on one or more protected persons, or intentionally
engages in an act that evinces a wanton disregard for human life, in
a manner calculated to influence or affect the conduct of govern-
ment or civilian population by intimidation or coercion, or to re-
taliate against government conduct, shall be punished, if death re-
sults to one or more of the victims, by death or such other

Table 1
All cases in Guantánamo’s military commissions since inception (n = 26).

Case: United States v. … Mental health evaluation
requested?

Ali Hamza Ahmad Suliman al Bahlul No
Sufyian Barhoumi No
Ahmed Mohammed Ahmed Haza al Darbi Yes
Ahmed Khalfan Ghailani No
Abdul Ghani No
Salim Ahmed Hamdan Yes
Mohammed Hashim No
David Hicks No
Abd al Hadi al-Iraqi No
Mohammed Jawad Yes
Mohammed Kamin Yes
Faiz Mohammed Ahmed Al Kandari No
Omar Ahmed Khadr Yes
Majid Shoukat Khan No
Khalid Shaikh Mohammad et al. Yes
Binyam Ahmed Muhammad No
Noor Uthman Muhammed Yes
Abd al-Rahim Hussein Muhammed Abdu Al-

Nashiri
Yes

Obaidullah No
Jabran Said Bin Al Qahtani No
Ibrahim Ahmed Mahmoud al Qosi Yes
Fouad Mahmoud Hasan Al Rabia No
Tarek Mahmoud El Sawah No
Ghassan Abdullah al Sharbi No
Ramzi bin al Shibh No
Abdul Zahir No

N.K. Aggarwal International Journal of Law and Psychiatry 64 (2019) 34–39

36

punishment as a military commission under this chapter may direct,
and, if death does not result to any of the victims, by such punish-
ment, other than death” (p. IV-19).

4.4. Reasons for forensic mental health evaluations

Of the 9 detainees who have had forensic mental health evaluations,
none were to determine whether the accused suffered a mental disease
or defect at the time of the alleged criminal conduct. The rest of the
reasons are as follows:

Ahmed Mohammed Ahmed Haza al Darbi’s (b. 1975) legal team
requested a mental health evaluation to suppress statements made in
US custody due to mental torture (Department of Defense, 2008a). He
pled guilty (Department of Defense, 2014a) and was released
(Department of Defense, 2018) without the evaluation being performed
(Department of Defense, 2017).

Salim Ahmed Hamdan’s (b. 1968) legal team requested a mental
health evaluation to determine whether he could understand the nature
of legal proceedings or cooperate in his defense due to a mental disease
or defect (Department of Defense, 2008b). His mental health evaluation
is sealed (Department of Defense, 2008c). He was convicted of the
charge of providing material support for terrorism, but the United
States Federal Court of Appeals (2012) overturned the conviction.

Mohammed Jawad’s (b. 1985) legal team requested a mental health

evaluation to determine whether he could understand the nature of his
legal proceedings or cooperate in his defense due to mental torture
while in US custody (Department of Defense, 2008d). The Department
of Defense (2009b) dismissed his charges without prejudice before the
evaluation was complete.

Mohammed Kamin’s (b. 1978) legal team requested a mental health
evaluation to determine whether he could understand the nature of his
legal proceedings or cooperate in his defense due to mental torture
while in US custody (Department of Defense, 2009d). The 706 Board
found that he exhibited no diagnosis, either at the time of the alleged
criminal act or at the time of his evaluation (Department of Defense,
2009e). The Department of Defense (2009f) dismissed his charges
without prejudice.

Omar Khadr (b. 1986)’s legal team requested a mental health eva-
luation to determine whether he could understand the nature of his
legal proceedings or cooperate in his defense due to the presence of a
mental disease or defect (Department of Defense, 2010a). His evalua-
tion from experts retained by his legal team was not released, but court
documents indicate that his diagnoses were disputed (Department of
Defense, 2010b). He pled guilty to all charges and served the remainder
of his sentence in Canada (Department of Defense, 2010c).

Ramzi bin al Shibh’s (b. 1972) legal team requested a mental health
evaluation to determine whether he could understand the nature of his
legal proceedings or cooperate in his defense due to the presence of a
mental disease or defect (Department of Defense, 2013b). He refused to
attend his 706 Board hearing, so he could not be diagnosed
(Department of Defense, 2014b). His trial is underway.

Noor Uthman Muhammed’s (b. 1962) legal team requested a mental
health evaluation to mitigate sentencing (Department of Defense,
2011b). His evaluation is sealed (Department of Defense, 2011c). His
guilty plea and conviction were voided after his attorneys successfully
argued that Guantánamo’s military commissions system did not have
the legal jurisdiction to try his stated offenses (Department of Defense,
2015a).

Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri’s (b. 1965)
prosecutors requested a mental health evaluation to determine his ca-
pacity to stand trial (Department of Defense, 2012a, b). The 706 Board
diagnosed him with Posttraumatic Stress Disorder; Major Depressive
Disorder; and Narcissistic, Antisocial, and Histrionic Personality Dis-
order Traits (Department of Defense, 2013c). After reports surfaced that
Al-Nashiri may have experienced mental torture in US custody, his legal
team successfully motioned in 2015 for the government to order a
magnetic resonance image (MRI) of his brain to assess any extent of
trauma for the purposes of mitigating sentencing (Department of
Defense, 2015b). His trial is underway and his MRI has not yet been
completed.

Ibrahim Ahmed Mahmoud al Qosi’s (b. 1960) legal team requested a
mental health evaluation to determine whether he was tortured in
American custody (Department of Defense, 2010f). His evaluation was
not performed as part of a confidential plea agreement whereby he was
sentenced on the basis of his charges and released to Sudan
(Department of Defense, 2011d).

In summary, 6 of 9 detainees have had mental health evaluations to
assess for mental torture while in US custody in some capacity that
pertains to their cases.

5. Discussion

This is the first study to document the reasons and outcomes of all
forensic mental health evaluations that have proceeded through
Guantánamo’s military commissions system since the Bush
Administration opened the detention facility. Only thirty of 779 de-
tainees (~3.85%) have ever had charges referred against them, and
only nine detainees (~1.16%) have ever received forensic mental
health evaluations pertaining to their case. This contrasts with the last
published statistic from 2006 when ~11% of detainees accessed mental

Table 2
Characteristics of all mental health evaluations at Guantánamoa.

Total number of detainees N = 9

Age when charges were referred
20–29 2
30–39 2
40–49 4
50–59 1

Nationality
Afghan 2
Canadian 1
Saudi 2
Sudanese 2
Yemen 2

Most common criminal chargesb

Conspiracy 6
Providing material support for terrorism 5
Murder in violation of the laws of war 3
Attempted murder in violation of the laws of war 3
Attacking civilians 3
Attacking civilian objects 3
Terrorism 3

Reasons for the forensic evaluation
Determine mental torture in US custody 6
Assess defense participation 2
Mitigate sentencing 1
Determine criminal responsibility at the time of the alleged offense 0

Outcome of the forensic evaluation
Not done 4
Sealed 3
No diagnosis found 1
Clear diagnosis offered 1

Outcome of the trial
Detainee found guilty 3
Detainee’s charges were dismissed 2
Detainee’s conviction was overturned 2
Trial still proceeding 2

a This table was created from information in Department of Defense (2007a,
2007b, 2008a, 2008b, 2008c, 2008d, 2009a, 2009b, 2009c, 2009d, 2009e,
2009f, 2010a, 2010b, 2010c, 2010d, 2010e, 2010f, 2011b, 2011c, 2011d,
2011e, 2012a, 2012b, 2013a, 2013b, 2013c, 2014a, 2014b, 2014c, 2015a,
2015b, 2017, 2018) and United States Federal Court of Appeals (2012) which
can be found in the References section of the paper.

b Detainees can be charged with more than one offense, so the total number
of charges exceeds 9.

N.K. Aggarwal International Journal of Law and Psychiatry 64 (2019) 34–39

37

health services for direct treatment (Kennedy, Malone, & Franks, 2009).
These forensic mental health evaluations demonstrate the compli-

cations in processing cases for an American government that initially
invoked a state of emergency to create new laws and institutions for the
War on Terror, only to revert to existing domestic and international
laws. The Bush Administration permitted “enhanced interrogation
techniques” for use with detainees who were deemed ineligible for
protections under the United Nations Convention Against Torture and
Other Forms of Cruel, Inhuman or Degrading Treatment (Bybee, 2002).
However, latter documents such as the Detainee Treatment Act of 2005
and the Manual for Military Commissions United States have outlawed
evidence obtained through treatment that has traditionally been pro-
hibited by the United States Constitution and the United Nations Con-
vention Against Torture and Other Forms of Cruel, Inhuman or De-
grading Treatment (Department of Defense, 2016b). Notably, six of
nine evaluations have been ordered after allegations that detainees
experienced mental torture while in US custody. From this perspective,
it is worth asking: What is achieved by making mental health assess-
ments publicly available? Does such availability prevent a future resort
to enhanced interrogation techniques that would qualify as torture or
does it have little impact as long as such techniques are used to gain
intelligence? At one extreme, perhaps President Bush (2010) did not
anticipate that Guantánamo’s legal system would eventually extend
medicolegal protections as historically enshrined in American and in-
ternational laws to detainees. At another extreme, perhaps enhanced
interrogation techniques were employed with the primary purpose of
extracting intelligence, with only a secondary concern over how in-
formation obtained under such conditions could jeopardize the prose-
cution’s position in future legal cases. It remains to be seen whether
such forensic evidence will be of value in any future legal claims that
detainees raise against the violations of their rights.

This paper’s findings prove that contemporary foreign policies re-
garding counterterrorism can exert a direct influence on medicolegal
systems, with implications for the United States and Europe. President
Donald Trump has vowed to reintroduce “enhanced interrogation
techniques” at Guantánamo, triggering human rights concerns from
social and behavioral scientists (Aggarwal, 2017). In October 2018, his
administration announced its decision to detain known and suspected
militants from the Islamic State at Guantánamo (The White House,
2018). While his administration may perceive political and intelligence
benefits with this strategy, extant laws at Guantánamo would need to be
changed in order to admit into evidence any statements made after the
application of “enhanced interrogation techniques” in detainee legal
cases. In Europe, human rights organizations have criticized the British
and Dutch governments for preventing citizens who traveled abroad to
fight for militant groups in Iraq and Syria from returning home, as these
individuals no longer enjoy rights to a fair trial or access to basic health
care (European Parliamentary Research Service, 2018). Officials in
these countries would benefit from considering whether future leaders
would overturn their counterterrorism policies, which could introduce
medicolegal complications for governments that wish to prosecute
cases in the future.

Perhaps unexpectedly, an analysis of these cases shows that the
forensic mental health system at Guantánamo may actually protect the
rights of detainees. Social theorists have long criticized mental health
professionals for acting as agents of the state to pathologize and justify
the sequestration of undesirable populations (Foucault, 1975). For ex-
ample, interviews with detainee attorneys such as Mohammed Kamin’s
have raised concerns that Guantánamo’s 706 Board would make diag-
noses without adequate mental health evaluations (Aggarwal, 2009).
The evidence in this paper suggests otherwise, as Mohammed Kamin
was found not to have a mental diagnosis upon the 706 Board’s direct
examination (Department of Defense, 2009e) and Ramzi bin al Shibh
was not diagnosed after refusing to attend his 706 Board hearing
(Department of Defense, 2014b). Moreover, the evaluations of three
detainees remain sealed for privacy. Although Guantánamo has long

faced criticisms from American officials and human rights organizations
for its conditions of confinement (Senate Select Committee on
Intelligence, 2014), the forensic mental health process may safeguard
medicolegal protections, perhaps to avoid obstacles in prosecuting
cases before the military commissions system.

5.1. Strengths and limitations

This paper has key strengths and limitations. First, the US govern-
ment has invoked national security to prevent the release of un-
controlled information about Guantánamo (Hafetz, 2005). This has led
to an incomplete picture about its forensic mental health system. For
example, Wikileaks released risk assessments of over 700 detainees
which were thought to be conducted by forensic mental health pro-
fessionals, but the Department of Justice has expressed a willingness to
prosecute researchers and attorneys who access this classified in-
formation even if it is in the public domain (Shane and Weiser, 2011;
Shane & Weiser, 2011). For this reason, the data here rest on open-
source documents. Nonetheless, the search methods are transparent and
reproducible, with Internet addresses available for each document to
enable independent scholarly verification. Second, the laws at Guan-
tánamo have changed since the facility was opened to house known and
suspected militants in the War on Terror. A strength of this study is its
comparison of previous with current laws to show how Guantánamo
acts as a unique medicolegal system. Third, despite the availability of
information on the process of forensic mental health evaluations, little
is known about how such evaluations occur in practice. The process of
constituting each 706 Board is classified, as its membership. For this
reason, it is not known how forensic evaluators working with the
government actually conduct their work. Similarly, little is known
about forensic mental health evaluators who work for defense teams at
Guantánamo because they prefer not to speak or write on the record to
avoid retaliation (Aggarwal, 2009, 2015). Those who have done so
have criticized the use of mental health knowledge and practice in the
War on Terror for intelligence purposes with detainees (Xenakis, 2014),
but not discussed the work of conducting forensic evaluations. How
forensic evaluators actually do their work at Guantánamo is a topic that
requires further exploration. A final limitation is that not all cases be-
fore the military commissions have been completed. Two trials are still
under way. The attorneys for extant cases may still request forensic
mental health evaluations, as could any new detainees who are trans-
ferred to Guantánamo. Still, this limitation could be expected with a
cross-sectional study, and the methodology presented here allows for
data to be updated in the future. Despite these limitations, this is the
first known study to document all forensic mental health evaluations
for detainees whose cases have come before Guantánamo’s military
commissions system, paving the way for work in other jurisdictions that
have legal and mental health documents available for open-source data
analysis.

There is no conflict of interest to declare for this study. There is no
funding to declare for this study. There are also no acknowledgements.

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https://www.mc.mil/Portals/0/pdfs/alDarbi/Al%20Darbi%20(AE069%20%20P010)%20Gov%20Mot%20for%20Med%20Rec

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https://www.mc.mil/Portals/0/pdfs/alQosi/Al%20Qosi%20(AE088)

https://www.mc.mil/Portals/0/pdfs/alQosi/Al%20Qosi%20(AE088)

https://www.mc.mil/Portals/0/pdfs/alQosi/Al%20Qosi%20(AE074)_Part1

https://www.mc.mil/Portals/0/pdfs/alQosi/Al%20Qosi%20(AE074)_Part1

http://www.mc.mil/Portals/0/2011%20Regulation

https://www.mc.mil/Portals/0/pdfs/NoorUthman/Noor%20(AE129)

https://www.mc.mil/Portals/0/pdfs/NoorUthman/Noor%20(AE129)

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https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(Referred%20Charges

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https://www.mc.mil/Portals/0/pdfs/alNashiri2/Al%20Nashiri%20II%20(AE140).df

https://www.mc.mil/Portals/0/pdfs/alNashiri2/Al%20Nashiri%20II%20(AE140).df

https://www.mc.mil/Portals/0/pdfs/alDarbi2/Al%20Darbi%20Charge%20Sheet%20dated%2016%20Dec%202013

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https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(AE152G)

https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(AE152G)

https://www.mc.mil/Portals/0/pdfs/alNashiri2/Al%20Nashiri%20II%20(AE140J)pdf

https://www.mc.mil/Portals/0/pdfs/alNashiri2/Al%20Nashiri%20II%20(AE140J)pdf

https://www.mc.mil/Portals/0/pdfs/alDarbi2/al%20Darbi%20Dismissed%20chare%20sheet%2029%20Aug%202012

https://www.mc.mil/Portals/0/pdfs/alDarbi2/al%20Darbi%20Dismissed%20chare%20sheet%2029%20Aug%202012

https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(AE152I(KSM%20et20al))

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https://www.mc.mil/Portals/0/pdfs/alShibh/Al%20Shibh%20(AE312C(RBS))

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https://www.mc.mil/Portals/0/pdfs/NoorUthman/Noor%20(CA%20Action%20EMO%20and%20Promulgating%20Order)

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https://www.mc.mil/Portals/0/pdfs/NoorUthman/Noor%20(CA%20Action%20EMO%20and%20Promulgating%20Order)

https://www.mc.mil/Portals/0/pdfs/alNashiri2/Al%20Nashiri%20II%20(AE277M)Ruling))

https://www.mc.mil/Portals/0/pdfs/alNashiri2/Al%20Nashiri%20II%20(AE277M)Ruling))

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• Forensic mental health evaluations in the Guantánamo military commissions system: An analysis of all detainee cases from inception to 2018

Introduction
Laws for military commissions and mental health evaluations at Guantánamo
Methodology for document search and retrieval
Inclusion criteria for the dataset
Search method to identify cases
Data extraction and analysis
Results
All cases before the military commissions with a request for a forensic evaluation
Demographics of detainees with forensic mental health evaluations
Most common charges against detainees with legal definitions
Reasons for forensic mental health evaluations
Discussion
Strengths and limitations
References

PSYCHIATRY
REVIEW ARTICLE

published: 01 December 2014
doi: 10.3389/fpsyt.2014.00172

Frendak to Phenis to Breivik: an examination of the
imposed insanity defense
William Donald Richie*, Farzana Alam, Lalitha Gazula, Harold Embrack , Milankumar Nathani and
Rahn Kennedy Bailey

Department of Psychiatry and Behavioral Science, Meharry Medical College, Nashville, TN, USA

Edited by:
Roy O’Shaughnessy, University of
British Columbia, Canada

Reviewed by:
George Seiden, George Seiden
Medical Corporation, USA
Elizabeth Hogan, Regents University,
USA

*Correspondence:
William Donald Richie, Department of
Psychiatry and Behavioral Science,
Meharry Medical College, Nashville,
TN, USA
e-mail: wrichie@mmc.edu

The imposition of the insanity defense is a complicated psycho-legal scenario. Globally, def-
initions of insanity differ from country to country. In a multitude of cases, a determination of
insanity at the time of a criminal act means the offender will not be considered responsible
for his or her action(s). In many jurisdictions, concerns have been raised that the insanity
defense has been used to mitigate punishment, usually after a particularly heinous crime.
In this review, the authors use three cases – Frendak, Phenis, and Breivik to demonstrate
how the imposition of the insanity defense has been used for legal purposes in the past and
present. In an effort to give more background to each of the above-mentioned cases, the
writers have provided some details to aid comprehension. The authors offer recommenda-
tions for the ethical forensic evaluator unburdened by partisan allegiance and invested in the
search for truth. This review article relies on peer-reviewed articles available from PubMed,
Meharry Online Library, and legal dictionaries. We also cross-referenced reputable news
sources to ensure the validity of the facts we present.

Keywords: Frendak vs. United States, Phenis vs. United States, Breivik case, insanity defense, jurisdictions

INTRODUCTION
Societies , in the main, believe that criminals should be punished
for their crimes. At the same time, societies also advocate that
laws should not punish defendants who are mentally ill and inca-
pable of understanding and knowing that their actions were wrong
and/or were unable to control their conduct (McNaughton Stan-
dard, American Library of Law). In this way, the insanity defense
reflects a compromise on the part of society and the law (1).

The legal definition of insanity is “a condition which renders the
affected person unfit to enjoy the liberty of action because of the
unreliability of his behavior with concomitant danger to himself
and others” [Ref. (2), p. 794]. Importantly, insanity is not the same
as low intelligence or mental deficiency due to age or injury. The
legal proceedings following a defense of insanity require psychi-
atric/medical input to determine whether the defendant be placed
in a penal institution or mental-health facility for treatment. In
a criminal case, the defendant may plea “not guilty by reason of
insanity.” This plea requires a trial or hearing to determine sanity
at the time the crime was committed (3).

The concept of willful intent is essential to the determina-
tion of whether or not the offender is guilty. A person found to
be “insane” is considered incapable of forming such intent. The
standard used for determining a defendant to be not guilty by rea-
son of insanity has changed through the years from adherence to
strict guidelines, to more lenient interpretations, and back to an
increasingly strict standard (4). In the early twentieth century the
insanity defense was better defined which decreased ambiguity in
its use (5).

Figure 1 describes these changes in chronological order (6).
The McNaughton Rule is the basic test for insanity in most

jurisdictions in the USA, and emerged as a defense in the US

during the nineteenth century (7). In 2009, Bennett demonstrated
the inadequacies of the McNaughton Rule (8).

Currently, in the United States, forensic mental-health profes-
sionals (psychiatrists, social workers, and psychologists) conduct
the determination of whether or not the defendant fits the Black’s
Law Dictionary definition of insanity at the time of the crime [Ref.
(2), p. 794]. Prior to the above standard definition, forensic eval-
uators used the “old standard,” a list of test questions designed
to determine whether the defendant could distinguish between
right and wrong. Large et al. (9) conducted a study to determine
the reliability of the expert witness’s evaluation. In this study, the
level of agreement regarding not guilty by reason of mental illness
(insanity) was moderate to good by expert witnesses of opposite
sides (9). Problems remain in cases where the defendant is in dis-
cord with his/her attorney(s) regarding the use of insanity as the
defense.

In 1979, the precedent of the Frendak inquiry was instituted in
response to Frendak vs. United States (10). The Frendak inquiry
refers to a process used to determine whether a defendant intelli-
gently and voluntarily waived the insanity defense or not. In Phenis
vs. United States (2006), the standard of the Frendak inquiry was
revisited. Recently, a new twist on the insanity standard (and a
consideration for the imposition of the insanity defense) arose in
a high-profile case in Norway. The case in Norway centered on the
defense of Anders Breivik, for whom the prosecution and defense
have decided to argue the following issues: Did the defendant know
right from wrong at the time he carried out the atrocities? Was
he suffering from a mental illness? Was he fully capable of sepa-
rating fantasy from reality? Did he have the ability to conduct his
affairs in the absence of psychosis? Was he subject to uncontrollable
behavior at the time he committed mass murder?

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McNaughton’s Rule 1843

(Ability to know right/wrong of action)

Modification of McNaughton’s Rule

1887(Irresistible impulse test)

Durham Rule 1954

(Evidence of mental disease)

American Law Institute Standard 1964

(A consolidation of the proceeding)

Insanity Defense Reform Act 1984

(Toughened by Congress to right/wrong with burden of

proof shifted to defendant)

FIGURE 1 | One evolutionary line of the insanity defense, (GB to US).

We use the three cases to illustrate the principle of the Frendak
inquiry in the insanity defense (10), the application of the princi-
ple in another case in the United States (11), and how it compares
to a high-profile international case (12).

The Frendak vs. US (10) case is a landmark case with great
educational value for all forensic psychiatrists, especially in North
America. It presents an unusual situation where all but the defen-
dant, Paula Frendak, harbored the view that she was insane at
the time of the crime. The astute forensic evaluator would be
well advised to consider the potential implications of the insanity
defense being imposed on the defendant and act accordingly, i.e.,
after engaging the Frendak inquiry. (The outline has been made
available in our manuscript).

In 2006, the Phenis vs. US case went to trial and ended with
Mr. Phenis guilty by jury. Several years later, the case was unsuc-
cessfully appealed. The basis for the appeal was the court’s failure
to institute the Frendak inquiry. After the application of the Fren-
dak inquiry, the Court of Appeals upheld the guilty verdict in the
Phenis case.

