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Should the Treating Clinician Be an Expert Witness

By William H. Reid, M.D., M.P.H. Email:

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.)