John Kennedy, MD, MHA

Mr. Z, age 38, came to the United States from a predominantly Islamic country to study science and engineering. While in graduate school, he was seen by a primary care physician for complaints of hypersomnia; reduced appetite with an approximate 15-lb weight loss; impaired concentration and memory, which hurt his academic performance; low energy; and occasional thoughts about dying.

Mr. Z’s physical examination and lab results were unremarkable, and he reported no psychiatric history. He was diagnosed with depression and was prescribed sertraline, 50 mg/d, but he refused to take it. He declined referral to a psychiatrist but agreed to weekly psychotherapy with a psychology intern at the student mental health center.

During therapy, Mr. Z said he constantly felt lonely. He feared being ostracized because of his Islamic beliefs and lifestyle, yet reported tremendous guilt over violating Islamic codes forbidding premarital sex. He told his therapist that his longing for a romantic relationship was “contaminating” his soul, and fantasized that death would free him of impure, sexual thoughts.

The severity of Mr. Z’s depression and his preoccupation with death alarmed the therapist. She referred him to a clinic psychiatrist, but Mr. Z refused to see him, saying that his depression was a punishment from God for his sexual sins. He vowed to repent by undergoing psychotherapy.

Continued therapy: A ‘religious awakening’

During the first 4 months of therapy, Mr. Z’s Beck Depression Inventory score fell from 32 to 17, indicating mild depression.

Mr. Z then reported that he experienced a “religious awakening” and began describing his mood and experiences in religious terms. He thanked his therapist for “saving his soul.”

The therapist was stunned by Mr. Z’s sudden transformation in mood and affect. He slept 7 to 8 hours a night, and his academic performance improved dramatically. He exhibited stable (though bright) affect and no thought disorder. His therapist viewed his use of religious terminology, though significant, as a cultural artifact because there were no signs of psychosis. Although no objective signs of mania or hypomania were apparent, the therapist suspected he might have bipolar disorder. She again tried unsuccessfully to refer him to a psychiatrist.

Then came Sept. 11, 2001.

Mr. Z was traumatized by the terrorist attacks on the World Trade Center and the Pentagon. He feared a backlash against Muslims in the United States but showed no signs of paranoia.

A few months later, however, Mr. Z became preoccupied with the attacks and harbored conspiracy theories alleging that the United States government had committed them. His speech was rapid and pressured, and he slept only 2 to 3 hours nightly. We later learned that he had not attended class for months and only sporadically showed up for lab work.

Mr. Z then began to fear he was under surveillance and that his visa would be revoked. His affect became increasingly intense during psychotherapy, and he frequently used religious metaphors and concepts. His therapist realized he was suffering a worsening manic episode, although suicidal or homicidal thoughts were not present.

Down with ‘nonbelievers’

During a subsequent session, Mr. Z reported that he had become engaged to marry a well-known supermodel. He also announced a plan to “rid the world of nonbelievers”—people who were not devout Christians, Jews, or Muslims. His three-stage plan called for:

• gently persuading nonbelievers to change their beliefs and lifestyles
• threatening nonbelievers who did not repent after polite persuasion
• “eliminating all the nonbelievers” who did not respond to intimidation.

Mr. Z viewed his therapist as “commander of the believers” and considered the three-phased plan to be her will. She questioned Mr. Z extensively about how, when, and against whom he intended to carry out this plan. He identified no specific targets, but did say, “I’ll know what do to when the time comes. I am an engineer, and I know a lot about explosives.”

The therapist then recommended an emergency psychiatric evaluation, which Mr. Z declined. She immediately notified the mental health clinic’s attending psychiatrist.

What are the therapist’s options? Can Mr. Z be involuntarily committed based on his threats of violence against “nonbelievers?”

Dr. Kennedy’s and Dr. Klafter’s observations

Two legal principles justify involuntary commitment of a patient who poses a threat to himself or the public:

Police power refers to the government’s role in maintaining public safety. State commitment statutes usually require that a mentally ill person pose a significant and imminent threat to the public. The psychiatrist who files an affidavit alleging danger does not need absolute certainty or perfect information but must act in good faith.¹

Parens patriae, or paternalism, refers to government intervention on behalf of persons incapable of managing their lives.¹

Psychiatric treatment of unwilling patients is possible in some states. Family members and/or mental health professionals can petition the court to compel outpatient psychiatric treatment.

Because an emergency evaluation produces a thorough and controlled psychiatric assessment (and minimal deprivation of personal liberty), a psychiatrist with any doubt about the patient’s condition should move toward commitment.

Box 1

Before resorting to legal coercion, try scheduling more-frequent appointments to monitor symptom progression. This would allow faster response when civil commitment criteria are met.

A psychiatrist or other mental health professional can request an emergency evaluation based on information from a knowledgeable intermediary or family member—even if the clinician did not recently or directly interview the patient.² For example, a psychologist could receive information from a case manager who encountered the patient decompensating. It would be impractical to require a psychiatrist to see a decompensating patient before an evaluation can be ordered.

Hospitalization: A ‘blood-drinking monster’

With no security staff immediately available, the attending psychiatrist and therapist sent Mr. Z home.

The psychiatrist then submitted an application for involuntary hospitalization—in which the doctor summarized the case—and faxed it to the local psychiatric emergency service. The police were notified and—after verifying that the appropriate paperwork had been completed—arrested Mr. Z at his home and brought him to the emergency service for an assessment. Mr. Z was then hospitalized. (Box 1).

Mr. Z was found to be harboring bizarre, grandiose, persecutory, and religious delusions. He claimed that a blood-drinking monster was lurking inside the hospital, and that his hospitalization was part of a conspiracy to persecute Muslims. He considered the Sept. 11 attacks fictitious and claimed that widely broadcast television news footage of the attacks was a computer-animated video. The patient refused all medications while hospitalized.

After 3 days, the court ordered Mr. Z’s discharge, citing lack of evidence that he posed any danger to self or others. At his mental health probate hearing, he managed to conceal his psychotic symptoms while testifying. The court expressed concern over his technical training in explosives but ruled that he was not dangerous because he had never used this knowledge to commit violence.

Upon discharge, Mr. Z declined outpatient psychiatric treatment. The therapist then told Mr. Z that she would terminate psychotherapy after two sessions unless he visited a psychiatrist. Mr. Z again refused, and psychotherapy was terminated.

Box 2

Would you terminate psychotherapy at this point? Could the therapist’s actions be viewed as patient abandonment?

Dr. Kennedy’s and Dr. Klafter’s observations

The formation of a professional relationship establishes a duty of care and requires the clinician to provide reasonable notice of termination and alternative sources of care. Although 30 days’ notice is generally appropriate, several factors may dictate the need for more or less notice (Box 2).

In Mr. Z’s case, we view the psychologist’s behavior as appropriate because:

• Without psychotropics, Mr. Z’s psychosis would likely persist. To continue treating him with psychotherapy alone would fall below the standard of care.
• By threatening to terminate psychotherapy, the therapist tried to use the patient’s transference and desire to maintain the therapeutic relationship as an incentive to accept medication.

Continued observation: A clue from the past

Mr. Z’s brother, who was contacted by the treatment team, reported that the patient had never been violent. He did note, however, that as an adolescent Mr. Z talked about joining a terrorist organization, though he had never followed through. The brother tried to persuade Mr. Z to leave school and live with him on the West Coast, but he instead chose to continue his studies.

Mr. Z’s hospital treatment team realized that his continued work in engineering—where he had access to explosive materials—posed a significant risk given his impaired judgment. Acting on a forensic expert’s advice, the team warned university officials about Mr. Z’s mental state and preoccupation with violence. The FBI was also contacted.

Was the treatment team justified in reporting Mr. Z’s behavior to authorities, even though he never identified any potential victims?

Dr. Kennedy’s and Dr. Klafter’s observations

Various legislative and judicial remedies—some more restrictive than others—address the psychiatrist’s duty to third parties:³

• Some states require psychiatrists to notify or protect third parties when any danger is foreseeable, regardless of threat or victim.
• Other states require specific threats but charge the psychiatrist with foreseeing all potential victims regardless of whether they were named.
• Still other states limit protection to identifiable victims, even if no threat is issued.
• In some states the psychiatrist is responsible only if the patient makes specific threats to identifiable victims.

