Dual agency often presents a confusing situation for the clinician who must simultaneously serve two separate roles in a legal case, such as a treatment role and a forensic role (Berger, 1997). The two roles have different purposes, procedures, relationships with the patient or evaluee, and different ethical principles.
Just as the role of treater and forensic evaluator overlap in many ways, so do treatment ethics and forensic ethics. However, the roles and the ethics are also distinct in significant ways.
Dual agency also occurs when: 1) A company psychiatrist owes a treatment duty to his patient-an employee of the same company-and a simultaneous obligation to the company to return the patient to work immediately; 2) a military psychiatrist owes a treatment duty to his enlisted patient and a simultaneous duty to the military to maintain security; 3) a jail psychiatrist owes a treatment duty to his inmate patient (who is awaiting his trial) and a simultaneous duty to the state to get a confession from the inmate; 4) a state-employed psychiatrist owes a duty to the best interest of his death row patient and a simultaneous job assignment to get the execution done. Clearly, the two roles of the psychiatrist in these examples conflict with each other.
The psychiatrist encourages the patient to explore his feelings, fears and needs so that the information can be used to relieve the patient's suffering. Forensic psychiatry uses the psychiatric knowledge base and some psychiatric practices for legal purposes. The ethical principle guiding forensic psychiatry is honesty. But a psychiatrist's honest conclusion does not always serve the best interest of the patient.
The American Medical Association has a set of ethical principles for treating patients (American Medical Association, 1996), some which also apply to forensic matters. The American Psychiatric Association has the same set of ethical principles. The American Academy of Psychiatry and the Law (AAPL) has a set of ethical principles for forensic psychiatry evaluations and testimony (American Academy of Psychiatry and the Law, 1991) that specifically address several issues:
Confidentiality,: The ethical forensic psychiatrist must identify for the examinee the parties to whom the gathered information will be released. This always includes the party retaining the psychiatrist and any involved court. It may also include other parties. Informing the examinee of the limits of confidentiality is similar to a Miranda warning.
Consent: The ethical forensic psychiatrist must obtain the consent of the examinee (or the party who has the authority to give consent) to conduct the examination. Exceptions are, for example, court-ordered examinations.
Honesty: The ethical forensic psychiatrist must adhere to the principles of honesty and strive for objectivity. In some situations, objectivity is difficult. An example is a presentencing evaluation of a rapist. But an ethical forensic psychiatrist must strive for objectivity in any case.
Qualifications: The ethical forensic psychiatrist claims expertise only in the areas of actual knowledge, skill, training and experience.
Here are some examples of a dual agency situation producing an ethical dilemma: 1) A psychiatrist is treating an office patient who describes committing a shoplifting crime. The duty of the treating psychiatrist is to his patient's best interest. In this case, the patient's best interest is for the psychiatrist to maintain confidentiality. The patient's best interest determines the treating psychiatrist's handling of the case. However, a forensic psychiatrist who examines the patient, now called a defendant, to determine if the defendant was legally insane (and therefore not culpable) at the time of the shoplifting, has a different duty. His duty is to honestly determine if the patient was sane at that moment in time. His duty is to the legal system, not to the patient. Whether his honest conclusion is helpful to the defendant or harmful to the defendant is basically irrelevant to his role. And confidentiality is commonly set aside in order to serve his forensic duty.
2) A psychiatrist is treating a patient in a psychiatric hospital because the patient has been determined by the court to be incompetent to stand trial for a charge of felony theft. The patient is a notary, and will lose his notary license if he is convicted of a felony. If he loses his notary license, he will lose his job at the bank. The best interest of the patient is to remain incompetent until the charges are dropped, even if that means being civilly committed for a year. The duty of the treating psychiatrist might be, either to allow the patient to remain psychiatrically ill and incompetent, or to treat the patient's psychiatric illness and restore his competence. Which one is in the best interest of the patient? The duty of a forensic psychiatrist in such a case, however, is to honestly determine whether the patient is competent, regardless of the consequences for the patient.
3) A long-term office patient has a head injury at work and submits a workers' compensation claim. He claims that he is unable to think clearly enough to do his work, and that he should be on sick leave for two months. The treating psychiatrist agrees that the patient should have the two months off work, but for a different reason. The patient's wife is about to give birth. The patient's past makes it very important for him to be involved with the birth process, the early nurturing of the baby and the caretaking of his wife. The two months of workers' comp leave would allow time for this involvement, with pay. Leave time under the Americans with Disability Act would allow for the time, but without pay.
Should the treating psychiatrist report to the patient's employer that the time off is needed due to the work-related head injury? Such support by the psychiatrist would be in the best interest of the patient, but not necessarily honest. Or should the psychiatrist report that the patient's head injury does not cloud his thinking enough to warrant time off work? This would be honest, but contrary to the interest and preference of the patient. Or should the psychiatrist refuse to answer the employer's inquiry? Such a refusal would be both honest and in the patient's best interest.
The employer might or might not ask the treating psychiatrist to render an opinion regarding the patient's disability relative to the work injury. The employer would be wise to ask an independent forensic psychiatrist to examine the employee and determine whether the patient has a work-related injury that is disabling. The employer has the right to require an examination of the claimant employee by a psychiatrist selected by the employer. The forensic psychiatrist is obligated to honesty, regardless of the effect of his honesty on the employee.
4) A patient applied for Social Security disability benefits. The treating psychiatrist was asked by the Social Security administration to complete its questionnaire regarding the psychiatric symptoms, capabilities and mental status of the applicant. The psychiatrist did, with the patient's consent. The application for benefits was denied by Social Security. The patient blames his treating psychiatrist for the denial, claiming that the psychiatrist should have completed the questionnaire with answers that would satisfy Social Security's requirements. Should the treating psychiatrist have been honest, or dishonest in the way preferred by the patient?
Should the treating psychiatrist have complied with Social Security's request to complete the questionnaire, should he have simply submitted copies of his notes to social security or should he have declined to respond? Social Security would have made a determination even without information from the treating psychiatrist. If the patient now goes to an attorney to get representation in appealing Social Security's denial, the attorney may ask a forensic psychiatrist to evaluate the case and, if favorable, write a report to be submitted to Social Security. The forensic psychiatrist is ethically obligated to honesty in writing such a report.
5) A woman seeks psychiatric treatment due to her stress and depression caused by sexual harassment. The harassment is being perpetrated by her minister, who wants to have an affair with her. Her position on the church's liturgy committee is very important to her, both socially and spiritually. She is happily married and wants to avoid any extramarital sexual involvement, any sinful behavior; or any embarrassment to herself, her family, her minister or her church. In her first appointment, she asks her treating psychiatrist to assist her attorney in coercing the minister to resign his position and leave town, all in secret, of course.
Should the treating psychiatrist agree to fulfill both the treatment role and the nontreatment role? Such a dual role would be fraught with risk. Any unfavorable event regarding the handling of the minister is likely to sour the treatment relationship. A wise position for the treating psychiatrist is to treat only, and recommend that the patient have her attorney refer her to a forensic psychiatrist for the assistance needed.
Dual agency is unwise and fraught with risk. The ethical principles of both the APA and AAPL are contrary to the psychiatrist being a dual agent. Simultaneously having two conflicting roles in a case can only keep patients and practitioners from achieving the therapeutic benefits of a doctor-patient relationship that is based on mutual trust and expectations.
Dr. Berger is a forensic psychiatrist at the Issac Ray Treatment Center, Logansport State Hospital, Logansport, Ind. Previously, he was a private practice forensic psychiatrist in Grand Rapids, Mich.