There is a major change occurring in the AMA structure and governance that is of interest to our organization. The state medical societies and regional coalitions have long dominated the AMA. Over the past eight years there has been a marked growth of the Service and Specialty Society (SSS), which is the group containing the medical specialty associations. With recent changes in representation requirements, the numbers at the next annual meeting will reverse and the specialty societies will have more votes than the state societies.
AMA members can specify a society to which they wish to assign their votes, and this in turn gives that society the number of seats or votes it will have in the House of Delegates. The most recent estimate is that the APA will move from having three to a total of six or seven delegates next year. They also will be playing a more active role in the SSS.
The issue of how many AMA members an organization needs to obtain a seat in the House of Delegates is currently under review; at the present time that number is one-half of the eligible MDs for small organizations like AAPL. If that were changed to one-third we would become eligible for a seat. Stay tuned.
In 1998 the AMA adopted an ethical guideline relating to a need for second opinions in certain cases. The ethical opinion specifically is: E-2.065 Court-Initiated Medical Treatments in Criminal Cases:
"Physicians can ethically participate in court-initiated medical treatments only if the procedure being mandated is therapeutically efficacious and is therefore undoubtedly not a form of punishment or solely a mechanism of social control.
While a court has the authority to identify criminal behavior, a court does not have the ability to make a medical diagnosis or to determine the type of treatment that will be administered. In accordance with ethical practice, physicians should treat patients based on sound medical diagnoses, not court defined behaviors. This is particularly important where the treatment involves inpatient therapy, surgical intervention, or pharmacological treatment. In these cases, diagnosis can be made initially by the physician who will do the treatment, but must then be confirmed by an independent physician or a panel of physicians not responsible to the state. A second opinion is not necessary in cases of court-ordered counseling or referrals for psychiatric evaluations.
A recognized, authoritative medical body, such as a national specialty society, should pre-establish scientifically valid treatments for medically determined diagnoses. Such pre-established acceptable treatments should then be applied on a case by case basis.
The physician who will perform the treatment must be able to conclude, in good conscience and to the best of his or her professional judgment, that the informed consent was given voluntarily to the extent possible, recognizing the element of coercion that is inevitably present. In cases involving inpatient therapy, surgical intervention, or pharmacological treatment, an independent physician or a panel of physicians not responsible to the state should confirm that the informed consent was given in accordance with these guidelines." Issued December 1998, based on the report "Court-Initiated Medical Interventions," issued June 1998.
As the guideline seemed to potentially affect a large number of forensic patients, I wrote a letter to CEJA on June 14, 1999, attempting to clarify the scope of that opinion. My letter is appended here:
"I am writing in an attempt to clarify the meaning of the ethical guideline E-2.065 "Court-Initiated Medical Treatments in Criminal Cases" distilled from the recently passed CEJA Report 4-A-98. Psychiatrists and forensic psychiatrists deal with the population most likely to be affected by this guideline on a day to day basis and we are having a difficult time understanding the scope of the requirement. Psychiatrists are extensively involved with treatments for both mental illness and substance abuse in correctional settings and with patients who have involvement with the criminal courts. As the Medical Director for the American Academy of Psychiatry and the Law, our Executive Council and I have a number of specific questions in an effort to clarify the scope of the guideline.
1. My understanding from the preamble in 4-A-98 is that the committee was concerned with the use of court-ordered antiandrogens in felons being paroled without a proper medical evaluation. California has passed a statute that requires the use of Depo-Provera in felons who have two offenses. The statute does not take into account any need for a medical evaluation although physicians would clearly have to write prescriptions for parolees. My concern is that this treatment is legislatively required and is not "court initiated." Most physicians and attorneys make a clear distinction between statutory law and case law or court ordered treatments. The guideline makes no such distinction, and would not specifically cover this statute as the requirement is not "court initiated."
2. The criminal courts refer defendants for treatment in a variety of circumstances to both inpatient and outpatient psychiatric facilities during the judicatory process. Many of these are done following motions made by attorneys for evaluations or following psychiatric evaluations that the attorneys requested. The scope of what is meant by "court initiated" is very unclear. Does "court-initiated" mean there has been no prior professional evaluation and the court is mandating a specific treatment?
3. Do all of the following "court" referrals now require a second opinion if the initial evaluator is a state employed physician or the referral is to a state facility and the referral has been made by other state employed mental health professionals who are not physicians? e.g.
A. Court Diversion Programs- In lieu of prosecution, defendants charged with misdemeanors or less serious crimes are often referred for mental health or substance abuse treatment. Many of these referrals take place after evaluations by both private and state employed professionals who assess a need for treatment. The professionals establish treatment plans and the court is only interested if they are arrested again. Do these referrals now require a second opinion if the referral is to a state facility?
B. Conditions of Parole or Probation- Following an adjudication, defendants may be placed on probation or after a period of incarceration are released with conditions of probation that may include substance abuse or mental health treatment. If they do not comply, they may be re-incarcerated for the remainder of their term. These treatments are frequently continuation of prior treatments that had been initiated before any court involvement. These standard treatments are accompanied by state statutes which do not permit involuntary medication without: a) patient consent; b) some legally authorized representative who provides consent if the individual is not competent and a conservator has been appointed or c) a specific court order following a hearing. Is it now an expectation that all of these referrals require a second opinion?
