Home Military TM-8-240 09-1992

TM-8-240 09-1992

TM-8-240 09-1992

TM 8-240

TECHNICAL MANUAL

MILITARY MENTAL HEALTH LAW

APPROVED FOR PUBLIC RELEASE; DISTRIBUTION IS UNLIMITED
H E A 0 QUA R T E R S, 0 EPA R T MEN T 0 F THE ARM Y

29 September 1992

‘TM B-24t
TECHNICAL MANUAL No. 8-240  }  HEADQUARTERS DEPARTMENT OF THE ARMY WASHINGTON, DC, 29 September 1992
MILITARY MENTAL HEALTH LAW

This manual will serve to acquaint medical officers with the problems concerning the interface between the law and mental health.
You can help improve this manual. If you find any mistakes or if you know a way to improve procedures, please let us know. Mail your memorandum or DA Form 2028 (Recommended Changes to Publications and Blank Forms) to: Walter Reed Army Medical Center, Forensic Psychiatry Service ATTN: HSHL-ROP, Washington, DC 20307-5001. A reply will be furnished to you.
Chapter
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Approved for public release; distribution is unlimited.
L     INTRODUCTION
General Information ……………………•..
References..
Explanation of Abbreviations and Terms.

2.
THE MILITARY JUSTICE SYSTEM Introduction. . .. . . . . ……… . Sources of the Military Justice System. Background and Development …….. . A Separate System of Military Justice …….. . Jurisdiction of Courts·Martial ………………… . Levels of Court. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . ………………………….. .

3.
MILITARY STANDARDS OF RESPONSIBILITY Introduction .. The Forensic Evaluation in the Military Mental Responsibility Standard…… . Definition of Terms. Assessing Criminal Responsibility …. Clinical Examples Partial Mental Responsibility.

4.
COMPETENCY Introduction. . . . . . . . . . . . . . . . .. . .. .. . . ……………… . Conducting a Competency to Stand Trial Evaluation. . ……………. . Clinical Examples of Criminal Competency. . ……………….. .

5.
THE CRIMINAL FORENSIC EV f..LUATION Introduction …………. . Preparing for the Forensic Evaluation ….. . . . . . . . . . . .. . . . . . . …………. Conducting the Evaluation. . . . . . . . . . . . . . …….. .

6.
APPLICATION OF THE MENTAL RESPONSIBILITY STANDARD General …….. . Substance Use Disorders ….. Intellectual Impairment (Mental Defect). …. Amnesia and Altered States of Consciousness. Seizure Disorders. . ………………… . Organic Mental Disorders ………. . Impulse Control Disorders ………. . Personality Disorders ………………………….. . Sexual Disorders. . . . . …………… . Psychosis……………………………… . Malingering. . . . . …………………………………………… .

7.
PREPARING THE FORENSIC REPORT Introduction …. Structure of the Forensic Report .. Submission of the Report………………………………………….. .

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·This monuol supersedes AFR 160-421TM 8-240/NAVMED P-Sl05, 25 September 1981.
1M 8-240

8.     EXPERT TESTIMONY
Introduction.
Courlroom Procedure
The Mechanics of Expert Testimony

Chapter 9. DISPOSITION OF THE MENTALLY ILL ACCUSED General … Notification of Release … Disposition of the Insanity Acquittee. . . ……….. . Disposition of the Service Member Found Incompetent to Stand Trial Chapter 10. DANGEROUSNESS
Introduction.
Assessing the Dangerous Patient
Management of the Dangerous Patient..

Chapter 11.     TORT LIABILITY General. The Basics of Tori Law Minimizing the Risk of Tort Liability Informed Consent .. Federal Tort Claims Act ConfidentialitylPriv:iiege . Speciflc Problem Areas.
ApPENDIX A. REFERENCES INDEX ….
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TM 8-240

CHAPTER 1 INTRODUCTION
d. Determination of Legal Issues. The clinician
1-1. General Information
a.
Value of the Clinician. With the expansion of mental health expertise has come increased expo­sure to the legal justice system. Difficult and confusing legal cases become more understandable when clinically evaluated. The clinician can playa valuable role by providing expert opinions to the military justice system. There are a number of diverse areas which the clinician stands to influ­ence. This includes competency determinations and the ability of a trial to progress, responsibility assessments and the impact on criminal culpabil­ity, and even the severity of sentence following a guilty verdict. Quality forensic evaluations require familiarity with the United States military justice system and basic standards of the law relative to responsibility, competency, and certain civil issues.

b.
Pragmatic Training ManuaL This training manual on mental health law is first and foremost designed to be practical. Guidance and explanation of legal concepts and methods of evaluation are focused, as much as possible, on clinical concerns. Numerous clinical examples are provided to eluci­date difficult concepts. A chapter devoted to the military justice system interprets the world the clinician will function within.

c.
Not a Source of Legal Authority. The reader must clearly understand that the discussions relat­ing to psychiatric tenets and opinions are not binding on anyone. This manual offers recommen­dations which must be tempered by the clinical material and unique local considerations. The clin­ical examples cited are for descriptive explanation only and should not be considered “typical” or “standard.”

is an adjunct to the military justice system’s efforts to provide a fair dispensation of justice. The clinician should remember that the legal determi· nation of sanity and other lesser degrees of mental impairment is primarily a question of fact that can only be resolved by the members of a courts­martial. By producing a thorough and impartiaJ forensic evaluation, the clinician aids the difficult task of the fact finder in reaching a verdict.
, -2. References
All publications referenced in this manual are listed in appendix A.
1-3. Explanation of Abbreviations and

Terms
The following abbreviations are used in this publi·
cation:
ADAPCP Alcohol and Drug Abuse Prevention

and Control Program AWOL away without official leave BCD bad conduct discharge CID Criminal Investigation Division FTCA Federal Tort Claims Act IDF installation detention facility IDT inactive duty training JAG Judge Advocate General MCM Manual for Courts-Martial MP Military Police MRE Military Rules of Evidence MTF medical treatment facility PMR partial mental responsibility RCM Rules for Court-Martial SJA Staff Judge Advocate UCMJ Uniformed Code of Military Justice
1M 8-240

CHAPTER 2 THE MILITARY JUSTICE SYSTEM
d_ Army Regulations. In addition to the MCM,
2-1. Introduction
The military justice system serveS the dual pur­poses of justice and discipline. It is complex and multifaceted. The brief overview of the system which follows is not exhaustive. 11 is designed to introduce clinicians, who may he unfamiliar with the system, to some of its important aspects. Among the topics discussed in this chapter are the sources of the military justice system, its back­ground and development, the rationaJe for a sepa­rate system of justice, its jurisdiction, and the levels of the court.
2-2. Sources of the Military Justice System
(/. The Constitll/ion. The basic Source for the separate system of criminal law which prevails in the military is the Constitution of the Unit.ed Stat.es. Art.icle I, Section 8, of t.hat document provides that Congress shall have the power to “make Rules for the Government and Regulation of the land and nuval Forces.”
b. The Un.iformed Code of Military Justice. In 1950, Congress used its constitutional powers to enact the Uniformed Code of Military Justice (uCMJ), which was substantially revised by the Military Justice Acts of 1968 and 1983. This statute provides a separate system of military criminal law for the armed services, much the same as the State of Michigan and the State of Maryland have separate systems of criminal jus­tice to meet their societal needs.
c. The Manual for Courts-Martial. Like most other statutes, the UCMJ requires a detailed set of regulations to supplement and explain its various provisions. Article 36 of the Uniformed Code of Military Justice (UCMJ, Article 36) authorizes the President to issue regulations prescribing the pro­cedure to be followed before military tribunals, including the rules of evidence. In addition, the UCMJ, Article 56, empowers the President to establish limits on punishment for most offenses. These regulations are issued in the form of an Executive Order by the President and are found in the Manual for Courts-Martial (MCM), 1984. Therefore, the MCM has the force and effect of law, and it must be complied with.
AR 27-10 (Military Justice) fine tunes the every­day administration of military justice. This regula· tion announces additional rules and procedures which must be follmved. Furthermore, supplemen· tal military justice relo’ulations have been issued by many local commands. Commanders must also consult and comply with these regulahons.
e. Court Decisions. While regulations supple· ment and explain the statute, the various courts involved with military criminal law interpret the statute and regulations. The Supreme Court of the United States and subordinate Federal courts hear cases involving military criminal law. These cases are usually limited to appeals bnsed upon lack of jurisdiction and appeals based upon a denial of some constitutional right. The United States Court of Military Appeals is the highest appellate court within the military judicial structure_ This court lS composed of five civilian judges appointed by the President. Each of the Services has an intermedi­ate appellate court of review consisting of military appellate judges. The decisions of these courts in interpreting stat.utes and regulations have the force of Jaw and are binding upon commanders_
f The Staff Judge Advocate. The sources of military criminal law are varied. To effectively address most military justice problems, one must refer to one or all of these sources. This is what the staff judge advocate (SJA) is trained to do. The SJA is the command’s legal advisor. Just as corporations consult with their general counsel before making legal decisions, commanders and their subordinates should contact their SJA for advice in dealing with problems of military justice.
2-3. Background and Development
a. Backgroun.d. The UCMJ had its beginnings early in our history. Regulations for the govern­ment of our Army have been in force since the time of the American Revolution, when the Army law consisted of the Articles of War. The first. Articles of War were adopted by the Second Conti­nental Congress on 30 June 1775, just three days before George Washington took command of the Continental Army. These Articles were patterned after the British Army Articles, which were de· rived from earlier European articles traceable to the Middle Ages. Our system of military justice is
~ 6-240
e product of centuries of experience in mnny lr Do not think, however, that the present :1. -‘ an outmoded historical relic. On the ntrary, while retaining the substance of what s proved sound, Congress has periodically recon· lered and revised the military justice system to
in accord with new knowledge, experiences, and anging Jaw,
b. The Uniformed Code of Military Justice, 1950.
significant revision in the military criminal law ,tern occurred with the adoption of the UCMJ. It TIbined the laws formerly governing the Army, IVY, and Air Force into one uniform code which vems all uniformed Services of the United 1te5. :’, The Military Justice Act of 1968. A major ,ision of the UCMJ and the MCM occurred with ;! Military Justice Act of 1968. The revised ;MJ and MCM incm’porated changes in the law Ice 1951 and made substantial modifications in ~ military justice system.
(1)
Among the changes brought about by the 58 Act is a provision which gives soldiers the ht to a qualified lawyer at a special court­Irtial in all but the rarest of circumstances. The litary Justice Act of 1968, Article 27(c) provides It “lceused shall be afforded the representa­

r.
qualified lawyer except where a lawyer mOL be obtained due to physical conditions 01­litary exigencies. AR 27-10, paragraph 5-5a, Ivides further guidance in this area, stating that all special courts-martial the accused must be )rded the opportunity to be represented by ally qualified counseL This right to counsel is addition to the accused’s right to hire a civilian Iyer or request individual military counseL If

accused requests individual military counsel, vever, the detailed military counsel will nor­lly be excused by the detailing authority_
(2) Besides providing for legal counsel at spe­c courts-martial, the Military Justice Act of ;8, as implemented by AR 27-10, provides that nilitary judge be detailed to special courts­rtial whenever possible. In the event that the cial court-martial is empowered to adjudge a I conduct discharge, a military judge must be ailed. The Military Justice Act of 1968 also es an accused the right to request trial by a 1tary judge alone in all cases except those ich are referred to trial as capital cases_ If the llsed elects trial by judge alone, the military
~e  rtetermines  the  guilt  or  mnocel1ce  of the
md,  if there is  a  finding  of guilty,  the
t  The Act also places a  number of added

)onsibilities upon the presiding officer of the rt-martial. The judge makes all legal and proce­
dural rulings at the trial and cannot be overruled by a commander on these decisions.
d. Nev) Developments In the System.
(1) Chnnges /0 the UCMJ_
(a)
Since 1979, Congress has amended the UCMJ several times in order to increase the efficiency of ollr military criminal law system. ln NO\’ember 1979, Public Law 96-107 amended the UCMJ, Article 2, authorizing court-martial juris­diction oyer service members entering the Armed Forces as a result of recruiter misconduct.

(b)
The Military JU5tice Amendment of 1981 became effective in January 1982. One signif­icant change is that the accused is no longer entitled to be represented by more than one military lawyer. Jf the accused requests individual military counsel and that counsel is reasonably available, detailed military counsel shall be ex­cused at the detailing authority’s discretion. Rea­sonable availability is defined by the Secretaries of the Services. A definition of reasonable availabil­ity can be found in AR 27-10, chapter 5.

(c)
Another change resulting from the Mili­tary Justice Amendment allows the commander or convening authority to direct that excess leave may be used by individuals who have been con­victed by court-martial and are awaiting appelJate review. Previously, these individuals could only be placed on excess leave at their request.

(d)
The Military Justice Act of 1983 sub­stantially revised the UCMJ. In an effort to improve the efficiency and administration of our military justice system, several necessary changes have been madc. The Act relieves commanders of the administrative burden connected with person­ally excusing court·members before trial, elimi· nates requirements that commanders make certain legal determinations, and alleviates many redun­dancies that existed in the system. The most significant revisions in the Act provide for direct review of court of military appeals decisions by the United States Supreme Court and authorize Gov­ernment appeal of certain rulings by military judges at the tr1al leveL This major revision was incorporated into the 1984 MCM and took effect on 1 August 1984.

(e)
The Military Justice Amendments of 1986, signed on 14 November 1986, further refine the military Justice system. The most significant change involves the expansion of court-martial jurisdiction to include jurisdiction over reserve component soldiers who commit offenses while in an inactive duty training (lDT) status. In addition, the Act authorizes, in limited circumstances, re­serve component soldiers to be called to active

duty for the purpose of trial by court-martial, investigation under the UCMJ, Article 32, or nonjudicial punishment.
(2) Changes in the Manual (or Courts-MartiaL
In 1980, the Joint Service Committee on Military Justice was given the monumental task of rewrit­ing the MeM. This task was completed in May 1983 and copies of the revision were made avail­able for public comment in the Federal Register. The MCM, 1984, took effect on 1 August 1984, and repJaced the MCM, 1969.
e. The Trend. The trend in military justice Jegislal.ion and court decisions is to increase the efficiency of our criminal justice system while at the same time balancing and protecting the rights of the accused.
2-4. A Separate System of Military Justice
Q. One of the umque features of the United States military society is its separate system of criminal justice. Most justice problems involving military personnel are resolved within this sepa­rate military justice system and only infrequently reach civiJian criminal courts. What justifies our separate justice system?
b.
The first justification for our system is histor­ical and political. The military did not create its own separate system of justice. Throughout our history, and in accordance with the Constitution, the Congress of the United States has recognized the need to provide a separate justice system for the military forces. Congress established the mili­tary justice system by duly·enacted legislation, from time to time modifies this legislation to adopt changing law, and continually oversees and re­views the system.

c.
Numerous factors motivate the Congress to provide a separate military justice system. Many crimes in military society-away without official leave (AWOL), disobedience, disrespect, misbehav· ior before the enemy, malingering-have no coun· terpart in civilian criminal law. Military leader· ship requires command participation in the administration of criminal-law processes which impact on subordinates-both as a reinforcement for leadership and as a control over those factors which influence the fighting capacity of the force. Because of force deployment, military society re­quires world-wide application of its criminal prohi­bitions and jurisdictional reach-unlike civilian criminal systems which are usually localized. The environment and realities of military society are different from those of civilian life, and criminal justice must be administered and cases decided by people sensitive to those differences. Finally, there

1M 8-240

is donbt that the clyilian Justice system could meet these requirements of militury society. Comment· ing on the relationship between civilian and mili· tary criminnl Jurisdiction, the Supreme Court ob· served in Relford v. Commwu/ant, 401 US 355 (197]), “The distinct possibility exists IhM civj] courts … will have Jess thDn complete interest. concern and capacity for all the cases that vindi· cate the military’s disciplinary problems.” In short, mission and location require a separate system.
d. For these reasons, Congress has granted the military a separate criminal law system. It is inevitable in a democratic society such as ours that the milit~lry justice system will be compared with the civilian court system. While there are differences, in almost e\’ery instance military BC· cllsed receive rights and protections equal to or superior to those enjoyed by civilian defendants. Indeed, commanders are responsible fO!-adminis· tering military justice with utmost fairness and efficiency. By doing so, the trust and confidence bestowed upon military leadership by the Ameri· can people and the ConE,’Yess will be preserved.

