SPECIAL ISSUE INTRODUCTION
Founders’ perspective on the history of the Program in Psychiatry and the Law
BY HAROLD J. BURSZTAJN, M.D., THOMAS G. GUTHEIL, M.D., AND ARCHIE BRODSKY, B.A.
For additional information about this article contact:
Harold J. Bursztajn, M.D.: harold_bursztajn@hms.harvard.edu.
The Program in Psychiatry and the Law (the Program)
resides in the Department of Psychiatry, Beth Israel Deaconess
Medical Center—a teaching hospital of Harvard
Medical School. Over the course of three decades of collaborative
work, the Program has evolved from its origins in
several ways. To understand this evolution, it may be valuable
to place members’ contributions into perspective by
offering a conceptual biography, as it were, of the Program’s
ideas and activities. Such a review will also convey some
sense of the functioning of the Program itself, in addition to
providing a context for the articles that comprise this first of
two special issues of the Journal of Psychiatry & Law.
The Program was founded in 1979 at the Massachusetts
Mental Health Center (the Center) through the efforts of
Paul S. Appelbaum, M.D. Its original mandate was to serve
as a training program for young forensic psychiatrists, who
would learn through performing supervised medicolegal and
ethical consultations with the trainees and staff at the Center.
To date the Program has trained 11 Chief Residents in
Legal Psychiatry who form an informal nationwide group of
Program associates, some of whom still attend its meetings.
In the early 1980s, this medicolegal training mandate was
enlarged by the confluence of several conceptual streams.
The first of these streams was the problem in medicine as a
whole of making decisions under conditions of uncertainty
while minimizing tragic outcomes due to either natural or
iatrogenic causes. Over the decades, program members have
explored a variety of undue influences on clinical decision
making that lead to potential iatrogenesis, including implicit
cognitive strategies, time-pressured practice contexts, institutional
and managed-care constraints, and misleading pharmaceutical
marketing. Processes for discovering,
questioning, and testing models of clinical and organizational
decision making were first outlined in a seminal text, Medical Choices, Medical Chances (Bursztajn, Feinbloom,
Hamm, & Brodsky, 1990). Since then, the maxim “why has
no one asked this vital question?” has guided the Program.
A second stream flowed from a demonstrated need for medical
decision theory to transcend the limited model offered
by the simplifying, certainty-driven mechanistic paradigm
of 19th Century medicine, and to apply instead the probabilistic
paradigm—a model both more realistic and more
suited to the inherent uncertainty of modern practice,
whereby benefits, risks, alternatives, and uncertainties can
and must be shared with patients.
A third stream reflected the unequivocal need in the medicolegal
field to ask often unspoken questions via careful
empirical study of medicolegal events and the decision making
that informed or produced those events. We view this
need for applied empiricism as so fundamental to our thinking
that it has become the Program’s motto: “No one has
done the study to find out what actually happens.” Investigations
by Program members have included empirical studies
of drug refusal, involuntary commitment, influences on
risk perceptions of prescribers of psychotropic medication,
suicide liability, the function of the clinical testifying
expert, pitfalls of attorney-expert relations, and the influences
on expert witnesses of such factors as professionalism
and biases, cross-cultural differences in perception of ethical
boundaries, and judicial decision making (e.g., Bursztajn,
Gutheil, Mills, Hamm, & Brodsky, 1986; Gutheil,
Bursztajn, Brodsky, & Alexander, 1991).
A fourth stream responded to the need for new ideas to
enrich the dialogue between clinical and legal realms. In
particular, although these realms bear in common a process
of decision making, there exists no methodology for exploration
of the intuitive decision making that all practitioners
employ in real life. Such reasoning had been treated by theorists
as a “black box,” impervious to systematic and reliable
empirical analysis. The development by members of the Program
of a “gray box” model that opens up such intuitive reasoning
for scrutiny remains an important contribution to the
field.
