Overview of Child and Adolescent Forensic Evaluations

Our Forensic Files piece in the March issue of Psychiatry 2006 involved a young child charged with a serious crime who did not understand the complex legal situation he was confronting. The piece was intended as an introduction to child forensic evaluations and meant to distinguish these types of evaluations from adult forensic evaluations. When finalizing that article, it occurred to us, and some other colleagues who looked at the piece, that readers might feel somewhat confused without having some context within which to think about child and adolescent forensic examinations as distinct from adult examinations. As a result of those comments, we thought the next piece, although it probably should have come first, would be a general overview of some of the issues that come up when evaluations are performed on children and adolescents. As with most areas where law and psychiatry intersect, there is some disagreement about the role of psychiatrists in certain situations. We have tried to provide general information on these cases.

As a basic refresher on the legal system generally, it will help to recall that our system has two kinds of law: statutory and precedent-based legal doctrine. Additionally it is important to know that there are two general contexts in which to divide the law: criminal and civil.

Statutory law refers to rules made by governing bodies. In the case of healthcare, most lawmaking occurs on the state level, e.g., medical licensure regulation. However, some lawmaking does occur on a national level, e.g., HIPAA regulation.

Common law, which is law based on precedent, is made up of principles derived from judicial decisions and reasoning. This is from which the basis of malpractice law is derived.

The criminal division of our system deals with cases typically brought in the name of the state against an individual or entity. The outcomes deal with penalties, such as fines, imprisonment, and restitution.

Civil cases, on the other hand, deal with disputes where one private party seeks something from another party. Often this may be the result of an injury, such as an automobile accident, and subsequently a traditional negligence law suit may follow. It can also be the result of a violation of a child's statutory rights, such as their right to due process under the provisions for an individualized educational plan.

Basic Issues

Similar to forensic issues in adults, psychiatrists may become involved in a forensic issue with a child or adolescent on a voluntary basis—that is, they have been retained as an expert witness—or they may become involved somewhat involuntarily because children they are treating have become involved in legal issues. This distinction is crucial to keep in mind. Generally, a clinician whose client has become involved in a legal issue requiring a forensic evaluation should refrain from offering an expert opinion. Those clinicians essentially have become “fact witnesses” because they have information relating to their clients' mental states, diagnoses, and functioning, presumably during the period of time the alleged crime, injury, or child custody dispute occurred. Of course, these clinicians cannot release information without the proper consent of their clients' guardians. It is our opinion that treating clinicians should not offer expert opinions on behalf of clients they are treating because of the obvious conflict of interest—that is, there is an incentive to render opinions beneficial to their clients.

When treating a child or adolescent who becomes involved in a legal issue, such as a delinquency charge, it becomes quite enticing for the treating clinician to speak with prosecutors, probation officers, and others to try to help his or her client out of the legal situation. One must be careful, however, not to offer an opinion or provide information beyond which one is able to offer. For instance, someone treating a young man for obsessive compulsive disorder who becomes accused of a sexual assault likely has not, during the course of the treatment, conducted a thorough review of symptoms or behaviors associated with an increased risk of sexual offending, and accordingly, should refrain from trying to help the client by implying to authorities that he is not at risk for re-offending.

As an overview, child and adolescent forensic evaluations fall broadly into these two categories—criminal and civil. Forensic evaluations of children may involve just about every aspect of adult evaluations—from risks assessments to competency to damages related to emotional harm. Although for many of these evaluations, the basic legal principles remain similar to adult evaluations, the child's age, development, and maturity play a significant factor when evaluating a child. Clinicians who evaluate children should have particular familiarity or training in these issues.

In addition to these developmental issues, the child's status as a minor also distinguishes these evaluations from their adult counter-part evaluations. First, children and adolescents cannot consent to release medical records of prior treatment. Consent must be obtained from a parent or guardian. Further, there is a statutory requirement for mandated reporters in all jurisdictions to report suspected abuse or neglect, even if this suspicion is found during the course of a forensic evaluation.

With all forensic evaluations, adult and adolescent alike, it is often crucial for the evaluator to speak with or review collateral sources of information before rendering an opinion. Because children are often not the best historians, this becomes even more crucial. Certainly, speaking with a child's caregiver is imperative. Depending on the scope of the evaluation, further collateral sources may be necessary, such as review of school records, and pediatric records and interviews of siblings.

Criminal Law

In the criminal area, questions that may be asked are largely similar to those asked in adult court. Perhaps the most common question is whether a child is competent to stand trial. That was the subject of last month's Forensic Files. Other questions on which a child forensic evaluator may be asked to opine involve whether an adolescent gave a voluntary statement to police; whether he understood his Miranda waiver; what his risk is for recidivism; whether the adolescent can be rehabilitated and should remain under juvenile court jurisdiction; whether the charges should be waived or transferred to adult criminal court; whether there were mitigating factors involved; and whether the adolescent had a diminished capacity or was not guilty by reason of insanity.

