Opinions by AAPL Forensic psychiatrists on Controversial Ethical Guidelines: A Survey
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Opinions by AAPL Forensic
psychiatrists on Controversial
Ethical Guidelines: A Survey
Robert Weinstock, MD; Gregory G. Leong, MD; and J. Arturo Silva, MD
A survey was conducted of a sample of AAPL members to determine their opinions
on the inclusion of controversial ethical guidelines for forensic psychiatry. Members
appear to appreciate the need to consider traditional Hippocratic values as at least
one consideration in their functioning as forensic psychiatrists. They appear to
balance their duties to an evaluee with duties to society and the legal system and
to appreciate the responsibilities of multiple agency. Support was shown for inter-
preting ambiguities in AAPL's current guidelines in the directions indicated by most
of this survey's proposed guidelines.
Ethical problems in forensic psychiatry role that traditional Hippocratic medical
can occur as a result of the inability to values should play in the practice of
resolve conflicting values of the medical forensic psy~hiatry.~?The American
and legal professions. Medicine empha- Medical Association's (AMA's) Current
sizes helping individuals and society, Opinions of the Council on Ethical and
while the law focuses upon the resolu- Judicial Affairs (hereafter, opinion^)^
tion of disputes, justice, retribution, con- states, "Ethical standards of professional
tainment, and deterrence. Because of conduct and responsibility may exceed
their differing goals, balancing of con- but are never less than nor contrary to
flicting values can become a difficult those required by law. . . . In the ethical
task with resultant ethical tradition of Hippocrates and continually
Controversies have surrounded the affirmed thereafter, the role of the phy-
sician has been a healer. . . . A physi-
Dr. Weinstock is associate clinical professor of psychia- cian's responsibilities to his patient are
try, School of Medicine, University of California, Los
Angeles and currently chair of AAPL's Committee on not limited to the actual practice of med-
Ethics. Dr. Leong is assistant professor of psychiatry, icine." The Opinions further state that
School of Medicine, University of California, Los An-
geles. Dr. Silva is assistant clinical professor of psychia- in a preemployment physical exami-
try, University of California, Los Angeles. Drs. Leong
and Silva are members of AAPL's Committee on Ethics. nation by a physician hired by
All authors are also affiliated with the Psychiatry Serv- the employer-although no physician-
ice, West Los Angeles Veterans Affairs Medical Center.
Address correspondence and reprint requests to Dr. patient relationship exists-the physi-
Weinstock, Psychiatry Service (W 1 16A), West Los An- cian should release information only
geles VAMC, 1 1301 Wilshire Blvd., Los Angeles,
CA90073. with the patient's consent and "only that
Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991Weinstock et a/.
information which is reasonably rele- sional ethical requirements can exceed
vant to the employer's decision regard- those required by the courts.
ing that individual's ability to perform AAPL's ethical guidelines have been
the work required by the job." Since a significant contribution.1° In the guide-
aspects of medical ethics apply to this lines' development, AAPL members
situation in which evaluees are not pa- were invited to communicate their opin-
tients, the implication would be that the ions." However, no systematic survey
same is true for forensic psychiatry. Psy- was undertaken of the membership as a
chiatrist Bernard Diamond proposed whole-only interested and motivated
that the forensic psychiatrist should see members were given an opportunity for
himself as being a fiduciary to the legal input. Ethical guidelines are especially
~ y s t e mAccording
.~ to Diamond's view, important because of the tendency to
psychiatrists should not violate medical blame forensic psychiatrists for the prob-
or personal ethics for a patient to whom lems of the adversary process and the
they have fiduciary duties; and they resulting "battle of the experts." Unpop-
should similarly not do so for the legal ular judicial decisions historically often
system. They should endeavor to partic- have been blamed on psychiatrists or
ipate only in ways they agree are bene- psychiatric-legal defenses. Since AAPL
ficial. On the other hand, psychiatrist does not have the mechanism to enforce
Paul Appelbaum believes the traditional its own ethical guidelines, ethics com-
medical values of beneficence and non- plaints are referred to the local district
maleficence lose their primacy to the branch of the American Psychiatric As-
value of justice in the forensic setting. sociation (APA) for APA members. Not
He states, "Psychiatrists operate outside all APA members who practice forensic
the medical framework when they enter psychiatry belong to AAPL. The APA
the forensic realm, and the ethical prin- currently has more than 35,000 mem-
