Ethical Issues in Forensic Psychiatry With Children and Adolescents

December 1, 2005

Forensic examinations involving children and adolescents are particularly difficult, due to the vulnerability of this patient population. What ethical guidelines should be followed and what sorts of pitfalls should clinicians attempt to avoid?

Any discussion of contemporary child and adolescent forensic psychiatry willeventually encompass considerations of the ethical underpinnings of this work.Ethical issues arise inevitably in clinical work with children and adolescentsand are even more likely to surface in forensic settings.

The term ethics refers both to a "series of moral principles that govern aperson's or group's behavior" and to "the branch of knowledge that deals withthese principles." Codes of personal ethics are at least as old as the TenCommandments, and codes of medical ethics have been a part of civilizationsince at least the Oath of Hippocrates. Contemporary medical and psychiatricpractices are grounded in ethical codes of the major membership organizationscorresponding to these areas of practice.

Medical and Psychiatric Ethics

The overarching ethical code for clinical medical practice in this countryis embodied in the American Medical Association's Principles of Medical Ethics(2001). As a reflection of the fact that the fundamental ethics concepts underwhich we operate do not much change but periodically require supplementation tocope with changing circumstances, the 2001 revision consisted of certainadditions to the original seven principles as well as two new ones. One ofthese--that a physician caring for a patient shall "regard responsibility to thepatient as paramount"--may have some particular ramifications for forensicpsychiatrists.

For years, the American Psychiatric Association's ethics approachpiggybacked on the AMA's principles (APA, 2001). It incorporated the AMA'sPrinciples and coupled them with numerous judgments, posed in Q&A format,about ethical issues commonly encountered by psychiatrists in practice or inresearch. Both the AMA and the APA supplement these documents with ethicaljudgments on issues that arise as a result of changes in society, such as theethical use of e-mail by a physician. These opinionsare available on the Web sites of the respective organizations.

Child and Adolescent Psychiatric Ethics

The Code of Ethics of the AmericanAcademy of Child andAdolescent Psychiatry (AACAP) is the third pillar on which the ethical practiceof clinical child and adolescent psychiatry rests (AACAP, 2005). As physiciansand psychiatrists, members are bound by both the AMA and APA guidelines. TheAACAP Code attempts to refine and clarify these principles because of theuniqueness of the child as patient. Enzer (1985)delineated three aspects of this uniqueness: first, childrenare dependent but become more independent over time; second, children areuniquely vulnerable both because of their dependency and because of the "potentialfor intimidation and coercion" by parents and others; and third, despite theirvulnerabilities, 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 andnon-malificence (to do no harm), from whichexhortations to practice competently, show compassion and respect, be honest,safeguard confidentiality, and respect the law all derive. Clinical medicineand psychiatry are almost exclusively patient-centered, so that the patient'sneeds 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, becausethey are in varying degrees dependent and incapable of taking fullresponsibility for themselves. This leads to the inevitability of the presenceof a third party, whether the parents or the state, which complicates issuessuch as consent and confidentiality.

Ethics Applied to Forensic Psychiatry

Forensic work has always occupied a somewhat different space from clinicalpsychiatry. 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 clinicalexpertise is applied in legal contexts involving civil, criminal, correctional,regulatory or legislative matters, and in specialized clinical consultations inareas such as risk assessment or employment." Because forensic psychiatristspractice at the interface of law and psychiatry, they may be "called upon topractice in a manner that balances competing duties to the individual and tosociety."

In other words, forensic psychiatry exists in order to provide expertise toassist courts and related agencies in making decisions. The expertise consistsof a great degree of clinical skills, including interviewing and analyzingindividuals, which are used to formulate an opinion about an individual. Theseopinions can encompass issues as disparate as whether a person is competent fortrial, fit to be a parent, able to work, or damaged by a particular physical oremotional trauma. Thus, the aim of a forensic evaluation differs from theclinician's job of helping or curing the patient. Furthermore, the forensicevaluator's primary allegiance is generally to third party, whether it is thecourts or an attorney involved in an adversarial process. As propounded by theAAPL guidelines (2005), the four overarching categories of ethical concern areconfidentiality, consent, honesty and striving for objectivity, andqualifications.

