A Theory of Ethics for Forensic Psychiatry

Paul S. Appelbaum, MD

This article offers a justification for a set of principles that constitute the ethical underpinnings of forensic psychiatry. Like professional ethics in general, the principles are based on the particular societal functions performed by forensic psychiatrists and result in the intensification of obligations to promote certain important moral values. For forensic psychiatrists, the primary value of their work is to advance the interests of justice. The two principles on which that effort rests are truth-telling and respect for persons. In the same manner as other physicians who perform functions outside of the usual clinical context (e.g., clinical research- ers), forensic psychiatrists cannot simply rely on general medical ethics, embed- ded as they are in the doctor-patient relationship-which is absent in the forensic setting. Indeed, efforts to retain some residuum of that relationship and its asso- ciated ethical principles are likely to create confusion in the minds of both forensic psychiatrists and their evaluees and to heighten the problems of double agency. A virtue of this approach is the clear distinction it offers between clinical and forensic roles.

111 1982, at the annual meeting of the ing possibilities, he charged, were either American Academy of Psychiatry and the internally inconsistent or useless in prac- Law (AAPL), Alan Stone posed a stark tice. Indeed, so chaotic was the state of challenge to the moral legitimacy of fo- ethics in forensic work that forensic psy- rensic psychiatry.' Casting a skeptical chiatrists "are without any clear guide- eye on the ethical principles forensic psy- lines as to what is proper and ethical." chiatrists might use to guide their behav- If correct, as Stone's audience grasped ior, Stone rejected them all. The compet- immediately, this conclusion has some fairly troubling implications for forensic --- -- Dr. Appelbaum is A. F. Zelcznik Distinguished Profes- psychiatry. A field that is unable to dis- sor of Psychiatry and Chair, Department of Psychiatry, University of Massachusetts Medical Centel-, WOI-cester. tinguish the proper from the improper, the MA. This paper was prepared while he was Fritz Redlich ethical from the unethical, must tolerate Fellow at the Center for Advanced Study in the Behav- ioral Sciences (CASBS), Stanford, CA. The author ac- all behaviors equally, since no neutral knowledges support from CASBS's Foundations Fund principle exists for accepting some and for Research in Psychiatry and from NSF Grant SBR- 9022192. An earlier version of this paper was presented conden~ningothers. There can be no good as the Presidential Address at the 1996 Annual Meeting practices and no bad practitioners. The of the American Academy of Psychiatl-y and the Law, San Juan, Puerto Rico, October 17, 1996. Address cor- formulation of standards of behavior is respondence to: Paul S. Appelbaum, MD, University of beyond the profession's reach. It is diffi- Massachusetts Medical Center, 55 Lake Avenue North, Worcester, MA 01655. cult to imagine another occupation about

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 233 Appelbaum which a similar statement may be made; medicine have done."ndeed. Stone him- even thieves, after all, are said to have self, in his more recent writing. seems honor among them. Forensic psychiatry, less despairing of being able to identify in this view. is a quintessentially lawless some operational principles and is even activity. willing to offer suggestions for minimiz- Had Stone merely been describing the ing ethical conflicts7 contemporary state of ethics in forensic If the situation was never as bleak as psychiatry, his portrayal might have been Stone's portrayal. and if considerable at- taken as a challenge. Organized forensic tention has been given in the intervening psychiatry was relatively young at that years to formulating more clearly the pro- point, its major organization, the AAPL. fession's ethical foundations, there is one having been founded only 13 years ear- respect in which we might yet legiti- lier. If insufficient attention had been paid mately be criticized. Forensic psychiatry to ethics so far. that was unfortunate. but still lacks a theory of ethics by which to remediable. But Stone's judgment was shape its behavior. By theory I mean the more pessimistic still, preempting the justification of a set of principles that possibility of future advances. Not only constitute the ethical underpinnings of fo- had no guiding principles for forensic rensic work, based on which operational- work been identified to date-the task ized guidelines can be formulated in a was hopeless. The bedrock principles of consistent fashion. Such a theory would beneficence and nonmaleficence, to enable us to resolve conflicts regarding which medicine had looked historically, the applicability of various ethical princi- were inapplicable outside the clinical ples to forensic psychiatry, as well as realm. Without these compass points to assist us in more precisely crafting ethical steer by. forensic psychiatry was con- guidelines for particular circumstances. demned to wander in an ethical waste- To be sure. various commentators, land. permanently bereft of moral legiti- myself included, have addressed one or macy. another principle that might constitute In the years since Stone's speech, many components of a theory of forensic commentators have challenged his nihil- 8p10 But none has linked ism regarding forensic ethics, pointing lo these principles to a more comprehen- principles that might constitute starting sive schema. I suspect that inarticulated points for an ethical framework for foren- elements of such a theory exist among sic psychiatry.'p4 The AAPL itself has forensic practitioners. Indeed. it would formulated a code for its members that. otherwise be difficult to account for the although far from comprehensive. offers widespread agreement in the field about generally accepted guidelines for behav- so many aspects of forensic ethics.", " ior.' The organization has begun issuing The task that remains is to make ex- opinions of its Ethics Committee to "flesh plicit those moral judgments that lie just out" the bare bones of the guidelines, below the surface of consciousness and much the way other specialty groups in to provide a justification for them.