2-5. Jurisdiction of Courts-Mortial
u. Active Duty Jurisdlction.
(1)
On 25 June 1987, the Supreme Court decided the case of Solorio v. United States, 107 S.Ct. 2924 (1987). This case dramatically changed the rules concerning court·martial jurisdiction. The Court held that jurisdiction of a court·martial depends solely on the accused’s status as a mem· ber of the Armed Forces, and not on whether the offense is service·conneded. The case overruled the “service-connection test” established by the Court in O’CaZZahan v. Parker, 395 U.S. 258 (1969). Now jurisdiction will be established by simply showing that the accused is a member of the Armed Forces.

(2)
SolorIO creates a situation where both the military and civilian authorities may have juris­diction over a soldier and his or her offense; e.g., an offense committed off post. This necessitates SJA coordination with the local civilian prosecutor. Such coordination will ensure that the exercise of UCMJ authority is prudent and consistent with good order and discipline.

(3)
Civilians, including family members, are not tried before courts-martial. If they commit offenses on post, they may be tried in the local State or Federal court. Commanders consuJt \vith their SJA when issues arise involving misconduct by civilians.

b. Jurisdiction Over Reservists.
0) As a part of the Military Justice Amend· ments of 1986, Congress amended the UCMJ,
2-3

TM 8-240
‘\rticles 2 and 3. The new amendments extend
-isdiction over reservists on all types of training; _od, in short, if the reservist is traming, he or she is subject to military jurisdiction for crimes com· mitted during the traiDing period. The most signif­icant change is reflected in the UC11J, Article 2(aX3), which allows the military to exercise au­thority without any threshold over reservists who commit crimes while performing weekend drill in IDT status.
(2) Recognizing that IDT periods are brief, usually lasting only one weekend, the amend­ments to the UCMJ, Article 3, allow reservists to return home at the end of IDT drill without divesting the military of jurisdiction. As a result. nonjudicial punishment administered under the UCMJ, Article 15, may be handled during succes­sive drill periods. Specifically, while punishment can be imposed during one drill period, it can be served during successive drill periods_ In addition, under the UCMJ new Article 2(d), the Government can order to involuntary active duty lhose reserv­ists who violate the UCMJ duying a training period. Reservists can be mvoluntarily ordered to active duty for UCMJ, Article 32 investigations,
‘urts-martial, and nonjudicial punishment.
…;.-6. Levels of Court
a. Summary Court-A-lartial.
(1)
The summary court-martial is the lowest level trial court for disciplinary actions in the military legal system. A summary court-martial is designed for disposition of minor offenses under simple procedures. It is composed of one commis­sioned officer. The law specifies no particular grade for a summary court-martial officer, and the powers are the same regardless of the individual’s grade. Ordinarily, the summary court-martial of­ficer should be a senior captain or a field gmde officer. A neutral judge advocate will be desig· nated as the legal advisor for the summary court­martial officer.

(2)
A summary court·martial is normally con· vened by a battalion commander. It may also be convened by anyone having authority to convene a special or general court-martial. The summary court-martial is detailed by personal direction of the convening authority.

(3)
A summary court-martial may tr.v only ~l1listed soldiers. The soldier may be tried by

mmary court-martial for any non-capital offense ,.tlnishable under the UCMJ; that is, for any offense for which the punishment is something less than death. The summary court-martial should be
limited to relatively minor military olfenses, how­ever, and is often used only after an accused has been offered and refused nonjudicial punishment for the offense.
(4)
An accused may not be tried by summary court-marlial over the accused’s objection. If the accused objects to trial by summary court-martial, the summary court-martial ofEcer will note the objection and return the charge sheet to the convening authority for disposition. If the accused consents to trial by summary court-martial, the summary court-martial officer will proceed with the trial.

(5)
The punishment powers of the summary court-martial are very limited. For example, a summary court-martial may only confine enlisted soldiers who are serving in the rank of corporal or specialist or below.

(6)
]n a trial by summary court·martial, an accused is not entitled to representation by mili· tary counseL If the accused desires to be repre­sented by a civilian attorney (at no expense to the Government), or if the accused has secured the services of a reasonably available individual mili· tary counsel, the summary court-martial officer should allow such counsel to be present.

b. Special Court-Martial (Non-Bad Conduct Dis~
charge).
(1)
The special court-martial is the intermedi· ate court in the system. It has more sentencing power than the summary court-martial, but less than the general court·martial. Unlike the UCMJ, Article 15, and the summary court-martial, an accused may not turn down a special or higher court·martial.

(2)
The punishment powers of the non-bad conduct discharge (BCD) special court-martial in­cludes 6 months confinement, forfeiture of two­thirds pay per month for 6 months, and reduction to private_ A special court-martial may not confine an officer.

(3)
The membership of a non-BCD special court-martial may take anyone of three different forms_ It may consist of at least three members; at least three members and a military judge; or solely a military judge if the accused so requests. Special courts-martial are not presently tried \…..ith­out military judges. In some instances, an accu­sed’s request ror trial by military judge alone may be denied by the military judge; however, special courts-martial are tried by military judge alone in the vast majority of cases when requested_ If an enlisted accused requests that the court have enlisted membership, at least one-third of the court members must be enlisted soldiers.

TM 8-240

(4)
The military judge of a special court­martial is detailed by the U.S. Army Trial Judi­ciary. AR 27-10, chapter 8, covers the detailing of military judges and their administrative and logis­tical support.

(5)
Trial and defense counsel are detailed for each special court-martiaL The trial counsel need not be a lawyer; however, the accused has a right to be represented at the trial by counsel who is a lawyer and certified by the Judge Advocate Gen­eral (JAG). As a matter of practice, both counsel are lawyers. The administrative task of making counsel available is generally handled through the offices of the responsible SJA and senior defense counsel.

(6)
A special court-marlial may try anyone subject to the UCMJ for any non-capital offense made punishable by the UCMJ; that is, for any offense for which the maximum punishment is less than death.

c. BCD Special Court-Martial.

(1)
The BCD special court-martial is basically the same type of court as the special court-martial outlined above except that this court-martial has the power to impose a BCD as punishment. There are certain requirements which must be met be­fore such punishment may be imposed.

(2)
In order for a special court-martial to have the authority to impose a BCD, a qualified defense counsel and a military judge must be detailed (unless a military judge could not be detailed because of physical conditions or military exigen­cies), and a verbatim record must be made_ In addition, AR 27-10 provides that the military judge be assigned to the U.s. Army Legal Services Agency (Trial Judiciary) and that only a general court·martial convening authority may convene a BCD special court-martial. ]n practice, all Army special courts-martial will have a military judge

detailed to them.
(3) The BCD special court”martial option pro­vides a forum for those cases where a convening authority deems a punitive discharge warranted but does not feel that the charges are serious enough to warrant more than 6 months confine­ment. Where the discharge is warranted and the case is referred to a special rather than a general court, the effort that would have been expended by the UCMJ, Article 32 investigation process de· scribed below is saved.
d. General Court-Martial.
(1) The general court-martial is the highest level trial court in the military legal system and must be convened by general court-martial con­
[l

vening authority upon the formal pretrial advice of the SJA. This court·martial tries military per­sonnel for serious offenses.
(2)
The punishment powers of the court are only limited by the maximum punishments for each offense found in Part IV of the MCM and can include confinement for life and even the death penalty.

(3)
The general court-martial may take either of two possible forms. It may consist of a military judge and not less than five members, or solely of a military judge, if the accused so requests. The accused may elect trial by judge alone in all cases except those which are referred to trial as capital cases. ]n all cases a military judge must be detailed to the court. An enlisted soldier is also entitled to at least one”third enlisted membership upon request.

(4)
Trial and defense counsel are detailed for each general court·martial. Both the trial counsel and defense counsel at a general court-martial must be lawyers certified by the ,JAG.

e. UCMJ, Article 32 investigation.
(1)
No charge may be referred to a general court-martial for trial until a thorough and impar­tiaJ investigation has been made in accordance with the UCMJ, Article 32. The officer appointed to conduct this investigation should be a field sfJade officer or an officer with legal training and experience. The purposes of the investigation are to inquire into the truth of the matters set forth in the charge sheet, to determine the correctness of the form of the charges, and to secure information upon which to determine the proper disposition of the case_ The perfecting of a case for the Govern­ment is not a purpose of the investigation. The UCMJ, Article 32 investigating officer perl”orms a judicial function and must obtain legal advice from a source not involved in prosecution or defense functions.

(2)
The investigation will be conducted with the accused present and represented by a defense counsel. The accused is entitled to present evi­dence and to cross-examine witnesses_ Also, the accused is entitled to have witnesses produced when they are reasonably available. After the investigation, a report of investigation wi]] be made to the officer directing the investigation. The recommendations of the UCMJ, Article 32 investi· gating officer are advisory only.

TM 8-240

CHAPTER 3 MILITARY STANDARDS OF RESPONSIBILITY
3-1. Introduction specific questions are asked of the Sanity Board,
Milit3ry regulations define the structure of the forensic evaluation and provide the legal standard to which the clinical information is tested. Knowl­edge of the proper standard is critical to a rea­soned analysis. Improper application of the wrong standard can serve as a ground for appeaJ and eventual retriaL
3-2. The Forensic Evaluation in the
Military
u.
Sanity Board Composition. When an active duty soldier is accused of an offense, and there is a question about the mental responsibility of the accused, a board of one or more medical officers may meet to examine the accused. This panel of medical officers is commonly referred to as a “Sanity Board.” It consists of either physicians or psychologists. There must .be at least one psychia­trist or psychologist on the Board that reports on the soldier’s mental condition at the time of the offense charged as well as hislher mental capacity to stand trial. Thus, issues of mental responsibility (insanity) and competency are addressed.

b.
Dissemination of the Board’s Report. The report may be requested before, during, or after trial by a court-martial. A full copy of the report is given to defense counsel, and the conclusions alone are provided to the trial counsel. Not only does the report assist in determining the proper disposition of charges; it may also influence sentencing.

3-3. Mental Responsibility Standard
u.
The Military Standard. There are a number of legal tests or standards for insanity. The cur­rent military standard dictates a person is not mentally responsible for a criminal offense if the accused can demonstrate by clear and convincing evidence that at the time of the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his or her conduct. This standard for lack of mental responsibility is set forth in Rules for Court Martial (ReM) 916(kXl).

b.
The Questions Asked. The Sanity Board, which evaluates whether the accused lacked men­tal responsibility, is governed by ReM 706. Three

based on the military mental responsibility stan­dard:
(1)
At the time of the alleged criminal con· duct, did the accused ha\’e a severe mental disease or defect?

(2)
What is the clinicaJ psychiatric diagnosis?

(3)
Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct?

c.
Competency. The Sanity Board is also asked whether the accused has a sufficient mental capac· ity to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense. Additional qnestiollfl may be posed consis· tent with ReM 706.

3-4. Definition of Terms
a.
Introduction. Although a standard for mental responsibility exists, no specific legal clarification for implementation has followed. Thus, a general vagueness and confusion results. Analyzing the mental responsibility standard discloses certain key words and phrases-“severe mental disease OJ” defect,” “unable to appreciate,” and “nature and quality or wrongfulness.” To apply the standard appropriately requires an understanding of the key concepts.

b.
Severe Mental Disease or Defect. A severe mental disease or defect, by legal definition, ex­cludes an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects. Still, a credible argument can be mounted that an individual who meets criteria for a borderline personality disorder or certain amnestic states, although nonpsychotic, may be quite severe. Although the term “severe” is generally applied to psychotic disorders, nonpsy­chotic behavior with severe impairment in social or occupational functioning might well qualify.

c. Wrongfulness. In addition to requiring a se­vere mental disease or defect, the mental responsi­bility test requires the accused be unable to appreciate the nature and quality or wrongfulness of his or her conduct.
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0) The officer performing the evaluation must
ear in mind that the wrongfulness of conduct is determined by society_ The appraisal of the act within the accused’s private ethical system is not determinative.
(2)
Simply determining whether the conduct was right or wrong or whether the accused under· stands in more general terms the difference be· tween right and wrong is insufficient. It is not appropriate to use one’s own value system as a yardstick by which the accused’s behavior is mea­sured. The evaluating officer should, in essence, specifically address the accused’s state of mind with reference to the criminal conduct.

d.
Collaboratwe Materials. Collaborating data describing the accused’s behavior surrounding the time in question is helpful. Such behavior as flight, attempt to conceal commission of the act, statements of repentance, and voluntary surrender to civil or military authorities may suggest that the accused was aware of consequences attendant to the alleged criminal conduct.

e.
Nature and Quality. The mental responsibil­ity test requires the accused, because of severe mental disease or defect, be unable to appreciate “the nature and quality” or wrongfulness of his or

~r conduct. The phrase “nature and quality” 3sentially restates the wrongfulness or harmful­ness premise.
f. Appreciation. The accused’s “ability to appre­ciate” the nature and quality of wrongfulness of his or her conduct must be addressed. The mere presence of a mental illness, even a severe mental illness, does not necessarily impair the ability to appreciate one’s conduct as wrong. The nature of the behavior must be evaluated as a result caused by the mental disease or defect. The motivation for the behavior and the resultant gain must be explored. For example, an individual with a his­tory of schizophrenia, poorly controlled, burglar­izes a house and steals money and jewelry. The ill-gotten proceeds finance an expensive drug habit. During the burglary, which occurred at night, attempts were made to be furtive. This data suggests appreciation of the wrongfulness of the
act.
g. Inability to Apprectate.
(1) Contrast this scenario with an individual who has a slowly evolving paranoid delusional disorder. As time progresses the individual is “convinced” that his immediate supervisor is spy­.’1g on him both at work and home. He believes
at his supervisor then initiates a series of -.1amaging rumors. At work, he thinks people talk behind his back. Every communication becomes threatening. In order to avoid confrontation, which
the soldier feels is inevitable, he hides in his house with the blind closed, a club at the ready. Life becomes suffocating, all because of one individual.
Finally, the individual perceives that his supervi­sor means to personally injure him_ Fearing for his life, he preempts his supervisor and strikes first. The supervisor is mortally wounded; the accused awaits the police so he can present his case of self-defense.
(2) In this case, the soldier has a severe mental illness, a delusional disorder, paranoid type. The inability of the soldier to appreciate the wrongfulness of his behavior is considered in context with the ment.al disorder. In this elaborate delusional system, the soldier is convinced that while murder is wrong, to have done nothing would have been to forfeit his own life.
3-5. Assessing Criminal Responsibility
a.
Assessing the Mental State. Assessing crimi­nal responsibility requires close adherence to the prevailing mental responsibility standard. A retJ·o­spective analysis of mental state must then be performed. While it may seem an impossible task to determine a person’s past mental state, this same exercise is performed by the jury/fact finder. As an expert on human behavior, the clinician provides guidance in understanding a prior mental state. The clinician’s assessment of criminal re· sponsibility is then best viewed as an adjunct to a lay decision-making process.

b.
Accuracy Required. The opinion rendered by the clinician must be based on the “usual degree of medical certainty” In evaluating the accused’s prior mental state then, the clinician is not held to an unreasonable standard. Where two competing hypotheses are present (was or was not the ac­cused able to appreciate the wrongfulness of his or her behavior, for example), that argument with the most compelling data that simply tips the scales is sufficient to opine “within the limits of medical certainty”; “more probable than not”; or roughly 51% accuracy.

c.
Components of the Responsibility Analysis. When the clinician assesses criminal responsibil­ity, three basic inputs are required: collateral reports; a clinical evaluation, blending current mental status with a retrospective analysis; and the application of the mcntal responsibility stan· dard_ Collateral reports should be sought which describe the accused’s behavior at or about the time of the alleged evcnt(s). Evidence of disordered thinking is sought. The mental responsibility stan· dard also requires an assessment be made of the accused’s ability to appreciate the wrongfulness of hislher behavior. Clues are gathered from investi­

gatlve reports. To appreciate wrongfulness implies the ability to predict consequences. The accused who runs from the crime scene may be avoiding capture. An emotional expression, such as crying, remorse, or guilt suggests the accused was aware of his or her behavior, and this element should be explored The need to confess is a powerful motiva· tor of behavior. Any attempt to conceal aspects of the crime such as hiding a body or a weapon clearly indicates the accused was aware of the wrongfulness of his or her behavior. The manner in which the accused acted is also critical. Was the behavior purposeful, for example, or did it seem erratic? Could gain be predicted from the accused’s action? The clinical evaluation also examines the investigative reports for any evidence consistent with a severe mental disorder. Witness statements can be particularly useful here. Any contradictions between the witness and the accused’s versions of the alleged offense should be explored. The current mental state may also, by inference, be indicative of past mental functioning. The accused who dis· plays the residual characteristics of a psychosis may have had an acute episode earlier. Current borderline personality dynamics may prompt an exploration, through retrospective analysis, of a brief reactive or atypical psychosis.
3-6. Clinical Examples
a. Malingering.
0) An example of feigned mental illness is described first. The clinician received the investi· gative report on the accused who was charged with assault with intent to murder. The accused claimed a voice had ordered him to assault his first sergeant. A thorough review of the investiga· tjve reports and an exhaustive clinical evaluation conc1uded­
(a)
There was no evidence of unusual behav· ior reported by witnesses.

