Peering Through the Looking Glass: Forensic Examinations and Privacy Issues

January 1, 1999
Volume 16, Issue 1

As psychological and mental health issues increasingly take center stage in high profile criminal and civil proceedings, the ability to satiate inquiring minds often means trashing privacy and confidentiality at the altar of the public's right to know. Tyson isn't the only one whose psychological profile has been splayed out before an audience of billions in cyberspace.

The most intimate details of boxer Mike Tyson's life are easily accessible by the average person. Partly due to the publicity that surrounds his sometimes triumphant, but more often tragic, pugnacity, there is another, more sinister reason that Tyson has become an open book: Tyson's psychiatric evaluation was posted on the Internet, making it available to any of the six billion people on the planet who care to look.

As psychological and mental health issues increasingly take center stage in high profile criminal and civil proceedings, the ability to satiate inquiring minds often means trashing privacy and confidentiality at the altar of the public's right to know. Tyson isn't the only one whose psychological profile has been splayed out before an audience of billions in cyberspace. Although partially redacted, confessed Unabomber Theodore Kaczynski's psychiatric evaluation was also posted to the Web.

What influence the increased scrutiny of forensic psychiatric reports will have on the criminal and civil justice systems is still, for the most part, speculative, but these recent wholesale disclosures have created a whirlwind of controversy fueled by uncertainties.

When Ronald Schouten, M.D., J.D., director of law and psychiatry service at Massachusetts General Hospital and an assistant professor of psychiatry at Harvard Medical School, delivered the report "Independent Medical Evaluation of Michael Gerard Tyson" to the Nevada State Athletic Commission, he implored the commission to keep the contents confidential, to little avail.

"We are opposed to the public disclosure of Mr. Tyson's diagnoses and the complete clinical information contained in this report," Schouten wrote in an Oct. 12, 1998, letter to the commission, a copy of which was obtained by Psychiatric Times from the Internet. "We are providing you with more clinical detail than is our practice in similar matters and remain opposed to the dissemination of this personal information to anyone other than commission members."

Following the hearing that ultimately reinstated Tyson's boxing license, Schouten said in an interview with Psychiatric Times that he was concerned that disclosures in the Tyson case could set a dangerous precedent in other situations involving high-profile individuals.

"The commission felt an obligation, based on its legal position, that personal, clinical information, that should remain private, should be handed out to the news media and posted on the Internet," Schouten said. "As a model, it will send a message that may well have a chilling effect in terms of people's willingness to participate in the public sector. Are we going to extend this to politicians? Are we going to extend this to other people who need medical evaluations? Where do we draw the line?"

According to Schouten, it is time for a national dialogue on issues of confidentiality and the circumstances under which disclosure is in the public interest.

Even astronaut John Glenn was allowed to decline public disclosure of elements of his medical evaluation, Schouten said, but if the Nevada State Athletic Commission's lead is followed, the right to elect privacy could be threatened.

"Is our model from now on that if individuals are in the public sector and they're applying for a privilege, or they're doing something that is publicly funded, that they automatically give up all their rights to privacy?" commented Schouten. If society is ready to deny confidentiality to public figures, he warned, it better be ready to give up confidentiality for every individual, because no one knows where the line will ultimately be drawn.

Schouten is not concerned that increased scrutiny by the public will somehow corrupt or undermine psychiatrists or other mental health practitioners who perform forensic psychological evaluations. To the contrary, he said that it may inhibit evaluators from including unnecessary details. "Where forensic psychiatrists will be more circumspect is in the amount of personal detail they put into a report, and that's as it should be. People would be and should be more careful because this is personal information that may end up in the public domain, but which may not be relevant to the forensic issue."

Saul J. Faerstein, M.D., a Beverly Hills, Calif., private practice forensic psychiatrist and an assistant clinical professor of psychiatry at the University of California Los Angeles School of Medicine, narrowly ducked a stewing controversy of his own. As O.J. Simpson's psychiatrist during the period immediately following the former football star's arrest for a double murder, he was inundated with media attention. He told Psychiatric Times that widespread public disclosures generated by the Internet, and by cameras in the courtroom, can't help but have a chilling effect on the forensic evaluation process.

