Healer, Witness, or Double Agent? Reexamining the Ethics of Forensic Psychiatry

Abstract

In recent years, psychiatrists have become ever more prevalent in American courtrooms. Consequently, the issue of when the usual rules of medical ethics should apply to forensic psychiatric encounters has taken on increased importance and is a continuing topic of discussion among both legal and medical scholars. A number of approaches to the problem of forensic psychiatric ethics have been proposed, but none adequately addresses the issues that arise when a forensic encounter develops therapeutic characteristics. This article looks to the rules governing the lawyer-client relationship as a model for a new approach to forensic psychiatric ethics. This new model focuses on the expectations of the evaluee and the ways in which the evaluating psychiatrist shapes those expectations to determine how and when the rules of medical ethics should apply to forensic psychiatric encounters. This article describes and analyzes three previously proposed approaches to that question and the closely related question of when and how a doctor-patient relationship can form in the context of a forensic psychiatric evaluation. It also explains why each of these prior approaches does not sufficiently address the issues that arise when a forensic encounter takes on therapeutic characteristics. Finally, it proposes a new approach that draws inspiration from the rules governing the lawyer-client relationship.