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.