Welcome to the Psychofarm Podcast. This podcast is for education and entertainment. It certainly is not medical or psychiatric advice, diagnosis, or treatment. Listening does not create a doctor-patient relationship with me or Dr. Fu. If you're a patient, certainly don't change your treatment plan because of something you hear in the show. If you're a clinician, do not use this podcast as a clinical reference or substitute for your own training, judgment, thinking, and up-to-date sources.
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Good morning, Dr. Malsberg.
Good morning. How are you doing?
I'm not too bad. What are we talking about today?
Well, I think we're again revisiting the Lindsay Clancy case. Just as a quick summary, my co-host is a forensic psychiatrist who knows a lot about the law, about psychiatry, so he's kind of in a unique position to have opinions that are a little bit, or can teach us things about the Lindsay Clancy case that go above just your smart uncle's opinions.
Well, we don't have to belabor the point, but people can refer back to our first episode on this.
Yeah, and I'm a clinical psychiatrist, so I don't know as much about the law. The things that I say about the law are more of coming from a layperson. So, Dr. Fu, please feel free to correct me if I ever say anything that plausibly seems correct but is incorrect.
We also need to remember I'm not a lawyer. What my expertise is is translating medical expertise to the law. But anyway, go on.
Yeah, so we're now a week out from the case resulting in a mistrial. I'm still hearing people talk about it. I'm still hearing misconceptions. I'm still hearing people think they have hot takes with regards to questions that I think they're kind of missing the mark. So I think today we're going to be talking about some of those misconceptions, talk about misconceptions about the insanity defense, and then just some burning things that I kind of see pop up when I see at the family barbecue over Labor Day people talking about Yeah,
I'm not surprised by the public reactions or the reactions of many of our commenters. It's a very emotionally charged case. I think it was a terrible mistake to publicize or broadcast a case like this at all. I think it does more harm than good, ultimately. And what I do find interesting is that Of course, this is expected because I was purposefully vague about my personal opinions, but it seemed that it was possible for people to assume a lot about my actual opinion versus what I was trying to do, which is sort of legal, psychiatric legal education.
So today, I'm more willing to give you something closer to an actual opinion, and maybe that will be interesting to some people.
Yeah, and I think if I had to say the big thing that probably was missed is I think as you were providing, you know, in a sense, you were giving us a little bit of a lecture in terms of like the objective things that people should be considering. And those very much can differ from your personal opinions. And that actually brings me to the first thing I wanted to talk about, which is the mistake of equating legal conclusions to moral outcomes.
Right.
Yeah, I think it's, again, normal. We want the law to conform to our personal morality, but especially in a democratic country, there are so many differences in moral reasoning, belief, baseline, and output that it's an impossibility. So you have to remember that the law is both the worst and best possible outcome that we can accomplish. It's simply a set of rules that a set of people who happen to have power at a certain time agreed upon.
And of course we can't exist without it, we have to have it, or things turn into chaos. But you should not equate or confuse your moral reasoning and your moral ideas and wishes with legal conclusions. And I do think a responsible forensic expert working in a case, they are giving an opinion based on the legal conclusion. And they are also using the legal rules of whatever jurisdiction they're in.
And in the Lindsay Clancy case, that's Massachusetts. And today I'm willing to say that I think Massachusetts probably has the worst not guilty by reason of insanity rule set that I've ever seen. And it just doesn't make any sense. It's a terrible rule set.
Yeah, so before we jump into that, I guess to expand a little bit more on the difference between the legal and morality of a situation, I was watching a Netflix documentary and I was watching it with one of my friends who was like, that guy should be locked up. And what the guy did, I thought he was a disgusting human being who did something absolutely awful. But it's not illegal.
And I think a lot of times in these cases, we confuse that the laws are set up in a way to not, it's not supposed to just say if they're good or bad, or if they're right or wrong, or they're laws set up, something that's legally appropriate. It's a statutory test that's applied to evidence. And a moral one is a philosophical or ethical judgment about A whole host of things, blame, agency, intention, capacity, in this case, the effects of mental illness.
And they're two very, very different things.
Yeah. In one sense, the moral starts from the individual, perhaps is derived from the universal, but grows into the effective practical output, universal, in society, whereas the legal derives from the general, the consensus of many, and then has to be applied to the individual case. And because of that, it is often, in some sense, morally inappropriate to the individual case, but it would be universally Morally wrong to try to change the rules or the outcomes for a particular case.
There's a concept, I think, in constitutional law maybe, or is it criminal law, a writ of attendir or something. I'm almost certainly mispronouncing this, but it was something that the framers of the Constitution was aware of and made impossible legally, or they tried to. The idea that some specific law or regulation would be put forward to target a specific person, which was easily done by aristocrats and kings of the past, and they didn't want that to be possible.
They wanted the system to be fair across the board as much as possible.
Yeah, and what this all boils down to is you have to look at the laws of a particular place to determine whether someone's guilty or innocent. It's actually kind of funny, but the words guilty or innocent, given the Massachusetts law, I actually think that Lindsay was probably innocent. But that's actually totally different about whether I think she was guilty or innocent of the crime, of all these other things.
But the question of guilty or innocent is referring to a particular question, not guilty or innocent in the sense of were they bad or were they good?
Yeah, which is why it's better to just add the word legally in front of all these words. Were they legally innocent? Were they legally guilty? Yeah. I mean, this is the same kind of problem that we run into when we think about a variety of movements that use the word innocence or guilt in its name. But anyway, I think that's enough about that.
Talk to us about the Massachusetts, why you think the Massachusetts laws are very silly.
Yeah, yeah. I wanted to talk a little bit about why it's so stupid.
Okay.
Number one. If you look at the general population, it is only a very tiny amount of people who have psychosis, a severe bipolar disorder, or a mental illness at all of that caliber, okay? So when you have a undifferentiated case, your assumption should be that they are sane. However, I think it is the only jurisdiction that Requires the prosecution to prove a negative, to prove the absence of mental illness and insanity, and to prove it beyond a reasonable doubt.
