Psychiatric Annals

Contemporary Psychiatry 

Ethical Issues in Forensic Psychiatry

Robert L Sadoff, MD

Abstract

Forensic psychiatry has been established as a subspecialty of psychiatry in the past two decades. The initiation of the American Academy of Psychiatry and the Law as the outstanding organization of forensic psychiatrists in the country, the origination of the American Board of Forensic Psychiatry in the late 1970s, and finally, the development of specialized training programs and fellowships in forensic psychiatry all attest to the growth and presence of the subspecialty. In many ways, forensic psychiatrists serve as the spokespersons for psychiatry as they attain exposure, both in court and in the media, commenting on principles of psychiatry and mental health. The changes in mental health legislation and the increase in psychiatric malpractice claims have also served to enhance the subspecialty of forensic psychiatry.

Forensic psychiatry may be defined as that subspecialty of psychiatry in which individuals are examined and evaluated within a legal context, either civil or criminal. In criminal cases, the forensic psychiatrist may examine the defendant at any stage of the criminal proceedings, beginning with the investigative phase, through the accusatory phase, the pre-trial phase, the trial stage, and, finally, the post-trial proceedings. Determination of competency or criminal responsibility and recommendation for disposition are issues addressed by the forensic psychiatrist in a criminal setting.

In civil-legal cases, the forensic psychiatrist may Offer an opinion with respect to civil competency, or in domestic relations disputes in which child custody or visitation is the major issue, or in assessment of damages in personal injury and malpractice cases. In psychiatric malpractice cases, he may offer an opinion with respect to liability as well as damages. In administrative legal matters regarding commitment and patients' rights, the forensic psychiatrist is often at the forefront, providing evaluations, examinations, and forensic consultations.

How is the forensic psychiatrist regulated in practice? Certainly, he is regulated by the same ethical and legal guidelines that affect physicians and psychiatrists in general. However, because of the special nature of his work, the American Academy of Psychiatry and the Law deemed it necessary to provide ethical guidelines for the practice of forensic psychiatry. These guidelines were recently adopted by AAPL, and focus primarily on four areas: confidentiality, consent, impartiality and objectivity, and qualifications.'

CONFIDENTIALITY

With respect to confidentiality, the forensic psychiatrist is guided, as are all psychiatrists, by the statement of ethics for physicians that has been applied to psychiatrists, as follows: A physician may not reveal the confidences entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.

The forensic psychiatrist may encounter situations in which confidentiality may become difficult. The examining forensic psychiatrist must indicate to the person examined that he is not a treating doctor and that he may not be able to keep confidential any material that is divulged to him. He must indicate that there is no secrecy and the examinee must be careful about his communications, because especially in criminal cases, they may be used against him in court.

The forensic psychiatrist must also be aware that the legal proceedings are adversarial in nature, and when his records are subpoenaed by an attorney, he must take precaution and be certain that the subpoena is valid and the attorney is authorized to have the information contained in the records. Sometimes, the opposing attorney will demand a hearing before the judge prior to the psychiatrist releasing his records. Once the judge orders records released, the psychiatrist should…

Forensic psychiatry has been established as a subspecialty of psychiatry in the past two decades. The initiation of the American Academy of Psychiatry and the Law as the outstanding organization of forensic psychiatrists in the country, the origination of the American Board of Forensic Psychiatry in the late 1970s, and finally, the development of specialized training programs and fellowships in forensic psychiatry all attest to the growth and presence of the subspecialty. In many ways, forensic psychiatrists serve as the spokespersons for psychiatry as they attain exposure, both in court and in the media, commenting on principles of psychiatry and mental health. The changes in mental health legislation and the increase in psychiatric malpractice claims have also served to enhance the subspecialty of forensic psychiatry.

Forensic psychiatry may be defined as that subspecialty of psychiatry in which individuals are examined and evaluated within a legal context, either civil or criminal. In criminal cases, the forensic psychiatrist may examine the defendant at any stage of the criminal proceedings, beginning with the investigative phase, through the accusatory phase, the pre-trial phase, the trial stage, and, finally, the post-trial proceedings. Determination of competency or criminal responsibility and recommendation for disposition are issues addressed by the forensic psychiatrist in a criminal setting.

