Scattergood Ethics

Ethical Issues in Forensic Psychiatry: Minimzing Harm by Robert L. Sadoff, MD

From the Preface

Primum Non Nocere
The concept of primum non nocere—first, do no harm—is the basis for ethical medical practice and treatment in psychiatry. However, it cannot, and does not, apply to forensic cases where there is no doctor-patient relationship and the forensic psychiatrist may indeed cause harm to the examinee. Consider, forexample, the psychiatrist hired by the prosecution in a capital murder case. His or her assessment of the defendant may lead to a verdict of guilty and subsequent death penalty. Consider also the role of the treating psychiatrist on death row, treating a psychotic prisoner who has deteriorated and requires medication and further therapy in order to improve to the point where he or she may be competent to be executed. Consider also the plaintiff in a civil matter who has been emotionally harmed as well as physically damaged in an accident or incident at work. Consider the forensic psychiatrist working for the defense in that case who may minimize the damage or find no significant mental illness caused by the accident in question. Forensic psychiatrists work in three major areas in assessment of individuals in civil or criminal cases. First, they are involved in examining the defendant in a criminal case, or the plaintiff in a civil matter. Secondly, they are responsible for writing a report to the court or to an attorney regarding their findings, which would include not only the psychiatric examination, but also the review of extensive records and interviewing collaborative individuals, when necessary. Third, they may be required to testify at deposition and/or at trial. Harm may come to the individual examined at any or all of the three levels of work: examination, report writing, and/or testimony.

Personal Concerns
I have been practicing psychiatry for over 45 years, 25 years of which have been exclusively in forensic work. During the past many years I have seen over 12,000 individuals, either in civil or criminal cases, in a variety of different circumstances. I have worked for both defense and prosecution in over 10 000 criminal cases, and either for the defendant or the plaintiff in over 2000 civil cases. In addition, I have been asked by judges to evaluate and assess individuals in both criminal and civil matters and have worked in a number of administrative cases involving patients’ rights, competency, and other forensic psychiatric issues. I have been concerned about the manner in which individuals, families, or groups of people have been assessed and the conclusions that have been drawn depending on the needs of the attorney. I have seen testimony that has been slanted, unscientific, and based on inadequate evidence or which is contrary to the facts proven. Perhaps, adversaries of mine in specific cases may have felt the same about my assessments or my testimony. Nevertheless, it is an issue that forensic psychiatrists, attorneys, judges, and other concerned citizens need to address as the practice of forensic psychiatry has grown and proliferated over the past several decades. We now have formal accredited training programs in forensic psychiatry. We have board certification that originated with the American Board of Forensic Psychiatry and which culminated in the acceptance of forensic psychiatry as a subspecialty of psychiatry by the American Board of Psychiatry and Neurology. We have recertification of these boards in forensic psychiatry to insure high quality of professional behavior.

I have been struck with the manner in which colleagues and adversaries have approached their professional responsibilities. I have witnessed destructive and biased attitudes toward various criminal defendants and plaintiffs in civil cases that are unnecessary and harmful. I have witnessed psychiatrists becoming adversarial in order “to win” cases. I have seen professional psychiatrists testify to speculative rather than evidence-based or scientific matters. And I have also seen our colleagues testify on matters for which they have no expertise and very little experience. One psychiatrist even admitted that he did not know the legal criteria for assessing competency in a particular criminal case. Nevertheless, he speculated on the issue based on his medical diagnosis rather than applying the medical observations to the legal standards.