That is a crazy standard. Most standards do preponderance of evidence. There are some that do clear and convincing evidence. In traditional thinking, preponderance of evidence is about more likely than not, more than 50%. Clear and convincing somewhere more around the 75 mark, but beyond a reasonable doubt. That is a crazy hurdle to clear. Not only do they create that crazy hurdle, which would not be unreasonable for whether or not someone did a criminal act, because that's standard for prosecution, But what's crazy is that they want to apply it to a negative.
You have to prove a negative. Doesn't make sense. Okay. Secondly, what else doesn't make sense about the Massachusetts statute? Let's start with their first prong. They want the prosecution to prove that a defendant either knew that it was legally wrong or that it was morally wrong. They want them to prove one or the other. That doesn't make any sense. That's completely backwards. In most places, you're supposed to, as the defendant, prove either one that you didn't understand legal or that you didn't understand moral wrongfulness, right?
Because otherwise it's illogical. Because if you didn't understand the legal wrongfulness, You're never going to understand the moral wrongfulness. It's very rare that you would have that because it's much harder to be so impaired that you didn't understand that it was even illegal. And usually if you didn't understand it was illegal, then you didn't understand it was wrong. So why did they write it that way? I don't know.
They kind of reversed the standard order.
Which state has the rules that you think are the most morally correct?
Oh, wow. Oh, my God. I'm sorry. Sorry. We can apologize for that, but we shouldn't talk about which one is most morally correct. That goes on so many other questions that we'll probably cover at least a little bit today. Okay, but there are better standards. Let's just say that. And then the prosecution can't just prove one of those two. The prosecution then has to prove that a person was able to conform their conduct to the law, which I've said before, there's no uniform, readily acceptable medical way of determining that.
It's so subjective. And then, finally, there's the Beyond the Reasonable Doubt hurdle. So it's a crazy standard. I think the most standard standard is that, first of all, the defendant has the burden to prove that they were insane, and that the defendant has to prove it that it was more likely than not, and that the Test is the traditional cognitive test, that it's about not understanding what you were doing, nature and quality, or not understanding that it was wrong.
Now, whether or not you want to do legally wrong only or morally wrong as well, that's up to the state. But if you do moral wrongfulness, that's more permissive. That's going to let more people plead insanity. If you do legal wrongfulness, it's going to be a very small minority.
It's and to your point earlier, it's really unfortunate that this case is so public and everyone is talking about it because it's so complex and the nuances are such that people can't understand these complexities and instead. The takeaways that people have from this case, it's almost like a – I think it's like a Rorschach in terms of like you see from the case what it is that you want to see.
So people are walking away being like, if she was innocent, that means that we all can get away with mental illness. We can excuse everything. Or if she's guilty, then that means that women can't – women are ignored and not getting there. It just really becomes a Rorschach of your own personal problem.
Yes, it's a ready vessel for our projections, unfortunately, and that's definitely what's happening. But I do think, I'm sorry to be a Mr. Both Sides guy, but I do think that both sides have very good points. I don't think that either side is fundamentally wrong, I just think they're taking it too far. Most of the people posting online, at least, talking about one side or another, they're taking it a bit too far, but I think we need to balance them.
So I also wanted to address this thing that I think was coming up a lot, both in professional discussions, private ones that I was privy to, and also just public discussion. I found that a lot of people were really concerned about whether Lindsay Clancy was hearing a voice or having her own thought. I think getting hung up on that detail is missing the point. It actually doesn't matter if it was a voice or not, because people with psychotic disorders can experience foreign thoughts or they can even experience their own thinking, but in a manner that is quite intrusive and different than their normal selves.
Voices are not real, right? We're presuming voices are not real hallucinations. They're still products of that person's mind. Unless you believe the schizophrenic person that these voices are genuinely being broadcast into them by external source like the FBI or the CIA, then what does it matter if it was a subjective experience of a voice or not? That doesn't matter. What matters is how and why the voice or thought is happening to the person and what kind of impairments in their decision-making, thinking, and belief system are happening at that time.
I agree. I think a lot of people falsely make equivalent whether the psychosis and whether or not she heard a voice and acted like a puppet. And that's not how we think about psychosis. And it became very much like... Why did she like did she hear a voice? I think she just made up that voice. All these things that it's like that's kind of independent of whether or not she was psychotic.
It's not like we think that she was in a normal state of mind and then she had psychosis, which was that voice and then acted on it. That's not kind of what's being presented.
Yeah. And on top of that, in genuine psychotic disorders where there is some kind of a serious impairment of their state of mind at the time of an act. It's usually quite contradictory, their reporting and their experiences, as you would expect. It's an illogical system that's at work, right? It's an impaired system. And if you try to pick apart the sequence of events in their reasoning and apply your logic to it as a non-psychotic person, you're going to cloud the field even more.
There are going to be contradictions. That's normal. There are going to be things that don't match up. That's not what you want to look at. Don't look at the internal logic. And say, that's not logical. Of course, it's not logical. It's psychosis. Compare the reported or recorded internal logic to the surrounding circumstances in the history. That was, of course, the main point that I made in the previous episode.
Yeah, there's actually another point you made that I think probably got confused. You said like, it's a fact, like no one was arguing that she was malingering. And I think that got at the heart of, to me, that was a little confusing. I think to other people it was a little confusing. I think, can you differentiate like malingering wholesale versus exaggerating symptoms versus falsely reporting symptoms? Yeah, how do you think about it?
Yeah, when I said she wasn't malingering, I basically meant The mental illness, mood disorder, with or without psychotic features, was not being malingered. That she was genuinely mentally ill. And I think most people would agree with that, even the non-experts. What the problem is, is that people think of malingering as some binary where you're either fully genuine or fully malingering. And that's the splitting aspect again, right?