Under the threat that psychiatric evaluations may be broadly disseminated, Faerstein said, practitioners could hold things back, phrase things differently or not be as forthcoming, factors that would diminish the credibility and validity of the evaluators' statements. When a report is kept confidential, and disclosure is limited to individuals involved in the proceeding, "I feel free to say things in those kinds of reports that I might not say if I thought it was going to be published in The Los Angeles Times tomorrow," Faerstein said. With the deteriorating confidentiality, however, "I would be very hesitant to do some of the things that I may have done in the past," Faerstein added. The concern over how much detail to provide in a report has always existed, but the problem has become magnified by the increased likelihood of public disclosure.

Equally chilling is the effect broad disclosure has on the person being evaluated. "It makes it even more likely that there will be limitations placed on what's spoken and what's revealed during the examination," Faerstein said. Ultimately, he is concerned that, unless better safeguards are legislated, both the civil and criminal justice systems could be undermined. Although the press has always reported on public proceedings, Faerstein said that he has "always come down on the side of maintaining confidentiality and trying to secure the parameters of confidentiality. The Internet makes it more apparent that the consequences [of public disclosure] are greater because the exposure is greater."

But Phillip J. Resnick, M.D., a professor of psychiatry at Case Western Reserve University School of Medicine in Cleveland, and one of the government's forensic experts in the Unabomber case, said that psychiatrists conducting evaluations realize that their reports could become public. He added that the reports are more likely to be disseminated as the notoriety of the case increases. Although he recognizes that there is a "quantum level" leap between newspaper reports and the availability of the actual evaluation on the Internet, "It's still a public document."

"I've worked on a lot of high-profile cases and I'm accustomed to newspaper coverage of reports and testimony, so I'm not as shocked," said Resnick, whose career spans 25 years. "My style, personally, has always been to be very careful of the report, and to proofread it and be satisfied that it represents my best product, so there hasn't been any change in my work. But I think from the standpoint of protecting the defendant's personal life, I might be a little more discreet now and only put in background that I could justify as relevant to the referral issue."

Recognizing that there must be a balance between privacy and freedom of expression, Resnick said that he didn't believe that broader dissemination of evaluations on the Internet or through televised proceedings would necessarily corrupt the civil or criminal justice systems. Nevertheless, some evaluators may end up becoming more discreet and may exclude some private details that they may have once included. As some of these nuances could have been helpful to the courts, there could be some impact on the judicial process.

Larry R. Faulkner, M.D., president of the American Academy of Psychiatry and the Law (AAPL) and the vice president for medical affairs and dean of the school of medicine at the University of South Carolina in Columbia, believes broader dissemination of evaluations means that psychiatrists must be more careful about conforming to practice guidelines and making sure "whatever was done is presented in a way that is defensible." Psychiatrists have always practiced under the shadow that their reports or entries in medical records could end up disclosed to others in a way that was never anticipated. While there may be a downside to the broad dissemination offered by technology, he also says the benefit may be that psychiatrists will exercise more care in what they write after an examination.

Nevertheless, Faulkner said, a person's evaluation should be confidential and disclosed only to those with an interest in the proceedings. "There ought to be stringent guidelines adopted for who else is entitled to see this information," he added.

But according to Paul S. Appelbaum, M.D., professor and chair of the department of psychiatry at the University of Massachusetts Medical School, secretary of the American Psychiatric Association, and a former president of AAPL, the danger is that if psychiatrists restrain their observations out of fear of broad dissemination, the reports, and the resulting decisions could be less valid.

"It holds the potential for changing the interaction with the subject of an evaluation in two ways," Appelbaum said. "One is that an evaluator may be more circumspect about getting into issues that, though potentially relevant, may also be embarrassing or compromising and arguably tangential to the overall purpose of the evaluation. The other impact we can't ignore is the effect on the subject of the evaluation. To the extent that people are faced with the prospect not merely of sharing what are often very intimate details with an evaluator...but also with the prospect that their evaluations may be freely available to everyone with a computer and a modem anywhere in the world, I would think that can't help but have a chilling effect on subjects' willingness to participate in these evaluations."