One major ethical issue of forensic psychiatry that is not present inclinical practice arises when there is confusion of the forensic and clinicalroles. This can happen either when a clinical psychiatrist decides to take onan added forensic role for the patient or when a forensic evaluator allows apatient to slip into a virtual doctor-patient relationship. The formersituation may obligate the psychiatrist to violate confidentiality and harm thepatient's interests by revealing damaging personal material. If thepsychiatrist chooses not to do so, they are violating their ethical obligationas a forensic psychiatrist to tell the truth. In the latter situation, theforensic clinician may violate their obligation to secure truly informedconsent by using their skills, even inadvertently, to lull the patient into afalse belief that confidentiality will be preserved when it will not be. Again,information could be revealed that a fully informed individual might wish notto divulge.

Strasburger et al. (1997) characterized these andother moral dilemmas as arising from a situation where the psychiatrist iswearing "two hats": that of physician, where the primary allegiance is to thepatient and, at the same time, that of objective evaluator with a primaryallegiance to another party. Because of the incompatibility of these two roles,the authors strongly encouraged the psychiatrist to avoid the situation if atall possible. For a fuller explication of these themes with some historicalbackground, see also Ratner (2002).

Forensic Child and Adolescent Psychiatry

As is the case with adult forensic psychiatry, forensic practice withchildren and adolescents revolves around various kinds of evaluation andtestimony. However, the types of evaluation generally performed are unique tothis age group. Custody and related matters, including relocation, terminationof parental rights, parent evaluations in cases of abuse and neglect, andfoster care and adoption, are the most common focus of involvement with youngerchildren. Evaluations of suspected sexual abuse also fall within the forensicsphere. Evaluations related to juvenile justice are more common with olderyouth. These include evaluations for competency to stand trial, criminalresponsibility, waiver or transfer to adult court, and evaluations of sexualoffenders. Perhaps the most common is the post-adjudicationalhearing, which focuses on the best disposition for the youthful offender.

What makes these types of evaluations unique is the fact that the individualat the center of them is not yet an adult. The entire notion of custody isbased upon the fact that a child is dependent and of an age when they areunable to care for themselves. Juvenile justice is also unique in that its aim,at least officially, is the rehabilitation of the youthful offender rather thanpunishment. Because a child or adolescent is presumed by society to be lessthan fully responsible for their actions, they are seen both as needful of thesupport of competent parenting figures and, if having offended, the substituteparenting of the state.

Custody issues are often hotly contested and, depending upon how they areinvolved, psychiatrists must be careful about their ethical obligations. Theoutcome of such a hearing is likely to be that the child is placed under thecontrol of one or another adult parent or parent surrogate. It is thuscrucially important for any psychiatrist involved in the evaluation to act in afully ethical way. For example, if a psychiatrist is attempting to perform acustody evaluation, good clinical practice requires that they interview allparties before attempting to make a decision (Weintroband Nye, 2003). If this is not possible, they are required by the ethicalprecepts of honesty and objectivity to make clear that one or more individualscould not be evaluated. Generally, it is unethical to opine about the fitnessof parents that one has not seen. If one is performing an evaluation under theauspices of one or another parent as opposed to being employed by the court,the danger of coloring one's opinion in the direction of the hiring parent isheightened. Ethical considerations prohibit tilting toward one parent or anotherfor any reason other than the child's best interests.

Regarding the evaluation of youthful offenders, to the degree that juvenilecourt has remained non-adversarial, the ethicalpressures on forensic evaluators might seem to be less than in adult court. Therepresentatives of the state in juvenile court have at least a nominalcommitment to the rehabilitation of the offender along with its duty to thepublic. As a result there may not be as vigorous an adversarial engagementaround adjudicative issues, such as competency and criminal responsibility, asone finds in criminal court. Yet the notion of juvenile court as morereminiscent of a benign case conference that an adult court, with all theplayers putting their heads together to figure out the best disposition for theyouthful offender, is rarely realized. The dichotomy of prosecution and defenseis present in juvenile court as well, except that it is more likely tocrystallize around the dispositional issues.

Unfortunately, too often the only dispositions available to the courts arethe so-called state schools, which are little better than adult prisons in manyjurisdictions. In situations where this is the case, the real adversarialconflicts take place at disposition rather than at trial. Here, the defenseattorney will be attempting to arrange for their client to be released eitherto home or to an outpatient setting, as opposed to incarceration. The ethicalissue for the forensic psychiatrist testifying about disposition involvesweighing what is best for the youth against what is good for society. While apotentially violent youth will not be helped and may well be harmed byincarceration in a juvenile facility, the likelihood that they could becomeviolent in the community must also be considered. It would be a violation ofthe precepts of honesty and striving for objectivity to present unbalancedtestimony by withholding information that could change the court's decision.