Norway’s Breivik case appears in this review to highlight the
international nature of attempts to impose the insanity defense.
Additionally, it highlights the extremely unusual circumstance
where the prosecution was pressing for a verdict of insane while
the defense was pressing for a verdict of sane.

FRENDAK VS. UNITED STATES (FRENDAK VS. UNITED
STATES, 1979)
FACTS OF FRENDAK VS. UNITED STATES
At approximately 2:15 on the afternoon of January 15, 1974, Mr.
Willard Titlow left his office and took the elevator from the seventh
floor. Paula Frendak, a co-worker, departed immediately after-
wards and within a few minutes Mr. Titlow was found fatally shot
on the first floor hallway of their office building.

Following the shooting, Ms. Frendak left Washington, DC, USA,
where the incident occurred. She was eventually apprehended on
February 11, 1974 in Abu Dhabi for not surrendering her pass-
port at the airport. When searched, she was in possession of a
0.38 caliber pistol, 45 rounds of ammunition, 2 empty cartridges
and a pocketknife (13). Authorities in Abu Dhabi surrendered Ms.
Frendak to the United States Marshals on March 13, 1974. She
was brought back to the District of Columbia and on May 29th
of the same year she was charged with 1st degree murder and for
possession of an unlicensed pistol.

At the trial, the Government presented evidence that Mr. Tit-
low had been shot twice. The evidence showed that someone stood
over the victim as he lay on the floor and fired the last shot. With
the help of a police expert in firearms identification, tests showed
positively that the bullets removed from Mr. Titlow’s body had
been fired by the weapon seized from Paula Frendak.

Robert Hur, a co-worker, testified that Ms. Frendak had fol-
lowed him and Mr. Titlow on three (3) occasions prior to January
15, 1974. Another co-worker, Thomas Voit, recalled a similar inci-
dent that occurred on the day of the murder. Ms. Frendak had
followed him and the deceased as they left the office and were tak-
ing the elevator. Mr. Titlow tried to avoid Ms. Frendak telling her
that he and Mr. Voit were going out to eat. Both men left for the
cafeteria and realized that Ms. Frendak had followed. She took the
elevator up with them.

Additionally, a secretary in the office testified that immediately
preceding the shooting Ms. Frendak had followed Mr. Titlow as
soon as he had left the office for his regular sales call. He was found
fatally wounded a few minutes later. Paula Frendak admitted to
ownership of the murder weapon and claimed she had brought it
to sell to Mr. Titlow. She had left the office with him in order to
complete the transaction. After handing the pistol to Mr. Titlow,
an unknown woman grabbed the gun from the deceased, shot him
twice, and fled. Paula Frendak claimed she panicked and left the
city in the aftermath.

In the months preceding her trial, Ms. Frendak underwent four
competency evaluations to assess her mental status and her abil-
ity to consult with counsel on matters related to the case. After
the fourth hearing, the Court found that she was suffering from a
personality disorder, but was deemed able to consult with coun-
sel concerning the proceedings against her. The Court concluded
that Ms. Frendak was competent to stand trial and subsequently
found her guilty of first-degree murder and carrying an unlicensed
pistol (13).

ISSUE ON APPEAL
Prior to sentencing, the judge ordered a criminal responsibility
evaluation to determine her mental state at the time of the offense.
The Trial Court overruled the conviction and found her to be
“Not Guilty By Reason of Insanity” even though she refused to
plead insanity and appealed. Later, the District of Columbia Court
of Appeals concluded that a trial judge cannot force an insanity
defense on a defendant who is competent to stand trial if the
defendant intelligently and voluntarily decided to reject the insan-
ity defense (14, 15). The Court listed five legitimate and rational
reasons for which a defendant might reject the insanity defense
(Figure 2).

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Richie et al. An examination of the imposed insanity defense

1. A defendant may fear a lengthier confinement in a mental health institution more than the

potential prison sentence.

2. Objection to the type or quality of treatment in a mental health institution

3. The defendantmay choosea guilty plea to avoid the stigma implied of the mental illness

implied in the insanity verdict.

4. Desire to avoid collateral consequences of an insanity acquittal throughout the life

5. Undermining of defendant’s political or religious views of the crime

FIGURE 2 | Defendant’s potential (rational) objections to an insanity defense, (from forensic neuropsychology: a scientific approach, page 456,
by Glenn J. Larrabee).

HOLDING ON APPEAL
In the Frendak case, the government produced sufficient evidence
to support a conviction for first-degree murder. However, due
to the challenge created by the second issue, the appeals court
ruled that a trial judge might not force an insanity defense on a
defendant found competent to stand trial if the individual intel-
ligently and voluntarily decides to forego that defense. The Court
of Appeals decided that the lower Court’s finding of “Competency
to Stand Trial” was not sufficient to show the defendant capable of
rejecting an insanity defense. The higher court also instructed the
trial judge to make further inquiry into whether the defendant had
made an intelligent and voluntary decision. It was unclear whether
Paula Frendak had made such a decision. Therefore, the decision
of the court was reversed, and she was remanded for the additional
proceedings (16).

REASONING ON APPEAL
To avoid the confusion alluded to above in a Frendak-style juris-
diction, it is valuable for the Forensic Examiner to be aware of
potential reasons that a defendant may be rejecting the insanity
defense. Moreover, it is crucial to assess the impact of any men-
tal illness on the defendant’s ability to make an intelligent and
voluntary judgment (A.K.A. willful intent).

In certain circumstances, while the Frendak inquiry allows the
courts to raise the insanity defense for a defendant, it has also
upheld the societal concept of justice in which the defendant has
been found incompetent to waive the defense. For a defendant
who is otherwise competent to stand trial, a decision to waive the
defense for any of the reasons listed above (at least in a jurisdiction
following Frendak) would most probably be respected (17).

The Frendak inquiry is a three part inquiry that includes (1)
an inquiry into competency to stand trial, (2) if the defendant is
competent to stand trial, then an inquiry into whether or not
the defendant has the capacity to voluntarily waive the insan-
ity defense, and (3) whether the court, on its own will, should
impose the defense based on evidence of the defendant’s mental
condition at the time of the crime. The Frendak inquiry is of con-
siderable value to legal proceedings. It has become a pivotal part of
the proceedings in many other cases such as in Phenis vs. United
States (11).

PHENIS VS. UNITED STATES (DISTRICT OF COLUMBIA
COURT OF APPEALS – PHENIS VS. UNITED STATES, 2006)
Phenis vs. United States relates to the insanity defense as well as
to the question of an imposed insanity defense in Frendak. Jamar
Phenis was convicted of arson, malicious destruction of property
and second-degree cruelty to children. Phenis appealed, claiming
that the court should have ordered a competency evaluation dur-
ing the pre-trial portion of his case, that the court failed to do a
Frendak inquiry, that the court improperly precluded Phenis from
defending against the specific element of arson, that there was an
error in the arson jury instruction, and that the trial court erred
when it corrected the appellant’s illegal sentence (18). The judges
(Ruiz, Glickman, and Schwelb) found the claims to have no merit,
except for the Frendak inquiry.

FACTS OF PHENIS VS. UNITED STATES
In order to understand how the Frendak inquiry pertains to Phenis
vs. United States, it is helpful to know the facts of the case and the
timeline of events from pre-trial to sentencing.

On June 27th, 2000, maintenance workers were called to inves-
tigate a broken window at the apartment complex where Jamar
Phenis lived with his mother. When they arrived at the apart-
ment, they found Jamar Phenis arguing with his mother. The
workers also noted a broken patio door and a shattered win-
dow. Maintenance left the apartment a few minutes later and at
that stage, the argument escalated. Shortly afterwards, Jamar Phe-
nis’ mother, Ardis, arrived at the property manager’s office and
asked the manager to call the police. Maintenance workers then
returned to the apartment and witnessed a chair on fire being
thrown off the balcony. They also witnessed Jamar Phenis’ 6-year
old niece, Nigeri Cooper, run out of the apartment horrified by
her uncle’s behavior. She said that her uncle had “set the place
on fire.” The remaining residents were evacuated. The mainte-
nance workers observed Mr. Phenis strolling out of the building.
He did not call for help or report the fire. The workers notified the
police that Mr. Phenis had started the fire and he was summarily
arrested.

During questioning, Jamar Phenis stated, “Well, I guess I did
it. I struck a couple of matches . . . I threw the first match on a
pile of newspaper. I threw [the second match] on the couch.” The

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question of whether or not Mr. Phenis deliberately set the fire or
was unsuccessful in putting it out was argued during the trial.

During the pre-trial proceedings conducted by Dr. Lawrence
Oliver, a clinical psychologist who conducted a competency exam-
ination, Mr. Phenis was found to have “judgment and insight
distorted by unrealistic thinking.” Later, a court order issued on
July 12, 2000, instructed Dr. Oliver to conduct a complete com-
petency examination at the mental-health unit of the District of
Columbia jail.

Dr. Oliver was unable to complete the examination because
Mr. Phenis refused to participate. Subsequently, Dr. Oliver found
Mr. Phenis to be incompetent to stand trial (IST) due to mental-
health concerns. He cited facts such as Mr. Phenis not bathing for
several weeks, refusing to take his medications and not attending
his appointments at the clinic. Dr. Oliver evidenced his opinion
regarding Mr. Phenis’ unrealistic thought processing by reveal-
ing the defendant’s current point of view, “I’m ready to return to
society. They should give me bond.”

At the end of the probable cause hearing, Mr. Phenis was found
to be IST. The court ordered a further evaluation at St. Elizabeth’s
Hospital with an updated competency report to be submitted by
October 2000. In September 2000, Dr. Mitchell Hugonnet, staff
psychologist at St. Elizabeth’s Hospital, found that Mr. Phenis was
competent to stand trial. The court held that Mr. Phenis had a
good understanding of the charges brought against him.

Again, in October 2000, Mr. Phenis was found competent to
stand trial after he was described as being in control of himself,
compliant with his medication and not at risk of danger to himself
or to others. However, Mr. Phenis remained at St. Elizabeth’s Hos-
pital to ensure that he would remain compliant and competent to
stand trial. Before the trial began on June 25, 2001, the defense
asked the court to order a “Criminal Responsibility Test” to assess
Mr. Phenis’ mental state at the time of the offense.

The defense specifically declined to request or pursue the Not
Guilty by Reason of Insanity plea, but wanted to develop informa-
tion regarding their theory that he had a mental illness at the time
of the crime. Mr. Phenis specifically denied a plea of Not Guilty
by Reason of Insanity.

In August of 2001, Dr. William Richie, a staff psychiatrist in
the Forensic Inpatient Services Division of the District of Colum-
bia Department of Mental Health, concluded after his evaluation
of Mr. Phenis, that Mr. Phenis was not suffering from a mental
disease or defect that could have caused him to be incapable of
recognizing the wrongfulness of his actions. Dr. Richie’s report
made it difficult for the defense to pursue a plea separate from Not
Guilty By Reason of Insanity. Mr. Phenis’ condition was subject to
deterioration and he was required to remain at St. Elizabeth’s to
ensure continued competency.

In October 2001, the defense informed the judge that Mr. Phe-
nis wanted to offer a plea of guilty to the charge of malicious
destruction of property. This was contingent on the government
dismissing the two other charges, waiving enhancement papers,
and reserving the right to ask the trial court to hold the appellant
in jail pending sentencing.

A District of Columbia Superior Court jury found Jamar Phenis
guilty of Arson and Malicious Destruction of Property and Second
Degree Cruelty to Children. Phenis was sent back to St. Elizabeth

with pending sentencing. Soon afterward, a hearing was conducted
on January 29, 2002, to hear the request by St. Elizabeth’s for Mr.
Phenis to be transferred to jail. The judge ordered for another
mental-health examination for Mr. Phenis, this time conducted
by the District of Columbia’s Forensic Services Administration.

On January 31, 2002, Mr. Phenis was transferred from St. Eliza-
beth’s to the District of Columbia jail’s mental-health ward where
he was evaluated by Dr. Janet Fay-Dumaine. She determined that
Mr. Phenis’ condition worsened significantly when he was not
on medication and that he needed “intensive mental health and
substance abuse treatment.”

At Mr. Phenis’ sentencing hearing on March 20, 2002, he stated
that he had been “hallucinating and intoxicated at the time of the
fire.” He said he was “sick” and that his mother also was not well.
Judge Motley recommended that Mr. Phenis be sent to the Federal
Corrections Center in Butner, North Carolina to complete a 9- to
27-year sentence.

HOLDING ON APPEAL
In the appeal of Phenis vs. United States (2006), the judges found
that it was not clear if Phenis was fully informed of the circum-
stances surrounding the insanity defense or that he freely chose to
waive it. Therefore, the court remanded for a Frendak inquiry.

REASONING ON APPEAL
In addition to the belief that the Frendak inquiry had merit in the
Phenis vs. United States (2006), the judge offered an opinion on
the premise of the Frendak inquiry and stated, “Merely because
a criminal defendant may lack the capacity to waive an insanity
defense does not mean that it is necessarily the judge who should
decide whether that defense should be pursued.” The judge opined
that there are alternatives, e.g., appointing a guardian to investigate
and make the choice for the defendant, but that would be an issue
for a later time.

Ultimately, after the Frendak inquiry was conducted, and due
to Mr. Phenis’ continued vehement refusal of the insanity defense,
his guilty verdict was finally affirmed on June 25th, 2009. He was
returned to Allenwood Federal Penitentiary to serve out the term
of his sentence.

CASE OF ANDERS BREIVIK
The recent high-profile case of Mr. Anders Breivik, the Norwegian
gunman, poses an interesting perspective to the application (and
potential imposition) of the insanity defense. Mr. Breivik, admit-
tedly, killed 77 individuals in bomb and gun attacks on July 2011 in
Norway and admitted that he had done it in defense of his country.

On that day, Mr. Breivik drove a van loaded with explosives
to Central Oslo. He detonated these devices outside the office
of the Prime Minister, killing eight. Mr. Breivik then traveled
45 km away to Lake Northwest of Oslo, arriving there approx-
imately 90 min after his first attack. At the lake, he disguised
himself as a police officer and boarded a ferry headed to Utoeya
Island. After a 30-min trip, he disembarked and began shooting
participants of a Labor Party summer camp. The victims of his sav-
agery included teenagers attending the summer camp. Mr. Breivik
would later confess to all charges against him. However, he refused
to plead guilty to committing to any crime and instead claimed
“self-defense.”

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In his defense, Mr. Breivik explained that his actions were in
alignment with the views of extreme right wing militants, a grow-
ing and disenchanted faction in many European countries. Mr.
Breivik told the judges that he acted in defense of his nation and
though he conceded that his actions were cruel, he found them
necessary. Just before he began his killing spree, he released a mani-
festo online to his Facebook followers, and a link to a video on You
Tube through which he lambasted the “multiculturalists” whom
he claimed are aiding the destruction of European society.

It is most interesting that Breivik’s defense is steadfast on the
claim that the defendant’s actions were that of a sane man who
felt he needed to preserve the “basics of the European Christian
cultural legacy.” For followers of the case in the US, the theory of
defense in this case is decidedly unusual, as an insanity defense
can mean a mitigated sentence. It seems peculiar that a defense
lawyer would encourage a client to plead guilty with willful intent
when doing so would usually beckon the full wrath of the law.
However, the situation becomes clear upon examination of the
criminal justice system in Norway.

In Norway, a defendant found mentally ill at the time of a
crime, and is currently mentally ill, will be sent to a hospital for
treatment. In addition, public safety is considered a priority when
the patient is suffering from a mental disease or defect when the
crime is committed, but is not currently afflicted (7, 19).

Interestingly, Norway does not have the death penalty (20).
Norway’s legal system allows Mr. Breivik to face a maximum sen-
tence of 21 years if declared sane (though this can be increased
incrementally after completion of his sentence by the court’s dis-
cretion). Conversely, if he is found to be “insane,” he can be
sentenced to a mental institution for as long as he is considered
sick and dangerous to others. The prosecution for the case has
urged the court to consider Breivik insane, presumably, so that he
be held for a longer duration (perhaps, for rest of his life). On the
other hand, the defense is arguing for the prospect of a determinate
sentence brought about by a verdict of guilty (21, 22).

It is clear that Mr. Breivik wants his actions to be taken seri-
ously. Lene Wold of the magazine The Independent writes about
Breivik as a self-proclaimed political activist, and if he is sent to
a mental hospital that would be in Breivik’s own words, “the ulti-
mate humiliation. . . a fate worse than death.” Mr. Breivik has gone
on to opine that, “history shows, you have to commit a small bar-
barism to prevent a larger barbarism.” With this rationalization
of the crime, one could reasonably conjecture that Mr. Breivik is
hoping that he has set the proverbial ball rolling down the hill.
According to Geir Lippestad, counsel for the defense, Mr. Breivik’s
actions were not delusional but a “part of a political view shared by
other right wing extremists.” Olivier Truc of the magazine LaM-
onde quoted Mr. Lippestad’s revelation that, “We will place people
from extremist backgrounds on the witness stand to explain their
thought process in order to establish that there are others who,
without going as far as to commit the crime, share the same ide-
ology and way of thinking.” Lippestad said that “[w]hat we want
to show is that we are dealing with an ideology and that he is
not the only person to stand behind [those beliefs]; that he is
not a psychotic living in a separate world.” At its core, Breivik’s
view demonstrates a growing intolerance for what the extremists
perceive as the, “Muslim invasion.”

In his 1500 page manifesto, Mr. Breivik expounds, “I don’t
support the deportation of non-Muslims from Europe as long
as they are fully assimilated (I’m a supporter of many of the
Japanese/Taiwan/South Korean policies/principles). However, we
should take a break from mass immigration in general (as of 2008
numbers). Any future immigration needs to be strictly controlled
and exclusively non-Muslim.” This notion prompts the question
on whether or not public sentiment will have any effect on the
outcome of this trial. As it appears, the Norwegian public would
like to keep Mr. Breivik ensconced in a mental institution where
he presumably can be more effectively monitored and restrained.

The use of an insanity defense is controversial (23, 24) and is
especially controversial in a high-profile case like Anders Breivik.
Approximately 1% of defendants in criminal cases utilize it as a
defense, while juries in the United States reject about four of every
five insanity pleas (25). We do not have figures available for cir-
cumstances where the verdict is the result of “an agreed order”
but given the increasing burdens placed upon the criminal justice
system (and the propensity for most criminal verdicts to receive a
“plea bargain” disposition), we can conjecture that there are many.

This high-profile case has put Norwegian law under the micro-
scope. Dr. Landy Sparr of the Oregon Health and Science Univer-
sity offered some insight into Norway’s legal system as it relates
to the insanity defense. In the journal Live Science, the journal’s
senior editor Stephanie Pappas authored an article entitled, “What
‘Insanity’ Means for Norwegian Gunman.” She quotes Dr. Sparr’s
writing, “In Norway, defendants qualify for an insanity defense
only if they can prove they were in a state of psychosis and not
in control of their own actions during the crime” (25). Addition-
ally, she pointed out that “Some US states have a test for insanity
that is similar to the one used in Norway.” Parenthetically, these
“similar” state jurisdictions utilize an “irresistible impulse” or “voli-
tional prong.” Also, of note, it would appear that Mr. Breivik’s first
mental-health determination (announced on Tuesday, Novem-
ber 29, 2011) was apparently what would be considered to be a
competency to stand trial evaluation, in that it was a preliminary
proceeding to be followed by a criminal responsibility determi-
nation to be made at a later date. Karen Franklyn, in her online
commentary titled “In The News,” dated Wednesday April 16, 2012,
observed that Mr. Breivik had a pre-trial evaluation, “what we in
the US refer to as a competency hearing.”

Forty-six US states have some version of the insanity defense
on the books, with Utah, Montana, Idaho, and Kansas abolishing
it. This defense was designed to divert people from incarceration
who are incapable of understanding or controlling their criminal
actions, and to help them get treatment (26). A Frontline article,
entitled “From Daniel McNaughton to John Hinckley,” scrutinized
the insanity defense in its circuitous trajectory.

Mr. Breivik was assessed twice (11/2011 and 04/2012) by psy-
chiatrists and was given two different diagnoses: paranoid schiz-
ophrenia and narcissistic personality disorder. If Mr. Breivik had
the more serious diagnosis of paranoid schizophrenia, there has
been no information released to the public that verifies or confirms
antecedent behavior consistent with the condition.

Furthermore, Mr. Breivik never admitted to being preoccupied
with delusions or auditory hallucinations. Mr. Breivik planned his
actions meticulously over time. He equipped himself and selected

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with consideration specific targets to complete his mission: he
admitted to making calculations and decisions on whether or
not he should attack a school with younger children or attack
a Labor Party summer camp instead. For some, based on the
information presented, Mr. Breivik appeared to be in control of
his actions, as he rationally executed his crusade. As discussed
previously, the paranoid-type schizophrenia diagnosis announced
by the prosecutor on November 29, 2011 seems to have been a
strategic prosecutorial move, especially considering the lack of
corroborating history in the defendant.

Through this case, the question arises as to whether or not the
monstrosity of the crime automatically categorizes one as mentally
ill and, therefore, qualifies for the insanity defense. If it does, then
according to this logic, the terrorists who committed the atroci-
ties in Oklahoma City and on 9/11 may have all been insane. This
argument may be dismissed as rhetorical for at least two reasons:

1. An insanity defense is rarely successful when the person com-
mitting a crime has an accomplice (as was the case in the Okla-
homa City bombings and the attacks on New York, Washington,
and Shanksville.) [Ref. (27), p. 647].

2. In order to assert that someone is insane, the evidence should at
least be consistent with the minimum diagnostic criteria set for
that illness. If Mr. Breivik suffered from paranoid schizophre-
nia, it follows that he would have met the DSM-IV-TR criteria
for a diagnosis.

Additionally, Mr. Breivik prefaced in his manifesto that the
alacrity to judge him as insane would be an affront to those who are
mentally ill. If the legal system should find Mr. Breivik insane, one
could interpret this to be an apparent attempt to address or assuage
those who would prefer to avoid the stigma that intolerant Nor-
wegians like Breivik exist. On August 24, 2012, the court decided
that Anders Breivik was criminally responsible for his behavior.
The prosecution has registered its intent to appeal the decision.

The authors implore that all reasonable forensic mental-health
professionals have their attention focused on the way that the Nor-
wegian legal system handled this case. It will be interesting to see if
the Frendak inquiry makes its way as precedent into the Norwegian
court (should the prosecution appeal a verdict of insanity). As in
the Frendak and Phenis cases, forensic mental-health professionals
assigned to this case ought to consider engaging in a Frendak-like
inquiry prior to an official order or risk having blame attributed
to them after the fact for not having done so initially.

