Ethical Issues in Forensic Psychiatry: Minimizing Harm - Rilegato

Sadoff, Robert L.

Rilegato

ISBN 10: 0470670134 ISBN 13: 9780470670132

Casa editrice: John Wiley & Sons Inc, 2010

Riassunto

Ethical medical practice and treatment in psychiatry are based on the concept of first do no harm. However, this 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. In this book, Robert Sadoff analyzes the ethical issues affecting forensic psychiatric practice, especially those promulgated by the American Academy of Psychiatry and the Law. Within those guidelines, he looks at individual bias, vulnerability of the examinee, and potential harm to the mental health professional. The book discusses each of the procedures of the forensic expert separately with respect to minimizing harm. It has been written with an international audience in mind and features chapters reviewing the European and UK perspectives, by Emanuele Valenti and John Baird, respectively.

Robert Sadoff addresses the long-term harm that can be either avoided or minimized through careful planning and application of ethical principles. He is not advocating that the harm can be totally eliminated, because 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. The book develops the scope of forensic psychiatry from the standpoint of administrative, civil and criminal cases. It presents the practical issues involved in conducting forensic psychiatric assessments under various conditions plus 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 mentally disabled prisoners. Immigrants are covered in a chapter by Solange Margery Bertoglia. The ethical issues in conducting forensic psychiatric examinations and presenting psychiatric testimony in court are examined and discussed. Cases illustrating the difficulties involved punctuate the presentation. The book closes with a fascinating account of the legal perspective by Donna Vanderpool.

In summary, this book illustrates the ethical and practical issues that affect forensic psychiatric practice. The question is not what we do, but how we do it, and which standards, ethical guidelines and personal values contribute to the total picture. Despite the fact that we cannot always adhere to the doctrine of "primum non nocere," we can minimize the harm caused inherently by the adversarial system in which we participate.

Praise for Ethical Issues in Forensic Psychiatry

"One of the founding giants of the forensic psychiatric field has written here far more than a "mere" ethics textbook. Instead, this compendium serves multiple purposes: it is a valuable primer on forensic techniques of examination and testimony, a model of best forensic practices, and an instruction on the most appropriately civilized way in which to conduct oneself as a forensic psychiatrist.

The success of these multiple accomplishments clearly derives from characteristics of the author. In both sage advice to practitioners and in many revealing case examples, Dr. Sadoff displays the tact, good manners and sensitivity of a consummate gentleman – a term not always associated with the hurly-burly of courtroom work. The book's primary focus on avoiding harm to all the parties involved in the work places it on the moral high ground of the legal system in which participating clinicians must find a place."
Thomas G. Gutheil, MD, Professor of Psychiatry and Co-Founder, Program in Psychiatry and the Law, Beth Israel Deaconess Medical Center, Harvard Medical School

Su questo libro

Informazioni sull?autore

Robert L. Sadoff, M.D. is Clinical Professor of Psychiatry and Director of the Center for Studies in Social-Legal Psychiatry at the University of Pennsylvania School of Medicine. He is board certified in psychiatry, forensic psychiatry, and legal medicine, and has added qualifications in forensic psychiatry with the American Board of Psychiatry and Neurology.
Dr. Sadoff is the author of over 100 articles in medical and legal journals, more than 30 chapters in other books, and has authored, edited, or coauthored 8 books, including Forensic Psychiatry: A Practical Guide for Lawyers and Psychiatrists, Psychiatry Malpractice: Cases and Comments for Clinicians and Mental Health Experts: Roles and Qualifications for Court. Dr. Sadoff has examined over 10,000 individuals charged with crimes during the past 40 years, and has testified for both the prosecution and defense in criminal cases and for the plaintiff and defense in civil cases in approximately 20 states and several federal jurisdictions.
Dr. Sadoff is the recipient of numerous awards, including Best Doctors in America, Who's Who in the World, The Lifetime Achievement Award of the Philadelphia Psychiatric Society, the Nathaniel Winkelman Award, the Manfred Guttmacher Award from the American Psychiatric Association, the Philippe Pinel Award from the International Academy of Law and Mental Health, and the prestigious Isaac Ray Award from the American Psychiatric Association. He has also received the Earl Bond Award from the University of Pennsylvania as the Outstanding Teacher in Psychiatry for 1979, and the Dean's Award for Outstanding Contributions to Medicine at the University of Pennsylvania Medical School for 2008.