Again, psychiatrists need to make their best professional judgments in good faith about risk of violence. Hospitalizing a threatening patient provides the most protection to third parties, but this option is intrusive, coercive, and is not always appropriate or feasible. If the threat is directed toward the public rather than specific individuals or groups, law enforcement agencies can reduce the risk somewhat through monitoring and surveillance.

Although it is a judgment call, clinicians should notify:

• all persons or organizations against whom a patient might commit violence
• and those who might be targeted as instruments for violence towards others, such as family members who have guns the patient could obtain.

A terrorist would not likely seek psychiatric help relative to his goals of terrorism because such behavior is not rooted in major mental illness. However, the heightened sense of paranoia and anxiety created by events involving terrorism, religious animosity, and hatred provide patients who struggle with psychosis an outlet for their paranoia. As such, we should take a patient’s terroristic threats seriously.

Conclusion: Going home

The university granted Mr. Z medical leave and placed him on academic probation for 2 months, during which he returned to his native country to stay with his parents.

The faculty later dismissed Mr. Z from the program, citing poor academic and laboratory performance. His visa expired, with renewal contingent upon enrollment in a full-time academic program.

Related resources

• American Academy of Psychiatry and the Law. www.aapl.org.

Drug brand names

• Sertraline • Zoloft

Disclosure

The authors report no financial relationship with any company whose products are mentioned in this article, or with manufacturers of competing products.

Mr. Z, age 38, came to the United States from a predominantly Islamic country to study science and engineering. While in graduate school, he was seen by a primary care physician for complaints of hypersomnia; reduced appetite with an approximate 15-lb weight loss; impaired concentration and memory, which hurt his academic performance; low energy; and occasional thoughts about dying.

Mr. Z’s physical examination and lab results were unremarkable, and he reported no psychiatric history. He was diagnosed with depression and was prescribed sertraline, 50 mg/d, but he refused to take it. He declined referral to a psychiatrist but agreed to weekly psychotherapy with a psychology intern at the student mental health center.

During therapy, Mr. Z said he constantly felt lonely. He feared being ostracized because of his Islamic beliefs and lifestyle, yet reported tremendous guilt over violating Islamic codes forbidding premarital sex. He told his therapist that his longing for a romantic relationship was “contaminating” his soul, and fantasized that death would free him of impure, sexual thoughts.

The severity of Mr. Z’s depression and his preoccupation with death alarmed the therapist. She referred him to a clinic psychiatrist, but Mr. Z refused to see him, saying that his depression was a punishment from God for his sexual sins. He vowed to repent by undergoing psychotherapy.

Continued therapy: A ‘religious awakening’

During the first 4 months of therapy, Mr. Z’s Beck Depression Inventory score fell from 32 to 17, indicating mild depression.

Mr. Z then reported that he experienced a “religious awakening” and began describing his mood and experiences in religious terms. He thanked his therapist for “saving his soul.”

The therapist was stunned by Mr. Z’s sudden transformation in mood and affect. He slept 7 to 8 hours a night, and his academic performance improved dramatically. He exhibited stable (though bright) affect and no thought disorder. His therapist viewed his use of religious terminology, though significant, as a cultural artifact because there were no signs of psychosis. Although no objective signs of mania or hypomania were apparent, the therapist suspected he might have bipolar disorder. She again tried unsuccessfully to refer him to a psychiatrist.

Then came Sept. 11, 2001.

Mr. Z was traumatized by the terrorist attacks on the World Trade Center and the Pentagon. He feared a backlash against Muslims in the United States but showed no signs of paranoia.

A few months later, however, Mr. Z became preoccupied with the attacks and harbored conspiracy theories alleging that the United States government had committed them. His speech was rapid and pressured, and he slept only 2 to 3 hours nightly. We later learned that he had not attended class for months and only sporadically showed up for lab work.

Mr. Z then began to fear he was under surveillance and that his visa would be revoked. His affect became increasingly intense during psychotherapy, and he frequently used religious metaphors and concepts. His therapist realized he was suffering a worsening manic episode, although suicidal or homicidal thoughts were not present.

Down with ‘nonbelievers’

During a subsequent session, Mr. Z reported that he had become engaged to marry a well-known supermodel. He also announced a plan to “rid the world of nonbelievers”—people who were not devout Christians, Jews, or Muslims. His three-stage plan called for:

• gently persuading nonbelievers to change their beliefs and lifestyles
• threatening nonbelievers who did not repent after polite persuasion
• “eliminating all the nonbelievers” who did not respond to intimidation.

Mr. Z viewed his therapist as “commander of the believers” and considered the three-phased plan to be her will. She questioned Mr. Z extensively about how, when, and against whom he intended to carry out this plan. He identified no specific targets, but did say, “I’ll know what do to when the time comes. I am an engineer, and I know a lot about explosives.”

The therapist then recommended an emergency psychiatric evaluation, which Mr. Z declined. She immediately notified the mental health clinic’s attending psychiatrist.

What are the therapist’s options? Can Mr. Z be involuntarily committed based on his threats of violence against “nonbelievers?”

Dr. Kennedy’s and Dr. Klafter’s observations

Two legal principles justify involuntary commitment of a patient who poses a threat to himself or the public:

Police power refers to the government’s role in maintaining public safety. State commitment statutes usually require that a mentally ill person pose a significant and imminent threat to the public. The psychiatrist who files an affidavit alleging danger does not need absolute certainty or perfect information but must act in good faith.¹

Parens patriae, or paternalism, refers to government intervention on behalf of persons incapable of managing their lives.¹

Psychiatric treatment of unwilling patients is possible in some states. Family members and/or mental health professionals can petition the court to compel outpatient psychiatric treatment.

Because an emergency evaluation produces a thorough and controlled psychiatric assessment (and minimal deprivation of personal liberty), a psychiatrist with any doubt about the patient’s condition should move toward commitment.

Box 1

Before resorting to legal coercion, try scheduling more-frequent appointments to monitor symptom progression. This would allow faster response when civil commitment criteria are met.

A psychiatrist or other mental health professional can request an emergency evaluation based on information from a knowledgeable intermediary or family member—even if the clinician did not recently or directly interview the patient.² For example, a psychologist could receive information from a case manager who encountered the patient decompensating. It would be impractical to require a psychiatrist to see a decompensating patient before an evaluation can be ordered.

Hospitalization: A ‘blood-drinking monster’

With no security staff immediately available, the attending psychiatrist and therapist sent Mr. Z home.

The psychiatrist then submitted an application for involuntary hospitalization—in which the doctor summarized the case—and faxed it to the local psychiatric emergency service. The police were notified and—after verifying that the appropriate paperwork had been completed—arrested Mr. Z at his home and brought him to the emergency service for an assessment. Mr. Z was then hospitalized. (Box 1).

Mr. Z was found to be harboring bizarre, grandiose, persecutory, and religious delusions. He claimed that a blood-drinking monster was lurking inside the hospital, and that his hospitalization was part of a conspiracy to persecute Muslims. He considered the Sept. 11 attacks fictitious and claimed that widely broadcast television news footage of the attacks was a computer-animated video. The patient refused all medications while hospitalized.

After 3 days, the court ordered Mr. Z’s discharge, citing lack of evidence that he posed any danger to self or others. At his mental health probate hearing, he managed to conceal his psychotic symptoms while testifying. The court expressed concern over his technical training in explosives but ruled that he was not dangerous because he had never used this knowledge to commit violence.

Upon discharge, Mr. Z declined outpatient psychiatric treatment. The therapist then told Mr. Z that she would terminate psychotherapy after two sessions unless he visited a psychiatrist. Mr. Z again refused, and psychotherapy was terminated.

Box 2

Would you terminate psychotherapy at this point? Could the therapist’s actions be viewed as patient abandonment?

Dr. Kennedy’s and Dr. Klafter’s observations

The formation of a professional relationship establishes a duty of care and requires the clinician to provide reasonable notice of termination and alternative sources of care. Although 30 days’ notice is generally appropriate, several factors may dictate the need for more or less notice (Box 2).

