Paul S. Appelbaum, MD

When you get facts wrong, as Dr Halpern does, it is hard to end up with the right conclusions. Although nominally focused on the events more than 5 years ago when the APA passed a position statement condemning psychiatric involvement in interrogations of detainees, Dr Halpern’s real target is my approach to the ethics of forensic psychiatry.

 But by distorting the events associated with adoption of the policy-omitting the crucial datum that I was the main drafter and chief proponent of the position statement-Dr Halpern leaves the reader with the impression that I was on the other side of the debate. Moreover, he suggests incorrectly that my approach to forensic ethics leads to the conclusion that participation in interrogation is permissible, when exactly the opposite is true.

The history of the position statement on interrogation did not begin, as Dr Halpern’s account suggests, when “the Board of Trustees of APA prepared” it. Boards do not prepare position statements, people do. In this case, the process began in September 2004, when as chair of the Council on Psychiatry and Law of the APA, I convened a joint session of the Council and its Committee on Judicial Action to discuss psychiatrists’ participation in national security and police interrogations.

 Council member Howard Zonana, MD, played a key role in bringing the issue to the Council’s attention, assembling information about current practices, and recruiting several psychiatrists who worked with the military and the police to join us for the session.

 On the basis of that preliminary discussion, later in the year when the Board of Trustees (of which I was a member) considered the issue-which was now being reported widely in the media-I suggested that we build on the process already begun the previous fall. The Board agreed.

Hence, in September 2005, with additional representation from the Ethics Committee, the Committee on Misuse and Abuse of Psychiatry, military psychiatry, and the Board, I chaired a full afternoon session that explored the issue and began to lay out an approach. Following the meeting, I wrote the initial draft of a position statement, which was circulated to the participants for feedback. Richard Bonnie, JD, consultant to the Council and professor of law at the University of Virginia, was particularly helpful in the process. I presented a revised draft to the Board of Trustees at its October 2005 meeting, where it was approved and sent to the APA Assembly, as is required for all position statements, for their review and approval.

At the Assembly, however, concern was expressed that the statement went too far; some members felt that psychiatrists had a legitimate role to play in interrogations, so long as they were not coercive. Hence, in a highly unusual move, the Assembly adopted a revised version of the position statement that differed from the Board’s by permitting participation in non-coercive interrogations. When that version returned to the Board in December 2005, the trustees reaffirmed their endorsement of the original position that I had brought to them in October. APA President Steve Sharfstein, MD, a strong supporter of the original statement, appointed a joint Board-Assembly work group to try to find a consensus that could satisfy both groups. I was asked to chair the work group, which I did.

In January 2006, the work group met in Tucson with the Assembly Committee on Planning and then on its own to try to resolve the impasse. Although some minor changes in wording were agreed on, it was clear that the two approaches represented fundamentally different views of the ethics of psychiatry: either one believed that psychiatrists have no role to play in the interrogation process, as I and a majority of the work group did, or one saw no problem with it so long as torture-like methods were not used. So the document returned to the Assembly in May 2006 for a climactic discussion and vote. I addressed the Assembly and urged them to accept the Board’s approach, as did Dr Sharfstein. In the end, by a roughly 2:1 margin, that is exactly what they did.

 The Board affirmed its position the following day, and the statement became APA policy. As a coda to the story, a few weeks later, the AMA was due to consider its own position statement on interrogation, crafted by its Council on Ethical and Judicial Affairs (CEJA). The CEJA draft, however, appeared to be more permissive than the APA’s position with regard to advising on tactics for the interrogation of particular detainees, which the APA precluded. Hence, on behalf of the Association, I wrote to the CEJA to urge them to remove the problematic language, which they did. The final AMA statement closely resembled the APA’s.