A fifth stream emanated from issues concerning the therapeutic
alliance and the notion of informed consent as a process
of dialogue rather than a pro forma, legalistically
mandated transfer of data. These wellsprings have led to the
Program’s exploration of both the alliance and informed
consent as forces directed toward liability prevention
through their improvement of the doctor-patient relationship,
the central incubator for the emotional substrate of liability
(e.g., Gutheil, Bursztajn, & Brodsky, 1984).
A sixth stream was developed from the realization that the
field of ethics represents a valuable resource for decision
making that (a) is older than both medicine and law; and (b)
becomes most useful when both of those disciplines have
exhausted their possibilities; ethics is not merely a philosophical
abstraction or a form of preaching of right behavior.
Program members apply these concepts in Ethics
Rounds—conducted in the host institution and elsewhere—
and further embodied in their writings and in the occasional
functioning of the Program as an ethics laboratory for other
entities.
A seventh stream that has enriched the Program is informed
by theories of the stages of moral development and the manner
in which these stages influence decision making. These
theories have enriched a number of Program research projects,
making use of a variety of enhanced statistical models.
What does the Program actually look like in action? Its earliest
weekly meetings of three founding members (Bursztajn,
Gutheil, & Brodsky), styled as workshops to pool ideas
and work on drafts of articles, unwittingly served as the
embryo of the present think tank component of the Program’s
functioning—with the Program now serving as think
tank, consultation service, and clinical research unit. As
interested individuals asked or were invited to attend to
share ideas, discuss medicolegal points of interest, gain
forensic sophistication, study decision analysis, exchange
information, and nurture academic interests and concerns,
the Program has grown to about 20 active participants meeting
weekly. Another 12 individuals—some former “actives”
—drop in on occasion.
Attorneys, psychiatrists (including forensic psychiatrists),
physicians of myriad specialties, psychologists, research
methodologists, students of various disciplines, and individuals
with mixed degree backgrounds (especially clinicallegal)
all participate—as a matter of policy, the Program
bars no one and invites participation without admission
requirements. The opportunity thus provided for egalitarian
debate, discussion, and mutual peer enrichment around
problematic cases, thorny conceptual issues, and empirical
investigations has drawn practitioners combatting the loneliness
of solo practice, investigators seeking guidance on
research design, undergraduates considering forensic careers,
clinicians eager to sharpen awareness of medicolegal matters,
and others.
Remarkably, the Program operates without funding from
any source. Attendance is entirely voluntary, and members
contribute as much or little as they wish. Among the cardinal
principles of this process are confidentiality, civility, and
considerate questioning of one’s own cherished convictions
and certainties.
One of the Program’s most important structural innovations
has been to include gifted medical writers as integral members,
to capture ephemeral ideas generated in brainstorming
sessions and to edit successive drafts of those materials
intended for publication in professional journals and books.
As a result, the Program has been a prolific source of “think
pieces,” empirical studies—some unprecedented in their
subject matter and scope—and education on risk management,
as well as a stimulus for conceptual advances in the
field. Program members have authored or co-authored some
400 publications in the national and international clinical
and forensic literature (e.g., Appelbaum & Gutheil, 2007;
Bursztajn & Sobel, 2003; Strasburger, Gutheil, & Brodsky,
1997) and have reached publication rates of some 10 papers
a year. These contributions include two major amicus briefs
filed in significant legal cases that affect psychiatric practice—
one addressed child sexual abuse, and another
addressed informed consent for release of health information
under the Health Insurance Portability and Accountability
Act.
Over the decades, the Program has continued to respond to
paradigm shifts in clinical care delivery and other challenging
developments at the medical-legal interface. One of
these arose from the revelations of sexual misconduct by
psychotherapists that stimulated a professional as well as
society-wide examination of ethical boundaries in the clinical
professions. A second is concerned with the pervasive
threats to the integrity of the clinician-patient dyad that are
posed by corporate and institutional control of health care,
as well as by insufficiently regulated access to electronic
medical records.
