Forensic and the Perturbation of ' Attention and Neutrality During

Robert I. Simon, M.D.

Most psychiatrists who practice the specialty of forensic psychiatry also conduct a general psychiatric practice. The free-floating attention necessary for the conduct of psychotherapy can be distracted by the many exigent demands a forensic practice places on the clinician. On the other hand, forensic psychiatrists are exposed to challenging cases and learn clinical skills ordinarily not obtainable from the general practice of psychiatry. The conduct of general practice is quite different from that of forensic practice. Understanding the essential differences should help maintain the equanimity of the and preserve the psychiatrist's attention to his or her patients.

Forensic psychiatry is burgeoning. The Most forensic psychiatrists spend past decade has witnessed enormous most of their time in the practice of growth in interest in this specialty as general psychiatry and consider forensic demonstrated by the proliferation of psychiatry a subspecialty. Very few psy- journals devoted exclusively to forensic chiatrists practice forensic psychiatry ex- psychiatry, the development of forensic clusively. Therefore, it is important to psychiatry fellowship programs, and cer- tification by the American Board of Fo- examine the influence that the practice rensic Psychiatry. In addition, the Amer- of forensic psychiatry has on psycho- ican Board of Medical Specialties has therapeutic interventions. recognized forensic psychiatry as a sub- Forensic psychiatry is defined as "a specialty of psychiatry. It has authorized subspecialty of psychiatry in which sci- the American Board of Psychiatry and entific and clinical expertise is applied Neurology to conduct examinations for to legal issues in legal contexts embrac- a certificate of added qualifications in ing civil, criminal, correctional, or leg- forensic psychiatry in 1994. islative matters."' In examining litigants, no treatment agenda exists. The forensic Dr. Simon is clinical professor of psychiatry at George- town University School of Medicine, Bethesda, Md. psychiatrist usually is retained by an at- Address correspondence to Robert I. Simon, M.D., torney to provide professional services Georgetown University School of Medicine, 7921D Glenbrook Road, Bethesda, MD 208 14-244 1. in the course of litigation. The forensic

269 Simon psychiatrist must consider a number of ing. During the quiet of a psychotherapy data sources and cannot rely exclusively session, the psychiatrist's attention may on reports from the litigant. The forensic be captured by the intellectual chal- psychiatrist's role is one of active partic- lenges posed by a complex forensic case. ipation in the legal process. Countertransferential feelings of guilt, Forensic practice usually requires the annoyance, or even anger may be felt as juggling of a number of rapidly devel- a consequence of not listening to or hav- oping cases and responding to the exi- ing to listen to the patient. Moreover, gent needs of attorneys. Some cases may forensic cases may have a certain seduc- require court testimony. Phone calls are tive allure through sheer excitement and received frequently from importuning action. The raucous scene of battling attorneys operating on court-mandated lawyers and the publicity surrounding a deadlines. The constant rescheduling of sensational case may captivate the psy- depositions, examinations, and can chiatrist's attention as the case heats up be extremely disruptive to the stable rou- to a fever pitch. If the psychiatrist is tine required for the treatment of pa- treating a difficult, low-fee patient, a tients. Travel arrangements may need to creeping resentment can undermine the be made. Invasion of the psychiatrist's quality of the psychiatrist's listening, practice by the hurly-burly of litigation particularly when forensic cases can is a reality of forensic practice. bring substantially higher fees. A steady diet of sordid and gruesome forensic cases can harden the psychiatrist and Perturbations of Attention impair the capacity for empathy so nec- Freud' discussed the importance of essary in treating patients. evenly suspended attention in psycho- Once a case is litigated, lawyers usu- therapeutic work with patients. Psychi- ally quickly move on to their next case. atrists require quiet, relaxing surround- Immediately after the , however, the ings that promote unperturbed attention forensic psychiatrist may experience a when listening to patients. Although in- "morning-after syndrome" regardless of teractive, the psychiatrist's position is the case outcome. Although elation may essentially one of attentive ne~trality.~ be experienced briefly if his or her "side" This may be less a requirement, how- wins, the forensic psychiatrist may feel ever, for psychiatrists who use cognitive- depleted, let down, or even depressed by behavioral techniques or who primarily the sudden absence of excitement. Un- use psychopharmacologic treatments. der these circumstances, the prospect of Perturbations of free-floating atten- going back to work with patients may tion and the position of neutrality may appear to be a paltry substitute. These arise from a number of directions when feelings are hardly conducive to main- the psychiatrist takes forensic cases. For taining undisturbed attention in psycho- example, most forensic cases are inter- therapy. esting; some of these cases are fascinat- The adversarial process tends to pro-

