By William H. Reid, M.D., M.P.H.
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Plaintiffs and claimants in forensic psychiatry matters have often been
treated by a mental health professional and use information from such
clinicians to support their cases. Triers should be made aware of some of the
pitfalls inherent in the testimony of treating psychiatrists, other
physicians, and psychotherapists, especially when they are offered as expert
witnesses. Although a common practice in some jurisdictions, questions
regarding prudence, conflict of interest, and admissibility of expert
testimony from treating clinicians are not idle ones. In a recent case, the
treating psychiatrist for a patient had apparently billed her well over
$100,000 for psychotherapy, and her lawyer (apparently passed through to the
patient) over $100,000 for expert witness services. He testified that he would
probably treat the patient for months or years in the future as well.
There are at least four reasons that such a dual relationship is not
advisable.
First, a treatment relationship clearly creates a professional and ethical
obligation to act in the best interests of the patient. The patient has a
right to rely on this attitude in the doctor or therapist during (and after)
the treatment relationship. It is a cornerstone of the patient\'s ability to
work in therapy free of concerns about future divulging of confidences,
betrayal, or exploitation. Since forensic consultation or testimony, by
definition, requires objective comment regardless of the patient\'s wishes or
needs, an inherent clinical and ethical conflict is created. This conflict is
recognized in the ethical guidelines of general psychiatrists, forensic
psychiatrists and psychologists, often expressed as the patient\'s right to
expect a single, private, treatment role from his or her therapist.
Second, a treating clinician who testifies regarding a current or past
patient knows (or should know) that he or she is professionally and ethically
required to act in the patient\'s interest. Having spent many hours (perhaps
dozens or hundreds) working with a patient, sometimes quite intimately,
clinicians often feel a personal affinity for that patient\'s viewpoint. There
is thus a danger of intentional bias toward the patient.
Third, separate from the clinician\'s conscious awareness of a duty or wish
to act in the patient\'s interest, the obligation to \"do no harm\" to
the patient is keenly felt by ethical practitioners. Even if they attempt to
be objective in forensic reports or testimony, there is a danger of unintended
bias toward the patient.
Fourth, the ethical principles of both the American Psychiatric Association
and the American Psychological Association require that when a treating
psychiatrist or psychotherapist believes it may later become necessary to
comment to a third party (such as an employer or insurance company), this is
to be discussed fully with the patient as early as is feasible. Clinicians
know (or should know) that awareness of the probability of disclosure affects
the patient\'s conversations and disclosures to some extent, and this in turn
affects the validity of any forensic participation.
The purpose and goals of the treating clinician are fundamentally different
from, and often conflict with, those of the forensic expert. The treater has
fiduciary and ethical obligations to the patient which demand that the
patient\'s interests and wishes be placed before all else. The forensic
consultant\'s responsibilities, on the other hand, are to objectivity and the
court. Although often a lawyer\'s agent, both the law and professional ethics
demand that the forensic professional be objective in both commission and
omission; he or she has no obligation to the litigant or \"evaluee\"
(and does not refer to that person as his \"patient\"). (See also
Strasburger LH, Gutheil TG, Brodsky A: On wearing two hats: Role conflict in
serving as both psychotherapist and expert witness. American Journal of
Psychiatry 154(4):448-456, 1997.)
By: William H. Reid, M.D., M.P.H.
Reprinted from "Psychiatry and Law Updates" by Dr. William H. Reid. Not intended as legal or clinical
advice. E Mail: reidw@reidpsychiatry.com