CURRENT CONSIDERATIONS
According to Dr. Miller in 2002, “At least 17 jurisdictions permit
insanity defenses to be entered over the objections of defendants”
(28). In the same document, he advised that “forensic evaluators”
consider “the implications of (the)” position (that) “the major
reason for permitting such imposed defenses is a policy prefer-
ence for preserving the dignity of the law.” Forensic evaluators do
not have as their major goal the preservation of the dignity of the
law. Rather, a forensic evaluator is motivated by the search for the
truth. Perhaps evaluators working in these 17 jurisdictions need
consider a pre-emptive exploration of the Frendak inquiry with
the defendant, whether asked to do so or not. Currently, 4 states

(Utah, Montana, Idaho, and Kansas) have disallowed the insanity
defense; therefore, forensic evaluators in these states need not be as
concerned that they will retroactively be criticized for neglecting
to conduct a Frendak inquiry, when they were not asked to do so
initially.

CONCLUSION
Paula Frendak’s case illustrated a situation where all parties but
her concurred with a determination of her insanity. The case out-
lined circumstances where an insanity defense might be imposed
on a competent defendant, setting the precedent for the “Frendak
inquiry.” Jurisdictions where Frendak is law have wrestled with
this concept ever since.

Jamar Phenis’ case illustrates a situation where an attempt was
made to use the “Frendak inquiry” ex post facto and on appeal.
This resulted in the guilty verdict being upheld, but raises the issue
of whether or not evaluators should engage in a Frendak inquiry
whether asked to or not.

Anders Breivik’s case illustrates a situation where, in a reverse
of the dominant paradigm, the prosecution attempted to obtain
a Frendak-like outcome. The prosecution and the defense were
not in agreement here. Mr. Breivik’s wishes to avoid the insanity
defense imposed upon him held sway and he was found guilty in
the trial court (29). The prosecution has registered intent to seek
appeal.

The three cases described are similar in the following ways: (1)
there were multiple pre-trial competency evaluations, (2) no Fren-
dak inquiry was ordered during the pre-trial period, (3) the defense
declined to mount an insanity defense or request an evaluation for
insanity, and (4) the crimes committed in each of the cases would
be classified as “Class-A” felonies in the United States. In 17 states
of the USA, the death penalty is a potential outcome when the jury
or judge issues a guilty verdict in some cases of a “Class-A felony.”
Outside of those states, a guilty verdict in a “Class-A” felony can
result in life in prison. The above cases were tried in jurisdictions
without the death penalty.

According to Dr. Miller in 2002, there were 17 jurisdictions
in the US where Frendak is law. Coincidently, there are currently
seventeen states where there is no death penalty. Further research
should be directed toward identifying those jurisdictions where
Frendak is law and at the same time, the death penalty is not
applied. In addition, efforts should be made to simplify the law
in this complex area by implementing a more rational approach
(30). Regardless of the co-occurrence of Frendak and life with-
out parole, in the search for truth, the informed evaluator would
be well advised to consider engaging the defendant in a Frendak
inquiry whether asked to do so or not.

ACKNOWLEDGMENTS
The authors thank Jared Elzey, CRA from Meharry Research
Concierge Services (Supported by NIH grants U54MD007593
and UL1TR000445) for comments, suggestions and for language
editing.

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Conflict of Interest Statement: The authors declare that the research was conducted
in the absence of any commercial or financial relationships that could be construed
as a potential conflict of interest.

Received: 04 September 2013; accepted: 14 November 2014; published online: 01
December 2014.
Citation: Richie WD, Alam F, Gazula L, Embrack H, Nathani M and Bailey RK (2014)

Frendak to Phenis to Breivik: an examination of the imposed insanity defense

. Front.
Psychiatry 5:172. doi: 10.3389/fpsyt.2014.00172
This article was submitted to Forensic Psychiatry, a section of the journal Frontiers in
Psychiatry.
Copyright © 2014 Richie, Alam, Gazula, Embrack, Nathani and Bailey . This is an
open-access article distributed under the terms of the Creative Commons Attribution
License (CC BY). The use, distribution or reproduction in other forums is permitted,
provided the original author(s) or licensor are credited and that the original publica-
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http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB

http://freescotland.net/2012/06/22/uk-world-news-anders-breivik-mass-murder-trial-killer-is-not-a-madman-lawyer-claims/

http://freescotland.net/2012/06/22/uk-world-news-anders-breivik-mass-murder-trial-killer-is-not-a-madman-lawyer-claims/

http://freescotland.net/2012/06/22/uk-world-news-anders-breivik-mass-murder-trial-killer-is-not-a-madman-lawyer-claims/

http://axcessnews.com/index.php/articles/show?id=21938

http://www.livescience.com/19767-insanity-norway-shooting-trial.html

http://www.livescience.com/19767-insanity-norway-shooting-trial.html

http://www.scientificamerican.com/article.cfm?id=the-insanity-verdict-on-trial

http://www.scientificamerican.com/article.cfm?id=the-insanity-verdict-on-trial

http://www.independent.co.uk/news/world/europe/inside-the-mind-of-anders-breivik-7646637.html

http://www.independent.co.uk/news/world/europe/inside-the-mind-of-anders-breivik-7646637.html

http://dx.doi.org/10.1080/10398560701352181

http://dx.doi.org/10.3389/fpsyt.2014.00172

http://creativecommons.org/licenses/by/4.0/

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http://www.frontiersin.org

http://www.frontiersin.org/Forensic_Psychiatry/archive

Frendak to Phenis to Breivik: an examination of the imposed insanity defense
Introduction
Frendak vs. United States (Frendak vs. United States, 1979)
Facts of Frendak vs. United States
Issue on appeal
Holding on appeal
Reasoning on appeal
Phenis vs. United States (District of Columbia Court of Appeals – Phenis vs. United States, 2006)
Facts of Phenis vs. United States
Holding on appeal
Reasoning on appeal
Case of anders breivik
Current considerations
Conclusion
Acknowledgments
References

International Journal of Law and Psychiatry

42-43 (2015) 19–30

Contents lists available at ScienceDirect

International Journal of Law and Psychiatry

The risks and benefits of disclosing psychotherapy records to the legal
system: What psychologists and patients need to know for
informed consent

Bruce Borkosky a,⁎, Deirdre M. Smith b,1
a 1800 Lakeview Drive, Sebring, FL 33870, United States
b University of Maine School of Law, 246 Deering Avenue, Portland, ME 04102, United States

⁎ Corresponding author. Tel.: +1 304 837 2782.
E-mail addresses: drborkosky@gmail.com (B. Borkosky

(D.M. Smith).
1 Tel.: +1 207 780 4376.
2 In this article, we do not distinguish between records

the patient’s private information. For the sake of brevity,
the Health Insurance Portability and Accountability A
Information (PHI).

http://dx.doi.org/10.1016/j.ijlp.2015.08.003
0160-2527/

© 2015 Elsevier Ltd. All rights reserved.

a b s t r a c t

a r t i c l e i n f o

Available online 4 October 2015

Keywords:
Psychotherapist–patient privilege
Informed consent
Waiver
Disclosure
PHI
Confidentiality

When psychologists release patient records to the legal system, the typical practice is to obtain the patient’s
signature on a consent form, but rarely is a formal informed-consent obtained from the patient. Although psy-
chologists are legally and ethically required to obtain informed consent for all services (including disclosure of
records), there are a number of barriers to obtaining truly informed consent. Furthermore, compared to disclo-
sures to nonlegal third parties, there are significantly greater risks when records are disclosed to the legal system.
For these reasons, true informed consent should be obtained from the patient when records are disclosed to the
legal system. A model for informed consent is proposed. This procedure should include a description of risks and
benefits of disclosing or refusing to disclose by the psychotherapist, an opportunity to ask questions, and indica-
tion by the patient of a freely made choice. Both psychotherapist and patient share decision making responsibil-
ities in our suggested model. The patient should be informed about potential harm to the therapeutic
relationship, if applicable. Several recommendations for practice are described, including appropriate communi-
cations with attorneys and the legal system. A sample form, for use by psychotherapists, is included.

© 2015 Elsevier Ltd. All rights reserved.

1. Introduction

When psychologists disclose confidential patient records (PHI)2 to the
legal system, it is common practice, consistent with legal mandates, to ob-
tain the patient’s signature on an authorization form. However, this pro-
cess may occur so hurriedly or perfunctorily that clients may not fully
understand what they have authorized or why, or may not realize that
the consent is voluntary (Perlman, 2012, p. 136). Some may sign authori-
zation forms against their wishes—due to of a variety of subtle and obvi-
ous pressures, or because no alternatives seem available (Damschroder
et al., 2007; Greenberg & Shuman, 1997; Hamberger, 2000, p. 90;
Knops, Legemate, Goossens, Bossuyt, & Ubbink, 2013; Koocher &
Keith-Spiegel, 2008; McSherry, 2004; Rosen, 1977). Many patients simply
blindly sign the documents and may view their signature more as a re-
quirement to obtain coverage or services than a personal choice
(Bemister & Dobson, 2011). Furthermore, guidelines regarding disclo-
sures of PHI to the legal system are lacking, making it difficult for psychol-
ogists to determine what risks to discuss. Truly informed consent (for any

), deirdre.smith@maine.edu

and testimony, as both concern
we utilize the term adopted by
ct (HIPAA)–Protected Health

aspect of medical treatment), widely accepted as a legal and ethical re-
quirement by the psychology community, requires a more careful process
than this (Sokol, 2009), and consent for disclosure of PHI should be no
exception.

In this article, we begin with a short review of the foundation of in-
formed consent, which arises from the concepts of privacy, psychother-
apy, and individual autonomy. Although a required function of
psychotherapy, there are a number of barriers to obtaining fully in-
formed consent. Considerable vagueness and disagreement about the
legal definition of informed consent subsists. Psychologists do not al-
ways effectively communicate the information patients need to make
decisions. Even when they do, patients may not understand or remem-
ber that information. Informed consent is more difficult when it in-
volves disclosures to the legal system, because the requirements for
such disclosures are often conflated with the requirements for disclo-
sures to nonlegal third parties. Furthermore, there is a greater need for
informed consent regarding disclosures to the legal system, due to
more serious consequences inherent in the legal system. Additionally,
the legal system has different goals from those of psychotherapy, and
it may not adequately protect the privacy rights of patients. We con-
clude the article by describing a number of risks and benefits of disclos-
ing (or refusing to disclose) PHI to the legal system, and suggest some
recommendations for practice. Appendix A contains a model form for
use in an informed consent procedure when disclosure of PHI to the
legal system is being considered.

http://crossmark.crossref.org/dialog/?doi=10.1016/j.ijlp.2015.08.003&domain=pdf

http://dx.doi.org/10.1016/j.ijlp.2015.08.003

mailto:drborkosky@gmail.com

mailto:deirdre.smith@maine.edu

http://dx.doi.org/10.1016/j.ijlp.2015.08.003

http://www.sciencedirect.com/science/journal/01602527

3 A few states have adopted a “subjective” standard; disclosure of risks and benefits un-
der this standard are those that are important to the particular patient making the decision
(Berg, Appelbaum, Lidz, & Parker, 2001).

20 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

2. The requirement for informed consent, generally

It is well established that healthcare providers have an ethical and
legal obligation to obtain informed consent prior to involving patients in
any proposed services (Appelbaum, 2007, p. 1834). This practice is widely
accepted as one of the key duties of any good health professional and
demonstrates a respect for the patient’s right to make informed choices
(Doyal, 2001), consistent with most ethics codes. For example, informed
consent is required by the ethics codes of every health care profession, in-
cluding the American Psychological Association (APA, 2002, standards
3.10, 8.02, 8.03, 9.03, and 10.01), the American Psychiatric Association
(APA, 2013, Section 2 standard 10 & 11), and the American Medical Asso-
ciation, (AMA 2012, Principles 2.015, 8.08, 8.082, 8.085, 8.121, 10.01,
10.015, 10.02). Most psycholegal commentators assume that the burden
of securing consent falls on the evaluator (e.g., Foote & Shuman, 2006);
it is such an important part of psychology practice that the current version
of the Ethical Principles of Psychologists (APA, 2002) mentions the term
no less than 37 times. Because psychologists are required to obtain in-
formed consent from all patients, the documentation of informed consent
is likely the first formal record of those services (Bemister & Dobson,
2011; Foote & Goodman-Delahunty, 2005).

The reason this requirement was taken on by professionals is due to
the power imbalance between doctor and patient; doctors generally
have vastly superior knowledge, whereas patients are very often made
even more vulnerable by their illness. Providing information and oppor-
tunity for decision making on the part of the patient “will help to redress
the power imbalance problems” (Hall, Bobinski, & Orentlicher, 2005,
p. 200). Current understandings of informed consent may also (perhaps
to the detriment of many patients) overlook non-Western cultural
norms and values (see, e.g., Blackhall, Murphy, Frank, Michel, & Azen,
1995; Carrese & Rhodes, 1995; Gostin, 1995; Miller, 1992).

2.1. Privacy is the foundation of both psychotherapy and informed consent

The foundation of psychotherapy is the trust that is engendered by the
confidentiality between the psychologist and the patient; it has been said
to be “so essential … that psychotherapy is rendered worthless in its ab-
sence” (Paruch, 2009, p. 519, citing the APA brief in Jaffee v. Redmond). The
need for confidentiality is critical, because “psychotherapy is the context
in which, perhaps more than in any other, a person is most likely to reveal
unflattering information about herself, as well as her fears, vulnerabilities,
guilt, disappointments, doubts, and anxieties” (Smith, 2008, p. 79; see also
Taylor v. United States, 1955). Effective psychotherapy demands “an at-
mosphere of confidence and trust in which the patient is willing to
make a frank and complete disclosure of facts, emotions, memories, and
fears” (Jaffee v. Redmond, 1996, at 10); the “mere possibility” of a breach
of confidentiality could obstruct the development of the treatment rela-
tionship. “The mental health of our citizenry, no less than its physical
health, is a public good of transcendent importance” (Paruch, 2009,
p. 516, citing Jaffee).

These sentiments reflect a broad social policy (Perlman, 2012,
p. 129) in support of treatment for mental disorders, based on the foun-
dation that patients have a right to control the disclosure of their private
information; this right is closely tied to the legal concept of personal pri-
vacy (Paruch, 2009). Shapiro and Smith (2011) note “…the importance
of written waivers of confidentiality and that therapists should exercise
the greatest caution when a waiver will not directly benefit the client”
(p. 74). Thus, when confidential information is disclosed to third parties,
informed consent should be a part of the process in the same way that
patients consent to therapy itself (Nagy, 2011, p. 74).

2.2. Informed consent is also a legal requirement

Compared to privacy rights, consent rights are relatively new. For
many decades, at least as far back as the 1800s, patient consent was lim-
ited to the right to refuse, called simple consent; operating on a patient

without simple consent was governed by the law of battery. This was ex-
emplified by the New York Court of Appeals in Schloendorff v. Society of
New York Hospital (1914): “Every human being of adult years and
sound mind has a right to determine what shall be done with his own
body” (at 93). What made Schloendorff so memorable was not that the
Court harshly rebuked the doctor (equating his actions with trespassing);
it was having to remind physicians, as late as the 20th century, “of such
elementary restraints on their professional authority in a democratic soci-
ety (Katz, 1984, p. 52).

As ethical considerations developed further, the California appeals
court in Salgo v. Leland Stanford Jr et al. (1957) introduced the term in-
formed consent (but did not define it). In Salgo, the doctor performed a rel-
atively new procedure that resulted in the patient becoming paralyzed.
Although there were substantial risks of paralysis inherent in the pro-
posed procedure, the doctor did not disclose those risks, relying on the
tradition that the doctor could use their discretion about what informa-
tion to disclose to the patient. Salgo did not ultimately resolve the ques-
tion of what information should be provided to the patient, but it
acknowledged that the interests of doctors and patients are not perfectly
aligned, and stimulated a great debate about where that boundary should
be placed.

Informed consent reached a watershed when a federal appeals court
in Canterbury v. Spence (1972) completely rejected the doctor’s profes-
sional discretion to withhold information from the patient. To
Schloendorff’s disclosure requirement, Judge Robinson added a require-
ment for free choice (Katz, 1984, p. 72). Free choice, theoretically anyway,
requires that the patient obtain information sufficient to make that
choice. The Canterbury decision, now using negligence law, focused signif-
icantly on the patient’s decision-making process and the importance of
the ability to weigh the risks and benefits (King & Moulton, 2006), now
known as the “reasonable patient” standard (Boumil & Hattis, 2011).3

Canterbury may not be the final word, however, because, although the
court moved the needle, the decision it did not resolve the conflict be-
tween “the need for medical knowledge to elucidate the risks of and alter-
natives to a proposed procedure in the light of professional experience
with the need for medical judgment to establish the limits of appropriate
disclosure to patients” (Katz, 1984, p. 74).

Decisions continued to define the requirements for informed consent,
making it a fiduciary duty (Moore v. Regents of the University of California,
1990) to disclose any and all information that is relevant to the patient’s
decision (Cobbs v. Grant, 1972), and courts recognize a constitutionally
protected liberty interest to refuse treatment, even where such refusal
might result in death (Cruzan v. Missouri DOH, 1990). Privacy, the ethical
foundation of psychotherapy, is also a constitutional right (Griswold v.
Connecticut, 1965; Roe v. Wade, 1973) that includes the right of self-
determination. Thus, informed consent and confidentiality are parallel
and corollary rights (Ebert, 2012; Winick, 1992).

2.3. Informed consent is also required in forensic contexts

Not only is informed consent a requirement for purposes of treatment
(APA, 2002, standard 10.01), but consent is at least as important in foren-
sic cases (e.g., Gold & Shuman, 2009)—particularly since patients may
(wrongly) assume that their confidentiality will prevent compelled dis-
closure in court-related cases (Greenberg & Shuman, 1997). The
American Psychological Association’s Specialty Guidelines use the term
eight times (APA, 2013). The American Academy of Psychiatry and Law
requires consent via Guideline III (AAPL, 2005). Informed consent for fo-
rensic services may be the same as or may differ from the clinical context
(Ebert, 2012). For example, a criminal defendant has a constitutional right
to be warned how information obtained during a psychological evalua-
tion may be used in the case (Estelle v. Smith, 1981). A multitude of

4 Two states, MN and NM, are classified as having a hybrid standard.

21B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

informational issues should be addressed during the informed consent
process for a forensic evaluation—including legal issues, the limits of con-
fidentiality, who may have access to the information obtained, and what
will be done with it (Foote & Shuman, 2006; Heilbrun, 2001; Knapp &
VandeCreek, 2001; Melton, Petrila, Poythress, & Slobogin, 2007).

3. Barriers to obtaining fully informed consent

3.1. Psychologist-based barriers to informed consent, generally

A number of factors hamper informed consent, but these only serve to
demonstrate a need for increased efforts to ensure that consent is truly in-
formed. Psychologists may be one of those impediments. Some may min-
imize the need for, or resist performing fully informed consent, because
they do not agree that informed consent is desirable. The practice has
been called ‘bad medicine’ and ‘absurd’, based upon arguments that in-
formed consent in the psychotherapy context will frighten patients, that
they won’t be able to understand or remember the information provided,
and that the psychologist’s responsibility for the patient’s well-being is in-
compatible with patient autonomy (Meisel & Kuczewski, 1996). Others
believe that it may interfere with the therapeutic relationship or hinder
treatment (Handelsman, Kemper, Kesson-Craig, McLain, & Johnsrud,
1986; Kimmons, 1980), that disclosure of PHI is too routine to warrant a
formal informed consent, or they lack the time needed for an extensive
discussion about every procedure (Braddock, Fihn, Levinson, Jonsen, &
Pearlman, 1997; Knops et al., 2013). Psychologists may feel a need to safe-
guard material from inappropriate release, resisting any disclosure to the
legal system, thus abrogating patient choice (Borkosky, 2014; Koocher &
Keith-Spiegel, 2008).

Determination of patient capacity to consent is problematic. While
only 3–25% of mental health consultations in hospital settings involve
questions about patients’ competence to make treatment-related deci-
sions, an estimated 48% of hospital patients are judged incompetent
(Appelbaum, 2007, pp. 1834-35). The reliability of unstructured judg-
ments of competence is poor (Appelbaum, 2007, p. 1835), and the defini-
tion of competency and the degree of competency required of patients in
order to exercise informed consent is uncertain (Winick, 1992). There ex-
ists no authoritative framework for thinking about legal competence, no
clear standards for determining it, no national standards, and no formal
practice guidelines from professional societies (Appelbaum, 2007,
p. 1838). Some psychologists may improperly equate diagnosis of serious
mental illness with incapacity (Appelbaum, 2007, p. 1835).

Procedure standards for disclosing information about potential risks
are inadequate, and there is little consensus within the field about
which potential risks to disclose (Sarkozy, 2010). Furthermore, informed
consent standards were developed primarily from physical medicine, and
the degree to which they apply to psychology is controversial (Knapp &
VandeCreek, 2006). Psychologists may not know which standard (reason-
able-physician or reasonable-patient) to apply when determining what
information to disclose. As a result, written consent documents may
omit relevant information or may not permit patients to apply the infor-
mation to their specific decisions about treatment (Appelbaum, 2007,
p. 1835).

Even if psychologists agreed about the content of an informed consent
disclosure, there is professional disagreement about the appropriate care
that should be provided for any particular problem—the type, nature, fre-
quency, and length of treatment varies considerably across geographic re-
gions, and even by facility (King & Moulton, 2006). If providers
recommend different treatment, their informed consent disclosures
would similarly differ. Practices vary considerably in regards to informed
consent procedures and disclosure of risks (Handelsman et al., 1986; Noll
& Haugan, 1985), and the most common source of patient dissatisfaction
has been the failure to provide sufficient information about the patient’s
condition and available treatment options (King & Moulton, 2006).

Furthermore, psychologists do not always effectively communicate
the information needed by patients, leading to poor understanding

(Doyal, 2002; Hall, 2001), even in circumstances where a high standard
of communication should be required (such as risk of death) (Doyal,
2001). Indeed, the evidence of poor communication is so strong that it
is unclear what sense to make of the research that suggests that patients
are poor recipients of information (Doyal, 2001).

3.2. Barriers due to limitations of the legal definition of informed consent,
generally

Because most statutes and court opinions addressing competency do
not provide a sufficient analysis of the concept of informed consent and
its elements, or clear standards for determining it, there is no “authorita-
tive framework for thinking about legal competence and clear standards
for determining it” (Berg, Appelbaum, & Grisso, 1995, p. 347). Statutes
that specify a standard for competence are often vague, and offer little
practical guidance for those who must apply it (Berg et al., 1995,
p. 348). Terms such as “understanding” or “rationality” may be poorly de-
fined and used indiscriminately. States are almost evenly split between
the physician-based standard (25 states) and the patient-based standard
(23 states and the District of Columbia), and there is considerable variabil-
ity in statutory language, even within categories (King & Moulton, 2006).4

These differences raise significant questions about the validity of the ‘rea-
sonably prudent doctor’ standard for disclosure (King & Moulton, 2006).