270 Bull Am Acad Psychiatry , Vol. 22, No. 2, 1994 Attention and Neutrality During Psychotherapy duce polarization of expert witnesses on the conduct of psychotherapy. Anxi- and overidentification with the side that ety may disturb the psychiatrist's posi- has retained the forensic psychiatrist. tion of neutrality, precipitating inappro- Some psychiatrists may say "our side" priate activity in therapy. Boundary vi- or "their side" when involved in litiga- olations such as talking too much, tion. As the case heads toward deposi- making self revelations, looking to the tion or trial, the polarization process can patient for reassurance, or attempting to mesmerize the psychiatrist and distract quell personal doubts engendered in lit- attention from treatment. An expected igation by impressing the patient may full-fledged, "hammer-and-tong" attack take place in an effort to discharge anx- on the forensic psychiatrist by opposing iety. The unfamiliar terrain inhabited by counsel also can be a source of consid- attorneys and judges is an unfriendly erable anxiety and can prove to be ex- landscape that can strike fear in even the tremely distracting to the psychiatrist's most seasoned forensic psychiatrist. ability to listen empathetically. Rarely returning to his or her general Complex cases require extensive prep- practice as a conquering hero, most fo- aration before deposition or trial. Di- rensic psychiatrists who have endured gesting a large amount of complex infor- litigation frequently experience a very mation is both energy consuming and comforting feeling of being "back extremely demanding of attention and home." In the haven of the ofice and concentration. At such times, the foren- amidst appreciative, sometimes even sic psychiatrist may resent the distract- adoring, patients, the psychiatrist finds ing demands of a general psychiatric comfort and refreshment. This, after all, practice. On the other hand, the psychi- is the psychiatrist's appropriate metier. atric practitioner with a small forensic To be sure, the psychiatrist has dis- practice may chafe at the demands cre- tractions arising from his or her own ated by a complex forensic case and practice quite apart from forensic pres- become irritated by the disruptive intru- sures, but the pressures feel different. For sion of litigation on patient care. Coun- example, most psychiatrists have dealt tertransferential feelings engendered by with tough clinical emergencies such as the litigation process may lead to bound- a suicidal or homicidal patient on the ary breaches with patients. If the psychi- verge of hospitalization. The anxiety and atrist must leave patients to travel fre- distraction experienced by the psychia- quently on forensic cases, finding trist usually are not of the same magni- adequate coverage can become burden- tude as that experienced before going to some. Upon the psychiatrist's return, he deposition or trial. Because of extensive or she will invariably find that some training and experience, the psychiatrist patients feel abandoned and angry and managing a clinical emergency experi- are clinically regressed. ences the locus of control within himself Anxiety created by participation in or herself. Once venturing into the un- litigation can have other adverse effects familiar legal arena, however, the locus

Bull Am Acad Psychiatry Law, Vol. 22, No. 2, 1994 271 Simon of control passes onto attorneys, judges, taining a forensic psychiatric practice. and juries. Thus, perturbations of atten- Understanding the difference between tion are much more likely to be driven medicine and law is critical to the main- by forensic anxieties than by clinical tenance of professional equanimity. It is exigencies. essential to recognize that the lawyer, One of the dangers confronting a fo- who is ethically bound to represent the rensic psychiatrist is the gradual, imper- client to the fullest, is an advocate rather ceptible erosion of professional identity. than a scientist. The lawyer will advocate Psychiatrists who practice forensic psy- the best possible case for the client while chiatry exclusively run the greatest risk attempting to diminish the opponent's of losing their professional identities as case. Lawyers are steeped in the art of physicians and healers to the unrelenting polemics, presenting arguments favora- requirements of advocacy in the legal ble only to their case. The judge or jury process. The value of a general practice will determine the outcome. of psychiatry in maintaining the practi- The adversarial procedure is not nec- tioner's clinical skills and roots cannot essarily designed to discover the truth be overemphasized. This is particularly (as in science) but to provide justice true of young psychiatrists who have through due process of law.4 Court pro- recently graduated from a or ceedings attempt to arrive at justice by fellowship program and of psychiatrists following rules of evidence that regulate who have not had substantial clinical the admissibility of data.' However, the experience before establishing a forensic rules of evidence may preclude or limit psychiatric practice. The treatment of the admission of documents or testi- patients is a humbling experience that mony deemed critical by the expert in provides a solid grounding in standard- providing complete and truthful testi- of-care issues as well as tempers expert mony. Understanding this difference be- testimony in malpractice cases. Increas- tween science and the law will prevent ingly, states are recognizing this issue needless vituperation against lawyers and are requiring forensic psychiatrists and the legal system. to spend substantial time (usually 75%) The proper maintenance of a forensic treating patients to be eligible to testify practice requires written procedures and in certain types of legal cases. The forms that also are familiar to attorneys. knowledge that one has given competent A well-constructed retainer agreement testimony preserves peace of mind. or letter of retainer should clearly set out the responsibilities sf each party. Pref- erably, all understandings and agree- Minimizing Distractions ments should be in writing. Arrange- The general psychiatrist who practices ments concerning fees should be clearly forensic psychiatry can prevent interfer- stated and established from the begin- ence with free-floating attention to pa- ning. Having money owed by attorneys tients by properly establishing and main- will certainly affect the psychiatrist's