In Mr. Z’s case, we view the psychologist’s behavior as appropriate because:

• Without psychotropics, Mr. Z’s psychosis would likely persist. To continue treating him with psychotherapy alone would fall below the standard of care.
• By threatening to terminate psychotherapy, the therapist tried to use the patient’s transference and desire to maintain the therapeutic relationship as an incentive to accept medication.

Continued observation: A clue from the past

Mr. Z’s brother, who was contacted by the treatment team, reported that the patient had never been violent. He did note, however, that as an adolescent Mr. Z talked about joining a terrorist organization, though he had never followed through. The brother tried to persuade Mr. Z to leave school and live with him on the West Coast, but he instead chose to continue his studies.

Mr. Z’s hospital treatment team realized that his continued work in engineering—where he had access to explosive materials—posed a significant risk given his impaired judgment. Acting on a forensic expert’s advice, the team warned university officials about Mr. Z’s mental state and preoccupation with violence. The FBI was also contacted.

Was the treatment team justified in reporting Mr. Z’s behavior to authorities, even though he never identified any potential victims?

Dr. Kennedy’s and Dr. Klafter’s observations

Various legislative and judicial remedies—some more restrictive than others—address the psychiatrist’s duty to third parties:³

• Some states require psychiatrists to notify or protect third parties when any danger is foreseeable, regardless of threat or victim.
• Other states require specific threats but charge the psychiatrist with foreseeing all potential victims regardless of whether they were named.
• Still other states limit protection to identifiable victims, even if no threat is issued.
• In some states the psychiatrist is responsible only if the patient makes specific threats to identifiable victims.

Again, psychiatrists need to make their best professional judgments in good faith about risk of violence. Hospitalizing a threatening patient provides the most protection to third parties, but this option is intrusive, coercive, and is not always appropriate or feasible. If the threat is directed toward the public rather than specific individuals or groups, law enforcement agencies can reduce the risk somewhat through monitoring and surveillance.

Although it is a judgment call, clinicians should notify:

• all persons or organizations against whom a patient might commit violence
• and those who might be targeted as instruments for violence towards others, such as family members who have guns the patient could obtain.

A terrorist would not likely seek psychiatric help relative to his goals of terrorism because such behavior is not rooted in major mental illness. However, the heightened sense of paranoia and anxiety created by events involving terrorism, religious animosity, and hatred provide patients who struggle with psychosis an outlet for their paranoia. As such, we should take a patient’s terroristic threats seriously.

Conclusion: Going home

The university granted Mr. Z medical leave and placed him on academic probation for 2 months, during which he returned to his native country to stay with his parents.

The faculty later dismissed Mr. Z from the program, citing poor academic and laboratory performance. His visa expired, with renewal contingent upon enrollment in a full-time academic program.

Related resources

• American Academy of Psychiatry and the Law. www.aapl.org.

Drug brand names

• Sertraline • Zoloft

Disclosure

The authors report no financial relationship with any company whose products are mentioned in this article, or with manufacturers of competing products.

Mr. Z, age 38, came to the United States from a predominantly Islamic country to study science and engineering. While in graduate school, he was seen by a primary care physician for complaints of hypersomnia; reduced appetite with an approximate 15-lb weight loss; impaired concentration and memory, which hurt his academic performance; low energy; and occasional thoughts about dying.

Mr. Z’s physical examination and lab results were unremarkable, and he reported no psychiatric history. He was diagnosed with depression and was prescribed sertraline, 50 mg/d, but he refused to take it. He declined referral to a psychiatrist but agreed to weekly psychotherapy with a psychology intern at the student mental health center.

During therapy, Mr. Z said he constantly felt lonely. He feared being ostracized because of his Islamic beliefs and lifestyle, yet reported tremendous guilt over violating Islamic codes forbidding premarital sex. He told his therapist that his longing for a romantic relationship was “contaminating” his soul, and fantasized that death would free him of impure, sexual thoughts.

The severity of Mr. Z’s depression and his preoccupation with death alarmed the therapist. She referred him to a clinic psychiatrist, but Mr. Z refused to see him, saying that his depression was a punishment from God for his sexual sins. He vowed to repent by undergoing psychotherapy.

Continued therapy: A ‘religious awakening’

During the first 4 months of therapy, Mr. Z’s Beck Depression Inventory score fell from 32 to 17, indicating mild depression.

Mr. Z then reported that he experienced a “religious awakening” and began describing his mood and experiences in religious terms. He thanked his therapist for “saving his soul.”

The therapist was stunned by Mr. Z’s sudden transformation in mood and affect. He slept 7 to 8 hours a night, and his academic performance improved dramatically. He exhibited stable (though bright) affect and no thought disorder. His therapist viewed his use of religious terminology, though significant, as a cultural artifact because there were no signs of psychosis. Although no objective signs of mania or hypomania were apparent, the therapist suspected he might have bipolar disorder. She again tried unsuccessfully to refer him to a psychiatrist.

Then came Sept. 11, 2001.

Mr. Z was traumatized by the terrorist attacks on the World Trade Center and the Pentagon. He feared a backlash against Muslims in the United States but showed no signs of paranoia.

A few months later, however, Mr. Z became preoccupied with the attacks and harbored conspiracy theories alleging that the United States government had committed them. His speech was rapid and pressured, and he slept only 2 to 3 hours nightly. We later learned that he had not attended class for months and only sporadically showed up for lab work.

Mr. Z then began to fear he was under surveillance and that his visa would be revoked. His affect became increasingly intense during psychotherapy, and he frequently used religious metaphors and concepts. His therapist realized he was suffering a worsening manic episode, although suicidal or homicidal thoughts were not present.

Down with ‘nonbelievers’

During a subsequent session, Mr. Z reported that he had become engaged to marry a well-known supermodel. He also announced a plan to “rid the world of nonbelievers”—people who were not devout Christians, Jews, or Muslims. His three-stage plan called for:

• gently persuading nonbelievers to change their beliefs and lifestyles
• threatening nonbelievers who did not repent after polite persuasion
• “eliminating all the nonbelievers” who did not respond to intimidation.

Mr. Z viewed his therapist as “commander of the believers” and considered the three-phased plan to be her will. She questioned Mr. Z extensively about how, when, and against whom he intended to carry out this plan. He identified no specific targets, but did say, “I’ll know what do to when the time comes. I am an engineer, and I know a lot about explosives.”

The therapist then recommended an emergency psychiatric evaluation, which Mr. Z declined. She immediately notified the mental health clinic’s attending psychiatrist.

What are the therapist’s options? Can Mr. Z be involuntarily committed based on his threats of violence against “nonbelievers?”

Dr. Kennedy’s and Dr. Klafter’s observations

Two legal principles justify involuntary commitment of a patient who poses a threat to himself or the public:

Police power refers to the government’s role in maintaining public safety. State commitment statutes usually require that a mentally ill person pose a significant and imminent threat to the public. The psychiatrist who files an affidavit alleging danger does not need absolute certainty or perfect information but must act in good faith.¹

Parens patriae, or paternalism, refers to government intervention on behalf of persons incapable of managing their lives.¹

Psychiatric treatment of unwilling patients is possible in some states. Family members and/or mental health professionals can petition the court to compel outpatient psychiatric treatment.

Because an emergency evaluation produces a thorough and controlled psychiatric assessment (and minimal deprivation of personal liberty), a psychiatrist with any doubt about the patient’s condition should move toward commitment.

Box 1

Before resorting to legal coercion, try scheduling more-frequent appointments to monitor symptom progression. This would allow faster response when civil commitment criteria are met.

A psychiatrist or other mental health professional can request an emergency evaluation based on information from a knowledgeable intermediary or family member—even if the clinician did not recently or directly interview the patient.² For example, a psychologist could receive information from a case manager who encountered the patient decompensating. It would be impractical to require a psychiatrist to see a decompensating patient before an evaluation can be ordered.

Hospitalization: A ‘blood-drinking monster’

With no security staff immediately available, the attending psychiatrist and therapist sent Mr. Z home.

The psychiatrist then submitted an application for involuntary hospitalization—in which the doctor summarized the case—and faxed it to the local psychiatric emergency service. The police were notified and—after verifying that the appropriate paperwork had been completed—arrested Mr. Z at his home and brought him to the emergency service for an assessment. Mr. Z was then hospitalized. (Box 1).