That's all or nothing type thinking. There are so many varieties. Let's start with the condition itself. You can have someone with zero mental illness who presents themselves as having a mental illness. Classical malingering and mental illness, right? Then you can have someone who has a mental illness, but then malingers a different mental illness. Suddenly it's a little bit of a different shade. You can also have someone who has, let's say, schizophrenia, but They're currently not experiencing the symptoms at all because they're taking antipsychotics, but they still report that they have the symptoms.
Is that malingering? I believe in the academic definition that's still technically a type of malingering. Okay, it's malingering on top of having the illness. Next, let's talk about the step up. We have falsely reporting symptoms. Okay. You don't have to malinger an entire mental illness. You don't have to do the whole act or reporting of this entire syndrome. What if you only report some symptoms that are false?
Maybe you're genuinely depressed most of the time, but you don't really hear voices, but you report hearing voices. That's falsely reporting certain symptoms. You could falsely report your entire syndrome, or you can falsely report some parts of your syndrome. And then finally, we have simple exaggeration of symptoms or impairment. You could be somebody that has all the symptoms of that mental health syndrome, but you exaggerate it.
Maybe you say that you hear the voices all day, every day, but really you're hearing it a few times a week. Maybe you say, when the voices tell me to do this, I have to do it. But maybe you can control it about half the time. With this wide range of how reporting can differ from genuine internal experience, you can see how difficult it is to declare a uniform and clear conclusion about something.
And remember, In clinic, our outcome is simply getting the patient better. So we don't have to worry about this stuff as much. But when it comes to the law, we need to strike a balance between accurately saying what most medical professionals would agree on that is true or not, clinically speaking, and going overboard and either saying that absolutely wasn't there or that absolutely was there, right? You can really go overboard in either direction as an expert.
Yeah, it's funny that you mentioned in clinic, we don't have to make those judgments. I'm thinking of a case of a patient who, you know, the month before said she really didn't want to go to her friend's wedding. And then the next appointment, which was after their friend's, I'm changing the details, obviously. After their friend's wedding, she said, oh, I had a really bad depression come on the day before, and I was too depressed to go to the wedding.
And, you know, yes, she did have some symptoms, but it kind of gets at the, I don't know, the complexity of these things. I don't think she malingered, but I also think that unconsciously she brought upon these symptoms.
Oh yes, I'm sorry. And that really brings up an important point. There's one more category. There's the category of genuine symptoms that the subject believes in, but don't actually come from the disorder that they think. Coming from the unconscious, coming from stress, coming from motivations. Yes, this is hard to believe for people who have not worked in the field. But people can produce symptoms that are from some other part of their mind and psychology than, let's say, a major depressive disorder or schizophrenia.
It's the somatoform disorders. The most clear version of this is, of course, the non-epileptiform seizures, where people have seizure episodes, but they don't actually have epilepsy. Even a lot of medical professionals, emergency room doctors, let's say, they think that these patients are faking. These patients are not faking it. These patients are having genuine episodes, but it's not from epilepsy. We think we have theories. We think that it's from emotional problems, problems expressing emotions or from severe stress.
And if you look at fMRI studies, the brain activity is different between the people with non-epileptiform seizures and those with seizures and those who are faking seizures. So it's not the same as faking from what we can tell. But is it from epilepsy? It's not. So in the same way, your made-up patient who has a depressive disorder but then becomes too depressed to go to a wedding, is that because that person was genuinely having a worsening of their major depressive disorder?
Or was it because by being depressed at that time, unconsciously, they could avoid the suffering of going to that wedding? Who knows? It's hard to say.
Yeah. And then to add complexity, there are patients who have psychogenic seizures that are completely malingered. I've seen that also. And so these- Oh, hold on.
Those aren't psychogenic seizures then. Those are just malingering seizures. Those are just malingering seizures. We have to be very careful in our language. Correct, correct.
That's interesting. You know, the idea of, you know, the jury getting up there and being like guilty, but we're sorry about it. It's made me think there was one thing that I saw come up on on the comments and. I guess it's not directly connected to this, but in terms of how you thought about the case in general, you mentioned the testimony by Resnick was something that I guess you essentially deferred to to his expertise.
But people brought up, and I guess this is actually arguing against what you're saying, but people brought up that he actually contradicted himself in his testimony with regards to her mental state. And I kind of wanted to hear you talk a little bit more about, I guess, why do you still defer to him, even though there were contradictions, like he contradicted himself, and then... But yeah, I guess, how do you think about that?
I guess, did you feel like he contradicted himself?
Yeah, I'm going to need specifics on the claim of how he contradicted himself. Again, I followed this peripherally. I didn't look too closely. Secondly, the appeal to authority for Resnick is really more based on my professional knowledge of the quality of his work. I'm not going to say absolutely 100%. He's in the right and no one else can argue otherwise. That's not what I'm talking about. It's just that I know reasonably how this guy thinks based on his work and reviewing his work, and I trust it.
That's all. I think he's a very good, deep thinker, and I don't think he's lost it, as many people have said. What I think is happening is that Resnick understands that he's working under the Massachusetts statute. And he understands that if he's going to come up with an opinion to the contrary of what he's been testifying to, it has to be beyond a reasonable doubt. And I think he knows that it's not beyond a reasonable doubt, so why would he opine to that?
And I do think that's also why it was always going to be an uphill battle for this prosecution to find an expert that would be very clear about the contrary opinion. Again, because that's the rules that they're working under. Do you see from the comments what the apparent contradiction is? I can only remember one thing that people were picking on, but let's hear from you first.
One contradiction that came up was at one point they said, I think he said like she was bipolar 2. And then at another time, they referred to it as postpartum psychosis. And I was also confused because bipolar 2 definitely doesn't have psychosis. If it's psychosis, I think it automatically gets upgraded to bipolar 1. But just the contradiction between, so which diagnosis was it? If he's got differing diagnoses, did the thing happen to say what was going on?