ciples by which their behavior is justified bers as compared with about 1,300 for
are simply not the same.'@ AAPL. Ethical violations occur when
The current definition of forensic psy- The Principles of Medical Ethics with
chiatry as adopted by the American Annotations Especially Applicable to
Board of Forensic Psychiatry9 and the Psychiatry (hereafter annotation^)'^^ l 3
American Academy of Psychiatry and are not followed. Many of the AMA's
the Law (AAPL)" clarifies that forensic guidelines applied to psychiatry in the
psychiatry "should be practiced in ac- Annotations are relevant to forensic psy-
cordance with guidelines and ethical chiatry, and AAPL is working with the
principles enunciated by the profession APA to encourage inclusion of addi-
of psychiatry." This definition holds that tional parts of AAPL's guidelines. Fo-
the development of ethical guidelines for rensic psychiatrists who belong to the
forensic psychiatry is the responsibility American Academy of Forensic Sci-
of the psychiatric profession. Courts can ences (AAFS) can face sanction for vio-
determine only what is legal. Profes- lations of their Code of Ethics and Con-
238 Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991Survey on Controversial Ethical Guidelines
duct.14 A finding of an ethics violation AAPL survey showed results similar to
resulting in expulsion, or possibly sus- those in the second AAFS survey, al-
pension, by either group would result in though the response rate was low.I7 The
a report to the National Data Bank and best interpretation of these survey results
to state licensing boards. is that most respondents did wish to
Previous surveys of controversial eth- retain traditional Hippocratic medical
ical problems have been conducted of values as at least a salient consideration
members of the Psychiatry and Behav- when they function as forensic psychia-
ioral Science section of AAFS, which is trists.
composed primarily of forensic psychi- Because of uncertainty remaining re-
atrists who also are AAPL member^.'^. l 6 garding the opinions of AAPL members
The AAFS ethics surveys showed that on these issues, and controversy over
all but 6.2 percent had encountered eth- some ethical issues unresolved by the
ical problems in their work countering current AAPL guidelines, and the ab-
the assertion that forensic psychiatrists sence of any systematic survey of the
are insensitive to ethical dilemmas. In AAPL membership on their views of
these surveys, the "hired gun" problem ethical matters, a survey was undertaken
was found to be the problem of most to assess the opinions of the AAPL
concern to respondents. 15. l 6 Differences membership. New controversial guide-
of opinion existed on most death penalty lines were included, most of which pre-
matters including the issues of contrib- vious AAFS surveys showed to address
uting in any way to a death penalty issues representing ethical p r ~ b l e m s . 'l ~
6 ,
verdict and treating a person found in- Also included were some existing con-
competent to be executed in order to troversial guidelines. We also attempted
make him competent. A slight majority to evaluate whether AAPL members
believed that evaluating competency to were in favor of retaining medical ethics
be executed presented no ethical prob- and values when they function as foren-
lem. There was clear support, however, sic psychiatrists.
for considering both the expression of
an opinion on a death penalty matter Method
without a personal examination as well A sample of AAPL members was cho-
as the direct recommendation of a death sen by selecting every tenth name from
penalty verdict to be ethical problems. the 1989 AAPL Membership Directory.
There also was agreement that the death A total of 125 names were thus selected.
penalty should be treated differently be- For postage purposes, only addresses in
cause of its special significance. Weaker the United States were used. If the ad-
support was shown for the existing AMA dress was outside the United States, the
and APA guideline of "not being a par- next name was selected. In those few
ticipant in a legally authorized execu- instances in which the survey was re-
tion." turned because of an unknown address
Results of tri-state (New York area) or a deceased member. the next name
Bull Am Acad Psychiatry Law, Vol. 19, NO. 3, 1991 239Weinstock et a/.
in the directory was selected. A stamped 1 . Medical and psychiatric ethics re-
addressed return envelope was enclosed main a consideration when performing a
with each survey. Surveys were collected forensic evaluation. The strong support
over a two-month period. for including a guideline on this matter
We constructed a five-point Likert as well as for considering this problem
scale for respondents to indicate their an ethical one indicates that most re-
agreement ( 1 = strong agreement, 5 = spondents agree that medical and psy-
strong disagreement) with each pro- chiatric ethics are relevant considera-
posed guideline and whether each pro- tions in performing forensic evaluations.