234 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Theory of Ethics for Forensic Psychiatry

I propose in this article to develop the proscribe behavior likely to cause harm to outlines of a theory of ethics for forensic other people. "Thou shalt not kill'' is a psychiatry. It seems inevitable that such a classic example of a moral rule. We are theory will be in some ways incomplete always obligated to follow a moral rule, and that adjustment will be required. The unless, as Gert suggests. "an impartial likelihood of some degree of imperfec- rational person can advocate that violat- tion, however, is insufficient reason to ing it be publicly allowed." Thus. a per- avoid beginning the work. son who deviates from the moral rule against killing in order to save his or her Why "Professional" Ethics? own life would generally be acknowl- In attempting to construct an ethical edged as having engaged in a justifiable theory for forensic psychiatry, we must violation of the rule. confront a basic question about profes- Violations of moral rules, in fact. are an sional ethics in general. Professionals, inevitable consequence of the complexity whether teachers. engineers, accountants, of life. Situations frequently arise in or psychiatrists, are all members of a which two moral rules, each seemingly broader society. If we accept that certain absolute, are in conflict with each other. ethical norms are binding on everyone, Resolving that conflict requires balanc- what justification is there for allowing ing, among other morally relevant factors, discrete occupational groups to create the nature of each imperative, the benefits separate rules for themselves? To press and harms likely to flow from its viola- the point, if the norms embodied in pro- tion, and the alternative means of achiev- fessional ethics are identical to those ing the desired end. A parent, for exam- more widely subscribed to, there would ple, who bears a moral duty to care for a appear to be little reason to construct a child, might be justified in breaking a distinct ethical framework for the profes- promise to help a friend move her belong- sions. On the other hand, if professional ings if the child were sick and needed the ethics differ from-and therefore have parent's care. Keeping promises is a the potential for being in conflict with- moral rule, but in this context, the moral general norms, how can we justify such responsibility to care for a child takes deviations? precedence. To answer this question requires some In contrast to moral rules, moral ideals reflection on the nature and application of "encourage people to act so as to prevent moral principles.'" Moral philosophers and relieve the suffering of other^."'^ Al- recognize two types of principles that though usually worthy of praise. such be- guide our behavior. Bernard Gert calls havior is not ordinarily required of per- them "moral rules" and "moral ideals."" sons. Were that not the case. people might Moral rules are generalizable maxims that well feel morally compelled to expend all

-- -- of their time and resources helping other * Following the practice of most contemporary ethicists, people, to the utter neglect of their own I use the terms "moral" and "ethical" intei-changeahly in this article. aims in life. Giving charity embodies a

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 235 Appelbaum moral ideal. usually to be encouraged, but recent decision of the U.S. Supreme not compelled. The legal philosopher Lon Court in Jaffee v. Redmorzd. which held Fuller uses the felicitous term "morality that psychiatrists and other psychothera- of aspiration" to describe this kind of pists could not be compelled to give tes- moral principle, in contrast to the binding timony in federal court when doing so "morality of duty."I4 Moral rules gener- would mean violating the confidences of ally outweigh moral ideals. but not al- their patients.I6 The usual primacy of the ways: Gert offers the example of a person value of justice, and of the rule that every who, by breaking a promise (thereby vi- person must help in the pursuit of justice. olating a moral rule) can save a life even if it requires breaching confidences, (which only represents a moral ideal), in was abrogated for the sake of promoting this case the morally appropriate choice. the treatment of persons with mental dis- With this background in moral theory, orders. we can return to the question of how one Moreover. as Gert indicates. profes- can justify a distinct code of ethics for sional codes of ethics may transform the any subgroup in society. Clearly, it would goals of moral ideals into moral rules, be difficult to rationalize any profession's binding on the members of a profession. l3 blanket abrogation of moral rules pre- Relieving pain is one such moral ideal. cluding harm to others, and that is not the the goal of which becomes a duty incum- function of professional ethics. But a so- bent on physicians, nurses, and other ciety that desires to promote certain im- health professionals when they accept re- portant moral values, as the ethicist Ben- sponsibility for a particular patient. This jamin reed man'^ suggests. might well is a second way in which professional elect to allow professions dedicated to ethics "sins a sin of zealousness," in those values to weight particular moral Freedman's term. rules more heavily than others. "Profes- How do we know on which moral rules sional morality," in Freedman's words, a profession should confer preeminence "sins a sin of zealousness rather than or which moral ideals should be trans- laxity."" lated into duties? The answer should be For example, to promote the value of fairly apparent by now. Creating an ethi- health, society might permit physicians to cal code for a profession must begin with elaborate an ethical code that gave pri- identification of the values that society macy to rules congruent with that pur- desires the profession to promote. Of pose. Keeping confidences, which Freed- course, those values must in themselves man sees as a corollary of the duty of be morally legitimate. Health is such a nonmaleficence (familiar to physicians in value; discrimination on the basis of race, its Latin form, primum rzon nocere-first religion, or sexual orientation is not. do no harm). may be a moral rule for all Then, relative dominance is conferred on people, but for physicians, especially for those moral rules that support that value, psychiatrists, it achieves elevated status. and the moral ideals that act similarly Recognition of this can be seen in the may be transmuted into binding duties. If