Yeah, again, this is, to me, again, the overly concrete understanding of diagnosis and the DSM. Any DSM diagnosis simply serves to capture one slice of a patient's presentation of pathology. This is also another problem with a lot of anti-psychiatry people. They're always saying, oh, you psychiatrists are trying to put people into a box. Listen, nobody thinks that one diagnosis explains any person in total. That's not how this works.
But anyway. Number one, you can have more than one diagnosis. Not everyone is Alan Francis. Alan Francis has done some good work. He has some great points, but he is overly concrete, and I think he probably treats insufficiently sick people if he thinks that most people have no diagnosis or one diagnosis. Okay. Number two, bipolar 2 disorder technically allows you to have psychosis without upgrading the bipolar 1.
Hmm.
Yeah, you can have psychosis in the depressive or mixed episodes, I believe, only, but never in hypomania, and it's still bipolar II. It's a weird quirk. I don't think anyone would actually normally still call that bipolar II, but it's possible. Number three, what if the bipolar II disorder causes a situation that Transient, that produces psychosis. Should you upgrade that to Bipolar 1 or should you keep that as Bipolar 2?
That's not answered in the DSM. That's a clinical judgment call. For example, what if Bipolar 2 causes you to have impulsivity and indiscreet behaviors and a sense of invulnerability, and then that makes you go out and do a lot of meth, which you don't normally do, Because now you're partying. And then that meth causes a meth-induced psychosis. And then you have a psychotic episode. And then you get hospitalized.
Did the bipolar 2 episode actually cause the hospitalization? Or was it the meth use? And can you call the meth use disorder if it was a single event? You can see the limitation in using DSM diagnoses. Do not take diagnosis and use that to extrapolate to the facts. Take the facts and use that to extrapolate to a diagnosis. Finally, you could argue that the postpartum psychosis is a unique syndrome limited to onset after the pregnancy period and that it is interacting with the baseline bipolar 2 disorder and that the postpartum psychosis will eventually lift, but that the bipolar 2 will remain.
So it's a true comorbidity. I suspect that's what Resnick is getting.
Yeah, I wish you were around in residency to explain the way you kind of just worded the bipolar to meth to hospitalization was something that I think we all got lost on. And we're all like, you know, I think part of the developmental trajectory of every psychiatrist is you go through like the DSM is nonsense. It's all crap. It's useless. You throw it out. And then you're like, oh, wait, I need to talk about this stuff in a way that I can talk to other people.
Then you slowly develop a better relationship with it.
Well, I mean, not everyone gets past the DSM as crap, especially because it's a lot easier to not study the DSM than it is to study the DSM. So if you call the DSM crap and you never use it, you never study it, then you can just sit satisfied in how intellectual you are.
Yeah, and to me, just for people to understand, the way I think about it is I learn a lot about psychopathology and pathology, and then I cram it into the little boxes of the DSM. To me, that's the healthiest way to do it. Yes, I agree. We can talk about that. Let's move on. Let's talk a little bit about the important facts and common misconceptions about the insanity defense.
Because I saw in the family Labor Day barbecue, that – Misconceptions there came up a lot.
Oh, boy. Yeah. I bet there was a lot of talk. What a nice Labor Day for everybody. Okay. So things that you should probably know, both as a clinician and as a general public, about the insanity defense. Well, before we even talk about that legal aspect, let's talk about psychosis and violence. Okay. There's a lot of misinformation on both sides here. I think the common public assumes that a psychotic person is very violent.
At the same time, psychiatry and mental health advocates like to say, oh, it's extremely rare. It's not a problem at all. There's no violence. Both sides are wrong. You're going to find me saying that a lot. Both sides are wrong. Both sides are right. The thing that people always say,
the line that people always say when someone says to people with schizophrenia, are they more violent? They go, actually, they're not because people with schizophrenia are more likely to be victims of violent crime than they are to be perpetrators of violent crime. What they don't understand is that that sentence says nothing about whether or not they're more violent. It's a nice... I think they understand that.
I think they understand that. I think it's rhetoric. Okay. But yes, just because you're more likely to be a victim doesn't mean that you're also not more likely to be a perpetrator, too. Right? That doesn't make any sense. Okay. Correct. Anyway, so first of all, unfortunately, having a psychotic disorder is a risk factor for interpersonal violence. The risk is about 4 to 10 times higher than the general population.
At the same time, it is still very rare. Only about less than 5% of women with psychotic disorders, primary psychotic disorders, commit violence against others, and under a quarter of men with psychotic disorders. This is across a 35-year period of study in one study. And why is there this difference? Sorry, men are more violent than women. This is a well-established fact. Overall, we can estimate that only about 10% of everyone with schizophrenia commits any kind of interpersonal violence.
It's pretty rare. Now, why? Why is that the case? Well, Certain features of certain schizophrenia, not all schizophrenia, can increase risk of violence. Paranoia, delusions, agitation, and command auditory hallucinations or foreign controlling impulses to harm others can be seen in a minority of cases. But these are not the main risk factors for whether or not someone actually commits violence. I have plenty of people with schizophrenia who have these problems, but they really, really don't want to hurt people.
And it actually makes them upset to have these impulses and they want to control them, right? But then I've also met the defendants who go ahead and act on them. What are the main risk factors for interpersonal violence? It's substance use and what I like to generally refer to as the criminal personality.
Yeah, and I think the big takeaway here is that violence doesn't – it's not like someone has psychosis and then they get violent. The chances of them violent is the interaction of who that person is as an individual and the psychotic experiences that they're having. Now, this is a bit of a random thought that's not entirely relevant. But one thing I thought about a lot in residency is that – so there would be patients who would go – they would have a psychotic disorder.
