Ethical Issues in the Use of the Treating Psychiatrist as an Expert Witness


Issues involving psychiatry increasingly permeate the practice of law. Whether it is an issue of competency to stand trial, consent, the plea of not guilty by reason of insanity, or some other criminal law-connected issue or an issue of post-traumatic stress disorder resulting from workplace violence, racial or sexual harassment or the garden variety automobile accident, mental health issues abound in our legal systems. An attorney should have some basic understanding of the ethical issues involved in determining whether to use the services of the treating psychiatrist(1) or to obtain the services of a forensic psychiatrist.(2)

"What is a forensic psychiatrist?"

The term "forensic psychiatrist" has been applied to the psychiatrist performing the function of an expert in the legal system as opposed to performing the function of a clinician. Today, forensic psychiatry is recognized as a subspecialty of psychiatry, and the American Board of Psychiatry and Neurology now offers Certification in the Subspecialty of Forensic Psychiatry; although Certification is not a prerequisite at this time for calling oneself a forensic psychiatrist.(3) The forensic psychiatrist must be trained in various subjects relating to law and should have relevant clinical experience in order to properly understand the interconnection between the legal system and the practice of psychiatry.(4)

"What is the ethical guideline involved in the question of whether to use the treating psychiatrist or an independent forensic psychiatrist?"

The ethical guideline is that, in general, the treating psychiatrist should not be engaged to render expert testimony; an independent forensic psychiatrist should provide whatever expert testimony may be required. This is expressed by the American Academy of Psychiatry and the Law ("AAPL") as follows: "A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes ... "(5)

Similarly, one of the most recognized forensic psychiatrists, the late Bernard L. Diamond, reminds the treating psychiatrist: "The role of the [treating] physician is clear, and ethical obligations to the patient . . . are not altered just because the psychiatrist is required to take he witness stand[.]"(6) As the Hippocratic Oath states:

Whatsoever things I shall see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as holy secrets.(7)

"What are the bases underlying this ethical guideline?"

The essential distinction between the treating psychiatrist and the forensic psychiatrist is one of advocate versus neutral. The treating psychiatrist must be the patient's advocate; the forensic psychiatrist must be the legal system's neutral party. Item number IV of the AAPL statement of ethical guidelines for the forensic psychiatrist reads:

Honesty and Striving for Objectivity

The forensic psychiatrist functions as an expert 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 manner, he adheres to the principals of honesty and striving for objectivity. His clinical evaluation and the application of the data obtained to the legal criteria are performed in the spirit of such honesty and striving for objectivity. His opinion reflects this honesty and striving for objectivity.(8)

The AAPL guideline identifies two of the major rationales for this ethical position. One rationale is that the treating psychiatrist's testimony may adversely affect the therapeutic relationship. This could occur in several different ways. One, of course, is that the treating psychiatrist may have to testify about some confidential and perhaps embarrassing information divulged during therapy which the patient did not believe would ever become public. This could permanently and adversely affect the trust level necessary for a successful therapeutic relationship.

A second way could be that the patient expects his therapist to testify favorably in support of the position he wants advanced at trial. For various reasons the therapist may not be able to do this. For example, perhaps the therapist does not believe the patient is appropriately addressing some issues being dealt with in therapy which are at odds with the patient's view of his situation. Full and frank testimony by the therapist could severely impair any progress accomplished, as well as damage the future of the therapeutic relationship.