(b)
The accused fled the scene.

(c)
There was no prior history of mental illness.

(d)
The clinical evaluation was normal.

(2)
1t was concluded that no mental disorder was present. The accused later reported that “the voice” was made up. If the presence of a severe mental disease or defect is established, the next step is to examine the ability of the accused to appreciate the wrongfulness of his or her conduct. The mere presence of a severe mental disease or defect is not sufficient. Legally, a causal relation­ship between the severe mental disease or defect and the alleged criminal activity must be estab­lished.

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b. Responsible COl/duel and Severe Mental Ill­ness.
0) An example of an accused with a docu· mented history of a severe mental illness that did not impair responsibility is discussed next. The accused had a long, documented history of schizo· phrenia, paranoid type. He also had a history of episodic violence. The accused was charged with assaulting a girlfriend. The accused cited mental confusion and hallucinations as causaL The foren· sic evaluation established­
(a)
The accused did helVe a severe mental disorder but had just received his periodic intra· muscular neuroleptic.

(b)
Clinically, the accused exhibited no cur· rent signs of psychosis.

(c)
‘rhe accused and his girlfriend had quar· reled over money, and after assaulting her, he fled the scene.

(2)
In this case, there is a severe mental disease, but it had no causal relationship with respect to the criminal behavlOr. The clinician must carefully explore the criminal behavior to determine if any such connection to the mental disease or defect exists.

c. Not Criminally Responsible.
0) An example of a severe mental illness and lack of responsibility is suggested next. The ac­cused was charged with murder. The facts indicate the accused reported to work on time, immediately went into his supervisor’s office and stabbed him. The accused then sat down in the office, looking dazed and confused. The forensic evaluation dis· closed­
(a)
The witness statements described the accused as confused and talking illogically. He kept muttering about a “plot.”

(b)
The clinical evaluation found both cur­rent and past evidence of a psychosis. Specifically, delusional content centered arollnd the accused’s belief that his supervisor was plotting to ki1J him. The accused struck first when a voice told him that his supervisor had hired some “hit men.”

(2)
In this case, the presence of a seVere mental disease, coupled with the markedly illogi. cal reasoning, substantially impaired the accused’s ability to appreciate the full context of his behav­ior. The mental disease or defect was intimately intertwined with the subsequent cri)ninal behav­ior. There was no apparent goal other than “self· defense.”

d. Somnambulism and Responsibility.
(1) A situation where responsibility for crimi­nal conduct was affected involved a newly married sergeant who waS being evaluated after assaulting his wife. The sergeant recalled falling asleep and
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ver81  hours  laler  awakening  because  of  his
(”  reams.  The  intervening  period  was  a
11.  ,Ie wife provideu the missing information.

,e was herself awakened when her husband lrted yelling and then repeatedly struck her. Ie screamed; he finally “awakened” and \vas ofoundly upset at his behavior. Neighbors rc­rted the incident to the police upon hearing the reams. There were no marital problems hut cent job stresses had taken a lolL The sergeant 15 moody and irritable. Similar somnambulistic havior had occurred before.
(2) 8ince the facts of this case satisfy the quirements of the insanity defense, if referred r trial, the defense of insanity could prevail.
e, Amnesia and Responsibility.
(1)
In a different case, an officer was ch’:lrged lth attempted rape. The accused claimed amne· 9;. He could provide no details of his behavior ~fore, during, or after the attempted rape. Collat­al data disclosed the furtive behavior employed r the accused to accost the :victim. During the .tack, he threatened harm if the victim screamed. fter the unsuccessful rape, the accused fled. linical evaluation discovered no mental illness.

(2)
In this case, the court would probably find IP ..,tally responsible for the crime because he ~t if he were doing something wrong. Amne­a ….J itself is insufficient to rebut the necessary ental state. In addition, even if amnesia resulted am a severe mental disorder, the causal relation­lip must be proved.

-7. Portiol Mentol Responsibility
a.
Impact on Criminal Culpability. Partial men­11 responsibility (PMR) does not exonerate crimi­a1 conduct. PMR focuses on intent or that mental .ate whereby the person both knows and wishes lat certain consequences will follow a certain ctivity. All criminal offenses have both a physical nd a cognitive component. The physical compo­ent, or the guilty deed itself, is the actus reus. In lUrder, for example, the actus reliS is homicide. ‘he cognitive element in criminal offenses, the vi! or criminal mind, is referred to as the mens

w.
In murder then, the mens rea is the malice forethought or desire to harm.

b. Degrees of Mens Rea. PMR lies exclusively lithin the domain of the emotional element of riminal offenses, or the mens rea. Different rimes have different mens rea, with the more evil or criminal mind” present, the greater the Ie s. Thus, premeditated murder, which may
a. Je death penalty, requires that the accused pecifically intend to km the victim and consider he act of killing before committing the homicide.
1-4
Unpremeditatell murder requires an “intent to kill or inflict great bodily harm, but does not require consideration of the klJling act. Lesser forms of homicide, such as involuntary manslaughter and negligent homicide,. require no intent to kill.
c. Mitigating and Extenuating Factors.
(1)
PMR can negate the following special states of mind required for some crimes: specific intent, knowledge, willfulness, and premeditation. PMR will not, however, negate a genera] criminal intent. Where an offense requires specific intent, and no lesser included offenses requiring general criminal intent are raised by the evidence at trial, PMR will act as a complete defense.

(2)
Factors that do not exonerate criminal beha\’ior but instead may reduce the accused’s sentence are referred to as mitigating circllm­stances. PMR is generally such a mitigating cir­cumstance. The defense may argue, for example, that a mental disorder impaired the accused’s ability to premeditate or deliberate due to the “fogging” effect of acute alcohol intoxication. Again, the evaluating officer must not perempto­rily conclude that any mental disorder, including substance abuse, necessarily vacates higher cogni­tive functioning. The accused’s behavior must be carefully studied, again using collateral data.

d.
Intent. In some Cllses, the clinician is re­qnestcd to provide opinions regarding specific and general intent. A general intent is an element of virtually all crimes. Specific intent, which is re­quired for some offenses, encompasses general intent and further requires a singular state of mind. Some simple assaults arc general intent crimes. Assault with intent to commit murder is a specific intent crime, requinng that the accused’s assault on the victim be accompanied by the specific intent to murder. The presence of a mental disorder may, thus, negate the specific intent element, but the accused may nonetheless be guilty of a ·lesser included offense requiring only general intent (e.g., assault with a means likely to produce death or grievous bodily harm, a crime requiring no specific intent).

e.
Clinical Example of PMR. An example of PMR, with its exclusive focus on mitigating the degree of mens rea, involves alcohol abuse. The accused was charged with premeditated murder after a barroom brawl left a former friend dead. During the trial, the accused’s extensive alcohol abuse history was described. This information, along with recent marital and job stress, the unplanned nature of the murder, and the accused’s grief after learning of the death, all lessened the “criminal mind” aspect and resulted in conviction for unpremeditated murder.

1M 8-240

CHAPTER 4 COMPETENCY

4-1. Introduction
a.
In the absence of evidence to the contrary, the law presumes that a person is competent to make decisions, conduct business, and stand trial if accused of a crime. The terms “competency” and “responsibility” are, at times, improperly used interchangeably. The major difference between competency and responsibility is a temporal one. The court is concerned with the accused’s mental state at two points in time. The court needs an assessment to determine responsibility when the offense was committed. At the time of the trial, the court is concerned with the mental state of the accused to insure competency.

b.
There are a number of legal areas where competency issues are raised. In the criminal setting, this includes the ability to stand trial, to make a confession, and, in capital sentencing cases, competency to be executed. The major differ­ence between civil and criminal competency lies in meeting more stringent proof requirements for criminal proceedings. This is reflective of the more severe penalties and loss of life and liberty inter· ests that a criminal trial may produce.

(1) Affect on Trial Proceedings. Once an issue of competency is raised and an evaluation ordered, the trial proceedings halt. The trial cannot con· tinue until a judicial decision, based on expert opinion, is reached, concluding that the accused is competent to stand trial.
(2)
Competency to Stand Trial. To ensure fair· ness in the judicial system, a defendant must be capable of participating in hislher own defense. If a mental disorder supervenes, the accused may not be able to logically pursue hislher defense. If the attorney working with the accused suspects a mental disorder is impairing cognitive functioning, the attorney must report the matter and relevant facts to the authority empowered to order a sanity evaluation. Although the concept of competency has been present since the earliest recorded his· tory, an exact definition remained elusive. The controversy reached the Supreme Court in Dusky

v.
United States 362 U.S. 402 (1960). Dusky pro­vides the guiding language for criminal compe· tency. The opinion states that a competency test “must be whether he (the accused) has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.” In the U.S. Army this has been rephrased by ReM 909 to read-“Does the accused possess sufficient mental capacity to understand the nature of the proceedings against himJher and to conduct or cooperate intelligently in hislher defense?” The cause of the lack of mental capacity must be a mental disease or defect.
(3) Two Purts of Competency. In both stan­dards a vohhonal and a cognitive eJement are present. The military volitional element of the competency standard requires the accused have the ability “to conduct or cooperate intelligently in hislher defense.” The cognitive component requires that “the accused possess sufficient mental capac­ity to understand the nature of the proceedings against himJher.” In other words, a clear mind and emotional stability are important, and distur­bances in either can impair competency.
4-2. Conducting a Competency to
Stand Trial Evaluation
a. The Competency Assessmen.t.
(1)
The competency evaluation will carefully evaluate the accused’s present mental state. Par· ticular emphasis will be placed on the cognitive and volitional elements necessary to traverse the justice system. The competency assessment should evaluate­

(a)
The accused’s understanding of available defenses.

(b)
The risk of unmanagable conduct.

(c)
The ability to relate to the attorney.

(d)
The ability to develop legal strategies.

(e)
Whether the accused has a basic under­standing of the justice system.

(f)
The accused’s understanding of the charges with the possible sanctions.

(g)
The ability to propose a possible outcome of the process.

(h)
The ability to provide information to defense counsel.

(i)
The ability to rebut Government claims.

(j)
The ability to testify appropriately.

(k)
The preSence of significant self·defeating behavior.

TM 8-240
(2) A determination of the degree of impair­
,ent is then made. Deficits should prompt further investigation. It must be remembered that any deficit must be causally related to a mental disor­der. Apathy, indifference, and malingering do not impair competency.
b. Appraising Legal Defenses. The evaluation must determine how capable the accused is of aiding his or her own defense. Useful questions include­
0) What 18 your understanding of the charges?
(2)
How can you best help your attorney help you?

c.
Unmanagablc Conduct. Few things disturb courtroom decorum as much as the noisy, impul­sive, uncontrolled client. The evaluation must determine if inappropriate behavior is the result of a mental disorder that interferes with the accu­sed’s competence. Some defendants are unruly and disruptive yet remain competent. The clinician’s best service is in distinguishing those who cannot appreciate the proceedings or participate in their own defenses. Useful queries to assess this in­

~lude­
(1)
If you find something objectionable in the ucial proceedings, how best can you express your­self?

(2)
What effect will continued disruptive be­havior have on your trial?

d. The Ability to Relate to the Attorney.
(1)
Simple lack of confidence in the attorney is not sufficient. There must be a mental disorder present that impedes cooperative conduct. Useful questions include­

(a)
Can you work with your attorney?

(b)
Is your attorney doing his or her best?

(2)
In assessing this aspect of competency, the ability of the accused to relate to the evaluating officer is a useful yardstick. An example of impair­ment would be the patient with a paranoid delu· sional disorder who can trust no one, save himself or herself. A severe lack of trust in anyone, including the accused’s own lawyer, may so handi­cap cooperation that the legal defense is compro­mised. Medical treatment might be indicated be­fore the accused could stand triaL

e. The Ability to Develop Legal Strategies.
(1) The attorney, in formulating the defense ategy, will often propose various options to the ~used. The ability of the accused to consider this
advice is important. Useful questions include­
(a) Would you accept an administrative sep­aration with less than an honorable discharge
(discharge for the good of the Service, AR 635-200, chapter 10) in lieu of a general court~martial, if offered?
(b)
What will be your response if your attor· ney suggests you do not testify?

(2)
Difficulties arise when the accused is resis· tant to any advice and rigidly pursues a course contrary to his or her best interests. The clini­cian’s assessment will help establish whether such apparent behavior is the result of a mental disor­der. Appropriate medical care will intervene if the condition warrants.

f. Basic Understanding of the Military Justice System. For the accused to effectively participate in hislher own defense, a minimal knowledge of the military justice system IS needed. Areas of assessment might include­
(1)
What are the roles of the trial counsel, defense counsel, military judge, and the function of the court members GUry)?

(2)
Do you understand the basic sequence of trial proceedings, such as who performs the cross­examination, the purpose of this, \vho determines the sentence, and what avenues are available if a guilty verdict is reached?

(3)
What will be the consequences if you are sentenced to confinement?

g.
Understanding the Charges and Ppnalt<es. An appreciation of the seriousness of the charges and the range of possible penalties is important infor­mation to gather. A minimizing of the conse­quences, for example, could impair the accused’s ability to effectively work in his or her own defense. Useful inquiries would include­

(1)
What are you charged with?

(2)
What would be a typical sentence should you be found guilty?

h. Assisting Defense Counsel and Rebutting Prosecution Claims. In the overall assessment of competency, the ability to discuss relevant issues and counter prosecution charges is paramount. In general, the clinician’s detailed review of the accused’s version of the alleged criminal activity may prove helpful in this assessment. The exami­nation m.ay include­
(1)
Having the accused describe in detail the where, what, when, and how of the alleged crimi· nal conduct.

(2)
A careful mental status examination with special attention to potential memory deficits_

i.
The Ability to Testify Appropriately. This par· ticular element is best determined by the ability of the accused to render a logical account of his or her behavior and to respond appropriately to ex­amination and cross-examination by counsel.

Clearly, t.he presence of a psychosis would exclude the ability to testify relevantly_
J. Self-Defeating Behavior. In some mental disor­ders, the drive for expiation is so great. that no attempt is made to defend oneself. Instead, t.he accused eagerly ant.icipates, and desires, the most stringent punishment possible. This is to be con­trasted with t.he truly repent.ant individual, who while acknowledging wrongdoing, does not wish an exaggerated punishment. Useful inquiries in­clude­
(1)
What punishment is sufficient for what you feel you have done?

(2)
Will you accept a lesser penalty if your attorney can anange it?

4-3. Clinical Examples of Criminal Competency
a. Incompetent. An example where the accused’s mental state impaired competency is described first.
(1) The accused had been recently charged with shoplifting. Prior to the arrest, his military career had been exemplary. In fact, a promotion awaited him. The articles taken were of little value, and t.he soldier had more than enough money on his person to pay for the items. When initially consulting with his attorney, the soldier appeared depressed, lethargic, and withdrawn. Questions posed by the attorney were answered
TM 8-240

m01lOsyllabically. The accused did mention he felt he deserved the death penalty. A dingnosis of severe major depression was made.
(2)
In performing the competency evaluation, the evaluating officer opined incompetence due to a mental disorder based 011­

(a)
The inability of the accused to relate to his attorney.

(b)
The lnability to develop a legal strategy.

(c)
The inability to understand the reaSOn· able punishment if found guilty.

(d)
The inability to testify.

(e)
The presence of significant self-defeating behavior.

b.
Competent. A common example where compe­tency is usually unaffected is the emotionally upset pre·trial detainee.