posed guideline addressed an ethical Most forensic psychiatrists do not be-
problem. Respondents could thus agree lieve that forensic psychiatry has an eth-
with the proposed guideline while at the ics totally its own. They do not consider
same time disagree that it is an ethical medical ethics as irrelevant, or only legal
problem, or disagree with the specific or forensic ethics relevant.
ethical guideline but still believe it poses 2. Theforensic psychiatrist shodd not
an ethical problem. distort data. Although specifically stated
only in the AAFS Code of Ethics,I4 this
Results requirement may be implied under the
A total of 95 surveys were returned AAPL section requiring honestylo and
for a response rate of 76.0 percent. The the AMA and APA section 1 requiring
return rate for a single mailing was un- competent medical service.I2
usually high considering that the average 3. Sex between a forensic psychiatrist
return rate for such studies is 46 per- and an evaluee is unethical so long as
cent.'' Means and standard deviations the case remains in litigation. Most re-
were calculated. Results are summarized spondents supported the inclusion of
in Table 1. this ethical guideline and nearly every-
The unusually high response rate may one who responded believed it addressed
relate to the fact that each member who an ethical problem. Of those who ob-
received the questionnaire was informed jected to the guideline, most agreed it
that he was part of a group randomly addressed an ethical problem but com-
chosen to represent the views of AAPL mented that sex with an evaluee should
members. The high response rate also always be considered unethical with no
may reflect the strong interest of AAPL time limitation.
members in the issues surveyed and/or This guideline is important because of
their appreciation of its importance. A the frequent assertion that a doctor-pa-
stamped return envelope probably also tient relationship does not apply in a
facilitated a response. forensic evaluation which could render
The following survey ethical "guide- the ordinary sexual prohibitions in a
lines" were supported for inclusion doctor-patient treatment relationship in-
(numbered in order of decreasing sup- applicable. Some aspects of transference
port): relevant to a long-term psychotherapeu-
240 Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991Survey on Controversial Ethical Guidelines
Table 1
Results of Survev
Item No. Guideline* Ethical Problem'
1. Medical and psychiatric ethics a con-
sideration
2. No distortion of data
3. No sex with evaluee during litigation
4. Clarify legal issues if opinion ex-
pressed
5. No prearraignment examination
6. Personal evaluation if capital case
opinion
7. Responsibility to evaluee and society
8. Honest advocacy permissible
9. Evaluation only if honest opinion al-
lowed
10. Inclusion of reasoning on legal issue
11. No participation in legally authorized
execution
12. No forensic evaluation on former pa-
tient
1 = Definitely yes; 2 = probably yes; 3 = uncertain; 4 = probably no; 5 = definitely no.
' Number in parenthesis is standard deviation.
tic relationship also do not apply to a should obtain such clarification if they
relatively brief forensic evaluation. At- are unfamiliar with the relevant legal
torneys currently have no prohibition criteria. Moreover, support for consid-
against sexual relationships with clients ering it an ethical issue is found in sec-
despite potential complications. How- tion 1 of the AMA medical principles,
ever, the guideline was included because "A physician shall be dedicated to pro-
of the serious potential ethical problems viding competent medical service with
that could be caused by the subtle coer- compassion and respect for human dign-
cive aspects of a forensic evaluation. ity."12 However, the meaning of "com-
These coercive aspects, even if unin- petent medical service" is not defined.
tended, could continue at least as long Section 2, Annotation 3 states, "A phy-
as the case remained. in litigation. sician who regularly practices outside his
4. The psychiatrist shozdd strive to area of professional competence should
clarlfy the legal issues before expressing be considered unethical."" Although
an opinion on them. This guideline is most respondents agreed with inclusion
important since psychiatrists with little of this guideline, there was a difference
experience, education, or training in fo- of opinion regarding whether this is an
rensic psychiatry should be discouraged ethical issue.
from concluding that expertise in psy- 5. With regard to any person charged
chiatry is sufficient to express an opinion with a crime, ethical considerations pre-
on a legal issue without at least trying to clude forensic evaluation prior to access
clarify the legal issue. All psychiatrists to or availability of legal cozinsel (except
Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991 241Weinstock et a/.
