Such a concern may sound esoteric to many psychiatrists, but to those in the forensic arena it isn’t so "off the wall." In fact, it was a topic of discussion at the annual meeting of the American Academy of Psychiatry and the Law (AAPL), which was held in Vancouver in October. The session was called "Evaluation and Testimony: The Practice of Medicine?"

And as Robert T.M. Phillips, M.D., Ph.D., of Annapolis, Md., an associate professor of psychiatry and law at the University of Maryland, put it, "This is quite a hot and evolving area of concern for practitioners." Phillips was one of the session’s speakers, along with Howard Zonana, M.D., director of law and psychiatry at Yale University School of Medicine in New Haven, Conn., and Lawrence Fitch, J.D., an attorney and adjunct associate professor of law at the University of Maryland School of Law in Baltimore.

For instance, Zonana described how a Maryland psychiatrist had once been asked by a defense attorney in Pennsylvania to serve as an expert witness in a criminal case. The psychiatrist obliged the attorney. Then the prosecutor in the case—perhaps because he disliked the psychiatrist’s opinions in previous cases or perhaps for another reason—filed a complaint with the Pennsylvania medical licensure board that the psychiatrist was practicing medicine in Pennsylvania without a license.

A Boston psychiatrist in the audience at the AAPL session described his own experience in this area. He was serving as an expert witness in North Carolina. The prosecutor demanded, "Doctor, you have examined some plaintiffs here in North Carolina, right?" The psychiatrist admitted that he had. The attorney then pressed on: "Doctor, did you clear that with the state medical licensure board?"

So what is the law’s position about psychiatrists testifying in a state in which they don’t have a medical license?

There have been no court cases to date squarely addressing the question of whether a psychiatrist serving as an expert in a state where he or she is not licensed may be prosecuted for practicing without a license, Fitch reported. What’s more, the two cases that are indirectly relevant—that is, they centered around whether providing expert testimony constitutes the practice of medicine—have come to opposite conclusions, he added. So "clearly there is no consensus on this," he said. "It is not clear how the courts would shake out."

Muddying the waters even further are states’ varying standards on the subject. This observation comes from William Reid, M.D., a clinical professor of psychiatry at the University of Texas Health Science Center in San Antonio. He was supposed to have been a speaker at the AAPL session but could not attend, and thus asked Phillips to present his findings for him.

Reid surveyed the medical licensure boards in all 50 states to determine whether their state statutes required out-of-state psychiatrists to be licensed locally before offering expert testimony.

Forty-five of the 50 boards responded to the survey. Of the 45 boards, 21 said that their states did not require local licensing, whereas 11 said that their states did. Seven boards reported that local licensing would be required unless an out-of-state psychiatrist was a consultant for a state-licensed one. Five boards gave unclear answers. One board said that its state allows out-of-state psychiatrists to provide testimony a limited number of times without a local license.

And if it’s not complicated enough that the courts are unclear on the subject and that different states have different positions on the issue, members of a particular state medical licensure board may even disagree over their state’s position. Or as Zonana lamented, "How do you find out what a state’s policy is? I don’t know how you do it. I don’t know if it is possible to do it. [True,] it is possible if it is clear, and there have been some rulings. But by and large, it depends on whom you’re talking to, and you could get three different opinions from three different people on the licensure board."

So all in all, Phillips concluded, "none of us are really clear about where things stand."

Thus, in view of this murky situation, how should a forensic psychiatrist who wants to testify in a state where he or she isn’t licensed go about it?

One option would be to get a medical license in the state where one wants to practice before doing business there. It would take time and money, but at least it would nip any further difficulties in the bud.

Another tactic would be for a psychiatrist to offer testimony in a state where he or she is not licensed and then, if challenged, attempt to extricate himself or herself from the situation.

This is, in fact, what the Maryland psychiatrist cited by Zonana did. After the prosecutor had filed a complaint with the Pennsylvania medical licensure board that he was practicing medicine in Pennsylvania without a license, the defense attorney who had hired him said that he could not help him on this matter. So after considerable time and expense, he obtained a license to practice medicine in Pennsylvania. Only at that point was the state licensure board willing to drop its complaint against him.

The Boston psychiatrist cited above also attempted to save himself after being challenged. Specifically, after the prosecutor demanded to know whether he had cleared his examination of plaintiffs in North Carolina with North Carolina’s medical licensure board, he replied, "No, what you are suggesting is unethical—it is unethical for me to do anything like the practice of medicine in North Carolina!" And as the psychiatrist hoped, this "bluster, arrogance, and preemptive strike," as he described it, shifted the line of inquiry away from whether he was practicing medicine in North Carolina without a license.

Yet how often are psychiatrists who testify in states where they are unlicensed called on the carpet? Not all that often, Fitch stressed. "It is not something that practically affects people very often," he said.

So what’s the big deal? Well, the big deal is that it’s no fun being one of the few who end up in hot water. And it’s no fun losing sleep over whether one might be one of those unfortunates.