0) A soldier was placed in detention after being AWOL while pending court-martial for drug possession and distribution. Once incarcerat.ed, the soldier was found crying, anxious, and vOlcmg vague suicidal ideations.
(2) The mental status and competency eyalua­tions disclosed no cognitive or volitional ImpaIr­ment. The accused clearly understood his predica­ment and even posited viable defense strategies. His concern arose primarily from n fear of a possibJe guilty verdict. The accused “·.’3S returned to pretrial detention with suicide precautions and mental health followup.
1M 8-240

CHAPTER 5 THE CRIMINAL FORENSIC EVALUATION
reaffirm the limits. If pursued to trial, the accused

5-1. Introduction
a.
Special Defense of Insanity Plea. Under Fed­eral law and the UCMJ, the insanity plea is considered an affirmative or special defense. As such, the accused does not deny the facts which give rise to the charge hut instead provides evi· denee that will excuse criminal culpability. The accused has the burden of proving, by clear and convincing evidence, that helshe is not guilty by reason of insanity. Cooperation in the Sanity Board process must exist with either the accused, defense counsel, or both. If the Sanity Board finds such cooperation lacking with the accused, the presence of a mental disease or defect must first be explored. Lacking this explanation, counsel should be contacted and the situation discussed. In rare cases, the Sanity Board may be unable to render an opinion and should so state in writing.

b.
Impact of Noncompliance. In one example, defense counsel requested a Sanity Board. The order for inquiry into the accused’s mental state was prompted by his unusual behavior during commission of the offense. When instructing his client, counsel advised the accused not to discuss anything concerning the day in question. Although it was apparent the accused could provide vital information to the Sanity Board, he dutifully obeyed counsel’s instructions. The Sanity Board was unable to render an opinion. A statement indicating that the order for inquiry into the mental state of the accused could not be accom­plished, and the reasons were submitted to the convening authority. Subsequently, the defense counsel reversed course and instructed his client to cooperate fully. The Sanity Board eventually opined the presence of a severe mental disease or defect and a resultant inability of the accused to appreciate the nature and quality of his conduct.

5-2. Preparing for the Forensic Evalua­tion
a. Confidentiality. The accused must first be informed of the limits of confidentiality of commu­nications. It is best to have the defense counsel advise the accused of limits of privilege. Subse­quently, at the evaluation the psychiatrist can ask the accused what his or her understanding of the privilege is, and at that time the psychiatrist can
must understand that the clinician may have to testify. As such, the accused’s statements to the clinician may not be protected. The accused should fu)”ther be advised that during the evaluation, notes will be taken. and anything the accused would prefer not to discllss is hislber )”ight. However, lack of information may impede the ability of the Board to render a useful opinion. The accused must be inO’tructed that at the conclusion of tlle evaluation, a written report will be gener· ated. Prior to trial, certain safeguards exist so that the full report generally only goes to defense counsel. Only the Board’s conclusions are Seen by the trial counsel The Fifth Amendment or UCMJ, Article 31 warning should not be given to the accused.
b. Limited Privilege. The Military Rule of Evi· dence (MRE) 302 establishes a privilege in favor of the accused. MRE 302 states:
“(a) General rule. The accused has a privi­lege to prevent any statement made by the accused at a mental examination 0)”­dered under ReM 706 and any derivative evidence obtained through use of such a statement from being received into evi­dence agaInst the accused on the issue of guilt or innocence 0)” during sentencing proceedings. This privilege may be claimed by the accused notwithstanding the fact that the accused may have been warned of the rights provided by MRE 305 at the examination.”
(b) Exceptions. 0) There is no privilege under this rule when the accllsed first introduces into evidence such statements of derivative evidence.
(2) An expert witness for the prosecution may testify as to the reasons for the expert’s conclusions and the reasons therefore as to the mental state of the accused if expert testimony offered by the defense as to the mental condition of the accused has been received in evidence, but such testimony may not extend to state­ments of the accused except as provided in (1).
TM 8-240
(e) Release of evidence. If the defense of­fers expert testimony concerning the men­tal condition of the accused, the military judge, upon motion, shall order the re­lease to the prosecution of the full con­tents, other than any statements made by the accused, of any report prepared pursu~ ant to ReM 706. If the defense offers statements made by the accused at such examination, the military judge may upon motion order the disclosure of such state­ments made by the accused and contained in the report as may be necessary in the interests of justice.
(d) Noncompliance by the accused. The military judge may prohibit an accused who refuses to cooperate in a mental examination authorized under ReM 706 from presenting any expert medical testi­mony as to any issue that would have been the subject of the mental examina­tion,
(e) Procedure. The privilege in this rule may be claimed by the accused only under the procedure set forth in MRE 304 for an objection or a motion to suppress. If the accused invokes the privilege at this court-martial, any direct statements made in the course of the sanity board evalua­
tion may not be testified to at trials unless the door is opened by the accused or his defense team. This right exists regardless of whether the accused received Fifth Amendment or VCMJ, Article 31 warnings
5-3. Conducting the Evaluation
a. General. A request for inquiry into the men­tal capacity and mental responsibility of the ac­cused may be received before, during, or after a trial. That same request must specify the basis for the request. Since the legal system is not expert in determining impairment, a mental evaluation should be requested if the military justice system questions the presence of a mental disease or defect. The hypothesis correlating mental illness with the alleged criminal conduct or lack of compe­tence to stand trial ideally should be described in the initial request.
b. Collateral Data.
(1) Collateral information is imperative. Gen­~ally, defense counsel is the source for these
aterials. At a minimum, the Board should re­ceive­
(a)
The charge sheet.

(b)
Military Police (MP) records.

(c)
Criminal Investigation Division (CID) re­porL

(d)
Sworn statements.

(e)
The VCMJ, Article 32 proceedings (if

done). (fJ Selected military records. (g} Blood alcohol tesUdrug testing results.
(h)
Medical/Alcohol and Drug Abuse Pre­vention and Control Program (ADAPCP) records.

(2)
In addition, the Board may find it useful to interview commanders, co-workers, family mem­bers, and others who know the accused.

c.
Responding When the Order Directs Specific Tests. The request itself may contain specific conditions. Issues such as discrete medical or psychological tests, composition and qualification of the Board members, and requests for recording the evaluation may be present. Any such requests must be evaluated in terms of existing rules as outlined in RCM 706c and proper medical care. For example, RCM 706c does not require: a foren­sic psychiatrist, a Board of three psychiatrists, specific medical tests, specific psychological tests, Or audio/video recordings. In fact, RCM simply states that “Normally, one member of the Board shall either be a psychiatrist or a clinical psycho10­gisL” The tests that should be ordered are the proper province of the Sanity Board, not the legal system. The Board should explain that the diag· nostic tests are not randomly ordered, are expen­sive, and time consuming. The mental status of the accused determines what, if any, tests are needed.

d.
Speedy Trial Rules-The military has a strict requirement for a speedy trial, and violation of this rule can result in dismissal of charges. Rule 707 of the MCM in part, notes:

“The accused shall be brought to trial within 120 days after notice to the ac­cused of preferral of charges or imposition of restraint when the accused is in pre­trial … for the same or related charges. The following periods shall be excluded when determining whether the period of this rule has run, including (a) any exami­nation into the mental capacity or respon­sibili ty of the accused; or (b) any hearing on the capacity of the accused to stand trial and any time during which the ac­cused lacks capacity to stand trial. When the accused is in pretrial arrest or confine­ment, immediate steps shall be taken to bring the accused to triaL No accused shall be held in pretrial arrest or confine­ment in excess of 90 days for the same or related charges.”
In [! similar f[!shion, requests for recording or for the presence of the ~ttorney during the evaluation o:houJd be disconrage(] The Boarel must have the ability to conduct the evaluation as free from artifJci[!1 distraction as possible.
e. Scheduling the Interview. The first appoint­ment with the accused should be scheduled as soon as possible. This is usually cDonlin[!ted with the trial counsel.
f Revielcing the Order (or Inquiry. The clinician should carefully review the request for inquiry into the mental capacity for mental responsibility of the accused. This outlines the specific questions that must be answered. The evaluation should be structured to gather the necessary information.
g. Components o{ the Clinical Intervlew. The basic interview consists of­
0) The accused’s statement, in detail, describ­ing the offense. A discussion of behavior before, during, and after the offense should be examined. The role of substance abuse in the accused’s mental state is reviewed.
(2)
A thorough review of social/family history. The emphasis should be on relationships, school and work performance, past legal and psychiatric history. A sexual history also is done. All of this is reviewed to estabJish the presence of an enduring pattern of maladaptive behavior.

(3)
The mental status examination.

11. The lI,ledical Evaluation.
0) The clinical interview also includes a med­ical evaluation. If a clinical psychologist is the only member of the Sanity Board, then a need exists to request the appropriate consultation from a competent medical authority. Accordingly, such an individual would have to be apprised of the nature of the request far consultation as well as informing the accused of the request. A detailed history of head injuries, convulsions, amnesia, headaches, and general health is taken. When medically indicated, perform­
(a) A physical exam (with a screening neu­rologic exam).
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(b)
Routine laboratory studies.

(c)
A computerized tomogrum scan or mag·

netic resonance imaging. (el) An electroencephalogram.
(2)
Other specialty examinations shouJd be performed when warranted. IVledical consultation should be requested when appropriate.

i.
Psychological Testing. If psychological testing is :indicated, the case may be revie·wed with a clinical psychologist to help determine the tests best suited for clarification of the clinical diagno­sis.

j.
Hospitalization (or Evaluation. If it will aid the examination and help avoid deJays, the patient may be hospitalized in order to facilitate determin­ing mental status. The accused should not rou­tineJy be admitted, but only when circumstances dictate. Some of the conditions walTanting inpa­tient evaluation are if­

(1)
The accused is mentally or physically ill and meets the usual criteria for admission.

(2)
A large battery of testing is planned and an inpatient status would be more efficient. If the patient is admitted both defense counsel and trial counsel should be notified. Obtaining guards, when necessary, is coordinated through the trial counsel, unit commander, or detention facility.

k.
Need (or Expedited Evaluations. The MCM authorizes recesses or adjournments in the trial proceedings when necessary to determine the accu­sed’s mental state. In general, however, unneces­sary delays should be avoided in conducting the examination. The accused is entitled to a speedy trial which, if violated, could result in dismissal of charges.

l.
Responding to a Con{ession. If a confession to the alleged criminal conduct occurS during the evaluation, the evaluator should confer with the defense attorney. If the accused admits culpability for an uncharged offense (such as chiJd abuse) in which the admission must be repeated officially, the evaluator should consult with the defense attorney and trial counsel if he or she reasonably believes that the events may have occurred.

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CHAPTER 6 APPLICATION OF THE MENTAL RESPONSIBILITY STANDARD

6-1. General
This chapter provides clinical guidance for inte­grating the medical diagnosis with legal issues. Specific mental diseases or defects are reviewed with respect to the mental responsibility standard. Obviously, such a review can never be complete. Scientific advances require the clinician to consult authoritative periodicals. ]n addition, the complex­ities of human behavior and the variations that each accused’s alleged crime present require flexi· hility. Furthermore, no specific mental disease or defect automaticaBy equates with lack of mental responsibility. The presence of a severe mental disease or defect is only a portion of the data considered. The remainder concentrates on the impact of mental disease or defect on criminal behavior.
6-2. Substance Use Disorders
Q. Voluntary Use of Intoxicants. Over half of all violent offenses are committed by an accused under the influence of drugs or alcohol. Property offenses (burglary, arson, fraud) have similar rates. Also important are arrests where substance use was the offense, such as drunkenness, disor· derly conduct, driving under the influence, and drug abuse violations. Clearly, society is perme· ated by substance abuse. The line between sub­stance use and disorder is based on clinical judg· ment. At a minimum, substance use must promote some degree of social or occupational dysfunction. Except under certain conditions, social or occupa­tional impairment is not at the level of a severe mental disease or defect. With perhaps one excep­tion, substance abuse will not esculpatc. Intoxica· tion may negate the specific intent requirement for UCMJ, Article 121 offenses of “larceny or wrongful appropriation.” In the absence of this specific intent, voluntary intoxication may be a complete defense. The voluntary use of alcohol embodies the assumption that the drinker or drug· taker is aware of the risks entailed with excess consumption. Drinking beyond personal limits then becomes a matter of choice. Drug use has one potential difference. Illicit drugs may be produced with varying levels of quality controL Although voluntarily used, the exact composition of the
substance could be a partial mystery. Still, the user assumes this risk.
b.
Subsiance Use as a Mitigating Factor. Sub· stance use then is not often legally advanced in hopes of attaining a non·responsibility acquittal. Instead, the substance use is offered as a mitigat· ing fuctor on the intent element or in hope~ of reducing the sentence. Defense counsel may assert that, secondary to the mind·altering effects of drugs or alcohol, specific intent could not be formulated. Thus, the crime of premeditated mur· der may be reduced to unpremeditated murder. It does not follow that substance use always removes the requisite knowledge or special state of mind required by law for premeditated acts. The amount of alcohol or drug used, the social setting, whether the accused had eaten, prior experience with the substance, the time interval between use and criminal act, the presence of purposeful goal· directed behavior such as flight or concealment, environmental factors related to behavioral expres· sian, the relationship between accused and victim, and any potential gains from the criminal conduct must all be explored to determine the effects of substance use on cognitive abilities.

c.
The Effects ofAlcohol. Alcohol is a disinhibit· ing substance. Behavioral controls are relaxed with use. The normally nervous, shy individual may feel emboldened when certain psychological defenses are weakened. In a different fashion, some individuals “drink to forget” seeking the mind and body-numbing anesthetic·Jike properties of alcohol. As drinking continues, a complex inter· play between alcohol, environment, and personal­ity dynamics emerges. The individual, now gener­ally aware of the intoxication, adopts a less socially motivated stance and turns instead to an “I don’t care” attitude. Previous frustrations, not as firmly held in check by social or individual restraints, may now be vented. Thus, an individ· ual prone to depression may become suicidal while the fundamentally angry person becomes the via· lent drunk.

d.
Alcohol and Severe MenIal illness. Certain alcohol-induced conditions may relieve accountabil­ity for criminal behavior. Alcohol hallucinosis, alcohol withdrawal delirium, and dementia associ· ated with alcoholism may qualify as severe mental

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sorders. The clinical examiner must then deter­
line if the alcohol-related mental disorder caused the accused to be unable to appreciate the wrong­fulness of his or her conduct. Alcohol idiosyncratic intoxiCLltion, a pathological intoxication, is an un­usual variation. In people who suffer from this rare disorder, ingestion of small amounts of alco­hol may be associated with violent behavior. A pre-existent brain injury, such as trauma or infec­tion, may be a predisposing factor. The accused is usually amnestic for the episode. This disorder might remove the mens rea or “criminal mind” producing a successful defense. The clinician must still be w.reful 10 elicit the full history since this diagnosis is subject to fabrication. In addition, if the accused knew the effect that alcohol created, the prosecution could argue that he or she should have refrained from its use. In this case, a defense based on alcohol is shallow and might not exoner­ate the accused or mitigate the circumstances.
e. Drug Use and Severe Mental Illness. When drug use induces a psychosis or delirium, as with alcohol, the necessary mental stale required for criminal activity may be absent. A careful history of drug use should include­
0) The types of drugs used.
(2)
The quantity of drugs used.

(3)
The drug cost and source of financing.

(4)
The roule(s) of administration.

(5)
The social setting where use occurs.

(6)
The relationship of accused to victim.

(7) How the accused treats “bad lrips.” f Cnmlnal Case Involving Drug Abuse. A clini­
cal example is a soldier who had been steadily increasing his consumption of amphetamines. His mental state correspondingly deteriorated inlo frank paranoia. While on board an aircraft cnroute to a new assignment, the soldier became convinced that his life was in jeopardy. He sought to hijack the aircraft and avoid a certain deadly fate. The clinician who later evaluated the accused rendered a diagnosis of amphetamine delusional disorder. The soldier was unable to appreciate the wrongful­ness of his behavior, the clinician opined. The jury
agreed and the accused was declared not guilty by reason of insanity.
g. The Importance of External Information. Cer­tain collateral data is helpful in determining the substance user’s mental statc. The military police report con talUs a section on the subject’s behavior. Alcohol on the breath and behavioral observations
uch as slurred speech are also noted. In such .:ases, a toxicology screen is finally performed at a local medical treatment facility (MTF) in some proximity to the arrest location. This information may not initially be included in the investigative reports since results will be pcnding. The clinician “,hould make every effort to review these drug and alcohol reports.
6-3_ Intellectual Impairment (Mental

Defect)
a.
Intellectual Functwning. The complete foren· sic evaluation requires an assessment of intellec­tual functioning. Disturbances in cognitive and social skills may be either developmental as in mental retardation or occur later in life as a dementia. Regardless of etiology, the clinician should look for any significant changes in func­tioning. Severe mental retardation may render the accused not mentally responsible. Severe mental retardation is probably nonexistent in the active duty population. More likely, mild intellectual impairment may qualify as a mitigating factor.

b.
Determining Mental Impatrment. Appraisal of mental deficiency is a multidimensional analysis which combines assessments of general intellec­tual functioning and adaptive skills. The thorough clinical forensic evaluation of the accused allows for a rough estimate of intellectual functioning. The individual’s social and work history is also important. The clinician should also review the General Technical scores from the Army Service Vocational Aptitude Battery. This test, which IS taken by all enlisted soldiers, is a measure of math and English scores.

c.
Sta.ndardized Tests. Psychological testing of intelligence is indicated when evidence of mental deficiency arises in the clinical forensic evaluation. The accused’s case should be discussed with the psychologist and agreement reached on the most appropriate test battery.

d.
Interpreting the Test Data. Care must be taken when relating mental deficiency to issues of responsibility. A man of 23 with a mental age of 8 is much more shrewd and sophisticated and has more worldly experience than a normal 8 year old. Conversely, the crime for which the accused is charged must be within his mental capabilities. The same man of 23 with a mental age of 8 would have difficulty committing computer espionage, for example.

