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American Academy of Psychiatry and the Law Ethical Guidelines for the Practice of Forensic Psychiatry

Adopted May, 1987 - Revised October, 1989

I. PREAMBLE

The American Academy of Psychiatry and the Law is dedicated to the higher standards of practice in forensic psychiatry. Recognizing the unique aspects of this practice which is at the interface of the professions of psychiatry and the law, the Academy presents these guidelines for the ethical practice of forensic psychiatry.

Commentary

Forensic Psychiatry is a subspecialty of psychiatry, a medical specialty. Membership in the American Psychiatric Association, or its equivalent, is a prerequisite for membership in the American Academy of Psychiatry and the Law. Hence, these guidelines supplement the Annotations Especially Applicable to Psychiatry of the American Psychiatric Association to the Principles if Medical Ethics of the American Medical Association.

The American Academy of Psychiatry and the Law endorses the Definition of Forensic Psychiatry adopted by the American Board of Forensic Psychiatry, Inc.:

"Forensic Psychiatry is a subspecialty of psychiatry in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, and correctional or legislative matters; forensic psychiatry should be practiced in accordance with guidelines and ethical principles enunciated by the profession of psychiatry." (Adopted May 20, 1985)

The forensic psychiatrist this subspecialty at the interface of two professions, each of which is concerned with human behavior and each of which has developed its own particular institutions, procedures, values, and vocabulary. As a consequence, the practice of forensic psychiatry entails inherent potentials for complications, conflicts, misunderstandings and abuses. In view of the these concerns, the American Academy of Psychiatry and Law provides these guidelines for the ethical practice of forensic psychiatry.

II. CONFIDENTIALITY

Respect for the individual's right of privacy and the maintenance of confidentiality are major concerns of the psychiatrist performing forensic evaluations. The psychiatrist maintains confidentiality to the extent possible given the legal context. Special attention is paid to any limitations on the usual precepts of medical confidentiality. Information or reports derived from the forensic evaluation are subject to the rules of confidentiality as apply to the evaluation and any disclosure is restricted accordingly.

Commentary

The forensic situation often presents significant problems in regard to confidentiality. The psychiatrist must be aware of and alert to those issues of privacy and confidentiality presented by the particular forensic situation. Notice should be given as to any limitations. For example, before beginning a forensic evaluation, the psychiatrist should inform the evaluee although he is a psychiatrist, he is not the evaluee's "doctor". The psychiatrist should indicate for whom he is conducting the examination and what he will do with the information obtained as a result of the examination. There is a continuing obligation to be sensitive to the fact that although a warning has been given, there may be slippage and a treatment relationship may develop in the mind of the examinee.

The psychiatrist should take precautions to assure that none of the confidential information he receives falls into the hands of unauthorized persons.

The psychiatrist should clarify with a potentially retaining attorney whether an initial screening conversation prior to a formal agreement will interdict consultation with the opposing side if the psychiatrist decides not to accept the consultation.

In a treatment situation, whether in regard to an inpatient or to an outpatient in a parole, probation, or conditional release situation, the psychiatrist should be clear about any limitations on the usual principles of confidentiality in the treatment relationship and assure that these limitations are communicated to the patient. The psychiatrist should be familiar with the institutional policies in regard to confidentiality. Where no policy exists, the psychiatrist should clarify these matters with the institutional authorities and develop working guidelines to define his role.

III. CONSENT

The informed consent of the subject of a forensic evaluation is obtained when possible. Where consent is not required, notice is given to the evaluee of the nature of the evaluation. If the evaluee is not competent to give consent, substituted consent is obtained in accordance with the laws of jurisdiction.

Commentary

Consent is one of the core values of the ethical practice of medicine and psychiatry. It reflects respect for the person, a fundamental principle in the practices of medicine, psychiatry and forensic psychiatry. Obtaining informed consent is an expression of this request.

It is important to appreciate that in particular situations, such as court ordered evaluations for competency to stand trial or involuntary commitment, consent is not required. In such a case, the psychiatrist should so inform the subject and explain that the evaluation is legally required and that if the subject refuses to participate in the evaluation, this fact will be included in any report or testimony.

With regard to any person charged with criminal acts, ethical considerations preclude forensic evaluation prior to access to, or availability of legal counsel. The only exception is an examination for the purpose of rendering emergency medical care and treatment.

Consent to treatment in a jail or prison or other criminal justice setting must be differentiated from consent to evaluation. The psychiatrists providing treatment in these settings should be familiar with the jurisdiction's rules in regard to the patient's right to refuse treatment.