Robert Sadoff addresses the long-term harm that can be either avoided or minimized through careful planning and application of ethical principles. He is not advocating that the harm can be totally eliminated, because 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. The book develops the scope of forensic psychiatry from the standpoint of administrative, civil and criminal cases. It presents the practical issues involved in conducting forensic psychiatric assessments under various conditions plus 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 mentally disabled prisoners. Immigrants are covered in a chapter by Solange Margery Bertoglia. The ethical issues in conducting forensic psychiatric examinations and presenting psychiatric testimony in court are examined and discussed. Cases illustrating the difficulties involved punctuate the presentation. The book closes with a fascinating account of the legal perspective by Donna Vanderpool.

In summary, this book illustrates the ethical and practical issues that affect forensic psychiatric practice. The question is not what we do, but how we do it, and which standards, ethical guidelines and personal values contribute to the total picture. Despite the fact that we cannot always adhere to the doctrine of "primum non nocere," we can minimize the harm caused inherently by the adversarial system in which we participate.

Praise for Ethical Issues in Forensic Psychiatry

"One of the founding giants of the forensic psychiatric field has written here far more than a "mere" ethics textbook. Instead, this compendium serves multiple purposes: it is a valuable primer on forensic techniques of examination and testimony, a model of best forensic practices, and an instruction on the most appropriately civilized way in which to conduct oneself as a forensic psychiatrist.

The success of these multiple accomplishments clearly derives from characteristics of the author. In both sage advice to practitioners and in many revealing case examples, Dr. Sadoff displays the tact, good manners and sensitivity of a consummate gentleman – a term not always associated with the hurly-burly of courtroom work. The book's primary focus on avoiding harm to all the parties involved in the work places it on the moral high ground of the legal system in which participating clinicians must find a place."
—Thomas G. Gutheil, MD, Professor of Psychiatry and Co-Founder, Program in Psychiatry and the Law, Beth Israel Deaconess Medical Center, Harvard Medical School

This book is of great interest to forensic psychiatrists; forensic psychologists and forensic mental health workers. It will also appeal to general psychiatrists, residents and postgraduate students in psychiatry, psychology, medical ethics and mental health law, and lawyers in the criminal field.

Estratto. © Ristampato con autorizzazione. Tutti i diritti riservati.

Ethical Issues in Forensic Psychiatry

Minimizing HarmBy Robert L. Sadoff

John Wiley & Sons

Copyright © 2010 John Wiley & Sons, Ltd
All right reserved.
ISBN: 978-0-470-67013-2

Chapter One

Ethical Issues in Forensic Psychiatry in the United States

Robert L. Sadoff University of Pennsylvania School of Medicine, Philadelphia, USA

1.1 Introduction

The forensic psychiatrist or psychologist works within the judicial system, which is not a therapeutic system. Rather, the judicial system is one that seeks truth and justice, irrespective of harm that may come either to the defendant in a criminal case, or the plaintiff in a civil case or an individual in an administrative legal case.

The criminal justice system seeks to punish those who are guilty of criminal behavior. In civil matters, the court attempts to seek justice by awarding damages to those who have been harmed by others. The court also attempts to identify those who are not harmed, but claim to be. Forensic mental health experts are utilized by the judicial system to aid in the process of discovery and adjudication. Thus, the forensic psychiatrist may find him or herself working within a system that is not therapeutic and may cause significant harm to various individuals. How can the forensic medical expert work within such a system while adhering to the ethical tenets of our profession and not causing harm to those with whom we work?