for emergency care or treatment). This in a death penalty case without a per-
guideline already is part of AAPL's eth- sonal examination regardless of whether
ical guideline^;'^ and, except for the sub- court decisions hold such testimony per-
stitution of the word "adult" for "per- missible. The support for this guideline
son," is part of the APA's Annotations. '' implies a desire to go beyond AAPL's
The APA Ethics Committee. however, current guideline on honesty and striv-
recently voted to recommend adoption ing for objectivity (section IV)." This
of AAPL's word "per~on."'~This item guideline states, "While there are au-
was included because it had led to con- thorities who would bar an expert opin-
troversy at the ethics panel presentation ion in regard to an individual who has
at the 1989 AAPL meeting.20The strong not been personally examined, it is the
support for this guideline's inclusion position of the Academy that if, after
suggests that only a small minority of earnest effort, it is not possible to con-
members oppose its retention. At the duct a personal examination, an opinion
AAPL meeting, panel members favoring may be rendered on the basis of other
the guideline were of the opinion that its information. However, under such cir-
rationale was based on such prearraign- cumstances, it is the responsibility of the
ment evaluations being markedly incon-
forensic psychiatrist to assure that the
sistent with a traditional medical role.
statement of his opinion and any reports
In their opinion, psychiatrists should not
or testimony based on this opinion
be so unconcerned about protecting an
clearly indicate that there was no per-
evaluee that they would attempt to ob-
sonal examination and that the opinion
.tain incriminating evidence for the pros-
ecution before an attorney has been able expressed is thereby limited."
to inform a defendant of his rights or to The guideline also is important be-
give advice. It is not sufficient for the cause the U.S. Supreme Court in Bare-
prosecution-retained psychiatrist to in- foot v. Estelle2' ruled that psychiatric
form a defendant of his rights since his testimony in a death penalty case can be
primary goal under these circumstances given without a personal examination of
is not to protect the defendant and he the defendant and can be based solely
may not be sufficiently sensitive to slip- upon the consideration of hypothetical
page. His warnings therefore would not questions. This guideline would prohibit
substitute for the availability of an attor- "Dr. Deathn-type testimony. The AAPL
ney. It should be noted that availability respondents differentiated between the
as well as access to the attorney is re- courts determining what is legal and the
quired according to this existing guide- profession determining what is ethical.
line. Since this guideline already is part Most respondents favored a guideline
of the APA framework, it currently is forbidding testimony in death penalty
subject to enforcement. cases without a prior personal examina-
6. Because of the seriozrsness of the tion. Respondents appear to believe that
matter, an opinion should not be given special caution is needed in regard to
242 Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991Survey on Controversial Ethical Guidelines
testimony regarding matters as serious rendering ofan honest opinion. Although
and irreversible as the death penalty. weakly supported as both an ethical
7. As a physician, a .forensic psvchia- guideline and an ethical issue, those op-
trist o ~ v some
s responsibility both to an posed to this guideline generally called
evaluee and to society regardless of who the situation impossible. However, this
pays thejke. The support for this guide- item was included in response to a ques-
line indicates a recognition that a foren- tion to the AAPL Ethics Committee by
sic psychiatrist inevitably runs into some an AAPL member confronted with this
of the problems of multiple agency2' situation. The member wanted support
regardless of who pays the fee. The fo- not to participate. If they were aware of
rensic psychiatrist has to balance con- this additional fact, it is difficult to know
flicting values and duties. '.', whether more respondents would have
The following survey ethical "guide- supported this guideline or whether
lines" received less support (numbered many still would believe the situation
in order of decreasing support): sufficiently unusual that a guideline is
8. Once a jurensic psychiatrist has not needed. Even if it were unusual, it is
reached as objective an opinion as pos- difficult to interpret what those respond-
sible, honest advocacy is permissible so ents had in mind who indicated that this
long as the psychiatrist does nor k n o w was not an ethical issue. Perhaps they
ingly permit use of his testirnonv ji,r believed its perceived impossibility pre-
misleading purposes. This guideline cluded its becoming an ethical issue. The
would permit honest advocacy and is a APA Ethics Committee in opinion 2-2
reflection of Diamond's view of the recently has clarified that submitting to
proper role of the forensic psychiatrist.' pressure to alter an opinion to give an
It is consistent with the impossibility of expected opinion that was contrary to
"impartiality," which has been removed professional judgment would be unethi-
as a requirement from AAPL's ethical cal by not dealing "honestly with pa-
guidelines. Although this guideline was tients and colleague^."'^
supported, the relatively weak support 10. If an expert in a forensic report
suggests that a substantial minority of expresses an opinion on a legal issue,
forensic psychiatrists still believe it is honesty generally requires an explana-
both possible and necessary to remain tion of his or her reusoning and how he
impartial and not become an advocate. or she has interpreted the legal issue.