Mr. Z was found to be harboring bizarre, grandiose, persecutory, and religious delusions. He claimed that a blood-drinking monster was lurking inside the hospital, and that his hospitalization was part of a conspiracy to persecute Muslims. He considered the Sept. 11 attacks fictitious and claimed that widely broadcast television news footage of the attacks was a computer-animated video. The patient refused all medications while hospitalized.

After 3 days, the court ordered Mr. Z’s discharge, citing lack of evidence that he posed any danger to self or others. At his mental health probate hearing, he managed to conceal his psychotic symptoms while testifying. The court expressed concern over his technical training in explosives but ruled that he was not dangerous because he had never used this knowledge to commit violence.

Upon discharge, Mr. Z declined outpatient psychiatric treatment. The therapist then told Mr. Z that she would terminate psychotherapy after two sessions unless he visited a psychiatrist. Mr. Z again refused, and psychotherapy was terminated.

Box 2

Would you terminate psychotherapy at this point? Could the therapist’s actions be viewed as patient abandonment?

Dr. Kennedy’s and Dr. Klafter’s observations

The formation of a professional relationship establishes a duty of care and requires the clinician to provide reasonable notice of termination and alternative sources of care. Although 30 days’ notice is generally appropriate, several factors may dictate the need for more or less notice (Box 2).

In Mr. Z’s case, we view the psychologist’s behavior as appropriate because:

• Without psychotropics, Mr. Z’s psychosis would likely persist. To continue treating him with psychotherapy alone would fall below the standard of care.
• By threatening to terminate psychotherapy, the therapist tried to use the patient’s transference and desire to maintain the therapeutic relationship as an incentive to accept medication.

Continued observation: A clue from the past

Mr. Z’s brother, who was contacted by the treatment team, reported that the patient had never been violent. He did note, however, that as an adolescent Mr. Z talked about joining a terrorist organization, though he had never followed through. The brother tried to persuade Mr. Z to leave school and live with him on the West Coast, but he instead chose to continue his studies.

Mr. Z’s hospital treatment team realized that his continued work in engineering—where he had access to explosive materials—posed a significant risk given his impaired judgment. Acting on a forensic expert’s advice, the team warned university officials about Mr. Z’s mental state and preoccupation with violence. The FBI was also contacted.

Was the treatment team justified in reporting Mr. Z’s behavior to authorities, even though he never identified any potential victims?

Dr. Kennedy’s and Dr. Klafter’s observations

Various legislative and judicial remedies—some more restrictive than others—address the psychiatrist’s duty to third parties:³

• Some states require psychiatrists to notify or protect third parties when any danger is foreseeable, regardless of threat or victim.
• Other states require specific threats but charge the psychiatrist with foreseeing all potential victims regardless of whether they were named.
• Still other states limit protection to identifiable victims, even if no threat is issued.
• In some states the psychiatrist is responsible only if the patient makes specific threats to identifiable victims.

Again, psychiatrists need to make their best professional judgments in good faith about risk of violence. Hospitalizing a threatening patient provides the most protection to third parties, but this option is intrusive, coercive, and is not always appropriate or feasible. If the threat is directed toward the public rather than specific individuals or groups, law enforcement agencies can reduce the risk somewhat through monitoring and surveillance.

Although it is a judgment call, clinicians should notify:

• all persons or organizations against whom a patient might commit violence
• and those who might be targeted as instruments for violence towards others, such as family members who have guns the patient could obtain.

A terrorist would not likely seek psychiatric help relative to his goals of terrorism because such behavior is not rooted in major mental illness. However, the heightened sense of paranoia and anxiety created by events involving terrorism, religious animosity, and hatred provide patients who struggle with psychosis an outlet for their paranoia. As such, we should take a patient’s terroristic threats seriously.

Conclusion: Going home

The university granted Mr. Z medical leave and placed him on academic probation for 2 months, during which he returned to his native country to stay with his parents.

The faculty later dismissed Mr. Z from the program, citing poor academic and laboratory performance. His visa expired, with renewal contingent upon enrollment in a full-time academic program.

Related resources

• American Academy of Psychiatry and the Law. www.aapl.org.

Drug brand names

• Sertraline • Zoloft

Disclosure

The authors report no financial relationship with any company whose products are mentioned in this article, or with manufacturers of competing products.

You would be fully justified to state that traumatic brain injury (TBI) can cause and worsen a wide range of psychiatric symptoms including psychosis, mood symptoms, anxiety, cognitive deficits, and impulsivity. Could you also present sufficient evidence of TBI as a cause of violence?

That could be more difficult. TBI-induced criminality remains a central and controversial area within forensic psychiatry. Behavior resulting from injury has been implicated in violence and crime, especially when coexisting with substance abuse, a violent environment during childhood including abuse, and pre-existing personality disorder. The literature is vast and covers a spectrum of opinions, allowing the forensic psychiatrist to find evidence that would support the prosecution or the defense. Judge for yourself.

For the prosecution: TBI is no defense

In his study, “Brain injury and criminality,” Virkkunen concluded that “sociopathy, alcoholism, and drug abuse are the types of psychiatric disorders associated with criminal behavior, not organic brain syndrome.”¹

This statement was based upon a retrospective analysis of World War II veterans. A search was conducted through Finland’s Criminal Register to compare the frequencies of convictions for crimes punishable by imprisonment between a non-TBI control group and a TBI group. The overall crime rates between the two groups were not significantly different: 5.5% versus 4.2% for the control and TBI groups, respectively. Seventeen of 1,870 (0.9%) of the TBI patients committed violent crimes versus 3 of 500 (0.6%) of the control group. A closer examination revealed that most convictions were associated with alcohol in both groups.

Unlike Virkkunen, Kreutzer et al were unable to prove or disprove a cause and effect between TBI and violence. In their 1991 investigation based on 74 TBI patients, they found that 20% had been arrested pre-injury, and 10% had been arrested after the injury.² Most arrests occurred after use of alcohol or other drugs. The study concluded that criminal behavior might be a result of post-injury changes including poor judgment, apathy, and other new behaviors.

Box 1

Substance abuse, traumatic brain injury, and crime were indeed interconnected, the researchers said, but they did not go so far as to conclude that TBI causes criminality and violence. Rather, they believed that substance abuse, which was most common among those younger than 35, led to legal difficulties and TBI.

In 1995, based on a larger sample of 327 patients, Kreutzer and associates found that the TBI criminal population has a relatively high incidence of alcohol abuse before and after head injury.³ Most crimes were associated with substance abuse, such as drug possession or driving under the influence of alcohol.

The study found that TBI patients with a history of arrest were more likely to have substance abuse problems after the injury. TBI patients with both a criminal and substance abuse history also were more likely to commit crimes after the head injury. Kreutzer concluded that TBI is not a risk factor for crime without such a history.

For the defense: TBI does lead to criminality

In one study by Brooks et al of 42 individuals with severe TBI, threats of violence increased from 15% 1 year after sustaining head injury to 54% 5 years after.⁴ What’s more, at the 5-year follow-up, 31% of these patients had legal problems and 20% of their relatives had been assaulted by them at least once.

A study by Sarpata et al also supports the argument that TBI leads to criminality.⁵ They argue that TBI patients should be expected to commit crimes because they have poor cognitive skills, impulsivity, and increased aggression, as well as low tolerance for frustration and poor judgment. In their study of 18 subjects in a community corrections day program in Vigo County, Indiana, they found that a large percentage of offenders (50%) reported head injury.⁵ In contrast, the prevalence of head injury in the general population is 2%to 5%.

By self-report, the TBI offenders at the day program had worse cognition, greater lability, and more aggressiveness than non-offenders and non-TBI offenders. They concluded, “it would appear that had most of these people not experienced a head injury, they may not have become offenders.”⁵ The Sarpata et al study did not involve an imprisoned population; therefore, these offenders did not become brain-injured while incarcerated. They argued that TBI patients may have more difficulty understanding the legal process, are less able to assist with their defense, and thus are more likely to be found guilty than are suspects without brain injury. The authors recommended cognitive rehabilitation as a way to reduce the propensity for crime.