They would go off their meds and then they would commit an act of violence. And I would question – Yeah. But the big one I would get annoyed at is individuals who go psychotic because they're not following their treatment plan and then cause they commit a crime when if they had just taken their medications as prescribed, they would have not committed their crime. Does that impact their culpability with regards to the insanity defense?
It doesn't traditionally, legally. And you could say that's a problem. And I would say you might be right. And I think there's a good argument that that's what was happening in the Lindsay Clancy case, that she wasn't following treatment instructions. And we're going to go into that later. But if we don't traditionally punish it and we don't get together as a society to make reasonable rules around it, I think it's cruel, again, to try to apply that standard to an individual case just because we have strong feelings about it.
I don't think that's right. Is there a moral responsibility to follow treatment instructions? That's a debate that we have to have. But on the side of no, there isn't a moral responsibility, I would point to the fact that maybe the most common symptom of schizophrenia is a almost neurological, if not entirely neurological, inability to have insight into yourself having a disease. The disease process of psychosis itself is Probably inherently interferes with your ability to apprehend reality.
And then the ability to apprehend the reality of one's own illness is even harder when that illness has to do with our own minds. You can see this even outside of the psychotic disorders. So to expect people with psychotic disorders and severe bipolar disorders to have self-insight when their disease process is interfering with their self-insight, I think is cruel. On the other hand, if it is in fact true that these people cannot have responsible decision making as to their treatment, then as a society, as a family, as a state, whatever group you want to point to, then we have the responsibility to force them, don't we?
And they don't like that in the United States. We don't like that in the United States. We have a tradition of saying you can do whatever you want, but then we only get involved when you do something bad.
Freedom isn't free. Yeah, and a good example that I like to think about with regards to, you mentioned like for schizophrenia, there's like almost a neurological aspect to the fact that they can't understand they have an illness. The analogy I like is imagine if you went Okay, yeah, I'll. Absolutely. There's nothing that will change my mind about the sky being blue.
Yes. I think in the majority of cases, they simply learn to go along socially. And you can actually test this. You can say, so do you have schizophrenia? And they go like, yes. Why do you believe that? Well, that's what the doctors tell me. Okay, but come on, really? Do you actually have schizophrenia? Do you really believe that? And they go, oh, no, not really. You can see that happening.
And how can you blame them? No matter how many people tell you that the sky is red, you're going to look up there and the sky is blue, right? And that seems to be their perception of themselves. If they perceive themselves, they perceive themselves as doing well. So why would they take this medication with horrible side effects? I understand that.
Well, let's keep moving about other facts and misconceptions. I wanted to talk about how common is the insanity defense. I know my dad was worried that if she's found innocent, then everyone's going to say, oh, I was depressed, and that's why I committed murder. Oh, I have ADHD, and that's why I didn't pay my taxes. How common is something like this?
Well, before I get into the reality of it, I want to comment the way the Massachusetts standard is written. I'm surprised they don't have more insanity defense. I'm surprised they don't have the record number of insanity defense acquittals in history and the nation. It is a insane insanity defense statute. Okay. But across the board, historically, the insanity defense is very rare. I believe that studies can be pretty limited, as you can expect, because a lot of cases are settled before trial.
A lot of cases have data that aren't going to be publicly accessible. But the estimate is that only about 1% of felony cases raised in Sanity 8 defense at all. And that shouldn't surprise you. Because of the long commitment times and the long hearing times required, most people would rather take a deal and get out sooner than have an indefinite stay in the state hospital, potentially indefinite stay.
Even among the people who raised insanity defense, it seems that it's a maximum of about a third and probably closer to about a quarter of them that are actually found insane successfully. So I believe there's another study also showing that it's raised only in one in 11,000 arrests in New York and one in 27,000 arrests in California. So it's extremely, extremely rare. But it does happen. And it can happen in cases that really rouses the moral feelings of the ordinary person.
Now, if someone is found not guilty by reason of insanity, does that mean that they're forever going to be in the psychiatric hospital? Does that mean they might get released in a month when they're no longer undergoing their postpartum psychosis? What does it actually mean to be, what does it take to be released? Yeah.
Now usually, most states to my knowledge, they require your mental illness to be in total remission. And they require you to be basically fully medication adherent and treatment adherent. And finally, they need you to have a lack of dangerousness. Okay, so that does mean that release is eventually possible. But it also means that any defendant, well, I suppose at this point, anyone who is committed, who has any weakness on those, can easily be kept in I believe, despite what a lot of people like to say, the majority do get eventually released, even if they are being monitored, or they're released into a lower severity setting or treatment setting rather than a state hospital.
However, the really low insight or high dangerousness people, they can basically stay a lifetime. And often they will stay longer than you would see them staying in a prison for the same charge. You have to remember that actually lifetime commitment is not necessarily the standard outcome. When it comes to even premeditated murder, right? You'd have to be found sentenced to life without parole. And that's not really the case.
And we already in the United States compared to the rest of the Western world have been extremely long commitment time sentencing for murder compared to places like Norway. You might think Norway is crazy. You might think Norway is progressive. But the fact is we're already Kind of a middle ground, I think, compared to the West and the East.
Well, I guess kind of going back to what I was saying earlier, I mean, I guess for a case like this, she kind of already seems like she's in remission of symptoms. So, I mean, I think release would be probable. What I was saying earlier is, you know, I could think of what we often see in psychosis. Let's say someone has intermittent psychosis or intermittently takes their medications.
Often what I'll see is the same problems or delusions will pop up. You know, someone who... I'll change the details of a case. A patient who, when she was offered medications, would stalk someone, thought that this person was madly in love. This person was her husband. When she was on medications, all that went away. But over the years that we did treatment, the four times she went off medications, it always went right back to this person's my husband, Denise.