6-4. Amnesia and Altered Stotes of Consciousness
a. Dissociative Disorders. The dissociative disor­den; represent disturbances in identity, memory, or consciousness. The onset and duration is vari­able. The accused who appears to meet criteria for multiple personality, psychogenic amnesia, som· nambulism, or fugue presents a real clinical chal­lenge. The clinical evaluation will be exhaustive,
to eliminate as much as possible the fabricated dissociative event. Most mses of dissociation are preceded by a significant psychosocial stressor. A history of prior episodes is typical. The de novo appearance of a dissociative disorder following illegal activity is highly self·serving. Personality dynamics and psychological testing will aid diag· nosiii.
b.
Amnesia and Criminal Culpability. The law has generally concluded that the accused who experiences amnesia based on a dissociative disor· del’ after commission of an offense is not relieved from criminal responsibility. 1n addition, the ac· cused is NOT unable to stand trial simply because he cannot recall the facts surrounding the offense or antedating its occurrence.

c.
Evaluating the Role of Amnesia. As usual, the nature of the offense should be examined closely. Note any personal gain, evidence of premeditation, relationship between accused and victim, and wit· ness statements characterizing the accused’s be· havior. This wjJl help establish the link between the mental disorder and any causal role played in the alleged criminal activity.

d.
Substance Use and Memory Loss. Blackouts and periods of amnesia are very common in alco· holism. Many drugs, however, including barbitu­rates and benzodiazepines, also impair the ability to register and retain new information. With alcohol, amnesia of Varying degrees may be a symptom but it does not relieve criminal responsi­bility. A more complex issue involves an idiosyn· cratic response to a legal prescription drug. In some cases, intoxication which is the unexpected resuJt of a substance taken pursuant to medical advice or a legal prescription is characterized as “involuntary,” and the accused is relieved of crim­inal responsibility for his or her acts while intoxi­cated.

6-5. Seizure Disorders
The accused may not be held legally responsible for an act consequent to a seizure. An exception would occur if the accused knew, or should have known, of the likelihood that the seizure would occur. Noncompliance with medication is an exam­ple. The clinician must establish that necessary link between seizure and resultant act. The mere history of a seizure is insufficient without this causal connection. In addition, the clinician should be suspicious of any trance state which developed for the first time in the context of criminal behavior. The diagnosis of a seizure disorder is often based on a history of repeated episodes. One would expect to find that prior episodes antedated
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the offense. An electroencephalogram and neurolo· gic cvalulltion may be required in some cases.
6-6. Organic Mental Disorders

There are many medical conditions that may cause acute or chronic impairment in brain function. Trauma, metabolic states, toxins, cerebral vascular injuries, and drugs are a few. Various symptoms suggestive of cognitive impairment may occur such as defects in judgment, memory, and attention. The ability to formulate plans may be compro· mised.

6-7. Impulse Control Disorders

a.
Characteristics. The impulse control disorders represent the failure to resist an impulse, drive, or temptation. A pattern of tension before with relief after the act is characteristic. This category in· cludes the intermittent explosive disorder, klepto· mania, pyromania, and pathological gambling. All have significant legal complications. With the possible exception of intermittent explosive disor· del’, these disorders generally will not exonerate. The defense attorney may offer the mental disease or defect as a mitigating fador, however. The primary reason such disorders will fail is the elimination of the volitional element in the revised insanity defense. In the military, the inability to control conduct, when due to a mental disorder such as pyromania, will no longer vacate responsi· bility.

b.
Intermittent Explosive Disorder. An accused may relate symptoms required for a diagnosiS of intermittent explosive disorder for self·serving pur· poses. The clinician should carefully exclude per· sonality disorders and substance abuse. The possi· bility of an organic basis for the disturbance should likewise be explored. Typically, the vio· lence seen in this disorder is totally out of propor­tion to the provocation. There should be a history of prior episodes if the diagnosis is valid. The nature of the attack, the mental state of the accused, and the behavior immediately afterwards will help decide the issue of responsibility.

6-8. Personality Disorders
a. Definition. In the mental non·responsibility standard, the term “severe mental disease or defect” does not include an abnormality mani· fested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as non·psychotic behavior disorders and personality defects. The attempt is to specifically disallow a defensive strategy that concentrates solely on a pattern of misconduct and which Jacks any evi­dence of significant mental illness.
1M 8-240
b. Differences of Opinion. The medical and legal ‘ofessions view character in different ways. Per­-,nality disorders are considered a mental illness,
with significant subjective distress and functional impairment, by the medical community. Elaborate theories have been advanced to explain charactero­logical development. Since, in most cases, the personality structure does not diminish the cogni­tive ability to appreciate wrongfulness, the person­ality disorder will not meet the military test for insanity. The blaming, rationalizing, prevaricating defenses only strengthen this supposition. When the clinician does assert that mental responsibility or intent is affected by personality dynamics, the well·prepared clinician will anticipate the need to explain the opinion in detail.
c. Personality and Responsibility. In assessing the impact a personality disorder may have on culpability, the clinician must remember that the real question is not one of classification but of effect. It is prejudicial to rigidly assume that individuals with personality disorders in all cir­cumstances are fully responsible for their behav­ior. There may be rare occasions when a particu­larly severe character defect may impair the accused’s ability to form the required mental state <md remove the ability to appreciate the wrongful­
ess of behavior. This would most likely OCcur in Lhe cluster A disorders of paranoid, schizoid, and schizotypal, where cognition is already distorted. Actual psychotic regression may accompany cer­tain personality disorders also. The clinician must make sure that such distinctions are based on specific data. Attacks of frenzy and violent temper frequently punctuate t.he careers of individuals with severe personalit.y disorders and should not be mistaken for a psychosis.
d. Personality and Intent. Sometimes personality disorders will be so severe that they could destroy the required mental state. In those cases, a clear, well-reasoned forensic report that is not based on psychological theory is expected. Personality disor· ders may also be of such severity as to impair the accused’s ability to entertain a specific intent and thus raise t.he issue of partial mental responsibil­ity. As usual, the mere finding of a personality disorder is insufficient in determining whether the required state of mind was present. How the presence of the personality disorder shaped the actual offense, thus affecting the accused’s mental processes, must be explained.

6-9. Sexual Disorders
a. Importance of Objectivity. Many of the sexual disorders never COme to the attention of the men­tal health system until the offender is arrested.
Frequently this results in tension between the medical and legal system. With emphasis on treat­ment, the medical community may clash with the legal system’s interest in punishment and safety. Sexual crimes often arouse much moral indigna· tion and potentially bias the clinician’s evaluation. The clinician, however, should introduce a note of objectivity to ensure a fair forensic review. Of particular importance in this area is child sexual abuse. The emotionality and outrage genemted in these cases markedly impact all the participants in the justice system. The profound affect associ­ated with these types of cases, especially upon reaching the trial stage, tends to overshadow the known scientific aspects of these disorders.
b. Foe-us of Evaluation. In evaluating the ac­cused charged with a sexual crime, the focus should not be exclusively on the sexual aspects. Personality dynamics, mental deficiency, and psy­chosis must be considered. The existence of sexual misconduct alone will not relieve responsibility. Of unique relevance in such cases is the potential for successful treatment and rehabilitation of the of· fender, the victim, and the family involved (if any).
c. Sexual Disorders and Responsibility. In most sexual disorders, except where psychosis or other more severe illness supervenes, the accused knows the particular act is wrong. This is shown by the fact that the accused sought to perform the act in private, or under calculated or clandestine circum­stances. All this suggests a knowledge of wrongful­ness. If the offense occurs only under the influence of drugs or alcohol, criminal responsibility is still not affected.
d. Sexual Crimes and the UCMJ. Celtain crimes have a sexual element as a component. Rape and murder, for example, do not require that the offender be tried only on the sexual issue. The accused may be accused of both rape and murder. Certain sexual behavior (voyeurism, exhibitionism) is not specifically condemned in the UCMJ, but an offender may be brought to trial under Articles 133 (conduct unbecoming an officer and a gentle­man) or 134 (general article).
e. Structure of the Sexual History. The clinician who assesses the sexual offender should consider whether­
(1)
The sexual behavior, particularly the para­philias, are a source of gratification.

(2)
The behavior is covert and furtive.

(3)
The behavior is repetitive.

(4)
The individual is distressed about the sex­ual impulses.

(5)
Family dynamics are present which are suggestive of certain offenses, such as with incest.

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(6)
Child abuse is present in the 3ccused’s developmental history.

(7)
There are problems in relationships with parents, women, sexu~l orientation conflicts, and employment or financial difficulties.

(8)
Pornographic materials have been used by the accused.

(9)
In pedophilia, coercion, threats, and other inducements were used to overcome a victim’s resistance. This is characteristic of the ability to plan and premeditate the pedophilia and thereby minimize detection.

(IO) Sexual sadism, as contrasted to other forms of sexual assault, is present. This is distinc­tive in the degree of violence whlch exceeds that required to gain compliance_ Arousal is purely secondary to inflicting pain.
r. The Evaluation of Children. In forensically evaluating children who are the apparent victims of abuse, the clinician should be skilled in those unique interviewing techniques required. If not, appropriate consultation with a specifically skilled clinician is in the best interests of the child and the legal system.

6-10. Psychosis
Psychosis, a very specific mental state, is charac­terized by disturbances in perception and cogni. tion. In terms of the mental responsibility stan­dard, the clinician should consider a psychosis as “a severe mental disorder.” The details of the offense and witness statements describing the ac­cused in proximity to the offense are needed. Sheer brutality or bizarreness of a crime does not, by itself, provide proof of psychosis. Defense counsel sometimes takes the position that “no sane man would have done a thing like this”-a declaration the clinician cannot accept. To do othenvjse im· plies that anyone can get away with murder by making it seem particularly senseless. In a similar manner, a history of, or even a currently diag· nosed psychosis, does not permit an ipse dixit proclamation of non-responsibility. The usual crite­rion for establishing the necessary mental state, the inability to appreciate the nature or quality or wrongfulness of behavior, is still required.

6-11. Malingering
u. Definition. Malingering is not a mental ill­ness. Malingering is the purposeful simulation or exaggeration of physical or psychological symp· toms. The goal is avoidance of unpleasantries such as certain military duties or legal sanctions. The accused who faces criminal charges may be tempted to fabricate a mental disorder. The clini· cian performing the forensic evaluation must con­sider malingering in the differential diagnosis. Detection of malingering, however, is an inexact arL Cert~in strategies and techniques can aid the scnrrh for ueception. To have considered malinger. ing, analyzed the subject in a methodical manner, and then concluded otherwise, adds signifinlnt credibility to the forensic evaluation.
D_ Detreling MalmgerIng

(1)
The accused feigning an illness must ini­tially overcome hJS or her own anxiety about possible detection. Attempts by the accused to control his or her posture, voice, and motor activ­ity may product a rigid bearing or tightly modu­lated emotions. For example, “leakage” occurs when, despite attempts to control behavior, the anxiety “slips” out. The accused who smiles, yet has an angry voice or denies nervousness while constantly tapping his or her feet, gives mixed signals. This should provide a clue for the clinician to investigate further.

(2)
When deception is suspected, the clinician should concentrate on verbal and hehavioral clues. Visual cues arc mostly distractions and are the most easily manipulated.

(3)
The latency and length of response to questions can provide clues to deception. Long pauses before answering allow time to structure the response. Excessively long or perfunctory an­

swers, particularly jf characteristic of the entire evaluation, may be evasive techniques.
(4)
The accused who is malingering may exag­gerate symptoms. An imprecise knowledge of men­tal illness produces contradictions.

(5)
The degree of cooperatlon may be used to control the content of the interview. The angry accused who takes repeated and unnecessary um­brage effectively limits the evaluation.

(6)
The accused may assume that a simple ipse dixit assertion, “I hear voices,” for example, is a subjective experience incapable of objective veri­fication. In some respects this is true, but accumu· luted clinical experience has identified certain fairly constant attributes of psychiatric symptoms. For instance, auditory hallucinations are the most common perceptual disturbance. Visual hallucina· tions, however, predominate in psychotic disorders with a toxic or physical cause. Psychotic hallucina· tions typically originate “outside the head,” can be differentiated by the sex of the voice, occur regard· less of the presence of other people, and are clear and distinct. The clinician’s experience in mental illness allows the use of discriminating diagnostic details such as these.

(7)
Additional techniques for detecting decep­tion include the use of­

1M 8-240
(a) Open-ended questions which require the

ceused to proceed without benefit of the elini­~i3n’s structured interrogatory.
(b)
Leading questions-while seeking incon­sistencies.

(c)
An extended evaluation session during which malingering becomes more difficult. Inpa­tient observation is a form of extended evaluation

(d)
Collateral data.

(e)
Psychological testing. Certain formal psychological instruments contains subscales de­signed to assess an individual’s attempt to con­sciously appear “bad” from the standpoint of pathology. The clinician again is cautioned to appreciate the validity of the scale used to address the issue of malingering.

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CHAPTER 7 PREPARING THE FORENSIC REPORT
(3) Past Legal History.

7-1. Introduction
a.
Target Audience. At the completion of the forensic evaluation, a complete written report must be generated. It must be remembered that the target audience for the forensic report is not composed of clinicians, but of laymen lawyers, commanders, and jury members with varying de· grees of medical sophistication. As such, the report should be written clearly with as little technical jargon as possible. Complicated terms which are essential to the text should be explained.

b.
Objective. Every effort should be made to make the report objective. Except when answering the questions raised by the order for the Sanity Board, opinions should be absent. Judgmental or prejudicial statements only detract from the credi· bility of the report and thus should be absent. The very manner in which the report is written can convey a certain attitude. Comments such as “I feel” or HI believe” convey less certainty of posi. tion than “In my opinion.” The former should be avoided. Persuasive remarks such as “It is clear” or “It is obvious” as a prologue to a position are rarely convincing.

c.
Specific Language. The precise meaning, in legal terms, of the words “possible” and “prob· able” is a useful distinction. “Possible” implies an almost virtual certainty, i.e., “Anything is possi· ble.” “More likely than not” as a definition of “probably,” however, is more specific and indicates there is at least a 51% chance that a given act will occur.

d.
Completeness. In general, a more complete forensic report results in fewer subsequent re­quests for clarification.

7-2. Structure of the Forensic Report
Q. Suggested Subheadings. The written report should be organized by topical content. The key issue is relevance. In preparing the report, the patient/client should be referred to as the defen­dant, the accused, or by name and rank. The report should contain data which ultimately sup· ports the conclusions. Extraneous data should be omitted. Suggested subheadings for the report include­
(1)
Identifying Information.

(2)
History of the Offense.

(4)
Past Psychiatric History.

(5)
Past Medical History.

(6)
Military Record.

(7)
Social and Family History.

(8)
Mental Status Examination.

(9)
Drug and Alcohol Use.

(10)
Physical Evaluation and Laboratory Stud·

(11)
Psychological Testing.

(2)
Diagnoses.

