Forensic Ethics, Interrogations, and Getting the Facts Right

Paul S. Appelbaum, MD;

Publication

Article

December 1, 2010

Psychiatric Times

Psychiatric Times Vol 27 No 11

Volume27

Issue 11

Forensic Ethics, Interrogations, and Getting the Facts Right

Author(s):

Paul S. Appelbaum, MD

DEBATE When you get facts wrong, as Dr Halpern does, it is hard to end up with the right conclusions. He suggests incorrectly that my approach to forensic ethics leads to the conclusion that participation in interrogation is permissible, when exactly the opposite is true.

When you get facts wrong, as Dr Halpern does, it is hard to end up with the right conclusions. Although nominally focused on the events more than 5 years ago when the APA passed a position statement condemning psychiatric involvement in interrogations of detainees, Dr Halpern’s real target is my approach to the ethics of forensic psychiatry.¹ But by distorting the events associated with adoption of the policy-omitting the crucial datum that I was the main drafter and chief proponent of the position statement-Dr Halpern leaves the reader with the impression that I was on the other side of the debate. Moreover, he suggests incorrectly that my approach to forensic ethics leads to the conclusion that participation in interrogation is permissible, when exactly the opposite is true.

The history of the position statement on interrogation did not begin, as Dr Halpern’s account suggests, when “the Board of Trustees of APA prepared” it. Boards do not prepare position statements, people do. In this case, the process began in September 2004, when as chair of the Council on Psychiatry and Law of the APA, I convened a joint session of the Council and its Committee on Judicial Action to discuss psychiatrists’ participation in national security and police interrogations.² Council member Howard Zonana, MD, played a key role in bringing the issue to the Council’s attention, assembling information about current practices, and recruiting several psychiatrists who worked with the military and the police to join us for the session.³ On the basis of that preliminary discussion, later in the year when the Board of Trustees (of which I was a member) considered the issue-which was now being reported widely in the media-I suggested that we build on the process already begun the previous fall. The Board agreed.³

Hence, in September 2005, with additional representation from the Ethics Committee, the Committee on Misuse and Abuse of Psychiatry, military psychiatry, and the Board, I chaired a full afternoon session that explored the issue and began to lay out an approach. Following the meeting, I wrote the initial draft of a position statement, which was circulated to the participants for feedback. Richard Bonnie, JD, consultant to the Council and professor of law at the University of Virginia, was particularly helpful in the process. I presented a revised draft to the Board of Trustees at its October 2005 meeting, where it was approved and sent to the APA Assembly, as is required for all position statements, for their review and approval.⁴

At the Assembly, however, concern was expressed that the statement went too far; some members felt that psychiatrists had a legitimate role to play in interrogations, so long as they were not coercive. Hence, in a highly unusual move, the Assembly adopted a revised version of the position statement that differed from the Board’s by permitting participation in non-coercive interrogations. When that version returned to the Board in December 2005, the trustees reaffirmed their endorsement of the original position that I had brought to them in October. APA President Steve Sharfstein, MD, a strong supporter of the original statement, appointed a joint Board-Assembly work group to try to find a consensus that could satisfy both groups. I was asked to chair the work group, which I did.⁵

In January 2006, the work group met in Tucson with the Assembly Committee on Planning and then on its own to try to resolve the impasse. Although some minor changes in wording were agreed on, it was clear that the two approaches represented fundamentally different views of the ethics of psychiatry: either one believed that psychiatrists have no role to play in the interrogation process, as I and a majority of the work group did, or one saw no problem with it so long as torture-like methods were not used. So the document returned to the Assembly in May 2006 for a climactic discussion and vote. I addressed the Assembly and urged them to accept the Board’s approach, as did Dr Sharfstein. In the end, by a roughly 2:1 margin, that is exactly what they did.⁶ The Board affirmed its position the following day, and the statement became APA policy. As a coda to the story, a few weeks later, the AMA was due to consider its own position statement on interrogation, crafted by its Council on Ethical and Judicial Affairs (CEJA). The CEJA draft, however, appeared to be more permissive than the APA’s position with regard to advising on tactics for the interrogation of particular detainees, which the APA precluded. Hence, on behalf of the Association, I wrote to the CEJA to urge them to remove the problematic language, which they did. The final AMA statement closely resembled the APA’s.⁷

