Founders’ perspective on the history of the Program in Psychiatry and the Law


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:


  1. Appelbaum, P.S., & Gutheil, T. G. (2007). Clinical handbook of psychiatry and the law (4th ed.). Philadelphia, PA: Lippincott Williams & Wilkins.
  2. 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.
  3. 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.
  4. 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.
  5. Bursztajn, H. J., & Sobel, R. (2003). Protecting privacy in the behavioral genetics era. Mental and Physical Disability Law Reporter, 27, 523-526.
  6. 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.
  7. Gutheil, T. G., & Brodsky, A. (2008). Preventing boundary violations in clinical practice. New York, NY: Guilford.
  8. 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.
  9. 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.
  10. 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.
  11. 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.