Changes in Psychiatry
Psychiatry is a changing and evolving specialty of medicine. When I began my career in 1960, the emphasis was on psychodynamics, and Freud was still a very prominent influence in the training programs. During the past five decades, we have seen a major shift from psychoanalytic concepts to cognitive behavioral matters in psychotherapy and to chemical imbalance in our diagnoses, and the use of various medications to treat major mental illnesses. Psychopharmacology has become a major subspecialty of psychiatry. In addition, we have developed various techniques to diagnose brain problems, including MRI, PET scan, and CAT scans. Neuropsychological testing has been shown to be effective in the diagnosis of functional organic conditions that may not be revealed on more grossly sensitive tests that pick up only structural organic damage. We have brought the newer scientific psychiatry into the courtroom when testifying for individuals revealing significant mental illness or brain damage that affected behavior in criminal or civil cases. As a result of the transitions within psychiatry, the law has made further demands on our scientific acumen by such cases as Daubert [4] and Kumho [5], demanding scientific-based testimony rather than speculative “junk science.” The judge has become the gatekeeper for various types of testimony that may be harmful to an individual as it reveals prejudice or bias rather than scientific methods.

Bias in Forensic Psychiatry
Several decades ago, one of the early leaders in forensic psychiatry, Bernard Diamond, pointed out, in his historic paper on “The Fallacy of the Impartial Expert”[6], that all of us have our biases that need to be considered in forensic cases. The major ethical prohibition in medicine has been primum non nocere—first, do no harm. Paul Appelbaum [7] and others have shown that forensic psychiatrists have a different ethical standard when conducting assessments, or even in testimony, because the nature of our work cannot guarantee that no harm is done to the individual. Rather, he has developed concepts of respecting the integrity of the evaluee (the defendant in a criminal case, or the plaintiff in a civil case), and considering beneficence or non-maleficence. Others have debated with Appelbaum on these concepts, most notably Alan Stone [8] pointing out glaring differences. This book will attempt to present the major issues that arise for forensic psychiatrists practicing in this very complex and controversial field where harm may occur.

Medicine in General
It is well known that in medicine generally, physicians attempt to treat or cure illnesses by utilizing treatments that may be harmful to patients. However, physicians are clearly aware that in many cases, in order to help their patients, they must first cause pain either through surgery, through various medications or chemotherapy, or other procedures. Even in psychiatry, we have learned that various medications given to improve psychotic conditions may cause harmful side effects such as tardive dyskinesia. We have recently found that some antidepressants may also lead to diabetic conditions. Clearly, electroshock treatment which has been helpful for severe depression has caused many patients fear, anxiety, and harm. We have seen the effects of lobotomy on various patients who were not amenable to treatment by other methods, such as psychotherapy, medication, or even electroshock treatment. All of this is performed in order to help our patients who depend upon us for scientific and accurate information and effective therapy. Benjamin Rush is considered the father of American psychiatry, and his portrait appears on the seal of the American Psychiatric Association. It should be noted that Benjamin Rush, in all his greatness as a physician and the author of one of the earliest textbooks on psychiatry in America, entitled, Medical Inquiries and Observations Upon the Diseases of the Mind [9], used leeches for bloodletting as a means of treating his patients. It is well known that some patients did not do well from such harmful treatments. We learn as we go, and sometimes we have learned that the treatment that was once thought to be helpful and successful was not scientifically based and proved to be harmful.

We have mentioned surgery as a means of helping others that may be harmful. The surgery may result in a painful after-effect, but pain is not necessarily harmful, and we must consider harmful as having long-term side effects. The short-term downside from surgery that leads to long-term cure or improvement is certainly worth the discomfort. When I speak of harm, I am talking about long-term harm that can be either avoided or minimized through careful planning and application of ethical principles outlined by the American Academy of Psychiatry and the Law [10]. However, even following these principles may not eliminate or minimize harm that is inherent in the system. I am not advocating that the harm can be totally eliminated, because I know that is impossible in the adversarial system in which forensic psychiatrists work. However, there are means by which harm may be minimized if care is taken during the assessment, the report writing, and the testimony phase of the proceedings. This book will analyze the ethical issues affecting forensic psychiatric practice, especially those promulgated by the American Academy of Psychiatry and the Law. Within those guidelines, we will look at individual bias, vulnerability of the examinee, and potential harm to the mental health professional. The book will discuss each of the procedures of the forensic expert separately with respect to minimizing harm.