3.3. Patient-based barriers to informed consent, generally

Other causes for failure to obtain informed consent may lie with pa-
tients; research has shown a number of problems with patients’ reception
and retention of information, as well as their ability to make decisions. As
discussed earlier, the process of consent may be hurried or perfunctory,
and patients may feel coerced into authorizing disclosure of their PHI. Cli-
ents are often uneducated about their rights and responsibilities related to
disclosure of clinical information (Hamberger, 2000, p. 91), and they may
not have accurate knowledge of the concepts of confidentiality or in-
formed consent to release confidential information (Hamberger, 2000,
p. 90; Baird & Rupert, 1987; Jagim, Wittman, & Noll, 1978; Miller &
Thelen, 1986; Schmid, Appelbaum, Roth, & Lidz, 1983). Patients may
wrongly assume that confidentiality requirements broadly apply in
court-related cases (Greenberg & Shuman, 1997), may be unaware
whether their jurisdiction has a privilege statute or rule, and/or may be-
lieve that the psychologist’s ethics code provides adequate assurances of
confidentiality (Paruch, 2009).

Patients may not understand the implications of their consent to dis-
close information, and may not fully realize that they are permitting
third parties to use and share their information (Koocher & Keith-
Spiegel, 2008, p. 212). They may not have a sufficient knowledge of
their rights (Greenberg & Shuman, 1997; Hamberger, 2000, p. 90;
Paruch, 2009), and often do not have sufficiently complete or accurate
knowledge of the contents of their PHI to make an informed decision
about whether to disclose (DeKraai & Sales, 1982; Hamberger, 2000, pp.
90-91). Some patients completely abdicate their decision making authority,
explicitly stating that they want their doctor to make the final decision
(Doyal, 2002).

Patients are sometimes unable to understand clinical information and
they may not believe that the consent process is of much moral (in the
bioethics sense) importance to them (Doyal, 2002). A high percentage
of patients make fundamental errors in risk evaluation, even when pre-
sented with the simplest information (Doyal, 2001). Patients may not
fully comprehend even basic information about conditions, prognoses,
and treatments, let alone risks (Doyal, 2001). Even when patients do un-
derstand benefits and risks, it is often quickly forgotten—so much so that
it is unclear how it could have ever been a foundation for coherent delib-
eration about treatment choices (Doyal, 2001). In various studies, only

22 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

21% to 86% were able to recall the potential risks and complications of
their medical procedure (Sherlock & Brownie, 2014); 11 studies of risk
comprehension for surgery revealed that only 29–36% of patients had ad-
equate comprehension (Falagas, Korbila, Giannopoulou, Kondilis, &
Peppas, 2009). Patients’ recall of the information given can be consider-
ably less than the information doctors remember providing; for example,
only 9% of patients recalled discussing the risk of the infection in blood
transfusion, and only 12% of patients identified fever as a risk (Sherlock
& Brownie, 2014).

Mental disorders such as dementia, neuropsychological impair-
ments, schizophrenia, depression, and bipolar disorder have relatively
high rates of incompetence. In terms of mental health symptoms, lack of
insight (the lack of awareness of illness and the need for treatment) has
been reported to be the strongest predictor of incapacity (Appelbaum,
2007, p. 1835).

4. The need for informed consent for disclosures to the legal system

Not only is informed consent for psychotherapy an obligation that is
sometimes difficult to achieve, informed consent regarding disclosures
to the legal system should be considered a separate and distinct need
(Dwyer, 2012, p. 112). The requirements for such disclosures differ signif-
icantly from disclosures to nonlegal third parties, the risks are substantial-
ly greater, and the patient’s privacy rights are not always protected because
they must be balanced against the legal system’s need for information.

4.1. Disclosure problems resulting from conflating confidentiality and
privilege

Professionals of all types (scholars, legislators,5 attorneys, judges, psy-
chologists, and Boards of Psychology) have difficulty distinguishing be-
tween confidentiality and privilege (Bemister & Dobson, 2012; Borkosky
& Thomas, 2013; Bernstein & Hartsell, 2005; Boynton v. Burglass, 1991;
Kasdaglis v. DOH, 2002; Koocher & Keith-Spiegel, 2008; Perlman, 2012,
p. 133). However, the requirements for disclosures to the legal system dif-
fer significantly from disclosures to nonlegal third parties; this difference
is often not appreciated, increasing patient difficulty in understanding the
risks and benefits of disclosure. Some psychologists may assume that psy-
chotherapy notes (protected by HIPAA) are not discoverable in court and
are then unpleasantly surprised when a subpoena duces tecum requires
them to appear in court with ‘any and all documents, reports, and notes’
(Evenson v. Hartford, 2007; Koocher & Keith-Spiegel, 2008, p. 209).

Others, for a variety of reasons, wrongly disclose patient information
without obtaining patient consent. In Florida, eight mental health pro-
fessionals were sanctioned, over a 7-year period, for such behavior.6 In
another case, both the psychologist and the patient’s attorney failed to
assert privilege, thereby nullifying the minor patient’s right to assert
privilege (Hughes v. Schatzberg, 2004). Statutes often do not provide a
clear explanation about the requirements for disclosure to the legal sys-
tem when two or more clients are seen simultaneously in therapy; priv-
ilege may only cover communications that are uttered in confidence, so
when statements are made in the presence of another family member,
the confidentiality of such communications is unclear (Margolin,
1982). The applicability of the psychotherapist–patient privilege is
often unclear and highly variable across jurisdictions (e.g., in custody
cases) (Boumil, Fretias, & Freitas, 2012; Melton et al., 2007)

4.2. Improper disclosures can be harmful to patients

The goals of psychotherapy and law differ greatly. PHI is created
throughout a course of psychotherapy, with the purpose of documenting
the emergence and resolution of the patient’s thoughts and feelings,

5 Section 490.0147, Fla. Stats.
6 DOH cases 2001-17158, 2004-27669, 2004-28871, 2004-33680, 2005-64734, 2006-

25721, 2006-28836, 2008-4313.

especially those that are conflictual and ambivalent. The purpose of
the legal system, on the other hand, is to assign civil or criminal lia-
bility or to make other decisions as a means to resolve disputes.
Thus, PHI could easily be misconstrued or misused by the legal sys-
tem (and therefore be harmful to the patient) (Dwyer, 2012, pp.
112-13; Hamberger, 2000, p. 91). For example, in a typical personal
injury civil case (tort, civil rights, or discrimination case), one of a
plaintiff’s attorney’s first tasks is to ask the client to list all current
and recent health care providers, including treating psychologists.
Information regarding mental health treatment may also be sought
in child custody or child welfare cases (where a parent’s capacity
to provide a safe and stable home for a child is at issue), or in crim-
inal matters (where there may be questions about a defendant’s
competence or mental state at the time of the alleged crime). Mental
health PHI could conceivably be sought when the patient becomes
involved in almost any type of litigation, such as determinations of
civil competency, fitness for duty, guardianship, violence risk, juve-
nile delinquency, disability, and disputes regarding educational ac-
commodation and employment. Similarly, wrongful refusal to
disclose PHI for patients in family court risks loss of access to their
children or parental rights (Dwyer, 2012, p. 110).

Attorneys may ask clients to sign a stack of medical information
releases, usually blank, which attorneys will then complete and
send out with a boilerplate cover letter to each of those providers
asking that all of the clients’ PHI be provided to the attorneys.
This step may be so routine that it is often treated as unimportant
(Beightol, 2013). However, there can be significant consequences
to a patient when those health care providers release the patient’s
PHI, particularly in the case of disclosure of PHI from a psychologist;
such records can be powerful tools if they end up in the hands of the
opposing attorney. As discussed below, there are several potential
implications flowing from the release of mental health PHI, some
of which the attorney’s client (the patient) may not anticipate or
understand at the time she/he signs that blank release form, if not
clearly explained by the attorney.

The legal system actors discussed herein (patient’s attorney, op-
posing attorney, and the court) each have different roles with re-
spect to a patient’s privacy right and preservation of the
psychotherapist–patient privilege. The patient’s attorney has obli-
gations to identify and gather information and potential evidence
that could be used to support the patient’s position in the litigation,
and to advise the patient about the implications of any releases or
waivers as part of that process. The attorney also has a duty to pro-
tect the patient’s privacy by releasing only that information needed
to protect the patient’s position in the litigation, and, by advocating
on behalf of the patient to ensure that his/her privacy is otherwise
respected throughout the litigation process. As we shall see, these
responsibilities may not always be fulfilled.

The opposing counsel’s duty is to act in the best interests of his/
her client, such as the person or entity alleged to have caused an in-
jury to a personal injury plaintiff, the other parent in a custody dis-
pute, or the state (in an insanity determination). This duty compels
the opposing attorney to obtain as much information as possible
about a patient’s mental health, and to seek (and perhaps use)
any other information that may support the opposing position.
The court has a role in resolving any disputes about access to, or
use of, mental health PHI, to the extent such disputes are presented
to it by one or both parties.

4.2.1. PHI and psychotherapist testimony can support or undermine the
patient’s legal claims

Patients’ attorneys obtain their clients’ PHI for a range of reasons.
The attorney may use PHI to advance the patient’s case, such as includ-
ing a claim for mental/emotional injuries as part of a personal injury
case, or to present evidence of mitigation in a criminal matter. A patient
involved in a child custody case may offer PHI to demonstrate that she/

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he is sufficiently healthy and stable to care for a child appropriately or
to refute allegations of unfitness. Regardless of the type of case in-
volved, if a litigant’s psychotherapist is listed as a potential witness,
disclosure of the patient’s PHI may be required in order to present
that expert’s opinion at trial (Fed. R. Civ. P. 26 (a)(2); Fed. R. Crim. P.
16(b); Shuman, 2005, p. 6-29; Magee v. Paul Revere Life Ins. Co.,
1998). PHI can confirm the dates of treatment, which may establish
the amount of damages tied to medical expenses or confirm that the
patient has maintained consistency in treatment. If helpful to the
case, they can be used to obtain a significant settlement or judgment
(Beightol, 2013; Smith, 2008, p. 88).

Although the admissibility of PHI at trial may be limited by evidence
rules, they can play an important role; a well-documented record of
treatment can provide support for an expert’s opinion, whereas deficient
PHI may subject the expert’s opinion to challenge for failure of an inad-
equate basis (Read, 1996). If a testifying expert called by the patient is a
forensic psychologist (i.e., not a psychotherapist), review of the patient’s
PHI by the examiner is critical for presenting a credible opinion that is
not only based on a clinical examiner of the patient, but which also
takes into account assessments by treating mental health providers
(Shuman, 2005, 2-43, 2-44). Absent such review of PHI, the expert’s
opinion is subject to attack for being manufactured strictly for the trial
(Read, 1996).

4.2.2. Opposing attorneys may use patients’ mental health histories to un-
dermine their claims

Most court rules permit broad “discovery” (information seeking) by
the parties, prior to trial (Fed. R. Civ. P. 26(b)); this discovery process is
essential to developing an effective strategy by exploring and exploiting
all possible routes to advance a party’s position. In cases where the
patient’s mental health history and treatment might possibly be rele-
vant, attorneys will usually try to obtain the patient’s PHI. For example,
in a personal injury case, the defense attorney will try to use the PHI in
order to mitigate or respond to the patient’s claim (Bales and Ray,
1997). Similarly, the attorney representing the other parent in a custody
dispute (or, in the case of a protective custody case, the state) may seek
PHI in order to assert that the patient’s mental illness impairs his/her
parenting capacity.

Accordingly, just as a plaintiff’s attorney may routinely obtain a
client’s PHI as part of an initial case development, opposing attorneys
may routinely issue a broadly worded discovery request for the disclo-
sure of the patient’s entire PHI, including psychotherapy records (Fed.
R. Civ. P. 34(a); Fitzpatrick, 2006, p. 2484; McDonald & Kulick, 2001,
p. 111). Alternatively, the opposing side may seek to require the patient
to execute releases for all healthcare providers, who can then be directly
served with a subpoena (Fitzpatrick, 2006, pp. 2479, 2484). Opposing
attorneys have strong incentives to gather extensive information
about the patient and his/her background, and there is wide range of
potential valuable uses of a litigant’s PHI (specifically), as part of an
overall strategy for defending cases, such as a personal injury or child
custody claim (Read, 1996).

For example, if the patient alleges to have experienced emotional
distress or a psychological injury due to the defendant’s wrongful con-
duct, the patient’s PHI could undermine their claim if they do not re-
flect harm, they suggest that the injury or distress is not as severe as
claimed, or that there is an alternative cause for the injury (Smith,
2008, p. 86). The defense could use a forensic expert to offer testimony
to challenge the patient’s claims, including observations based upon
what she/he finds (or does not find) in the patient’s PHI (McDonald
& Kulick, 2001, pp. 271-272; Melton et al., 2007, pp. 53–54). Prosecu-
tors often take a similar approach in criminal matters to challenge a
defendant’s competency claim or insanity defense (People v. Knuckles,
1995, at 127–129).

Furthermore, a patient/plaintiff may have described the events at
issue in the litigation to their therapist. To the extent that those state-
ments are inconsistent with other statements or trial testimony, the

statements in the PHI could be used to suggest that the patient has
told different stories at different times (thereby calling his/her credibil-
ity into question) (Read, 1996, p. 19). The PHI may include statements
by the plaintiff reflecting feelings about the litigation itself, which
could be used to allege alternative motivations for the lawsuit
(e.g., Maday v. Public Libraries of Saginaw, 2007; Murray v. Bd. of
Education, 2001, at 156).

In addition, to the extent that the PHI demonstrate that the plaintiff
had a preexisting mental health diagnosis or sources of stress in his/
her life other than the event at issue in the litigation (e.g. work, rela-
tionship, or family problems), a defense attorney could use such evi-
dence to argue that the defendant should not be liable for emotional
damages or that the damages stemming from the defendant’s liability
should be reduced or apportioned (Foote & Goodman-Delahunty,
2005, p. 86; King, 1981, pp. 1356–1357; Mason & Ekman, 1998,
p. 495; Smith, 2010, p. 762). Accordingly, a defense attorney may as-
sert that she is entitled to obtain the patient’s entire mental health his-
tory on the basis that it may be relevant to show potential alternative
sources of causation for emotional injuries. Defense attorneys try to
obtain psychotherapy PHI because they may reveal “prior or concur-
rent alternative stressors, such as childhood sexual abuse or marital
discord,” which could arguably be a contributing or alternative cause
of emotional distress (McDonald & Kulick, 2001, p. 272). Using this ap-
proach, for example, defendants have successfully sought and obtained
marital counseling PHI in loss of consortium claims (e.g., Price v. County
of San Diego, 1996, at 622-23). Defense experts often request access to
as much information as possible, to support their opinion about the
causation of the patient’s psychological condition (Smith, 2010,
p. 769).

An opposing attorney may also offer evidence of a patient’s history of
mental illness to suggest that the patient’s conduct (e.g., acting irrational-
ly), during the events in question, was caused by such illness, or that a
patient’s personality disorder was a contributing factor in the events
(McDonald & Kulick, 2001; Smith, 2010). For example, the defendants
in a police excessive force case successfully argued that they should be
permitted to offer testimony of the plaintiff’s psychiatric history to sug-
gest plaintiff’s “state of mind” the night of the alleged assault by the defen-
dants (Bemben v. Hunt, 1995).

In the child custody context, courts are usually willing to admit evi-
dence of a parent’s mental health history, because the central issue to
be resolved—what outcome would be in the “best interests of the
child”—sets forth a broad interpretation of what constitutes “relevant” ev-
idence to answer such question (Paruch, 2009; Waits, 2001). In fact, some
courts will not even recognize the psychotherapist–patient privilege in a
family law case because they consider the importance of admitting infor-
mation about the parties’ parenting capacities as overriding any privacy
rights (Paruch, 2009; Waits, 2001). Similarly, some jurisdictions have no
privilege at all (for either defendant or victim) in criminal cases
(e.g., Tex Oc. Code Ann §159.003).

Finally, an attorney may attempt to use a patient’s mental health
history to undermine his/her credibility as a trial witness, such as to
suggest that the patient’s statements are delusional or that she/he
had an inaccurate perception of the events in question (McDonald &
Kulick, 2001; Smith, 2010). Credibility is often a central issue in trials,
where the parties present competing, inconsistent narratives regarding
events and their bearing on the defendant’s alleged liability. For this
reason, criminal defense attorneys often attempt to compel disclosure
of an alleged victim’s mental health history for use at trial (Smith,
2010). This tactic is less common in civil litigation than in the criminal
realm, but reported opinions indicate that it is a practice permitted by
at least some courts (e.g., Frazier v. Topeka Metal Specialties et al., 2001;
Revels v. Vincenz et al., 2004; Sudtelgte v. Reno No. 90-1016-CV-W-6,
1994).

Even if the opposing attorney does not expressly argue that the court
should use the patient’s mental health history as a basis to discredit his/
her testimony (or to conclude that mental illness was a contributing

24 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

factor to the events in question), the stigma and prejudice that a mental
health diagnosis carries may nonetheless influence jurors’ and judges’
perception of the patient and therefore their conclusions about his/her
position in the case (Smith, 2010). Thus, the opposing attorney has an
incentive to come up with any argument that the patient’s mental
health history is relevant to an issue at trial.

In addition, a litigant–patient may be embarrassed or humiliated
by the disclosure of personal details contained in such PHI (Dwyer,
2012, p. 112; Smith, 2008). A patient might be questioned about
his/her mental health history, specific entries in the therapist’s
PHI (Bernabei & Schroeder, 2004), or even prior abortions, sexual
orientation, or marital problems (Robinson, 1994). A treating psy-
chologist may also be deposed, through which she/he may be
questioned about the significance of references and details
contained in the PHI (Read, 1996, pp. 18-19).

An additional implication of the disclosure of mental health PHI is
that, through use of public information requests (or even simple inter-
net searches) about the litigation, the personal details may become
known to the patient’s family, friends, coworkers and others, which
can potentially injure the patient’s reputation and relationships (Jacob
& Powers, 2009). The prospect of disclosure of, and confrontation
with, this PHI at trial may intimidate a patient into settling early and
perhaps for less money that she/he had hoped to recover or the case is
worth. Alternatively, she/he may attempt to structure his/her claims
so as to not trigger a compelled disclosure or use of his/her mental
health history, thereby limiting the compensation she/he will receive
for his/her injuries (Smith, 2008; Streseman, 1995).

4.2.3. The courts’ role in the disclosure and use of PHI is not protective of
patients

Perhaps surprisingly, courts have little involvement in the protection
of patient rights. Consistent with the adversarial system of litigation in
the United States, courts do not become involved with disputes
concerning disclosure of PHI unless the parties (or, in more unusual situ-
ations, a psychologist) bring a dispute to the court’s attention. This is be-
cause most courts expect the parties’ attorneys to participate in discovery
without court supervision and only to seek the court’s assistance after
good faith attempts to resolve such disputes have failed (Fed. R. Civ. P.
37(a)). Judges place primary responsibility on the patient, psychologists,
and attorneys to raise the issues implicating a patient’s privacy rights.
The result of this approach is that courts do not, in fact cannot, have a
role in protecting a patient’s rights unless and until a party raises a dis-
pute. Disputes generally begin when a patient or his/her psychologist
(Wright et al., 2005; Hughes v. Schatzberg, 2004) refuses to provide PHI
in response to a discovery request or subpoena (Smith, 2008). The law
does not always provide clear guidance for judges on how to resolve
such disputes (and the easy questions do not usually need to reach a
judge), so the outcomes can be difficult to predict (Smith, 2008). As
discussed above, courts generally admit mental health evidence, such as
that relevant to a personal injury claim (Smith, 2010) or parenting ability
(Paruch, 2009).

Defense attorneys in personal injury cases may assert that disclosure
of some PHI (such as the PHI of a psychotherapist) should be considered
to have “opened the door” to compelled disclosure of a plaintiff’s entire
mental health history (Anderson, 2013; Fitzgerald v. Cassil, 2003; Smith,
2010). Trial courts (even within the same federal district) take a range
of approaches to questions of whether a plaintiff’s claim for emotional dis-
tress damages can, in itself, constitute a broad waiver of the psychothera-
pist–patient privilege, thereby entitling a defendant to disclosure of PHI
(Anderson, 2013; Vanderbilt v. Town of Chilmark, 1997) (narrow approach
to waiver); Doe v. City of Chula Vista, 1999) (broad approach to waiver). In
short, patients who have authorized only a very limited release of infor-
mation about their treatment cannot assume that courts will step in to
protect their confidentiality and privilege rights against compelled disclo-
sure of additional information.

4.2.4. The patient’s attorney may not adequately protect the patient’s rights
Although the patient’s attorney may anticipate when a patient’s

mental health history will be the subject of a discovery request, far too
few attorneys discuss the implications of disclosure of PHI with their cli-
ent when they ask the client to authorize release. The uncertainty creat-
ed by the varied and case-specific court rulings can make it difficult for
the attorney to provide any degree of assurance to the patient regarding
whether and to what extent his/her mental health history may be sub-
ject to compelled disclosure and use during discovery and/or at trial.

Because the retrieval and disclosure of medical (including mental
health) PHI are such a routine part of litigation, many attorneys are
not as careful as they should about explaining the discovery process to
their clients. Some patients’ attorneys may assume that they can wait
to see if any disputes about the release of PHI arise, on the assumption
that they will manage the problem at that time. Others may not be
aware that they can challenge the disclosure of PHI. Thus, many patients
are shocked and distraught when they learn that the PHI containing ex-
tensive personal, sensitive information have been or must be turned
over to people that have harmed them, estranged spouses, and/or
strangers. They may be even more disturbed when they see how oppos-
ing counsel uses the information to intimidate them during the discov-
ery process or to discredit them at trial (Smith, 2008).

Furthermore, patients’ attorneys are not immune to the biases that
plague the population at large. There is a general bias against the men-
tally ill, and this often results in a significant reduction in attorneys’ will-
ingness to represent their mentally ill clients as vigorously as they do
‘normal’ clients (Perlin, 1992).

5. Disclosures to the legal system warrant informed consent

As discussed, obtaining informed consent is a legal and ethical require-
ment, but there are a number of factors that limit obtaining such consent;
clearly, a simple signature on a release form does not constitute informed
consent. Furthermore, the risks of disclosing PHI to the legal system are
substantially more serious than that of disclosing PHI to third
parties—serious enough that informed consent is needed to protect pa-
tient rights. Thus, when psychologists receive a subpoena or court order,
requesting disclosure of PHI, patients would benefit from a complete un-
derstanding of the risks and benefits of all options. This was demonstrated
in one small study, where a majority of patients withdrew their requests
for disclosure after informed consent (Hamberger, 2000, p. 94).

Furthermore, obtaining informed consent can be beneficial to both pa-
tient and therapist. For example, patients rated hypothetical therapists
who used an informed-consent procedure as more trustworthy and ex-
pert, were more willing to seek therapy from that therapist and more
willing to recommend him/her to a friend (Sullivan, Martin, &
Handelsman, 1993). Additional benefits include empowering patients’
self-therapeutic activity and lessening the risk of regressive dependency
(Beahrs & Gutheil, 2001), and increasing clinical gains by making the pa-
tient an active participant in treatment decisions (Behnke & Saks, 1998).