This entire account is available from public sources. Moreover, Dr Halpern is well aware of the history of the document. In what I now take to be a propitiatory e-mail that arrived a few weeks before I became aware of his article, Dr Halpern wrote, “I’ve often thought about your presentation at the Assembly meeting in 2006, when you eloquently and forcefully persuaded the representatives to adopt the Board of Trustees’ Position Statement. . . . Somehow, few know of your last-minute involvement, let alone your authorship of the Statement.” Why, then, does Dr Halpern’s own account omit any mention of my role in the process and leave the impression that I was supporting the other side?

Historical accuracy here has fallen victim to Dr Halpern’s long-standing irritation with the theory of forensic ethics that I described and which, as he correctly suggests, represents the views of most practicing forensic psychiatrists. This is not the place to review my approach in detail; interested readers can consult the full exposition in my paper.¹ But in brief, I suggest that it is incoherent to assert that psychiatrists who are perform-ing forensic evaluations have the same obligation only to act in the interests of their patients that drives the ethics of clinical medicine. The evaluating forensic psychiatrist, after all, is not there to treat the person being assessed (there is, in fact, no “patient”), and the possibility that the psychiatrist will come to a conclusion adverse to the person’s interests (eg, that a criminal defendant was responsible for his actions) is precisely why the evaluation has any value for the courts.

Rather, I suggested that forensic evaluators are held to the principles of truth-telling and respect for the persons they are assessing. Ironically, it is precisely the latter principle that I believe precludes psychiatrists-even military or forensic psychiatrists-from becoming involved in interrogations. As inherently coercive (detainees who are willing to talk, after all, hardly need a psychiatrist to advise on how to question them) and typically deceptive procedures, they violate the obligation that all psychiatrists have to respect the people to whose cases they apply their skills. Indeed, this is precisely the argument that I made to the APA Assembly prior to their adop-tion of the position statement precluding psychiatrist involvement in interrogations.

Others, in addition to Dr Halpern, have critiqued my approach on one or another grounds. They have every right to do so, as does he. But no one has the right to distort the historical record to try to score points in an ideological debate. That is exactly what I object to here.

Dr Halpern’s Response:

First, I wish to make it clear that my reference to the APA’s Position Statement “Psychiatric Participation in Interrogation of Detainees” was to give an example of how forensic psychiatrists have been influenced by the views of Dr Appelbaum that forensic psychiatrists work in accordance with a set of ethics principles that differ from those in The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry. I did not attempt to go into the provenance of the Position Statement or what the Statement says a psychiatrist should and should not do in connection with interrogation of detainees. In no way did I imply that Dr Appelbaum was in favor of psychiatrists being involved in such interrogations. Even a cursory reading of my commentary would convince most readers that what I was concerned about was Dr Appelbaum’s concept that a unique ethics code is required in the practice of forensic psychiatry.

Dr Appelbaum is correct in that I applauded his tremendous efforts to have the Board of Trustees’ original Position Statement win the approval of the Assembly. In fact, in the communication he cites, I told him of my regret that others claimed credit for the Position Statement that he himself authored. I also pointed out that with the exception of his views on ethics in forensic psychiatry, I am fully in accord with all the positions he has taken in our field over the years.

Dr Appelbaum’s essay provides an accurate and useful history of the creation and adoption of the APA’s Position Statement “Psychiatric Participation in Interrogation of Detainees.” However, his response to my commentary does not argue with any of the points I outline that make it abundantly clear that not a single subspecialty of psychiatry requires a code of ethics rules different from The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry.

Dr Halpern is professor emeritus of psychiatry at New York Medical College, Valhalla, NY; past president of the American Academy of Psychiatry and the Law; and past president of the International Academy of Law and Mental Health.