We have already established that the major ethical issue in medicine is "first, do no harm." We have also shown that patients are indeed harmed in the name of therapy, even in the course of conducting diagnostic procedures. With the intention of helping patients, we may often harm them. In psychiatry, we have also shown that patients can be harmed either with medication, somatic treatment modalities or even psychotherapy.

In the Preamble to the Principles of Medical Ethics of the American Medical Association (AMA), the AMA affirms that "The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self". The following list outlines the major principles that have been adopted by the American Medical Association. They are not considered laws, but are "standards of conduct which define the essentials of honorable behavior for the physician."

1. A physician shall be dedicated to providing competent medical service with compassion and respect for human dignity.

2. A physician shall deal honestly with patients and colleagues, and strive to expose those physicians deficient in character or competence or who engage in fraud or deception.

3. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.

4. A physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patients' confidences within the constraints of the law.

5. A physician shall continue to study, apply, and advance scientific knowledge, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.

6. A physician shall in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical services.

7. A physician shall recognize the responsibility to participate in activities contributing to an improved community.

Clearly, the concept of primum non nocere cannot apply to forensic psychiatric practice. There are inherent harms that can be caused either during the examination, the report writing or the testimony given in forensic cases. The forensic examiner must alert the examinee that he will not be treating him, and there can be no traditional doctor-patient confidentiality. In essence, there is no doctor-patient relationship developed, because there is no agreement for treatment. The examiner is appointed either by the examinee's attorney, by an attorney for the other side, or by the judge to conduct the examination. Irrespective of who retains the examiner, he or she may inflict damage on the examinee. Thus, there is no prohibition in forensic cases to not do harm as there is in treatment cases in medicine generally, and in psychiatry in particular.

In many cases, there is harm done in forensic mental health matters. This is usually not intentional harm, but it is harm that is built in to the adversarial system in which the forensic psychiatrist works. We have discussed the bias that may exist that could lead to harmful examinations, harmful statements in the report, or harmful comments during testimony. The purpose of this presentation is to alert forensic experts about such potential harm and to attempt to minimize, limit, or eliminate, if possible, the harm that can be caused by the forensic expert.

1.2 AAPL Guidelines

Forensic psychiatrists have recognized that they cannot utilize the time-tested ethical prohibition against doing harm as their mantra in ethical practice, but must formulate ethical conditions that are more appropriate to the forensic setting. As a result, the American Academy of Psychiatry and the Law (AAPL) developed a set of guidelines that were initiated in the mid-1970s. The first attempt occurred when three members of the Academy sat down to attempt to formulate guidelines for forensic practitioners. Those guidelines underwent several modifications that were published as official actions of AAPL until the most recent, in 2005, which have been published by the AAPL.

In these guidelines, forensic psychiatry is defined as follows: It is "a subspecialty of psychiatry in which scientific and clinical expertise is applied in legal contexts involving civil, criminal, correctional, regulatory, or legislative matters, and in specialized clinical consultations in areas such as risk assessment or employment. These guidelines apply to psychiatrists practicing in a forensic role". I have defined forensic psychiatry as the subspecialty of psychiatry that deals with people who are involved in legal matters, either criminal or civil. Clearly, the definition in the AAPL guidelines is much more comprehensive, but less understood by juries when the expert is asked to define forensic psychiatry in court.

The AAPL has clearly indicated that their guidelines "supplement the Annotations Especially Applicable to Psychiatry of the American Psychiatric Association to the principles of medical ethics of the American Medical Association". The APA guidelines state clearly that "psychiatrists in a forensic role are called upon to practice in a manner that balances competing duties to the individual and to society. In doing so, they should be bound by ethical principles of respect for persons, honesty, justice, and social responsibility. However, when a treatment relationship exists, such as in correctional settings, the usual physician-patient duties apply". Generally, the AAPL guidelines comment on issues of confidentiality, consent, honesty, and striving for objectivity, and the qualifications of the expert.

