It begins with a simple request: a patient asks for help in taking time off from work, obtaining disability payments, or seeking other compensation for his or her diagnosis of posttraumatic stress disorder. The requests may come from patients you have been seeing for long periods or from new patients who are sometimes referred by their attorneys. However, your assumption of the role of both clinician and expert can produce a number of potential conflicts.
This column will demonstrate the differences between the 2 types of interactions and discuss the conflicts that may result when one takes on both roles. Some conflicts are intuitive, while others are less so. Serving as a patient's treating psychiatrist and forensic consultant may harm the patient, the doctor, and their relationship.
Two different worlds
The treating psychiatrist's goal is to relieve symptoms in patients by using pharmacotherapy and psychotherapy. "Forensic evaluators" or "expert witnesses" do not have a therapeutic relationship with the persons they interview, who indeed are not their patients but are "examinees" or "evaluees." Often, courts or attorneys hire expert witnesses with the goal of producing an objective report based on information gained through interviews and collateral sources. It may seem that the patient's therapist would be the best advocate, similar to a physician's advocacy for his patients when dealing with insurance companies. However, the job of the forensic psychiatrist is not to strive for advocacy but rather for objectivity.
In contrast to expert witnesses, "fact witnesses" testify only on that which they have observed directly; they are not required to produce opinions based on those facts. Most witnesses in court are fact witnesses (eg, eyewitnesses), and treating psychiatrists can fall in this category. However, psychiatrists as fact witnesses, once on the stand, may be asked to draw conclusions, since they possess the clinical knowledge to do so.1
While the medical field strives to treat conditions with interventions that are predicated on the patient's trust in the clinician, the legal field directs its efforts toward dispute resolution, with the overarching goal of serving society and justice. Based on their disparate goals, these 2 systems require different obligations, which may pull those who do both in 2 different directions.
Arguments to do both
Strasburger and colleagues1 have outlined the reasons psychiatrists may feel obligated to take on both roles. First, lawyers may request that a treating psychiatrist also serve as an expert because attorneys may not understand the nuances of each role or may simply be trying to save money. Or, the patient may not cooperate with a separate forensic evaluation.
Second, while clinical reimbursement is limited, forensic evaluations may generate extra income for the evaluator. Third, clinicians are occasionally required by law to violate confidentiality when a patient reveals specific information, such as threats to harm others or evidence of child abuse, during the course of therapy. Therefore, it may not seem problematic for the clinician to share other confidential information while testifying.
Finally, in today's practice, the treating psychiatrist is often compelled to function as a social worker, a referee between the patient and managed care, or a police officer who serves to protect society from the patient. Treating psychiatrists are also routinely called on to testify in civil commitment or forced medication hearings involving patients on their own wards. Therefore, a further excursion into the legal system does not seem terribly different from all these roles.1 Other professions involved in patient care and the legal arena, including neuropsychologists, grapple with this conflict as well.2
The American Academy of Psychiatry and the Law makes the following recommendation in its ethics guidelines: "Treating psychiatrists should . . . generally avoid acting as an expert witness for their patients."3
The therapeutic alliance. A focus on legal issues during appointments, when therapy is anticipated, may disrupt therapeutic intent. For transference to occur properly, a patient must feel some security and anonymity in the confines of therapy. Conversely, at the outset of the forensic interview, the evaluator must define the nonconfidential nature of the relationship, potentially causing the evaluee to tailor reported information, consciously or not, in order to help his legal case. Transference is further enhanced by the patient's lack of knowledge of the psychiatrist's personal life and idiosyncrasies, which may be revealed if the psychiatrist testifies.
1. Strasburger LH, Gutheil TG, Brodsky A. On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Am J Psychiatry. 1997;154:448-456.
2. Bush SS; NAN Policy and Planning Committee. Independent and court-ordered forensic neuropsychological examinations: official statement of the National Academy of Neuropsychology. Arch Clin Neuropsychol. 2005; 20:997-1007.
3. American Academy of Psychiatry and the Law. Ethics Guidelines for the Practice of Forensics Psychiatry. Bloomfield, Conn: AAPL; 2005. Available at: www.aapl.org/pdf/ETHICSGDLNS.pdf. Accessed April 3, 2007.
4. Binder RL. Liability for the psychiatrist expert witness. Am J Psychiatry. 2002;159:1819-1825.
5. Rappeport JR. Reasonable medical certainty. Bull Am Acad Psychiatry Law. 1985;13:5-15.