Forensic Psychiatry as a Specialty

June 1, 2004
Thomas G. Gutheil, MD

Volume 21, Issue 7

What are the qualities of forensic psychiatry? In reviewing the basis on which forensic psychiatry is defined as a specialty or, more accurately, a subspecialty of psychiatry, the author discusses the altered relation between physician and "subject," the consultative role in relation to the legal system, and the areas of specialized knowledge and skills that attend the field.

The forensic in forensic psychiatry derives ultimately from forum, the open area where disputes were aired and resolved; a similar historical origin attends the word court, from the courtyards where the same process took place. Some of the earliest forensic psychiatrists who aided the court were called alienists, and that term does capture nicely one aspect of forensic work: To most practicing clinicians, going to court for any reason is about as alien an experience as anything they have encountered. There are, of course, those hardy--or foolhardy--few that plunge into the legal system with enthusiasm and relish the tension, drama and battle of wits that the courtroom provides. Those are the forensic psychiatrists of today.

This review will address the role of forensic psychiatry as a specialty, or perhaps more accurately, a subspecialty, of psychiatry. In spite of the salient and defining differences from clinical psychiatry, good forensic psychiatry rests firmly on a clinical foundation.

What Is Forensic Psychiatry?

The code of ethics of the American Academy of Psychiatry and the Law (AAPL) (1995) defines forensic psychiatry as follows (adopted May 20, 1985):

Forensic Psychiatry is a subspecialty of psychiatry in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, and correctional or legislative matters: forensic psychiatry should be practiced in accordance with guidelines and ethical principles enunciated by the profession of psychiatry.

Forensic psychiatry honors familiar ethical principles, namely confidentiality, consent and the need for appropriate qualifications (AAPL, 1995). However, it also stresses as core principles, honesty and striving for objectivity. Another way to express this is to say that the task of the forensic psychiatrist is to protect the truth from both attorneys, each attempting to sway the psychiatrist toward that respective side of the case (Gutheil et al., 2003). As the discussion of the British debate will show, however, forensic psychiatry proceeds from a markedly different ethical base compared to clinical work.

In practice, forensic psychiatry embraces a spectrum of activities at the interface of psychiatry and law. Two major divisions are participation as expert witness functions in criminal and civil litigation. In essence, this process involves teaching the attorney about the psychiatric elements of the case and then teaching judges or juries the same.

Yet another segment of the forensic population performs institutional forensic work in prisons or forensic hospitals. Other forensic psychiatrists consult to legislatures and regulatory bodies such as licensure boards and ethics committees of professional organizations.

Unique Considerations

The author recently attended an ethics debate in the United Kingdom during which the proposition was advanced that, in essence, the ordinary doctor-patient relationship aimed at the treatment of a sick individual under the ethical rubric of beneficence and nonmaleficence did not apply; the ethical shift away from "First, do no harm" occurred because the testimony of a forensic psychiatrist serving as expert witness in court might indeed harm, or lead to harm, for the examinee. Rather, in the forensic consultation to the U.S. legal system, the relationship was not doctor-patient, but examiner-examinee; the aims of truth-telling and justice were now paramount as different, but also worthy, aims of the relationship.

This latter view, advanced with greatest clarity by Paul Appelbaum, M.D. (1990), captures the viewpoint of U.S. academic forensic psychiatrists in the present. In contrast, the British system emphasizes the service function of forensic psychiatrists, who--more commonly than in the United States--work in the context of prisons or forensic hospitals, where a clear treatment context governs the relationship with the inmate/patient. In the United States, in contrast, the role of the forensic psychiatrist as a private practitioner working outside an institution is by far the more common scenario. This contrast between the U.S. and British systems brings home the complexity of the relationship between the forensic psychiatrist and the person examined.