1.3 Appelbaum's Concepts

It should be noted that many of these concepts within the guidelines stem from the brilliant paper of Paul Appelbaum that appeared in the Journal of AAPL in 1997, entitled, "A theory of ethics for forensic psychiatry". In the introduction, Appelbaum states,

This article offers a justification for a set of principles that constitute the ethical underpinnings of forensic psychiatry. For forensic psychiatrists, the primary value of their work is to advance the interests of justice. The two principles on which that effort rests are truth telling and respect for persons.

A virtue of this approach is the clear distinction it offers between forensic and therapeutic roles.

Thus, Appelbaum alludes to the issue of working for justice and truth and respect for the individual who is examined. In that context of respect, the forensic expert must tell the examinee who he or she is, whom he represents, what will happen during the examination, what are the consequences to the examinee of such an examination (for example, can the defendant in a capital case, get the death penalty if the defendant cooperates with the forensic psychiatrist appointed by the prosecution?). Nevertheless, the evaluator must give this information to the examinee in order for the person examined to give informed consent for the examination. Anything less would not be respect for the individual examined.

The idea of searching for truth implies a degree of neutrality and objectivity in the examination. The ethics guidelines by AAPL indicate that we should be "striving for" neutrality and objectivity, inasmuch as it may never be totally reached because of the human element of bias, errors, and other factors that cloud the issue and inhibit the totality of objectivity.

Others have argued that the guidelines should be more compelling and eliminate the words "striving for" and push for total objectivity and neutrality. It would be nice to have such an ideal situation, but if it cannot be implemented, then it is an ideal that is not practical. We should set the goals for guidelines in ethics in forensic psychiatry to those which can be practiced and implemented.

Thus, in my opinion, Appelbaum has laid the groundwork for the guidelines that have evolved through several modifications of the AAPL Committee on Ethics. The 2005 guidelines are workable, practical, and should be recognized as the accepted ethics for forensic psychiatrists conducting their examinations, preparing their reports, and offering testimony that affect individuals involved in the judicial system.

1.4 Confidentiality

The guidelines refer to confidentiality, which is an ethical proposition within medicine generally. I have often found the guideline for confidentiality in general medicine to be honored more in the breach than in its acceptance. Psychiatrists tend to be more protective of the privacy of their communications with their patients than physicians in general. In forensic work, there is a limitation to confidentiality that must be discussed with the examinee at the outset of the examination. The examinee must be told that there will be a report prepared and sent to the retaining attorney, whether it be the defendant's own attorney, or the prosecutor in criminal cases, or the plaintiff's attorney, or the defense attorney in civil cases.

There are a number of attempts to invade the privacy or confidentiality of these medical records. For example, the examinee has often asked that a copy of the records be sent to him or her. I have never sent records directly to the individual examined for a number of reasons. First, the patient may not be able to accept the concepts without being harmed, unless they are read to him and explained to him by his therapist. By definition, I, the forensic examiner, am not his therapist and cannot accept the role of explaining my observations, impressions, or opinions to him in a therapeutic context, because that would blur my role. I have sent the records, when requested with a signed release of information to the individual's therapist, who can then discuss the report with the individual in a therapeutic context.

Generally, I send the report only to the retaining attorney and know that the attorney will be distributing the report to others, and may even send it directly to the attorney's client. If that is the case, the attorney then assumes responsibility for the consequences of his distributing the report. A number of attorneys will refuse to give the report to their clients, believing the client is too fragile or may "freak out" when reading the report. A number of examinees have called to try to get the report directly from me when they cannot get it from their attorney. It is always good conduct and a wise decision to call the attorney to determine why he or she does not send the report directly to the person examined. One of the reasons is the fragility of the examinee, but another may be that the client has not paid the attorney's bill, and the attorney is withholding the report until he is paid. We would not want to interfere in any way with the attorney-client relationship by providing the report in such cases where the client has not been faithful to his own attorney.