(13)
Opinions.

b.
Identifying Information. The identifying infor· mation segment of the forensic report should con· tain several elements. In addition to listing the typical medical demographic data, the specific charge for which the defendant stands accused is listed. The reason for the referral is that which is outlined in the order for mental inquiry. The source of the referral is noted, also. The actual time expended in conducting the evaluation is noted. If more than one interview was performed, so indicate. A very important aspect of the forensic report is describing the information the clinician reviewed. The date and times the accused was evaluated, the documents that were reviewed, whether psychological testing was done, and other collateral contacts should be listed. This section should conclude with a statement indicating that the accused was apprised of the nature and pur­pose of the evaluation along with the limits of confidentiality as previously discussed.

c.
History of the Offense. This section should begin with a synopsis of the investigative report, followed by the accused’s version of the offense. In preparing the forensic report, quotations from the accused are more enlightening than the clinician’s inferences drawn from such statements. Any in­consistencies between the investigative report and the accused’s statement should be noted. The use of psychoactive drugs or alcohol at or near the time of the offense is included. The relationship, if any, between the accused and the victim is also noted in the report. This portion of the forensic psychiatric report must be logical and inclusive. The data concerning the charged acts that the clinician uses to form opinions must be present here.

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d_ Past Legal History-The adult and juvenile
imina] history of the accused must be explored. if any doubts persist regarding the adult criminal history, the appropriate arrest records should be sought. At times it maybe necessary to inquire directly regarding certain offenses such as driving under the influence, speeding tickets, and non­support of a spouse. The military record, including any adverse criminal (court-martial or nonjudicial punishment) or administrative action (discharge, letter of reprimand, reduction, etc.), should be noted. The general tenor of counseling statements is often a neglected area.
€. Past Psychiatric History. A careful review of past mental diseases or defects, including sub· stance abuse and treatment, is included in the forensic report.
r Past Medicalllistory. Any condition, such as a severe head injury, which might impact on current mental functioning, is particularly important to include.
g.
Military Record. A list of assignments, awards, and trend of efficiency or evaluation reo ports should be included as relevant. The reason for joining the military is also listed.

h.
Social and Family History. This is an impor. ,t area of the forensic psychiatric report because

. le evidence of many mental diseases or defects which require a longitudinal history may be reo vealed here. Emphasis is placed on relationships throughout life, school performance, charadeI’ of peer /,,’l”OUpS, and substance abuse patterns. An opportunity to explore familiar authority struc· ture, and the accused’s early response is gleaned by inquiring into the typical rewards and punish· ments administered in the family. Further infor­mation in this area can be elucidated by asking, “What is the best and worst thing you did when growing up?” Any collateral contacts with the family, which at times are essential, should be described.
i. Mental Status Examination. The mental sta· tus examination should be thoroughly documented. Direct responses, with the clinician’s assessment following, are far more useful than a conclusory comment such as, “Judgment was impaired.” It is far more compelling to list the accused’s response to the hypothetical question “What would you do if there was fire in a theater?” as “I would quickly leave” as opposed to a summary comment “Judgment was good.” The presence or absence of
‘icidal     or homicidal ideation is indicated. The janie screening component is presented in de· Lail.
J. Drug and Alcohol Use. A thorough history of the patterns of drug and alcohol use must be outlined both in the accused and his family. The clinician should explore all potential drugs of abuse with attention to routes of administration: track marks, for example, may be hidden by clothing.
k. Physical Evaluation (lnd Laboratory Studies. A review of the medical records may suffice if current. Otherwise, appropriate aspects of the physical exam and lab work must be performed.
1. Psychological Testing. If psychometric tests were administered, a summary of the tests per· formed and their results is included. If testing was desired but not able to be performed for a specific reason, this should be indicated in the report. However, it is possible that this may weaken some of the conclusions drawn in the final report. It would be wise for the clinician to suggest to the court that an adequate evaluation should include such additional inquiry and for the court to seek out suitable and qualified psychologists accord· ingly.
m.
Diagnoses. The diagnoses should be listed in accordance with current nomenclature, using the Diagnostic and Statistical Manual of Mental Disor· ders multi·axial system. The report up to this point should provide enough data necessary to sustain the diagnoses.

n.
Opinions. The Sanity Board is asked to reo spond to specific questions. Answers should refer· ence each query directly. In addition to standard questions, the Sanity Board may be asked other questions. If any of these are unclear, written clarification should be received. When responding to the question of responsibility, the exact legal language in the mental responsibility standard should be cited. In other words, if the clinician opines responsible conduct, the response could be: “The accused was able to appreciate the nature and quality of wrongfulness of his or her conduct.” An explanation, buttressed by the forensic report, should follow. All opinions should be qualified by noting, “The opinion set forth is based on ‘reason· able medical certainty’.” This is a legal term addressing the reliability of the opinion. For exam· pIe, if two competing hypotheses could be pro­posed, the one tipping the balance more persua· sively would be an opinion considered reliable to within a “degree of medical certainty.” The clini­cian is not expected to render a conclusory state· ment indicating whether the accused is sane or not. At times it is not possible to formulate an opinion. This may be due to lack of information and should be so indicated. The clinician must remember that all opinions must focus on the presence or absence of a mental disease or defect. There are times when no mental disease or defect

is found in a service member accused of a heinous crime. Prefacing opinions with the proviso “No specific symptoms of a mental disease or defect are currently present” will indicate that not all crimes are committed by individuals ·who are mad. In­stead, the accused may simply be “bad.” The Sanity Board may have been requested to evaluate the capacity of the accused to form that necessary mental state of crime or simply crimil1al intent. Conclusions about capacity for intent are given in the opinion section. Here is an opportunity, when appropriate, for the clinician to disCllSS mental illness as a mitigating circumstance. While not exonerating the accused, it may affect the sen­tence. Finally, as much as possible, avoid using theories of behavior to rationalize criminal activity or buttress clinical opinions.
7-3. Submission of the Report
a.. Abridged Report. The Sanity Board releases
1M 8-240
only the final conclusions to the trial counsel. The order requesting the Sanity Board may also direct this same report be sent to the officer ordering the evaluation, the accused’s commanding officer, the UCMJ, Article 32 investigating officer, the conven· ing authority, and, after referral, to the military judge.
b.
The Full Report. Unless otherwise authorized in the order, the full report may be released only to other medical personnel for medical purposes, the defense counsel, and upon request, the accu­sed’s commanding officer.

c.
Unauthorized Disclosure. Disclosure to the trial counsel of any statement made by the ac­cused to the Board, or any evidence derived from that statement to the trial counsel, is prohibited. Releasing the report to inappropriate personnel, even if done inadvertently, can seriously compro­mise the military justice system’s ability to justly and effectively resolve the accused’s case.

TM 8-240

CHAPTER 8 EXPERT TESTIMONY
8-1. Introduction lawyer should, of course, be clarified before the
a, The opportunity to testify is usually greeted with trepidation by the clinician. The adversarial nature of court proceedings is quite different from the clinician’s usual collegial surroundings. Rarely is the clinician’s judgment challenged as it may be in the courtroom. In a public forum, the clinician explains hislher reasoning and discloses the means by which an opinion was reached. Such exposure is not comfortable. It is important for the expert to understand hislher role in the courtroom. This knowledge, along with certain strategies, will pre­pare the expert for testifying.
b. There are various types of witnesses, all of whom give evidence under oath. The expert wit­ness is a special category. Because the expert possesses knowledge not normally held by the average person, the expert may be qualified to so testify. In the purest sense, the expert is invited into the courtroom to educate the trier of fact. As such, the expert is not bound to comment only on facts directly observed. The expert is allowed to testify regarding an opinion. This opinion is based on professional knowledge and experience, in light of information gathered both directly and indi­rectly about the accused.
8-2. Courtroom Procedure

The usual method of eliciting testimony is by question and answer. A strict procedure is fol­lowed. The lawyer for the party calling the witness asks the first questions. This procedure is called direct examination. Cross·examination fonows and allows the opposing attorney an opportunity to ask questions. The military judge ensures the process progresses smoothly and fairly. In addition, any disputes regarding admissibility of certain aspects of the expert’s testimony are resolved by the military judge. A court reporter will take a verba· tim account of the expert testimony. When not testifying, the expert witness mayor may not, at the discretion of the military judge, be allowed to sit in the audience. Attorneys often desire the expert to be present to comment on facts or opinions offered by the opposing case. This ex­pands the role of the expert witness to that of an on·site consultant. Such an expectation by the actual trial.
8-3. The Mechanics of Expert Testi­mony
u. Pretrzol Preparation.

0) The overall effectiveness of the expert’s testimony is directly proportional to the degree of preparation. It is the attorney’s responsibility to ensure that his or her witness is prepared. Aside from the thorough forensic evaluation itself, a pretrial conference with the attorney is essential. This meeting should clarify several issues such a,­
(0) The exact content of direct. testimony.

(b)
The potential cross·examination ques­tions and likely responses.

(c)
Any special requirements such as the attorney’s request that the expert be present in the courtroom.

(2)
The clinician, as initially stated, must be thoroughly familiar with the case. The expert is better prepared if he or she can testify entirely from memory. However, \vhenever there exists psychological test data from a wide array of instrumentation, a written report of findings should be constructed. This is advised even if it potentiates opposing counsel’s access to the data.

(3)
It is very useful to rehearse the questions and answers for the direct testimony. The initial part of the direct testimony involves a procedure known as “qualifying the expert.” Before the

expert can testify, the clinician must be certified by the military judge as particularly knowledge­able in the subject area. This generally involves questioning the proposed expert about professional training, a complete investigation of his or her experience, and may include questions related to certification, research and publications. For clini· cians, this public display of accomplishments may be embarrassing but, in the legal system, it serves to establish credibility. The clinician should prac· tice qualifying with his or her attorney. It is also advisable to have on hand a current, updated curriculum vitae which, during the qualification phase of the courtroom proceedings, becomes an exhibit.
1M 8-240
(4) Prior to trial, the expert should be reason­

bly available for interview by the opposing coun­sel. The expert should answer questions truthfully and frankly, keeping in mind the MRE 302 privi­leges and restrictions upon releasing information (ReM 706) discussed earlier.
(5) The proper uniform to wear when testify­ing varies and should be clarified in pretrial meetings. The clinicjan can discuss the possibility of bringing notes when testifying. In general, however, the expert presents more forcefully if not fumbling around looking for notes.
b. Presenting Effective Testimony_
(1) The most effective expert witness is thor­oughly familiar with the material and then presents it to the jury clearly, The expert must keep in mind the role of an educator. The exten· sive use of jargon will cause confusion. The clini­cian should reduce opinions to plain language. Substitute “mood” or “emotions” for the term “affect,” for example. Words like “psychosis” need to be defined. Complicated theories of human behavior should be avoided. An important point to remember is that once under oath, every effort should be made to be non-partisan. There is a ‘”>atural tendency to become emotionally invested
a long, difficult case. To portray this, however, .6 to erode credibility. In the final analysis, the clinician is rendering only an opinion. The trier of fact determines the verdict. Even if the clinician answers a question that would hurt counsel’s case, this must be done. In the course of testifying, the expert may be interrupted by an objection of opposing counsel. The witness should remain si· lent until the military judge rules on the objection. Also, the expert witness cannot be limited to simple yes or no answers unless such an answer is sufficient to respond to the question. If a more thorough answer would enlighten the court, the expert witness can request to fully explain the answer.
(2) Another important aspect of effective pre­sentation is to maintain good eye contact with the jury. Once a question has been asked by counsel, the expert witness should provide the answer to the jury. The witness should never joke, argue, or be afraid to indicate a lack of knowledge. Any written materials counsel refers to, or directs questions from, should be requested for review. In addition, texts and journals should not be cited by the expert witness because it is the opinion of the
‘pert concerning the specific case that the court
mts to hear. The expert is not a conduit of written science. In addition, the door is opened for a cross·examination on the merits of the literature cited. If the expert does not understand a question,
8-2
a simple request for clarification is in order. At the conclusion of testimony, unless arranged differ­ently, the expert witness should immediately leave the courtroom. It is proper for the clinician to request to be permanently excused by the military judge where there are other pressing duties and neither counsel has initiated such a request. A normal feeling after testifying is the sense that the testimony was incomplete. None the less, an objective, disinterested and impartial forensic eval­uation and an honest, dispassionate, complete, and clear presentation will be sufficient.
c. Cross-Examination.
0) A good cross-examination will explore in depth the clinician’s thoroughness. The expert witness should remember that credibility as a witness is being measured by total demeanor, not just intellectual capacity. Emotional displays such as anger, arguments, joking, and arrogance detract from the witness’ credibility. Alternately, compas­sion, concern, and appropriate indignation may enhance credibHity. The attorney is obligated to make searching inquiries into the methods and techniques employed by the clinician. It is the witness’ obligation to make this information un­derstandable to the court. It is wise to consider the attorney an expert at his or her craft. The attor· ney is in control in the courtroom. Much of the frustration clinicians feel results from their dimin­ished control.
(2) Certain techniques are useful in helping the witness to testify effectively. First and fore­most, the witness is an expert in his clinical field. The clinician has undergone years of training and clinical experience. The attorney who attempts to challenge the expert in this area has entered the expert’s domain. Usually then, this area is ceded to the witness. This leaves attempts to impeach the credibility of the expert as the dominant tactic. A typical question is, “How many times have you testified for the prosecution as opposed to the defense {or vice versa)?” This attempt is to imply that the expert is a “hired gun” for one side. It might also serve to show inexperience. One can usually preempt such inquiries by discussing the issues on direct examination. Generally, the expert should not quote or seek authority from the medi· cal literature. Instead, all opinions should be buttressed by the expert’s training, experience, and data generated from the specific case. The exception to the rule is the Diagnostic and Statisti­cal Manual. This is the standard authority of psychiatric nomenclature. A tactic of rapid fire questions is best countered with a pause, and then a thoughtful response. The witness can also re­quest clarification or repetition of questions. The
expert must never exaggerate positions, sometimes a consequence of a pushing, zealous cross· examination. The expert can indicate limits of knowledge, a situation that does not display igno· rance, but rather honesty. Conversely, a preten· tious witness may be challenged in a number of areas and be led to cite books or journals, without adequate familiarity with them. No one is ac­quainted with every written reference. The cross, examining attorney typically asks narrowly fo· cused questions. In addition, the attorney may ask leading questions. Remember, this is not an aim­less interrogatory but is intended to lead in a
certain direction,
(3)
The expert can analogize cross·examina· tion to a chess game; responses must always be planned one or two moves ahead. Self·contradic· tion is a most effective means of impeaching credibility. The good attorney preparing for cross­examination takes good notes during direct exami· nation. Weakness will be exploited in cross· examination. Approach such a situation with honesty and humility tempered with firmness.

d.
Hypothetical Questions. Generally, hypotheti· cal questions can only be asked of an expert witness. Hypothetical questions permit the expert to form conclusions based on a variety of alleged facts. The court determines which set of facts is true. In framing the hypothetical question, the attorney furnishes the clinician with a scenario, always on evidence presented in the case, The witness provides an expert opinion in response to questions asked about issues raised by the “hypo”

1M 8-240
thetical” scenario. ]f any facts are in dispute, each opposing attorney will adjust the hypothetical question. It is not required that an expert opinion be elicited by hypothetical questions. ]t may be used by an attorney to cause the expert to agree with part of his/her argument, which may in tUrn diminish the impact of an expert’s testimony. Hypothetical questions can also help clarify the expert witness’ testimony and indicate the as” sumptions upon which it is based.
€. Limitations of Expert Witnesses. The expert psychiatric witness is not allowed to express opin· ions of law. The expert cannot declare the accused “sane” or “insane.” The expert’s opinion must be framed in terms of the prevailing mental responsi· bility standard. Psychiatrists, non·psychiatric phy· siclans, and non-medical professionals such as psychologists and others may, depending on the jurisdictions and the issues involved, be qualified by the court as experts on human behavior. The degree of specialized training or experience in human behavior affects the weight of the testi· mony provided. The opinion is usually based on personal observation unless a hypothetical ques· tion is posed. In some cases, a narrowly defined focus of testimony does not require a personal examination of the accused. In some special cases, the clinician may be called upon to educate the court regarding certain mental health issues. For example, testimony may be sought clarifying diag· nostic terminology, theories of human behavior, and other similar issues. In such cases, the expert witness need not have performed a clinical evalua· tion or even a review of the evidence in a case.
1M 8-240

CHAPTER 9 DISPOSITION OF THE MENTAllY III ACCUSED

9-1. General
Currently, no regulation provides guidance on the disposition of cases where the mental state of the accused has resulted in dismissal of charges or actual acquittal at the conrt-martiaL Conse­quently, close cooperation between legal, medical, and administrative personnel is required to achieve a disposition which is appropriate to a given case.