This entire account is available from public sources. Moreover, Dr Halpern is well aware of the history of the document. In what I now take to be a propitiatory e-mail that arrived a few weeks before I became aware of his article, Dr Halpern wrote, “I’ve often thought about your presentation at the Assembly meeting in 2006, when you eloquently and forcefully persuaded the representatives to adopt the Board of Trustees’ Position Statement. . . . Somehow, few know of your last-minute involvement, let alone your authorship of the Statement.” Why, then, does Dr Halpern’s own account omit any mention of my role in the process and leave the impression that I was supporting the other side?

Historical accuracy here has fallen victim to Dr Halpern’s long-standing irritation with the theory of forensic ethics that I described and which, as he correctly suggests, represents the views of most practicing forensic psychiatrists. This is not the place to review my approach in detail; interested readers can consult the full exposition in my paper.

 But in brief, I suggest that it is incoherent to assert that psychiatrists who are perform-ing forensic evaluations have the same obligation only to act in the interests of their patients that drives the ethics of clinical medicine. The evaluating forensic psychiatrist, after all, is not there to treat the person being assessed (there is, in fact, no “patient”), and the possibility that the psychiatrist will come to a conclusion adverse to the person’s interests (eg, that a criminal defendant was responsible for his actions) is precisely why the evaluation has any value for the courts.

Rather, I suggested that forensic evaluators are held to the principles of truth-telling and respect for the persons they are assessing. Ironically, it is precisely the latter principle that I believe precludes psychiatrists-even military or forensic psychiatrists-from becoming involved in interrogations. As inherently coercive (detainees who are willing to talk, after all, hardly need a psychiatrist to advise on how to question them) and typically deceptive procedures, they violate the obligation that all psychiatrists have to respect the people to whose cases they apply their skills. Indeed, this is precisely the argument that I made to the APA Assembly prior to their adop-tion of the position statement precluding psychiatrist involvement in interrogations.

Others, in addition to Dr Halpern, have critiqued my approach on one or another grounds. They have every right to do so, as does he. But no one has the right to distort the historical record to try to score points in an ideological debate. That is exactly what I object to here.

First, I wish to make it clear that my reference to the APA’s Position Statement “Psychiatric Participation in Interrogation of Detainees” was to give an example of how forensic psychiatrists have been influenced by the views of Dr Appelbaum that forensic psychiatrists work in accordance with a set of ethics principles that differ from those in The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry. I did not attempt to go into the provenance of the Position Statement or what the Statement says a psychiatrist should and should not do in connection with interrogation of detainees. In no way did I imply that Dr Appelbaum was in favor of psychiatrists being involved in such interrogations. Even a cursory reading of my commentary would convince most readers that what I was concerned about was Dr Appelbaum’s concept that a unique ethics code is required in the practice of forensic psychiatry.

Dr Appelbaum is correct in that I applauded his tremendous efforts to have the Board of Trustees’ original Position Statement win the approval of the Assembly. In fact, in the communication he cites, I told him of my regret that others claimed credit for the Position Statement that he himself authored. I also pointed out that with the exception of his views on ethics in forensic psychiatry, I am fully in accord with all the positions he has taken in our field over the years.

Dr Appelbaum’s essay provides an accurate and useful history of the creation and adoption of the APA’s Position Statement “Psychiatric Participation in Interrogation of Detainees.” However, his response to my commentary does not argue with any of the points I outline that make it abundantly clear that not a single subspecialty of psychiatry requires a code of ethics rules different from The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry.

Dr Halpern is professor emeritus of psychiatry at New York Medical College, Valhalla, NY; past president of the American Academy of Psychiatry and the Law; and past president of the International Academy of Law and Mental Health.

 Appelbaum PS. A theory of ethics for forensic psychiatry. 

 Moran M. Terrorist-suspect questioning prompts APA ethics review. 

 Appelbaum PS. Coping with the ethical conundra of forensic psychiatry: a tribute to Howard Zonana, MD. 

 Hausman K. APA addresses ethics concerns in detainee interrogation. 

 Hausman K. Board approves ’06 budget, endorses position statements. 

 Hausman K. Assembly, Board pass statement on detainee interrogations. 

