Eric G. Mart, Ph.D., ABPP  |  July 14, 2013

Forensic psychologists receive many different types of referrals, but the underlying psycho-legal question is often the same: Does the person have the ability to do what we need him or her to do, and if not, can any deficiencies be treated? This question arises in many court-related contexts:

• Can this person understand the issues involved in standing trial and assist his or her attorney?
• Is this person able to parent adequately?
• Can this child learn effectively in this school environment?
• Can this adult manage his or her own financial affairs?
• Does this person have enough understanding of his or her medical/psychiatric condition to give informed consent?

Sometimes the question is retrospective in nature:

• Did this person know what he or she was doing when he or she changed the will?
• Did this person understand the wrongfulness of his or her actions when he or she committed the crime?

A problem that I frequently encounter in forensic psychological and psychiatric reports is confusion between functional capacity and psychiatric diagnosis. While this can be seen in many areas of forensic practice, I see it most frequently in cases where guardianship is the issue. Frequently, courts will order neuropsychological assessments for elderly individuals suspected of having dementia or for younger persons with head injuries or low IQs. These reports often provide a great deal of information about many areas of cognitive functioning, including detailed descriptions of the individual’s abilities in areas such as verbal, non-verbal, short-term and long term memory, various aspects of executive functioning, and constructional abilities. Unfortunately, basic questions regarding functional capacity, which are the real reason for the referral, are not addressed. For example, can the person balance a checkbook, set up and take his or her medication, or move about the community safely? A neuropsychological evaluation can help explain why observed functional deficits exist, but it generally cannot tell us anything useful about whether functional deficits exist in the first place. The same thing can often be observed in other kinds of reports. For example, the presence of mental retardation or psychosis does not mean that the subject cannot stand trial or parent adequately.

When reviewing court-related mental health reports, lawyers should look for a connection between the data the expert has elicited and his or her conclusions about functional capacity. Often, it is apparent that the expert has not actually assessed functional capacity, and the report may do little to “advance the ball” from an evidentiary standpoint. If this is the case, this deficiency can be brought out, either on cross examination or through the lawyer’s own expert.

References

Greenberg, S., Shuman, D, & Meyer, R. Unmasking forensic diagnosis, International Journal of Law and Psychiatry, 2004 Jan-Feb;27(1):1-15.