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Ethical Issues in Forensic Psychiatry With Children and Adolescents

Ethical Issues in Forensic Psychiatry With Children and Adolescents

Any discussion of contemporary child and adolescent forensic psychiatry will
eventually encompass considerations of the ethical underpinnings of this work.
Ethical issues arise inevitably in clinical work with children and adolescents
and are even more likely to surface in forensic settings.

The term ethics refers both to a "series of moral principles that govern a
person's or group's behavior" and to "the branch of knowledge that deals with
these principles." Codes of personal ethics are at least as old as the Ten
Commandments, and codes of medical ethics have been a part of civilization
since at least the Oath of Hippocrates. Contemporary medical and psychiatric
practices are grounded in ethical codes of the major membership organizations
corresponding to these areas of practice.

Medical and Psychiatric Ethics

The overarching ethical code for clinical medical practice in this country
is embodied in the American Medical Association's Principles of Medical Ethics
(2001). As a reflection of the fact that the fundamental ethics concepts under
which we operate do not much change but periodically require supplementation to
cope with changing circumstances, the 2001 revision consisted of certain
additions to the original seven principles as well as two new ones. One of
these--that a physician caring for a patient shall "regard responsibility to the
patient as paramount"--may have some particular ramifications for forensic
psychiatrists.

For years, the American Psychiatric Association's ethics approach
piggybacked on the AMA's principles (APA, 2001). It incorporated the AMA's
Principles and coupled them with numerous judgments, posed in Q&A format,
about ethical issues commonly encountered by psychiatrists in practice or in
research. Both the AMA and the APA supplement these documents with ethical
judgments on issues that arise as a result of changes in society, such as the
ethical use of e-mail by a physician. These opinions
are available on the Web sites of the respective organizations.

Child and Adolescent Psychiatric Ethics

The Code of Ethics of the American
Academy of Child and
Adolescent Psychiatry (AACAP) is the third pillar on which the ethical practice
of clinical child and adolescent psychiatry rests (AACAP, 2005). As physicians
and psychiatrists, members are bound by both the AMA and APA guidelines. The
AACAP Code attempts to refine and clarify these principles because of the
uniqueness of the child as patient. Enzer (1985)
delineated three aspects of this uniqueness: first, children
are dependent but become more independent over time; second, children are
uniquely vulnerable both because of their dependency and because of the "potential
for intimidation and coercion" by parents and others; and third, despite their
vulnerabilities, children and adolescents remain "individual human beings" and,
as such, are "entitled to be taken seriously and respected."

In common among all of these codes are the principles of beneficence and
non-malificence (to do no harm), from which
exhortations to practice competently, show compassion and respect, be honest,
safeguard confidentiality, and respect the law all derive. Clinical medicine
and psychiatry are almost exclusively patient-centered, so that the patient's
needs must be paramount in the thoughts and actions of the ethical physician.
Even more care must be taken when dealing with a child or adolescent, because
they are in varying degrees dependent and incapable of taking full
responsibility for themselves. This leads to the inevitability of the presence
of a third party, whether the parents or the state, which complicates issues
such as consent and confidentiality.

Ethics Applied to Forensic Psychiatry

Forensic work has always occupied a somewhat different space from clinical
psychiatry. It is defined in the current ethical guidelines of the
American Academy of Psychiatry and the Law (AAPL)
(2005) as 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." Because forensic psychiatrists
practice at the interface of law and psychiatry, they may be "called upon to
practice in a manner that balances competing duties to the individual and to
society."

In other words, forensic psychiatry exists in order to provide expertise to
assist courts and related agencies in making decisions. The expertise consists
of a great degree of clinical skills, including interviewing and analyzing
individuals, which are used to formulate an opinion about an individual. These
opinions can encompass issues as disparate as whether a person is competent for
trial, fit to be a parent, able to work, or damaged by a particular physical or
emotional trauma. Thus, the aim of a forensic evaluation differs from the
clinician's job of helping or curing the patient. Furthermore, the forensic
evaluator's primary allegiance is generally to third party, whether it is the
courts or an attorney involved in an adversarial process. As propounded by the
AAPL guidelines (2005), the four overarching categories of ethical concern are
confidentiality, consent, honesty and striving for objectivity, and
qualifications.

One major ethical issue of forensic psychiatry that is not present in
clinical practice arises when there is confusion of the forensic and clinical
roles. This can happen either when a clinical psychiatrist decides to take on
an added forensic role for the patient or when a forensic evaluator allows a
patient to slip into a virtual doctor-patient relationship. The former
situation may obligate the psychiatrist to violate confidentiality and harm the
patient's interests by revealing damaging personal material. If the
psychiatrist chooses not to do so, they are violating their ethical obligation
as a forensic psychiatrist to tell the truth. In the latter situation, the
forensic clinician may violate their obligation to secure truly informed
consent by using their skills, even inadvertently, to lull the patient into a
false belief that confidentiality will be preserved when it will not be. Again,
information could be revealed that a fully informed individual might wish not
to divulge.

Strasburger et al. (1997) characterized these and
other moral dilemmas as arising from a situation where the psychiatrist is
wearing "two hats": that of physician, where the primary allegiance is to the
patient and, at the same time, that of objective evaluator with a primary
allegiance to another party. Because of the incompatibility of these two roles,
the authors strongly encouraged the psychiatrist to avoid the situation if at
all possible. For a fuller explication of these themes with some historical
background, see also Ratner (2002).

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