9-2. Notification of Release
a. AR 40-3, paragraph 6-15, deals specifically with the reJease of mentally incompetent service members who have a history of involvement in major crimes or antisocial behavior and who are considered to have a significant potential for recur­rence of such behavior. The concern addressed is the potentially dangerous patient. Such an individ­ual, when medically stable, is reported by the Medical ActivitylMedical Center to Headquarters, Department of the Army, Office of the Surgeon General in Washington, DC. Included in the report are the following documents:
(1)
Applicable CID, MP or civilian police in­vestigations.

(2)
Investigations under the provisions of the UCMJ, Article 32(D.

(3)
SJA’s advice to the general court·martial.

(4)
Record of trial.

(5)
Sanity Board proceedings.

(6)
Medical Board proceeding, including narra­tive summary.

(7)
Indictments, complaints, other investiga· tive files, and court orders.

(8)
Proposed date, place, and basis of indivi­dual’s release from the Army MTF including identification of receiving facility.

b.
It must be noted that this regulation serves only notification purposes and offers no guidance regarding the mechanics of disposition. All docu­ments must be forwarded to HQDA no later than 72 hours prior to actual disposition.

9-3. Disposition of the Insanity Ac­quittee There are two issues involved in the disposition of the insanity acquittee: the presence or absence of current mental illness, and whether the acquiUee is dangerous as a result of conCllrrent mental illness. The acquitt.ee who remains severely men· tally ill usually receives a Medical Board, is medically retired, and transferred to a veterans’ medical facility for extended treatment. The ac· quittee who is not currently mentally ill may also be medjcally retired but may not need post-service hospitalization. This indivldual will be released as any other medical retiree. In all cases, the dis­charge planning should include a review of Fed· eral and State Government resources. Hospitals for the criminally insane in both jurisdictions can be avenues of disposition. Again, close cooperation between the medical, legal, and administrative sections is required in formulating these individu· alized dispositions.
9-4. Disposition of the Service Member Found Incompetent to Stond Trial If an accused, by virtue of mental illness, is
declared incompetent to stand trial, the proceed­ings will halt. The accused is remanded to medical authority for treatment. Once medically stabilized, the accused is returned to the court-martial. It is not common for an accused to become despondent

when charged with criminal activity. Frank sui­cidal ideation or even gestures may occur. Proper clinical intervention in concert with unit and detention facility awareness should be sufficient emotional support for the service member. In such an instance, a speedy return to court is the norm. In other cases, the mental disorder may not remit quickly. Where treatment either may not restore competency or may require months or years, the court should be so instructed. Again, protracted incompetency may require medical retirement and eventual transfer to a veterans’ medical facility. The fate of the legal charges will be determined judicially. The medical care of the accused is the first concern.
1M 8-240

CHAPTER 10 DANGEROUSNESS
mixture of both should quell immediate concerns.

10-1. Introduction
a. Introduction. Assessing the dangerous patient is an important skill, given the emphasis placed on accurate prognostication of fut.ure violence. There are a number of circumstances which re” quire thal the clinician evaluate dangerousness.
“Routine     release of a patient from inpatient psychi­atric wards, violence threatened by an inpatient, and disposition of the insanity acquittee Bre COill­man examples. An opinion about an accused’s future dangerousness may also be elicited during the pre-sentencing stage of a court-martiaL Accu­rate evaluation can also be of use in crisis man­agement where astute sensitivity to escalating behavior may forestall a serious incident.
b.
Landmark Legal DeCIsion. Medical responsi­bility for the dangerous patient was the issue in the 1974 case of Tarasoffv. Regents of the Univer­sity of Califorma, 829 P2d 553 CAL (1974). In this unfortunate incident, a student of the University of California came to the attention of the mental health clinic_ The student subsequently verbalized fantasies of injuring a girlfriend who had spurned his advances. The campus police were notified, the student denied any intent to harm his girlfriend, and the issue was dropped. Two mOl)ths later, the student killed his girlfriend. From the ensuing charge of negligence in not notifying the potential victim, subsequent litigation, and statutory action, the State of California adopted a rule requiring ” … reasonable efforts to communicate the threat to the victim or victims and to a Jaw enforcement agency.” Actuany, any act win suffice which less­ens the imminent dangerousness. The clinician can use commitment, adjust medication, seek con­sultation, notify command for active duty person­nel, or hospitalize a voluntary person. Although State law in this area remains unsettled, some cases expanding the scope of liability and other cases dismissing liability, the California rule is a good working model for the therapist.

c.
The Dangerous Military Patient. In the U.S. Army, the dangerous patient raises unique consid­erations given the worldwide deployment of troops as well as access to weapons and dangerous equip­ment, and the variety of local laws and social supports available. In general, to prevent potential violence, either containment or treatment or a

The first consideration by the clinician must be the evaluation of the mental status. The presence of a severe mental illness contributing to present instability would suggest the need for hospitaliza­tion. The lack of any mental disorder in the violent individual would argue for containment, either at the unit level or possibly at the installa­tion detention facility (IDF). The latter opinion is especially appropriate if there is a risk of the individual going AWOL or not showing up for trial, or if there is a high risk of violence. Recommendations for restriction at the unit level should be discussed with the company commander. If the IDF is considered, consultation with both the company commander and the local JAG office should occur.
d. Dangerousness in the Non-Mililary Popula­tion. The more difficult situation occurs when the dangerous patient is either a dependent or a civilian for which the avenues of containment for the active duty service member may not be avail­able. Again, however, if a mental illness is present, hospitalization is appropriate. If voluntary admission to the local MTF is refused, civil com­mitment must be considered. The military police should be involved to ensure a smooth transition from military to civilian control. They should contact local civilian authorities. The procedure will vary by jurisdiction and when in doubt, the local JAG’s office should be consulted. This is particularly difficult overseas where civilian com­mitment may be inappropriate. Close consultation with the local JAG’s office and the hospital com­mand is necessary. Strong consideration should be given to writing a standard operating procedure addr-essing this issue in advance to prevent confu­sion.
10-2. Assessing the Dangerous Patient
a. Reliability. Evaluating the potential for vio­lence requires a multifactorial analysis. No single variable has enough reliability to predict either imminent or future dangerousness. In this regard, a distinction should be made. Imminent danger. ousness, that behavior which, if not immediately modified, will probably result in an overt act of violence to self or other, is generally a more

TM 8-240
liable clinical prediction. The farther in the _LUre the forecast reaches, the less reliable predic· lion becomes.
b.
Demographics of the Dangerous Patient. The typical statistical profile of the violent individual is a non-white male less than 30 years of age who comes from a lower socioeconomic background and has a past history of violence. The best statistical correlate is a history of prior violence. Apparently, once the threshold is surpassed between controlled verbal anger and physical expression of violence, a barrier falls and promotes occurrence in the fu­ture. In addition, violence is often reinforced in the environment where control and submission in vic­tims is equated by the aggressor with a sense of power. Even so, caution should be expressed in using the past as a sole indicator as to future violence or dangerousness. To date, the use of formal psychological instruments and methods to predict violent behavior are replete with method­ological problems. Yet, there continues to develop a body of research designed to provide more useful and reliable procedures.

c.
Substance Abuse. The capacity for drugs/al· “ohol to distort cognition and judgment cannot be -nimized. The effects of both are to diminish

.ternal restraint mechanisms. If an individual is marginally compensating an aggressive drive, the effects of drugs and alcohol may result in the release of violent behavior. Expression of violence may be increased. The evaluation of dangerous· ness must include an assessment of the patient’s alcohol and drug use. Attention must be directed towards the specific effects of certain drugs, such as agitation and delusions induced by amphet­amines or cocaine. In addition, withdrawal states associated with substance abuse may increase psychological and physiological distress.
d. Mental Illness. The role of mental illness in the dangerous patient is a complex one. The individual who is paranoid, distrustful, suspicious, and defensive should be carefully evaluated. With psychosis, the content of the delusions and halluci· nations will provide some guidance in assessing dangerousness. Command hallucinations require special attention. Medical conditions contributing to mental instability such as dementia, delirium, organic personality disorder, and other organic syndromes hold the potential for reversibility in ongoing states of irritable, aggressive behavior.
e. Signs of Impending Violence. Imminent vio­
nce is often telegraphed by certain behavioral attributes. The clinician should be alert to changes in the patient’s speech, posture, motor activity, and degree of startle response. The picture of a
patient sitting on the edge of a chair, often tense and rigid, whose speech volume starts increasing is suggesting impending loss of control over ag· gressive drives. The patient who refuses to sit and paces about nervously cannot fully control his or her anxiety and may require little further provoca­tion. An easily evoked startle response is also an important clue to potential violence.
10-3. Management of the Dangerous Patient
a.
Conduct of the Evaluation. Management of the dangerous patient is an exercise in crisis intervention. Again, many variables are important in bringing the crisis to a safe resolution. The stance of the interviewer is an important first step towards stabilization. If the patient is already in a threatening posture, minimizing eye contact, low· ering one’s voice, and being firm but not confron­tational will help. There is debate concerning the position of the clinician when interviewing the dangerous patient. Some suggest that the patient be nearest the door to allow a quick egress. There are advantages for the clinician being nearest the door. Such a position allows the clinician to leave and summon assistance. A potential hostage situa­tion is also averted. Where possible, back-up should be available.

b.
Impact of Ihe Clinician’s Behavior. The over­all conduct of the clinician also will affect the crisis outcome. Obviously, no attempt should be made to disarm a dangerous patient. Similarly, the clinician should avoid the defensive reaction of becoming confrontational or argumentative with the patient. This may only increase the dangerolls patient’s anxiety.

c.
Advance Preparation. If the clinician receives advance information indicating a patient may be dangerous, a plan of action should be developed. This includes notifying other staff about the pa­tient, having restraints and appropriate medica· tions available, and even having a designated code word the clinician can telephonically transmit to alert his or her staff to intervene.

d.
Hospitalization. Once a determination is made to hospitalize the dangerous patient, an escort must be provided at all times to prevent elopement. The patient will often begin bargaining at this point, requesting to leave to go home, for example, to pick up a few things. If the patient is to be admitted, this should not be allowed. If emergency commitment is considered, the receiv­ing physician should be notified. All paperwork for emergency commitment must be carefully anno· tated to indicate the presence of imminent danger­ousness and a mental disorder.

1M 8-240

CHAPTER 11 TORT LIABILITY
physic13n “breached the duty”; that the patient

11-1. General

It is useful for the clinician who performs mental evaluations, admits patients to psychiatric facil­ities, and administers somatic treatments to un­derstand certain legal issues which are connected with medical care. Society imposes certain expecta­tions that essentially regulate types of interper­sonal contacts, such as the clinician-patient rela­tionship. These rules have evolved as a complex compromise to maximize good medical care, pri· vacy considerations, and public safety. Transgress­ing such established rules invites patient dissatis­faction at a minimum. Administrative and legal inquiry follow more serious infractions. Breaches which cause a person injury are known as torts and lead to liability, for which the aggrieved party, or pJaintiff, may seek redress. This is a continuously evolving area in the law. Only the most basic concepts are presented in this chapLer. The goal is to facilitate the clinician’s movement through this difficult and complex subject. Specific issues, detailed discussions, and current legal de­velopments fall within the purview of the local SJA’s office_
11-2. The Basics of Tort Law

a.
Definition_ A tort is a private civil wrong which can result in an award for damages. In most cases, tort law does not include either criminal or contract issues. Tort liability may be imposed for either intentional or negligent acts. For negligent acts, the military practitioner’s liability is sub­sumed by the Federal Government under the Federal Tort Claims Act (FTCA).

b.
Negligent Torts. A negligent tort is conduct (acts of omissions) where a failure to exercise that degree of care established by law to protect other persons against unreasonable risk of harm has been breached, and the other person has been injured.

(1) In bringing legal action for medical negli­gence, the plaintiff must prove, by a preponder­ance of the evidence, that the physician had a “duty” to conform to a specific “standard of care” to protect his or her patient from unreasonable risk of foreseeable harm (“foreseeable” is often more broadly interpreted than many physicians or other health care providers may realize); that the suffered “damage” or harm (that was “fore­seeable”); and that the breach of duty “proxi­mat.ely caused” the patient’s injury. The first element the plaintiff must prove is the existe11ce of a clinician-patient relationship from which flows cert.ain expectations, Or duties. “Breach” of a “duty” occurs when the practitioner does not meet the requisite standard of care. The standard of care is determined by comparing the care rendered the injured patient to care which a reasonable practitioner in good standing and in the same or similar circumstances would provide. The psychia­trist, for example, with specialized medical and human behavior expertise, will generally be heJd to a higher standard than a family physician when rendering care to a mentally ill patient. An excep­tion would be a family practitioner, for example, who holds himself or herself out as one who has spedal knowledge and skill regarding mental dis­orders and treats patients who seek his or her care
with the understanding that he or she possesses special knowledge. The family practitioner would be required to render care in this case in accord­ance with the same standard as a psychiatrist. 10 practical terms, the standard of care is attested to through expert witness testimony. In psychiatric neghgence, the plaintiff will offer expert psychiat­ric testimony claiming that the defendant did not meet the required standard of care. Based on the testimony, the judge or jury decides if the actions of the defendant were reasonable given the partic­ular circumstances_
(2) The plaintiff must prove that he suffered “damage,” what the damages are, and that the damages were proximately caused (often called “proximate causation”). “Proximate causation” is a legal mechanism for limiting liability of a defendant to certain acts or omissions rather than holding the defendant liable for all injuries “ac­tually” caused by himlher such as those which were “unforeseeable” or “unusual.” (Caveat·. Each case is decided on its own merits within the context of statutory, regulatory, and case law bearing on the issues raised in a case.) In order for an act (or omission) to have proximately caused an injury, the act must be the “cause in fact” of the injury and the injury must be the “direct result”
TM 8-240
of the act, or the result of the act and foreseeable
‘intervening forces” which are normal incidents
of, and within the increased risk caused by, the
act. “Caused in fact” generally means that, “but
for” the act, the injury would not have happened;
or, that the act was a “substantial factor” in
producing the injury. “Direct result” means that
there is an unbmken chain of events between the
negligent act and the injury, within limits. But
the clinician can also be responsible even if the
chain was broken in certain circumstances such as
medical malpractice of subsequent treaters, or
subsequent disease or accident produced by a
patient’s weakened condition, for example.
c. Intentional Torts. An intentional tort involves a volitional act along with the goal of bringing about the consequences of the act (specific intent), or a volitional act along with the substantially certain knowledge that certain consequences will result (general intent). The act invades the inter­ests of the other party illegally.
(1) In general, a person is presumed to intend the reasonably foreseeable consequences of his or her behavior. Unlike negligent torts in which actual harm or injury to the plaintiff’s person or property must be proved, damage in intentional
,rts is presumed by law. Furthermore, the person
/ho commits an intentional tort may be liable for an unintended injury which results from an act or acts which formes) the basis of the harm. For example, if A pushes Band B falis, breaking his or her leg, A will be responsible for the harm even if A did not “intend” that B break a leg. The intent of A to push B forms the basis of the tort (battery in this example). In most cases, the act need only be a “substantial factor” (not the only factor) in bringing about the harm. “Motive” is different from “intent” in that motive is what moves a person to act to achieve a result whereas intent is the selection of a particular means to bring about the result desired. For instance, Dr. A may have a “motive” to protect a suicidal patient from injury. Dr. A causes the patient to be reo strained in an isolated room, a result that Dr. A “intended” as a means of protecting the patient. Unless certain laws and factual circumstances exist, such an act violates the patient’s liberty interests (and possibly other interests) and consti­tutes the intentional tort of false imprisonment. (The latter tort does not apply to active duty members but DOES apply to retired service memo bers and their dependents as well as to dependents
, active duty personnel.)
(2) The clinician who touches, examines, or conducts a procedure upon a patient without the patient’s consent 1S subject to assault and battery charges. The only defense is an emergency (high likelihood of death or grave bodily harm) which precluded consent. In emergency cases, consent is implied through the notion that had the patient been able, he or she would surely have consented to a life or limb-saving treatment.
(3) The assessment of liability for an inten­tional tort is different from negligence. The stan­dard of care need not be debated. No expert witness testimony is needed. The potential sane· tions for some intentional torts such as battery may be criminal as well as civil. The clinician should be able to avoid liability for battery or false imprisonment by obtaining adequate informed con· sent.
11-3. Minimizing the Risk of Tort Lia­
bility
a.
Evaluation.<;. The clinician should always be diligent and careful in clinical evaluations. Thor· oughness in patient assessments, careful evalua· tion of suicide and homicide potential, and the use of appropriate diagnostic tests are critical.