The scope of forensic psychiatry will be developed from the standpoint of administrative, civil, and criminal cases. The practical issues involved in conducting forensic psychiatric assessments under various conditions will be presented as will special considerations, such as bias, minimizing harm, developing a therapeutic approach, and elaborating on various vulnerable individuals who are frequently examined in forensic cases. These include juveniles, mentally retarded, autistic,sexual assault victims, the elderly, the organically damaged, the psychotic, and the mentally disabled prisoners. The ethical issues in conducting forensic psychiatric examinations and presenting psychiatric testimony in court will also be examined and discussed. Cases illustrating the difficulties involved will punctuate the presentation. Harm may also come to the non-vulnerable defendant or plaintiff in legal cases. We need to minimize the harm that comes to these individuals as well whenever possible. Selecting the vulnerable populations does not imply that we are not concerned about the general populations as well. There are those individuals, primarily in civil cases, who are the victims of harassment, discrimination, and prejudice. These are individuals who may not have specific diagnostic entities that place them in the vulnerable categories. However, they may develop psychiatric syndromes or illnesses as a result of the alleged harassment, discrimination or bias. We also see individuals who are victims of accidents with physical and mental injuries, but who do not have a predisposing illness or psychiatric syndrome. In criminal cases, we may be asked to examine victims of crime who are not in the vulnerable categories. These are people who may have been shot during a robbery or a kidnapping and may require psychiatric assessment as a result of the injuries sustained in the criminal case. In administrative matters, we may be asked to evaluate professionals who have been accused of negligence in their work or we may need to assess competency of individuals facing administrative matters. In all of these cases, we need to be careful in our assessment, report writing, and testimony in order to minimize harm.

Any ethical issue pertaining to vulnerable populations applies to all individuals seen in forensic mental health matters. The system has inherent difficulties that may bring harm to those involved that we may be able to mitigate whenever possible. There are situations in which harm will occur to those who have transgressed, and that is a justifiable harm or punishment. However, we are more concerned about innocent people who may be victimized even more because of the legal situation in which they are involved. The very act of filing a lawsuit, with all its ramifications and consequences, affects both plaintiffs and defendants. We must do all we can to minimize harm to all populations, but the vulnerable ones listed above will be stressed since they represent individuals who are most likely to be harmed in the legal system if special care is not taken by the forensic psychiatrist to minimize such harm.

References
1. Ray, I. (1838) Treatise on the Medical Jurisprudence of Insanity. Little Brown, Boston.
2. Quen, J.M. (1974) Isaac Ray: have we learned his lessons? Read at the Butler Hospital Isaac Ray Symposium on Human Rights, The Law, and Psychiatric Treatment, May 24, 1974, Providence, Rhode Island.
3. Overholser, W. and Weihofen, H. (1946) Commitment of the mentally ill. The American Journal of Psychiatry, 102, 758–69.
4. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509U.S. 579,113S Ct. 2786, 125L.Ed.2d 469 (1993).
5. Kumho Tire Company, Ltd . v. Carmichael, 526U.S. 137,119S Ct. 1167, 143L.Ed.2d 238 (1999).
6. Diamond, B. (1959) The fallacy of the impartial expert. Archives of Criminal Psychodynamics, 3, 221–2.
7. Appelbaum, P.S. (1997) A theory of ethics for forensic psychiatry. Journal of the American Academy of Psychiatry and the Law, 25, 233–47.
8. Stone, A.A. (1984) The ethical boundaries of forensic psychiatry: a view from the ivory tower. Bulletin of the American Academy of Psychiatry and the Law, 12, 209–19.
9. Rush, B. (1812) Medical Inquiries and Observations Upon the Diseases of the Mind. Kimber and Richardson, Philadelphia.
10. American Academy of Psychiatry and The Law (2005) Ethics Guidelines for the Practice of Forensic Psychiatry. Adopted May 2005. Bloomfield, CT.