6. A proposed list of risks and benefits for disclosing PHI to the
legal system

We build on the prior work of Hamberger (2000, p. 92) who proposed
an informed consent procedure for disclosure of PHI to the legal system,
and Pomerantz and Handelsman (2004), who provided a suggested for-
mat for facilitating informed consent to psychotherapy. Also, Fidnick,
Koch, Greenberg, and Sullivan (2011) and Dwyer (2012) described a
need for a distinct informed consent process for patients involved in the
legal system, and Johnson-Greene (2005) described the need for a formal
consent procedure for neuropsychological assessment, inclusive of foren-
sic situations. Both models suggest that the disclosed information be un-
derstandable, include a description of the proposed services, risks and
benefits of the proposed services, fees, the limits of confidentiality, and in-
volvement of third parties, and that the patient have an opportunity to ask

25B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

questions. Johnson-Greene (2005) adds disclosure of ‘discomforts’, and an
assessment of competency by the evaluator, and proposes an informed
notification procedure for legally mandated evaluations. Fidnick et al.
(2011) and Dwyer (2012) recommend that the patient be encouraged
to consult with counsel prior to signing an informed consent.

6.1. Potential risks and benefits of disclosure

The potential consequences of disclosure are highly dependent upon
what is being disclosed, to whom, and for what reason; a cookie-cutter
approach should not be used. The benefits of disclosing PHI to the legal
system include supporting the patient’s legal case and helping to ensure
a successful outcome. The PHI might also be used by expert witnesses
as part of their data collection process, and may help influence the ex-
perts’ favorable opinions.

There are a number risks inherent in disclosure, however, which
may be less apparent to the psychotherapist, patient, and attorney.
The record may not support the patient’s assertions, and may harm
his/her case. There may be additional costs if there is a dispute about
the information. The information may provide a basis for the court to
order a psychological evaluation, resulting in more time and expense.
Perhaps the most salient risk to patients might be the fact that everyone
in the courtroom will learn about their private information, resulting in
substantial potential shame, embarrassment, and/or guilt (Dwyer, 2012,
p. 112). Not only will strangers be privy to the information, but also the
person who injured the patient, warring spouses, family members, etc.
In fact, the court system is generally open to the public, so it is quite
easy for the information to find its way to other entities, or even to be-
come public knowledge (Hamberger, 2000, p. 91). This may be a signif-
icant risk in a small town or if the information finds its way onto social
media. Furthermore, to the extent others do become aware, there may
be subsequent life losses, such as to relationships, employment oppor-
tunities, social standing, or eligibility for various services or benefits
(Gold & Shuman, 2009, p. 6; Hamberger, 2000, p. 91). If the information
is unfavorable to the patient and becomes known by others, it may re-
sult in subsequent court-imposed penalties, fines, or charges, and
there may be future litigation, such as civil or administrative cases, or
even possibly criminal charges.

6.2. Potential risks and benefits of refusing to disclose

The primary benefit to declining release of records is that the patient
might be able to avoid the numerous risks associated with disclosure of
their PHI. The downside of such refusal (from a legal perspective) is that
it will limit his/her ability to present evidence with respect to emotional
and mental injuries as part of her claim. Refusing might cause the pa-
tient to receive fewer damages, or even lose the case entirely. If there
is a mental health expert in the case, the expert might limit his/her
opinion, not be able to form an opinion, or even decline to perform
the evaluation. If the patient refuses to disclose some or all records,
she/he may face court-imposed penalties, fines, or sanctions, or even
the exclusion of all mental health evidence (Magee v. Paul Revere Life
Ins. Co, 1998).

6.3. Static/common issues to be aware of

Regardless of patient choices, some matters are unaltered. HIPAA reg-
ulations are quite permissive regarding disclosures of PHI to the legal sys-
tem, and do not require patient authorization in cases of court order,
when required by law, for judicial or administrative proceedings or man-
datory abuse reporting, to law enforcement agencies, public health activ-
ities health oversight agencies, or when the psychologist receives a
subpoena (45 C.F.R. §164.512; see also Cohen, 2006). State laws require
a written, signed authorization to disclose PHI, and are likely not
preempted by HIPAA (making them ruling law). Thus, HIPAA does not
prohibit disclosures of PHI to the legal system; the rules of evidence and

discovery overrule HIPAA. However, a HIPAA-authorization to disclose
PHI can require disclosure (e.g., see Johnston v. Weil et al., 2011). Patient
request to disclose PHI in one instance does not permit subsequent disclo-
sures to any entities outside the legal system. Since each HIPAA-based re-
quest to disclose PHI requires a unique authorization form, a separate
authorization should be completed for each disclosure. Finally, waiver of
privilege may apply only to one specific legal case. Although waived for
the purposes of one litigation, the privilege generally remains intact in
other cases; it should be made clear to all concerned that the authoriza-
tion for disclosure does not apply to any other concurrent or future
cases. A separate consent procedure and authorization for disclosure
should be completed for any other cases in which records are
requested.

6.4. Development of the sample form

Based on the foregoing information about the risks and benefits of
either disclosing PHI or declining to disclose, as well as other factors,
we developed the model informed consent form (Appendix A). The
form is intended for use in conjunction with the policies listed in the
Recommendations For Practice section. We recommend that the
model consent form be modified for the specific circumstances of the
case at hand; not every benefit or risk will apply to every patient. Fur-
thermore, some states specify the risks to include in informed consent,
as well as other factors, such as an acknowledgment that the patient’s
questions have been answered satisfactorily. Use of a form for informed
consent is strong evidence of actual informed consent, but is not conclu-
sive (Roach et al., 2006). Consent forms may be challenged on the basis
that the wording was too technical or that the form was written in a lan-
guage the patient could not understand. Thus, attempts have been made
to enhance comprehension (Nishimura et al., 2013) by improving the
readability of the model form, and users should remove unneeded
text and increase font size.

7. Limitations

There are a number of limitations about which the reader should be
aware: We do not discuss informed consent requirements for seeking
(or refusing) treatment. Nor do we discuss any of the several exceptions
to the duty to disclose risks and benefits, such as common knowledge,
existing patient knowledge, therapeutic privilege, etc. (Hall, Ellman, &
Orentlicher, 2011, p. 131) There may be a number of proceedings that
require a more finely-tuned discussion of privilege and implied waiver
of the same (see, e.g., Perlman, 2012). There may be considerable varia-
tions when families, children, or groups are involved (e.g., Attorney Ad
Litem for DK v. Parents of DK, 2001). We do not discuss procedures for
court-mandated psychotherapy (the reader is referred to Fidnick et al.,
2011, & Perlman, 2012). Professionals working in international settings
may have different ethical and legal requirements. Even in the U.S.,
there can be wide variations among jurisdictions (or even individual
judges) in the application of psychotherapist–patient privilege
(e.g., child custody, see Paruch, 2009; Waits, 2001); requirements for in-
ternational jurisdictions may differ significantly from U.S. law, so pro-
fessionals should become familiar with local requirements. There may
also be local variation in requirements for responses to subpoenas. For
general advice regarding responding to U.S. subpoenas, see APA COLI
(2005), Barsky (2012), Perlman, (2012), Bernstein and Hartsell
(2005), and Jennings and Hays (2011). We do not discuss the merits
or harms of disclosing psychological test data to the legal system (a
quite controversial subject). Finally, we do not discuss informed consent
for forensic evaluations, although the forensic evaluator reader may find
the information useful. For example, the common practice of child cus-
tody evaluators is to routinely seek PHI of treating therapists as collater-
al information without consideration of privilege implications; this
practice may create unforeseen and unwanted legal and ethical conse-
quences (Borkosky & Thomas, 2013).

26 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

8. Recommendations for practice

8.1. Beginning therapy

At the onset of therapy, the patient should be advised about confiden-
tiality, privilege, and privacy limitations (Perlman, 2012, pp. 133–135).
Regarding general informed consent for mental health services, we refer
the reader to Koocher and Keith-Spiegel (2008), Boumil and Hattis
(2011), Pomerantz and Handelsman (2004), and Grisso and Appelbaum
(1998). Some therapists may attempt to avoid involvement with the
legal system by including a clause in the psychotherapist–patient agree-
ment contract preventing the patient from calling the therapist as a wit-
ness. Such an agreement is unlikely to prevent compelled disclosure of
records or testimony (Perlman, 2012, p. 135). Although some therapists
may worry that a frank discussion of confidentiality limits may reduce cli-
ent openness, clarity usually increases trust (Borkosky, 2014, p. 278;
Perlman, 2012, p. 134).

Many therapists lack sufficient knowledge about patient privacy
rights, and are advised to become familiar with the laws in his/her juris-
diction, as well as their responsibilities and patient rights (Perlman,
2012, p. 140). For example, generally, subpoenas or other methods of
discovery to not, by themselves, constitute a waiver of the patient’s
privilege (whether privilege applies or not is a legal decision, made by
the trier-of-fact when the issue is in dispute). However, from a practical
perspective, the only time that a psychologist can uphold (assert privi-
lege on behalf of the patient) the patient’s privilege is when she/he re-
ceives a discovery request. Once the records are disclosed, the
attorney in receipt of the records has control over distribution; thus,
the only time when a therapist can assert privilege on behalf of the pa-
tient is at the moment that disclosure is requested. Remember, “it is the
client who ‘holds’ or owns the privilege … [and] has the power to decide
whether to give up (“waiver”) or insist on (“assert”) the privilege”
(Perlman, 2012, pp. 154–155).

8.2. When the patient/litigant is considering releasing records to the legal
system

The primary responsibility for advising a patient about the full
range of potential legal implications of disclosure of PHI lies with
the patient’s attorney, and psychologists should encourage patients
to consult their attorneys to review such implications. A patient’s
attorney should advise the patient that any disclosure about his/
her past or current mental health treatment is likely to trigger a
broad discovery request for PHI. If so, to the extent a patient re-
fuses to provide PHI, dispute regarding whether to compel disclo-
sure for PHI would likely ensue, and require resolution by a
judge. Patient and attorney should therefore discuss options for
overall litigation strategy to minimize the chances for compelled
disclosure at the outset of the representation (Fitzpatrick, 2006),
and patients should consider the risks and benefits of pursuing
such a claim before the case is filed. If the patient decides to pro-
ceed with litigation, the attorney and patient should discuss the
significance of authorizing disclosure and the attorney should
alert the client when (and to what extent) any records obtained
by the attorney are turned over to the opposing counsel during
discovery. Patients who are not represented by counsel vary con-
siderably in their knowledge of the law; they should be advised
that the psychologist cannot offer them legal advice and that
they should consider the advantages of retaining counsel (Dwyer,
2012, p. 123).

Psychologist and attorney should confer (Perlman, 2012, p. 141) re-
garding the psychologist’s role in (or exclusion from) the case, the issues
being litigated, and the information and/or opinions that the attorney
hopes the PHI will reveal. The goals of the opposing side, and whether
(in what way) the opposing side may attempt to use the PHI should
also be discussed (Fidnick et al., 2011; Foote & Shuman, 2006). The

therapist should inform the patient’s attorney regarding the nature
(generally) of the content of those records, including aspects that may
both support and militate against the attorney’s position (Perlman,
2012).

A patient’s authorization to disclose PHI to his/her own attorney will
not in itself trigger a waiver of the psychotherapist–patient privilege,
since the PHI is then covered by the attorney-client privilege (Wright,
Graham, Gold, and Graham (2005)). However, the attorney’s release of
the PHI to an expert or to the opposing attorney usually does constitute
some waiver of privilege. If the subpoena was sent by opposing counsel,
one should obtain permission from the patient to confer with the patient’s
attorney, and then discuss response options (Fidnick et al., 2011; Perlman,
2012).

8.3. When the request for disclosure arrives

When considering disclosures of PHI to the legal system, patients
should be informed of their rights, responsibilities, risks, and benefits
(Hamberger, 2000, p. 92; Younggren, Fisher, Foote, & Hjelt, 2011); the
treating psychologist has an additional obligation to ensure that the infor-
mation released will be helpful to the legal process, is clear and less likely
to be misused (Zimmerman et al., 2009). The psychologist may need to
include additional qualifying remarks to explain the PHI or the limits of
relevancy to the case at hand. The psychologist should consider whether
the minor has an independent right to waive (or refuse waiver of) privi-
lege (see, e.g., Attorney Ad Litem for DK v. Parents of DK, 2001). Consider-
ation should be given to the patient’s competence to consent, and to
how the patient’s mental illness, cultural background or highly charged
emotional state might affect that capacity; if the patient’s capacity to con-
sent is in doubt, the patient’s attorney and/or the court should be notified
(Dwyer, 2012, pp. 111–112). Fees for all proposed services and who will
be responsible for payment should be clarified, with all entities, at the out-
set (Dwyer, 2012, p. 113).

The patient (in concert with the psychologist) should read and be-
come familiar with the content of the PHI (Hamberger, 2000). The psy-
chologist and patient should discuss information that could help the
patient achieve their goals or that could harm them, how the PHI
might be misinterpreted or used against them, whether it contains
highly personal information that might embarrass them, and whether
the PHI contains outdated information (Fidnick et al., 2011). Aspects
of the record that support patient goals should also be discussed. The
patient should be afforded an opportunity ask questions. A shared deci-
sion making process or extended discussion is recommended
(Hamberger, 2000, pp. 92–93; King & Moulton, 2006; Nishimura et al.,
2013) to improve decision-making and to acknowledge the value of
all parties.

A number of good recommendations for use of the form have been
proffered by Roach et al., (2006, pp. 97–99). It is important to assess
(and document) that the patient was competent to understand the de-
cision being made and that their signature reflects their deliberated
choice. If the person has difficulty understanding English, best practice
is to translate the form in the patient’s primary language. However, it
is usually sufficient to orally have the form translated by a qualified, pro-
fessional interpreter and to certify that the form and discussion were
thus translated. If a patient refuses to sign, but is willing to give oral con-
sent (after explanation), the fact of oral consent and the reason for re-
fusal should be documented on the form, along with the witnessed
signature of the person obtaining the verbal consent. Unless specified
by statute, there is no absolute limit on the period of validity of a con-
sent or documentation of that consent by a signature on a consent
form. If conditions change significantly, the earlier consent is no longer
valid, and a new consent should be obtained. If the patient withdraws
consent (prior to release of PHI) written acknowledgment of the with-
drawal should be obtained from the patient after discussion of the im-
plications of the withdrawal.

27B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

8.4. The process of releasing information to the legal system

We recommend that the model consent form (Appendix A) be modi-
fied for the specific circumstances of the case at hand; not every benefit or
risk will apply to every patient. Attempts have been made to enhance
comprehension (Nishimura et al., 2013) by improving the readability of
the model form, and users should remove unneeded text and increase
font size.

Psychologists should consider options that might protect the patient
by limiting disclosures, such as asking the court to quash the subpoena
(see, e.g., Barsky, 2012) or to limit its scope, requesting permission to re-
dact outdated or irrelevant material, such as the names of third parties
(Fidnick et al., 2011), and seeking an in camera review of the PHI and/or
a protective order for those records that are disclosed (Borkosky &
Thomas, 2013). Typically, these tasks will be best accomplished in con-
junction with the patient and their attorney, but there could be instances
when the psychologist would see a need to address the matter directly
with the court, such as if a patient is not represented by counsel and un-
able to effectively advocate for him/herself (e.g., in family court). Al-
though the reader may be concerned that bringing concerns to the
attention of the court will necessarily involve retaining an attorney and
an expenditure of significant funds, one of us has seen therapists simply
file a letter with the court, which the court then treats as a motion to
quash. However, because each jurisdiction has different rules and prac-
tices psychologists are advised to seek guidance from an attorney before
directly contacting a court.

The client should receive a copy of the completed consent form, and
the original, along with a record of which materials were sent, to whom,
and when should be placed in the patient’s file. The disclosed PHI should
bear a confidential designation (Koocher & Keith-Spiegel, 2008).

Although some states (and HIPAA) permit psychologists to cre-
ate a “summary in lieu of” PHI, we do not advise this for disclosures
to the legal system. It is likely that the summary will not be accept-
able to one or both attorneys, who will subsequently request the
complete PHI. Refusal to release the full PHI may result in being
sanctioned by the court for failing to comply with the court order.
A defense that ‘the statute tells me I can write a summary’ would
likely fail, because the state statute likely does not authorize one
to withhold records. If the psychotherapist–patient privilege is
waived, release of records is no longer optional or prohibited—it is
required. Thus, even without a court order, disclosure of non-
privileged PHI would be ‘required by law’ if the PHI is properly re-
quested or subpoenaed. Release of a summary is therefore an addi-
tional record, that was created some time after the rendered
services, which the attorneys must review. This may impose an ad-
ditional cost on the patient for the time required to review. To the
extent that there are differences between the summary and the un-
derlying records, those differences will need to be resolved, and the
resolution may require a hearing and testimony. These factors may
impose a delay of the legal proceedings and additional costs to the
patient. If the differences between summary and PHI are significant,
it could be alleged that the therapist attempted to thwart the legal
system (especially if the therapist had resisted releasing the under-
lying records), or one’s credibility could be questioned.

8.5. On offering testimony in court

If the patient requests that a therapist testify on their behalf, psychol-
ogists are advised to study the literature regarding the differences be-
tween forensic and treating experts, beginning with the seminal articles
in psychology and psychiatry (Greenberg & Shuman, 1997; Strasburger,
Gutheil, & Brodsky, 1997), and the limitations discussed with the patient.
There may be important ethical and legal considerations that a therapist
should consider prior to testifying about a patient (e.g., patients may
have various motivations for requesting testimony, Borkosky & Thomas,
2013; Dwyer, 2012, p. 117). The patient should “… understand that

testimony that whitewashes or ignores the vulnerable areas of a client’s
functioning may not be credible testimony” and that the therapist cannot
predict how events will unfold; a number of factors may interfere with in-
formation that the therapist had hoped to convey (Perlman, 2012, p. 142).
Patients should be informed that they may be disappointed in the
psychologist’s actual testimony (Perlman, 2012, p. 142), which may
harm or even destroy the doctor-patient relationship that they once
enjoyed (Borkosky & Thomas, 2013; Barsky, 2012, pp. 173–174; Bailey,
2003, p. 73), and may preclude the patient from ever seeking therapy
again (Perlman, 2012, p. 165). As noted at the beginning of this article, pri-
vacy, the foundation of psychotherapy, may be irrevocably lost (Dwyer,
2012; Jaffee v. Redmond et al., 1996; Roback & Shelton, 1995; Watson &
Levine, 1989).

It is possible that one could be called as a witness to provide
nonprivileged information. Since the courts interpret what information
is privileged very narrowly, one might be required to provide evidence
on other matters; for example, if the statute makes your “communica-
tions” with the patient privileged, you might be required to testify
about dates of service, or other persons that were in the waiting room.
Once on the witness stand, one should remain alert for questions
that call for the disclosure of privileged information. If one has a doubt
about whether something is privileged, one can seek guidance from
the judge, by saying something like, “Your honor, I have now been
asked about a matter which is confidential and might be privileged, I
would appreciate it if the court would direct me whether to respond
to the question.”

9. Summary and conclusion

We have advanced a number of issues and recommended actions to
consider when anticipating disclosure of PHI to the legal system. Some
may find these issues to be unnecessary, as their standard practice
may be to either wholly resist disclosures, or to simply release all PHI
upon receipt of a signed authorization. These may not be good practice,
however, as they may be contrary to both law and ethics. Improper dis-
closure of, or patient access to, PHI remains one of the top disciplinary
complaints against mental health practitioners (Tossell, Stewart, &
Goldman, 2006; Vanderpool, D., personal communication, 6/25/2013).
A good risk management strategy should include careful consideration
of whether to release records and which records to release—especially
important for disclosures to the legal system. Increased involvement
of patients in that process will likely reduce the possibility of patient
complaints or judicial sanctions, in addition to supporting patient
autonomy.

The authors would like to thank Floyd Jennings and Allen Barsky for
their comments on a previous version of this article.

10. Notifications to the publisher

This article has not been published previously, is not under consider-
ation for publication elsewhere, is approved by both authors, and if ac-
cepted, it will not be published elsewhere including electronically in the
same form, in English or in any other language, without the written con-
sent of the copyright-holder.

The authors affirm that there is no actual or potential conflict of inter-
est including any financial, personal or other relationships with other
people or organizations within three years of beginning the submitted
work that could inappropriately influence, or be perceived to influence,
their work.

The authors themselves provided all financial support for the con-
duct of the research and/or preparation of the article and there were
no sponsor(s) in the study design; in the collection, analysis and inter-
pretation of data; in the writing of the report; and in the decision to sub-
mit the article for publication.

Appendix A. INFORMED CONSENT TO DISCLOSE RECORDS TO THE LEGAL SYSTEM

28 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

29B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

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• The risks and benefits of disclosing psychotherapy records to the legal system: What psychologists and patients need to kno…

1. Introduction
2. The requirement for informed consent, generally
2.1. Privacy is the foundation of both psychotherapy and informed consent
2.2. Informed consent is also a legal requirement
2.3. Informed consent is also required in forensic contexts
3. Barriers to obtaining fully informed consent
3.1. Psychologist-based barriers to informed consent, generally
3.2. Barriers due to limitations of the legal definition of informed consent, generally
3.3. Patient-based barriers to informed consent, generally
4. The need for informed consent for disclosures to the legal system
4.1. Disclosure problems resulting from conflating confidentiality and privilege
4.2. Improper disclosures can be harmful to patients
4.2.1. PHI and psychotherapist testimony can support or undermine the patient’s legal claims
4.2.2. Opposing attorneys may use patients’ mental health histories to undermine their claims
4.2.3. The courts’ role in the disclosure and use of PHI is not protective of patients
4.2.4. The patient’s attorney may not adequately protect the patient’s rights

5. Disclosures to the legal system warrant informed consent
6. A proposed list of risks and benefits for disclosing PHI to the legal system
6.1. Potential risks and benefits of disclosure
6.2. Potential risks and benefits of refusing to disclose
6.3. Static/common issues to be aware of
6.4. Development of the sample form
7. Limitations
8. Recommendations for practice
8.1. Beginning therapy
8.2. When the patient/litigant is considering releasing records to the legal system
8.3. When the request for disclosure arrives
8.4. The process of releasing information to the legal system
8.5. On offering testimony in court
9. Summary and conclusion
10. Notifications to the publisher
References

1

INTEGRATION OF FAITH, LEARNING

AND WORK AT GRAND CANYON UNIVERSITY

G
rand Canyon University is a Christ-centered educational
institution that seeks to promote the common good by
intentionally integrating faith, learning and work. The
university’s initiative to integrate faith stems from its

mission to educate students from a distinctively Christian perspective
and prepare them for careers marked by kindness, service and
integrity. In addition to helping students find their purpose, the
university endeavors to carry out its mission in ways that are marked
by compassion, justice and concern for the common good.

The message of Jesus Christ offers wisdom for the present and hope for
the future. It is good news for individuals and for the communities in
which individuals live and work. Jesus himself taught that Christians
should live as salt and light within the world, which suggests that the
Christian worldview relates as much to the public arena as it does
to the private lives of individuals. As a university, we are convinced
this calling should shape the ways we think and act within academic
disciplines and various career fields.

Our desire to integrate faith, learning and work flows out of an
institutional commitment to cultivate and exemplify the biblical
ideals of glorifying God and loving neighbors as ourselves. By God’s
grace we seek to honor Him in all that we do and to serve others in
ways that are consistent with the loving kindness of Jesus Christ.
These ideals are lofty but they represent appropriate goals and should
serve as standards for Christian educational institutions. For these
reasons, GCU is devoted to the intentional and pervasive integration
of the Christian worldview.