236 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Theory of Ethics for Forensic Psychiatry the work is undertaken correctly, the eth- principle of "personal care."'" This com- ics of any profession differ from ethical mitment to personal care has served med- standards more generally applied only in- icine well, and it constitutes the bedrock sofar as is necessary to advance the value on which the structure of medical ethics in question.17 has been constructed. Imagine for a moment, however, a phy- The Necessity for a Distinct Set sician who selects by chance for his or her of Ethics for Forensic Psychiatry patient a medication of uncertain efficacy Even with the justification clear in our at a dosage that bears no relation to the minds for professional ethics in general, patient's own needs, all the while refus- there is an additional obstacle that must ing to tell the patient which medication be overcome before we can outline the the patient is actually receiving. Indeed, principles of ethics for forensic psychia- the physician herself remains deliberately try per se. It might be objected that a ignorant of what the patient is taking, framework to guide the ethical thinking complicating evaluation of the patient's of forensic psychiatrists already exists. situation, including puzzling changes in Since every forensic psychiatrist is a phy- the patient's state, which may or may not sician, and the principles of medical eth- be due to medication side effects. To ics are widely subscribed to by members what extent does this behavior measure of the profession, the work of elaborating up to the usual standards of ethical med- a distinct set of ethical principles for a ical care? Not in the least. Are we then medical subspecialty is unnecessary. To willing to condemn the physician's ac- discern the moral obligations of forensic tions as unethical? Perhaps not quite yet. psychiatrists, or of physicians in any Indeed, we might conclude that the phy- other role. we need only examine the sician is acting ethically after all. principles of medical ethics. For in our example, the physician is As a rejoinder to this claim, I note that caring for the patient as part of a research the assumption that all activities of phy- protocol. The procedure involves com- sicians must be governed by the same paring the efficacy of two medications. ethical principles is clearly fallacious. assigned at random, and administered on The ethics of medicine, focused as they a double-blind basis. Dosages are deter- are on the principles of beneficence-to mined in advance and standardized. to do good for one's patients, whenever one permit clearer estimation of the compar- can-and nonmaleficence-to avoid do- ative efficacy and side effects of the med- ing harm if at all possible-derive from ications. Although the research physician the usual clinical setting.I8 When patients has turned aside from medicine's usual come to physicians for diagnosis and dedication to patients' interests (we might treatment of medical problems, patients more accurately refer to patients here as seek and are appropriately reassured by "research subjects"), he or she would not physicians' nearly single-minded fidelity be condemned for this behavior. Rather. it to their interests. Fried refers to this as the would be generally acknowledged that