Clearly, many of these questions asked in juvenile court are similar to questions forensic evaluators are asked to opine on in adult criminal court. The major difference, however, is that the examiner must understand and have experience evaluating children and adolescents to appreciate child psychopathology, normal child/adolescent development, and risk factors for future delinquent behavior. For instance, not all children or adolescents who set fires are future arsonists, and some fascination with fire and fire play is common among children and adolescents. Knowing what is normal and what is not is critical.

Waiver or transfer hearings are another area where particular expertise in treating children and adolescents is helpful. In a waiver or transfer hearing, the child who is accused of a crime in juvenile court may be tried in adult court and subject to adult criminal sanctions. These statutes vary from state to state, but the essential role of a forensic evaluator is usually to help the court determine whether or not the child may be rehabilitated if he or she receives the appropriate treatment and services. In addition to determining whether a mental health disorder is present and is amenable to treatment, these evaluations also require a review of the adolescent's treatment history, response to past treatment, whether prior treatment was adequate, and the presence of factors that may have complicated treatment or service delivery.

Although not traditionally utilized as a defense in juvenile court, some states are now recognizing a juvenile defendant's right to, like an adult, enter the insanity defense. This defense as applied to adults has been addressed in previous articles in this series. Again, particular knowledge of child development and psychopathology in adolescents is beneficial when rendering such an opinion. In addition, evaluators experienced in rendering such opinions with adults may find that professionals in the juvenile court system—judges, prosecutors, attorneys—are less familiar with the intricacies of their state's particular insanity statute because it may not be utilized as often.

Other evaluations of adolescents in the juvenile justice system involve assessing the risk to repeat a certain type of offense, such as arson or a sexual offense. With these evaluations, not only is it crucial to have experience working with children, but many courts will insist on expertise in evaluating or treating individuals accused of these offenses as well.

Another evaluation, though less common, is the evaluation of children's capacity to testify. Frequently, children are the victims or witnesses of violent crimes, and their testimony may be the best evidence the prosecution has to offer in a case. But for most children, testifying before a packed court room in front of the accused can be a challenging experience. For some children, such an imposing situation, particularly when facing the accused, may affect the child's truthfulness or may emotionally harm the child. In such cases, the prosecution may request the child testify by closed-circuit television, out of the presence of the accused, but this affects the defendant's constitutional right to confront the witness. Expert child evaluators are necessary to help the court determine whether testifying in front of the defendant might cause emotional harm to the child or whether it might affect the child's ability to tell the truth.

Civil Law

The child custody evaluation is one of the most common forensic evaluations of children and adolescents. It is also likely the most common legal situation into which a child clinician may be drawn without much control. When the parents of a child are divorcing each other and cannot agree on custody, the child's clinician can be sure that there will be a request for the clinician's records and an invitation by another party to offer a placement opinion. When this happens, the clinician must use caution! While the clinician is certainly a fact witness, and there may be a request by one or both parents to release records to an independent evaluator, the clinician should refrain from offering a placement opinion. Certainly, the child's clinician has a great deal of information that may useful for an independent evaluation, such as the child's feelings toward the parents, the presence of a psychiatric disorder that would affect placement, and the parents' adherence with treatment. Offering an expert opinion on placement, however, without having conducted a custody evaluation can be tricky and, if possible, should be avoided.

Offering an expert opinion after completing a thorough child custody evaluation can be very helpful to a child caught between two parents battling for custody. Clinicians who wish to engage in expert reports must be aware that these types of reports are possibly the most contentious of all forensic evaluations. In 1997, The American Academy of Child and Adolescent Psychiatry published practice parameters regarding these evaluations. The evaluation process, areas to be addressed, and potential complicating factors are addressed in these guidelines.¹

Another common civil law setting for evaluation of children and adolescents is in the case of traditional negligence. In these cases, just as can occur if a child has a physical injury resulting from an act (or omission) of another, there can be an injury linked to the mind, such as posttraumatic stress disorder. Courts require outside expertise to help determine if there is damage that resulted from the act in question. If there is damage, the courts also require help in determining the extent of the damage. This information forms the basis of whether or not there is an award of damages and how large that award will be.

Perhaps less common than divorce and tort lawsuits, but more common in light of federal legislation regarding disabilities such as the Americans With Disabilities Act (ADA), are evaluations that result from the education system and its duties. Forensic experts can be called upon to help examine cases where a disability is the result of a mental health concern, and whether there is a need for an Individualized Education Plan under the Individuals with Disabilities in Education Act.

As this year of the Forensic Files series comes toward a close, we plan to focus attention on some indepth case studies that hopefully will highlight different issues, approaches, and outcomes for the forensic psychiatric interviewer. These will include cases involving juveniles, and we hope this overview will help provide a basis for augmentation of the information in those cases.