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A psychiatrist cannot serve two masters-the law as an expert witness and the patient as a psychotherapist-without creating an irreconcilable role conflict.
"Treatment in psychotherapy is brought about through an empathic relationship that has no place in, and is unlikely to survive, the questioning and public reporting of a forensic evaluation," said Archie Brodsky, a senior research associate in the program of psychiatry and the law at Harvard Medical School and Massachusetts Mental Health Center in Boston.
He and two co-lecturers received the Manfred S. Guttmacher Award at APA's 1998 annual meeting in Toronto. The award recognized their article "On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness," which was published in the April 1997 issue of the American Journal of Psychiatry.
Brodsky noted that the American Academy of Psychiatry and the Law concluded in its Ethical Guidelines for the Practice of Forensic Psychiatry that "a treating psychiatrist should generally avoid agreeing to be an expert witness or perform an evaluation of his patient for legal purposes." The academy cosponsors the Guttmacher award and lecture.
Legitimate exceptions include assessing competence to give informed consent and petitioning a court for involuntary commitment, said Brodsky. When occasions arise necessitating the dual role, psychiatrists can take precautions to minimize the potential pitfalls.
Wearing the hats of expert witness and treating psychiatrist is problematic because of differences in conceptions of truth and causation, forms of alliance, types of assessment, and ethical guidelines.
Psychotherapy involves a search for meaning, narrative, and insight, "which cannot be expected to meet legal standards of proof." In contrast, forensic examinations are concerned with objective facts and historical truth.
"A therapist might take a psychodynamic perspective, with its emphasis on conflict and the role of the unconscious, whereas a forensic evaluator tends to favor objective/descriptive psychiatry with its emphasis on classification and reliable diagnosis.
"In treatment, the patient must learn to accept personal responsibility as a condition of change, whereas in litigation the patient as plaintiff seeks to assign responsibility to others to achieve recompense and vindication."
Therapeutic neutrality is undermined when the clinician acts as a forensic consultant for a patient because "judgmental assessments are inevitable in that role, and serious real-world consequences turn on every patient utterance."
The anonymity of the psychotherapist is also compromised when the therapist steps out of the transference relationship and into the patient's present, external world.
A clinical assessment differs from a forensic evaluation in many aspects including interview strategies, psychological defenses, and time. The forensic psychiatrist relies on multiple sources and begins an interview with an explicit legal question and marshals relevant psychiatric data.
"For the psychotherapist, this external question would be a distraction from the patient's inner world and therapeutic goals," Brodsky said.
From a therapeutic perspective, litigation can be a form of acting out. The resistances and defenses that litigation tends to harden may impede the work of therapy. The forensic psychiatrist must move toward closure to meet the court's deadlines in contrast to the treating psychiatrist, who waits for the right moment to intervene.
Ethical guidelines for physicians in clinical settings may conflict with those that apply to legal situations. The physician is bound by the ethical dictum of "first, do no harm," which does not apply directly in the courtroom.
"An evaluee may suffer substantial harms from a forensic expert's testimony through lost self-esteem, deprivation of liberty, or even loss of life in capital sentencing," he observed.
Even when there is a favorable verdict, the experience of hearing one's intimate life revealed and analyzed in court may be exceedingly traumatic.
A psychotherapist's testimony that a patient will require long-term treatment may be viewed as self-serving and destroy the credibility of the therapist's testimony. Moreover, a patient must waive confidentiality to undergo a forensic examination, thus altering the therapeutic relationship, which may be hard to restore later.
"The proper role of a therapist, then, is not to encourage and participate in a lawsuit, but to help the patient decide whether to bring suit and provide support in going through the legal process," Brodsky concluded.