C. Restoration of Competency to Stand Trial- Competency to stand trial evaluations are the most common evaluation ordered by court (1000/yr in Connecticut alone). Any participant including the judge may request evaluations. Following the request, psychiatrists and other professionals perform an evaluation, and following an adversarial hearing a defendant may be found incompetent by the judge. Defendants found incompetent to stand trial are referred to inpatient or less frequently to outpatient treatment in state facilities for restoration by the judge. Most states have statutes that only allow involuntary medication under specific circumstances (e.g. danger to self or others) and usually require a court proceeding that reviews the likelihood of success, risks, and benefits after hearing testimony from psychiatrists. Is it the intent of this guideline to require an outside consultant for these defendants irrespective of their "consent for medications" or other court hearings reviewing the necessity for medications in spite of their objections?
D. Insanity Acquittees are referred for treatment to state facilities following a successful insanity defense for treatment by court orders. Must all of these cases now require a second opinion when state hospitals establish treatment plans?
E. Drug treatment programs have not seen legal pressures as requiring formal second opinions although most addicts referred through the legal system or facing legal charges are generally seen by several evaluators in the process of screening and referral. Does this guideline now require all addicts involved in court diversion programs or drug courts to be seen by a non-state employed MD as part of any treatment program?
F. Does the Ethical Guideline for Competency to be executed now have to be amended by this guideline and any proposed treatment by state hospitals now require a second opinion?
This guideline potentially covers an enormous number of individuals and circumstances. In its present form it would have great costs and denigrates the professionalism of state employees. We would have no objection to a carefully circumscribed guideline where courts attempt to practice medicine or prescribe treatments without consideration of medical evaluations. Your "competency to be executed guidelines" steered a careful course in this area, while this guideline paints a very broad demand without the detailed understanding of the many facets of the interfaces between the court and treatment systems.
My understanding of the intent of the guideline was that some review is necessary for questionable or novel treatments when ordered by judges without adequate medical evaluations, rather than routine and accepted treatments, e.g. appendectomies for acute appendicitis, treatment of acute psychotic disorders, alcohol or drug withdrawals or other hospitalizations of inmates that may require court orders. If the above are all included, do treating physicians have to withhold treatment if the state refuses to fund these second opinions and/or abandon their patients?
As physicians specializing in forensic psychiatry we are gravely concerned about the serious conflicting standard of practice implications raised by these guidelines and hope that clarification and assistance can be provided by our AMA."
The AMA response was written by the Chair of CEJA on September 7, 1999:
"The Council on Ethical and Judicial recently met and reviewed your letter dated June 14, 1999, in which you requested clarification on the scope of Opinion 2.065, "Court-Initiated Medical Treatment in Criminal Cases." This Opinion offers guidance to physicians who are involved in the care of patients who have been ordered by a court, to undergo medical treatment. In instances when treatments are required by statute, physicians’ action may be guided by Opinion 1.02, "The Relation of Law and Ethics," which holds that ethical obligations may exceed legal duties and encourages physicians who believe a law to be unjust to advocate for change.
Opinion 2.065 addresses medical treatment ordered by a court for a specific person. The Opinion does not cover the referral of defendants for evaluations, or referrals for restoration of competency to stand trial, or even referrals for drug screening when facing legal charges. Referral for mental health or substance abuse treatment in lieu of prosecution also falls outside the ambit of the Opinion.
Treatment orders under state involuntary commitment statutes are not covered. For example, proceedings that review instances where defendants are referred to state facilities for treatment which they refuse do not fall under this policy.
Finally, the Opinion recommends second opinions only in cases of court ordered inpatient therapy, surgical intervention, or pharmacological treatment. The opinion explicitly exempts "court ordered counseling or referrals for psychiatric evaluation."
Overall, the Opinion is meant to guide physicians in those rare instances when courts attempt to mandate medical treatments that may not be related to the charge or may be without therapeutic benefit. We hope these clarifications will be of assistance.
If you have further questions, please do not hesitate to contact me."
While a number of the questions were not specifically answered, I think that the thrust of the opinion was that the usual restorations of competency referrals, probation referrals, and insanity cases do not need second opinions. I think they mean to keep the interpretation reasonably narrow to situations where courts mandate treatment on their own although, in my opinion, the wording of the guideline is not particularly clear and is open to other interpretations. Please inform me of other potential areas of concern so that we keep this dialogue open.
We are continuing to explore the issues raised by out of state testimony and the need for licenses from the state medical licensure boards. At the moment it looks like there will be no quick fix. Each licensure Board is an independent entity, and while there is a Federation of State Medical Boards (FSMB), they seem to be reluctant to adopt national standards. As an example, the Federation promulgated a guideline for Telemedicine, which is very analogous to the issues facing forensic evaluations and testimony, but very few Boards adopted it. At the moment the best advice is to check with each state board as to their requirements before agreeing to take a case. The phone numbers can be found at www.fsmb.org/members.htm.