Healer, Witness, or Double Agent? Reexamining the Ethics of Forensic Psychiatry

By Scherer, Mathew U. | Journal of Law and Health, Summer 2016 | Go to article overview

Healer, Witness, or Double Agent? Reexamining the Ethics of Forensic Psychiatry


Scherer, Mathew U., Journal of Law and Health


I. INTRODUCTION                                                     248 II. THE ARMY SERGEANT PARABLE                                       250 III. PROPOSED APPROACHES AND THEIR DRAWBACKS                        251        A. Approach One: Forensic Psychiatric Evaluations as Inherently Non-Therapeutic                                          251             1. Therapeutic and Non-Therapeutic Encounters: A False             Dichotomy?                                              253             2. The Relevance of Medical Ethics in Non-Clinical             Settings                                                256        B. Approach Two: Use of Medical Skill and Judgment           259        C. Approach Three: Psychiatric Evaluations as "Routine,        Non-Invasive Procedures"                                     260 IV. LOOKING TO THE LAWYER-CLIENT MODEL                              261        A. Drawing Inspiration from the Lawyer-Client Relationship   262        B. Applicability to Doctor-Patient Relationship              265        C. Conflicts of Interest and Advance Waivers and Warnings    267 V. CONCLUSION                                                       270 

In recent years, psychiatrists have become ever more prevalent in American courtrooms. Consequently, the issue of when the usual rules of medical ethics should apply to forensic psychiatric encounters has taken on increased importance and is a continuing topic of discussion among both legal and medical scholars. A number of approaches to the problem of forensic psychiatric ethics have been proposed, but none adequately addresses the issues that arise when a forensic encounter develops therapeutic characteristics. This article looks to the rules governing the lawyer-client relationship as a model for a new approach to forensic psychiatric ethics. This new model focuses on the expectations of the evaluee and the ways in which the evaluating psychiatrist shapes those expectations to determine how and when the rules of medical ethics should apply to forensic psychiatric encounters.

I. INTRODUCTION

When a clinically trained psychiatrist takes the stand in a court of law, the psychiatrist enters territory that is strewn with ethical hazards. A testifying psychiatrist arguably serves two masters: the legal duties imposed on witnesses in court and the obligations of medical ethics that all physicians must follow. Consequently, to practice forensic psychiatry is to choose a path of "moral adventure." (2) This adventure once captured the attention of many scholars and practitioners, (3) but scholarly attention on the matter has largely tapered off since the early 1990s, despite the increasing use of psychiatrists in courtroom settings.

The most vexing ethical problem in forensic psychiatry arises when a forensic psychiatric encounter takes on therapeutic characteristics. Distinguishing "forensic" psychiatric encounters from "therapeutic" encounters is not as simple as it might seem at first blush. Even though forensic psychiatric evaluations are often conducted outside traditional clinical settings, (4) the person performing the forensic psychiatric evaluation may also be the caregiver of the person being assessed. (5) At least one study suggests that psychiatrists performing forensic evaluations often fail to inform evaluees of the limits of confidentiality with respect to forensic evaluations. (6) Moreover, the growing therapeutic jurisprudence movement consciously focuses on the interaction between mental health and the law, and courts that have adopted the tenets of therapeutic jurisprudence often play a therapeutic role in the lives of the defendants that appear before it. (7) Each of these factors blurs the line between the forensic and the therapeutic in the context of the legal system.

Moreover, even if an encounter could be described as plainly and purely forensic at the outset, an ostensibly forensic encounter may--and sometimes does--take on therapeutic characteristics. …

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