What is the Integration of Faith, Learning and Work?
The integration of faith and learning may be understood as the
scholarly process of joining together knowledge of God and knowledge
of the universe for the sake of developing true, comprehensive and
satisfactory understandings of humans and the world they inhabit. As
a Christian university, we view the integration of faith and learning
as a matter of institutional integrity and a matter of practical wisdom.

At GCU, integration of the Christian worldview also extends to the
workplace as we strive to instill a sense of vocational calling and
purpose in our students, faculty and staff. It is our conviction that

our work within the world matters to God and our neighbors and
must be carried out with integrity and excellence. While few doubt
that it is possible to serve God through ministry and mission work,
we are convinced that God is also honored by faithful service within
“secular” vocations. Integrating faith and work is a practical and
logical extension of faith-learning integration.

The integration of faith and work may be understood as the application
of the Christian worldview within the context of work in ways that
honor God, serve neighbors and contribute to the advancement of
the society. Work represents a vital opportunity to integrate Christian
convictions, ethical principles and vocations in ways that glorify God
and benefit others. Thus, we seek to honor God by educating students
from the perspective of the Christian worldview and by equipping
them to serve others through their respective vocations.

Why Does GCU Integrate Faith, Learning and Work?
GCU has grown from a small, Christian college into a large and
comprehensive university in Phoenix’s West Valley with a significant
national presence. Yet, the university remains committed to the
central convictions that have long characterized quality Christian
education and faithful Christian institutions. Chief among these
convictions are the principles that God is both Creator and Redeemer,
that fallen humans need to be redeemed and that God is restoring the
entire world through his Son, Jesus Christ. These convictions represent
foundational beliefs that are central to the Christian worldview
and derive from the consistent biblical emphasis on creation, fall,
redemption and restoration. This four-fold framework undergirds the
university’s approach to education and career preparation by providing
a comprehensive and compelling view of the world.

The understanding that God created the universe and everything
within it serves as a unifying principle and vital starting point for
making sense of the world in which we live. Furthermore, by faith
we recognize that God continues to work in our day to redeem the
brokenness and inadequacies of humanity and society in ways that
offer hope for the future. God is not only Creator but also Redeemer,
and He has promised to make all things new through Jesus our Lord.

15COT0122

2

In some cases Christians have placed emphasis on sin and the need
for personal redemption to the neglect of the doctrines of creation
and restoration. While concern for individual salvation is entirely
appropriate, we are convinced that the Bible actually sets forth a
more holistic vision for life. This vision encompasses the restoration
of the created order as well as the renewal of human creatures and
communities. These understandings are rooted in the biblical
narrative and reflected in GCU’s Doctrinal Statement. As such, they
deeply shape the identity, mission and vision of the university.

In accord with Christian values and convictions, GCU affirms the
universality and objectivity of truth and considers the pursuit of
knowledge a worthy and attainable goal. Within secular academic
contexts the search for knowledge tends to exclude areas of inquiry
and sources that are not consistent with secularized views of the world.
By contrast, GCU is committed to the pursuit of understanding and
affirms that genuine knowledge may be derived from a wide variety
of sources, including human reason and introspection, scientific
investigation and divine revelation. The university strives to cultivate
an academic environment in which students are empowered to seek
truth wherever it may be found.

Students are encouraged to raise questions that cannot be answered
adequately without exploring matters of ultimate concern. By
broadening the conversation, we urge students to explore their
personal worldviews as well as the Christian worldview to find
their purpose within a world that displays the wisdom and glory
of God. This provides unique opportunities to develop knowledge,
skills, self-awareness, self-knowledge and depth of character. This
educational strategy enables thoughtful people to understand
Christian beliefs and Christian believers to become more
thoughtful. As a result, graduates of GCU are prepared to engage
the world with a sense of vocational calling and purpose.

How Does GCU Integrate Faith, Learning, and Work?
The university strives to integrate faith at all academic levels, which
includes its undergraduate, graduate and doctoral programs. GCU’s
basic strategy of integration centers on the concept of a worldview,
which refers to the complex network of assumptions that shape
thought and practice. By exploring various worldview commitments,
students are able to reflect on implications and practical value of major
options available within the marketplace of ideas.

Students are introduced to the Christian worldview from the start of
their programs of study. By thinking from a worldview perspective,
students learn to reflect carefully on the underlying assumptions,
motives and intentions that shape views of themselves and the world.
They will be challenged to consider the practical implications of their
personal perspectives and to refine understandings on the basis of
investigation, reflection and dialogue. Students are encouraged to
consider the needs and interests of others in addition to their own,

and embrace the Christian values of love and service as they prepare
to enter the workforce.

This is not to suggest that all students are required to personally
embrace the Christian worldview. They are free to do so, of
course, but they are also free to embrace other views of the world.
Christians believe that God grants common grace to Christians
and non-Christians alike, a grace by which all truth and all that
is excellent in our work may be considered good, regardless of an
individual’s beliefs. Faith is a matter of conscience that cannot and
should not be forced upon anyone who is unwilling or resistant to
embrace it for any reason.

As a Christian university, we aim to be persuasive in our presentation
and practice of the Christian worldview, but renounce all forms
of coercion and compulsion. Faith, when genuine, is a voluntary
response to the person and work of Jesus Christ. As a matter of loving
others as we love ourselves, we are committed to respectful dialogue
and charitable engagement in all matters, especially in matters of faith
and conscience. GCU invites students from all walks of life to seek
truth and to find their purpose within a context marked by Christian
charity and compassion. We welcome all who genuinely seek truth to
join the conversation.

Conclusion: Faith Seeking Understanding
As intelligent and moral creatures, human beings bear significant
responsibility for what they know and how they live in light of such
knowledge. Thus the pursuit of truth should be a means to the end
of promoting human flourishing and the good of the communities in
which we live. Similarly, we must carry out our work with excellence
and integrity and serve others as if our service is unto the Lord.
Strong economies, healthy organizations and virtuous people are
foundational to vibrant communities and thriving societies. Realizing
these ideals depends substantially on arriving at true understandings
of who we are and how we are meant to live in this world.

As a Christian university, GCU encourages students to find their
purpose in Christ while emphasizing biblical values and ethics
within the workplace. GCU embraces the notion that faith is the
appropriate starting point for honest inquiry and exploration.
Faith, understood in this way, should not stifle research, suppress
dialogue or inhibit scientific investigation. Rather, we believe in
order to understand more fully and by doing so we expect to see
the power of God at work in the lives of individuals and in the
restoration of our culture and society.

This expectation is rooted in the steadfast character of the God of the
Bible who has graciously promised favor and blessing to all who call
on His name. To Him alone we look for wisdom as we pray and wait
for the day when His kingdom comes, and His will is finally done on
Earth as it is in Heaven. May He find us faithful on that day!

International Journal of Law and Psychiatry

42-43 (2015) 19–30

Contents lists available at ScienceDirect

International Journal of Law and Psychiatry

The risks and benefits of disclosing psychotherapy records to the legal
system: What psychologists and patients need to know for
informed consent

Bruce Borkosky a,⁎, Deirdre M. Smith b,1
a 1800 Lakeview Drive, Sebring, FL 33870, United States
b University of Maine School of Law, 246 Deering Avenue, Portland, ME 04102, United States

⁎ Corresponding author. Tel.: +1 304 837 2782.
E-mail addresses: drborkosky@gmail.com (B. Borkosky

(D.M. Smith).
1 Tel.: +1 207 780 4376.
2 In this article, we do not distinguish between records

the patient’s private information. For the sake of brevity,
the Health Insurance Portability and Accountability A
Information (PHI).

http://dx.doi.org/10.1016/j.ijlp.2015.08.003
0160-2527/

© 2015 Elsevier Ltd. All rights reserved.

a b s t r a c t

a r t i c l e i n f o

Available online 4 October 2015

Keywords:
Psychotherapist–patient privilege
Informed consent
Waiver
Disclosure
PHI
Confidentiality

When psychologists release patient records to the legal system, the typical practice is to obtain the patient’s
signature on a consent form, but rarely is a formal informed-consent obtained from the patient. Although psy-
chologists are legally and ethically required to obtain informed consent for all services (including disclosure of
records), there are a number of barriers to obtaining truly informed consent. Furthermore, compared to disclo-
sures to nonlegal third parties, there are significantly greater risks when records are disclosed to the legal system.
For these reasons, true informed consent should be obtained from the patient when records are disclosed to the
legal system. A model for informed consent is proposed. This procedure should include a description of risks and
benefits of disclosing or refusing to disclose by the psychotherapist, an opportunity to ask questions, and indica-
tion by the patient of a freely made choice. Both psychotherapist and patient share decision making responsibil-
ities in our suggested model. The patient should be informed about potential harm to the therapeutic
relationship, if applicable. Several recommendations for practice are described, including appropriate communi-
cations with attorneys and the legal system. A sample form, for use by psychotherapists, is included.

© 2015 Elsevier Ltd. All rights reserved.

1. Introduction

When psychologists disclose confidential patient records (PHI)2 to the
legal system, it is common practice, consistent with legal mandates, to ob-
tain the patient’s signature on an authorization form. However, this pro-
cess may occur so hurriedly or perfunctorily that clients may not fully
understand what they have authorized or why, or may not realize that
the consent is voluntary (Perlman, 2012, p. 136). Some may sign authori-
zation forms against their wishes—due to of a variety of subtle and obvi-
ous pressures, or because no alternatives seem available (Damschroder
et al., 2007; Greenberg & Shuman, 1997; Hamberger, 2000, p. 90;
Knops, Legemate, Goossens, Bossuyt, & Ubbink, 2013; Koocher &
Keith-Spiegel, 2008; McSherry, 2004; Rosen, 1977). Many patients simply
blindly sign the documents and may view their signature more as a re-
quirement to obtain coverage or services than a personal choice
(Bemister & Dobson, 2011). Furthermore, guidelines regarding disclo-
sures of PHI to the legal system are lacking, making it difficult for psychol-
ogists to determine what risks to discuss. Truly informed consent (for any

), deirdre.smith@maine.edu

and testimony, as both concern
we utilize the term adopted by
ct (HIPAA)–Protected Health

aspect of medical treatment), widely accepted as a legal and ethical re-
quirement by the psychology community, requires a more careful process
than this (Sokol, 2009), and consent for disclosure of PHI should be no
exception.

In this article, we begin with a short review of the foundation of in-
formed consent, which arises from the concepts of privacy, psychother-
apy, and individual autonomy. Although a required function of
psychotherapy, there are a number of barriers to obtaining fully in-
formed consent. Considerable vagueness and disagreement about the
legal definition of informed consent subsists. Psychologists do not al-
ways effectively communicate the information patients need to make
decisions. Even when they do, patients may not understand or remem-
ber that information. Informed consent is more difficult when it in-
volves disclosures to the legal system, because the requirements for
such disclosures are often conflated with the requirements for disclo-
sures to nonlegal third parties. Furthermore, there is a greater need for
informed consent regarding disclosures to the legal system, due to
more serious consequences inherent in the legal system. Additionally,
the legal system has different goals from those of psychotherapy, and
it may not adequately protect the privacy rights of patients. We con-
clude the article by describing a number of risks and benefits of disclos-
ing (or refusing to disclose) PHI to the legal system, and suggest some
recommendations for practice. Appendix A contains a model form for
use in an informed consent procedure when disclosure of PHI to the
legal system is being considered.

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http://dx.doi.org/10.1016/j.ijlp.2015.08.003

mailto:drborkosky@gmail.com

mailto:deirdre.smith@maine.edu

http://dx.doi.org/10.1016/j.ijlp.2015.08.003

http://www.sciencedirect.com/science/journal/01602527

3 A few states have adopted a “subjective” standard; disclosure of risks and benefits un-
der this standard are those that are important to the particular patient making the decision
(Berg, Appelbaum, Lidz, & Parker, 2001).

20 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

2. The requirement for informed consent, generally

It is well established that healthcare providers have an ethical and
legal obligation to obtain informed consent prior to involving patients in
any proposed services (Appelbaum, 2007, p. 1834). This practice is widely
accepted as one of the key duties of any good health professional and
demonstrates a respect for the patient’s right to make informed choices
(Doyal, 2001), consistent with most ethics codes. For example, informed
consent is required by the ethics codes of every health care profession, in-
cluding the American Psychological Association (APA, 2002, standards
3.10, 8.02, 8.03, 9.03, and 10.01), the American Psychiatric Association
(APA, 2013, Section 2 standard 10 & 11), and the American Medical Asso-
ciation, (AMA 2012, Principles 2.015, 8.08, 8.082, 8.085, 8.121, 10.01,
10.015, 10.02). Most psycholegal commentators assume that the burden
of securing consent falls on the evaluator (e.g., Foote & Shuman, 2006);
it is such an important part of psychology practice that the current version
of the Ethical Principles of Psychologists (APA, 2002) mentions the term
no less than 37 times. Because psychologists are required to obtain in-
formed consent from all patients, the documentation of informed consent
is likely the first formal record of those services (Bemister & Dobson,
2011; Foote & Goodman-Delahunty, 2005).

The reason this requirement was taken on by professionals is due to
the power imbalance between doctor and patient; doctors generally
have vastly superior knowledge, whereas patients are very often made
even more vulnerable by their illness. Providing information and oppor-
tunity for decision making on the part of the patient “will help to redress
the power imbalance problems” (Hall, Bobinski, & Orentlicher, 2005,
p. 200). Current understandings of informed consent may also (perhaps
to the detriment of many patients) overlook non-Western cultural
norms and values (see, e.g., Blackhall, Murphy, Frank, Michel, & Azen,
1995; Carrese & Rhodes, 1995; Gostin, 1995; Miller, 1992).

2.1. Privacy is the foundation of both psychotherapy and informed consent

The foundation of psychotherapy is the trust that is engendered by the
confidentiality between the psychologist and the patient; it has been said
to be “so essential … that psychotherapy is rendered worthless in its ab-
sence” (Paruch, 2009, p. 519, citing the APA brief in Jaffee v. Redmond). The
need for confidentiality is critical, because “psychotherapy is the context
in which, perhaps more than in any other, a person is most likely to reveal
unflattering information about herself, as well as her fears, vulnerabilities,
guilt, disappointments, doubts, and anxieties” (Smith, 2008, p. 79; see also
Taylor v. United States, 1955). Effective psychotherapy demands “an at-
mosphere of confidence and trust in which the patient is willing to
make a frank and complete disclosure of facts, emotions, memories, and
fears” (Jaffee v. Redmond, 1996, at 10); the “mere possibility” of a breach
of confidentiality could obstruct the development of the treatment rela-
tionship. “The mental health of our citizenry, no less than its physical
health, is a public good of transcendent importance” (Paruch, 2009,
p. 516, citing Jaffee).

These sentiments reflect a broad social policy (Perlman, 2012,
p. 129) in support of treatment for mental disorders, based on the foun-
dation that patients have a right to control the disclosure of their private
information; this right is closely tied to the legal concept of personal pri-
vacy (Paruch, 2009). Shapiro and Smith (2011) note “…the importance
of written waivers of confidentiality and that therapists should exercise
the greatest caution when a waiver will not directly benefit the client”
(p. 74). Thus, when confidential information is disclosed to third parties,
informed consent should be a part of the process in the same way that
patients consent to therapy itself (Nagy, 2011, p. 74).

2.2. Informed consent is also a legal requirement

Compared to privacy rights, consent rights are relatively new. For
many decades, at least as far back as the 1800s, patient consent was lim-
ited to the right to refuse, called simple consent; operating on a patient

without simple consent was governed by the law of battery. This was ex-
emplified by the New York Court of Appeals in Schloendorff v. Society of
New York Hospital (1914): “Every human being of adult years and
sound mind has a right to determine what shall be done with his own
body” (at 93). What made Schloendorff so memorable was not that the
Court harshly rebuked the doctor (equating his actions with trespassing);
it was having to remind physicians, as late as the 20th century, “of such
elementary restraints on their professional authority in a democratic soci-
ety (Katz, 1984, p. 52).

As ethical considerations developed further, the California appeals
court in Salgo v. Leland Stanford Jr et al. (1957) introduced the term in-
formed consent (but did not define it). In Salgo, the doctor performed a rel-
atively new procedure that resulted in the patient becoming paralyzed.
Although there were substantial risks of paralysis inherent in the pro-
posed procedure, the doctor did not disclose those risks, relying on the
tradition that the doctor could use their discretion about what informa-
tion to disclose to the patient. Salgo did not ultimately resolve the ques-
tion of what information should be provided to the patient, but it
acknowledged that the interests of doctors and patients are not perfectly
aligned, and stimulated a great debate about where that boundary should
be placed.

Informed consent reached a watershed when a federal appeals court
in Canterbury v. Spence (1972) completely rejected the doctor’s profes-
sional discretion to withhold information from the patient. To
Schloendorff’s disclosure requirement, Judge Robinson added a require-
ment for free choice (Katz, 1984, p. 72). Free choice, theoretically anyway,
requires that the patient obtain information sufficient to make that
choice. The Canterbury decision, now using negligence law, focused signif-
icantly on the patient’s decision-making process and the importance of
the ability to weigh the risks and benefits (King & Moulton, 2006), now
known as the “reasonable patient” standard (Boumil & Hattis, 2011).3

Canterbury may not be the final word, however, because, although the
court moved the needle, the decision it did not resolve the conflict be-
tween “the need for medical knowledge to elucidate the risks of and alter-
natives to a proposed procedure in the light of professional experience
with the need for medical judgment to establish the limits of appropriate
disclosure to patients” (Katz, 1984, p. 74).

Decisions continued to define the requirements for informed consent,
making it a fiduciary duty (Moore v. Regents of the University of California,
1990) to disclose any and all information that is relevant to the patient’s
decision (Cobbs v. Grant, 1972), and courts recognize a constitutionally
protected liberty interest to refuse treatment, even where such refusal
might result in death (Cruzan v. Missouri DOH, 1990). Privacy, the ethical
foundation of psychotherapy, is also a constitutional right (Griswold v.
Connecticut, 1965; Roe v. Wade, 1973) that includes the right of self-
determination. Thus, informed consent and confidentiality are parallel
and corollary rights (Ebert, 2012; Winick, 1992).

2.3. Informed consent is also required in forensic contexts

Not only is informed consent a requirement for purposes of treatment
(APA, 2002, standard 10.01), but consent is at least as important in foren-
sic cases (e.g., Gold & Shuman, 2009)—particularly since patients may
(wrongly) assume that their confidentiality will prevent compelled dis-
closure in court-related cases (Greenberg & Shuman, 1997). The
American Psychological Association’s Specialty Guidelines use the term
eight times (APA, 2013). The American Academy of Psychiatry and Law
requires consent via Guideline III (AAPL, 2005). Informed consent for fo-
rensic services may be the same as or may differ from the clinical context
(Ebert, 2012). For example, a criminal defendant has a constitutional right
to be warned how information obtained during a psychological evalua-
tion may be used in the case (Estelle v. Smith, 1981). A multitude of

4 Two states, MN and NM, are classified as having a hybrid standard.

21B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

informational issues should be addressed during the informed consent
process for a forensic evaluation—including legal issues, the limits of con-
fidentiality, who may have access to the information obtained, and what
will be done with it (Foote & Shuman, 2006; Heilbrun, 2001; Knapp &
VandeCreek, 2001; Melton, Petrila, Poythress, & Slobogin, 2007).

3. Barriers to obtaining fully informed consent

3.1. Psychologist-based barriers to informed consent, generally

A number of factors hamper informed consent, but these only serve to
demonstrate a need for increased efforts to ensure that consent is truly in-
formed. Psychologists may be one of those impediments. Some may min-
imize the need for, or resist performing fully informed consent, because
they do not agree that informed consent is desirable. The practice has
been called ‘bad medicine’ and ‘absurd’, based upon arguments that in-
formed consent in the psychotherapy context will frighten patients, that
they won’t be able to understand or remember the information provided,
and that the psychologist’s responsibility for the patient’s well-being is in-
compatible with patient autonomy (Meisel & Kuczewski, 1996). Others
believe that it may interfere with the therapeutic relationship or hinder
treatment (Handelsman, Kemper, Kesson-Craig, McLain, & Johnsrud,
1986; Kimmons, 1980), that disclosure of PHI is too routine to warrant a
formal informed consent, or they lack the time needed for an extensive
discussion about every procedure (Braddock, Fihn, Levinson, Jonsen, &
Pearlman, 1997; Knops et al., 2013). Psychologists may feel a need to safe-
guard material from inappropriate release, resisting any disclosure to the
legal system, thus abrogating patient choice (Borkosky, 2014; Koocher &
Keith-Spiegel, 2008).

Determination of patient capacity to consent is problematic. While
only 3–25% of mental health consultations in hospital settings involve
questions about patients’ competence to make treatment-related deci-
sions, an estimated 48% of hospital patients are judged incompetent
(Appelbaum, 2007, pp. 1834-35). The reliability of unstructured judg-
ments of competence is poor (Appelbaum, 2007, p. 1835), and the defini-
tion of competency and the degree of competency required of patients in
order to exercise informed consent is uncertain (Winick, 1992). There ex-
ists no authoritative framework for thinking about legal competence, no
clear standards for determining it, no national standards, and no formal
practice guidelines from professional societies (Appelbaum, 2007,
p. 1838). Some psychologists may improperly equate diagnosis of serious
mental illness with incapacity (Appelbaum, 2007, p. 1835).

Procedure standards for disclosing information about potential risks
are inadequate, and there is little consensus within the field about
which potential risks to disclose (Sarkozy, 2010). Furthermore, informed
consent standards were developed primarily from physical medicine, and
the degree to which they apply to psychology is controversial (Knapp &
VandeCreek, 2006). Psychologists may not know which standard (reason-
able-physician or reasonable-patient) to apply when determining what
information to disclose. As a result, written consent documents may
omit relevant information or may not permit patients to apply the infor-
mation to their specific decisions about treatment (Appelbaum, 2007,
p. 1835).

Even if psychologists agreed about the content of an informed consent
disclosure, there is professional disagreement about the appropriate care
that should be provided for any particular problem—the type, nature, fre-
quency, and length of treatment varies considerably across geographic re-
gions, and even by facility (King & Moulton, 2006). If providers
recommend different treatment, their informed consent disclosures
would similarly differ. Practices vary considerably in regards to informed
consent procedures and disclosure of risks (Handelsman et al., 1986; Noll
& Haugan, 1985), and the most common source of patient dissatisfaction
has been the failure to provide sufficient information about the patient’s
condition and available treatment options (King & Moulton, 2006).

Furthermore, psychologists do not always effectively communicate
the information needed by patients, leading to poor understanding

(Doyal, 2002; Hall, 2001), even in circumstances where a high standard
of communication should be required (such as risk of death) (Doyal,
2001). Indeed, the evidence of poor communication is so strong that it
is unclear what sense to make of the research that suggests that patients
are poor recipients of information (Doyal, 2001).

