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The Forensic Psychiatrist and the Code of Medical Ethics

The Forensic Psychiatrist and the Code of Medical Ethics

In 2005, the Board of Trustees of the American Psychiatric Association (APA) prepared a Position Statement entitled Psychiatric Participation in Interrogation of Detainees.1 The Statement essentially provided that psychiatrists should not participate in interrogations under any circumstances (including coercive and non-coercive interrogations), whether in military or civilian settings. The Statement was referred to the APA Assembly for approval at its November 2005 meeting.

The Assembly passed a resolution2 drastically amending the Statement, permitting psychiatrists to participate in non-coercive interrogations. The Board of Trustees reaffirmed its original Statement, and after extensive discussion and clarification of its position (eg, certain techniques used in “enhanced” interrogations that according to international and US laws constituted torture were declared to be non-coercive by some authorities3-8), the Assembly at its May 2006 meeting voted in favor of the Statement proposed by the board.9 Thus, Psychiatric Participation in Interrogation of Detainees became official APA policy.

I feel that an explanation is needed as to why the Assembly initially disapproved of the board’s proposed position that psychiatrists should not participate in interrogation of detainees.

I believe that a majority of Assembly members voted as they did because of the strong protestations of a substantial number of representatives—many of whom are engaged in forensic psychiatric practice in addition to their regular psychiatric activity—together with military Assembly representatives, who felt that participation in non-coercive interrogations of detainees was entirely appropriate and necessary. It is my view that the Assembly’s position has its roots in a firmly embedded conviction of most forensic psychiatrists in the United States that the rules embodied in The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry10 do not apply to psychiatrists when engaged in practice as forensic psychiatrists. In other words, they are not required or expected to abide by all the canons in the code of medical ethics.

This position was taken as a result of the very strong stand expounded by one of this country’s foremost experts in psychiatry and the law, Paul S. Appelbaum, MD,11 past APA president and past president of the American Academy of Psychiatry and the Law. Appelbaum’s position was forcefully endorsed by Thomas G. Gutheil, MD,12 another leading figure in forensic psychiatry. “The forensic psychiatrist,” Appelbaum writes, “in truth does not act as a physician. If the essence of the physician’s role is to promote healing and/or to relieve suffering, it is apparent that the forensic psychiatrist operates outside the scope of the role. Were we to call such a person a ‘forensicist,’ or some similar appellation, it might more easily be apparent that a different—nonmedical—role with its own ethical values is involved. . . . [P]sychiatrists operate outside the medical framework when they enter the forensic realm, and the ethical principles by which their behavior is justified are simply not the same.”11 He adds, “Their functioning in the forensic setting is guided by a different set of principles.”13

Thus, by sanctioning the participation of psychiatrists in non-coercive interrogations, the slippery slope of clearly unethical involvement in this regard is created. To illustrate, a policy, recommended by a past president of the American Academy of Psychiatry and the Law, under which participation by forensic psychiatrists in police interrogation of individuals who might be dangerous would not violate professional ethics, because such interrogations “are derivative of agency and efficacy, not ethics.”14 This forensic psychiatrist also states, “Police interrogation techniques not only allow but also encourage deception.”14

Dr Jeffrey Janofsky captures the essence of the problem succinctly: “Police interrogators routinely use deceptive techniques to obtain confessions from criminal suspects. . . . When a psychiatrist directly uses, works with others who use, or trains others to use deceptive or coercive techniques to obtain information in police, military, or intelligence interrogations, the psychiatrist breaches basic principles of ethics.”15

Dr Appelbaum11 sees the forensic psychiatrist as an “advocate of justice.”On the other hand, not only forensic psychiatrists but all psychiatrists must remain constantly alert to the danger of being drawn into unethical conduct in the service of an elusive and not infrequently unjust justice.16 It has long been recognized that in countries where misuse of psychiatry has been, and in some countries still is, rampant (eg, the former Soviet Union,17,18 China,19-24 Romania,25 South Africa26), psychiatrists justified their unethical conduct on the grounds that they were furthering the interests of their countries’ justice.

It is regrettable, but understandable, that the influential military and forensic psychiatrists in the APA Assembly would agree with and endorse the view of a renowned forensic psychiatrist that “the theoretical framework offered by Appelbaum has become a mainstay of our understanding of forensic ethics.”27 It should be recognized, however, that Appelbaum bases his entire argument that a special code of ethics is necessary for forensic psychiatrists on his mistaken belief that APA’s Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry10 is restricted to the physician-patient relationship in which “the physician’s role is to promote healing and/or to relieve suffering.”28

We do not need a special set of ethics for the forensic psychiatrist: the principles and annotations of the ethics code10 is for all psychiatrists. As examples:

Principle 1: “A physician shall be dedicated to providing competent medical care with compassion and respect for human dignity and rights.”

Principle 3: “A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.”

Principle 7: “A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.”

Annotation 6 of Principle 4: “Psychiatrists are often asked to examine individuals for security purposes, to determine suitability for various jobs, and to determine legal competence. The psychiatrist must fully describe the nature and purpose and lack of confidentiality of the examination to the examinee at the beginning of the examination.”

