Healer, witness, or double agent? Reexamining the ethics of forensic psychiatry.
Author | Scherer, Mathew U. |
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INTRODUCTION 248 II. THE ARMY SERGEANT PARABLE 250 III. PROPOSED APPROACHES AND THEIR DRAWBACKS 251 A. Approach One: Forensic Psychiatric Evaluations as Inherently Non-Therapeutic 251 1. Therapeutic and Non-Therapeutic Encounters: A False Dichotomy? 253 2. The Relevance of Medical Ethics in Non-Clinical Settings 256 B. Approach Two: Use of Medical Skill and Judgment 259 C. Approach Three: Psychiatric Evaluations as "Routine, Non-Invasive Procedures" 260 IV. LOOKING TO THE LAWYER-CLIENT MODEL 261 A. Drawing Inspiration from the Lawyer-Client Relationship 262 B. Applicability to Doctor-Patient Relationship 265 C. Conflicts of Interest and Advance Waivers and Warnings 267 V. CONCLUSION 270 In recent years, psychiatrists have become ever more prevalent in American courtrooms. Consequently, the issue of when the usual rules of medical ethics should apply to forensic psychiatric encounters has taken on increased importance and is a continuing topic of discussion among both legal and medical scholars. A number of approaches to the problem of forensic psychiatric ethics have been proposed, but none adequately addresses the issues that arise when a forensic encounter develops therapeutic characteristics. This article looks to the rules governing the lawyer-client relationship as a model for a new approach to forensic psychiatric ethics. This new model focuses on the expectations of the evaluee and the ways in which the evaluating psychiatrist shapes those expectations to determine how and when the rules of medical ethics should apply to forensic psychiatric encounters.
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INTRODUCTION
When a clinically trained psychiatrist takes the stand in a court of law, the psychiatrist enters territory that is strewn with ethical hazards. A testifying psychiatrist arguably serves two masters: the legal duties imposed on witnesses in court and the obligations of medical ethics that all physicians must follow. Consequently, to practice forensic psychiatry is to choose a path of "moral adventure." (2) This adventure once captured the attention of many scholars and practitioners, (3) but scholarly attention on the matter has largely tapered off since the early 1990s, despite the increasing use of psychiatrists in courtroom settings.
The most vexing ethical problem in forensic psychiatry arises when a forensic psychiatric encounter takes on therapeutic characteristics. Distinguishing "forensic" psychiatric encounters from "therapeutic" encounters is not as simple as it might seem at first blush. Even though forensic psychiatric evaluations are often conducted outside traditional clinical settings, (4) the person performing the forensic psychiatric evaluation may also be the caregiver of the person being assessed. (5) At least one study suggests that psychiatrists performing forensic evaluations often fail to inform evaluees of the limits of confidentiality with respect to forensic evaluations. (6) Moreover, the growing therapeutic jurisprudence movement consciously focuses on the interaction between mental health and the law, and courts that have adopted the tenets of therapeutic jurisprudence often play a therapeutic role in the lives of the defendants that appear before it. (7) Each of these factors blurs the line between the forensic and the therapeutic in the context of the legal system.
Moreover, even if an encounter could be described as plainly and purely forensic at the outset, an ostensibly forensic encounter may--and sometimes does--take on therapeutic characteristics. In such cases, the examining psychiatrist can become a "double agent," facing a conflict between his forensic duty to seek and report his honest opinion on the subject's mental state and his duty as a physician to act in the best interest of his patient. (8) When that occurs, the psychiatrist is faced with the inescapable question of whether and how the traditional obligations of medical ethics should apply. (9)
This article will describe and analyze three previously proposed approaches to that question and the closely related question of when and how a doctor-patient relationship can form in the context of a forensic psychiatric evaluation. It will also explain why each of these prior approaches does not sufficiently address the issues that arise when a forensic encounter takes on therapeutic characteristics. Finally, it will propose a new approach that draws inspiration from the rules governing the lawyer-client relationship.