In a report of the Vietnam Head Injury Study, Grafman et al concluded that ventromedial frontal lobe lesions could result in violent behavior because frontal lobe damage makes it more difficult for the brain to access social skills leading to disinhibition and aggression.⁶ In this study, 279 Vietnam veterans with a history of TBI were matched with 57 healthy people, based on age, education, and length of Vietnam experience. Each received comprehensive testing, including neuropsychological and personality testing. Family members completed questionnaires, which were rated on the Katz Adjustment Scale (KAS), including the Any Violence Scale and the Extreme Violence Scale, to assess aggressiveness.

Based on the observations of family members through the KAS, 14% of the group with frontal lobe injury exhibited physical violence compared with roughly 5% of the controls. These findings were independent of education, IQ scores, or Beck Depression Inventory scores. Patients with lesions in the mediofrontal and orbitofrontal regions had higher Any Violence Scale and Extreme Violence Scale scores than the control group, as reported by family members.

“Knowledge stored in the human prefrontal cortex plays a managerial role in the control of behavior and takes the form of mental models, thematic understanding, plans, and social rules,” the authors said.⁶ They theorized that a prefrontal cortex lesion would hinder the ability to manage one’s instincts, leading to impulsivity, aggression, and violence. However, all patients with ventromedial prefrontal cortex lesions did not display aggression or violent behavior. Further, patients with lesions elsewhere and some normal subjects displayed aggressive and violent behaviors.

Martell estimated the prevalence of organic brain dysfunction in maximum-security forensic psychiatric patients at the Kirby Forensic Psychiatric Center on Ward’s Island in New York City.⁷ Of the 50 randomly selected patients, 22% had a history of a head injury in which they lost consciousness. Whereas 84% had a history of some sort of brain impairment, only 16% were given an organic diagnosis.

“All of the subjects with a DSM-III-R diagnosis of organic brain disorder had been arrested and charged for violent crimes. Of these patients, 75% were charged with murder, manslaughter, or attempted murder. The remaining 25% were charged with violent sex offenses,” said Martell, arguing for a more careful evaluation of organic brain impairment in forensic evaluations.⁷

Lewis et al evaluated the neuropsychiatric status of 15 death-row inmates.⁸ All had reached the final stage in the legal process prior to execution, and 4 had been executed by the time the study was published in 1986. All 15 had a history of TBI as evidenced by objective findings of scars, skull indents, neurologic findings, records, collateral from families, and neuroimaging. During childhood, for instance, one inmate had been beaten in the head by 2-by-4s and fell into a pit, with loss of consciousness for several hours. As an adult, he was in a motor vehicle accident, resulting in an injury to the right eye, and later fell from a roof after a blackout. Other inmates had seizures, abnormal CT scans, positive Babinski signs, ankle clonus, skull defects, and various other neurologic signs.

“When the Supreme Court reinstated the death penalty, it provided that there be a separate sentencing in which mitigating circumstances could be explored. Any evidence of mental disease or defect, including any evidence of central nervous system dysfunction, would be relevant to such hearings, since such disorders affect judgment, reality testing, and self-control,” the authors said.⁸

These 15 death-row inmates had numerous neuropsychiatric symptoms that were not addressed. It was thought that the attorneys and judges did not address the organic conditions because of their subtle nature. Objective evidence through collateral and testing ruled out malingering, as did the fact that these inmates were not searching for evaluations or exaggerating their symptoms. The authors concluded that neuropsychiatric status could be a potentially strong mitigating factor, but such evidence is often neglected.

TBI and the insanity defense

Criminal responsibility is dependent on actus reus, the harmful act, and mens rea, guilty or wrongful intent. The accountability and blameworthiness of the crime fall under mens rea. Do TBI patients have the mens rea for the crime? Can TBI be a basis for a plea of not guilty by reason of insanity (NGRI) or a diminished capacity defense? Can the worsening of TBI-related behaviors by substance abuse be the basis for an insanity defense or diminished capacity?

For an NGRI plea, a mental illness or defect must exist. TBI is an abnormal condition of the mind leading to a mental disease that can substantially affect control of emotions and behaviors. The NGRI plea historically had two prongs: cognitive and volitional impairment.⁹ The M’Naghten test, the cognitive prong, is based on whether the defendant knew the nature and quality of the criminal act or knew the act was wrong. Under the American Law Institute (ALI)test and American Bar Association standards, the defendant can meet the criteria for insanity by demonstrating a substantial lack of capacity to appreciate, rather than knowing, the criminality or wrongfulness of the act.

There is a substantial amount of evidence for cognitive impairment in TBI patients. The TBI patient may have several co-existing “neurolinguistic deficits associated with the pragmatics of language.”¹⁰ For example, a TBI patient with damage in the nondominant hemisphere may misinterpret the prosody of language, leading to an inappropriate response. Other neurolinguistic deficits in TBI patients include decreased intelligibility, a constricted operational vocabulary, perseveration, and limited listening.

TBI can also lead to short-term memory impairment due to injury to the vulnerable hippocampus within the anterior temporal lobe. When the hippocampus is damaged, the transformation of memories from long-term to active is impaired. Consequently, retrieval of learned information is more difficult for the TBI patient.¹⁰

Also, higher-order cognitive processes can be damaged after TBI. Executive functioning, through the frontal lobe, involves data collection, prioritizing, formulating a plan, and carrying out the plan. This process is almost always impaired in TBI patients, according to a study by Szekeres et al in 1987.¹⁴ Poor abstraction associated with frontal lobe damage can lead to difficulties of TBI patients in understanding or appreciating certain concepts related to the wrongfulness, nature, and quality of their acts.

Finally, interpretation of sensory input is impaired as a result of widespread subcortical damage. Deficient central processing could lead to inability to realistically perceive the external world.¹⁰ In theory, the TBI patient could potentially have enough cognitive impairment to have a substantial lack of appreciation of the criminality or wrongfulness of an act.

The insanity defense reforms after John Hinckley’s attempted assassination of former President Ronald Reagan have rendered the volitional prong largely irrelevant. One way to judge volitional control is the “policeman at the elbow,” defined as a lack of control such that the offender would have committed the act with a police officer present. Although studies have not focused on whether TBI can lead to “policeman at the elbow” impulsivity, they have proven that TBI-related deficits can lead to severe impulsivity through neuroanatomy and neurotransmitter systems. Silver et al developed the specific diagnosis of “organic aggression syndrome” to describe TBI patients whose aggression is characterized as being “reactive,” “nonreflective,” “nonpurposeful,” “explosive,” “periodic,” and “ego-dystonic.”¹⁰

Diminished capacity and mens rea testimony can be subdivided into four categories under the ALI model Penal Code formulation, including “purpose,” “knowledge,” “recklessness,” and “negligence.”⁹ If an offender has purpose or knowledge, he or she specifically intended to commit the crime. In contrast, with negligence, the offender should have been aware of the risk but may not have been. If the offender is reckless, he or she consciously disregarded a known risk. In general, TBI-related impulsivity and cognitive impairment can lead to recklessness and negligence.

As previously discussed, substance abuse is frequently comorbid in the TBI patient. Evidence for intoxication often exists at the time of the offense. Although the effects of drugs and alcohol might be more severe in such a patient, and the patient probably knew this, the intoxication remains voluntary. An NGRI plea might be unobtainable with voluntary intoxication, but diminished capacity remains a possibility (albeit a weak one).

A mitigating factor in sentencing

TBI is perhaps most pertinent to sentencing, especially in capital cases. Because the death penalty is on the line, psychiatrists will often be asked for their clinical opinions. Lockett v. Ohio¹¹ secured that any mitigating factors can be admitted during the sentencing phase of a capital case. In fact, it is widely recognized that substance abuse and TBI are potentially independent mitigating factors.⁹

Treatability and rehabilitative potential may also be mitigating. Communicating the potential for treatment to the court can be an undeniable mitigating factor for a TBI patient who has committed violent acts. Cognitive rehabilitation, psychopharmacology, and psychotherapy (individual and family) can be effective treatment options.

Related resources

• Centers for Disease Control and Prevention: Epidemiology of Traumatic Brain Injury in the United States.
• Reynolds CR, ed. Detection of Malingering during Head Injury Litigation. New York: Plenum Press, 1998.
• Murrey G, ed. The Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys. Atlanta, Ga: CDC Press, 2000.