In civil-legal cases, the forensic psychiatrist may Offer an opinion with respect to civil competency, or in domestic relations disputes in which child custody or visitation is the major issue, or in assessment of damages in personal injury and malpractice cases. In psychiatric malpractice cases, he may offer an opinion with respect to liability as well as damages. In administrative legal matters regarding commitment and patients' rights, the forensic psychiatrist is often at the forefront, providing evaluations, examinations, and forensic consultations.

How is the forensic psychiatrist regulated in practice? Certainly, he is regulated by the same ethical and legal guidelines that affect physicians and psychiatrists in general. However, because of the special nature of his work, the American Academy of Psychiatry and the Law deemed it necessary to provide ethical guidelines for the practice of forensic psychiatry. These guidelines were recently adopted by AAPL, and focus primarily on four areas: confidentiality, consent, impartiality and objectivity, and qualifications.'

CONFIDENTIALITY

With respect to confidentiality, the forensic psychiatrist is guided, as are all psychiatrists, by the statement of ethics for physicians that has been applied to psychiatrists, as follows: A physician may not reveal the confidences entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.

The forensic psychiatrist may encounter situations in which confidentiality may become difficult. The examining forensic psychiatrist must indicate to the person examined that he is not a treating doctor and that he may not be able to keep confidential any material that is divulged to him. He must indicate that there is no secrecy and the examinee must be careful about his communications, because especially in criminal cases, they may be used against him in court.

The forensic psychiatrist must also be aware that the legal proceedings are adversarial in nature, and when his records are subpoenaed by an attorney, he must take precaution and be certain that the subpoena is valid and the attorney is authorized to have the information contained in the records. Sometimes, the opposing attorney will demand a hearing before the judge prior to the psychiatrist releasing his records. Once the judge orders records released, the psychiatrist should provide the information in response to the court order. Court orders are commands; subpoenas are demands.

When conducting evaluations in correctional settings, the psychiatrist must alert the individual being examined that there is a limit to confidentiality, and that he may need to report information that could be construed as leading to violent behavior, escape, or self-destructive behavior. The responsibility for the individual examined in a correctional setting still belongs to the warden or the head of the institution, and not to the psychiatrist.

In some cases, individuals will tell a psychiatrist that they have killed other people in the past. What is the duty of the psychiatrist in such cases? In other cases, defendants will indicate they are planning to harm witnesses against them. Must the psychiatrist speak out and reveal these communications? In the second instance, the psychiatrist is obliged, as in any other branch of medicine, to prevent violent behavior, and will need, under the Tarasoff Doctrine, to communicate these threats if they are believed likely to occur. In the first instance, the psychiatrist should explore with the patient his communication about killing others in the past. Sometimes, individuals brag or have fantasies about what has occurred in their lives, and may not be truthful. A helpful suggestion is to have the patient communicate these events to the authorities as part of his therapy. There is no duty to report a past crime except under special circumstances such as treason.

When treating an individual on probation, parole, or in a conditional release situation in criminal cases, the forensic psychiatrist must clarify with the patient at the outset the limitations on confidentiality. He must report attendance and may be obliged to report communications that will be damaging to the patient or to others. The psychiatrist will be able to keep most communications confidential in such settings, but there are limitations which must be clarified at the beginning, both with the patient and with the authorities responsible for the patient. Failure to clarify at the beginning could lead to very difficult ethical problems about confidentiality. Especially with the antisocial personality or the borderline personality disorder, the psychiatrist must be clear about not being seduced into hearing information that may not be shared. For example, the sociopathiç individual or borderline may tell the psychiatrist, "This is information I do not want you to tell anyone, but it will be helpful in my treatment." Under such conditions, the psychiatrist should stop the patient and announce that there are limitations on confidentiality, and he may not be able to comply with the patient's wishes.

Because the legal situation is adversarial, the forensic psychiatrist who is approached by an attorney for one side may not accept assignment by the other side in the same case. Once he has been consulted, he is likely to be kept from working for the other side because he has been privy to confidential information that would negatively affect the side that approached him initially. However, it should be pointed out that, on occasion, lawyers will list forensic psychiatrists as their experts without ever contacting them, thereby preventing them from being called by the other side. This is not fair practice and should be reported by the psychiatrist when it occurs.