In the U.K. debate, one issue was whether one ceased to be a doctor during forensic work. The British delegation strongly felt that the answer to that question was no: One was always a doctor, whether practicing forensic psychiatry or, for that matter, resuscitating a fallen passerby on the street. The hidden problem in this reasoning was brought out forcefully in an important and highly provocative luncheon address to the membership of the AAPL by Alan Stone, M.D. (1984). The first provocative point was that forensic psychiatry was inherently unethical because it did not aim at the welfare of the patient; it was to this challenge that Appelbaum's (1990) reply might serve as the answer. Stone also made a point highly relevant to this part of the discussion. He observed that the most gifted interviewers, those most skilled at achieving rapport and empathic contact with the person being examined, were most likely to foster the examinee's self-disclosure, self-revelation and perhaps self-incrimination (Stone, 1984). Thus, ironically, the best doctors were also those most dangerous to the examinee.

Traditionally, this dilemma is managed in part by the use of forensic warnings that articulate how this examination is different from that by a treater. The warnings might take the following elements into account.

Examinations for court are usually not confidential and no matter on which side of the case the examiner serves, the ultimate testimony from the examination may help the examinee, hurt the examinee or have no detectable effect on the examinee, and the outcome will not be known until the case is over (Gutheil, 1998). These warnings are given to the examinee at the outset and are repeated for the examinee's protection whenever the examinee seems to be lapsing into a therapeutic mind-set.

Is This a Specialty?

An argument could be made that the answer to this question requires some excursion into context. Drawing from the above debate, consider first the forensic psychiatrist who works in a treatment context in a prison or a forensic hospital. Almost every task performed is identical to what a psychiatrist in an ordinary hospital would perform. That is, the mandate of institutionally affiliated psychiatrists is almost entirely treatment. The usual interaction with the legal system occurs periodically when the forensic psychiatrist reports to an agency such as a court or parole board about the condition or progress of the inmate/patient/acquittee found not guilty by reason of insanity. Another institutionally affiliated forensic psychiatrist might perform more court-related functions such as determining competency to stand trial, insanity or readiness to discontinue a court-ordered commitment.

As noted above, the most common form of forensic psychiatry in this country is what might be styled private forensic practice. In this model, the forensic psychiatrist is retained or hired by one of the attorneys in a case or, at times, directly by the judge in a court-appointed role.

Specialty Elements

Clinical psychiatry involves diagnosis and treatment. In contrast, as the definition of forensic psychiatry above would suggest, much of forensic work involves applying certain clinical conditions to legal criteria, the latter defined by statutes, case law or regulations. Such work, though based on a clinical foundation, requires the translation between psychiatry and law, two strikingly different paradigms of human behavior and interaction driven by markedly differing assumptions. I have compared forensic work to an operational Rosetta stone, wherein differing languages might be translated back and forth. Such translation requires an understanding of the law and legal criteria, as well as their practical application.

A second specialty element of forensic psychiatry is the knowledge of courtroom activity. This awareness requires familiarity with the serial challenges of that arena: presentation of one's opinion on direct examination in clear, jargon-free language that is accessible to the lay jury, withstanding of often forceful cross-examination and avoidance of the many pitfalls in presenting testimony that derive from peculiarities of the Socratic dialogues required. As one senior expert noted to me in a personal communication, "Testifying is lecturing under combat conditions."

Finally, a case might be made that forensic psychiatrists must attain the ability to manage the wide range of possible biasing factors that can enter into and distort objective testimony.

Conclusion

As a subspecialty of psychiatry, forensic psychiatry offers the opportunity to contribute to the legal system in a number of ways. Stressful, controversial, but probably indispensable, forensic work offers unique opportunities for the practitioner willing to enter into legalized combat in the courtroom.

References:

References


1.

AAPL (1995), Ethical guidelines for the practice of forensic psychiatry. Available at:

www.emory.edu/AAPL/ethics.htm

. Accessed April 7, 2004.

2.

Appelbaum PS (1990), The parable of the forensic psychiatrist: ethics and the problem of doing harm. Int J Law Psychiatry 13(4):249-259.

3.

Gutheil TG (1998), The Psychiatrist as Expert Witness. Washington, D.C.: American Psychiatric Press.

4.

Gutheil TG, Hauser M, White MS et al. (2003), "The whole truth" versus "the admissible truth": an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31(4):422-427.

5.

Stone AA (1984), The ethical boundaries of forensic psychiatry: a view from the ivory tower. Bull Am Acad Psychiatry Law 12(3):209-219.