b.
Maintenance of Knowledge and Skill. Medical education is an ongoing process. The clinician’s actions will be compared to the most recent, accepted developments.

c.
Good Records. The clinician should maintain good treatment records which fully document the diagnosis and treatment. The clinician is not expected to achieve perfection in care. Bad out­comes can result from the best of medical care and treatment. The best defense in this case, and all malpractice suits, is the treatment record. Without adequate substantiation of the clinician’s logic, the final judgment is suspect.

d.
Consultation. The clinician must know his or her own professional limits. This forms lhe founda· tion for appropriate consultation. Consultation for complex organic disorders or second opinions in refractory treatment cases may be necessary. Thor· ough documentation of such consultation helps rebut negligence charges.

e.
Report. The clinician must be sensitive to the climate of patient relationships. A lack of rapport obviously increases patient dissatisfaction. Any consequent problems in care enhance the prospect of legal action.

f Consent. In order to avoid baUery, informed consent should be obtained (also see para 11-4 below). Psychiatric admission and electroconvul­sive therapy both require that proper documents be completed. With respect to medications and other therapies/procedures, a peer-developed check­list defining areas requiring informed consent is helpful.
1M 8-240

11-4. Informed Consent
Q. Definition. Informed consent lS permisslOn voluntarily granted to a clinician by a competent patient (or legal substitute) to conduct an evalua­tion, procedure, treatment program, change of treatment, etc., after the patient has been mnde adequately knowledgeable of the risks, benefits, alternatives, and consequences of proposed actions, including the risks!consequences of no care at all.
b.
Competency. This requires the absence of any mental disorder of such a nature as to impair the cognitive task of weighing options and selecting one in a thoughtful, reasoned manner. That a patient chooses a treatment not in concert with the clinician’s wishes does not mean a patient is incompetent. The severely demented patient, how­ever, totally unable to integrate new information, could not render informed consent. The issue of competency in psychiatric patients is complex. Consultation with colleagues is often appropriate.

c.
Making the Patient Knowledgeable. Informed consent is a classic example of a legally imposed duty without clearly articulated guidelines for compliance, except in a few jurisdictions. A major dilemma is determining the risks to disclose to the patient. To disclose too much information, particu­larly rare complications, may unduly frighten the patient and preclude worthy treatment. Yet should the rare event occur, a claim or suits could follow alleging damage from failure to obtain informed consent. Because there are several legal standards for disclosure, the clinician should consult with the local JAG’s office for guidance regarding the rule in the jurisdiction of practice. For example, under one of the standards, the judge will decide whether a reasonable person in the plaintiff’s position would have consented given suitable communica­tion. In general, however, Jiability is assessed on the basis of whether the patient would have consented to the treatment given the knowledge of the complica!.ion. Ideally, the clinician·patient in­teraction represents an active dialogue with ex­change of information.

11-5. Federal Tor! Claims Act
a. General. Sovereign immunity precludes an individual from suing the Government for injury resulting from negligent acts or omissions of the sovereign’s agents. The FTCA waives this sover­eign immunity in certain circumstances. Since 1946, any claim resulting from the negligence of a Government employee, operating within the scope of employment, falls within the jurisdiction of the United States District Courts. The FTCA has a number of exclusions such as injuries received during military conflict. For military health care
professionals, intentional torts <Ire not covered. However, the Justice Department ,,,ill examine the case und might provide a legal defense. Theoreti­cally then, battery charges could be brought against the clinician as an individual. Circum­stances of each case can vary so much that specific guidance should be sought from the local SJA as far as liability exposure for the individual clini­cian.
b.
Landmark Legal Decision_ Feres v. United States is a 1950 United States Supreme Court decision that barred soldiers from suing the Gov­ernment or military personnel under the FTCA for injuries incident to service. The complexities arise in determining what is “incident to service.” The rationale for preventing such lawsuits pr.imarily rests on the extensive compensation package avail­able to those injured. Another consideration is the deleterious effect on military discipline should civil action be allowed against military supervi­sors.

c.
The Gonzales Act. Public Law 94-464, the so-called Gonzales Act, protects the Federal health care provider from personal liability for medical malpractice which occurs in the scope of employ­ment. Under the law, the Department of Defense health care practitioner cannot be sued as an individual for malpractice by any military health care beneficiary. The clinician’s care, however, may be the subject of a quality assurance review, administrative sanctions, or even lead to a court­martiai. The practitioner should not be luned by what appears to be blanket coverage. There are significant exemptions to this liability coverage. The clinician is not protected from intentional tort liability and may be sued personally. For example, clinicians engaging in sexual activities with a patient are not considered to be acting within the scope of employment. Military dependents, retired military, and civilians may properly pursne a malpractice claim. Finally, the FTCA does not extend to foreign assignments although the Mili­tary Claims Act provides similar protection. Be­cause this is an area of law which is in a state of flux, c1inicians should keep apprised of new devel­opments.

d.
Claims Procedure. All eligible claims are processed through the loca) JAG’s office. If a settlement cannot be reached, the claimant has 6 months, from receipt of notice from the JAG’s office of denial of the claim or of an unacceptable settlement and offer, to bring suit in Federal district court. A claimant may also file suit if no action has been taken on hislher claim within 6 months of filing.

TM 8-240
11-6. Confidentiality/Privilege
a. General. Confidential communications are pri· vate exchanges which are given with the under­standing that they will not be disclosed to third parties who are not authorized by law to have access to the communications, without permission of the original parties. Military health care in­volves confidential communications_ However, cli­nicians should be aware of current military regula­tions which authorize third party access to patient communications without specific permission of the patient. The JAG and patient administration divi­sions of MTF’s are sources of guidance. Privileged communications are confidential communications which are protected from disclosure even in legal proceedings unless an exception arises in the law. By acting as a shield to disclosure, thc privilege facilitates the free flow of information and protects relationships valued by society. Husband·wife, lawyer-client and in some jurisdictions, doctor­patient or therapist·patient enjoy such privilege. In the clinical realm, it is the patient-not the clinician-who owns or holds the privilege (which can be waived voluntarily by a competent patient).
b. Privilege in the Military. In the U. S. Army lere is no recognized doctor-patient privilege. The
,IeM, in fact, specificalIy denies the privilege. There is also no recognized psychotherapist-patient privilege. With a few exceptions then, the thera· pist can be compelled to testify regarding patient care.
c. Protected Communications. There are three areas where communications do receive some pro­tection. MRE 302 provides partial protection for an accused undergoing the forensic evaluation. State· ments made by the accused during Sanity Board proceedings are not disclosed unless: the material is released by the defense; or the issue of insanity is raised at trial, and the defense first presents the accused’s statements. Another area where all com· munication is considered privileged is when a clinician agrees to become part of the defense team. This requires the clinician be formally in· volved, usually by special order. The protection extended is actually under the attorney·client priv· ilege. One final area where a certain privilege exists is outlined in AR 600-85, the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). Recognizing the importance of confi· dentiality in this treatment area, AH 600-85 defines a limited therapist·patient privilege. No judicial action or adverse administrative action is allowed based on information derived from the clinical evaluation, after enrollment in ADAPCP. This same protection extends to emergency medi· cal care for drug and alcohol abuse, if not preceded by an apprehension. There are three exceptions: when criminal conduct occurs while under the influence of drugs or alcohol; if drug use persists after enrollment; and when non·disclosure could
negatively impact national security or the health and welfare of others.
11-7. Specific Problem Areas
a.
Involuntary Detention on Mental Wards. AR 600-20, paragraph 5-4, defines those circum­stances where the soldier is required to submit to necessary procedures, including psychiatric hospi· talization. If treatment is advisl;”!d and a soldier steadfastly refuses appropriate treatment, a Medi· cal Board is convened. If the Board concludes that a specific treatment is indicated, and the soldier persists in refusing, a report of the Medical Board is submitted to the Surgeon General. If the soldier does not accept the Surgeon General’s recommen· dation, the matter is referred to the appropriate commander who will order the treatment if deemed appropriate. Finally, administrative ac· tions or UCMJ discipline can be imposed for failure to obey an order. The reader, however, is strongly advised to remain current on the litera· ture and legislative language relevant to the issues of involuntary treatment and/or hospitaliza· tion. The whole matter is in a state of flux.

b.
Consent by Non-military Patients. AR 40-3 does not permit non-military individuals to receive medical treatment without their consent or con· sent from a person authorized to give such. Can· sent for admission to a psychiatric ward or proce· dures such as electroconvulsive therapy require that informed consent be obtained and a consent form (SF 522 (Medical Record-Request for Admin· istration of Anesthesia and for Performance of Operations and Other Procedures) or equivalent) be completed. SF 522 is available through normal publications channels. In cases where the non· military patient is dangerous, the civil commit, ment procedures of the local jurisdiction must be utilized.

TM 6-240

APPENDIX A REFERENCES
A-l. Army Regulations

AR 27-10  Military Justice
AR 40-3  Medical, Denial, and Veterinary Care
AR 40-66  Medical Record Administration
AR 40-501  Standards of Medical Fitness
AR 600-20  Army Command Policy
AR 600-85  Alcohol and Drug Abuse Prevention and Control Program
AR 635-200  Enlisted Personnel

A-2. Other Publications

Diagnostic and Statistical Manual of Mental Disorders llI-R, American Psychiatric Association, Washing­
ton, DC.
Manual for Courts-Martial, U.s., 1984, Superintendent of Documents, U.s. Government Printing Office,
Washington, DC.
Monahan, J. The Clinical PredICtion of Violent Behavior, NationaJ Institute of Mental Health, 198].
Reisner, R’., and Slobogin, C. Law and the Mental Health System, 2nd Edition, American Casebook Series,
West Publishing Co.
Sourcebook of Criminal Justice Statistics, U.S. Department of Justice, Bureau of Justice Statistics.

A-3. Forms

SF 522     (Medical Record-Request for Administration of Anesthesia and for Performance of Operations and Other Procedures)
TM 8-240

INDEX

Abbreviations ………………………………….. . Article 32 ……….. . Assault and Battery Alcohol Amnesia….. . ……… . Collateral Data ….. . Dangerousness. Effects…… . Mitigating … . Responsibility. Amnesia Definition. . . . . . . . . . . . ……………. . Evaluation. . . . . . . . . . . . . . .. . …….. . Responsibility……………………………… . Clinical Examples Competency…………………. . Drug Use…. . …….. . Malingering. . . . . . ………… . Non-Responsibility ……………… . Responsibility. . . . . . . . . . . . …………….. . Confessions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . ……… . Confidentiality …………………………… . Competency Assumed ………………. . Clinical Examples………… . Elements …… . Evaluation………………………………….. . History……. . ……………….. . To Consent ………………………. . Commitment Military. . . . ………………….. . Non-military ……………………………….. . Consent Emergency ……………………………….. . Informed …. . Non-military .. Dangerousness
rn_…………………………………………….

Demographics……………………….. .
Hospitalization. . . . . . . . . . . . . . . . . . ……. .
LegaL………………… ……… . …….. .
Management. ……………………………………. .
Military Personnel ……………………………….. .
Non-military Personnel. . . . . . . . ……………….. .
Discharges . . . . . …………………………….. .
Disposition
Incompetent Accused ………………………….. .
Insanity Acquittee …………………………… .
Notification ……………………………….. .

Paragraph Page
1-3 I-I
2-6e 2-5
11-2d2) 11-2

6-4d 6-3
6-2g 6-2
10-2b 10-2
6-2c 6-1
6-2b 6-1
6-2a,d 6-1

6-4a 6-2

6-4c 6-3

3-6e, 6-4b 3-4, 6-3

4-3 4-3

6-2( 6-2

3-6a 3-4

3-6e 3-4

3-6b 3-4

5-31 5-3
11-6 11-4

4-1a 4-1
4-3 4-3
4-lb(3) 4-1
4-2 4-1
4-1b(2) 4-1
11-4b 11-3

11-7a 11-4
11-7b 11-4

11-2d2) 11-2
11-3f, 11-4 11-2, 11-3
11-7b 11-4

10-2e 10-2
IO-2b 10-2
10-3d 10-2
1O-1b 10-1
10-3 10-2
10-Ie 10-1
1O-ld 10-1
2-6b,e 2-4,2-5

9-4 9-1

9-3 9-1

9-2a 9-1

Index-l

1M 8-240

Drugs Amnesia…. . ………… . Clinical Examples ……… . Dangerousness .. . Evaluation…. . Responsibility.. .
Federal Tort Claims Act Forseeability ……….. , Gonzales Act Hospitalization
Dangerousness ……. .
Evaluation….. .
Malingering

Impulse Disorders …….. .

Intelligence Impairment. .. Tests ..
Legal Cases Dusky v. United States .. Feres v. United States Q’Callahan u. Parker . …………….. . Relford v. Commandant .. Solorio v. United States….. Tarasaff v. Regents of the University of California . …….. .
-‘f.alingering Definition ……… . ….. . Detection … Example….. .
Malpractice……… _

Military Courts Appeliate .. Courts-Martial ………… .
Medical Tests. . . . . ….. .
Partial Mental Responsibility Clinical Example…………… . Description. . . . . . ……………… . Mitigation …………………. .
Personality Disorders Responsibility……….. . Mitigation ..
Psychosis………….. .

Psychological Testing Dangerousness. . . . ……. . Intelligence …………………… . Malingering …. Responsibi lity. Reports……. .
Reasonable Medical Certainty Reservists. . . ……. . Reports
lpinions.
Jtructure …
Submission ..
Terminology. _….. .

Index-2

Paragraph
6-4d
6-2! 10-2c
6-2e
6-2a

11-5
11-2bCI), 11-2,(1)

11-5c
10-3d 5-3j 6-11b(7Xc) 6-7a,b
6-3b
6-3c

4-lbC2J
11-5b 2-5a 2-4c 2-5a
10-1b
6-11a
6-11b
3-6a

11-2b
2-2e
2-6

5-3h
3-7e
3-7a
3-7c

6-8c
6-8d
6-10

1O-2b 6-3c,d
6-11b(7Xel
5-3i
7-21

7-2n
2-5b

7-2n
7-2a

7-3
7-1

Page
6-3
6-2
10-2
6-2
6-1

11-3
11-1, 11-2
11-3

10-2
5-3
6-6
6-3

6-2
6-2

4-1

11-3
2-3
2-3
2-3

10-1

6-5
6-5
3-3
11-1

2-1
2-4
5-3

3-4
3-4
3-4

6-4
6-4
6-5

10-2
6-2
6-6
5-3
7-2
7-2
2-3

7-2
7-1
7-3
7-1

Responsibility Clinical Examples.. Definition Mental State. Specific Defense..
Sanity Board Composition .. . Report. …….. .
Seizures ……… .

Sexual Disorders Child Abuse ….. . Evaluation…… .
Staff Judge Advocate Speedy Trjal.. Testimony
Cross·examination.
Hypothetical Questions ..
Limitations ………………………………………. .
Preparation ………. .
Process ….. .
Standard of Care..
Types

Torts Clinical Example….. . Definition ………. . Intentional ……………………………………….. . Minimizing ……………………………. . Negligence.. .
UCMJ
Authority………………………. .
History ……… .
Jurisdiction ……………………………………….. .

TM 8-240
Paragraph Page
3-6b,c,d 3-3
3-4 3-1
3-5a 3-2
5-1a 5-1

3-2a 3-1

3-2& 3-1

6-5 6-3

6-9( 6-5
6-ge 6-4
2-2( 2-1
5-3d,5-3k 5-2, 5-3

8-3c 8-2
8-3d 8-3
8-3e 8-3
8-3a,b 8-1,8-2
8-2 8-1

11-2bO) 11-1
8-1b 8-1

11-2ctl) 11-2
11-2a 11-1
11-2b 11-1
11-3 11-2
11-2b 11-1

2-2a,b 2-1
2-3 2-1
2-5 2-3

Index-3

TM 8-240
By Order of the Secretary of the Army:
)RDON R. SULLIVAN .eneral, United States Army Chief of Staff
Official:
MILTON H. HAMILTON Administrative Assistant to the Secretary of the Army
Distribution: To be distributed in accordance with DA Form 12-34-E, block 0100, requirements for TM 8-240.
* u.s. GOVERNMENT PRINTING OFFICE 1997 0 -418-292 (70775)

 

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