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 237 Appelbaum the ethics of the research setting differ and ideals a group of professionals ought substantively from those that apply in or- to observe with particular zealousness, dinary clinical work.19 we look to the values that society desires This premise is true in two respects. that profession to promote. It is not un- Certain obligations that usually would be usual, however, for professionals to be binding in clinical medicine are abrogated charged with pursuing different values at in research studies. Research physicians different times, depending on the roles are expected to give primary attention to they are fulfilling. A physician may work the production of valid, generalizable in a general outpatient clinic in the morn- data, rather than to meeting patients' in- ing, where fidelity to patients' interests dividual needs. They may even subject (that is beneficence and nonmaleficence) patients to procedures that are unlikely to is the over-riding moral imperative. Later benefit them and hold some degree of in the day, he or she may move to a risk, if that course advances the research.+ research unit, where the advancement of Beneficence and nonmaleficence toward knowledge, rather than the pursuit of the individual patient are not their princi- health. takes priority. There is no reason pal obligations. On the other hand, al- to be uncomfortable with the notion that though research physicians might not owe as one's role changes. so also do the primacy to patients' interests, they as- ethics to which one is committed. sume additional duties, including the ob- A similar argument, it should be evi- ligation of obtaining a valid informed dent by now, can be made for forensic consent from their research subjects, psychiatry. Whereas clinical medical eth- which involves disclosure of just how the ics are rooted in a physician-patient rela- research process differs from ordinary tionship. no such nexus is established in clinical care. The justification of their be- the forensic setting9* Forensic psychia- havior is based, in part, on their subjects' knowing and voluntary acceptance of *When I speak of forensic psychiatry and the forensic setting, I refer to the evaluation of subjects for the these altered conditions of treatment. purpose of generating a report or testimony for an ad- Differentiation of ethical principles ap- ministrative or legal process. This is in keeping with Pollack's well-known definition of forensic psychiatry plicable to physicians according to the as "the application of psychiatry to legal issues for legal end^."^" This is distinct from other functions that per- functions they are performing is in keep- sons who consider themselves forensic psychiatrists ing with the rationale we considered sometimes fulfill, such as treatment of persons in the correctional system. Psychiatrists providing such treat- above for the existence of professional ment fill a role much closer to the one usually played by ethics as distinct from general ethical physicians, and thus-although the particular circum- stances of, for example, prison psychiatry, may alter norms. To determine which moral rules some of the usual ethical rules (e.g., concerning confi- dentiality) observed in a general treatment setting-they are more tightly bound by the duties associated with Of course, in keeping with generally accepted ethical beneficence and nonmaleficence. The ethics of correc- principles, the degree of risk to which subjects are tional psychiatry would benefit from a careful analysis, exposed must be proportionate to the expected benefits but I do not intend to offer one in this article. of the research; and if unexpected harms occur or it Forensic psychiatrists sometimes also act as consult- becomes clear that subjects are foregoing important ben- ants to attorneys, assisting them with strategic and tac- efits, research projects may be stopped prematurely lo tical decisions, but not directly testifying themselves. In protect subjects' interests. a brief treatment of this role, I have suggested that its

238 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Theory of Ethics for Forensic Psychiatry trists who conduct evaluations for legal function in the clinical realm. It is to that purposes do not enter into a physician- task that I now turn. patient relationship, and therefore the eth- ical principles that apply in the latter sit- Principles of Ethics for uation are different from those in the Forensic Psychiatry former. As numerous commentators have Recalling that the underlying premise recognized, were forensic psychiatrists to for all professional ethics is that society be charged with pursuing subjects' best has an interest in advancing certain im- interests and avoiding harm-as are their portant moral values, we must begin by clinical colleagues-their evaluations asking which values forensic psychiatry would be worthless to the court^.^.^^ is intended to promote. It seems clear that They would be no more than advocates: society prizes psychiatric testimony in junior lawyers doing their best to win a court because of its potential to advance case for their clients. Inherent in the value the interests of justice: the fair adjudica- of the forensic evaluation for the courts is tion of disputes and the determination of the idea that information adverse to the innocence or guilt. Psychiatrists provide subject's interests might well be derived information that helps the courts to deter- from the evaluation and that the forensic mine who ought not to be tried at a given expert will truthfully present such data point in time, because they are incapable when they are relevant to the legal issue of assisting in their defense: who should at hand. not be punished for the acts they have Forensic psychiatrists, therefore, like committed, because they lack moral re- all other physicians whose roles may sponsibility; who have been subject to sometimes depart from the paradigm of psychological injury as the result of oth- the treatment setting, require a distinct set ers' negligence; and who are so impaired of ethical principles to guide their work. as to be reasonably unable to work. Tes- There is no shame in this reality, just as timony on these and other subjects is clinical researchers ought to feel no com- sought from forensic experts because ju- punctions about observing a code of eth- rists believe that when they are in posses- ics distinct to their role. Indeed, Stone sion of that testimony they are better able recognized the inevitability of this con- to reach accurate judgments on these very clusion in his chastisement of forensic difficult issues. psychiatry for lacking ethical bearings.' If justice is the value to be advanced by His error came in suggesting that it is not forensic psychiatrists. what does that im- possible to identify an alternative set of ply about the ethical principles that principles to take the place of those that should guide their work? Two primary ethical principles can be derived from this functional analysis. A strong hint with ethical contours may differ somewhat from the ethical regard to the first principle comes from parameters associated with the role of expert witness." Although a more detailed consideration of this function the oath to which witnesses swear as they is warranted, that is not the focus here. prepare to testify: ". . . to tell the truth, the

