On the opposite end of the spectrum, countertransference may color the image of the patient that the psychiatrist presents. For example, a patient who has borderline personality disorder could have irritated a clinician, who in turn may not be sympathetic to his legal situation. Or, a patient who has made great strides in therapy may have had a "run of bad luck," potentially leading to decreased objectivity on the part of the sympathetic therapist. Taking into account elements of the therapeutic alliance, a clinician serving as an expert may easily, although unwittingly, present skewed information to the court.
The truth. Psychiatry and the law require 2 separate kinds of truth. In a therapeutic relationship, the clinician frequently relies on the patient's subjective truth. In other words, the patient presents his own view of the world and his life events, which often have more therapeutic meaning than the actual events. A forensic evaluator, however, must be concerned with objective truth—what actually happened. This often requires the examination of external sources above and beyond the usual practices of treatment, such as review of not only past medical records but also employment records and collateral interviews (including conversations with family, friends, coworkers, or police officers). If the treating clinician undertook this process, the patient might view it as a violation of trust. In other words, the healthy skepticism required in the forensic evaluator may well be off-putting to a patient who is also being treated by him.
Another conflicting issue exists when collecting information for court reports. The treating psychiatrist may have access to more of the patient's information, especially if their relationship is long-lasting. The patient may have revealed issues over the course of therapy that he would choose not to reveal to a forensic examiner. For example, a patient who later stands accused of rape may have previously revealed unwittingly to his therapist that he has participated in alternative sexual practices. It may prove difficult for the clinician/evaluator to separate, especially subconsciously, this information when attempting to create an impartial report for the court.
Nonmaleficence. The Hippocratic oath requires that physicians do no harm to patients, and expert testimony made by the clinician/evaluator can most certainly do just that. For example, the patient may be embarrassed by questions requiring the clinician/evaluator to reveal personal information that he expected would be held in confidence, the psychiatrist's testimony may become public record, or lower self- esteem may result in the patient if negative opinions are proffered. The patient may even experience anger towards the clinician/evaluator for not doing a better job, whether justified or not. Finally, the patient may lose the case and suffer loss of money, child custody, or freedom that he may in turn blame on the clinician/evaluator.
Malpractice.If a clinician/evaluator chooses to testify as an expert witness rather than a fact witness, he may be held to the standards of an expert witness. For example, although a clinician/evaluator may feel confident that he knows his patient and therefore chooses not to collect collateral information, this may fall below the standard of practice for a forensic evaluator. While in the past, expert witnesses were generally immune from prosecution, this may no longer be true.4 The clinician/evaluator may also feel uncomfortable conforming to the standard of providing his opinion under oath with "reasonable medical certainty," since much more ambiguity may be tolerated in clinical practice.5
Furthermore, the treating psychiatrist may be surprised to find that words have very specific meanings in court and he can easily be blindsided by an attorney's questions when cross-examined. For example, recognizing a text as an "authority" may place the psychiatrist in a position of agreeing with every word in the text, which, given some disputed issues such as the specific definition of postpartum depression in the DSM, may place him in an uncomfortable position. DSM criteria for mental disorders, personality disorders, and malingering are strictly adhered to in court, which may be different in the clinician's regular practice.
An issue of ethics. If a clinician/evaluator testifies that his patient requires more psychiatric treatment and the clinician stands to gain financially from the recommendation, this arguably makes him less objective.Conclusion
While it is tempting to serve as both a patient's clinician and forensic evaluator, there are a number of factors that should dissuade a psychiatrist from doing so. Potential conflicts that may arise include a disruption in the therapeutic alliance, a distinction between subjective and objective truth, difficulty acting in the patient/evaluee's best interest, an increased risk of malpractice, and ethical concerns. These factors lead to the conclusion that acting as both the clinician and evaluator can cause a conflict of interest.