Ethical Guidelines for the Practice of Forensic Psychiatry
The Canadian Academy of Psychiatry and the Law is an academy under the auspices of the CPA. At our Annual General Meeting in October 1998, there was unanimous agreement that we should adopt, in substance, the Ethics Guidelines for the Practice of Forensic Psychiatry published by the American Academy of Psychiatry and the Law (AAPL).
The following guidelines are presented here, adapted from those of APPL, so as to place these guidelines in the Canadian context.
The Canadian Academy of Psychiatry and the Law endorses the definition of forensic psychiatry used in its application for subspeciality status which is as follows:
“Forensic psychiatry is described as the application of the basic principles of psychiatry to situations dealing with legal matters, both civil and criminal.”
Membership in the Canadian Psychiatric Association, or its equivalent, is strongly recommended for membership in the Canadian Academy of Psychiatry and the Law. Hence, these guidelines supplement the Canadian Medical Association Code of Ethics Annotated for Psychiatrists.
The forensic psychiatrist practices this subspeciality at the interface of two professions, each of which is concerned with human behaviour and each of which has developed its own particular institutions, procedures, values and vocabulary. As a consequence, the practice of forensic psychiatry entails inherent potentials for complications, conflicts, misunderstandings and abuses.
In view of these concerns, the Canadian Academy of Psychiatry and the Law adopts the following guidelines adapted from the American Academy of Psychiatry and the Law concerned with the ethical practice of forensic psychiatry.
Respect for the individual’s right of privacy and the maintenance of confidentiality are major concerns of the psychiatrist performing forensic evaluations. The psychiatrist maintains confidentiality to the extent possible given the legal context. Special attention is paid to any limitations on the usual precepts of medical confidentiality. An evaluation for forensic purposes begins with notice to the evaluee of any limitations on confidentiality. Information or reports derived from the forensic evaluation are subject to the rules of confidentiality, and any disclosure is restricted accordingly.
The forensic situation often presents significant problems in regard to confidentiality. The psychiatrist must be aware of and alert to those issues of privacy and confidentiality presented by the particular forensic situation. Notice should be given as to any limitations.
Before beginning a forensic evaluation, psychiatrists should inform the evaluee that although they are psychiatrists, they are not the evaluee’s “doctor.” Psychiatrists should indicate for whom they are conducting the examination and what they will do with the information obtained as a result of the examination. This information may be included in a report which may go to the referring lawyer. It is possible the report may be used in court which is a public forum. The patient should also be made aware that the report may be helpful, may make no difference, or may even have a negative impact. There is a continuing obligation to be sensitive to the fact that although a warning has been given, there may be slippage and a treatment relationship may develop in the mind of the examinee.
Psychiatrists should take precautions to ensure that none of the confidential information they receive falls into the hands of unauthorized persons.
Psychiatrists should clarify with a potentially retaining attorney whether an initial screening conversation prior to a formal agreement will interdict consultation with the opposing side if the psychiatrist decides not to accept the consultation.
It should be noted that anything the lawyer says to a psychiatrist may be confidential and privileged so any discussion with the lawyer for the other side may be a conflict of interest.
In a treatment situation, whether inpatient or outpatient,in a parole, probation, or conditional release situation, psychiatrists should be clear about any limitations with respect to principles of confidentiality in the treatment relationship and ensure that these limitations are communicated and understood by patients. Psychiatrists should be familiar with the institutional policies in regard to confidentiality. Where no policy exists, psychiatrists should clarify these matters with the institutional authorities and develop working guidelines to define their role. If medical (psychiatric) ethics and institutional policies are incongruent or in conflict, the psychiatrist should inform the institution of the medical ethics (guidelines) involved in order to clarify the psychiatrist’s position.
The informed consent of the subject of a forensic evaluation is obtained when possible. Where consent is not legally required, notice is given to the evaluee of the nature of the evaluation. If the evaluee is not competent to give consent, substituted consent is obtained in accordance with the laws of the jurisdiction and/or medical standards of practice.
Consent is one of the core values of the ethical practice of medicine and psychiatry. It reflects respect for the person, a fundamental principle in medicine, psychiatry and forensic psychiatry. Obtaining informed consent is an expression of this respect and is in keeping with the inherent rights of all people in our society as defined by the Canadian Charter of Rights and Freedoms.
It is important to appreciate that in particular situations, such as court ordered evaluations for fitness to stand trial or involuntary commitment, consent is not required. In such a case, the psychiatrist should so inform the subject and explain that the evaluation is legally required and that if the subject refuses to participate in the evaluation, this fact will be included in any report or testimony.
