It has been a good year for AAPL. The task force writing the AAPL Practice Guidelines for Forensic Psychiatric Evaluation of Defendants Raising the Insanity Defense has essentially completed its work. The task force consisted of Doctors Zonana, Giorgi-Guarnieri, Janofsky, Merideth, Mossman, Schwartz-Watts, Scott, Thompson, and Ms. Lawsky. Their report, which is comprehensive and will serve as a model for future AAPL guidelines, will be published in the JAAPL . The next guideline project will involve issues pertinent to competency to proceed.
As you may recall, an "advisory" referendum was mailed to the membership concerning a proposed resolution calling for a moratorium on the death penalty in the United States. Votes favoring adoption were 167 and votes against were 166. A majority of the votes, favoring the resolution, were cast for the following proposal:
"Resolved, that the American Academy of Psychiatry and the Law calls for a moratorium on capital punishment at least until death penalty jurisdictions implement policies and procedures that: A) Ensure that death penalty cases are administered fairly and impartially in accordance with basic due process; and B) Prevent the execution of mentally disabled persons and people who were under the age of 18 at the time of the offenses."
Abraham Halpern, M.D. at the annual meeting in Baltimore during October 1999, initiated the process leading to adoption of this resolution. The executive council voted to adopt the above resolution.
The process from initial introduction of the resolution to formal adoption by AAPL was long in duration, related primarily to AAPL's inexperience and/or reluctance relevant to adopting resolutions, position statements, filing amicus briefs, etc. Our mission continues to be primarily educational in nature, although resolutions, etc. can clearly serve an important educational role. AAPL is gradually developing clearer organizational procedures in dealing with these issues although many questions remain. For example, should AAPL have parameters about the types of positions that AAPL may adopt and the degree of consensus required? How should such position statements / resolutions be publicized? Your input into this process is welcomed.
The executive council has approved a policy relevant to approval of AAPL serving as amicus curiae . A procedure has been established that facilitates review of amicus briefs by the executive council in a timely fashion in order to make a decision whether or not we should sign on to a particular amicus brief. It is likely that AAPL will be one of the amici in a brief to be submitted in the McCarver case with the American Psychiatric Association and the American Psychological Association, urging the U.S. Supreme Court not to execute mentally retarded inmates. The previously referenced resolution assisted us in this decision.
Despite these very positive moves forward in the context of impacting policymakers dealing with forensic psychiatric issues, the response to our AMA recruitment drive remains disappointing. We had to withdraw our request to the AMA to be recognized as a voting organization within the House of Delegates because we were unable to meet the 35% threshold for voting status in the AMA HOD. We were about 80 members short.
Lack of such status will be problematic in our efforts to impact the AMA policy regarding the "forensic testimony is the practice of medicine" issue and the subsequent medical licensure requirements, and other issues important to the practice of forensic psychiatry. However, we are not precluded in the future from seeking voting status if we can meet the membership threshold. I will spare you the procedure to follow if you decide to join the AMA because it is well summarized in prior newsletters (or you can e-mail me at < email@example.com >.
The United States Senate was about to begin debate on a patients' bill of rights designed to curb managed care abuses. Senator Jim Jeffords' decision to leave the Republican Party and become an Independent made passage of a strong patients' rights bill a top priority in the Senate. Issues that will be debated, which are of specific interest to many forensic psychiatrists, will include clarifying who within the health plan is liable for medical decision-making, access to specialty care, establishment of a "substantial harm" test, and caps on non-economic damages. Both the AMA and APA, with significant input from AAPL members, are actively involved legislatively.
The U.S. Supreme Court's decision in Buckhannon Board & Care Home, Inc. et al. v . West Virginia Department of Health and Human Resources et al. held that the "catalyst theory" is not a permissible basis for the award of attorney's fees under the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. A very concise summary of the Court's opinion was provided in the dissent by Justice Ginsburg:
"The court today holds that a plaintiff whose suit prompts the precise relief she seeks does not "prevail," and hence cannot obtain an award of attorney's fees, unless she also secures a court entry memorializing her victory. The entry need not be a judgment on the merits. Nor need there be any finding of wrongdoing. A court-approved settlement will do.
The Court's insistence that there be a document filed in court - a litigated judgment or court-endorsed settlement - upsets long-prevailing Circuit precedent applicable to scores of federal fee-shifting statutes. The decision allows the defendant to escape a statutory obligation to pay counsel fees, even though the suit's merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint. Concomitantly, the Court's constricted definition of "prevailing party," and consequent rejection of the "catalyst theory," impede access to court for the least well-heeled, and shrink the incentive Congress created for the enforcement of federal law by private attorneys general."
Justice Ginsburg further opined that the "catalyst rule," as applied by the clear majority of Federal Circuits, was a key component of the fee-shifting statutes Congress adopted to advance enforcement of civil rights. The majority opinion endorsed the "American Rule," which states that parties are ordinarily required to bear their own attorney's fees, and courts follow a general practice of not awarding fees to a prevailing party absent explicit statutory authority.
The impact of this decision on class-action suits relevant to mental health services in hospitals, correctional facilities, and community mental health centers is yet to be seen. It will certainly change the dynamics involved in such litigation because defendants will be more likely to implement, at an early stage in the litigation, needed changes without concern relevant to attorney fees unless, of course, they lose the lawsuit or enter into a settlement agreement. This decision will likely reinforce the current trend of large law firms providing pro bono services in class-action litigation related to alleged constitutional violations.
Since this is my last newsletter column (for which I give thanks) as AAPL President, I would also like to thank the membership for their support and contributions to AAPL. Jacquelyn Coleman, CAE and Howard Zonana MD continue to be invaluable to our organization. Special thanks to Ezra E.H. Griffith MD (editor, JAAPL), Michael Norko MD (newsletter editor), Jeffrey Janofsky MD (liaison, APA Assembly), Renee Binder MD and Larry Faulkner MD ("general counsel"), Emily Keram MD (chair, program committee) and Michael Gendel MD (the list is too long). Space does not permit the recognition of numerous other AAPL members.
I look forward to our annual meeting in Boston, which will provide us with an opportunity to renew friendships and be further educated in our exciting field. <