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Appelbaum whole truth and nothing but the tr~th."~" ature, the minority status of those views Truth-telling is the first principle on will be made clear. Failure to do so, de- which the ethics of forensic psychiatry liberately or by neglect, will mislead find- rest. As I have suggested elsewhere, ers of fact about the prima facie weight "[tlhe primary task of the psychiatrist in they should give to the expert's testimony the courtroom is to present the truth, in- and violate the obligation of truthfulness. sofar as that goal can be approached, Although of critical importance, ex- from both a subjective and an objective pressing the limits on one's testimony is point of view."24 not always a simple matter. Forensic psy- Subjective truth-telling implies some- chiatrists operate in an adversarial system thing akin to the concept of honesty, i.e., in which the attorneys who have hired saying what one believes to be true. Is them may have strong interests in mini- this enough, however, for the forensic mizing the extent to which they express expert? What about the forensic psychia- uncertainty about their own opinions or trist who, willfully or by neglect, remains about the state of knowledge in the ignorant of the professional literature, field.25 Since attorneys and not witnesses knowledge of which might well alter the are in control of courtroom testimony, opinions he or she provides? What about questions may be framed in a way so as to the expert who, although truthful in his or discourage experts from making such re- her testimony, as far as it goes, fails to tell marks. But expert witnesses are not help- the court that his or her conclusions are less in this regard. Experts can set as a based on a theory held by only a small condition of their participation an agree- minority of peers, or that much evidence ment by the attorneys who engaged them exists contradicting the conclusions to allow them to state the essential limits reached? When the courts ask forensic on their testimony. An expert's ultimate psychiatrists to tell "the truth, the whole recourse is always to walk away from a truth. . .", I submit that they are asking case if he or she feels that continued for something more. participation will compromise profes- Here is where the objective component sional ethics. of truth-telling comes into play. The psy- The second moral rule on which the chiatric witness who is being objectively ethics of forensic psychiatry rests is re- truthful will acknowledge, insofar as pos- spect for persons. Were truth the only sible, the limitations on his or her testi- desideratum of the justice system, the po- mony, including those due to the limits of lice would be permitted to torture sus- scientific or professional knowledge, as pects to obtain confessions and to search well as those specific to a particular case premises on the mere suspicion that ille- (eg, due to inability to locate records or gal activity is occurring. Courts could directly to examine the subject of the compel defendants to testify, even against e~aluation).~~Moreover, when the wit- their interests, and district attorneys could ness' testimony is based on an idiosyn- reopen the prosecution of acquitted de- cratic theory or interpretation of the liter- fendants when new, apparently incrimi-

240 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Theory of Ethics for Forensic Psychiatry nating evidence became available. Under to exclude racial and other personal char- the American constitutional system, none acteristics of defendants from influencing of this is permitted. Rather, we temper their decisions. Forensic psychiatrists, in our justice system's pursuit of truth with turn, must undercut subjects' beliefs that the recognition that sometimes other val- they, acting in the usual way that physi- ues must take precedence. Although one cians act, are placing subjects' interests might conceptualize the values underly- above all other considerations. Although ing the exclusion of probative evidence in allowing subjects to hold such beliefs a variety of ways, I think it is fair to might be an effective means of gathering construe them as representing society's information, it is inherently deceptive and commitment to a respect for persons, exploitive, and fails to respect subjects as even when those persons are suspected of persons. having committed crimes. Forensic psychiatrists, to avoid violat- The implications of the moral rule of ing the rule of respect for persons, must respect for persons differ for the various make clear to the subjects of their evalu- actors in the criminal justice system, be- ations who they are, what role they are cause their roles place them at risk for playing in the case (including which side violating this principle in different ways. they are working for), the limits on con- For the police, their entitlement to use fidentiality, and-of particular impor- physical force to protect social order cre- tance-that they are not serving a treat- ates the risk that unnecessary force may ment function.28 Just as in the research be used.26 For prosecutors, the discretion setting, where the fidelity of a physician afforded in deciding what charges to file to the interests of the research subject is or whether to seek the death penalty cre- similarly altered, care must be taken to ates the potential for the intrusion of ille- insure that the subject is aware of the gitimate factors such as the defendant's different parameters of this situation.§ race or sexual orientation into their deci- This dimension of the obligation to re- sion~.~~In the case of forensic psychia- spect persons sometimes goes by the ru- trists, the major risk is that subjects of bric of "informed consent." Insofar as use forensic evaluations will assume that an of that phrase implies an identity with evaluating psychiatrist is playing a thera- informed consent in clinical contexts, I peutic role and, therefore, that the usual think the term is misleading. Subjects of- ethics of the clinical setting apply. "This ten submit to forensic examinations under person is a physician," they may reason. coercion and, in some settings, forensic "Surely she is here to help me, and at least will do me no harm. I am safe in speaking A variety of suggestions have been made as to how to respond if it appears that the subject has not grasped the freely about whatever I choose." difference between a forensic and a clinical evaluation, Respecting persons means acting to ne- or loses an appreciation of the differences during the course of the evaluation. These suggestions range from gate the risks associated with one's role. reinforming the subject, to stopping the evaluation, to Thus, the police must avoid use of unnec- consulting with the subject's attorney or the judge, to excludin any testimony derived from the evalua- essary force, and prosecutors must strive tiOn.7.28.39