You would be fully justified to state that traumatic brain injury (TBI) can cause and worsen a wide range of psychiatric symptoms including psychosis, mood symptoms, anxiety, cognitive deficits, and impulsivity. Could you also present sufficient evidence of TBI as a cause of violence?

That could be more difficult. TBI-induced criminality remains a central and controversial area within forensic psychiatry. Behavior resulting from injury has been implicated in violence and crime, especially when coexisting with substance abuse, a violent environment during childhood including abuse, and pre-existing personality disorder. The literature is vast and covers a spectrum of opinions, allowing the forensic psychiatrist to find evidence that would support the prosecution or the defense. Judge for yourself.

For the prosecution: TBI is no defense

In his study, “Brain injury and criminality,” Virkkunen concluded that “sociopathy, alcoholism, and drug abuse are the types of psychiatric disorders associated with criminal behavior, not organic brain syndrome.”¹

This statement was based upon a retrospective analysis of World War II veterans. A search was conducted through Finland’s Criminal Register to compare the frequencies of convictions for crimes punishable by imprisonment between a non-TBI control group and a TBI group. The overall crime rates between the two groups were not significantly different: 5.5% versus 4.2% for the control and TBI groups, respectively. Seventeen of 1,870 (0.9%) of the TBI patients committed violent crimes versus 3 of 500 (0.6%) of the control group. A closer examination revealed that most convictions were associated with alcohol in both groups.

Unlike Virkkunen, Kreutzer et al were unable to prove or disprove a cause and effect between TBI and violence. In their 1991 investigation based on 74 TBI patients, they found that 20% had been arrested pre-injury, and 10% had been arrested after the injury.² Most arrests occurred after use of alcohol or other drugs. The study concluded that criminal behavior might be a result of post-injury changes including poor judgment, apathy, and other new behaviors.

Box 1

Substance abuse, traumatic brain injury, and crime were indeed interconnected, the researchers said, but they did not go so far as to conclude that TBI causes criminality and violence. Rather, they believed that substance abuse, which was most common among those younger than 35, led to legal difficulties and TBI.

In 1995, based on a larger sample of 327 patients, Kreutzer and associates found that the TBI criminal population has a relatively high incidence of alcohol abuse before and after head injury.³ Most crimes were associated with substance abuse, such as drug possession or driving under the influence of alcohol.

The study found that TBI patients with a history of arrest were more likely to have substance abuse problems after the injury. TBI patients with both a criminal and substance abuse history also were more likely to commit crimes after the head injury. Kreutzer concluded that TBI is not a risk factor for crime without such a history.

For the defense: TBI does lead to criminality

In one study by Brooks et al of 42 individuals with severe TBI, threats of violence increased from 15% 1 year after sustaining head injury to 54% 5 years after.⁴ What’s more, at the 5-year follow-up, 31% of these patients had legal problems and 20% of their relatives had been assaulted by them at least once.

A study by Sarpata et al also supports the argument that TBI leads to criminality.⁵ They argue that TBI patients should be expected to commit crimes because they have poor cognitive skills, impulsivity, and increased aggression, as well as low tolerance for frustration and poor judgment. In their study of 18 subjects in a community corrections day program in Vigo County, Indiana, they found that a large percentage of offenders (50%) reported head injury.⁵ In contrast, the prevalence of head injury in the general population is 2%to 5%.

By self-report, the TBI offenders at the day program had worse cognition, greater lability, and more aggressiveness than non-offenders and non-TBI offenders. They concluded, “it would appear that had most of these people not experienced a head injury, they may not have become offenders.”⁵ The Sarpata et al study did not involve an imprisoned population; therefore, these offenders did not become brain-injured while incarcerated. They argued that TBI patients may have more difficulty understanding the legal process, are less able to assist with their defense, and thus are more likely to be found guilty than are suspects without brain injury. The authors recommended cognitive rehabilitation as a way to reduce the propensity for crime.

In a report of the Vietnam Head Injury Study, Grafman et al concluded that ventromedial frontal lobe lesions could result in violent behavior because frontal lobe damage makes it more difficult for the brain to access social skills leading to disinhibition and aggression.⁶ In this study, 279 Vietnam veterans with a history of TBI were matched with 57 healthy people, based on age, education, and length of Vietnam experience. Each received comprehensive testing, including neuropsychological and personality testing. Family members completed questionnaires, which were rated on the Katz Adjustment Scale (KAS), including the Any Violence Scale and the Extreme Violence Scale, to assess aggressiveness.

Based on the observations of family members through the KAS, 14% of the group with frontal lobe injury exhibited physical violence compared with roughly 5% of the controls. These findings were independent of education, IQ scores, or Beck Depression Inventory scores. Patients with lesions in the mediofrontal and orbitofrontal regions had higher Any Violence Scale and Extreme Violence Scale scores than the control group, as reported by family members.

“Knowledge stored in the human prefrontal cortex plays a managerial role in the control of behavior and takes the form of mental models, thematic understanding, plans, and social rules,” the authors said.⁶ They theorized that a prefrontal cortex lesion would hinder the ability to manage one’s instincts, leading to impulsivity, aggression, and violence. However, all patients with ventromedial prefrontal cortex lesions did not display aggression or violent behavior. Further, patients with lesions elsewhere and some normal subjects displayed aggressive and violent behaviors.

Martell estimated the prevalence of organic brain dysfunction in maximum-security forensic psychiatric patients at the Kirby Forensic Psychiatric Center on Ward’s Island in New York City.⁷ Of the 50 randomly selected patients, 22% had a history of a head injury in which they lost consciousness. Whereas 84% had a history of some sort of brain impairment, only 16% were given an organic diagnosis.

“All of the subjects with a DSM-III-R diagnosis of organic brain disorder had been arrested and charged for violent crimes. Of these patients, 75% were charged with murder, manslaughter, or attempted murder. The remaining 25% were charged with violent sex offenses,” said Martell, arguing for a more careful evaluation of organic brain impairment in forensic evaluations.⁷

Lewis et al evaluated the neuropsychiatric status of 15 death-row inmates.⁸ All had reached the final stage in the legal process prior to execution, and 4 had been executed by the time the study was published in 1986. All 15 had a history of TBI as evidenced by objective findings of scars, skull indents, neurologic findings, records, collateral from families, and neuroimaging. During childhood, for instance, one inmate had been beaten in the head by 2-by-4s and fell into a pit, with loss of consciousness for several hours. As an adult, he was in a motor vehicle accident, resulting in an injury to the right eye, and later fell from a roof after a blackout. Other inmates had seizures, abnormal CT scans, positive Babinski signs, ankle clonus, skull defects, and various other neurologic signs.

“When the Supreme Court reinstated the death penalty, it provided that there be a separate sentencing in which mitigating circumstances could be explored. Any evidence of mental disease or defect, including any evidence of central nervous system dysfunction, would be relevant to such hearings, since such disorders affect judgment, reality testing, and self-control,” the authors said.⁸

These 15 death-row inmates had numerous neuropsychiatric symptoms that were not addressed. It was thought that the attorneys and judges did not address the organic conditions because of their subtle nature. Objective evidence through collateral and testing ruled out malingering, as did the fact that these inmates were not searching for evaluations or exaggerating their symptoms. The authors concluded that neuropsychiatric status could be a potentially strong mitigating factor, but such evidence is often neglected.

TBI and the insanity defense

Criminal responsibility is dependent on actus reus, the harmful act, and mens rea, guilty or wrongful intent. The accountability and blameworthiness of the crime fall under mens rea. Do TBI patients have the mens rea for the crime? Can TBI be a basis for a plea of not guilty by reason of insanity (NGRI) or a diminished capacity defense? Can the worsening of TBI-related behaviors by substance abuse be the basis for an insanity defense or diminished capacity?