Another way it could occur is through the cross-examination of the treating psychiatrist. If the cross-examination is particularly aggressive and the psychiatrist is not able to handle himself effectively, either because he is a poor witness or is required to divulge certain information previously thought to be protected from discovery, the patient may lose confidence in the ability of the psychiatrist to effectively treat him, thus destroying whatever therapeutic alliance had been built up to that point.(9)

Yet another way could be a jury's determination that the psychiatrist's projection of a need for extended treatment may be little more than an attempt to benefit economically from his patient's condition. This could then result in a smaller than appropriate judgment, something the patient may blame on the therapist. Finally, the patient may hedge what is revealed in therapy, as he may be more interested in the potential impact on his case of what he tells the psychiatrist than on what may be necessary to further his treatment.(10)

Dr. Paul Appelbaum notes that the primary ethical concern of treating psychiatrists is "to advance their patients' interests and avoid causing them harm, reflecting the principles of beneficence and nonmaleficence."(11) In some advice to expert witnesses, the American Counseling Association's publication on that subject states: "It is important to stress that [the expert's] testimony is for the purpose of assisting a judge or jury to make a decision in a case and not for helping the plaintiff or defendant to win."(12) The publication further notes: "You [the expert] are not a client advocate when you perform the duties of an expert witness but rather an objective witness who 'teaches' the court through your learned opinions."(13)

The other rationale is that a forensic evaluation usually requires other people to be interviewed. In some treatment situations, it may be appropriate for the treating psychiatrist to contact, and even interview, other individuals. The essence of the therapeutic relationship, however, is to develop trust to allow the patient to have complete confidence in being able to reveal his innermost secrets completely and in a confidential manner. In preparing to provide expert testimony before an administrative body or a court, the forensic psychiatrist generally needs to obtain information from family members, co-workers, and others.

If the treating psychiatrist were to do this, he would run the risk that the patient would feel his credibility were being challenged; his psychiatrist is checking up on him to see if what the patient is saying is true. This clearly endangers the professional relationship.(14) However, if, in order to avoid this risk, the patient "is made aware at the outset of the treatment that the therapist will be performing a forensic function, it is difficult to imagine how open communication and effective treatment can take place."(15)

It is important to note that the ethical guideline contains the modifier "in general." This is significant, because there is a recognition that sometimes it is impossible to avoid this conflict. Some administrative agencies may require a statement from the treating psychiatrist in order for the patient to qualify for certain benefits. It is also possible that, because of sparse population, there are only one or two psychiatrists in an entire area, thus making it virtually impossible to engage the services of an independent forensic psychiatrist.(16) For example, there are no psychiatrists in Montana between the North Dakota border and Billings, a distance of more than 250 miles by Interstate; and mental health services, in this and other outlying areas, are being delivered more and more by teleconference.(17) Thus, a hard and fast rule forbidding a treating psychiatrist from serving as an expert, as well, would necessarily fail to serve all of the legitimate, competing interests in this area. This rule, however, should be observed in all situations possible.

Conclusion

To the extent that attorneys are able to exercise some control in this area, and this should generally be the case in Ohio, treating psychiatrists should not be asked to compromise their treatment effectiveness and ethical boundaries by serving as expert witnesses for their patients. Furthermore, irrespective of the status of the physician-patient privilege,(18) attorneys opposing those parties who have sought the assistance of psychiatrists should not jeopardize treatment relationships by "blackmail" through the unilateral use of the subpoena power. Subpoenas should not be issued to the treating psychiatrist creating ethical-confidentiality concerns on the part of the psychiatrist without the issue first being fully explored with opposing counsel and prior notice given to the psychiatrist to be subpoenaed.

While the Code of Professional Responsibility may not speak directly about this issue, Canons 1, 6, 7, and 8 touch on matters raised in this article. Ethical Consideration 8-2 can well be read to address the issue of the aggressive attorney practicing within the letter but not the spirit of the Civil Rules of Procedure: "Rules of law are deficient if they are not just, understandable, and responsive to the needs of society."

The American Bar Association Section on Litigation has published guidelines for litigation to try to coax attorneys and judges to work cooperatively to ensure the efficacy of the court system. In the section on "Lawyer's Duties to Other Counsel" the Guidelines address this in two ways:

...

2. We will not, even when called upon by a client to do so, abuse or indulge in offensive conduct directed at other counsel, parties, or witnesses. ... We will treat adverse witnesses and parties with fair consideration.

...