For juveniles who commit more serious crimes, in states that still mandatetransfer hearings, the prosecution will likely make a case for the teen-ager tobe waived into adult court (Ratner, 2004). Convictionin adult court leads to a permanent criminal record and, often, incarcerationin adult correctional settings. Youthful sex offenders tried as adults will belisted in the national data bank of such offenders. Worst of all, perhaps, isthat nothing worthwhile is gained by sending youth to adult court. Althoughresearch in this area is difficult to do, the evidence indicates that transferincreases recidivism, compared to youth retained in juvenile court (Ratner, 2004).

The U.S. Supreme Court has recently relieved child and adolescent forensicpsychiatrists of one major ethical concern regarding transfer to adult court:that a juvenile who commits a capital crime while still under 18 might beexecuted. Prior to their ruling in the case of Roper v Simmons (2005), 19 states had laws allowing the execution of minors of 16 years or older. True, one had to be transferred (or waived) toadult court in order to be eligible for the death penalty in these states;however, it had been getting systematically easier for a juvenile to end upthere. At one time, the law required that a juvenile be given a hearing atwhich a juvenile court judge would decide whether to retain or transfer.However, over the years, some jurisdictions have passed laws allowing transferto be automatic based on age and the seriousness of the crime or at thediscretion of a prosecutor. In states with these procedures, many morejuveniles could face adult justice.

Once a youth of 16 or 17 had been transferred to adult court in one of thesestates, conviction for a capital offense could lead to the death penalty. Atthe time of Roper, there were 73 suchindividuals on death row (Davies, 2004).

Roper, however, took the deathpenalty off the table for anyone, regardless of the seriousness of the crime,who committed it before their 18th birthday. Thus, while juvenile offenders maystill get transferred to adult court, they cannot be put to death there. Thishas proven a great relief to psychiatrists who are ethically opposed to thedeath penalty in general or for minors in particular. Those who participate intransfer hearings had great difficulty doing so with the realization thattransfer to adult court could be tantamount to a death sentence. Those workingfor the government, and expected to recommend transfer when warranted, were inan impossible position, knowing that their recommendation could lead to death.Defense psychiatrists could be haunted if their efforts to retain a juvenile,later condemned to death, failed or alternatively cause them to withdraw theirappearances if their evaluation led them to find little chance forrehabilitation.

These observations can do little more than suggest the contexts in whichethical dilemmas that face the forensic child and adolescent psychiatristarise. In fact, while ethical principles remain relatively immutable, specificsituations in which ethical problems arise are multitudinous and unique enoughthat one must be prepared to think through the application of those principlesin new and different ways. Practicing forensic child and adolescentpsychiatrists must thus remain ever vigilant by keeping a critical eye on theirown practices as well as those of others in the field.

References:

References



1.

AACAP (2005), Code of Ethics. Available at:

www.aacap.org

. Accessed Sept. 7.

2.

AAPL (2005), Ethical Guidelines for the Practice ofForensic Psychiatry. Available at:

www.aapl.org

. AccessedSept. 10.

3.

AMA (2001), Principles of Medical Ethics. Availableat:

www.ama-assn.org

. Accessed Sept. 6, 2005.

4.

APA (2001), Principles of Medical Ethics WithAnnotations Especially Applicable to Psychiatry. Washington, D.C.:American Psychiatric Association.

5.

Davies P (2004), Psychiatrists question death for teen killers. Wall Street Journal, May 26, ppB1-B2.

6.

Enzer N (1985), Ethics in child psychiatry: anoverview. In: Emerging Issues in Child Psychiatry and the Law, Schetky DH, Benedek EP, eds. New York:Brunner/Mazel, pp3-21.

7.

Ratner RA (2002), Ethics in child and adolescentpsychiatry. Child Adolesc PsychiatrClin N Am 11(4):887-904, ix.

8.

Ratner RA (2004), Juvenile justice? In: AdolescentPsychiatry, Flaherty LT, ed. Hillsdale, N.J.: Academic Press, p84.

9.

Roper v Simmons

,112 S.W.3d 397(2005), docket no. 03-633.

10.

Strasburger LH, GutheilTG, Brodsky A (1997), On wearing two hats: roleconflict in serving as both psychotherapist and expert witness. Am J Psychiatry 154(4):448-456 [see comments].

11.

Weintrob A, Nye S (2003), Custody, visitation andrelocation issues in adolescence. In: Textbook of Adolescent Psychiatry, Rosner R, ed. London:Arnold Publishers, pp430-439.