272 Bull Am Acad Psychiatry Law, Vol. 22, No. 2, 1994 Attention and Neutrality During Psychotherapy free-floating attention. Nothing can be Should the treatment continuity of a more distracting than the anger and ag- patient being seen frequently be inter- gravation provoked by trying to track rupted, or should a patient on medica- down and extract payment from a delin- tions who is seen infrequently be re- quent attorney. scheduled? A forensic practice ordinarily requires Psychiatrists who anticipate interrup- considerable secretarial upp port.^ The tions in their patient practice because of need to screen calls effectively and man- involvement in forensic cases should age the considerable paper work engen- consider informing prospective patients. dered by litigation can become a daunt- A patient who gives an informed consent ing task for the psychiatrist practicing after being told, "If I treat you, there alone. A secretary can facilitate good may be unavoidable interruptions in psychiatrist-attorney relationships by your treatment. I will make every at- working in close cooperation with the tempt to reschedule," may experience attorney's secretary on administrative less turmoil ultimately. Some psychia- matters. trists with an expanding forensic practice Careful evaluation and selection of may find that treating patients becomes patients is important. Perturbations can an increasingly cumbersome problem. be minimized by selecting forensic cases They may begin to severely limit their that fall within the psychiatrist's exper- general practice and eventually not treat tise and that are not offensive to his or patients at all. her values.' The psychiatrist who travels Forensic psychiatrists sometimes be- frequently on forensic matters should come disturbed by the testimony of an not treat patients who are likely to de- opposing forensic expert. It is helpful to compensate in the psychiatrist's ab- remember that most cases in litigation sence. Borderline patients have an un- have equities on both sides. Otherwise, canny ability to sense when the psychi- the case would not be litigated or would atrist is preoccupied and may react with have been settled. Theoretically at least, a regressive episode. if the forensic psychiatrist were able to Frequent travel may preclude a hos- review a case for both sides, data in pital practice. New patients should begin support of both the plaintiff and the treatment during a time of anticipated defendant positions could be found. minimal disruption. Established pa- Moreover, procedural limitations may tients, if not too impaired, can tolerate unduly restrict or distort the testimony occasional scheduling changes de- of expert witnesses. To attend to patients manded by the exigencies of forensic and also practice forensic psychiatry practice without undue emotional dis- with reasonable composure, the psychi- tress. Perturbing ethical and clinical atrist must be able to tolerate formalisms choices are forced upon the psychiatrist and ambiguities inherent in litigation. by joint practice. Which patients should Occasionally, a forensic psychiatrist the psychiatrist reschedule, and why? may complain of unethical behavior on