10. We will not use any form of discovery or discovery scheduling as a means of harassment.(19)

Society has recognized the need for confidentiality in psychotherapeutic relationships, just as it has in attorney-client relationships.(20) Attorneys need to understand the ethics of other professions, for it does not advance the cause of justice nor the integrity of the legal profession to ignore the ethical boundaries of others.(21)

Endnotes

1. While other mental health professionals such as psychologists or social workers have the same type of issues, this article specifically addresses the field of psychiatry.

2. Paul A. Appelbaum & Thomas G. Gutheil, Handbook of Clinical Psychiatry and the Law, 2nd ed., p. ix, Williams & Wilkins (1991)

3. Many well qualified forensic psychiatrists have not taken this Subspecialty exam, as it only came into existence in this decade. At this point, then, Certification is a sufficient but not a necessary condition precedent to practice as a "forensic" psychiatrist.

4. The American Academy of Psychiatry and the Law ("AAPL") uses the following definition:

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 principles enunciated by the profession of psychiatry.

(Available on the World Wide Web at http://www.emory.edu/AAPL/ethics.htm)

5. Ethical Guidelines for the Practice of Forensic Psychiatry of the American Association of Psychiatry and the Law. Commentary to Guideline IV. Id.

6. Bernard L. Diamond, "The Psychiatrist as Expert Witness" p. 235, in The Psychiatrist in the Courtroom: Selected Papers of Bernard L. Diamond, M.D., Jacques M. Quen, ed., The Analytic Press, 1994.

7. James C. Beck, "The Basic Issues" p. 5, in Confidentiality versus the Duty to Protect: Foreseeable Harm in the Practice of Psychiatry, James C. Beck, ed., American Psychiatric Press (1990).

8. The Commentary to Item IV includes the following paragraph: "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 his opinion. It is the responsibility of the forensic psychiatrist to minimize such hazards by carrying out his responsibilities in an honest manner striving to reach an objective opinion." supra.

9. Larry H. Strasburger, et al., On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness, 154 A. J. Psychiatry 448, at 450 (1997).

10. Many plaintiffs' attorneys probably could readily relate to this. While in practice, I had a client who never failed to ask how some new ache or pain would affect his tort claim.

11. Applebaum, supra.

12. William J. Weikel & Theodore P. Remley, Jr., The Counselor as Expert Witness in the American Counseling Association Legal Series, p. 11 (1993).

13. Id., at p. 29.

14. Strasburger, et al., supra.

15. Paul S. Appelbaum, Ethics in Evolution: The Incompatibility of Clinical and Forensic Functions, Editorial, 154 A. J. Psychiatry 445 (1997).

16. Carlos A. Zarate, Jr., et al., Applicability of telemedicine for assessing patients with schizophrenia: acceptance and reliability, 58 J. Clin. Psychiatry 22 (1997).

17. "Telepsychiatry Grows in Popularity", Clinical Psychiatry News, p.1, April, 1997; Jane Preston, et al., Using Telemedicine to Improve Health Care in Distant Areas, 43 Hosp. & Comm. Psychiatry 25 (1992).

18. See, Susan O. Scheutzow & Anthea R. Daniels, The Discovery of Medical Records Maintained by Health Care Facilities: Inconsistent Law in Need of Legislative Correction, 5:2 J. Law and Health 179 (1990-91) for a recent historical look at physician-patient confidentiality issues.

19. Guidelines to Litigate By, ABA Journal, July, 1997, pp. 96-97.

20. Jaffee v. Redmond, 518 U.S. 1, 113 S.Ct. 1923 (1996).

21. An edited version of this article appeared in the July/August issue of Ohio Lawyer©, a publication of the Ohio Bar Association, 12:4 Ohio Lawyer 6 (1998).

About the Author: Paul A. Nidich is employed at the University of Cincinnati College of Medicine; and has successfully found neuropsychological, medical, and psychiatric experts for other attorneys.

Copyright © 1999 Paul A. Nidich, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Apr 28, 2015.