So I guess there's a fear for something that's an illness, like a psychotic illness, that, well, what happens if that person's released? The issue is that it's episodic. Like, know right now that Lindsay's not having thoughts of harming other people, but, you know, what if she stops her medications? She, again, doesn't take, you know, goes through things that she gets in that same mental state. What's preventing her from kind of revisiting that same place?
Well, that's the thing. We're reactive. We're not proactive. And the fact is, people can go into remission and then they can come back with symptoms. And a lot of, I believe, a lot of insanity equities who are released, they do get reinstitutionalized when they show signs or commit a new act. It's not a perfect system, but if you're getting all up in arms about this, I got to tell you, if you knew how they treat the dangerousness of your standard criminal personality person and how often they're being released despite their long rap sheet of aggressive crimes, I think you would worry a lot less about what happens to Lindy Clancy.
That's all I'm going to say about that. Now, you also bring up a good point. Massachusetts. For their standard of release after being found not guilty by reason and sanity, it is again insanely loose. In order to keep someone in the hospital, Essentially, the state has to prove beyond a reasonable doubt that they're still dangerous. It's still beyond a reasonable doubt standard. They keep doing that. I don't know why they keep doing that.
I don't know why they have this approach, but they have it. So, yes, it seems extremely likely that a defendant like Lindsey Clancy will be released within a year.
I guess that leads me to my next question. Do you think someone who is mentally ill with a non-criminal personality, should they be sent to prison? I guess, do you think they should be in a psychiatric treatment for the rest of their lives? Should they be treated for a month and released? What do you think and why?
I don't think there's a right answer to this. And I think it's very easy for my opinion on this to change. Because it's not very well tested. But personally, I think they shouldn't go to regular prison, but they also shouldn't go to something that is entirely a state hospital setting, if it's a very nice state hospital. I want all the state hospitals to be as nice as possible, but I don't think they are, so that's another problem.
I also want the prisons to be better than they are, but they're not. They're extremely terrible. So that's another problem. But in some kind of a magical utopia, I would have them go to a specialized prison, but it's in a setting that is closer to a state hospital. I think they should go to some kind of middle ground. And I also think that instead of doing this binary totally guilty or totally not guilty thing, we should really focus on mitigation.
We should perhaps say Because they're not guilty by reason of insanity, their criminal sentence should be limited to X amount instead of the standard amount. And then afterwards, they go into that treatment setting. So not just one or the other. I don't know why there's the sense of we only can do one thing or the other thing.
What this makes me think of is that like the – I guess we think of like before thinking about this, the legal system is, again, getting at what's right and what's wrong. But there's actually different values that a society can have as to the purpose of – So the question of whether someone should go to prison, whether they should go to a mental hospital, or whether they should be free isn't an objective thing.
And we're really deciding on what do we as a culture. What is our purpose of removing them from society? I guess there's three main values that are at play here. The first is retribution. We're punishing or providing payback to someone who did something bad. They need to get what they deserve for the bad action they did. The second is rehabilitation. As a society, we decide which ones we value and which ones important.
You're missing one.
You're missing one.
Oh, I'm missing one. Tell me.
There's the fourth one. Isolation. Isolation. And I think it's actually the most important one. That we incarcerate to isolate dangerous people from people who would be victimized by them. And that by isolating them, you also prevent their bad influence on the people in the community. Okay, because let's imagine the knock-on effects. They like to talk so much about how an incarcerated person is not being rehabilitated and they're getting negative effects from the other inmates that are around them.
Okay, but what about the negative effects of an irresponsible or aggressive person out the community? How many people will they traumatize? How many children will they traumatize even As a bystander because they engage in a shootout or a fight or a stabbing in the neighborhood, that child has to witness that and they develop a trauma disorder and then they can't relate to people well and they can't concentrate in school.
How much damage can be done without... Isolating certain individuals. If you look at the statistics, it's something like only 3% of the population that are repeat offenders. And in my opinion, it's important for us to identify that percent because there's so much harm that can be done if we don't isolate. Forget the treatment. Isolation, I think, is probably the best rationale for punishment. So there's just one more thing before I get off the soapbox.
I don't think most people are actually worried about the not guilty by reason of insanity option. I think it's a good option to have. I think it's a moral option for society to provide. I do think that it should be a rational one instead of an irrational one when you construct the rule set. But what you should really be worried about is what happens to people afterwards.
And far more common than not guilty by reason insanity is incompetency to stand trial. What should happen to someone who is incompetent to stand trial because of a mental illness and that they can never be restored to competency? A lot of states simply release them into the public after a certain amount of years. Is that right? If you are so mentally ill that you cannot understand The trial proceedings or assist your attorney in the trial proceedings about a violent act you did, should you be trusted to then independently manage your own mental health care?
I think it's cruel. I think it's cruel to release them without monitoring. But of course, there are many freedom advocates and anti-psychiatry types who would say, no, we should not follow them. So worry more about the outcome, what happens afterwards. Don't worry so much about the input is what I'm saying.
Well, you're starting to scare me a little bit on things I wasn't even aware that I was scared of. But I do want to pivot and actually, I guess, repeat a question that I asked earlier. But here you have maybe elaborate a little more now that you've kind of given us a little more context on things. Do you feel like Lindsay Clancy is morally responsible?
It depends on your morality. I can't give an answer to that. I think that you have to decide for yourself. And all I can say is that I know there are people, and I have run into them, even defendants, who would refuse to take the insanity defense, even if they qualify for it, because they feel morally responsible after they have I'm not saying that's the right decision.
And I've even encouraged them to think about the insanity defense, which I think would be more appropriate for them. But there are people with enough self-punitive nature that they hold themselves morally responsible. So it depends on your own rule set. And unless I get into a one-hour discussion on my moral system, I think if I give any answer, it's just going to be misinterpreted and they're going to project into it.
So I refuse to answer.
People would pay money for the Foo moral rule set.
Maybe we can paywall it, but I know no one really cares about that. I don't think we're getting enough activity in the form. The Dr.