IV. HONESTY AND STRIVING FOR OBJECTIVITY

The forensic psychiatrist functions as an expert within the legal process. Although he may be retained to one party to a dispute in a civil matter or the prosecution or defense in a criminal manner, he adheres to the principals of honesty and striving for objectivity. His clinical evaluation and the application of the data obtained to the legal criteria are performed in the spirit of such honesty and striving for objectivity. His opinion reflects this honesty and striving for objectivity.

Commentary

The adversarial nature of our Anglo-American legal process presents special hazards for the practicing forensic psychiatrist. Being retained by one side in a civil or criminal matter exposes the forensic psychiatrist to the potential for unintended bias and the danger of distortion of his opinion. It is the responsibility fop the forensic psychiatrist to minimize such hazards by carrying out his responsibilities in an honest manner striving to reach an objective opinion.

The practicing forensic psychiatrist enhances the honesty and striving for objectivity of his work by basing his forensic opinions, his forensic reports, and his forensic testimony on all the data available to him. He communicates the honesty and striving for objectivity of his work and the soundness of his clinical opinion by distinguishing, to the extent possible, between verified and unverified information as well as between clinical "facts", "inferences", and "impressions".

While it is ethical to provide consultation to an adversary in a legal dispute as a testifying or reporting expert, honesty and striving for objectivity are required. The impression that a psychiatrist in a forensic situation might distort his opinion in the service of the party which retained him is especially detrimental to the profession and must be assiduously avoided. Honesty, objectivity and the adequacy of the clinical evaluation may be called into question when an expert opinion is offered without personal evaluation. While there are authorities who would bar an expert opinion in regard to an individual who has not been personally examined, it is the position of the Academy that if, after earnest effort, it is not possible to conduct a personal examination, an opinion may be rendered on the basis of other information. However, under such circumstances, it is the responsibility of the forensic psychiatrist to assure that the statement of his opinion and any reports or testimony based on this opinion clearly indicate that there was no personal examination and that the opinion expressed is thereby limited.

In custody cases, honesty and striving for objectivity require that all parties be interviewed, if possible, before an opinion is rendered. When this is not possible, or, if for any reason not done, this fact should be clearly indicated in the forensic psychiatrist's report or testimony. Where one parent has not been seen, even after deliberate effort, it may be inappropriate to comment on that parent's fitness as a parent. Any comment on that parent's fitness as a parent should be qualified and the data for the opinion should be clearly indicated.

Contingency fees, because of the problems that these create in regard to honesty and striving for objectivity, should not be accepted. On the other hand, retainer fees do not create problems in regard to honesty and striving for objectivity and, therefore, may be accepted.

A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform and evaluation of his patient for legal purposes because his forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.

V. QUALIFICATIONS

Expertise in the practice of forensic psychiatry is claimed only in the areas of a actual knowledge and skills, training and experience.

Commentary

As regards expert opinions, reports and testimony, the expert's qualifications should be presented accurately and precisely. As a correlate of the principle that expertise may be appropriately claimed only in areas of actual knowledge, skill, training and experience, there are areas of special expertise, such as the evaluation of children or persons of foreign cultures, or prisoners, that may require special training and expertise.

VI. PROCEDURES FOR HANDLING COMPLAINTS OF UNETHICAL CONDUCT

The American Academy of Psychiatry and the Law does not adjudicate complaints of unethical conduct against members or others.

Complaints of unethical conduct against members of the Academy are referred to the attention of the appropriate committee of the American Psychiatric Association.

Members of the Academy or of the public wishing assistance in this regard may consult, in confidence with the Chairperson of the Committee on Ethics of the Academy.

Commentary

It is the present policy of the American Academy of Psychiatry and Law not to adjudicate complaints of unethical conduct against members or others.

General questions in regard to ethical practice in forensic psychiatry are welcomed by the Academy and should be submitted for consideration to the Committee on Ethics.

Should a specific complaint against a member be submitted to the Academy, it will be referred to the Chairman of the Ethics Committee. The Chairman will, in turn, direct the complainant to the member's local District Branch Ethics Committee.

The Academy, through its Committee on Ethics or in any other way suitable, will assist the local or national Committee on Ethics of the American Psychiatric Association in the adjudication of complaints of unethical or the developing of guidelines of ethical conduct as that relate to forensic psychiatric issues.

This is information is provided by Dr. Harold J. Bursztajn, a forensic psychiatrist. He is co-director of the Harvard Medical School Program in Psychiatry and Law at the Massachusetts Mental Health Center. He also has his own private practice. If you wish to contact him, write at 96 Larchwood Drive, Cambridge, MA 02138, phone at (617)492-8366, e-mail at harold_bursztajn@hms.harvard.edu.