To Be or Not to Be: Treating Psychiatrist and Expert Witness

It begins with a simple request: a patient asks for help in taking time off from work, obtaining disability payments, or seeking other compensation for his or her diagnosis of posttraumatic stress disorder. The requests may come from patients you have been seeing for long periods or from new patients who are sometimes referred by their attorneys. However, your assumption of the role of both clinician and expert can produce a number of potential conflicts.

This column will demonstrate the differences between the 2 types of interactions and discuss the conflicts that may result when one takes on both roles. Some conflicts are intuitive, while others are less so. Serving as a patient's treating psychiatrist and forensic consultant may harm the patient, the doctor, and their relationship.

Two different worlds

The treating psychiatrist's goal is to relieve symptoms in patients by using pharmacotherapy and psychotherapy. "Forensic evaluators" or "expert witnesses" do not have a therapeutic relationship with the persons they interview, who indeed are not their patients but are "examinees" or "evaluees." Often, courts or attorneys hire expert witnesses with the goal of producing an objective report based on information gained through interviews and collateral sources. It may seem that the patient's therapist would be the best advocate, similar to a physician's advocacy for his patients when dealing with insurance companies. However, the job of the forensic psychiatrist is not to strive for advocacy but rather for objectivity.

In contrast to expert witnesses, "fact witnesses" testify only on that which they have observed directly; they are not required to produce opinions based on those facts. Most witnesses in court are fact witnesses (eg, eyewitnesses), and treating psychiatrists can fall in this category. However, psychiatrists as fact witnesses, once on the stand, may be asked to draw conclusions, since they possess the clinical knowledge to do so.¹

While the medical field strives to treat conditions with interventions that are predicated on the patient's trust in the clinician, the legal field directs its efforts toward dispute resolution, with the overarching goal of serving society and justice. Based on their disparate goals, these 2 systems require different obligations, which may pull those who do both in 2 different directions.

Arguments to do both

Strasburger and colleagues¹ have outlined the reasons psychiatrists may feel obligated to take on both roles. First, lawyers may request that a treating psychiatrist also serve as an expert because attorneys may not understand the nuances of each role or may simply be trying to save money. Or, the patient may not cooperate with a separate forensic evaluation.

Second, while clinical reimbursement is limited, forensic evaluations may generate extra income for the evaluator. Third, clinicians are occasionally required by law to violate confidentiality when a patient reveals specific information, such as threats to harm others or evidence of child abuse, during the course of therapy. Therefore, it may not seem problematic for the clinician to share other confidential information while testifying.

Finally, in today's practice, the treating psychiatrist is often compelled to function as a social worker, a referee between the patient and managed care, or a police officer who serves to protect society from the patient. Treating psychiatrists are also routinely called on to testify in civil commitment or forced medication hearings involving patients on their own wards. Therefore, a further excursion into the legal system does not seem terribly different from all these roles.¹ Other professions involved in patient care and the legal arena, including neuropsychologists, grapple with this conflict as well.²

Potential conflicts

The American Academy of Psychiatry and the Law makes the following recommendation in its ethics guidelines: "Treating psychiatrists should . . . generally avoid acting as an expert witness for their patients."³

The therapeutic alliance. A focus on legal issues during appointments, when therapy is anticipated, may disrupt therapeutic intent. For transference to occur properly, a patient must feel some security and anonymity in the confines of therapy. Conversely, at the outset of the forensic interview, the evaluator must define the nonconfidential nature of the relationship, potentially causing the evaluee to tailor reported information, consciously or not, in order to help his legal case. Transference is further enhanced by the patient's lack of knowledge of the psychiatrist's personal life and idiosyncrasies, which may be revealed if the psychiatrist testifies.

On the opposite end of the spectrum, countertransference may color the image of the patient that the psychiatrist presents. For example, a patient who has borderline personality disorder could have irritated a clinician, who in turn may not be sympathetic to his legal situation. Or, a patient who has made great strides in therapy may have had a "run of bad luck," potentially leading to decreased objectivity on the part of the sympathetic therapist. Taking into account elements of the therapeutic alliance, a clinician serving as an expert may easily, although unwittingly, present skewed information to the court.

