Ethical issues on forensic-psychiatric examinations

Abstract

Summary Usually forensic psychiatrists are concerned with the assessment of complex cases, including risk assessment, and act as expert witnesses in court, commenting on issues such as competency to stand trial and criminal responsibility. This article reviews the relevant forensic-psychiatric literature about the role of a forensic psychiatrist. While the ethical issues facing forensic psychiatrists may be similar across cultures, they also depend on the specific legal system and service provision within each country. Therefore, a forensic psychiatrist should look not only to technical guidelines to structure her report, but should also respect the ethical frame of her country in order to be conscious of the cultural and societal context. The concepts of “criminal responsibility” or “guilt” in legal thinking are discussed on the basis of the regulations in Germany. These concepts do not exist as an empirical entity in psychiatry. Even if a psychiatric expert does not comment directly on criminal responsibility – as or she should not do – her expert opinion aims at enabling this finding. The forensic psychiatrist acting as expert witness is confronted with a double dilemma: either she is legitimating punishment by labelling only a fraction of the accused as disordered and in need of treatment; in which case she might be called a servant of justice, or, if she is offering treatment for a large number of offenders, she might be accused of brain washing and treatment tyranny. As a matter of principle, forensic psychiatrists and forensic psychologists should not, in order to avoid a conflict of roles, assess their own patients. Their task is the psychopathological analysis of the mental condition of a perpetrator and her personality performed on the basis of empirical knowledge and competent specialist examination. Regarding risk assessment, future behaviour cannot be predicted with any certainty no matter how sophisticated the instruments. This gives rise to particular challenges in balancing the civil liberties of the patient with the protection of the public from (potential) future harm by that patient. In an increasingly risk-aversive society, public pressure demands a reduction in false negative predictions with the ultimate goal of eliminating risk. Although the legality of commitment and of compulsory treatment depends entirely on the label “capacity to consent”, there is no standardized and validated tool to assess this capacity. In medical praxis, the capacity to consent is often evaluated rather formally or is based on personal psychiatric experience. Despite discomfort, contradictions and resistance, psychiatrists should not retreat from the forensic field. Psychiatrists should continue to work on humanizing the management of offenders and on facilitating suitable treatment for those in need. This highlights the need for ongoing cooperation with the legal system, which allows for contributing experiences that may be helpful in the further development of the law despite the many questions referring to the dual-role dilemma and compulsory treatment that remain unanswered. It is, however, always important to be watchful regarding attempts to instrumentalise forensic psychiatry.