The U.S. Supreme Court in Ake v. This guideline was weakly supported
O k l ~ h o m a 'gave
~ added judicial support though many did not see it as an ethical
for the concept of the forensic psychia- issue. Its importance is that omission of
trist as an advocate. the reasoning can obscure the expert's
9. A psychiatrist should not pc'rf'orm thinking as well as obscure the distinc-
an evaluation or render an opinion at a tion between psychiatric opinions about
hearing l f regulations or policies dictate mental illness and the psychiatrist's
a specijc opinion thereby prohibiting the interpretation of the legal issue. The psy-
Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991 243Weinstock et a/.
chiatrist also could function as an arbiter Such divisions are similar to the pre-
of a moral issue disguised as an expert vious AAFS survey question regarding
opinion. Reasoning is important to al- contributing in any way to a death pen-
low the court to distinguish between psy- alty verdict.
chiatric knowledge and a misrepresen- Such division of views indicates that
tation or an idiosyncratic interpretation many forensic psychiatrists see objec-
of a legal issue or an interpretation of a tions to participation that brings about
legal issue and can be perceived as most a death penalty verdict on the basis
consistent with honesty. either of personal ethics, or of a subjec-
Differences of opinion existed for the tive perspective of professional ethics,
subsequent suggested ethical "guide- though others disagree. Philosophy pro-
lines" (numbered in order of decreasing fessor Philippa Foot believes honest par-
support): ticipation of those opposed to the death
1 1. A psychiatrist shozlld not be a par- penalty is ethical even if the opposite
ticipant in a legally authorized execzi- result occasionally is a~hieved.'~ Partic-
tion. This guideline already is included ipation thus should not be relegated
in the AMA-APA framework.12 How- solely to those who support the death
ever, it generally has been narrowly in- penalty. It is possible to be against the
terpreted to mean solely a prohibition death penalty yet participate and testify
against giving a lethal injection. An ex- honestly only under circumstances in
ception has been a recent resolution by which it is believed that an execution
the Medical Society of the State of New might be prevented. Attempts could be
York that gave this guideline a broader made to avoid participation under other
i n t e r p r e t a t i ~ n .They
~ ~ defined partici- circumstances. Honest participation
pation in an execution as including inter does not require impartiality. Diamond
alia the determination of mental and distinguished between an advocate and
physical fitness for execution. However, a "hired gun" by clarifying that the hired
in an earlier survey of AAFS members,16 gun is not honest. but that there is no
a slight majority believed performing an problem in participating honestly in
evaluation for fitness for execution pre- matters about which bias is held such as
sented no ethical problem, so support the death penalty.27 Other practitioners
for this part of the definition would seem apparently see no ethical problem in
to be divided at best. contributing to a death penalty if such a
Everyone who indicated in the ques- contribution is indirect and the psychi-
tionnaire that they knew the present ex- atrist is not the executioner. Foot be-
istence of the AMA and APA guideline lieves the death penalty is a relevant
prohibiting participation in a legally au- ethical issue for forensic psychiatry to
thorized execution supported its inclu- address since practitioners belong to a
sion. Therefore, it is likely that opposi- profession that regularly is asked to par-
tion generally came from those who in- ticipate in aspects of the death penalty
terpreted the terminology more broadly. proces~.~'
244 Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991Survey on Controversial Ethical Guidelines
12. The psychiatrist generally should conflicting appeals. In general, they do
avoid performing a forensic cvuluution not follow any single rule or allegiance
on a former patient even with the pu- absolutely.