Part II will present a parable told by Alan Stone that illustrates the dilemma that forensic psychiatrists often encounter. Part III will begin with an examination and critique of the most completely developed of the prior approaches--Paul Appelbaum's theory of forensic ethics, which draws a firm line between therapeutic and forensic encounters and holds the ethical duties governing the former to be inapplicable to the latter. The remaining sections of Part III will examine two other proposed approaches, one of which identifies the use of medical skill and/or judgment as the decisive factor, and the other of which asserts that the process of psychiatric evaluation is non-invasive and thus does not trigger the duty of obtaining the evaluee's informed consent. (10)
Part IV will suggest a new approach based on the rules governing the lawyer-client relationship. This approach provides a renewed focus on the expectations of the evaluee and the ways in which the evaluating psychiatrist shapes those expectations. The key inquiry under this approach is whether the psychiatrist's actions during the evaluation led the evaluee to reasonably believe that the evaluating psychiatrist was acting as his physician. (11) In assessing the reasonableness of the evaluee's belief, the focus should be on what, if any, psychiatric methods or technique were used that led the evaluee to form that belief. (12)
The effectiveness of pre-evaluation warnings and waivers should also be evaluated based on a standard derived from legal ethics, namely the rules governing advance waivers of conflicts of interest, which can be invalidated if the client is not likely to understand the waiver at the outset or if a material change occurs in the circumstances or expectations surrounding the relationship. (13) Thus, the lawyer-client based approach, unlike the approaches previously proposed, would be based on evaluees' perspectives and interpretations of the psychiatric encounter rather than those of psychiatrists, lawyers, or society at large.
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THE ARMY SERGEANT PARABLE
Four years before he described forensic psychiatry as a "moral adventure," Stone related a story that epitomized the ethical tension that forensic psychiatrists can face. (14) The central character in Stone's parable was an African-American supply sergeant in the United States Army who was accused of stealing large quantities of Army supplies. (15) Many of the stolen goods were of no use to the sergeant, and a civilian psychiatrist was prepared to testify at court-martial that the stealing was due to "unconscious and irresistible impulses" caused by kleptomania, which was recognized as a mental disorder in the DSM-III, the then-current version of the Diagnostic and Statistical Manual of Mental Disorders. (16) The Army, unhappy with this result, sent the sergeant to be evaluated at one of its hospitals by Stone, who was then employed as an Army psychiatrist. (17) During the psychiatric evaluations that followed, Stone repeatedly informed the sergeant that anything he revealed to Stone could be used against him at a court-martial. (18) According to Stone, the sergeant took these warnings "rather impassively." (19)
During the course of three weeks of psychiatric evaluation sessions, the sergeant revealed to Stone the story of his life. (20) Despite being a well-educated and highly intelligent man, the sergeant had trouble finding a suitable job after graduating college, and ended up enlisting in the Army. (21) The sergeant then spent most of his twenty-year Army career facing daily racial discrimination and answering to white superiors who were less educated and less intelligent than he was. (22) Stone concluded that the bitterness that the sergeant felt over this lifelong predicament caused the sergeant to develop "a sense of entitlement and reparation" that led the sergeant to steal whatever and whenever he could "in protest of the racist world that had deprived him of his hopes." (23) Unfortunately for the sergeant, this sense of entitlement did not constitute a recognized mental illness. Stone testified against the sergeant at trial, and the sergeant was convicted and stripped of his pension and "everything else of value he had accumulated in his lifetime." (24)
Given the harsh potential and eventual outcomes of his court-martial, one might think that the sergeant would have been more circumspect about the revelations that he made to Stone, particularly given Stone's repeated warnings that anything the sergeant said could be used against him. Nevertheless, the sergeant revealed much to Stone during the course of their sessions, and "the narrative that emerged from more than ten hours of interviewing could not have been more incriminating." (25) Stone later ascribed the sergeant's willingness to reveal so much of his past to Stone's use of countertransference to "demonstrate [his] capacity to empathize across the barriers of race and to find a way to communicate with this Black man." (26)
Thus, the Army psychiatrist who had established an emotional rapport across the racial divide ended up being the principal witness against the sergeant and ultimately an agent of the sergeant's conviction. Stone felt that he had betrayed the sergeant, and soon came to recognize the source of this sense of betrayal: "[A]though legally and technically the sergeant had been warned and had given informed consent... I had unwittingly used my therapeutic skills to extract from him damaging personal revelations. The...
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