 Moran M. AMA interrogation policy similar to APA’s position. 

Articles

DEBATE
When you get facts wrong, as Dr Halpern does, it is hard to end up with the right conclusions. He suggests incorrectly that my approach to forensic ethics leads to the conclusion that participation in interrogation is permissible, when exactly the opposite is true.

Forensic Ethics, Interrogations, and Getting the Facts Right

What will mental health law look like in the future? The answer to this question is of no small concern to psychiatrists, since our clinical work is shaped in infinite ways by the laws that govern our practices. Nearly three years ago, I argued that we were on the verge of a major redirection in the evolution of mental health law, a change driven by the powerful forces reshaping our systems of care: managed care, privatization of public sector services and use of nontraditional treatment settings, among others (Appelbaum, 1996). I would like to offer some further reflections and an update on this process.

To understand how mental health law is changing, one must begin with a sense of its traditional orientation. The underlying principle of the law that governs psychiatric practice has been that patients require protection from unjustified restrictions on their liberty, especially at the hands of the state. As early as the 1860s and 1870s, when allegations of patients being railroaded into asylums by relatives and conniving physicians were surfacing throughout the United States, the courts and legislatures responded by creating a body of law designed to protect patients' interests. Judicial oversight of involuntary commitment was established in many states, and patients in mental health care facilities were guaranteed such rights as unfettered contact with their attorneys and public officials, an opportunity to worship according to their beliefs, and even the right to trial by jury.

This governing paradigm continued for more than a century, dominating the widespread reforms in mental health law in the 1970s. As the standards for commitment tightened, criminal-style courtroom procedures were introduced and rules developed to preclude involuntary treatment with antipsychotic medications. The justification for these measures continued to protect patients' liberty from unwarranted intrusion. 

Protection and advocacy systems, patient representatives and other mechanisms were created to defend patients against the risk of illegitimate incursions on their freedoms. Even today, when new restrictions are placed on the use of seclusion or restraint or on the participation of psychiatric patients in research, the motivation is the historic concern with protecting patients' liberty.

A new paradigm for mental health law may be emerging, however, growing out of the cataclysmic changes in how we pay for and deliver psychiatric care. This model may give less emphasis to patients' liberties, and focus more on ensuring that appropriate care is delivered in a manner that minimizes the costs involved. Law changes slowly. Indeed, it is commonplace in legal studies to note that alterations in the law may lag a decade or more behind shifts in the substantive areas regulated. At this point, therefore, we can only hint at what may be looming ahead. But these hints may be enough to help us anticipate where mental health law is headed. What follows are several areas of change in psychiatric services and the effects they are likely to have on the shape of the law.

Commentators frequently note that the near-complete demise of indemnity insurance has left us with a system that might better be called 

. The emphasis of the current system is on restraining utilization rather than on customizing and optimizing the services that patients receive. HMOs and behavioral health managed care carveouts are given incentives to limit the amount of care provided and, as capitation becomes more common (or mechanisms such as case rates are introduced), those incentives are passed along to the caregivers themselves. In such an environment, the traditional concern that psychiatrists will overtreat patients-hospitalizing them unnecessarily and giving them medications they do not need-seems ironic at best.

The most prevalent danger, of course, is that patients in need of care will not receive it. If mental health law is to retain its relevance, it will need to shift its orientation-at least in part-from patients' negative rights (e.g., the right to be left alone) to their positive rights (e.g., the right to receive needed care). This will not be an easy reorientation for a system that evolved in order to protect patients from the very care they now seek, but are being denied. Nonetheless, there are more than a few signs that the shift is already underway. 

In my home state of Massachusetts, for example, the major state-funded patients' rights protection group, the Mental Health Legal Advisors, once roamed the halls of state hospitals to identify instances of allegedly unnecessary seclusion or other infringements of patients' liberties. Now its staff members provide the most detailed tracking available of the state's Medicaid mental health care program, the operation of which has been turned over to a private managed care company. 