3.2. Barriers due to limitations of the legal definition of informed consent,
generally

Because most statutes and court opinions addressing competency do
not provide a sufficient analysis of the concept of informed consent and
its elements, or clear standards for determining it, there is no “authorita-
tive framework for thinking about legal competence and clear standards
for determining it” (Berg, Appelbaum, & Grisso, 1995, p. 347). Statutes
that specify a standard for competence are often vague, and offer little
practical guidance for those who must apply it (Berg et al., 1995,
p. 348). Terms such as “understanding” or “rationality” may be poorly de-
fined and used indiscriminately. States are almost evenly split between
the physician-based standard (25 states) and the patient-based standard
(23 states and the District of Columbia), and there is considerable variabil-
ity in statutory language, even within categories (King & Moulton, 2006).4

These differences raise significant questions about the validity of the ‘rea-
sonably prudent doctor’ standard for disclosure (King & Moulton, 2006).

3.3. Patient-based barriers to informed consent, generally

Other causes for failure to obtain informed consent may lie with pa-
tients; research has shown a number of problems with patients’ reception
and retention of information, as well as their ability to make decisions. As
discussed earlier, the process of consent may be hurried or perfunctory,
and patients may feel coerced into authorizing disclosure of their PHI. Cli-
ents are often uneducated about their rights and responsibilities related to
disclosure of clinical information (Hamberger, 2000, p. 91), and they may
not have accurate knowledge of the concepts of confidentiality or in-
formed consent to release confidential information (Hamberger, 2000,
p. 90; Baird & Rupert, 1987; Jagim, Wittman, & Noll, 1978; Miller &
Thelen, 1986; Schmid, Appelbaum, Roth, & Lidz, 1983). Patients may
wrongly assume that confidentiality requirements broadly apply in
court-related cases (Greenberg & Shuman, 1997), may be unaware
whether their jurisdiction has a privilege statute or rule, and/or may be-
lieve that the psychologist’s ethics code provides adequate assurances of
confidentiality (Paruch, 2009).

Patients may not understand the implications of their consent to dis-
close information, and may not fully realize that they are permitting
third parties to use and share their information (Koocher & Keith-
Spiegel, 2008, p. 212). They may not have a sufficient knowledge of
their rights (Greenberg & Shuman, 1997; Hamberger, 2000, p. 90;
Paruch, 2009), and often do not have sufficiently complete or accurate
knowledge of the contents of their PHI to make an informed decision
about whether to disclose (DeKraai & Sales, 1982; Hamberger, 2000, pp.
90-91). Some patients completely abdicate their decision making authority,
explicitly stating that they want their doctor to make the final decision
(Doyal, 2002).

Patients are sometimes unable to understand clinical information and
they may not believe that the consent process is of much moral (in the
bioethics sense) importance to them (Doyal, 2002). A high percentage
of patients make fundamental errors in risk evaluation, even when pre-
sented with the simplest information (Doyal, 2001). Patients may not
fully comprehend even basic information about conditions, prognoses,
and treatments, let alone risks (Doyal, 2001). Even when patients do un-
derstand benefits and risks, it is often quickly forgotten—so much so that
it is unclear how it could have ever been a foundation for coherent delib-
eration about treatment choices (Doyal, 2001). In various studies, only

22 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

21% to 86% were able to recall the potential risks and complications of
their medical procedure (Sherlock & Brownie, 2014); 11 studies of risk
comprehension for surgery revealed that only 29–36% of patients had ad-
equate comprehension (Falagas, Korbila, Giannopoulou, Kondilis, &
Peppas, 2009). Patients’ recall of the information given can be consider-
ably less than the information doctors remember providing; for example,
only 9% of patients recalled discussing the risk of the infection in blood
transfusion, and only 12% of patients identified fever as a risk (Sherlock
& Brownie, 2014).

Mental disorders such as dementia, neuropsychological impair-
ments, schizophrenia, depression, and bipolar disorder have relatively
high rates of incompetence. In terms of mental health symptoms, lack of
insight (the lack of awareness of illness and the need for treatment) has
been reported to be the strongest predictor of incapacity (Appelbaum,
2007, p. 1835).

4. The need for informed consent for disclosures to the legal system

Not only is informed consent for psychotherapy an obligation that is
sometimes difficult to achieve, informed consent regarding disclosures
to the legal system should be considered a separate and distinct need
(Dwyer, 2012, p. 112). The requirements for such disclosures differ signif-
icantly from disclosures to nonlegal third parties, the risks are substantial-
ly greater, and the patient’s privacy rights are not always protected because
they must be balanced against the legal system’s need for information.

4.1. Disclosure problems resulting from conflating confidentiality and
privilege

Professionals of all types (scholars, legislators,5 attorneys, judges, psy-
chologists, and Boards of Psychology) have difficulty distinguishing be-
tween confidentiality and privilege (Bemister & Dobson, 2012; Borkosky
& Thomas, 2013; Bernstein & Hartsell, 2005; Boynton v. Burglass, 1991;
Kasdaglis v. DOH, 2002; Koocher & Keith-Spiegel, 2008; Perlman, 2012,
p. 133). However, the requirements for disclosures to the legal system dif-
fer significantly from disclosures to nonlegal third parties; this difference
is often not appreciated, increasing patient difficulty in understanding the
risks and benefits of disclosure. Some psychologists may assume that psy-
chotherapy notes (protected by HIPAA) are not discoverable in court and
are then unpleasantly surprised when a subpoena duces tecum requires
them to appear in court with ‘any and all documents, reports, and notes’
(Evenson v. Hartford, 2007; Koocher & Keith-Spiegel, 2008, p. 209).

Others, for a variety of reasons, wrongly disclose patient information
without obtaining patient consent. In Florida, eight mental health pro-
fessionals were sanctioned, over a 7-year period, for such behavior.6 In
another case, both the psychologist and the patient’s attorney failed to
assert privilege, thereby nullifying the minor patient’s right to assert
privilege (Hughes v. Schatzberg, 2004). Statutes often do not provide a
clear explanation about the requirements for disclosure to the legal sys-
tem when two or more clients are seen simultaneously in therapy; priv-
ilege may only cover communications that are uttered in confidence, so
when statements are made in the presence of another family member,
the confidentiality of such communications is unclear (Margolin,
1982). The applicability of the psychotherapist–patient privilege is
often unclear and highly variable across jurisdictions (e.g., in custody
cases) (Boumil, Fretias, & Freitas, 2012; Melton et al., 2007)

4.2. Improper disclosures can be harmful to patients

The goals of psychotherapy and law differ greatly. PHI is created
throughout a course of psychotherapy, with the purpose of documenting
the emergence and resolution of the patient’s thoughts and feelings,

5 Section 490.0147, Fla. Stats.
6 DOH cases 2001-17158, 2004-27669, 2004-28871, 2004-33680, 2005-64734, 2006-

25721, 2006-28836, 2008-4313.

especially those that are conflictual and ambivalent. The purpose of
the legal system, on the other hand, is to assign civil or criminal lia-
bility or to make other decisions as a means to resolve disputes.
Thus, PHI could easily be misconstrued or misused by the legal sys-
tem (and therefore be harmful to the patient) (Dwyer, 2012, pp.
112-13; Hamberger, 2000, p. 91). For example, in a typical personal
injury civil case (tort, civil rights, or discrimination case), one of a
plaintiff’s attorney’s first tasks is to ask the client to list all current
and recent health care providers, including treating psychologists.
Information regarding mental health treatment may also be sought
in child custody or child welfare cases (where a parent’s capacity
to provide a safe and stable home for a child is at issue), or in crim-
inal matters (where there may be questions about a defendant’s
competence or mental state at the time of the alleged crime). Mental
health PHI could conceivably be sought when the patient becomes
involved in almost any type of litigation, such as determinations of
civil competency, fitness for duty, guardianship, violence risk, juve-
nile delinquency, disability, and disputes regarding educational ac-
commodation and employment. Similarly, wrongful refusal to
disclose PHI for patients in family court risks loss of access to their
children or parental rights (Dwyer, 2012, p. 110).

Attorneys may ask clients to sign a stack of medical information
releases, usually blank, which attorneys will then complete and
send out with a boilerplate cover letter to each of those providers
asking that all of the clients’ PHI be provided to the attorneys.
This step may be so routine that it is often treated as unimportant
(Beightol, 2013). However, there can be significant consequences
to a patient when those health care providers release the patient’s
PHI, particularly in the case of disclosure of PHI from a psychologist;
such records can be powerful tools if they end up in the hands of the
opposing attorney. As discussed below, there are several potential
implications flowing from the release of mental health PHI, some
of which the attorney’s client (the patient) may not anticipate or
understand at the time she/he signs that blank release form, if not
clearly explained by the attorney.

The legal system actors discussed herein (patient’s attorney, op-
posing attorney, and the court) each have different roles with re-
spect to a patient’s privacy right and preservation of the
psychotherapist–patient privilege. The patient’s attorney has obli-
gations to identify and gather information and potential evidence
that could be used to support the patient’s position in the litigation,
and to advise the patient about the implications of any releases or
waivers as part of that process. The attorney also has a duty to pro-
tect the patient’s privacy by releasing only that information needed
to protect the patient’s position in the litigation, and, by advocating
on behalf of the patient to ensure that his/her privacy is otherwise
respected throughout the litigation process. As we shall see, these
responsibilities may not always be fulfilled.

The opposing counsel’s duty is to act in the best interests of his/
her client, such as the person or entity alleged to have caused an in-
jury to a personal injury plaintiff, the other parent in a custody dis-
pute, or the state (in an insanity determination). This duty compels
the opposing attorney to obtain as much information as possible
about a patient’s mental health, and to seek (and perhaps use)
any other information that may support the opposing position.
The court has a role in resolving any disputes about access to, or
use of, mental health PHI, to the extent such disputes are presented
to it by one or both parties.

4.2.1. PHI and psychotherapist testimony can support or undermine the
patient’s legal claims

Patients’ attorneys obtain their clients’ PHI for a range of reasons.
The attorney may use PHI to advance the patient’s case, such as includ-
ing a claim for mental/emotional injuries as part of a personal injury
case, or to present evidence of mitigation in a criminal matter. A patient
involved in a child custody case may offer PHI to demonstrate that she/

23B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

he is sufficiently healthy and stable to care for a child appropriately or
to refute allegations of unfitness. Regardless of the type of case in-
volved, if a litigant’s psychotherapist is listed as a potential witness,
disclosure of the patient’s PHI may be required in order to present
that expert’s opinion at trial (Fed. R. Civ. P. 26 (a)(2); Fed. R. Crim. P.
16(b); Shuman, 2005, p. 6-29; Magee v. Paul Revere Life Ins. Co.,
1998). PHI can confirm the dates of treatment, which may establish
the amount of damages tied to medical expenses or confirm that the
patient has maintained consistency in treatment. If helpful to the
case, they can be used to obtain a significant settlement or judgment
(Beightol, 2013; Smith, 2008, p. 88).

Although the admissibility of PHI at trial may be limited by evidence
rules, they can play an important role; a well-documented record of
treatment can provide support for an expert’s opinion, whereas deficient
PHI may subject the expert’s opinion to challenge for failure of an inad-
equate basis (Read, 1996). If a testifying expert called by the patient is a
forensic psychologist (i.e., not a psychotherapist), review of the patient’s
PHI by the examiner is critical for presenting a credible opinion that is
not only based on a clinical examiner of the patient, but which also
takes into account assessments by treating mental health providers
(Shuman, 2005, 2-43, 2-44). Absent such review of PHI, the expert’s
opinion is subject to attack for being manufactured strictly for the trial
(Read, 1996).

4.2.2. Opposing attorneys may use patients’ mental health histories to un-
dermine their claims

Most court rules permit broad “discovery” (information seeking) by
the parties, prior to trial (Fed. R. Civ. P. 26(b)); this discovery process is
essential to developing an effective strategy by exploring and exploiting
all possible routes to advance a party’s position. In cases where the
patient’s mental health history and treatment might possibly be rele-
vant, attorneys will usually try to obtain the patient’s PHI. For example,
in a personal injury case, the defense attorney will try to use the PHI in
order to mitigate or respond to the patient’s claim (Bales and Ray,
1997). Similarly, the attorney representing the other parent in a custody
dispute (or, in the case of a protective custody case, the state) may seek
PHI in order to assert that the patient’s mental illness impairs his/her
parenting capacity.

Accordingly, just as a plaintiff’s attorney may routinely obtain a
client’s PHI as part of an initial case development, opposing attorneys
may routinely issue a broadly worded discovery request for the disclo-
sure of the patient’s entire PHI, including psychotherapy records (Fed.
R. Civ. P. 34(a); Fitzpatrick, 2006, p. 2484; McDonald & Kulick, 2001,
p. 111). Alternatively, the opposing side may seek to require the patient
to execute releases for all healthcare providers, who can then be directly
served with a subpoena (Fitzpatrick, 2006, pp. 2479, 2484). Opposing
attorneys have strong incentives to gather extensive information
about the patient and his/her background, and there is wide range of
potential valuable uses of a litigant’s PHI (specifically), as part of an
overall strategy for defending cases, such as a personal injury or child
custody claim (Read, 1996).

For example, if the patient alleges to have experienced emotional
distress or a psychological injury due to the defendant’s wrongful con-
duct, the patient’s PHI could undermine their claim if they do not re-
flect harm, they suggest that the injury or distress is not as severe as
claimed, or that there is an alternative cause for the injury (Smith,
2008, p. 86). The defense could use a forensic expert to offer testimony
to challenge the patient’s claims, including observations based upon
what she/he finds (or does not find) in the patient’s PHI (McDonald
& Kulick, 2001, pp. 271-272; Melton et al., 2007, pp. 53–54). Prosecu-
tors often take a similar approach in criminal matters to challenge a
defendant’s competency claim or insanity defense (People v. Knuckles,
1995, at 127–129).

Furthermore, a patient/plaintiff may have described the events at
issue in the litigation to their therapist. To the extent that those state-
ments are inconsistent with other statements or trial testimony, the

statements in the PHI could be used to suggest that the patient has
told different stories at different times (thereby calling his/her credibil-
ity into question) (Read, 1996, p. 19). The PHI may include statements
by the plaintiff reflecting feelings about the litigation itself, which
could be used to allege alternative motivations for the lawsuit
(e.g., Maday v. Public Libraries of Saginaw, 2007; Murray v. Bd. of
Education, 2001, at 156).

In addition, to the extent that the PHI demonstrate that the plaintiff
had a preexisting mental health diagnosis or sources of stress in his/
her life other than the event at issue in the litigation (e.g. work, rela-
tionship, or family problems), a defense attorney could use such evi-
dence to argue that the defendant should not be liable for emotional
damages or that the damages stemming from the defendant’s liability
should be reduced or apportioned (Foote & Goodman-Delahunty,
2005, p. 86; King, 1981, pp. 1356–1357; Mason & Ekman, 1998,
p. 495; Smith, 2010, p. 762). Accordingly, a defense attorney may as-
sert that she is entitled to obtain the patient’s entire mental health his-
tory on the basis that it may be relevant to show potential alternative
sources of causation for emotional injuries. Defense attorneys try to
obtain psychotherapy PHI because they may reveal “prior or concur-
rent alternative stressors, such as childhood sexual abuse or marital
discord,” which could arguably be a contributing or alternative cause
of emotional distress (McDonald & Kulick, 2001, p. 272). Using this ap-
proach, for example, defendants have successfully sought and obtained
marital counseling PHI in loss of consortium claims (e.g., Price v. County
of San Diego, 1996, at 622-23). Defense experts often request access to
as much information as possible, to support their opinion about the
causation of the patient’s psychological condition (Smith, 2010,
p. 769).

An opposing attorney may also offer evidence of a patient’s history of
mental illness to suggest that the patient’s conduct (e.g., acting irrational-
ly), during the events in question, was caused by such illness, or that a
patient’s personality disorder was a contributing factor in the events
(McDonald & Kulick, 2001; Smith, 2010). For example, the defendants
in a police excessive force case successfully argued that they should be
permitted to offer testimony of the plaintiff’s psychiatric history to sug-
gest plaintiff’s “state of mind” the night of the alleged assault by the defen-
dants (Bemben v. Hunt, 1995).

In the child custody context, courts are usually willing to admit evi-
dence of a parent’s mental health history, because the central issue to
be resolved—what outcome would be in the “best interests of the
child”—sets forth a broad interpretation of what constitutes “relevant” ev-
idence to answer such question (Paruch, 2009; Waits, 2001). In fact, some
courts will not even recognize the psychotherapist–patient privilege in a
family law case because they consider the importance of admitting infor-
mation about the parties’ parenting capacities as overriding any privacy
rights (Paruch, 2009; Waits, 2001). Similarly, some jurisdictions have no
privilege at all (for either defendant or victim) in criminal cases
(e.g., Tex Oc. Code Ann §159.003).

Finally, an attorney may attempt to use a patient’s mental health
history to undermine his/her credibility as a trial witness, such as to
suggest that the patient’s statements are delusional or that she/he
had an inaccurate perception of the events in question (McDonald &
Kulick, 2001; Smith, 2010). Credibility is often a central issue in trials,
where the parties present competing, inconsistent narratives regarding
events and their bearing on the defendant’s alleged liability. For this
reason, criminal defense attorneys often attempt to compel disclosure
of an alleged victim’s mental health history for use at trial (Smith,
2010). This tactic is less common in civil litigation than in the criminal
realm, but reported opinions indicate that it is a practice permitted by
at least some courts (e.g., Frazier v. Topeka Metal Specialties et al., 2001;
Revels v. Vincenz et al., 2004; Sudtelgte v. Reno No. 90-1016-CV-W-6,
1994).

Even if the opposing attorney does not expressly argue that the court
should use the patient’s mental health history as a basis to discredit his/
her testimony (or to conclude that mental illness was a contributing

24 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

factor to the events in question), the stigma and prejudice that a mental
health diagnosis carries may nonetheless influence jurors’ and judges’
perception of the patient and therefore their conclusions about his/her
position in the case (Smith, 2010). Thus, the opposing attorney has an
incentive to come up with any argument that the patient’s mental
health history is relevant to an issue at trial.

In addition, a litigant–patient may be embarrassed or humiliated
by the disclosure of personal details contained in such PHI (Dwyer,
2012, p. 112; Smith, 2008). A patient might be questioned about
his/her mental health history, specific entries in the therapist’s
PHI (Bernabei & Schroeder, 2004), or even prior abortions, sexual
orientation, or marital problems (Robinson, 1994). A treating psy-
chologist may also be deposed, through which she/he may be
questioned about the significance of references and details
contained in the PHI (Read, 1996, pp. 18-19).

An additional implication of the disclosure of mental health PHI is
that, through use of public information requests (or even simple inter-
net searches) about the litigation, the personal details may become
known to the patient’s family, friends, coworkers and others, which
can potentially injure the patient’s reputation and relationships (Jacob
& Powers, 2009). The prospect of disclosure of, and confrontation
with, this PHI at trial may intimidate a patient into settling early and
perhaps for less money that she/he had hoped to recover or the case is
worth. Alternatively, she/he may attempt to structure his/her claims
so as to not trigger a compelled disclosure or use of his/her mental
health history, thereby limiting the compensation she/he will receive
for his/her injuries (Smith, 2008; Streseman, 1995).

4.2.3. The courts’ role in the disclosure and use of PHI is not protective of
patients

Perhaps surprisingly, courts have little involvement in the protection
of patient rights. Consistent with the adversarial system of litigation in
the United States, courts do not become involved with disputes
concerning disclosure of PHI unless the parties (or, in more unusual situ-
ations, a psychologist) bring a dispute to the court’s attention. This is be-
cause most courts expect the parties’ attorneys to participate in discovery
without court supervision and only to seek the court’s assistance after
good faith attempts to resolve such disputes have failed (Fed. R. Civ. P.
37(a)). Judges place primary responsibility on the patient, psychologists,
and attorneys to raise the issues implicating a patient’s privacy rights.
The result of this approach is that courts do not, in fact cannot, have a
role in protecting a patient’s rights unless and until a party raises a dis-
pute. Disputes generally begin when a patient or his/her psychologist
(Wright et al., 2005; Hughes v. Schatzberg, 2004) refuses to provide PHI
in response to a discovery request or subpoena (Smith, 2008). The law
does not always provide clear guidance for judges on how to resolve
such disputes (and the easy questions do not usually need to reach a
judge), so the outcomes can be difficult to predict (Smith, 2008). As
discussed above, courts generally admit mental health evidence, such as
that relevant to a personal injury claim (Smith, 2010) or parenting ability
(Paruch, 2009).

Defense attorneys in personal injury cases may assert that disclosure
of some PHI (such as the PHI of a psychotherapist) should be considered
to have “opened the door” to compelled disclosure of a plaintiff’s entire
mental health history (Anderson, 2013; Fitzgerald v. Cassil, 2003; Smith,
2010). Trial courts (even within the same federal district) take a range
of approaches to questions of whether a plaintiff’s claim for emotional dis-
tress damages can, in itself, constitute a broad waiver of the psychothera-
pist–patient privilege, thereby entitling a defendant to disclosure of PHI
(Anderson, 2013; Vanderbilt v. Town of Chilmark, 1997) (narrow approach
to waiver); Doe v. City of Chula Vista, 1999) (broad approach to waiver). In
short, patients who have authorized only a very limited release of infor-
mation about their treatment cannot assume that courts will step in to
protect their confidentiality and privilege rights against compelled disclo-
sure of additional information.

4.2.4. The patient’s attorney may not adequately protect the patient’s rights
Although the patient’s attorney may anticipate when a patient’s

mental health history will be the subject of a discovery request, far too
few attorneys discuss the implications of disclosure of PHI with their cli-
ent when they ask the client to authorize release. The uncertainty creat-
ed by the varied and case-specific court rulings can make it difficult for
the attorney to provide any degree of assurance to the patient regarding
whether and to what extent his/her mental health history may be sub-
ject to compelled disclosure and use during discovery and/or at trial.

Because the retrieval and disclosure of medical (including mental
health) PHI are such a routine part of litigation, many attorneys are
not as careful as they should about explaining the discovery process to
their clients. Some patients’ attorneys may assume that they can wait
to see if any disputes about the release of PHI arise, on the assumption
that they will manage the problem at that time. Others may not be
aware that they can challenge the disclosure of PHI. Thus, many patients
are shocked and distraught when they learn that the PHI containing ex-
tensive personal, sensitive information have been or must be turned
over to people that have harmed them, estranged spouses, and/or
strangers. They may be even more disturbed when they see how oppos-
ing counsel uses the information to intimidate them during the discov-
ery process or to discredit them at trial (Smith, 2008).

Furthermore, patients’ attorneys are not immune to the biases that
plague the population at large. There is a general bias against the men-
tally ill, and this often results in a significant reduction in attorneys’ will-
ingness to represent their mentally ill clients as vigorously as they do
‘normal’ clients (Perlin, 1992).

5. Disclosures to the legal system warrant informed consent

As discussed, obtaining informed consent is a legal and ethical require-
ment, but there are a number of factors that limit obtaining such consent;
clearly, a simple signature on a release form does not constitute informed
consent. Furthermore, the risks of disclosing PHI to the legal system are
substantially more serious than that of disclosing PHI to third
parties—serious enough that informed consent is needed to protect pa-
tient rights. Thus, when psychologists receive a subpoena or court order,
requesting disclosure of PHI, patients would benefit from a complete un-
derstanding of the risks and benefits of all options. This was demonstrated
in one small study, where a majority of patients withdrew their requests
for disclosure after informed consent (Hamberger, 2000, p. 94).

