The American Academy of Psychiatry and the Law is dedicated to the highest standards of practice in forensic psychiatry. Recognizing the unique aspects of this practice which is at the interface of the professions of psychiatry and the law, the Academy presents these guidelines for the ethical practice of forensic psychiatry.
Commentary
Forensic Psychiatry is a subspecialty of psychiatry, a medical specialty. Membership in the American Psychiatric Association, or its equivalent, is a prerequisite for membership in the American Academy of Psychiatry and the Law. Hence, these guidelines supplement the Annotations Especially Applicable to Psychiatry of the American Psychiatric Association to the Principles of Medical Ethics of the American Medical Association.
The American Academy of Psychiatry and the Law endorses the Definition of Forensic Psychiatry adopted by the American Board of Forensic Psychiatry, Inc.
"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." (Adopted May 20, 1985)
The forensic psychiatrist practices this subspecialty at the interface of two professions, each of which is concerned with human behavior 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 the these concerns, the American Academy of Psychiatry and Law provides these guidelines for 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 fornesic 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 as apply to the evaluation, and any disclosure is restricted accordingly.
Commentary
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. For example, 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. 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 assure 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.
In a treatment situation, whether in regard to an inpatient or to an outpatient in a parole, probation, or conditional release situation, psychiatrists should be clear about any limitations on the usual principles of confidentiality in the treatment relationship and assure that these limitations are communicated to the patient. 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.
The informed consent of the subject of a forensic evaluation is obtained when possible. Where consent is not 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.
Commentary
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 the practices of medicine, psychiatry and forensic psychiatry. Obtaining informed consent is an expression of this request.
It is important to appreciate that in particular situations, such as court ordered evaluations for competency 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.
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 the jurisdiction's rules in regard to the patient's right to refuse treatment.
Forensic psychiatrists function as experts within the legal process. Although he may be retained by one party to a dispute in a civil matter or the prosecution or defense in a criminal matter, they adhere to the principle of honesty and they strive for objectivity. Their clinical evaluation and the application of the data obtained to the legal criteria are performed in the spirit of such honesty and efforts to obtain objectivity. Their opinion reflects this honesty and efforts to attain objectivity.
Commentary
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 the forensic psychiatrist 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 his responsibilities in an honest manner striving to reach an objective opinion.
Practicing forensic psychiatrists enhance the honesty and striving for 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 and striving for objectivity of their work, efforts to obtain 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 evaluation. 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, an opinion may be rendered on the basis of other information. However, under such circumstances, it is the responsibility of the forensic psychiatrist to assure that the statement 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.
In custody cases, honesty and striving for objectivity require that all 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, it may be inappropriate to comment on that parent's fitness as a parent. Any comment on that parent's fitness as a parent should be qualified and the data for the opinion should be clearly indicated.
Contingency fees, because of the problems that these create in regard to honesty and efforts to obtain objectivity, should not be accepted. On the other hand, retainer fees do not create problems in regard to honesty and efforts to obtain objectivity and, therefore, may be accepted.
Treating psychiatrists should generally avoid agreeing to be an expert witness or to perform evaluations of their patients for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.
Expertise in the practice of forensic psychiatry is claimed only in areas of actual knowledge and skills, training and experience.
Commentary
As regards 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.
Complaints of unethical conduct against members of the Academy will be returned to the complainant with guidance as to where the complaint should be registered. Generally, they will be referred to the local district branch of the American Psychiatric Association (APA). If the member does not belong to the APA, the complainant will be referred to the state licensing board or to the psychiatric association in the appropriate country. If either the APA, American Academy of Child and Adolescent Psychiatry, or the psychiatric association of another country should expel or suspend a member, AAPL will also expel or suspend the member upon notification of such action, regardless of continuing membership status in other organizations. AAPL will not necessarily follow the APA or other organizations in other actions.
Commentary
It is the present policy of the American Academy of Psychiatry and Law not to adjudicate questions of unethical conduct against members or nonmembers.
General questions in regard to ethical practice in forensic psychiatry are welcomed by the Academy and should be submitted for consideration to the Committee on Ethics.
The Comittee will issue opinions on general or hypothetical questions but will not issue an opinion on the ethical conduct of a specific forensic psychiatrist or about an actual case.
Should a specific complaint against a member be submitted to the Academy, it will be referred to the Chair of the Ethics Committee. The Chair will, in turn, generally direct the complainant to the ethics committee of the local district branch of the American Psychiatric Association, to the state licensing board, or to the psychiatric organization of other countries for foreign members.
The Academy, through its Committee on Ethics or in any other way suitable, will assist the local or national committee on ethics of the American Psychiatric Association, state licensing boards or ethics committees of psychiatric organizations in other countries in the adjudication of complaints of unethical conduct or the development of guidelines of ethical conduct as they relate to forensic psychiatric issues.
Last updated November 13, 1996. Site maintained by Peter Ash, M.D. Comments to pash01@emory.edu