The private mental health care bar also has joined the fray. Lawyers who once made their living challenging involuntary treatment practices are now suing insurers and managed care companies on behalf of plaintiffs to whom care has been denied. The effectiveness of these efforts has been limited by ERISA (the Employee Retirement Income Security Act). ERISA protects administrators of employer-provided health benefits from most forms of liability. But clever use is being made of the Americans with Disabilities Act and of ERISA itself to make inroads on the companies' immunity. There is also much talk in Congress of altering ERISA to permit victimized patients to hold insurers and their managed care partners accountable for denials of care.

Similarly, legislatures in almost every state have considered, and sometimes passed, statutes that restrict the ability of managed care companies to deny care to patients. These statutes may require notice of the grounds for rejection of payment for a service, and provide the right to an independent appeal of the decision. 

President Clinton has implemented by executive order a similar set of protections for patients receiving care as part of the federally funded Medicare and Medicaid programs. Laws guaranteeing access to care are widespread in most other industrialized countries, many of which have mandatory national health insurance. We are likely to see a growing body of such laws covering health care in general, and mental health care in particular, in this country as well.

As the percentage of gross national product devoted to health care has soared in recent decades, the serious study of health care policy has increased proportionately. With policies being crafted on a state and national level, there is an urgent need for comprehensive data on which to base decisions. Medical records, including psychiatric records, which once had value only to caregivers, have now become prized resources for policy "wonks." Their covetousness of this information challenges another pillar of mental health law: the protection it has traditionally provided for the confidentiality of patients' communications.

There has been widespread recognition of the critical need for confidentiality in psychiatric treatment. Every state in this country has some form of psychotherapist-patient testimonial privilege statute, preventing patients' disclosures in treatment from being revealed in legal proceedings without their consent.

The U.S. Supreme Court's 1996 decision in 

extended such a privilege as a matter of common law to the federal courts, and offered strong support for the importance of protecting the privacy of the therapist's office. Other statutes in most states provide penalties for the unauthorized disclosure of medical records information, with psychiatric information often given special protection. But all this may be about to change.

For several years now, Congress has considered legislation that would abrogate many of the traditional protections for medical records information, including psychiatric records. Each year these bills, supported by a coalition of employers, insurers, computer companies and researchers who crave access to these data, inch closer to passage. These groups envision regional or even national data banks, with each person's records linked across their lifetimes by means of unique identifiers. Clinicians would have similar identifiers, allowing near-instant determination of patterns of care. 

The threats to privacy by such an agglomeration of data are staggering, but the pressures to have this data available for policy decisions-many of which would presumably lead to reductions in expenditures on health care-are so strong that they may prove impossible for Congress to resist. A century-and-a-half of mental health privacy law could be thrown out with the stroke of a presidential pen.

Changes in the mental health care system are altering mental health law in different directions. One direction opens a new area of patients' rights (the right to access care), and a second closes a traditional area of patient protection (privacy rights). But there is a third way in which mental health law may be affected by the current changes. It may, in some areas, simply become irrelevant.

Commitment law offers the best example. The traditional function of commitment law has been to define that group of mentally ill persons susceptible to involuntary hospitalization, and to set limits on the period during which they could be kept against their will. When the current generation of commitment laws were adopted in the 1970s, lengths of stay on acute units were measured in weeks or even months. Laws specified that patients could not be held without a court hearing for more than five or 10 days, effectively limiting the emergency commitment power of psychiatrists and hospitals.

Now, however, typical lengths of stay on acute units are only five to seven days. It is difficult for the legal system to act quickly enough to make a difference in how long patients are held. Instead, managed care companies, and by implication the market, have taken over that task. The legal system has become substantially irrelevant to the task of regulating the duration of involuntary commitment. Consequently, pressure to change the law in one way or another has diminished. Proposals were made this year in Massachusetts, for instance, stimulated by a newspaper expos of alleged abuses, to shorten the period of time that patients could be held prior to a court hearing. However, these proposals died in the legislature upon recognition that almost no one was being held for the maximum 24 days theoretically available under existing law. 