Annotation 8 of Principle 4: “When, in the clinical judgment of the treating psychiatrist, the risk of danger is deemed to be significant, the psychiatrist may reveal confidential information disclosed by the patient.”

Appropriate guidance to assist forensic psychiatrists in adhering to the code of medical ethics is provided in the American Academy of Psychiatry and the Law Ethics Guidelines for the Practice of Forensic Psychiatry (adopted May 2005).29 Appelbaum,11 in stating that “the forensic psychiatrist does not act as a physician,” overlooks the fact that a large number of psychiatrists who work in prisons are also forensic psychiatrists (all forensic psychiatry fellowship programs accredited by the Accreditation Council for Graduate Medical Education must include substantial training in correctional psychiatry, and the American Board of Psychiatry and Neurology’s certification examination in the subspecialty of forensic psychiatry covers the area of correctional psychiatry).

Thus, I unreservedly disagree with Dr Appelbaum’s position that “forensic psychiatrists cannot simply rely on general medical ethics.”28 I believe the prestige of the forensic psychiatry profession will flounder if forensic psychiatrists are exempt from abiding by the time-honored principles of medical ethics.

References

References

1. American Psychiatric Association. Psychiatric Participation in Interrogation of Detainees. October 15, 2005.
2. American Psychiatric Association. Assembly Report to the Board of Trustees. December 11-12, 2005:8.
3. Annas GJ. Unspeakably cruel—torture, medical ethics, and the law. N Engl J Med. 2005;352:2127-2132.
4. Borchelt D, Pross C. Systematic use of psychological torture by US forces. Torture. 2005;15:66-70.
5. Executive Order. Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency. July 20, 2007.
6. Senate Armed Services Committee: The origins of aggressive interrogation techniques. Committee Statement. Senate Armed Services Committee Hearing. June 17, 2008.
7. Shane S. Documents laid out interrogation procedures. New York Times. July 25, 2008.
8. Alexander M. Torture’s loopholes. New York Times. January 21, 2010.
9. American Psychiatric Association. APA passes position statement barring psychiatric participation in interrogation of detainees. News Release No. 06-36. May 22, 2006.
10. American Psychiatric Association. The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry. 2009, Revised.
11. Appelbaum PS. The parable of the forensic psychiatrist: ethics and the problem of doing harm. Int J Law Psychiatry. 1990;13:249-259.
12. Gutheil TG. Forensic psychiatry as a specialty. Psychiatr Times. 2004;21(7):31-36.
13. Gutheil TG, Appelbaum PS. Clinical Handbook of Psychiatry and the Law. New York: McGraw Hill; 1982:353.
14. Phillips RT. Expanding the role of the forensic consultant. Newsl Am Acad Psychiatry Law. 2005;30:4-5.
15. Janofsky JS. Lies and coercion: why psychiatrists should not participate in police and intelligence interrogations. J Am Acad Psychiatry Law. 2006;34:472-478.
16. Halpern AL, Freedman AM, Schoenholtz JC. Ethics in forensic psychiatry. Am J Psychiatry. 1998;155:575-577.
17. Bonnie RJ. Political abuse of psychiatry in the Soviet Union and in China: complexities and controversies. J Am Acad Psychiatry Law. 2002;30:136-144.
18. Halpern AL. Perestroika, new mental health legislation, and Soviet psychiatry. N Y State J Med. 1989;89:135-137.
19. Munro RJ. Judicial psychiatry in China and its political abuses. Columbia J Asian Law. 2000;14:1-128.
20. Halpern AL. Abuses in China. New York Times. February 25, 2001.
21. LaRochelle D, Halpern AL. Misuse of psychiatry in the People’s Republic of China. Mental Health Reforms. 2000;5(3):17-18.
22. Boschert S. WPA votes to investigate allegations of psychiatric abuse of dissidents in China. Clin Psychiatry News. 2002;30:5.
23. Halpern AL. Detaining Falun Gong. New York Times. February 15, 2000.
24. Munro RJ. Political psychiatry in post-Mao China and its origins in the cultural revolution. J Am Acad Psychiatry Law. 2002;30:97-106.
25. Perlin ML. International Human Rights and Comparative Mental Disability Law: The Role of Institutional Psychiatry in the Suppression of Political Dissent. March 3, 2006. NYLS Legal Studies Research Paper No. 05/06-15. http://ssrn.com/abstract=887924. Accessed September 14, 2010.
26. Bloche MG. Caretakers and collaborators. Camb Q Healthc Ethics. 2001;10:275-284.
27. Norko MA. Commentary: compassion at the core of forensic ethics. J Am Acad Psychiatry Law. 2005;33:386-389.
28. Appelbaum PS. A theory of ethics for forensic psychiatry. J Am Acad Psychiatry Law. 1997;25:233-247
29. American Academy of Psychiatry and the Law. American Academy of Psychiatry and the Law Ethics Guidelines for the Practice of Forensic Psychiatry. Adopted May 2005. http://www.aapl.org/ethics.htm.. Accessed September 14, 2010.
 
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