Ashley H. VanDercar, MD, JD.
Psychiatrist, Northcoast Behavioral Healthcare, Northfield, OH.
Dr. VanDercar has disclosed no relevant financial or other interests in any commercial companies pertaining to this educational activity.
CHPR: Please tell us about yourself; you have a background in both law and psychiatry, right? Dr. VanDercar: Correct. I practiced law in Florida for a couple of years, working as in-house counsel and risk manager for a medical practice. I then remained in Florida for medical school before moving to Cleveland for psychiatry residency and a forensic psychiatry fellowship. I am now a psychiatrist at a state hospital in Ohio.
CHPR: Can you start by telling us some key points that we should know about testifying? Dr. VanDercar: It’s important to remember that the American legal system is adversarial. It is a boxing match dressed up to look like a boardroom. When you testify, one side will be “against” your position. Your treatment decisions and diagnostic impressions will be questioned and challenged. You might feel attacked. It’s not personal—it’s how the justice system works. As psychiatrists, we know how to remain calm when we deal with acutely ill patients whom we need to de-escalate, or hostile patients who disagree with our treatment recommendations. It’s important to maintain that same professional calm when we testify, especially during cross-examination. Don’t get flustered. Don’t become argumentative. If you feel your cool fading, switch to the approach that you use when dealing with a hostile or agitated patient.
CHPR: What other tips can help us in court hearings? Dr. VanDercar: It’s important to remember your role. As a treating psychiatrist at a civil commitment hearing, you are there as a fact witness as opposed to an expert witness. You are there to testify as to what you have seen with your patient and how that led to your decision to request involuntary civil commitment. So, you need to know the specific legal standard—for example, the standard for civil commitment—that your testimony is being used to support.
CHPR: Can you say a little more about the legal standards? Dr. VanDercar: It’s not enough to describe your patient’s symptoms, even if they are acutely psychotic. Being mentally ill is not a sufficient reason for a patient to be committed. State commitment statutes have specific standards; for example, their criteria may require a mental illness to present an imminent risk of harm (to self or others) or grave disability. You are there to share the clinical information that supports your belief that a patient meets the specific legal criteria for commitment. If the patient’s commitment request is based on suicidality, don’t just say that they “have suicidal thoughts.” Provide verbatim descriptions of what the patient has said, and how their specific history and current symptoms support your assessment of a high suicide risk. Be ready for questions. Know the details of the hospitalization, such as when and why a patient required emergent medications.
CHPR: In Los Angeles, some details regarding a patient’s behavior, like information we receive from nurses or other staff, are not admissible in our testimony as they’re considered “hearsay.” Is this a common limitation on psychiatrists’ testimony? Dr. VanDercar: Hearsay is tricky. Although it sounds like a simple concept, in practice it can be pretty amorphous. Hearsay is a statement made out of court that is being introduced into court to prove its truth. The legal system doesn’t like hearsay because the witness is not in court—and thus cannot be cross-examined or confronted. So, for example, if a patient’s mother told me about the patient’s statements regarding a suicide plan, and I then cite the mother’s comments during my testimony to support the notion that the patient was suicidal at admission, that would technically be hearsay. Hearsay is, at baseline, inadmissible. However, there are many exceptions to the hearsay rule.
CHPR: Such as? Dr. VanDercar: Using this same example, the mother’s comments might fall into one of several exceptions. For example, the comments might be admissible if they were offered for the purpose of facilitating her son’s treatment when he was unable to speak for himself. Different states have different varieties, and interpretations, of hearsay and its exceptions. In California, there was a 2016 case called People v. Sanchez (63 Cal.4th 665) that resulted in a substantial tightening up on the use of hearsay. But other states handle hearsay differently. Some allow you to rely on statements documented in the medical record—whether they be by the patient’s family or by nursing—in addition to your own observations of the patient.
CHPR: Earlier you referred to the concept of imminent harm. How do courts usually interpret the term “imminent”? Dr. VanDercar: That is a good question. There’s no agreed-upon definition for the term within our profession (Simon R, U Cin L Rev 2006;75:631–644). Practically speaking, the way that the court interprets the phrase is going to depend on the state statute on civil commitment (and whether, for example, that statute requires a recent overt act), the case law in your jurisdiction, and often the specific magistrate or judge. Judges have a lot of latitude, especially with terms that are as amorphous as “imminent.” As long as there is no on-point statute or case law stating otherwise, a judge can interpret “imminent” as meaning within the next day, within the next month, or some other foreseeable time in the future. Talk to colleagues to find out how the phrase tends to be interpreted in your specific courtroom or area.
CHPR: But is there generally a basic understanding of what constitutes imminent harm? Dr. VanDercar: The Merriam-Webster dictionary describes the term “imminent” as meaning “ready to take place” or “happening soon.” But finding a basic understanding, or applying this, is more challenging when you are dealing with the potential discharge of someone from an inpatient unit. The unit is a controlled setting. So, if their behavior has been appropriate while in the inpatient setting, you need to explain to the court why their suicide or violence risk still remains active and imminently elevated. Again, in the context of a civil commitment order, this is ultimately a judicial decision. If you, as the clinician, view it as imminently elevated, explain why you think so. Be ready to explain the lack of certainty associated with suicide and violence risk assessments (including as it pertains to the prediction of a time course), and then leave the decision up to the court.
