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.

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.

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.

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).