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 241 Appelbaum

psychiatrists may perform their assess- manifests a serious lack of respect for the ments even over the objections of the subject as a person. evaluee (e.g., a competence to stand trial Between them, truth-telling and respect evaluation of a belligerent prisoner). To for persons appear to provide sufficient refer to these situations as embodying foundation for most generally accepted eth- informed consent distorts the accepted ical intuitions regarding the behavior of fo- meaning of the term. Nonetheless, sub- rensic psychiatrists, including those embod- jects at a minimum can elect to withhold ied in the AAPL guidelines. But are they their cooperation from the evaluation- the only moral rules or ideals to which albeit often at some cost1'-and respecting forensic psychiatrists must be sensitive? them as persons means giving them suf- What about beneficence and nonmalefi- ficient information to allow them to de- cence, for example, those mainstays of cide whether or not to do so." medical ethics? Here, it is important to re- Respect for persons also underlies the turn to the general justification for profes- adherence of forensic psychiatrists to sional ethics. Recall that although a code of maintaining the confidentiality of the professional ethics may intensify the obli- evaluation, except to the extent that dis- gation of professionals to uphold particular closure is necessary to fulfill the forensic moral rules or ideals, it cannot entirely ne- function. Even when a blanket warning is gate their duty to conform to the moral rules given that nothing said by the subject will (usually injunctions not to harm others) that be considered confidential, the implica- bind all citizens-although it may alter the tion is that information may be revealed balance among those rules when they come as part of the legal process. Outside that into conflict one with another. Nor does process, however, as in conversations subscription to a professional code diminish with the news media, revelation of the the virtue associated with acting according information communicated by the subject to moral ideals, as long as they do not conflict with professional functions.13. l5 Thus, forensic psychiatrists-not as 'I Defendants who desire to plead not guilty by reason of professionals, but as citizens-have the insanity, for example, but refuse to submit to an evalu- ation dy the psychikrist working for the prosecution will same duties as other people to behave typically be precluded from introducing expert testi- nonmaleficently, except when acting mony of their own regarding their state of mind at the time of the offense. within the legitimate scope of their pro- 'What impact a subject's lack of competence might have on the evaluating psychiatrist's obligations is a fessional roles, thereby advancing the complex question worthy of more consideration than I pursuit of justice. Moreover, they cannot can offer in this article. Note the suggestion of the APA Task Force on the Role of Psychiatry in the Sentencing avoid the obligation of determining Process: "When it appears that the defendant is incom- whether the actions they are being asked petent to give informed consent [sic],the psychiatrist should stop the examination, inform the party who re- to perform in fact promote justice. Assist- quested the evaluation of the defendant's condition, and ing in the torture or abusive interrogations allow the legal system to arrive at a solution to the problem. It should be noted that the law is unclear as to of prisoners would fail that test, not as a whether a substituted consent is permissible in such circumstances, and if it is, who is ahiorized to provide matter of professional ethics, but by vir- it,w28 tue of ordinary moral reasoning. To ac-

242 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Theory of Ethics for Forensic Psychiatry cept the pursuit of justice as a basis for cence and nonmaleficence without inter- forensic ethics is not to say that forensic fering with their forensic functions.28 psychiatrists thereby surrender the right Others, however, hold open the possibil- to determine with what actions it is ap- ity that clinical duties may take center propriate to become involved, or that they stage, maintaining that "[tlraditional avoid the opprobrium associated with medical values should be one factor in the participating in morally reprehensible balancing process" used by forensic psy- acts. chiatrists to resolve ethical dilemmas. In a similar vein, with regard to the "given varying weight by individual prac- moral ideal or aspiration of acting bene- titioners in different circumstance^."^^ ficently toward persons, such actions by Perhaps the most radical view is offered forensic psychiatrists may be praisewor- by a philosopher, who claims, "In spite of thy, even though they cannot be said to be the other things that they are called on to part of their professional role. Con- do [referring specifically to forensic eval- versely. although forensic psychiatrists uations], psychiatrists and other doctors may win acclaim for performing benefi- must surely be seen pri~zarilyas healers, cent acts (e.g., diagnosing a melanoma in with primurn norz nocere as their guiding a subject they are interviewing), they light."3' should not be subject to professional The problems with this model of mixed sanction for failing to do so. duties are evident at the levels of both theory and practice. On the theoretical An Alternative Approach plane, as should be clear from the discus- What other ways might there be to sion above, the justification for profes- think about ethics in forensic psychiatry, sional ethics lies in its capacity to pro- and how do they compare with the theory mote a distinct set of values that are presented here? The leading alternative, embedded in the functions of the profes- embraced by several authors, although sionals in question. Ethical principles rel- never fully elaborated or justified at the evant to the forensic role, therefore, can- theoretical level, might be called a theory not legitimately be drawn from the of mixed duties. According to this frame- clinical realm, because the values that work, forensic psychiatrists retain some underlie each function are so different: (usually unspecified) measure of obliga- clinicians seek to promote health, while tion to the principles of beneficence and forensic evaluators seek to advance the nonmaleficence that underlie clinical eth- interests of justice. As the medical phi- ics, in addition to whatever duties may be losopher Edmund Pellegrino has noted, specific to the forensic arena. "[tlhe subject-physician relationship [i.e., Various commentators differ on the de- in the forensic evaluation context] does gree of priority these clinical principles not carry the implication or promise of demand. Some argue that they obligate primacy for the patient's welfare that [is] psychiatrists only to the extent that psy- intrinsic to a true medical relati~nshi~."'~ chiatrists can fulfill the duties of benefi- Principles based on the pursuit of health,