tient 's consent. AAPL's current guide- Traditional Hippocratic ethics ap-
lines state, "A treating psychiatrist pears to play some role in the balancing
should generally avoid agreeing to be an process judging from the survey re-
expert witness or to perform an evalua- s p o n s e ~ Rather
.~ than blindly following
tion of his patient for legal purposes legal values3' or exhibiting naive thera-
because a forensic evaluation usually re- peutic bias,32 forensic psychiatrists ap-
quires that other people be interviewed pear to remain concerned about how
and testimony may adversely affect the their participation will be used, thereby
therapeutic relationship." The divided supporting Diamond's formulation of
response suggests a lack of support for the forensic psychiatrist as having a fi-
extending this cautionary guideline to ducial responsibility to the legal system.
former patients. AAFS surveys have much as the treating psychiatrist does to
shown opposition to any guideline cat- his patient.' This fiducial responsibility
egorically forbidding a forensic evalua- to the legal system, as formulated by
tion for a current patient,16." in recog- Diamond, requires the psychiatrist to do
nition of the dual treater-evaluator role what he agrees is best for the legal system
sometimes being both necessary and ap- consistent with medical ethics and per-
pr~priate.~' sonal values and not merely do whatever
the legal system asks. Although psychi-
Discussion atrist Alan Stone asserted ethical bound-
AAPL members clearly consider med- aries become unclear once the treatment
ical ethics relevant in their functioning situation no longer a p p l i e ~lack
, ~ of clar-
as forensic psychiatrists. This finding is ity exists at times even in the therapeutic
similar to that found in previous surveys context.
of AAFS members. Forensic psychia- Treating psychiatrists can no longer
trists have multiple duties and obliga- be just a single agent only to their pa-
tions. On occasion they may act as "dou- tients. In some states, required child
ble agent^"^^,^' or even "multiple abuse reports can be used to prosecute a
agents" with multiple allegiances. In patient. In "duty to protect" situations,
treatment as well as forensic situations, multiple agency exists. A recent Califor-
allegiances should be made clear. Foren- nia Supreme Court decision,33 in up-
sic psychiatrists appear in practice to holding a death penalty verdict. even
follow the balancing method proposed permits threats told to a psychotherapist
by psychiatrist Edward Hundert'.' to to be used as evidence to prove preme-
cope with conflicting obligations by ditation and deliberation in order to
weighing opposing values (even if not convict a patient of first degree murder.
consciously), or utilizing a method sim- If the threats necessitated that the thera-
ilar to ethicist Baruch Brody's3 model of pist breach confidentiality, psychother-
Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991 245Weinstock et al. apist privilege, otherwise applicable in weights on competing values (especially criminal cases, is considered absent for when considering individual situations), all information triggering a warning. and recognizes the lack of consensus Lack of privilege applies even for the with regard to the prioritization process. separate purpose of proving premedita- It is reflective of current practice al- tion and even at the penalty phase when though it does not necessarily give spe- called by the prosecution to obtain a cific guidance on how to resolve specific death penalty verdict. This decision un- ethical dilemmas. Instead, the individual doubtedly will create ethical dilemmas practitioner must perform the balancing for many psychiatrists who believe it process him or herself and probably against medical ethics even indirectly to needs education on how to do so. In help facilitate their patient's death. many instances. differing resolutions Other situations also can lead to conflict will be acceptable. The needs of the law between responsibilities. In many ethical probably should be given greater impor- dilemmas, the dearth of guidelines on tance than the needs of an individual how to prioritize conflicting values pro- evaluee, however, by the forensic psy- duces confusion. Unfortunately, there is chiatrist in contrast to the general psy- no clear-cut hierarchical predominance chiatrist. However, that does not mean or simple solution. In the survey, foren- that the forensic psychiatrist should do sic psychiatrists saw a responsibility both whatever the legal system asks without to the individual evaluated and to soci- considering the legal system's goals or ety regardless of who pays the fee in the psychiatrist's own professional and recognition of the unavoidable multiple personal values. responsibilities of physicians. Results from this survey suggest that The relevance of medical ethics makes AAPL forensic psychiatrists generally re- the current policy by which AAPL refers tain currently prevailing psychiatric- ethics complaints to the APA acceptable medical ethics and support traditional even if not ideal, and is consistent with Hippocratic medical values as relevant subspecialty status. Many practitioners in guidelines for the practice of forensic of forensic psychiatry belong to the APA p~ychiatry.~They may, however, be and not AAPL. There remain parts of given less weight than in treatment sit- AAPL's ethical guidelines, however, that uations. These results are similar to have not been incorporated by the APA. those found in previous AAFS surveys. Some of AAPL's ethical guidelines cur- There is no reason to dismiss these opin- rently remain solely guidelines for good ions as "therapeutic bias" since multiple practice and are not enforceable. More- agency and a balancing of values have over, the balancing concept and instruc- become a necessary part of all current tions regarding how to prioritize values psychiatric practice, not only for foren- in any specific way are not specifically sic psychiatry. Retention of medical val- stated in any guidelines. It therefore does ues gives a rationale for guidelines such allow for practitioners to place differing as not performing an evaluation on an 246 Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991
Survey on Controversial Ethical Guidelines
arrested individual prior to retention of tions. Practitioners will still be forced to
counsel-currently both an AAPL and struggle with ethical dilemmas. In un-
APA guideline-and not doing covert clear situations, ethics committees
forensic interviews in which the nature should permit differing resolutions of a
and purpose of an evaluation is not ex- problem.