For an NGRI plea, a mental illness or defect must exist. TBI is an abnormal condition of the mind leading to a mental disease that can substantially affect control of emotions and behaviors. The NGRI plea historically had two prongs: cognitive and volitional impairment.⁹ The M’Naghten test, the cognitive prong, is based on whether the defendant knew the nature and quality of the criminal act or knew the act was wrong. Under the American Law Institute (ALI)test and American Bar Association standards, the defendant can meet the criteria for insanity by demonstrating a substantial lack of capacity to appreciate, rather than knowing, the criminality or wrongfulness of the act.

There is a substantial amount of evidence for cognitive impairment in TBI patients. The TBI patient may have several co-existing “neurolinguistic deficits associated with the pragmatics of language.”¹⁰ For example, a TBI patient with damage in the nondominant hemisphere may misinterpret the prosody of language, leading to an inappropriate response. Other neurolinguistic deficits in TBI patients include decreased intelligibility, a constricted operational vocabulary, perseveration, and limited listening.

TBI can also lead to short-term memory impairment due to injury to the vulnerable hippocampus within the anterior temporal lobe. When the hippocampus is damaged, the transformation of memories from long-term to active is impaired. Consequently, retrieval of learned information is more difficult for the TBI patient.¹⁰

Also, higher-order cognitive processes can be damaged after TBI. Executive functioning, through the frontal lobe, involves data collection, prioritizing, formulating a plan, and carrying out the plan. This process is almost always impaired in TBI patients, according to a study by Szekeres et al in 1987.¹⁴ Poor abstraction associated with frontal lobe damage can lead to difficulties of TBI patients in understanding or appreciating certain concepts related to the wrongfulness, nature, and quality of their acts.

Finally, interpretation of sensory input is impaired as a result of widespread subcortical damage. Deficient central processing could lead to inability to realistically perceive the external world.¹⁰ In theory, the TBI patient could potentially have enough cognitive impairment to have a substantial lack of appreciation of the criminality or wrongfulness of an act.

The insanity defense reforms after John Hinckley’s attempted assassination of former President Ronald Reagan have rendered the volitional prong largely irrelevant. One way to judge volitional control is the “policeman at the elbow,” defined as a lack of control such that the offender would have committed the act with a police officer present. Although studies have not focused on whether TBI can lead to “policeman at the elbow” impulsivity, they have proven that TBI-related deficits can lead to severe impulsivity through neuroanatomy and neurotransmitter systems. Silver et al developed the specific diagnosis of “organic aggression syndrome” to describe TBI patients whose aggression is characterized as being “reactive,” “nonreflective,” “nonpurposeful,” “explosive,” “periodic,” and “ego-dystonic.”¹⁰

Diminished capacity and mens rea testimony can be subdivided into four categories under the ALI model Penal Code formulation, including “purpose,” “knowledge,” “recklessness,” and “negligence.”⁹ If an offender has purpose or knowledge, he or she specifically intended to commit the crime. In contrast, with negligence, the offender should have been aware of the risk but may not have been. If the offender is reckless, he or she consciously disregarded a known risk. In general, TBI-related impulsivity and cognitive impairment can lead to recklessness and negligence.

As previously discussed, substance abuse is frequently comorbid in the TBI patient. Evidence for intoxication often exists at the time of the offense. Although the effects of drugs and alcohol might be more severe in such a patient, and the patient probably knew this, the intoxication remains voluntary. An NGRI plea might be unobtainable with voluntary intoxication, but diminished capacity remains a possibility (albeit a weak one).

A mitigating factor in sentencing

TBI is perhaps most pertinent to sentencing, especially in capital cases. Because the death penalty is on the line, psychiatrists will often be asked for their clinical opinions. Lockett v. Ohio¹¹ secured that any mitigating factors can be admitted during the sentencing phase of a capital case. In fact, it is widely recognized that substance abuse and TBI are potentially independent mitigating factors.⁹

Treatability and rehabilitative potential may also be mitigating. Communicating the potential for treatment to the court can be an undeniable mitigating factor for a TBI patient who has committed violent acts. Cognitive rehabilitation, psychopharmacology, and psychotherapy (individual and family) can be effective treatment options.

Related resources

• Centers for Disease Control and Prevention: Epidemiology of Traumatic Brain Injury in the United States.
• Reynolds CR, ed. Detection of Malingering during Head Injury Litigation. New York: Plenum Press, 1998.
• Murrey G, ed. The Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys. Atlanta, Ga: CDC Press, 2000.

You would be fully justified to state that traumatic brain injury (TBI) can cause and worsen a wide range of psychiatric symptoms including psychosis, mood symptoms, anxiety, cognitive deficits, and impulsivity. Could you also present sufficient evidence of TBI as a cause of violence?

That could be more difficult. TBI-induced criminality remains a central and controversial area within forensic psychiatry. Behavior resulting from injury has been implicated in violence and crime, especially when coexisting with substance abuse, a violent environment during childhood including abuse, and pre-existing personality disorder. The literature is vast and covers a spectrum of opinions, allowing the forensic psychiatrist to find evidence that would support the prosecution or the defense. Judge for yourself.

For the prosecution: TBI is no defense

In his study, “Brain injury and criminality,” Virkkunen concluded that “sociopathy, alcoholism, and drug abuse are the types of psychiatric disorders associated with criminal behavior, not organic brain syndrome.”¹

This statement was based upon a retrospective analysis of World War II veterans. A search was conducted through Finland’s Criminal Register to compare the frequencies of convictions for crimes punishable by imprisonment between a non-TBI control group and a TBI group. The overall crime rates between the two groups were not significantly different: 5.5% versus 4.2% for the control and TBI groups, respectively. Seventeen of 1,870 (0.9%) of the TBI patients committed violent crimes versus 3 of 500 (0.6%) of the control group. A closer examination revealed that most convictions were associated with alcohol in both groups.

Unlike Virkkunen, Kreutzer et al were unable to prove or disprove a cause and effect between TBI and violence. In their 1991 investigation based on 74 TBI patients, they found that 20% had been arrested pre-injury, and 10% had been arrested after the injury.² Most arrests occurred after use of alcohol or other drugs. The study concluded that criminal behavior might be a result of post-injury changes including poor judgment, apathy, and other new behaviors.

Box 1

Substance abuse, traumatic brain injury, and crime were indeed interconnected, the researchers said, but they did not go so far as to conclude that TBI causes criminality and violence. Rather, they believed that substance abuse, which was most common among those younger than 35, led to legal difficulties and TBI.

In 1995, based on a larger sample of 327 patients, Kreutzer and associates found that the TBI criminal population has a relatively high incidence of alcohol abuse before and after head injury.³ Most crimes were associated with substance abuse, such as drug possession or driving under the influence of alcohol.

The study found that TBI patients with a history of arrest were more likely to have substance abuse problems after the injury. TBI patients with both a criminal and substance abuse history also were more likely to commit crimes after the head injury. Kreutzer concluded that TBI is not a risk factor for crime without such a history.

For the defense: TBI does lead to criminality

In one study by Brooks et al of 42 individuals with severe TBI, threats of violence increased from 15% 1 year after sustaining head injury to 54% 5 years after.⁴ What’s more, at the 5-year follow-up, 31% of these patients had legal problems and 20% of their relatives had been assaulted by them at least once.

A study by Sarpata et al also supports the argument that TBI leads to criminality.⁵ They argue that TBI patients should be expected to commit crimes because they have poor cognitive skills, impulsivity, and increased aggression, as well as low tolerance for frustration and poor judgment. In their study of 18 subjects in a community corrections day program in Vigo County, Indiana, they found that a large percentage of offenders (50%) reported head injury.⁵ In contrast, the prevalence of head injury in the general population is 2%to 5%.

By self-report, the TBI offenders at the day program had worse cognition, greater lability, and more aggressiveness than non-offenders and non-TBI offenders. They concluded, “it would appear that had most of these people not experienced a head injury, they may not have become offenders.”⁵ The Sarpata et al study did not involve an imprisoned population; therefore, these offenders did not become brain-injured while incarcerated. They argued that TBI patients may have more difficulty understanding the legal process, are less able to assist with their defense, and thus are more likely to be found guilty than are suspects without brain injury. The authors recommended cognitive rehabilitation as a way to reduce the propensity for crime.

