Description of Forensic Psychiatry and the Role of Psychiatrists
Forensic psychiatry, also known as psychiatry and the law, is a subspecialty of psychiatry focusing on the interface of law and mental health.1–4 Forensic psychiatrists apply scientific and clinical expertise in a legal context, involving civil, criminal, correctional, regulatory, or legislative matters.2,4,5 Major areas of forensic psychiatry are (1) expert forensic psychiatric evaluations,2,4 (2) correctional psychiatry,5 (3) legal regulation of psychiatry,6 and (4) public policy making.7 In the forensic role, psychiatrists must strive to perform objective and honest evaluations and also respectfully balance competing duties to individual people and to society.2,4
Expert forensic evaluations are needed in civil, criminal legal, or administrative processes whenever a person's mental state or mental illness is of interest.2 Forensic psychiatrists may then be asked to perform a medical-legal evaluation (referred to as “independent” evaluation by insurance companies) to answer specific questions posed by judges, attorneys, or administrators related to a person's mental health. In such cases, forensic psychiatrists commonly furnish a written report to the retaining entity (typically judges, attorneys, administrators, insurance companies, or employers) and may also participate in depositions (in civil cases) and/or provide courtroom expert testimony (in either civil or criminal cases).1,2
It is important to know that forensic psychiatrists performing an evaluation do not have a physician-patient relationship with evaluees, do not treat them, and must inform the evaluee prior to the evaluation that the forensic examination only has limited confidentiality and for whom and for what purpose the examination is being conducted.1,2,4 Because the report is usually released to the retaining entity, its content may appear in courtroom or legal documents. Unlike physicians in physician-patient relationships, forensic psychiatrists do not serve their evaluees' interests.1,4 Forensic psychiatrist serve the truth-finding process.1,2 Their opinions may not help or may actually hurt their evaluees' interests. In the forensic expert role, forensic psychiatrists are not to perform examinations on persons they have seen for treatment. Obtaining information and treating patients under confidential, HIPAA (Health Insurance Portability and Accountability Act)-protected physician-patient circumstances with an oath to pursue patients' best interests is not compatible with the neutral, truth-seeking expert role.1
Because forensic psychiatry experts do not treat evaluees, the evaluees' medical insurance cannot be billed for these expert services as no medical treatment services are rendered.1 Forensic experts are not part of treatment teams. Therefore, to view evaluees' medical or psychiatric records, forensic experts require evaluees' signed medical releases. Forensic experts typically have set fee schedules for services that are shared upfront with retaining entities. Such fee schedules usually list hourly rates for forensic services rendered, including the interview/examination of the evaluee, record review, collateral interviews, conference discussion time with the retaining entity, report preparation time, and preparing and appearing for depositions or courtroom testimony.
Given that in civil, criminal legal, or administrative settings all involved parties have something to lose or gain and malingering is often a concern, forensic psychiatrists must spend rather significant amounts of time reviewing collateral sources of information.2,4 Such collateral sources usually include review of medical, psychiatric, school, and police records and multiple interviews of other informants, including witnesses and family members. Table 1 summarizes the differences between forensic evaluations and psychiatric treatment services.
Differences Between Forensic Evaluations and Psychiatric Treatment Services
Civil examinations are commonly performed for psychiatric disability, conservatorships and guardianships, child custody determinations, child abuse and neglect, psychiatric malpractice, fitness for job duty, psychiatric disability, testimonial capacity, or psychic damages/personal injury.4,8,9 The most common criminal forensic examination in the United States is evaluation of defendants' competency to stand trial.7 Other common criminal examinations include evaluation for competency to enter a plea, voluntariness of confessions, insanity defense (criminal responsibility), diminished capacity, sentencing considerations, and state hospital release of persons acquitted by a verdict of not guilty by reason of insanity.4,8
In jail and other prison settings, however, forensic psychiatrists provide correctional psychiatric treatment services to inmates.5 Although correctional forensic psychiatrists do have a physician-patient relationship with inmates, they also have a dual reporting line, similar to military psychiatrists, making them answerable not only to their inmate patients but also to correctional authorities.1 Forensic psychiatrists may have to discuss inmate patients' cases with correctional authorities if inmates pose a safety treat to others at correctional facilities.5 Correctional psychiatry has inherent differences from regular general psychiatry that affect treatment planning, including medication choices, facility housing, inmates' privileges and movement levels, and more.5
Additionally, forensic psychiatrists have expertise on the legal regulation of psychiatry, which encompasses the important areas of voluntary and involuntary civil commitment to an inpatient psychiatry unit, confidentiality and privilege, informed consent, right to treatment and right to refuse treatment, professional liability and psychiatric malpractice, as well as medical ethical guidelines.6 Forensic psychiatrists may apply this expertise as part of forensic evaluations or as an advisor in policy-making processes. Forensic psychiatrists are also asked to advise on legislative policy efforts by institutions, states, or the federal government and help shape policies and procedures because of their psychiatric legal expertise.7