Rohan’s journey with mental illness has taken him from Medical School to prison. He is now managing his condition with both medication and therapy. This is a story of recovery and of perseverance. Rohan: I can’t forget to thank Dr. Vivian Chern Shnaidman for going above and beyond for me during this especially difficult time; you’re the proof that there are doctors who truly care about their patients, and for that I am so grateful.
Adam Bierman, Kurt Tazelaar, Raya Arbil and Dr. Vivian Shnaidman discuss political party conventions, police shootings, black lives matter and other current topics
Vivian is an expert in the application of psychiatry to legal matters, and has provided testimony in over 50 published court cases.
Vivian Chern Shnaidman, MD wrote Forensic Psychiatry: A Lawyer’s Guide, published by Elsevier, to help lawyers understand their psychiatric expert witnesses.
Recently one of Fox News’ television anchors asserted that her boss created a hostile work environment due to unwanted sexual advances. What exactly is a hostile work environment?
Hostile environment/sexual harassment occurs when the plaintiff employee’s work environment is made intolerable by sexual misconduct, or the work environment is permeated with unwelcome discriminatory intimidation, ridicule, and insult, based upon sex, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Unwelcome sexual conduct that interferes with job performance or creates an intimidating, hostile, or offensive working environment creates a hostile work environment.
How is a Hostile Work Environment Proven?
The plaintiff need not show that the harasser knew that the conduct was unwelcome, just that it was in fact unwelcome. In other words, the plaintiff doesn’t not have to tell the harasser to stop or notify him that his comments and actions are upsetting.
In order to allege a hostile work environment, it is not necessary to allege any sexual advances whatsoever. Nor does the conduct have to be stamped with explicit signs of overt discrimination, or be explicitly sexual in nature. It just has to relate to sex or be part of a course of conduct tied to evidence of discriminatory intent. Sexually harassing conduct that sufficiently offends, humiliates, distresses or intrudes upon its victims so as to disrupt their emotional tranquility in the workplace, affect their ability to perform their job as usual, or otherwise interfere with and undermine their personal sense or well being, constitutes a sexually hostile environment.
Hostile Work Environment Evaluation
Determining whether a given situation constitutes a hostile environment is a “fact-based inquiry into the severity and pervasiveness of the conduct…the jury looks at all the circumstances supported by credible evidence.” However, a single incident of sexual assault sufficiently alters the conditions of the victim’s employment to create an abusive work environment.
Evaluations of whether a hostile work environment exists are based on 1) the nature of the unwelcome sexual acts (considering that generally touching is more offensive than verbal remarks); 2) the frequency of the offensive encounters; 3) the total number of days over which all of the offensive conduct occurs; and 4) the context in which the sexually harassing conduct occurred.
I recently had the pleasure of being on the Dr. Joy Show from Princeton Community Television. There I had the opportunity to discuss the field of forensic psychiatry, and share about some of my experiences. If you are an attorney interested in finding out more about forensic psychiatry check out my comprehensive lawyers guide book on the subject.
Female sex offender evaluations, as with males evaluations, is predominately driven by the need to establish the likelihood of future recurrences of sexual offending behavior and to identify interventions that would reduce their risk of recidivism.
In order to make a determination of risk of sexual recidivism, one must consider the individual characteristics of the offender that increase or decrease the probability of recidivism. These are referred to as static and dynamic factors. Dynamic risk factors are amenable to change and the elements that are addressed in treatment and in the management of sexual offenders in order to reduce the risk of recidivism. Risk factors may indicate a higher risk of recidivism than other female sex offenders.
Static risk factors for female sex offenders include:
- A prior criminal history;
- Number of prior convictions;
- Number of prior sexual offense arrests;
- Number of prior child abuse offenses (non-sexual);
- Number of prior drug arrests.
Dynamic risk factors for female sex offenders include:
- Denial and minimization of the offending behavior;
- Distorted view about the sexual offending and sexual abuse in general;
- Problematic relationship (e.g., characterized by abuse) and intimacy deficits;
- Use of sex to regulate emotional states or fulfill intimacy needs;
- Desire for intimacy with victim or co-defendant;
- Wanting revenge or wanting to humiliate;
- Antisocial attitudes or attitudes tolerant of sexual offending;
- Antisocial associates;
- Substance abuse;
- Lack of an adequately supportive social network.
At times a forensic psychiatrist may be called on by the court or one of the parties to evaluation a defendant’s competency to stand trial. This evaluation involves a comprehensive assessment of the defendant’s mental status, the defendant’s understanding of the nature and objective of the legal proceedings, and the defendant’s capacity to assist in his or her defense. A competency to stand trial evaluation may also involve the administration of specialized psychological tests, depending on the particular clinical issue at hand (e.g., mental retardation, malingering).
When a Competency to Stand Trial Evaluation is Necessary
When a legitimate question arises as to competency, the defendant has a right to a hearing to determine fitness to stand trial. All trial courts have authority to order psychological evaluations of defendants, and in many states, an evaluation is automatic once a party raises the competency issue. Judges are to give great weight to the results of an evaluation, but can consider other factors, too, like the defendant’s demeanor in court. Among the points a court should consider are whether the defendant can:
- adequately communicate with defense counsel
- understand and process information
- make decisions regarding the case, and
- understand the elements of the charges, the gravity of the charges, and the possible penalties.
A defendant’s lack of intelligence, education level, language difficulties, and challenges communicating are generally insufficient to support a finding of incompetency.
