In the Year 2019: Psychiatry in Law and Public Policy

Whether you credit the idea to Niels Bohr or Yogi Berra, it is true that predictions are very difficult to make, especially about the future. It is a daunting task, yet obviously an intriguing one, to try to imagine what our field will be like in 10 years or more.

To cope with the limits of prognostication, article size, and personal knowledge (and to limit the extent of how wrong I may be proved by time), I will focus here on events in the realms of ethics and law in psychiatry and the inevitable conflicts between science and public policy and economics that have their origin in those spawning grounds. I will comment on 2 general areas:

• Conflicts related to people our society fears and feels justified in stigmatizing-including sex offenders and people with serious mental illness
• The limits of the sciences of prediction and the ways in which our fears lead us to ignore those limits

Neuroscience
I will begin by mentioning an important area of active development that deserves fuller description than can be managed within this article: advances in neuroscience and their relationships to questions in psychiatry and the law. Significant research is being conducted in this area, with a notable available literature.^1-3 While some advances are likely to be more readily applicable and easily acceptable to the practice of forensic psychiatry-such as the application of neuroscience data about memory to the assessment of amnesia claims and malingering-I am less optimistic about the application of neuroimaging and other advances to questions of criminal responsibility.^3,4

Better scientific understanding of neural mechanisms is not likely to settle fundamental questions of morality, ethics, and interpersonal justice as applied to the specific determinations that must be made in the legal arena.⁵ Although there are scholars who argue for greater scientific optimism, I do not believe we are likely as a society to accept a mechanistic view of personhood or a neurodeterministic view of personal responsibility that is unfiltered by the screen of functional capacity.⁶ I do expect, however, that there will be both steps and missteps in that direction in individual legal cases.

Criminalization
So where are we likely to be in 10 years or so? We are likely to be working hard to find our way out of very difficult sociopolitical-economic problems of our own making. The record numbers of Americans who are imprisoned will continue, because we have not been able to exercise political control of our communal anxiety with options less concrete than the construction and utilization of larger prisons. Incarceration has soared in America, despite a fall in violent crime rates.

The Pew Center on the States recently released its report “One in 100: Behind Bars in America 2008.” That report highlights these sad and troubling facts: we now incarcerate more than 1 in every 100 adults in America; also, 1 in 9 black men between the ages of 20 and 34 is imprisoned.7 At the same time, violent crime rates have dropped, and only 25% of that drop is attributable to increased rates of incarceration.8 Between 1994 and 2005, the adjusted violent crime rate in this country decreased more than 59%.9 During that same period, the prison count increased by more than 36%; it tripled between 1987 and 2007.⁷

The good news is that lawmakers are already taking notice of the crippling effects on economies and public policy of the costs of incarceration. Within 10 years, the idea that we ought to spend more money on reducing the causes of crime is likely to be a mainstream notion. So what does this have to do with psychiatry? The Department of Justice reported in 2006 that more than 56% of state prisoners and 64% of local jail inmates have mental health problems.¹⁰ More than half of these individuals have severe mental illness.¹¹ Mental health leadership from the Substance Abuse and Mental Health Services Administration, the National Association of State Mental Health Program Directors, the National Alliance on Mental Illness, the NIMH, the American Psychiatric Association, and many other organizations has significantly stimulated interest in decriminalization of mental illness. This interest will continue to grow and become an increasing force during the next 10 years.

There are various active efforts to attenuate the criminalization of mental illness. These include drug courts, mental health courts, “competency courts,” and a range of other diversion and reentry approaches that are described as part of the Sequential Intercept Model.^12-15 If we think of criminal justice system involvement (CJSI) as a “disorder” for which people with mental health problems are at risk, we can think in terms of primary, secondary, and tertiary prevention strategies.

The existing use of tertiary prevention of CJSI, such as jail diversion and community reentry programs, at the front and back doors of the criminal justice system involves extensive coordination between criminal justice and mental health service systems.¹⁶ These interventions will certainly expand as they demonstrate impressive reductions in criminal recidivism and in increased cost savings.

Secondary prevention programs (eg, crisis intervention teams) in which mental health providers train and provide support to local police agencies, direct individuals with mental illness to treatment rather than arrest and incarceration.^17,18 Such interventions will also continue to expand in the next decade.

The biggest area for growth will be the challenges of primary prevention of CJSI among people with severe mental illness. To accomplish this goal, we will need to reinforce mental health systems to make them more accessible and to equip clinical staff members with skills to deal with risk-relevant deficits (ie, criminogenic needs) as specific foci for treatment interventions on an individual case basis.^15,19-21 Our mental health systems must-and will-become more pro-active in addressing CJSI, rather than participating mostly in developments that are reactive to the political and economic pressures of the criminal justice system. In the next 10 years, much more significant progress will be made on this front.