If the patient refuses to participate, he/she should be afforded every respect. However, the psychiatrist should inform the patient of any sequelae or inferences that may follow from this refusal.
With regard to any person charged with criminal acts, ethical considerations preclude forensic evaluation prior to access to, or availability of, legal counsel. The only exception is an examination for the purpose of rendering emergency medical care and treatment.
Consent to treatment in a jail or prison or other criminal justice setting must be differentiated from consent to evaluation. The psychiatrists providing treatment in these settings should be familiar with, and adhere to, the jurisdiction’s rules in regard to the patient’s right to refuse treatment.
III. HONESTY AND STRIVING FOR OBJECTIVITY
Forensic psychiatrists function as experts within the legal process. Although they are typically retained by only one party to a dispute in a civil matter or either the prosecution or defense in a criminal matter, they must adhere to the principle of honesty and strive for objectivity in their observations and opinions.
Their clinical evaluations and the application of the data obtained to the legal criteria are performed in the spirit of such honesty and efforts to attain objectivity. Their opinion reflects this honesty and efforts to attain objectivity.
The adversarial nature of our Anglo-American legal process presents special hazards for the practicing forensic psychiatrist. Being retained by one side in a civil or criminal matter exposes forensic psychiatrists to the potential for unintended bias and the danger of distortion of their opinion. It is the responsibility of forensic psychiatrists to minimize such hazards by carrying out their responsibilities in an honest manner striving to reach an objective opinion.
Practicing forensic psychiatrists enhance the honesty and objectivity of their work by basing their forensic opinions, forensic reports and forensic testimony on all the data available to them. They communicate the honesty of their work, efforts to attain objectivity, and the soundness of their clinical opinion, by distinguishing, to the extent possible, between verified and unverified information as well as among clinical “facts”, “inferences” and “impressions.”
While it is ethical to provide consultation to an adversary in a legal dispute as a testifying or reporting expert, honesty and striving for objectivity are required. The impression that psychiatrists in a forensic situation might distort their opinion in the service of the party which retained them is especially detrimental to the profession and must be assiduously avoided. Honesty, objectivity and the adequacy of the clinical evaluation may be called into question when an expert opinion is offered without a personal examination. While there are authorities who would bar an expert opinion in regard to an individual who has not been personally examined, it is the position of the Academy that if, after earnest effort, it is not possible to conduct a personal examination, a general opinion may be rendered on the basis of other information. However, under such circumstances, it is the responsibility of forensic psychiatrists to assure that the statements of their opinion and any reports of testimony based on those opinions, clearly indicate that there was no personal examination and the opinions expressed are thereby limited. The psychiatrist may give testimony in the form of a hypothetical construct or comment upon general psychiatric issues but should clearly delineate the limitations that this imposes on his/her opinion.
The psychiatrist should not give testimony solely as a result of observations made in the courtroom.
In custody cases, honesty and objectivity require that all relevant parties be interviewed, if possible, before an opinion is rendered. When this is not possible, or if for any reason not done, this fact should be clearly indicated in the forensic psychiatrist’s report and testimony. Where one parent has not been interviewed, even after deliberate effort has been made to do so, it may be inappropriate to comment on that parent’s fitness as a parent. Any comments on that issue should be qualified and the data for the opinion be clearly indicated.
Limitations of an assessment should be made known in the report. Data refuting the opinion, as well as that supporting it, should be disclosed.
Contingency fees, because of the problems that these create in regard to honesty and efforts to attain objectivity, should not be accepted. On the other hand, retainer fees do not create problems in regard to honesty and efforts to attain objectivity and, therefore, may be accepted.
Treating psychiatrists should avoid agreeing to be an expert witness or to perform evaluations of their clinical patients for legal purposes. A treating psychiatrist establishes a therapeutic alliance and rapport with his/her patient and is, therefore, an advocate for the patient. He/she cannot, therefore, be truly objective and fully honest as requested of an expert giving an opinion in a legal forum. The psychiatrist should clearly declare the inherent bias that is always present in a therapeutic relationship. A treating psychiatrist providing an opinion about a patient in treatment seriously risks destroying the treatment process and thereby causing harm to his/her patient. This violates a central ethical imperative of all medical practice, primum non nocere.
Expertise in the practice of forensic psychiatry is claimed only in areas of actual knowledge and skills, training and experience.
With regard to expert opinions, reports and testimony, the expert’s qualifications should be presented accurately and precisely. As a correlate of the principle that expertise may be appropriately claimed only in areas of actual knowledge, skill, training and experience, there are areas of special expertise, such as the evaluation of children or persons of foreign cultures, or prisoners, that may require special training and expertise.