A complementary process can be seen at the time of hospital admission. Strict commitment criteria emphasizing dangerousness to self or others were an innovation in the 1960s and 1970s. Courts and legislatures attempted to limit the pool of patients eligible for involuntary commitment in this way. Today, however, these criteria have been adopted by many managed care companies as the sole basis for hospitalization. Whether patients desire hospitalization or not, they cannot get approval of payment for their care unless they meet dangerousness criteria. Again, the law as a mechanism of control has been replaced by economicfactors.

Law is a creature of policy, and policy responds to changes in the economic, social and political environment. The remarkable stability of mental health law since the middle of the 19th century is in the process of being shaken by truly dramatic changes in the delivery of psychiatric care. It is likely, as this evolution continues, that the law's focus will broaden in some areas and narrow in others, perhaps to the point of irrelevance. Guiding these developments-and trying to shape the resulting doctrines, case law and statutes in ways that are favorable to psychiatrists and their patients-is our agenda for the next generation.

Appelbaum PS (1996), Managed care and the next generation of mental health law. Psychiatr Serv 47(1):27-28. See comments.


Dr. Appelbaum is professor and chair of the department of psychiatry at University of Massachusetts Medical School and secretary of the American Psychiatric Association.

To understand how mental health law is changing, one must begin with a sense of its traditional orientation. The underlying principle of the law that governs psychiatric practice has been that patients require protection from unjustified restrictions on their liberty, especially at the hands of the state.

Managed Care and the Next Generation of Mental Health Law: An Update

 the U.S. Supreme Court found that death row prisoners had a constitutional right not to be executed if they were incompetent (477 U.S. 399 [1986]). Competence for execution---an odd concept, but one whose roots go back to biblical times--usually requires that a prisoner understand the nature of the punishment about to be imposed and why it is being imposed. 

Dr. Lawrence Hartmann and I differ on whether it is ethical for a psychiatrist to evaluate a prisoner whose competence has been questioned. In my view, such an evaluation--which may result in saving the prisoner's life--is an ethical act. Indeed, failure to conduct the evaluation, which may be tantamount to condemning the prisoner to execution, may be unethical.

Psychiatrists and other physicians, of course, have been involved for centuries in performing evaluations for the courts and offering testimony. These activities encompass civil issues (e.g., disability, emotional harms, parental fitness), as well as criminal issues (e.g., competence to stand trial, criminal responsibility, aid in sentencing). This involvement with the courts is generally recognized as advancing the pursuit of justice and, as such, an entirely praiseworthy function. Competence for execution evaluations would appear to implicate the same goals-providing expertise to help the courts with critical determinations.

In fact, both the American Medical Association's Council on Ethical and Judicial Affairs and the American Psychiatric Association's Committee on Ethics have agreed with this conclusion. As the AMA put it, "without physician participation, individuals might be punished unjustifiably." To conclude otherwise would not only be unfair to prisoners on death row, but would place the psychiatrists who treat them in impossible ethical dilemmas. Knowing that a prisoner was severely psychotic or demented and likely to be found incompetent, a psychiatrist whose profession decided that testimony on such matters was unacceptable would be forced to stand by silently while the prisoner was put to death. Does this make sense?

Why, then, would anyone suggest that assessing a condemned prisoner's competence to be executed is unethical? Groups in this country and abroad who oppose the death penalty have decided that psychiatrists are a useful tool in their battle. If they can exclude psychiatric participation in these cases as unethical, they believe, the system would grind to a halt, not knowing what to do with potentially incompetent prisoners. This is an extremely naive view, both because it is rare for prisoners' competence to be challenged, and because psychologists or other mental health professionals with lesser training would undoubtedly be pleased to perform the evaluations in our place.

