OVERVIEW

Definitions

It is critical to be aware of the difference between a treating clinician and a forensic psychiatrist. An expert witness does not have a therapeutic relationship with the person that they interview, who is not called their ‘patient’ but is rather called an ‘evaluee’. The expert witness does not have a doctor-patient relationship with the evaluee. The expert witness’s goal is to produce an objective evaluation, report, and possible testimony. The forensic psychiatrist strives for objectivity rather than advocacy for their patient, which is much more often evident for the treating clinician.

The treating clinician, however, may act as a ‘fact witness’. This means that similar to other types of fact witnesses like eyewitnesses, they testify only based on what they have directly observed and do not produce opinions regarding ultimate legal issues.

Dual agency exists when the psychiatrist is serving two masters rather than one. The physician serving both the legal system and the healthcare system is attempting to serve different masters. More specifically, dual agency most commonly occurs when the treating psychiatrists agree to enter into a forensic role with their patients.

CLINICAL SCENARIOS

All of the following are common scenarios that should set off an alarm that dual agency is an issue.

Scenario #1: A patient is applying for disability. He asks the treating psychiatrist to complete the paperwork and to note that he is unable to work permanently.

Scenario #2: A patient tells her treating psychiatrist that she is going through a difficult divorce. She would like for her psychiatrist to write a letter and maybe testify in court to say that she is an excellent mother, and a much better parent than her husband.

Scenario #3: A patient tells her psychiatrist that the police have unjustifiably charged her with a crime. She asks for her psychiatrist to write a letter saying that she has schizophrenia and does not recall where she was at the time of the crime.

Scenario #4: A new patient’s chief complaint is “My lawyer told me to see a shrink.”

ADDITIONAL TIPS

Example 1: If completing disability paperwork for a patient, the provider should ensure that they note on the paperwork that the information is based on the patient’s self-report. They should further ensure that they note that they are the treating provider and cannot provide an objective viewpoint.
Example 2: The psychiatrist should only write objective information in a letter, such as diagnosis and medication treatment. The psychiatrist should resist any temptation to testify “for” the patient. This is because the treating psychiatrist is not a neutral evaluator and testifying for a patient and it would alter the relationship. This is true even if the patient offered to pay the psychiatrist. Rather, the patient should be encouraged to speak with their attorney about an objective forensic evaluation, including one at the local juvenile court clinic.
Example 3: If the physician writes a letter for the patient who has been charged with a crime, the physician should be certain to document in the letter that they are the treating physician, and the patient’s diagnosis. The physician should not document a forensic opinion regarding their own patient in regards to a criminal act. Again this is true even if the patient offers to pay the psychiatrist. An evaluation should be completed by a forensic expert as opposed to a treating clinician.
Example 4: If a patient tells a psychiatrist that he has been referred by his attorney and that he is not seeking treatment on his own, this should be noted in the medical record. Additionally, the psychiatrist should explain to the patient that there is a difference between a forensic evaluation and a treatment evaluation. It is important to explain this to the patient at the outset. Also, a degree of suspicion about self-reported symptoms in the context of referral from an attorney is warranted.

Special Considerations

The American Academy of Psychiatry and the Law recommends “treating psychiatrists should… generally avoid acting as an expert witness for their patients.” Acting as an expert witness for one’s patient disrupts the therapeutic alliance, and can impact both transference and countertransference. Also of note, there are different truths within the justice systems versus within the psychotherapeutic relationship. The patient’s truth may be different from the objective legal truth. Additional collateral information is also critical in forensic evaluations and much more extensive than in routine clinical evaluations. As well, concerns of non-maleficence exist. Even if a treating psychiatrist advocates for the patient in a legal process, and if the ultimate legal decision is not what the patient desired, the patient may blame the psychiatrist for not being “good enough” in delivering the opinion and thus the therapeutic alliance may be damaged. The ‘do no harm’ rule from the Hippocratic Oath may be violated because expert testimony may in fact harm the patient. Finally, if acting as an expert witness rather than a fact witness, the psychiatrist may be held to the standards of an expert witness rather than the standards of a treating clinician and may be subject to malpractice actions stemming from entering the forensic arena.

REFERENCES

American Academy of Psychiatry and the Law. Ethics guidelines for the practice of forensic psychiatry. Adopted 2005. available at https://aapl.org/ethics-guidelines
Strasburger LH, Gutheil TG, Brodsky A. On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry. 1997 Apr 4;154(4):448-56. Available at https://ajp.psychiatryonline.org/doi/pdf/10.1176/ajp.154.4.448
West S, Friedman SH. To Be or Not to Be: Expert Witness and Treating Psychiatrist. Psychiatric Times, 24 (5): 50-51, 2007. available at http://www.psychiatrictimes.com/be-or-not-be-treating-psychiatrist-and-expert-witness

Overview | Clinical Scenarios | Additional Tips | References

By Susan Hatters-Friedman, MD