Furthermore, obtaining informed consent can be beneficial to both pa-
tient and therapist. For example, patients rated hypothetical therapists
who used an informed-consent procedure as more trustworthy and ex-
pert, were more willing to seek therapy from that therapist and more
willing to recommend him/her to a friend (Sullivan, Martin, &
Handelsman, 1993). Additional benefits include empowering patients’
self-therapeutic activity and lessening the risk of regressive dependency
(Beahrs & Gutheil, 2001), and increasing clinical gains by making the pa-
tient an active participant in treatment decisions (Behnke & Saks, 1998).

6. A proposed list of risks and benefits for disclosing PHI to the
legal system

We build on the prior work of Hamberger (2000, p. 92) who proposed
an informed consent procedure for disclosure of PHI to the legal system,
and Pomerantz and Handelsman (2004), who provided a suggested for-
mat for facilitating informed consent to psychotherapy. Also, Fidnick,
Koch, Greenberg, and Sullivan (2011) and Dwyer (2012) described a
need for a distinct informed consent process for patients involved in the
legal system, and Johnson-Greene (2005) described the need for a formal
consent procedure for neuropsychological assessment, inclusive of foren-
sic situations. Both models suggest that the disclosed information be un-
derstandable, include a description of the proposed services, risks and
benefits of the proposed services, fees, the limits of confidentiality, and in-
volvement of third parties, and that the patient have an opportunity to ask

25B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

questions. Johnson-Greene (2005) adds disclosure of ‘discomforts’, and an
assessment of competency by the evaluator, and proposes an informed
notification procedure for legally mandated evaluations. Fidnick et al.
(2011) and Dwyer (2012) recommend that the patient be encouraged
to consult with counsel prior to signing an informed consent.

6.1. Potential risks and benefits of disclosure

The potential consequences of disclosure are highly dependent upon
what is being disclosed, to whom, and for what reason; a cookie-cutter
approach should not be used. The benefits of disclosing PHI to the legal
system include supporting the patient’s legal case and helping to ensure
a successful outcome. The PHI might also be used by expert witnesses
as part of their data collection process, and may help influence the ex-
perts’ favorable opinions.

There are a number risks inherent in disclosure, however, which
may be less apparent to the psychotherapist, patient, and attorney.
The record may not support the patient’s assertions, and may harm
his/her case. There may be additional costs if there is a dispute about
the information. The information may provide a basis for the court to
order a psychological evaluation, resulting in more time and expense.
Perhaps the most salient risk to patients might be the fact that everyone
in the courtroom will learn about their private information, resulting in
substantial potential shame, embarrassment, and/or guilt (Dwyer, 2012,
p. 112). Not only will strangers be privy to the information, but also the
person who injured the patient, warring spouses, family members, etc.
In fact, the court system is generally open to the public, so it is quite
easy for the information to find its way to other entities, or even to be-
come public knowledge (Hamberger, 2000, p. 91). This may be a signif-
icant risk in a small town or if the information finds its way onto social
media. Furthermore, to the extent others do become aware, there may
be subsequent life losses, such as to relationships, employment oppor-
tunities, social standing, or eligibility for various services or benefits
(Gold & Shuman, 2009, p. 6; Hamberger, 2000, p. 91). If the information
is unfavorable to the patient and becomes known by others, it may re-
sult in subsequent court-imposed penalties, fines, or charges, and
there may be future litigation, such as civil or administrative cases, or
even possibly criminal charges.

6.2. Potential risks and benefits of refusing to disclose

The primary benefit to declining release of records is that the patient
might be able to avoid the numerous risks associated with disclosure of
their PHI. The downside of such refusal (from a legal perspective) is that
it will limit his/her ability to present evidence with respect to emotional
and mental injuries as part of her claim. Refusing might cause the pa-
tient to receive fewer damages, or even lose the case entirely. If there
is a mental health expert in the case, the expert might limit his/her
opinion, not be able to form an opinion, or even decline to perform
the evaluation. If the patient refuses to disclose some or all records,
she/he may face court-imposed penalties, fines, or sanctions, or even
the exclusion of all mental health evidence (Magee v. Paul Revere Life
Ins. Co, 1998).

6.3. Static/common issues to be aware of

Regardless of patient choices, some matters are unaltered. HIPAA reg-
ulations are quite permissive regarding disclosures of PHI to the legal sys-
tem, and do not require patient authorization in cases of court order,
when required by law, for judicial or administrative proceedings or man-
datory abuse reporting, to law enforcement agencies, public health activ-
ities health oversight agencies, or when the psychologist receives a
subpoena (45 C.F.R. §164.512; see also Cohen, 2006). State laws require
a written, signed authorization to disclose PHI, and are likely not
preempted by HIPAA (making them ruling law). Thus, HIPAA does not
prohibit disclosures of PHI to the legal system; the rules of evidence and

discovery overrule HIPAA. However, a HIPAA-authorization to disclose
PHI can require disclosure (e.g., see Johnston v. Weil et al., 2011). Patient
request to disclose PHI in one instance does not permit subsequent disclo-
sures to any entities outside the legal system. Since each HIPAA-based re-
quest to disclose PHI requires a unique authorization form, a separate
authorization should be completed for each disclosure. Finally, waiver of
privilege may apply only to one specific legal case. Although waived for
the purposes of one litigation, the privilege generally remains intact in
other cases; it should be made clear to all concerned that the authoriza-
tion for disclosure does not apply to any other concurrent or future
cases. A separate consent procedure and authorization for disclosure
should be completed for any other cases in which records are
requested.

6.4. Development of the sample form

Based on the foregoing information about the risks and benefits of
either disclosing PHI or declining to disclose, as well as other factors,
we developed the model informed consent form (Appendix A). The
form is intended for use in conjunction with the policies listed in the
Recommendations For Practice section. We recommend that the
model consent form be modified for the specific circumstances of the
case at hand; not every benefit or risk will apply to every patient. Fur-
thermore, some states specify the risks to include in informed consent,
as well as other factors, such as an acknowledgment that the patient’s
questions have been answered satisfactorily. Use of a form for informed
consent is strong evidence of actual informed consent, but is not conclu-
sive (Roach et al., 2006). Consent forms may be challenged on the basis
that the wording was too technical or that the form was written in a lan-
guage the patient could not understand. Thus, attempts have been made
to enhance comprehension (Nishimura et al., 2013) by improving the
readability of the model form, and users should remove unneeded
text and increase font size.

7. Limitations

There are a number of limitations about which the reader should be
aware: We do not discuss informed consent requirements for seeking
(or refusing) treatment. Nor do we discuss any of the several exceptions
to the duty to disclose risks and benefits, such as common knowledge,
existing patient knowledge, therapeutic privilege, etc. (Hall, Ellman, &
Orentlicher, 2011, p. 131) There may be a number of proceedings that
require a more finely-tuned discussion of privilege and implied waiver
of the same (see, e.g., Perlman, 2012). There may be considerable varia-
tions when families, children, or groups are involved (e.g., Attorney Ad
Litem for DK v. Parents of DK, 2001). We do not discuss procedures for
court-mandated psychotherapy (the reader is referred to Fidnick et al.,
2011, & Perlman, 2012). Professionals working in international settings
may have different ethical and legal requirements. Even in the U.S.,
there can be wide variations among jurisdictions (or even individual
judges) in the application of psychotherapist–patient privilege
(e.g., child custody, see Paruch, 2009; Waits, 2001); requirements for in-
ternational jurisdictions may differ significantly from U.S. law, so pro-
fessionals should become familiar with local requirements. There may
also be local variation in requirements for responses to subpoenas. For
general advice regarding responding to U.S. subpoenas, see APA COLI
(2005), Barsky (2012), Perlman, (2012), Bernstein and Hartsell
(2005), and Jennings and Hays (2011). We do not discuss the merits
or harms of disclosing psychological test data to the legal system (a
quite controversial subject). Finally, we do not discuss informed consent
for forensic evaluations, although the forensic evaluator reader may find
the information useful. For example, the common practice of child cus-
tody evaluators is to routinely seek PHI of treating therapists as collater-
al information without consideration of privilege implications; this
practice may create unforeseen and unwanted legal and ethical conse-
quences (Borkosky & Thomas, 2013).

26 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

8. Recommendations for practice

8.1. Beginning therapy

At the onset of therapy, the patient should be advised about confiden-
tiality, privilege, and privacy limitations (Perlman, 2012, pp. 133–135).
Regarding general informed consent for mental health services, we refer
the reader to Koocher and Keith-Spiegel (2008), Boumil and Hattis
(2011), Pomerantz and Handelsman (2004), and Grisso and Appelbaum
(1998). Some therapists may attempt to avoid involvement with the
legal system by including a clause in the psychotherapist–patient agree-
ment contract preventing the patient from calling the therapist as a wit-
ness. Such an agreement is unlikely to prevent compelled disclosure of
records or testimony (Perlman, 2012, p. 135). Although some therapists
may worry that a frank discussion of confidentiality limits may reduce cli-
ent openness, clarity usually increases trust (Borkosky, 2014, p. 278;
Perlman, 2012, p. 134).

Many therapists lack sufficient knowledge about patient privacy
rights, and are advised to become familiar with the laws in his/her juris-
diction, as well as their responsibilities and patient rights (Perlman,
2012, p. 140). For example, generally, subpoenas or other methods of
discovery to not, by themselves, constitute a waiver of the patient’s
privilege (whether privilege applies or not is a legal decision, made by
the trier-of-fact when the issue is in dispute). However, from a practical
perspective, the only time that a psychologist can uphold (assert privi-
lege on behalf of the patient) the patient’s privilege is when she/he re-
ceives a discovery request. Once the records are disclosed, the
attorney in receipt of the records has control over distribution; thus,
the only time when a therapist can assert privilege on behalf of the pa-
tient is at the moment that disclosure is requested. Remember, “it is the
client who ‘holds’ or owns the privilege … [and] has the power to decide
whether to give up (“waiver”) or insist on (“assert”) the privilege”
(Perlman, 2012, pp. 154–155).

8.2. When the patient/litigant is considering releasing records to the legal
system

The primary responsibility for advising a patient about the full
range of potential legal implications of disclosure of PHI lies with
the patient’s attorney, and psychologists should encourage patients
to consult their attorneys to review such implications. A patient’s
attorney should advise the patient that any disclosure about his/
her past or current mental health treatment is likely to trigger a
broad discovery request for PHI. If so, to the extent a patient re-
fuses to provide PHI, dispute regarding whether to compel disclo-
sure for PHI would likely ensue, and require resolution by a
judge. Patient and attorney should therefore discuss options for
overall litigation strategy to minimize the chances for compelled
disclosure at the outset of the representation (Fitzpatrick, 2006),
and patients should consider the risks and benefits of pursuing
such a claim before the case is filed. If the patient decides to pro-
ceed with litigation, the attorney and patient should discuss the
significance of authorizing disclosure and the attorney should
alert the client when (and to what extent) any records obtained
by the attorney are turned over to the opposing counsel during
discovery. Patients who are not represented by counsel vary con-
siderably in their knowledge of the law; they should be advised
that the psychologist cannot offer them legal advice and that
they should consider the advantages of retaining counsel (Dwyer,
2012, p. 123).

Psychologist and attorney should confer (Perlman, 2012, p. 141) re-
garding the psychologist’s role in (or exclusion from) the case, the issues
being litigated, and the information and/or opinions that the attorney
hopes the PHI will reveal. The goals of the opposing side, and whether
(in what way) the opposing side may attempt to use the PHI should
also be discussed (Fidnick et al., 2011; Foote & Shuman, 2006). The

therapist should inform the patient’s attorney regarding the nature
(generally) of the content of those records, including aspects that may
both support and militate against the attorney’s position (Perlman,
2012).

A patient’s authorization to disclose PHI to his/her own attorney will
not in itself trigger a waiver of the psychotherapist–patient privilege,
since the PHI is then covered by the attorney-client privilege (Wright,
Graham, Gold, and Graham (2005)). However, the attorney’s release of
the PHI to an expert or to the opposing attorney usually does constitute
some waiver of privilege. If the subpoena was sent by opposing counsel,
one should obtain permission from the patient to confer with the patient’s
attorney, and then discuss response options (Fidnick et al., 2011; Perlman,
2012).

8.3. When the request for disclosure arrives

When considering disclosures of PHI to the legal system, patients
should be informed of their rights, responsibilities, risks, and benefits
(Hamberger, 2000, p. 92; Younggren, Fisher, Foote, & Hjelt, 2011); the
treating psychologist has an additional obligation to ensure that the infor-
mation released will be helpful to the legal process, is clear and less likely
to be misused (Zimmerman et al., 2009). The psychologist may need to
include additional qualifying remarks to explain the PHI or the limits of
relevancy to the case at hand. The psychologist should consider whether
the minor has an independent right to waive (or refuse waiver of) privi-
lege (see, e.g., Attorney Ad Litem for DK v. Parents of DK, 2001). Consider-
ation should be given to the patient’s competence to consent, and to
how the patient’s mental illness, cultural background or highly charged
emotional state might affect that capacity; if the patient’s capacity to con-
sent is in doubt, the patient’s attorney and/or the court should be notified
(Dwyer, 2012, pp. 111–112). Fees for all proposed services and who will
be responsible for payment should be clarified, with all entities, at the out-
set (Dwyer, 2012, p. 113).

The patient (in concert with the psychologist) should read and be-
come familiar with the content of the PHI (Hamberger, 2000). The psy-
chologist and patient should discuss information that could help the
patient achieve their goals or that could harm them, how the PHI
might be misinterpreted or used against them, whether it contains
highly personal information that might embarrass them, and whether
the PHI contains outdated information (Fidnick et al., 2011). Aspects
of the record that support patient goals should also be discussed. The
patient should be afforded an opportunity ask questions. A shared deci-
sion making process or extended discussion is recommended
(Hamberger, 2000, pp. 92–93; King & Moulton, 2006; Nishimura et al.,
2013) to improve decision-making and to acknowledge the value of
all parties.

A number of good recommendations for use of the form have been
proffered by Roach et al., (2006, pp. 97–99). It is important to assess
(and document) that the patient was competent to understand the de-
cision being made and that their signature reflects their deliberated
choice. If the person has difficulty understanding English, best practice
is to translate the form in the patient’s primary language. However, it
is usually sufficient to orally have the form translated by a qualified, pro-
fessional interpreter and to certify that the form and discussion were
thus translated. If a patient refuses to sign, but is willing to give oral con-
sent (after explanation), the fact of oral consent and the reason for re-
fusal should be documented on the form, along with the witnessed
signature of the person obtaining the verbal consent. Unless specified
by statute, there is no absolute limit on the period of validity of a con-
sent or documentation of that consent by a signature on a consent
form. If conditions change significantly, the earlier consent is no longer
valid, and a new consent should be obtained. If the patient withdraws
consent (prior to release of PHI) written acknowledgment of the with-
drawal should be obtained from the patient after discussion of the im-
plications of the withdrawal.

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8.4. The process of releasing information to the legal system

We recommend that the model consent form (Appendix A) be modi-
fied for the specific circumstances of the case at hand; not every benefit or
risk will apply to every patient. Attempts have been made to enhance
comprehension (Nishimura et al., 2013) by improving the readability of
the model form, and users should remove unneeded text and increase
font size.

Psychologists should consider options that might protect the patient
by limiting disclosures, such as asking the court to quash the subpoena
(see, e.g., Barsky, 2012) or to limit its scope, requesting permission to re-
dact outdated or irrelevant material, such as the names of third parties
(Fidnick et al., 2011), and seeking an in camera review of the PHI and/or
a protective order for those records that are disclosed (Borkosky &
Thomas, 2013). Typically, these tasks will be best accomplished in con-
junction with the patient and their attorney, but there could be instances
when the psychologist would see a need to address the matter directly
with the court, such as if a patient is not represented by counsel and un-
able to effectively advocate for him/herself (e.g., in family court). Al-
though the reader may be concerned that bringing concerns to the
attention of the court will necessarily involve retaining an attorney and
an expenditure of significant funds, one of us has seen therapists simply
file a letter with the court, which the court then treats as a motion to
quash. However, because each jurisdiction has different rules and prac-
tices psychologists are advised to seek guidance from an attorney before
directly contacting a court.

The client should receive a copy of the completed consent form, and
the original, along with a record of which materials were sent, to whom,
and when should be placed in the patient’s file. The disclosed PHI should
bear a confidential designation (Koocher & Keith-Spiegel, 2008).

Although some states (and HIPAA) permit psychologists to cre-
ate a “summary in lieu of” PHI, we do not advise this for disclosures
to the legal system. It is likely that the summary will not be accept-
able to one or both attorneys, who will subsequently request the
complete PHI. Refusal to release the full PHI may result in being
sanctioned by the court for failing to comply with the court order.
A defense that ‘the statute tells me I can write a summary’ would
likely fail, because the state statute likely does not authorize one
to withhold records. If the psychotherapist–patient privilege is
waived, release of records is no longer optional or prohibited—it is
required. Thus, even without a court order, disclosure of non-
privileged PHI would be ‘required by law’ if the PHI is properly re-
quested or subpoenaed. Release of a summary is therefore an addi-
tional record, that was created some time after the rendered
services, which the attorneys must review. This may impose an ad-
ditional cost on the patient for the time required to review. To the
extent that there are differences between the summary and the un-
derlying records, those differences will need to be resolved, and the
resolution may require a hearing and testimony. These factors may
impose a delay of the legal proceedings and additional costs to the
patient. If the differences between summary and PHI are significant,
it could be alleged that the therapist attempted to thwart the legal
system (especially if the therapist had resisted releasing the under-
lying records), or one’s credibility could be questioned.

8.5. On offering testimony in court

If the patient requests that a therapist testify on their behalf, psychol-
ogists are advised to study the literature regarding the differences be-
tween forensic and treating experts, beginning with the seminal articles
in psychology and psychiatry (Greenberg & Shuman, 1997; Strasburger,
Gutheil, & Brodsky, 1997), and the limitations discussed with the patient.
There may be important ethical and legal considerations that a therapist
should consider prior to testifying about a patient (e.g., patients may
have various motivations for requesting testimony, Borkosky & Thomas,
2013; Dwyer, 2012, p. 117). The patient should “… understand that

testimony that whitewashes or ignores the vulnerable areas of a client’s
functioning may not be credible testimony” and that the therapist cannot
predict how events will unfold; a number of factors may interfere with in-
formation that the therapist had hoped to convey (Perlman, 2012, p. 142).
Patients should be informed that they may be disappointed in the
psychologist’s actual testimony (Perlman, 2012, p. 142), which may
harm or even destroy the doctor-patient relationship that they once
enjoyed (Borkosky & Thomas, 2013; Barsky, 2012, pp. 173–174; Bailey,
2003, p. 73), and may preclude the patient from ever seeking therapy
again (Perlman, 2012, p. 165). As noted at the beginning of this article, pri-
vacy, the foundation of psychotherapy, may be irrevocably lost (Dwyer,
2012; Jaffee v. Redmond et al., 1996; Roback & Shelton, 1995; Watson &
Levine, 1989).

It is possible that one could be called as a witness to provide
nonprivileged information. Since the courts interpret what information
is privileged very narrowly, one might be required to provide evidence
on other matters; for example, if the statute makes your “communica-
tions” with the patient privileged, you might be required to testify
about dates of service, or other persons that were in the waiting room.
Once on the witness stand, one should remain alert for questions
that call for the disclosure of privileged information. If one has a doubt
about whether something is privileged, one can seek guidance from
the judge, by saying something like, “Your honor, I have now been
asked about a matter which is confidential and might be privileged, I
would appreciate it if the court would direct me whether to respond
to the question.”

9. Summary and conclusion

We have advanced a number of issues and recommended actions to
consider when anticipating disclosure of PHI to the legal system. Some
may find these issues to be unnecessary, as their standard practice
may be to either wholly resist disclosures, or to simply release all PHI
upon receipt of a signed authorization. These may not be good practice,
however, as they may be contrary to both law and ethics. Improper dis-
closure of, or patient access to, PHI remains one of the top disciplinary
complaints against mental health practitioners (Tossell, Stewart, &
Goldman, 2006; Vanderpool, D., personal communication, 6/25/2013).
A good risk management strategy should include careful consideration
of whether to release records and which records to release—especially
important for disclosures to the legal system. Increased involvement
of patients in that process will likely reduce the possibility of patient
complaints or judicial sanctions, in addition to supporting patient
autonomy.

The authors would like to thank Floyd Jennings and Allen Barsky for
their comments on a previous version of this article.

10. Notifications to the publisher

This article has not been published previously, is not under consider-
ation for publication elsewhere, is approved by both authors, and if ac-
cepted, it will not be published elsewhere including electronically in the
same form, in English or in any other language, without the written con-
sent of the copyright-holder.

The authors affirm that there is no actual or potential conflict of inter-
est including any financial, personal or other relationships with other
people or organizations within three years of beginning the submitted
work that could inappropriately influence, or be perceived to influence,
their work.

The authors themselves provided all financial support for the con-
duct of the research and/or preparation of the article and there were
no sponsor(s) in the study design; in the collection, analysis and inter-
pretation of data; in the writing of the report; and in the decision to sub-
mit the article for publication.

Appendix A. INFORMED CONSENT TO DISCLOSE RECORDS TO THE LEGAL SYSTEM

28 B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

29B. Borkosky, D.M. Smith / International Journal of Law and Psychiatry 42-43 (2015) 19–30

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• The risks and benefits of disclosing psychotherapy records to the legal system: What psychologists and patients need to kno…

1. Introduction
2. The requirement for informed consent, generally
2.1. Privacy is the foundation of both psychotherapy and informed consent
2.2. Informed consent is also a legal requirement
2.3. Informed consent is also required in forensic contexts
3. Barriers to obtaining fully informed consent
3.1. Psychologist-based barriers to informed consent, generally
3.2. Barriers due to limitations of the legal definition of informed consent, generally
3.3. Patient-based barriers to informed consent, generally
4. The need for informed consent for disclosures to the legal system
4.1. Disclosure problems resulting from conflating confidentiality and privilege
4.2. Improper disclosures can be harmful to patients
4.2.1. PHI and psychotherapist testimony can support or undermine the patient’s legal claims
4.2.2. Opposing attorneys may use patients’ mental health histories to undermine their claims
4.2.3. The courts’ role in the disclosure and use of PHI is not protective of patients
4.2.4. The patient’s attorney may not adequately protect the patient’s rights

5. Disclosures to the legal system warrant informed consent
6. A proposed list of risks and benefits for disclosing PHI to the legal system
6.1. Potential risks and benefits of disclosure
6.2. Potential risks and benefits of refusing to disclose
6.3. Static/common issues to be aware of
6.4. Development of the sample form
7. Limitations
8. Recommendations for practice
8.1. Beginning therapy
8.2. When the patient/litigant is considering releasing records to the legal system
8.3. When the request for disclosure arrives
8.4. The process of releasing information to the legal system
8.5. On offering testimony in court
9. Summary and conclusion
10. Notifications to the publisher
References