Foo Life Coach and Ways of Living Ethics and Morality Course. Use this time to pitch your supplement.
Yeah, this is what I do think. I think that you can factually say that Lindsay Clancy was not as adherent to treatment recommendations and medication adherence as the average patient. And in fact, was probably a lot less adherent than the average patient. Now, for the group of people online who hate psychiatric medications and have had terrible experiences with psychiatry, Then it would be very understandable why she did that.
But I would say that compared to the average patient, she was definitely a lot less adherent and saw a lot more different clinicians than the average person. Now, can you blame her for that? I don't know. It really depends on how impaired she actually was. And I can't make a determination about that without having a direct evaluation, at least of the records. But as we've discussed with the insight element of schizophrenia, there are conditions that make you impulsive and flighty and have mood swings and have bad reasoning.
And I think the outcome of the case shows us that that was probably happening with her.
Yeah, and you always want to shake your fist. It's like, are you morally responsible if you don't follow treatment recommendations when the treatment recommendations aren't correct? All loaded stuff.
Yeah. Of course, a lot of people will say the treatment recommendations were correct and she was making up the symptoms. I'm not so sure about that, honestly. Oh, the final point I think I should make related to that is that there are so many people who did what Lindsay Clancy did with regard to her treatment. And worse. There are people who not only did what she did, but just actively used meth the whole time, plus a bunch of other drugs, and they never get into trouble.
I think it's a confluence of unfortunate and unpredictable events that this happened. And I do think the situation she is in now is almost enough punishment itself. I don't know if as a society we need to be punishing her any further because I don't see evidence, again, that she had some kind of a rational, narcissistic borderline. Not that those themselves are morally wrong, by the way. It's that those provide rational and volitional motivations.
Motivation for her ex, to me, looks still more likely than not to be the product of a mental illness.
Well, I guess this brings me to why don't we use the last little part of our segment to do something similar that we did last time. Last time we kind of did a little bit of psychiatric education with regards to the case. So I guess what do you think?
We're again out of time and we're going to talk about in like 10 minutes and disappoint people, I think. Exactly.
What should the clinicians have done?
Well, I think something I didn't emphasize enough was that the clinicians needed to have worked on the therapeutic alliance. And I think they needed to involve family proactively. And what do I mean when I say the therapeutic alliance? Well, please refer to the episode on the therapeutic alliance that no one listened to. Okay. But a lot of people think about therapeutic alliance and they're just thinking about nice warm feelings between the patient and the clinician, but that's not the therapeutic alliance in total.
Two out of the three major elements are agreement on the problem and the goals, and agreement on the solution to the problem or the method to get to the goals. And if you have any patient in a therapy or medication management that is not neatly going along with the treatment plan, then you need to stop giving treatment plan. You need to start zeroing in on the therapeutic alliance.
You need to ask, what do you see as the major problem that you're having? And then you need to compare that to your conceptualization of the problem. And then you need to talk openly with the patient about, do we agree on this? Why or why not? Then you need to say, this is what I'm recommending for the treatment. And this is what I think is going to happen if you do the treatment.
What do you think is going to happen with the treatment and what you think is going to help you? Compare and contrast and then have an open and careful and honest discussion about all that. Spending time on that, building the alliance is going to be so much more important than any kind of pharmacological talent that you're going to have about picking medications or doing diagnosis. And I think this is really neglected.
Yeah, I think our field has sort of devolved into this very sterile thing that a lot of people perceive their role as a psychiatric provider as just essentially the gatekeeper of a medication. The medication is doing the work. That's right. All aspects of treatment. A psychiatric treatment shouldn't be one medication and then you're done. That works for about 4% of patients. But the 96% of patients, they need something more.
It's not the thing that they're missing in their life. It's just this sterile treatment for a particular disorder.
Yeah, and I think we have like five plus episodes on this in our catalog, and they are the least listened to episodes, okay? Nobody seems to care about this, and it is the number one most important thing you can learn in psychiatry. I tell my residents all the time that's the most important thing that they can learn in psychiatry. I tell them I'm going to quiz them on it, and they still don't necessarily have it committed to their crystallized memory years later.
Next is collateral. We're a very individualistic and freedom society in the United States and that can help but it can also hurt. I think that in the situations where you have a patient who has limited insight or limited adherence to treatment, And there's higher dangerousness or higher acuity. You have to try to involve family or even friends. Someone that the patient can trust, especially someone that the patient lives with, you must actively request to communicate with these people so that it can help coordinate care and encourage people to take medications that are appropriate or not or monitor for alarm symptoms and dangerousness.
And if the patient refuses, there's nothing you can do because of the law, but you've tried. That was the standard. And you should document, of course, that you did that.
Yes. Connecting this to what you said before about Therapeutic Alliance, I supervise a lot of nurse practitioners. Often they'll say, the patient took this medication, this medication, this medication. Now they really don't like this medication. What's the next medication I should try? Big pause there. What needs What needs to happen is oftentimes bringing in family, talking about the pros and cons of medications, talking to other people, hearing what other people say.
I can think of a case that I had that the patient wasn't open to trying medications because they didn't agree with We had a really productive conversation because we were able to get an outsider perspective. And I learned a lot of things that 100% cemented I agree.
Absolutely. Other things that I think that really needed to happen for any case like this, you have to carefully assess and document. And especially you should assess and document sleep. And the response to the medications and what that might suggest and the degree to which you ruled in or ruled out the possibility of bipolarity and psychosis because bipolarity and psychosis does not neatly show itself You can't simply ask, are you having this?
And you can trust the answer. Because these are the two conditions that come with memory deficits about impairments and also lack of insight into impairments. So you can't go off of the subjective report. You have to look at the surrounding data. And when I talk about sleep documentation and assessment, it's not enough to ask, how's your sleep? Are you sleeping? How much are you sleeping? I want to know, when do you go to bed?