The Court & Fitness to Proceed
The determination of whether a defendant is competent is left to the judge. The judge must decide competency before trial, as soon as reasonably possible after it comes into question. The prosecution, defense counsel, and even the court can raise the issue at any time. Competency usually comes into doubt when the defendant’s behavior indicates a lack of understanding.
When parents divorce and families break up, the standard for child custody is always the best interest of the child (or children). In order to determine the child’s best interests, a psychiatric evaluation is often used to assess the parents’ and/or the children’s mental statuses, any psychiatric illness or abnormality, the family dynamics, and any conditions or situations which would lead to a better understanding of what appropriate parenting time or custody arrangements would lead to the most psychologically beneficial living situation for the children. Additionally, any treatable psychiatric conditions can be assessed and appropriate treatment can be recommended to ensure the ongoing safety and a good future outcome for each child.
Dr. Vivian Shnaidman, forensic psychiatric consultant and conference speaker, along with Adam Bierman and Kurt Tazelaar, interviews Dinesh Sharma, well known Harvard social scientist on the dynamics of the 2016 upcoming US election.
There comes times when a worker may be required to leave the workplace because of the experience of an extreme stressor on the job, disability, discipline, or concern about threat. That same worker may wish to return to the job, raising questions about whether the worker may effectively resume functioning. At this point there are several kinds of evaluations conducted by forensic psychiatrists or psychologists to determine if a worker is fit to return to the job. The first, the fitness-for-duty evaluation (FFDE), is a specialized evaluation that occurs in safety-related or “high-risk” jobs such as fire fighting, police work, or security. The second, the return-to-work evaluation (RTE), occurs in more general situations in which the worker has been removed from the job because of disability.
Forensic psychiatry versus the other side: Why the need for a forensic psychiatrist
Anyone who has ever been to court for any reason knows that people’s behavior in front of judges is not always polite, decorous, or appropriate. We often attribute the anxiety, yelling, or tears to the stress of the high-pressure situation, and many times, that’s all it is. But what about those cases that simply scream “crazy” from the very beginning?
Forensic Psychiatric Evaluations
Psychiatry is a branch of medicine which incorporates biological, psychological, and social information and constructs for assessing and treating patients. Forensic Psychiatry is different. Forensic psychiatrists are trained to evaluate individuals for a third party. Unlike general medicine or general psychiatry, people involved with the legal system generally do not wish to consult a psychiatrist for help with their emotional problems. Of course, there are some applications of forensic psychiatry in which an individual will bring psychiatric information about himself to the court, and we will deal with those specific issues later. However, there are incidents and eventualities which might require the expert testimony of a psychiatrist, and, most importantly, how to understand, interpret, and utilize the information the psychiatrist brings to the case. After all, an expert might look really professorial in his pin-striped suit, but if he does not really know what he is talking about, neither will rot firm.
Over all, Forensic psychiatry is a sub-specialty of psychiatry and is related to criminology. It encompasses the interface between law and psychiatry. A forensic psychiatrist provides services – such as determination of competency to stand trial – to a court of law to facilitate the adjudicative process and provide treatment like medications and psychotherapy to criminals.
These types of evaluations are among my favorite, although saying so out loud is possibly not quite politically correct. Still, I didn’t kill them, so let us consider what types of evaluations I might be asked to perform, and how these evaluations might be utilized in a court of law.
Testamentary Capacity refers to the ability of an individual to make a will under the law. Sometimes I’m asked to evaluate a still living person, for example someone in a nursing home. But although the criteria are the same, it is fairly easy to evaluate someone who alive. I can ask them questions, we can bring witnesses to the party, and people generally have an idea if the person has an idea of the requirements necessary to write a will, which in virtually every jurisdiction in the United States includes only a few elements: the person must know the nature and extent of his bounty, who his natural heirs are, and to whom he or she wishes to leave his estate. While there are some local additions (in New Jersey, the person is supposed to know in what type of business he or she worked), those additions are minimal and beside the point.
These evaluations become really interesting when a person writes a will, dies of natural causes, and then the heirs and non-heirs start to contest the will. Sometimes only one heir does not like the way the will is written — an heir might not like having to wait until a certain age to get her money, or might not like having to share with siblings. Then the heirs can contest the will, and to contest a will, these heirs must hire attorneys.
Attorneys then look for experts. Often the attorneys hire any random doctor whom they can convince to write something stating that the dead person lacked testamentary capacity on the day he or she wrote their will. Smart attorneys, however, hire me.
In rder to really assess testamentary capacity, we have to recreate the person’s mental status examination as it pertains to the requirements for testamentary capacity on the date of the will writing. A three-sentence letter stating that the individual took medications that might impair consciousness is insufficient. I have seen all manner of ridiculousness submitted in lieu of actual psychiatric expert reports. “Because I said so” is not an expert report. “Because I am a doctor and I said so” is not an expert report. Lawyers need to hire experts who know how to read and understand medical records and apply the appropriate legal standards to them, and then communicate their findings in a way the courts can understand. Otherwise the “expert” reports are useless.
In addition to testamentary capacity, there are other cases in which mental status of deceased people has to be recreated. One example is the psychiatric autopsy, when someone committed suicide or otherwise died and there are legal matters that need to be investigated. Sometimes a wrongful death suit requires information not uncovered in any other investigation. Both civil and criminal matters often require the input of a psychiatrist in uncovering the details of someone’s mental status when that person is unavailable for interview. Those details are important. We do not guess. We reconstruct, based on available information. This work is detailed, painstaking, and challenging. And it is not a letter saying “Because I said so.”