In a report of the Vietnam Head Injury Study, Grafman et al concluded that ventromedial frontal lobe lesions could result in violent behavior because frontal lobe damage makes it more difficult for the brain to access social skills leading to disinhibition and aggression.⁶ In this study, 279 Vietnam veterans with a history of TBI were matched with 57 healthy people, based on age, education, and length of Vietnam experience. Each received comprehensive testing, including neuropsychological and personality testing. Family members completed questionnaires, which were rated on the Katz Adjustment Scale (KAS), including the Any Violence Scale and the Extreme Violence Scale, to assess aggressiveness.

Based on the observations of family members through the KAS, 14% of the group with frontal lobe injury exhibited physical violence compared with roughly 5% of the controls. These findings were independent of education, IQ scores, or Beck Depression Inventory scores. Patients with lesions in the mediofrontal and orbitofrontal regions had higher Any Violence Scale and Extreme Violence Scale scores than the control group, as reported by family members.

“Knowledge stored in the human prefrontal cortex plays a managerial role in the control of behavior and takes the form of mental models, thematic understanding, plans, and social rules,” the authors said.⁶ They theorized that a prefrontal cortex lesion would hinder the ability to manage one’s instincts, leading to impulsivity, aggression, and violence. However, all patients with ventromedial prefrontal cortex lesions did not display aggression or violent behavior. Further, patients with lesions elsewhere and some normal subjects displayed aggressive and violent behaviors.

Martell estimated the prevalence of organic brain dysfunction in maximum-security forensic psychiatric patients at the Kirby Forensic Psychiatric Center on Ward’s Island in New York City.⁷ Of the 50 randomly selected patients, 22% had a history of a head injury in which they lost consciousness. Whereas 84% had a history of some sort of brain impairment, only 16% were given an organic diagnosis.

“All of the subjects with a DSM-III-R diagnosis of organic brain disorder had been arrested and charged for violent crimes. Of these patients, 75% were charged with murder, manslaughter, or attempted murder. The remaining 25% were charged with violent sex offenses,” said Martell, arguing for a more careful evaluation of organic brain impairment in forensic evaluations.⁷

Lewis et al evaluated the neuropsychiatric status of 15 death-row inmates.⁸ All had reached the final stage in the legal process prior to execution, and 4 had been executed by the time the study was published in 1986. All 15 had a history of TBI as evidenced by objective findings of scars, skull indents, neurologic findings, records, collateral from families, and neuroimaging. During childhood, for instance, one inmate had been beaten in the head by 2-by-4s and fell into a pit, with loss of consciousness for several hours. As an adult, he was in a motor vehicle accident, resulting in an injury to the right eye, and later fell from a roof after a blackout. Other inmates had seizures, abnormal CT scans, positive Babinski signs, ankle clonus, skull defects, and various other neurologic signs.

“When the Supreme Court reinstated the death penalty, it provided that there be a separate sentencing in which mitigating circumstances could be explored. Any evidence of mental disease or defect, including any evidence of central nervous system dysfunction, would be relevant to such hearings, since such disorders affect judgment, reality testing, and self-control,” the authors said.⁸

These 15 death-row inmates had numerous neuropsychiatric symptoms that were not addressed. It was thought that the attorneys and judges did not address the organic conditions because of their subtle nature. Objective evidence through collateral and testing ruled out malingering, as did the fact that these inmates were not searching for evaluations or exaggerating their symptoms. The authors concluded that neuropsychiatric status could be a potentially strong mitigating factor, but such evidence is often neglected.

TBI and the insanity defense

Criminal responsibility is dependent on actus reus, the harmful act, and mens rea, guilty or wrongful intent. The accountability and blameworthiness of the crime fall under mens rea. Do TBI patients have the mens rea for the crime? Can TBI be a basis for a plea of not guilty by reason of insanity (NGRI) or a diminished capacity defense? Can the worsening of TBI-related behaviors by substance abuse be the basis for an insanity defense or diminished capacity?

For an NGRI plea, a mental illness or defect must exist. TBI is an abnormal condition of the mind leading to a mental disease that can substantially affect control of emotions and behaviors. The NGRI plea historically had two prongs: cognitive and volitional impairment.⁹ The M’Naghten test, the cognitive prong, is based on whether the defendant knew the nature and quality of the criminal act or knew the act was wrong. Under the American Law Institute (ALI)test and American Bar Association standards, the defendant can meet the criteria for insanity by demonstrating a substantial lack of capacity to appreciate, rather than knowing, the criminality or wrongfulness of the act.

There is a substantial amount of evidence for cognitive impairment in TBI patients. The TBI patient may have several co-existing “neurolinguistic deficits associated with the pragmatics of language.”¹⁰ For example, a TBI patient with damage in the nondominant hemisphere may misinterpret the prosody of language, leading to an inappropriate response. Other neurolinguistic deficits in TBI patients include decreased intelligibility, a constricted operational vocabulary, perseveration, and limited listening.

TBI can also lead to short-term memory impairment due to injury to the vulnerable hippocampus within the anterior temporal lobe. When the hippocampus is damaged, the transformation of memories from long-term to active is impaired. Consequently, retrieval of learned information is more difficult for the TBI patient.¹⁰

Also, higher-order cognitive processes can be damaged after TBI. Executive functioning, through the frontal lobe, involves data collection, prioritizing, formulating a plan, and carrying out the plan. This process is almost always impaired in TBI patients, according to a study by Szekeres et al in 1987.¹⁴ Poor abstraction associated with frontal lobe damage can lead to difficulties of TBI patients in understanding or appreciating certain concepts related to the wrongfulness, nature, and quality of their acts.

Finally, interpretation of sensory input is impaired as a result of widespread subcortical damage. Deficient central processing could lead to inability to realistically perceive the external world.¹⁰ In theory, the TBI patient could potentially have enough cognitive impairment to have a substantial lack of appreciation of the criminality or wrongfulness of an act.

The insanity defense reforms after John Hinckley’s attempted assassination of former President Ronald Reagan have rendered the volitional prong largely irrelevant. One way to judge volitional control is the “policeman at the elbow,” defined as a lack of control such that the offender would have committed the act with a police officer present. Although studies have not focused on whether TBI can lead to “policeman at the elbow” impulsivity, they have proven that TBI-related deficits can lead to severe impulsivity through neuroanatomy and neurotransmitter systems. Silver et al developed the specific diagnosis of “organic aggression syndrome” to describe TBI patients whose aggression is characterized as being “reactive,” “nonreflective,” “nonpurposeful,” “explosive,” “periodic,” and “ego-dystonic.”¹⁰

Diminished capacity and mens rea testimony can be subdivided into four categories under the ALI model Penal Code formulation, including “purpose,” “knowledge,” “recklessness,” and “negligence.”⁹ If an offender has purpose or knowledge, he or she specifically intended to commit the crime. In contrast, with negligence, the offender should have been aware of the risk but may not have been. If the offender is reckless, he or she consciously disregarded a known risk. In general, TBI-related impulsivity and cognitive impairment can lead to recklessness and negligence.

As previously discussed, substance abuse is frequently comorbid in the TBI patient. Evidence for intoxication often exists at the time of the offense. Although the effects of drugs and alcohol might be more severe in such a patient, and the patient probably knew this, the intoxication remains voluntary. An NGRI plea might be unobtainable with voluntary intoxication, but diminished capacity remains a possibility (albeit a weak one).

A mitigating factor in sentencing

TBI is perhaps most pertinent to sentencing, especially in capital cases. Because the death penalty is on the line, psychiatrists will often be asked for their clinical opinions. Lockett v. Ohio¹¹ secured that any mitigating factors can be admitted during the sentencing phase of a capital case. In fact, it is widely recognized that substance abuse and TBI are potentially independent mitigating factors.⁹

Treatability and rehabilitative potential may also be mitigating. Communicating the potential for treatment to the court can be an undeniable mitigating factor for a TBI patient who has committed violent acts. Cognitive rehabilitation, psychopharmacology, and psychotherapy (individual and family) can be effective treatment options.

Related resources

• Centers for Disease Control and Prevention: Epidemiology of Traumatic Brain Injury in the United States.
• Reynolds CR, ed. Detection of Malingering during Head Injury Litigation. New York: Plenum Press, 1998.
• Murrey G, ed. The Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys. Atlanta, Ga: CDC Press, 2000.