How long does it take before you actually fall asleep? What are you thinking, feeling, and getting in the body during that period? How difficult does it feel? Once you're asleep, how long do you sleep for before the next time you wake up? What wakes you up? What are you thinking, feeling, or having in your body then? How many nightmares are you having? Is the sleep itself restful or is it light?
Do you get early awakening? On top of that, have you had any nights, even single nights, where you slept significantly less? What happened the next day? That is the sleep history. And I don't think most people are really even half as detailed about it.
To address what you first said about bipolarity, what I want to say, actually, I do very much so worry because I already see it infusing in my brain with my appointments that we're going to go too far in the other direction. And now every patient with a whiff of any sort of bipolarity is no longer going to be. There's already a post about this.
I think there's going to be somatoform, postpartum psychosis now. Everyone's going to get lithium again and Depakote. We're going to go back to the 90s. But that's just how it works in society. We go too far and then we go too far.
So what I want to say with regards to your assessment and documentation of bipolarity, going back to the alliance, it's a shared decision. I often document, I reviewed with patients why I think that there's, for this individual patient, an increased risk of some sort of bipolarity. However, the patient understood the alternatives and still wanted to pursue the major depressive treatment with an understanding that we're going to keep a very close eye and monitor for these symptoms and was experienced.
Explicitly instructed to reach out to me if they experience XYZ symptoms. So it doesn't mean that we now no longer, whenever we get a hint of like, oh, that person in college, one time they had an all-nighter and they still had energy afterwards. So obviously, I'm not going to give them Zoloft. They're getting lithium. No, no, no, no, no, no. Don't go too far in the other direction, but work with that patient.
Go back to the therapeutic alliance. Patients can make decisions, and I always think of our job as the lanes on a bowling. When you go bowling, they have those little kid lanes. That's our job. The patient decides where they go, but within certain parameters that we provide. We're the guardrails.
Exactly.
Patient who has a clear bipolar 1 history and says, no, I want Zoloft and no other mood stabilizers, they're not going to get the option to kind of assess those risks. Yeah. Yeah.
Yeah. Your job is to give your formulation, give your treatment recommendations, and explain the benefits and the risks. And risks include not taking the medication. What will happen if you don't take this medication? If you don't spend much time or any time talking about that, You're not doing your job because your job is not to dispense medications. That is an artifact of how the post-90s DSM is written and of insurance companies who are interested in resource allocation and profit, not in the practice of medicine.
The practice of medicine is to give formulation, assessment, and treatment recommendations. That being said, I do think people should be at least thinking of mood stabilizers more often. You should at least be thinking of mood stabilizers more often. At least in my area, I think they are disgustingly under-prescribed, and just because some labs are required, and people are willing to give double antipsychotics all the time, and they're not even willing to start one mood stabilizer.
Yeah. All right, what's our next big things that clinicians should be doing?
I think they'll... Let's make it the last one. It's a little cruel. But if you want to protect yourself and your license as a clinician, you need to be considering that you should discharge patients from your care if they are not following treatment recommendations. And yes, you should communicate that to them. If a patient is repeatedly refusing to follow your treatment recommendations, that is a liability bomb.
And to be frank, if you're not able to confer with that patient, reach a therapeutic alliance and get them to go along with it, then you're not helping anyway. They need to find someone who's a better fit or find a solution that's a better fit. Or they need to come back when they're ready and assume responsibility by themselves for their fate. So if you have a patient who is repeatedly, despite counseling, warnings, psychoeducation, and efforts, not following treatment recommendations, talk to your malpractice, your attorney, and figure out within the laws of my jurisdiction, how do I safely discharge this patient from my practice?
Because frankly, keeping them hanging on is not really helping them, and it's certainly harming you.
There's one last one that I think we had talked about, which is just don't offer ineffective treatments to patients.
Yeah. I think it's actually better to terminate treatment and explain why than it is to offer and agree to ineffective treatments. If you offer or agree to an ineffective treatment and you don't warn that, then you're liable if something bad happens. If you say, well, I'm recommending lithium and Abilify, but you want to do a ketogenic diet, You're responsible because you know better as the professional. What you should be saying is there is very little evidence for the ketogenic diet and I am afraid that if you don't follow my treatment recommendations, you will become manic and you may lose your job or you may even get criminal charges or attack somebody because that has happened in the past.
If you do not take these medications, I think we will have to consider whether this is a good fit and whether you might be better served by a different clinician.
There's a lot of nuance here. I don't discourage patients from doing adjunctive treatments. If a patient wants to adjunctively do a keto diet, wonderful. It's just that, you know, as you mentioned, it's not a standalone treatment and the patient should be et cetera, et cetera, et cetera.
Yeah. I think there's a lot of murkiness and it gets blurred by the antipsychiatry movement because I'm certainly not like this outside of the schizophrenia and the bipolar disorders or the really severe major depressive disorders. When there isn't dangerousness, and when there's legitimately equal treatment that is non-medication, then I'm very freewheeling. You should decide how you want to do things. But if a patient comes to you with what's clearly a neurobiological condition that responds handily to medications, And then you say, well, why don't you try this?
It would be like going to an oncologist, having a malignant cancer and saying, well, you could try fasting. You know, a lot of people like to try fasting or like to eat an all-free diet when really the treatment is chemotherapy.
Taking shots at Steve Jobs to end it. All right.
Rest in peace, Steve Jobs. Okay, we actually have something like, I don't know, 10 more questions, loose, random questions on this case that we could discuss and answer, but we just really don't have the time. If people want a part three, maybe, but I was hoping to release our autism series.
Yeah, we have a lot of stuff coming out. The last video did much better than I expected. If this one continues to do well and people continue to want to hear us talk about it, unfortunately we have to talk about it.
All right. You're the boss. Until next time. All right. Bye. Bye.