CHPR: How else should we prepare for commitment hearings? Dr. VanDercar: Focus your time on knowing the patient’s clinical history and hospital course. You should know the reason for the patient’s initial admission and what has transpired since their arrival. Be able to explain how the patient’s current status supports your state’s legal criteria for commitment. Also, if you are arguing for a hold based on a patient’s inability to care for themselves, make sure you have reached out to, or at least considered, potential support systems in the community (for example, willing family members who have agreed to care for the patient on discharge). When possible, talk with the attorney who will be doing your direct examination ahead of time. That will let you discuss your planned testimony. And present yourself appropriately—this is important if you want to be effective at conveying your opinion. Dress appropriately, in conservative business attire. Remember that you are in the courtroom as a guest; wait until you are asked questions to talk, and stop talking if the judge intervenes.
CHPR: In many states, there are two hearings associated with commitment. The first decides whether the patient is committable, followed by a hearing on whether the patient can be given involuntary medication. Can you say more about the involuntary medication standard? Dr. VanDercar: Sure. Legal standards vary by state, but they have many similarities. In my state of Ohio, for example, the legal standard is from the 2000 case Steele v. Hamilton Cty. Comm. Mental Health Bd (90 Ohio St.3d 176) and requires that 1) the patient lacks capacity to give or withhold consent, 2) the medication is in the patient’s best interest, and 3) no less-intrusive treatment will be as effective. In any state, psychiatrists need to be able to explain why they believe the patient fulfills each of the specific criteria of their state’s legal standards, as the judge uses these standards to evaluate the content of the testimony and make a ruling.
CHPR: Can you review reasons why we might lose a hearing, whether it’s a hearing for medication capacity or civil commitment? Dr. VanDercar: Yes. State statutes for commitment and forced medication orders often have very specific requirements regarding each step of their specified process, from the emergency hold, to the involuntary admission, to the commitment. If the clinical criteria or procedural details of the statutory requirements are not met—for example, the length of time that a clinician has to file paperwork for commitment, the notice requirements, etc—the court will often rule contrary to what the psychiatrist is recommending.
CHPR: And also, of course, a judge may rule against our wishes if we don’t adequately demonstrate evidence that meets the legal standard. We sometimes lose hearings for patients who are, for example, homeless and floridly psychotic—to the point they were wandering through traffic a few days earlier—but we can’t demonstrate evidence for imminent self-harm as they haven’t experienced any self-injurious thoughts or exhibited self-injurious behaviors on the unit. Dr. VanDercar: Right. Although a strong case can often be made that if they were unable to manage their needs and find their way on the inpatient unit, they continue to be imminently at risk of grave disability and resultant harm upon discharge (based on the combination of their clinical status and their predischarge behavior).
CHPR: Does a forced medication order allow us to prescribe any medication? Dr. VanDercar: In general, no. If a forced medication order is granted, the specifics of what you can prescribe will depend on the exact language of the court order. Therefore, the medications you are requesting should be detailed in your written opinion that is submitted to the court and reiterated during your testimony. Some court orders, particularly those involving forensic patients, can be quite broad; they may even state that the patient is to take whatever medication the doctor recommends as medically appropriate. Other court orders allow categories of medications. Conversely, there are court orders that specify exact medications, dosages, and routes—even requiring that oral versions be attempted before injections. It is thus helpful to consider your treatment plan before submitting a request for a forced medication order.
CHPR: Is it best to list all possible medications that you might envision using, just in case some of them are ineffective or cause side effects? Dr. VanDercar: Yes—however, some opposing attorneys, and even some magistrates or judges, will push back on this. When you request a long list of medications, it can create a perception that you are going to overmedicate a patient or want carte blanche to make judicially imposed medication decisions. You should thus be prepared to explain to the court what your primary treatment plan is, and why you are listing alternative treatment plans.
CHPR: Some medications don’t have intramuscular versions. How do you handle refusals of medication in those cases? Dr. VanDercar: This is a reason to request alternative medications. For example, a refusal of oral Abilify can often be managed with an intramuscular injection of Zyprexa or Haldol. Your electronic or written orders can clearly specify this to ensure the patient receives necessary antipsychotic medications despite their refusal (eg, “medication is court ordered; administer olanzapine 5 mg IM in case of oral Abilify refusal”).
CHPR: Can the involuntary medication order be used to forcibly administer a long-acting medication, like Invega Sustenna, even when a patient is willing to take the oral form of the medication? Dr. VanDercar: That would be dependent on the wording of the court order, and the clinical need for a long-acting rather than a short-acting medication.
CHPR: One of the toughest situations we encounter is when a patient reaches the end of their hold and is still unwell, but we cannot legally commit them any longer. Dr. VanDercar: That is a tough situation. You can offer the patient voluntary admission. If, however, they refuse and are no longer committable, you need to release them. You can then document their refusal and provide the best discharge plan that is practically feasible.
CHPR: What about patients who are released by the court but then decide that they don’t want to leave the unit after all? Can they sign in as voluntary patients? Dr. VanDercar: Yes. The question would then be whether they in fact still need to be hospitalized, and if so, whether insurance would cover their ongoing stay.
CHPR: You’ve mentioned that states vary in their regulations around psychiatric commitments. How much variability is there? Dr. VanDercar: There are a lot of differences from state to state. The duration of emergency holds can vary; there are also differences in who is authorized to initiate a psychiatric hold. A useful article comparing differences between states was published a few years ago (Hedman LC et al, Psychiatr Serv 2016;67(5):529–535). The same types of differences exist with the actual commitment process. Interestingly, when I’ve talked to colleagues from other states, even when we’ve had similar-sounding commitment statutes, we’ve noticed substantial differences in the types of patients who tend to be considered committable, in particular regarding the issue of imminence and the concept of “grave disability.”
CHPR: Thank you for your time, Dr. VanDercar.
Disclaimer: The information in the interview transcript is for educational purposes only. It should not be construed as, and does not constitute, legal advice.