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 243 Appelbaum therefore, have no logical nexus with fo- death penalty is ultimately illogical and rensic ethics. unsatisfactory. What then is the appeal of a theory of A final group of supporters of the role mixed duties? Many forensic psychia- of "traditional medical ethics" in forensic trists, I suspect, are reluctant to relinquish work fails to distinguish forensic from their attachment to the ethical principles therapeutic functions. One example imbued during their training, which mo- comes from the writings of the philoso- tivate so many aspects of their profes- pher Phillipa Foot. who was cited above sional lives. It is difficult for them to to the effect that prir?zunz norz nocere. the accept that, when they perform forensic principle of nonmaleficence, must be functions, they have entered into an arena physicians' ethical "guiding light."31 She in which these principles are not domi- suggests that the principle might help nant. Moreover, some forensic psychia- psychiatrists to determine at what stages trists may share Stone's concern-that of capital proceedings they ought not to having eliminated beneficence and non- participate. But the only example she of- maleficence as ethical touchstones, we fers is that psychiatrists should decline to treat a defendant (presumably she means are left with no principles at all to guide a prisoner) on death row to restore his our actions. I hope that this discussion has competence to be executed; this is a treat- eased those fears. ment function outside of the forensic Other advocates of a model of mixed realm. which legitimately should be gov- duties have a different agenda. They are erned by ordinary medical ethics. opponents of the death penalty, looking A similar example comes from a report for some way to block psychiatrists from of surveys of forensic psychiatrists that is participating in one or another aspect of " said to show support for the relevance of the adjudication of capital cases. the principles of clinical ethics in forensic They clearly hope that principles drawn p~ychiatry.~'The examples cited, how- from clinical ethics will make it more ever, such as psychiatrists' rejection of a difficult to justify participation by foren- request to write a seclusion order solely to sic psychiatrists, as the tension between support prison discipline, almost all relate the principles of justice and nonmalefi- to treatment rather than forensic exami- cence "strains the contradictory ethical nation. Those few items that pertain to the framework of forensic psychiatry to the forensic context-for example, respon- breaking point."" But the tension to dents' agreement with the statement that which this commentator was referring they should not reveal embarrassing in- arises only as a result of his inappropriate formation acquired in an evaluation that introduction of principles properly con- could be used to press the evaluee for a fined to the clinical realm. As is often the settlement-are consistent with princi- case when teleological reasoning pre- ples such as respect for persons that in- vails, the attempt to shape the ethics of here in forensic ethics per se. The survey forensic psychiatry to impede use of the results offer no persuasive evidence that

244 J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 Theory of Ethics for Forensic Psychiatry forensic psychiatrists support the blurring countertransference as well as transfer- of the boundaries between clinical and ence. That is, when the forensic psychia- forensic ethics. trist approaches the subject as a treater When we turn from the theoretical to would, the subject responds accordingly. the practical level. an additional good rea- The first task in combatting the problem son appears to shun the model of mixed is to persuade both parties that the situa- duties. Many writers have worried about tion in which they find themselves bears the "double agent problem" in forensic no relationship to the therapeutic setting. work. Stone, for one, has come to see "the The psychiatrist is not present to help the intermingling of the roles of expert and subject: his or her job is to ascertain the therapist" as one of the major issues in truth relevant to the legal issue at hand. forensic ethics.' He is concerned that the The most deleterious effect of the in- forensic psychiatrist might take advan- sistence on holding on to therapeutic prin- tage of the subject's tendency to view the ciples of ethics in forensic work, there- evaluator as a treater (i.e., to develop a fore, may be its consequences for therapeutic transference). in order to ex- psychiatrists' and subjects' perceptions of tract information that will later be re- the evaluators' role. If forensic psychia- vealed in court to the subject's detriment. trists persuade themselves that they main- His proposal is that "forensic psychia- tain a residual duty-of a professional trists should as a first principle eschew nature-to benefit and not to harm eval- any overlap between their clinical and uees, they are likely to communicate that evaluative functions." Indeed. if the eval- to their subjects.** The psychiatrist, for uation begins to take on therapeutic over- example, who believes he has a duty to tones, Stone would demand that the fo- evaluate the efficacy of a subject's cur- rensic psychiatrist withdraw from rent treatment, when that is irrelevant to testifying on the basis of the information the legal issue in dispute, will ask the obtained.' kind of questions that treating psychia- The extent of the double agent prob- trists ask, and should not be surprised to lem, that is, the frequency with which receive the same kind of answers. Both subjects in forensic evaluations develop therapeutic transferences, is an open em- ** A similar phenomenon, which I have called the "ther- apeutic misconception," occurs for much the same rea- pirical question. Nonetheless, as I noted son between clinical researchers and their subjects. Po- tential research subjects enter discussions over above. I consider failure to address this participating in research with the expectation that phy- issue as constituting a deception of the sician-investigators will manifest that same loyalty to their personal care that they have experienced in ordi- subject, which violates the principle of nary clinical settings. Researchers, often uncomfortable respect for persons. Stone's key insight, I with the different ethical framework under which they are operating, may encourage these beliefs through the think, is that double agency is a matter of words they use and the attitudes they convey. When subjects and family members, however, discover that subjects' interests have not been given primacy by the Unfortunately, Stone never specifies how one might researchers, they feel angry and betrayed.32 clarifying determine when an evaluation "has turned into a thera- prospectively the actual scope of researchers' ethical peutic encounter," clearly the key question on which the duties is the only way to prevent this unfortunate out- implementation of his proposal depends. come.