Bull Am Acad Psychiatry Law, Vol. 22, No. 2, 1994 273 Simon the part of another forensic psychiatrist. of that participation is guided by the Almost invariably, on further inquiry, legal judgment of the attorney. Ob- the psychiatrist accused of being uneth- viously, the forensic expert's basic testi- ical is an opposing expert. Lawyers, by mony must not be influenced by the virtue of their advocacy position, tend attorney. Halpern8 cautions that ". . . the to promote polarization of expert wit- [forensic psychiatric] examiner should ness testimony. A more dispassionate be ever vigilant that he is not being understanding of the legal process may pressured to subordinate his code of eth- help the forensic psychiatrist minimize ics to the ethical cannons of the attorney the indigenous good-bad splitting that who is engaging his services." There is occurs during litigation. Also, court- an old saw among forensic psychiatrists room transferences can become very in- that wryly states, "Lawyers win cases, tense and disruptive. The expert role can experts lose them." A kernel of truth stir up powerful feelings of rivalry, nar- does exist in the observation that some cissistic omniscience, and triumph. Self- lawyers will take credit for winning a scrutiny by the expert is essential to case, but will blame the expert if the case maintaining reasonable objectivity and is lost. The forensic psychiatrist can find equanimity. consolation by maintaining a realistic Finally, perturbation of the psychia- view of litigation while continuing to trist's attention and neutrality can be practice as a physician. minimized by avoiding role confusion. The roles of the general psychiatrist in The total responsibility for litigating a diagnosing and treating patients contain case belongs to the attorney. From the many fundamental differences from attorney's standpoint, experts are a those of the forensic psy~hiatrist.~Unless means to a legal end. They have no value these roles are kept separate, much con- to the attorney beyond assisting thk legal fusion and disquiet that is sure to upset case or agenda. For opposing counsel, the psychiatrist's concentration and at- the adverse expert is an obstacle that tention to patients will ensue. For ex- must be overcome by all legal means ample, a common mistake made by psy- available. The attorney is compelled to chiatrists when first undertaking forensic zealously represent the client and is cases is to blur the distinction between merely doing his or her job in attempting patient and litigant, which impairs the to impeach the testimony of an opposing role of independent forensic examiner. expert. It is a misunderstanding of this This role confusion often is a natural aspect of being an that bias introduced by primarily treating may lead fledgling forensic psychiatrists and evaluating patients. By contrast, fo- to harbor resentment toward the rensic savvy can act as a potential con- legal profession or to leave the field taminant in psychotherapy by produc- prematurely. ing a subtle role change in the psychia- The forensic expert may play an im- trist. The psychiatrist may find himself portant part in litigation, but the extent or herself wondering if the patient is

274 Bull Am Acad Psychiatry Law, Vol. 22, No. 2, 1994 Attention and Neutrality During Psychotherapy lying or malingering or what an eyewit- as a scientist uses this approach in every- nesses' version of the patient's story day practice. Maintaining the role of a would be. These concerns, of course, are physician-scientist provides an anchor irrelevant and distracting to the psychi- amidst the uncharted waters and tem- atrist's treatment role in attempting to pests of litigation. see the world through the patient's eyes. Ethical guidelines may help psychiatrists The Good News to distinguish between these roles more clearly and particularly to avoid the dual The practice of forensic psychiatry, on positions of treatment provider and ex- the other hand, is often beneficial to the pert witness for the same individual.' psychiatrist's professional growth in a Bernard Diamondlo pointed out the number of areas.I3 Psychotherapeutic fa- fallacy of the impartial witness many tigue and boredom is lessened when the years ago. He recommended instead an psychiatrist can see a variety of cases. active, fiducial role for the forensic psy- The types of mentally disordered indi- chiatrist to ensure that the testimony viduals met in forensic practice usually given benefits the law, justice, and soci- are quite different from those encoun- ety and not the self-interest and public tered in an outpatient practice. Psychi- relations of the psychiatrist. ' ' Role con- atric disorders, many severe, that ordi- fusion in the litigation context can be narily would not be seen in general psy- minimized by maintaining one's profes- chiatric practice occur with regularity in sional identity, rather than by becoming forensic practice. Trauma-related disor- a polarized extension of an attorney's ders, violent dyscontrol syndromes, advocacy position. It is certainly appro- chronic pain disorders, paraphilias, and priate for the forensic psychiatrist to be antisocial personalities are just a few an advocate for his or her own testi- types of conditions frequently seen by mony, provided it is based on sound forensic psychiatrists. These individuals reasoning and credible data. On the often present challenges to the psychia- other hand, the expert may adopt the trist's interviewing skills, particularly role of educator, which is less narcissistic when withholding of information or than advocacy for the expert's own opin- malingering is suspected. The novel clin- ion. The expert as educator, however, ical issues presented by many forensic must be careful to avoid jargon, lectur- cases provide a constant stimulus to ing, or pomposity. In providing testi- professional growth. The forensic psy- mony as well as in practicing psychiatry, chiatrist usually is presented with a the influences of uncertainties in sci- unique opportunity to perform a thor- ence, personal value judgments, and ough, precise examination currently limitations caused by restricted or lim- lacking in so many other areas of psy- ited data must be freely acknowledged.12 chiatric practice.14 After all, in providing testimony as well Working with bright, competent at- as in practicing psychiatry, the physician torneys on interesting cases can be a