The truth. Psychiatry and the law require 2 separate kinds of truth. In a therapeutic relationship, the clinician frequently relies on the patient's subjective truth. In other words, the patient presents his own view of the world and his life events, which often have more therapeutic meaning than the actual events. A forensic evaluator, however, must be concerned with objective truth-what actually happened. This often requires the examination of external sources above and beyond the usual practices of treatment, such as review of not only past medical records but also employment records and collateral interviews (including conversations with family, friends, coworkers, or police officers). If the treating clinician undertook this process, the patient might view it as a violation of trust. In other words, the healthy skepticism required in the forensic evaluator may well be off-putting to a patient who is also being treated by him.

Another conflicting issue exists when collecting information for court reports. The treating psychiatrist may have access to more of the patient's information, especially if their relationship is long-lasting. The patient may have revealed issues over the course of therapy that he would choose not to reveal to a forensic examiner. For example, a patient who later stands accused of rape may have previously revealed unwittingly to his therapist that he has participated in alternative sexual practices. It may prove difficult for the clinician/evaluator to separate, especially subconsciously, this information when attempting to create an impartial report for the court.

Nonmaleficence. The Hippocratic oath requires that physicians do no harm to patients, and expert testimony made by the clinician/evaluator can most certainly do just that. For example, the patient may be embarrassed by questions requiring the clinician/evaluator to reveal personal information that he expected would be held in confidence, the psychiatrist's testimony may become public record, or lower self- esteem may result in the patient if negative opinions are proffered. The patient may even experience anger towards the clinician/evaluator for not doing a better job, whether justified or not. Finally, the patient may lose the case and suffer loss of money, child custody, or freedom that he may in turn blame on the clinician/evaluator.

Malpractice.If a clinician/evaluator chooses to testify as an expert witness rather than a fact witness, he may be held to the standards of an expert witness. For example, although a clinician/evaluator may feel confident that he knows his patient and therefore chooses not to collect collateral information, this may fall below the standard of practice for a forensic evaluator. While in the past, expert witnesses were generally immune from prosecution, this may no longer be true.⁴ The clinician/evaluator may also feel uncomfortable conforming to the standard of providing his opinion under oath with "reasonable medical certainty," since much more ambiguity may be tolerated in clinical practice.⁵

Furthermore, the treating psychiatrist may be surprised to find that words have very specific meanings in court and he can easily be blindsided by an attorney's questions when cross-examined. For example, recognizing a text as an "authority" may place the psychiatrist in a position of agreeing with every word in the text, which, given some disputed issues such as the specific definition of postpartum depression in the DSM, may place him in an uncomfortable position. DSM criteria for mental disorders, personality disorders, and malingering are strictly adhered to in court, which may be different in the clinician's regular practice.

An issue of ethics. If a clinician/evaluator testifies that his patient requires more psychiatric treatment and the clinician stands to gain financially from the recommendation, this arguably makes him less objective.

Conclusion

While it is tempting to serve as both a patient's clinician and forensic evaluator, there are a number of factors that should dissuade a psychiatrist from doing so. Potential conflicts that may arise include a disruption in the therapeutic alliance, a distinction between subjective and objective truth, difficulty acting in the patient/evaluee's best interest, an increased risk of malpractice, and ethical concerns. These factors lead to the conclusion that acting as both the clinician and evaluator can cause a conflict of interest.

References:

References1. Strasburger LH, Gutheil TG, Brodsky A. On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Am J Psychiatry. 1997;154:448-456.
2. Bush SS; NAN Policy and Planning Committee. Independent and court-ordered forensic neuropsychological examinations: official statement of the National Academy of Neuropsychology. Arch Clin Neuropsychol. 2005; 20:997-1007.
3. American Academy of Psychiatry and the Law. Ethics Guidelines for the Practice of Forensics Psychiatry. Bloomfield, Conn: AAPL; 2005. Available at: www.aapl.org/pdf/ETHICSGDLNS.pdf. Accessed April 3, 2007.
4. Binder RL. Liability for the psychiatrist expert witness. Am J Psychiatry. 2002;159:1819-1825.
5. Rappeport JR. Reasonable medical certainty. Bull Am Acad Psychiatry Law. 1985;13:5-15.