Sex offenders
We are doing much worse in the area of managing sex offenders. We continue to expand the misuse of psychiatry to enable preventive detention of persons we have already punished for their criminal acts. Most of this activity is fueled by fearsome publicly sensationalized details of individual cases of sexual abuse of children. Despite the fact that the rate of substantiated cases of child sexual abuse decreased 49% between 1992 and 2004, and instances of rape decreased 82% from 1979 to 2005, we have nonetheless expanded our use of sexually violent predator laws, especially since the Supreme Court ruled such laws constitutional in 1997^.9,22,23

Twenty-two states, the District of Columbia, and federal jurisdictions now have enacted legislation that requires the acknowledged legislative invention of a new category of “mental abnormality” to justify using mental health commitment as the vehicle for incapacitation beyond a full prison sentence. Such a practice is otherwise prohibited in our system of justice. We experience the stress of civilization in turmoil and externalize our anxiety in part by demonizing certain classes of people, such as sex offenders.^22-27

These laws serve to alleviate public anxiety by asserting that we are able to “do something” about the problem, yet there is no evidence that this “something” is actually effective. More­­over, incarceration is enormously expensive. Estimates of bed need continuously rise because we cannot really define the end point of the mental abnormality that occasioned the confinements in the first place. Our best actuarial instruments for sexual offense risk assessment cannot take adequate account of response to interventions in reducing risk.

In 10 years, we will be more fully confronted with the dilemma of exhausted public resources for expanding confinement, and the use of this methodology will have crested. We will be forced to do what we should have done all along-which is to invest more extensively in research and the development of expertise in care and management of problem sexual behavior and to think more clearly and dispassionately about appropriate public policy.

Risk of violence
Similar problems will continue to plague us in the next decade regarding the issue of violent behavior by persons with mental illness. In the past 20 years, we have made substantial progress in our understanding of the relationships between mental health factors and violent behavior. We have seen growth in the accuracy of risk assessment using actuarial and structured clinical judgment instruments. But what we know does not truly assist us in our common clinical decisions because we are not able to make meaningful clinical distinctions among the populations of high-risk people that we serve on a daily basis.28

Improvements in our ability to make these distinctions are likely to be limited.29 We do not have adequate empirical investigation of dynamic risk or of the relationship of intraindividual changes with risk of violence.20 But we are coming to the realization that all the people we serve deserve the best treatment we have available, not just those we identify at highest risk for violence.28,30

Thus, in 10 years, scientific investigations are likely to be devoted extensively to dynamic risk research. The data will demonstrate the continued significant impact of active substance abuse and anger/irritability as important dynamic variables. To the extent that we can operationalize the measurement of dynamic functioning, certain functional deficits will be identified that correlate with violence. We will be more circumspect about applying group statistics to individual cases, and will be more conversant with intraindividual change as a better way to address the latter.

Mental health diagnoses or even particular symptoms will not emerge further as highly predictive of violence. This will encourage libertarian advocates for persons with mental illness who wish to restrict further the use of involuntary commitment for psychiatric care. There will be confusing and ill-conceived legal decisions about such matters, which will unfortunately-and wrongly-portray psychiatrists and patients as enemies. The adversarial uses of risk assessment research will provide heat, but not much light, in resolving these tensions.

We have not, and probably will not soon heed the advice of such scholars as Mullen31 and Lindqvist and Skipworth32 about the requirements for the ethical use of risk assessment in clinical practice. Their advice includes the notion that appropriate risk assessments must be linked to risk management strategies that ameliorate the risk and must always have the benefit of the patient in mind.

If we continue to talk so prominently in our literature about risk, we will fail to combat the stigma and fear produced by tragedies like Virginia Tech. Instead, we must take seriously the notion of function-which serves all persons who struggle with the effects of illness-without embracing models of fear and extrusion/confinement.33 We must ask what the rehabilitative task is for every individual who faces limitations and disability, and we must provide services equally to all who need them, without reference to risk.32

A decade from now, we will be further along this road because containment of people labeled as risks will be too costly and because further advances in dynamic risk research will not identify discrete groups of risky people (other than people who are actively using substances). Such advances will inform our clinical assessments of dangerous impairments in functional capacity and our interventions for functional improvement. With such knowledge, recovery ideology will finally have its practical evocation at the clinical level.

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