INFORMED CONSENT

Perhaps the most important concept in the treatment of patients is that of informed consent. In psychiatry generally, the patient's informed consent is necessary before treatment can occur. The psychiatrist must give the patient sufficient information on which the patient can then base an intelligent and informed consent to treatment of a particular nature. The psychiatrist should tell the patient what the treatment is and what to expect from it, including side effects and positive effects. He should also tell the patient what alternative forms of treatment are available and the effects and side effects. Finally, the psychiatrist should tell the patient the effects of no treatment at all. In this way, the patient may choose what type of treatment he wishes to accept. Too often, the psychiatrist tells the patient only about the treatment he is to give, and not about the alternative forms available which may be helpful to the patient.

The psychiatrist should write in the record essentially what he told the patient and that the patient appeared to understand and accepted the treatment offered. It is not wise to write every side effect that is anticipated, since One can never get them all, and it would take excessive time away from treatment to list all side effects. However, with the use of psychotropic medication, it is important to list tardive dyskinesia as a side effect, and to discuss this effect with the patient. It is also important to follow the patient during the course of treatment, not only personally, but also with records that may be reviewed later in the event of an untoward reaction.

In forensic psychiatry, informed consent is especially important. The psychiatrist approaching an individual for an examination should give him what are sometimes loosely called "psychiatric Miranda warnings." This warning is especially important in criminal cases, when the psychiatrist is examining the defendant for the prosecution or for the court. In those cases, the psychiatrist must alert the defendant that he is a psychiatrist, and that he has been appointed by the court or retained by the prosecution to conduct the examination. The defendant should also be told that whatever he says will be written down and put into a report that will be sent to the prosecutor and/or the court, and will be used in the prosecution of his case. The defendant should also be given the option that he does not need to divulge incriminating information, and does not even need to respond to the questions posed by the psychiatrist, especially if the responses will be incriminating. In some jurisdictions, this matter is handled effectively by legislation, but in others, the defendant is mandated to speak to the prosecution-appointed psychiatrist if he intends to plead insanity.

It is not enough in informed consent issues merely to give the information to the patient. The psychiatrist should be aware that the patient understands the information as given, and can incorporate that information into a decision-making process so that his consent is truly voluntary, intelligent, and informed. This means the psychiatrist must explain, in a manner the patient can understand, the effects and side effects of treatment or the consequences of talking with the psychiatrist. It should also be pointed out that treatment is different from examination, and for the patient in a criminal setting to agree to treatment, he should be told exactly the parameters of the treatment and the limits on confidentiality, as noted above.

Finally, in criminal matters, the forensic psychiatrist should not examine a defendant for the prosecution before he has obtained effective counsel. It is deemed unethical for the psychiatrist to conduct such an examination before the defendant has been properly prepared by his attorney for the consequences of such a forensic examination.

IMPARTIALITY AND OBJECTIVITY

Perhaps the next two sections are more particular to the forensic psychiatrist than for psychiatry in general. The issue of impartiality and objectivity certainly arises in the treatment of individuals by the general psychiatrist. However, in adversarial cases within the law, the forensic psychiatrist may be obtained by one side or the other. Despite this fact, the psychiatrist must maintain as much impartiality and objectivity as possible when conducting the initial examination. He must not be swayed by the fact that the defense attorney is paying him for the examination. Similarly, his psychiatric judgment and opinion must not be influenced by the fact that he is being paid by the plaintiff in a civil case. One way of avoiding such influence is to have the payment made in advance. Some psychiatrists may fear that if their opinion does not help the attorney who is retaining them, he will not be inclined to pay them because the psychiatrist has not helped his case. If the psychiatrist is paid in advance, he has no concern about being paid and may retain his objectivity. If the lawyer does not like the psychiatrist's opinion, at least he knows it is an honest opinion, and will have to work with that. Some lawyers, of course, will continue to search for an opinion that will help their side.

