Testifying for civil commitment

Though this testimony may be medically sound, the psychiatrist has not told the court specifically how the patient’s illness impairs his present functioning. Here’s an example of a ball going through the hoop after bouncing off the backboard:

Doctor: “Your honor, my patient has schizophrenia, paranoid type. He hears voices saying that the government is trying to assassinate him by poisoning his food and medications. As a result, he stopped taking medications 5 days ago and left the safety of his group home. He has been living under an overpass and refusing to eat. He has become malnourished and dehydrated. This shows he has a substantial disorder of thought and judgment that keeps him from recognizing reality and meeting the ordinary demands of life.”

Staying in bounds

As a witness, your role is to tell the court the truth about your patient’s situation so that justice can be served—if necessary, by allowing the state to override your patient’s liberty interests through involuntary hospitalization.⁷ To justify involuntary hospitalization in most states, the court must find that your patient is both mentally ill and has recently done something dangerous.

In basketball, the referee stops the game when the ball goes out of bounds. Similarly, the court may stop you if your testimony goes out of bounds by invoking non-recent evidence to demonstrate current dangerousness. For example:

Doctor: “Your honor, this patient has been hospitalized twice in the last 10 months after intentionally overdosing on medications. He told me that last month he tried to kill himself with pills. I know this patient well, and I fear he’s going to overdose again.”

Patient’s attorney: “Objection, your honor. What my client said 1 month ago has nothing to do with his alleged dangerousness today.”

The judge may sustain the objection and disregard your testimony because the events you have recounted fall outside your jurisdiction’s time frame for a “recent” event. What your patient said last month may well make you think your patient is at risk now, but the law establishes sometimes-arbitrary boundaries to protect patients’ liberty. The legal justification is that placing time limits on dangerous behavior minimizes the risk of an erroneous civil commitment; evidence of actual, recent behavior increases the likelihood of real, current danger and reduces the risk of involuntarily hospitalizing someone who would not do harm.⁸

The definition of “recent” varies from state to state. Pennsylvania looks at behavior within the last 30 days;⁹ Utah uses 7 days.¹⁰ Often, the law is not clear; rather than set firm time restrictions, some states consider whether the actions in question are “material and relevant to the person’s present condition.”¹¹

Know what your jurisdiction considers “recent” behavior. If your state’s statute is not clear, ask a judge or attorney. As you think about your testimony, make sure that information describes dangerous behavior within the time frame that the court will accept as “recent.”

Cross-examination

Civil commitment hearings are supposed to be adversarial. The “proponent” of involuntary hospitalization (the State) puts on its best case, hoping to convince the judge (or occasionally, a jury) that commitment is justified. The “respondent” (the patient facing potential commitment) has many of the rights that criminal defendants have, including the right to an attorney and the right to challenge witnesses—including psychiatrists—through cross-examination.¹²

Psychiatrists aren’t accustomed to having their clinical reasoning forcefully challenged. When they disagree, psychiatrists usually seek to persuade each other and reach consensus rather than openly criticize colleagues and point out flaws in their opinions about patients. Even when insurance companies and patients disagree with you, they usually don’t try to discredit you.

Testifying is different.¹³ Expect to have your conclusions bluntly challenged in civil commitment hearings. But remember: as in a basketball game, attorneys’ cross-examination challenges are not personal—they’re intended only to win the game. Also, you can practice. Just as practicing against opponents improves skills needed to win basketball games, practicing against real or anticipated cross-examination can help you respond when you’re testifying. Be prepared to answer commonly asked questions ( Table 1 ), such as:

“Doctor, you’ve testified that Mr. Jones has bipolar disorder. Aren’t all psychiatric diagnoses just a guess?”

“Doctor, how can you be certain that Mr. Smith’s psychosis, as you call it, was the result of schizophrenia, not alcohol intoxication?”