J Am Acad Psychiatry Law, Vol. 25, No. 3, 1997 245 Appelbaum

parties may be misled into thinking that thorough examination of the ethical foun- this is a quasi-therapeutic encounter. In dations of our behavior. this process of mutual deception, it is the subject who will be betrayed and poten- Acknowledgments tially hurt.++ Earlier drafts of this article were reviewed by If we are serious about ridding our- Kenneth Appelbaum, MD, Richard Bonnie, JD, selves of the problem of double agency. Philip Candilis, MD, Thomas Grisso, PhD, Steven we must begin with the code of ethics to K. Hoge, MD, Rose Zoltek-Jick, LLB, LLM, Jay Katz, MD, and Alan Stone, MD. The author is which we adhere. When we allow thera- extremely grateful for their assistance, but as- peutic principles to creep in to our think- sumes full responsibility for the sentiments ex- ing, we open the door to profound confu- pressed herein. sion over the psychiatrist's role. A clear References advantage of deriving the professional ethics of forensic psychiatry from the pur- Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. Bull suit of justice, rather than of health, is the Am Acad Psychiatry Law 12:209-19, 1984 message that it sends regarding the dis- Rappeport JR (editor): Special issue on ethics tinction between the forensic and thera- in forensic psychiatry. Bull Am Acad Psychi- atry Law 12:205-302, 1984 peutic roles. Rosner R, Weinstock R (editors): Ethical Practice in Psychiatry and the Law. New Conclusion York, Plenum Press, 1990 Appelbaum PS: The parable of the forensic The success of any moral theory de- psychiatrist: ethics and the problem of doing pends on how well it satisfies its audi- harm. Int J Psychiatry Law 13:249-59, 1990 American Academy of Psychiatry and the ence. accounting for their ethical intui- Law: Ethical Guidelines for the Practice of tions and providing useful guidance in Forensic Psychiatry-1987 (rev 1995). Bloomfield, CT: AAPL, 1996 resolving ethical dilemmas. The extent to American Academy of Psychiatry and the which this theory meets those desiderata Law: Opinions by AAPL's Committee on will only be known over time. It is my Ethics: Additional Opinions. Bloomfield, CT: AAPL, 1995 hope, however, that this effort to describe Stone AA: Revisiting the parable: truth with- and justify a theory of ethics in forensic out consequences. Int J Law Psychiatry 17: 79-97, 1994 psychiatry will provide a stimulus for a Mossman D: Is expert psychiatric testimony fundamentally immoral? Int J Psychiatry Law 17:347-68, 1994 tt Shuman focuses on a different aspect of the examiner- Pellegrino ED: Societal duty and moral com- subject interaction, the deliberate use of empathic tech- plicity: the physician's dilemma of divided niques by the forensic psychiatrist, especially "retlective loyalty. Int J Psychiatry Law 16:371-91, 1993 empathy," defined as "the communication of a 'quality Bloche MG: Psychiatry, capital punishment, of felt awareness' of the experiences of another per- and the purposes of medicine. Int J Psychiatry son;~33(e.g., "Oh, that must have been a horrible expe- Law 16:301-57, 1993 rience for you. I can imagine how frightened you felt.") Weinstock R: Controversial ethical issues in To the extent that these techniques are employed, they forensic psychiatry: a survey. J Forensic Sci reinforce the false image in the mind of the subject that the current interaction is akin to those that he or she may 33:176-86, 1988 have had previously in therapeutic settings. Allowing Weinstock R: Perceptions of ethical problems practitioners to believe that they have residual benefi- by forensic psychiatrists. Bull Am Acad Psy- cent duties toward subjects increases the risk that they chiatry Law 17: 189-202, 1989 will use empathic techniques. Gert B: Morality, moral theory, and applied

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