At some later date, on a post-conviction appeal (PCRA) an attorney may request the records in order to show that his client did not have effective assistance of counsel and his conviction should be overturned. In those cases, a subpoena will be issued to the forensic expert to receive his report and any supporting data that was utilized in reaching his opinions. How long should the psychiatrist retain his records? My practice is to strip my file after the conclusion of the case in chief. I keep the records that I generated for 7–10 years, and then discard them, because the law allows us to do so. However, for the first 10 years, I will keep my report and correspondence in the file that may be necessary for some future use. Sometimes, I receive requests for records that are 20 or 30 years old, and I just don't have them. I often assume that attorneys will keep the supporting data they have sent to me for my review. However, the original attorney may not wish to cooperate with the appellate attorney who is criticizing his work. That becomes an issue between the attorneys and the forensic psychiatrist should not be placed in an awkward position to intrude on that relationship.

In summary, it is wise to restrict the distribution of the report from the forensic psychiatrist only to the retaining attorney, who will then distribute it according to his or her legal requirements. It is also essential that the examinee be alerted to the limitation on confidentiality since most individuals believe that what they tell a psychiatrist is secret or private, and that cannot be the case in forensic work.

1.5 Informed Consent

The next ethical issue is that of consent, and that involves alerting the evaluee about what will be done with the information gleaned and what effect it will have upon the person examined. In addition, I may need to testify at a hearing or in court about what I learned in the course of the examination. The examinee should be told that such disclosure may need to occur and that I could not keep secret what he told me. He needs to be forewarned about what would happen to the information so that he can give proper informed consent to the examination.

It is also important that the information given to the person examined before he or she divulges any information should include what possible consequences could occur to him or her in that particular case. An example is the case of Barefoot v. Estelle, a Texas case in which the Supreme Court overturned the guilty verdict because the expert who gave the information to the defendant did not divulge that his testimony could result in the defendant receiving the death penalty.

People have a right not to cooperate with the forensic psychiatrist, and many will not do so for a number of reasons. I have had individuals balk at speaking with me because they were told by their attorney that I was a neurologist and not a psychiatrist. They asked the question, "What does my attorney think, I'm nuts?" They refuse to cooperate until they have a chance to talk with their attorney and clarify the reason for the examination and my role. Sometimes, when visiting an individual in prison, the defendant will not speak with me unless his attorney is present, and that needs to be arranged at some later date. I always give the defendant the benefit of the doubt and all him to refuse to cooperate until his attorney is alerted and they can work out a solution that is least harmful to the defendant.

1.6 Competency

The issue of competency to consent is raised in the AAPL guidelines. Sometimes, the defendant, in a criminal case, or the plaintiff, in a civil case, is not competent to give consent to the examination. In those cases, there should be others at the examination to give consent for the individual examined. For example, in a civil case, the individual examined may be so injured that the brain damage limits his ability to cooperate or to even give consent to the examination. The examination may be conducted in order to determine his competency in this matter, and the extent of damage that can be assessed if permission is given by a legally appointed surrogate or a guardian.

(Continues...)

Excerpted from Ethical Issues in Forensic Psychiatryby Robert L. Sadoff Copyright © 2010 by John Wiley & Sons, Ltd. Excerpted by permission of John Wiley & Sons. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Dettagli dell?edizione

• Editore: John Wiley & Sons Inc
• Data di pubblicazione: 2010
• Lingua: Inglese
• ISBN 10: 0470670134
• ISBN 13: 9780470670132
• Rilegatura: Copertina rigida
• Numero edizione: 1
• Numero di pagine: 222
• Contatto del produttore: non disponibile
• Persona responsabile: non disponibile