Testifying for civil commitment
Help unwilling patients get treatment they need
“Well, doctor, if you’re saying that Mrs. Clark’s psychosis was caused by a urinary tract infection, isn’t that a medical problem and not a psychiatric problem that we can lock her up for?”
Other ways to prepare:
- Have a colleague play the part of an opposing attorney who is trying to find fault with your clinical reasoning.
- Imagine you are retained by an attorney who wants to find holes in your own testimony.
- Watch other psychiatrists testify, and learn from their triumphs or mistakes.
Table 1
Questions you’re likely to face when testifying
| Question | Importance |
|---|---|
| What is your diagnosis? | In all states, a mental illness leading to dangerous behavior is required for involuntary hospitalization. Courts are less interested in the name of the disorder than in knowing how its symptoms affect the respondent and lead to danger |
| Why is the hospital the least restrictive environment? | The “least restrictive” legal standard14 is a safeguard against unwarranted hospitalization. Be ready to explain why other treatment options (outpatient, day hospitals, etc.) are not appropriate |
| What medications is the patient taking? | Be prepared to tell the court whether the patient was taking medications before and since admission. Know which medications are being prescribed for the patient in the hospital |
| Why does your diagnosis differ from the diagnosis of another clinician in the chart? | Cross-examining attorneys will often try to discredit your opinion by pointing out that other clinicians diagnosed something different. You can explain that different disorders belong within common diagnostic categories (for example, schizophrenia and schizoaffective disorder are both psychoses). Explaining your answer this way enhances its credibility by demonstrating agreement with the other clinician |
| What is the patient’s response to the allegations of dangerousness listed in the chart? | Don’t neglect patients’ views. Their answers allow you to testify about the patient from direct knowledge and often provide evidence of thought, mood, or judgment problems |
Good and bad shots
Good basketball players avoid fouls and taking shots that opponents can block easily. A good psychiatric witness knows how to avoid committing legal fouls and having testimony blocked.
The hearsay block. In clinical practice, psychiatrists should use and often rely on information about their patients that they obtain from other persons. But in court, testifying about such information could be disallowed on grounds that it is hearsay—testimony about what someone else saw or heard.
In civil commitment hearings, rules against allowing hearsay protect patients from accusations that may be false or misleading and that they cannot challenge through cross-examination. Although many states have a “hearsay exception” for civil commitment hearings—meaning that doctors may testify about what others have told them—not all do. If you practice in a state without this exception, you’ll need to gather information and plan your testimony carefully to avoid having the basis for your opinion excluded.
To avoid this “block,” testify only about events you saw or heard. To be fair to patients, always ask them about their side of the story. You can then testify about your clinical findings—what you saw and heard—instead of what someone else said. For example:
Doctor: “Your wife told me you wanted to kill yourself. Is that true?”
Patient: “It wasn’t my wife. I told my brother I wanted to kill myself.”
Doctor: “How about now? Do you still want to kill yourself?”
Patient: “Yes, I do.”
The doctor now can testify about first-hand experience with the patient:
Doctor: “Your honor, I asked the patient whether he told anyone that he wanted to kill himself. He told me he had told his brother he wanted to kill himself, and that he still felt that way.”
Play only your position
Basketball teams get into trouble if players try to do things others are supposed to do. Players are not supposed to give orders to the coach. In court, your role is to provide expert testimony about your patient and psychiatry. Stay in that role:
- Don’t address the ultimate legal question, as in saying, “My patient meets this state’s commitment criteria.” That’s for the judge to decide.
- Don’t opine about the moral virtues or shortcomings of the courts or hearings: “My patient desperately needs treatment, but you’re just asking about whether he fits narrow legal rules.”
- Don’t testify about topics on which you’re not an expert: “I think the police used too much force when they handcuffed my patient.”
Table 2
Dos and don’ts of testifying in a civil commitment hearing
| Do… | Don’t… |
|---|---|
| Wear conservative business attire, which shows that you take your work seriously | Dress casually. Though casual dress is OK in many workplaces, lawyers wear suits in court |
| Remain calm, professional, and respectful | Make jokes or sarcastic remarks; a cross-examining attorney will easily discredit you by pointing out that this is a ‘serious matter’ |
| Use recent examples of the patient’s dangerousness | Testify about your patient’s childhood or remote events |
| Describe behaviors or statements you witnessed or obtained from the patient | Testify about information obtained only from other people |
| Pause before answering each question. Doing this allows time for you to think and for an attorney to object to the question | Lose your cool or argue with the attorneys or judge |
| Source: Adapted from Knoll JL, Resnick PJ. Deposition dos and don’ts: how to answer 8 tricky questions. Current Psychiatry. 2007;7(3):25-40 | |