Note that this is not a debate about the legitimacy of treating incompetent prisoners to restore their capacity to face execution. Both Hartmann and I would agree that this represents a misuse of psychiatric treatment. Indeed, the situation would be less problematic if more states followed Maryland's lead in automatically commuting the sentence of incompetent prisoners to life in prison, so treatment can proceed outside the shadow of the death row. But as long as we have a death penalty, as 38 of our states now do, psychiatrists should be available to ensure that prisoners who are so ill that they do not understand what is happening to them are spared the ultimate indignity of death.

Dr. Appelbaum is Arnold Frank Zeleznik Professor and chairman of the department of psychiatry at the University of Massachusetts Medical Center. He is past president of the American Academy of Psychiatry and the Law and was recipient of the 1996 Manfred S. Guttmacher Award of the American Psychiatric Association and the American Academy of Psychiatry and the Law.  He is also secretary of the American Psychiatric Association.

American Medical Association Council on Ethical and Judicial Affairs (1995), Physician participation in capital punishment: evaluations of prisoner competence to be executed: treatment to restore competence to be executed. 

Death Sentence, Ethics, Psychiatry, Competency, Execution, Prisoner, Psychiatrists

Is It Ethical for Psychiatrists to Participate in Competency-To-Be-Executed Evaluations?

 the U.S. Supreme Court found that death row prisoners had a constitutional right not to be executed if they were incompetent (477 U.S. 399 [1986]). Competence for execution-an odd concept, but one whose roots go back to biblical times-usually requires that a prisoner understand the nature of the punishment about to be imposed and why it is being imposed.  

Dr. Lawrence Hartmann and I differ on whether it is ethical for a psychiatrist to evaluate a prisoner whose competence has been questioned. In my view, such an evaluation-which may result in saving the prisoner's life-is an ethical act. Indeed, failure to conduct the evaluation, which may be tantamount to condemning the prisoner to execution, may be unethical. 

What counts as participation in capital punishment? Is it possible for a medical activity to be ethical in one context, but a similar one not ethical in another? Is death different? Are there neat and universal ethical rules that will always guide us wisely, or are there inevitable clashes among various legitimate and important values? Is it ethically possible that a forensic psychiatrist is not a psychiatrist, as Dr. Paul Appelbaum has argued? How strongly should physicians protect their duty to always help and not harm all individual patients in the face of many pressures to do otherwise?

All these questions bear on the current debate as to whether it is ethical for a psychiatrist to perform a competency-to-be-executed evaluation. My position (a widespread and traditional position [Freedman and Halpern, 1996]), is that it is not ethical. 

 Is It Ethical for Psychiatrists to Participatein Competency-To-Be-Executed Evaluations?

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In its 1986 decision in Ford v. Wainwright, the U.S. Supreme Court found that death row prisoners had a constitutional right not to be executed if they were incompetent (477 U.S. 399 [1986]). Competence for execution-an odd concept, but one whose roots go back to biblical times-usually requires that a prisoner understand the nature of the punishment about to be imposed and why it is being imposed.

 the U.S. Supreme Court found that death row prisoners had a constitutional right not to be executed if they were incompetent (477 U.S. 399 [1986]). Competence for execution-an odd concept, but one whose roots go back to biblical times-usually requires that a prisoner understand the nature of the punishment about to be imposed and why it is being imposed. 

Note: By pressing "Submit," you are granting CME LLC and Mental Health InfoSource permission to reprint all information entered on this form.  If you prefer to remain anonymous, please do not enter your name.

Dr. Lawrence Hartmann and I differ on whether it is ethical for a psychiatrist to evaluate a prisoner whose competence has been questioned. In my view, such an evaluation-which may result in saving the prisoner's life-is an ethical act. Indeed, failure to conduct the evaluation, which may be tantamount to condemning the prisoner to execution, may be unethical.

American Medical Association Council on Ethical and Judicial Affairs (1995), Physician participation in capital punishment: evaluations of prisoner competence to be executed: treatment to restore competence to be executed.