Today, the Program continues to lead in empirically questioning
the foundations of clinical and forensic mentalhealth
and medical decision making, and in identifying
distorting factors in the spectrum of evaluations ranging
from testamentary capacity to boundary violations (e.g.,
Gutheil & Brodsky, 2008). Such collaborative studies have
included exploring the extent of potential conflicts of interest
in the creation of the American Psychiatric Association’s
Clinical Practice Guidelines (Cosgrove, Bursztajn, Krimsky,
Anaya, & Walker, 2009), and analyzing the influence of
pharmaceutical marketing on clinical decision making
(Bursztajn, Chanowitz, Gutheil, & Hamm, 1992). The Program’s
international stature in the legal, ethical, psychiatric,
and medical communities has continued to grow, relative to
its collaborations with organizations worldwide through
International Academy of Law and Mental Health presentations
and UNESCO Bioethics Chair publications (e.g., Perlin,
Bursztajn, Gledhill, & Szeli, 2008).
We look forward to the Program’s continued leading role in
developing resources for enhancing the integrity and reliability
of patients’ and clinicians’ decision making, forensic
evaluations, and expert analyses, to the continued provision
of risk management guidance to communities of clinicians,
and to continuing to raise fundamental questions not previously
explored.
Additional information about the Program and its publications
is available at:
- The website of the Program in Psychiatry and the Law
(www.pipatl.org)
- The website of the Massachusetts Mental Health Center
(www.massmentalhealth.org)
- The website of the Harvard Longwood Psychiatry Residency
Training Program (www.harvardlongwoodpsychiatry.org)
References
- Appelbaum, P.S., & Gutheil, T. G. (2007). Clinical handbook of psychiatry
and the law (4th ed.). Philadelphia, PA: Lippincott Williams &
Wilkins.
- Bursztajn, H. J., Chanowitz, B., Gutheil, T. G., & Hamm, R. M. (1992).
Micro-effects of language on risk perception in drug prescribing
behavior. Bulletin of the American Academy of Psychiatry and the
Law, 20, 59-66.
- Bursztajn, H. J., Feinbloom, R. I., Hamm, R. M., & Brodsky, A. (1990). Medical choices, medical chances: How patients, families, and
physicians can cope with uncertainty. New York, NY: Routledge.
- Bursztajn, H. J., Gutheil, T. G., Mills, M. J., Hamm, R. M., & Brodsky,
A. (1986). Process analysis of judges’ commitment decisions: A
preliminary empirical study. American Journal of Psychiatry, 143,
170-174.
- Bursztajn, H. J., & Sobel, R. (2003). Protecting privacy in the behavioral
genetics era. Mental and Physical Disability Law Reporter, 27,
523-526.
- Cosgrove, L., Bursztajn, H. J., Krimsky, S., Anaya, M., & Walker, J.
(2009). Conflicts of interest and disclosure in the American Psychiatric
Association’s clinical practice guidelines. Psychotherapy and
Psychosomatics, 78, 228-232.
- Gutheil, T. G., & Brodsky, A. (2008). Preventing boundary violations in
clinical practice. New York, NY: Guilford.
- Gutheil, T. G., Bursztajn, H. J., & Brodsky, A. (1984). Malpractice prevention
through the sharing of uncertainty: Informed consent and
the therapeutic alliance. New England Journal of Medicine, 311,
49-51.
- Gutheil, T. G., Bursztajn, H. J., Brodsky, A., & Alexander, V. G. (Eds.).
(1991). Decision making in psychiatry and the law. Baltimore, MD:
Lippincott Williams & Wilkins.
- Perlin, M. L., Bursztajn, H. J., Gledhill, K., & Szeli, E. (2008). Psychiatric
ethics and the rights of persons with mental disabilities in
institutions and the community. Haifa, Israel: UNESCO Chair in
Bioethics.
- Strasburger, L. H., Gutheil, T. G., & Brodsky. A. (1997). On wearing two
hats: Role conflict in serving as both psychotherapist and expert
witness. American Journal of Psychiatry, 154, 448–456.