plained to the evaluee. If the surveyed guidelines are not spe-
The strong support for most of the cifically added, this survey's results give
guidelines proposed in this survey sug- support for AAPL's Ethics Committee
gests that they should be added to interpreting ambiguities in the directions
AAPL's ethical guidelines. There is revealed by this survey. While core val-
every reason to believe the sample sur- ues of medical ethics that have de-
vey is representative of the majority of scended from the time of Hippocrates
AAPL members. Large majorities are continue to provide an important part
especially persuasive, but it remains im- of our value ~ y s t e mspecific
,~ guidelines
portant in developing ethical guidelines may be needed, as well as deleted, with
not to neglect the views of legitimate the passage of time and changing per-
minorities and not to allow ethics to be spectives. A forensic psychiatrist, and
determined solely by majority vote. sometimes even a therapist, has the
However, the supported guidelines ap- added burden of balancing medical eth-
pear consistent with other guidelines in ics with the needs and requests of the
psychiatry and forensic psychiatry. They legal system with no simple solutions.
maintain a balance between traditional This survey represents the first sys-
medical values and the needs of the legal tematic attempt to assess the views of
system. the general AAPL membership on ethi-
Although not enforced directly, those cal problems and dilemmas. The re-
AAPL Ethical Guidelines not included sponse and results show both a strong
by the APA can be perceived as ideals interest and sensitivity to ethical matters
giving guidance regarding what an ethi- and indicate support by the AAPL mem-
cal forensic psychiatrist should do. bership for the inclusion of many guide-
Guidelines and opinions can assist the lines previously considered controver-
practitioner trying to cope with an ethi- sial.
cal dilemma. They operate in what psy-
chiatrist Allen Dyer34calls an "upward References
perspective" or "ego-ideal" manner as 1. Hundert EM: A model for ethical problem
contrasted to a "downward perspective" solving in medicine with practical applica-
tions. Am J Psychiatry 144:839-6, 1987
or "superego" manner. Dilemmas are 2. Hundert EM: Competing medical and legal
produced when there are conflicting val- ethical values: balancing problems of the fo-
rensic psychiatrist, in Ethical Practice in Psy-
ues and responsibilities and no clear way chiatry and the Law. Edited by Rosner R,
to resolve the conflict. Although guide- Weinstock R. New York: Plenum Press,
1990
lines hopefully can help, they cannot 3. Brody BA: Life and Death Decision Making.
possibly foresee all conflicts and situa- New York: Oxford University Press, 1988
Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991 247Weinstock et a/.
Weinstock R. Leong GB, Silva JA: The role naires: a quantitative analysis of the pub-
of traditional medical ethics in forensic psy- lished literature. Am Soc Rev 43:447-62.
chiatry, in Ethical Practice in Psychiatry and 1978
the Law. Edited by Rosner R, Weinstock R. 19. American Psychiatric Association Ethics
New York: Plenum Press. 1990 Committee: Minutes of March, 199 1 Meet-
Stone AA: The ethics of forensic psychiatry: ing. Washington, DC, American Psychiatric
a view from the ivory tower, in Law, Psy- Association. 199 1
chiatry and Morality. Washington, DC. 20. Weinstock R, Halpern AL, Ciccone JR, Zon-
American Psychiatric Press, 1984 ana HV, Miller RD. AAPL's ethical guide-
American Medical Association: Current lines: current controversies. Presented at the
Opinions of the Council on Ethical and Ju- 20th Annual Meeting. American Academy
dicial Affairs. Chicago. American Medical of Psychiatry and the Law, Washington. DC.