Maintaining objectivity and impartiality, however, does not mean that the psychiatrist rushes to the other side if his opinion is helpful to them. He must maintain the confidentiality of the side that retains him. In criminal cases, the psychiatrist working for the defense may not be called by the prosecution if his opinion is not helpful to the defense and he is not called to testify. In civil cases, however, the discovery rule indicates that anyone having seen the plaintiff, either for the plaintiff's attorney or for the defendant's attorney, may be called to testify by the side that feels the testimony will be helpful.

Impartiality and objectivity does not preclude the psychiatrist from maintaining his opinion even under good cross-examination. Thus, the ethical forensic psychiatrist may be an advocate for his opinion, but should not become an adversary for it. in other words, the psychiatrist should present his data and his findings as Objectively as possible and maintain his stance under crossexamination. However, if crossexamination weakens his opinion, he should be impartial enough to admit that and not maintain his stance, even in the face of logical opposition.

Retainer fees for testimony are also important in maintaining objectivity. The psychiatrist may fear that if his testimony is weakened in court, he may not be paid by the side calling him to court. Thus, it is important to have been paid in advance so that cross-examination that logically and effectively weakens the testimony will be acknowledged impartially by the expert, who will not cling desperately to his original opinion for fear he will alienate his attorney and not be paid.

We have heard, too often, about the "battle of the experts," that tends to weaken the public image of psychiatry. The image can be strengthened and enhanced when the psychiatrist provides effective testimony and appears logical and credible under cross-examination. He does not maintain his stance simply because he is a psychiatrist and that is his opinion, but he maintains it because the objective data tend to support his conclusion and his opinion.

The forensic psychiatrist providing a report to the court should also maintain the type of impartiality and objectivity necessary in medicine. The report should be balanced, credible, and complete. The psychiatrist should be able to support his conclusions with reasonable data, obtained through examination, and to communicate these conclusions effectively, even to a lay jury.

In cases of domestic relations disputes, it is important for the objective and impartial forensic psychiatrist to examine all parties. When that is prohibited by law, the psychiatrist should announce, initially, that his examination was restricted to the people that he did examine. It is clear that the psychiatrist can give a better evaluation of an individual following a personal examination; however, the person may not be available, legally or practically, for such examination. For example, in cases of will contests, the testator is often deceased. In these cases, again, the psychiatrist must acknowledge the source of his evaluation and opinions.

Maintaining ethical objectivity can be enhanced when the treating psychiatrist does not act as a forensic expert. It is unwise for the treating psychiatrist to attempt to testify in court, even though lawyers and judges may believe that his testimony is the most effective because he knows the patient best. In many cases this is true, but the legal arena is a difficult one for the treating psychiatrist. There is an inherent bias on the part of the treating psychiatrist to help his patient. Therefore, he could not effectively testify against his patient and expect to resume treatment after the court setting. In another sense, the treatment situation is altered as soon as the psychiatrist enters the courtroom to take on a different role with his patient than as therapist. Finally, there is concern about economic conflict of interest when the treating psychiatrist testifies, especially in a personal injury matter, recommending further intensive and long-term treatment with him.

As in all forms of medicine and psychiatry, contingency fees are prohibited. If the psychiatrist testifies effectively, he will then obtain more money. This puts the profession of psychiatry on a very difficult plane, and in an untenable position. Another reason for obtaining retainer fees is to avoid the accusation of contingency fees. For the very reason that attorneys do accept contingency fees, and may lose the case, the psychiatrist should be paid by the plaintiffs attorney in advance.

QUALIFICATIONS

Finally, the issue of qualifications is important in forensic psychiatry. The jury is impressed by the qualifications of the expert, and the weight of testimony often goes to the experiences and the credentials of the expert witness. When forensic psychiatrists misrepresent their training or their experience, the effect on the proceeding is apparent. It is unethical and fraudulent for a psychiatrist to misrepresent himself in court.

On a final note, the American Academy of Psychiatry and the Law has decided to turn over all complaints of an ethical nature to the American Psychiatric Association, because the procedures are extensive and APA has the mechanism for handling disciplinary actions in ethical breaches.

REFERENCE

1. Ethical Guidelines for the Practice of Psychiatry as adopted by The American Academy of Psychiatry and the Law, October 1987.

10.3928/0048-5713-19880501-12

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