Bull Am Acad Psychiatry Law, Vol. 22, No. 2, 1994 275 Simon challenging, welcome break from the trists' free-floating attention in their psy- slow, often laborious, process of psycho- chotherapeutic work. The modus ope- therapy. Forensic psychiatry is an action randi of general psychiatry and forensic specialty that can serve as a beneficial psychiatry are quite different. Under- balance to the long hours of quiet but standing and maintaining these essential attentive listening required in psycho- differences will help preserve the ability therapy. Forensic cases are time limited. of psychiatrists to help their patients as Usually, no treatment responsibilities well as perform credibly in the legal exist. This may come as a relief to arena. some psychiatrists who are constantly required to make daily treatment References decisions. American Academy of Psychiatry and the Law: Ethical Guidelines for the Practice of Psychiatric diagnosis in legal settings Forensic Psychiatry. Baltimore, MD: Author. is critically important for court findings, 1987 financial judgments, liberty interests of Freud S: , in The Standard Edition of the Complete Psychological defendants, and some social policy de- Works of (vol 18). Edited by cision~.'~Inevitably, diagnostic skills are Strachey J. London: Hogarth, 1955, p 239 sharpened through the crucible of in- Simon, RI: Treatment boundary violations: clinical, ethical and legal considerations. Bull tense cross-examination. The forensic Am Acad Psychiatry Law 22544-46. 1992 psychiatrist cannot merely give a pontif- Simon RI, Sadoff, RL: Psychiatric Malprac- ical diagnosis. He or she must be able to tice: Cases and Comments for Clinicians. Washington, DC: American Psychiatric substantiate clinical findings with sound Press, 1992, p 8 data and reasoning. Diagnostic precision Resnick PJ: Staying comfortable in the wit- ness chair. The Psychiatric Times. September based on a sound differential diagnosis 1992, p 39 is often a beneficial outcome. Finally, Tanay E: Private Practice of Forensic Psy- participation in the often humbling legal chiatry: An Introduction. Paper presented at the 21st Annual Meeting of the American process usually exerts a salubrious effect Academy of Psychiatry and the Law. October on the psychiatrist by curbing feelings of 1990 omnipotence and omniscience that can American Psychiatric Association Council on Psychiatry and Law: Peer review of psy- develop after years of unchecked rever- chiatric expert testimony. Bull Am Acad Psy- ence or even god-like adoration by chiatry Law 20:343-52, 1992 patients. Halpern AL: Ask the experts. Am Acad Psy- chiatry Law News 1750, 1992 Simon RI: The law in psychiatry, in Ameri- can Psychiatric Press Textbook of Psychiatry Conclusion (ed 2). Edited by Talbott JA, Hales. RE. Most psychiatrists who practice the Yudofsky SC. Washington, DC: American Psychiatric Press 1994 specialty of forensic psychiatry also see Diamond BL: The fallacy of the impartial patients in the framework of a general expert. Arch Criminal Psychodynamics psychiatric practice. Involvement in fo- 3:22 1-36, 1959 Diamond BL: The forensic psychiatrist: con- rensic cases provides many professional sultant versus activist in legal doctrine. Bull benefits but also may perturb psychia- Am Acad Psychiatry Law 20: 1 19-32, 1992

Bull Am Acad Psychiatry Law, Vol. 22, No. 2, 1994 Attention and Neutrality During Psychotherapy 12. Katz J: "The fallacy of the impartial expert" 14. Halleck SL: On Being An Expert Witness. revisited. Bull Am Acad Psychiatry Law (prepublication copy, September 19, 1992) 201141-52, 1992 15. Reid WH, Wise M, Sutton B: The use and 13. Tanay E: Forensic psychiatry as a vehicle for reliability of psychiatric diagnosis in forensic teaching clinical psychiatry. Bull Am Acad settings. Psychiatr Clin North Am 15529- Psychiatry Law 1 1:242-45, 1975 37, 1992

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