Association. 1989 October 19-22. 1989
Diamond BL: The psychiatrist: consultant 2 1. Barefoot v. Estelle. 463 n.s. 880. 103 S. Ct.
vs. activist in legal doctrine. Presented at the 3383 (1983)
19th Annual Meeting. American Academy 22. Szasz TS: The Myth of Mental Illness: Foun-
of Psychiatry and the Law. San Francisco. dations of a Theory of Personal Conduct.
October 20-23, 1988. Bull Am Acad Psy- New York: Hoeber-Harper, 196 1
23. Ake v. Oklahoma, 470 U.S. 68. 105 S. Ct.
chiatry Law. in press 1087 (1985)
Appelbaum PS: The parable of the forensic 24. American Psychiatric Association: Opinions
psychiatrist: ethics and the problem of doing of the Ethics Committee on the Principles of
harm. Int J Law Psychiatry 13:249-59. 1990 Medical Ethics. Washington, DC. American
Actions of the American Board of Forensic Psychiatric Association, 1989
Psychiatry. May 1985 25. Rosner F. Halpern AL. Kark PF: Physician
American Academy of Psychiatry and the involvement in capital punishment. NY St J
Law: Ethical Guidelines for the Practice of Med 19:15-8, 1991
Forensic Psychiatry, revised 1989, in 199 1 26. Foot P: Ethics and the death penalty: partic-
Membership Directory of the American ipation by forensic psychiatrists in capital
Academy
...
of Psychiatry and the Law, pp x- trials, in Ethical Practice in Psychiatry and
XLll the Law. Edited by Rosner R. Weinstock R.
Weinstein H: How should forensic psychiatry New York: Plenum Press. 1990
police itself? Guidelines and grievances: the 27. Diamond BL: The psychiatric expert witness:
AAPL Committee on Ethics. Bull Am Acad honest advocate or "hired gun"? in Ethical
Psychiatry Law 12:289-302, 1984 Practice in Psychiatry and the Law. Edited
American Psychiatric Association: Principles by Rosner R, Weinstock R. New York:
of Medical Ethics. Washington, DC, Ameri- Plenum Press. 1990
can Psychiatric Association, 1989 28. Miller R: Ethical issues involved in the dual
American Medical Association: Principles of role of treater and evaluator. in Ethical Prac-
Medical Ethics. Chicago. American Medical tice in Psychiatry and the Law. Edited by
Association, 1980 Rosner R, Weinstock R. New York: Plenum
American Academy of Forensic Sciences: Press, 1990
Code of Ethics and Conduct. in Bylaws of 29. Halleck SL: The Politics of Therapy. New
the American Academy of Forensic Sciences, York. Science House. 197 1
30. Halleck SL: The ethical dilemmas of forensic
enacted 1988. Published in 1991 Member-
psychiatry: a utilitarian approach. Bull Am
ship Directory of the American Academy of Acad Psychiatry Law 12:279-88. 1984
Forensic Sciences. pp 134-5 3 1. Pollack S: Forensic Psychiatry in Criminal
Weinstock R: Ethical concerns expressed by Law. Los Angeles. University of Southern
forensic psychiatrists. J Forensic Sci 3 l:596- California, 1974
602, 1986 32. Pollack S: Psychiatry and the administration
Weinstock R: Controversial ethical issues in of justice. in Modern Legal Medicine, Psy-
forensic psychiatry: a survey. J Forensic Sci chiatry and Forensic Science. Edited by Cur-
33: 176-86. 1988 ran WJ. McGany AL. Petty CS. Philadel-
Weinstock R: Perceptions of ethical prob- phia, F.A. Davis Company, 1980
lems by forensic psychiatrists. Bull Am Acad 33. People v. Wharton, 91 Daily Journal D.A.R.
Psychiatry Law 17: 189-202, 1989 4957 (1 99 1)
Huberlin TA. Baumgartner R: Factors af- 34. Dyer AR: Ethics and Psychiatry. Washington
fecting response rates in mailed question- DC. American Psychiatric Press, I988
248 Bull Am Acad Psychiatry Law, Vol. 19, No. 3, 1991You can also read
