Robert L. Sadoff

Ethical Issues in Forensic Psychiatry: Minimizing Harm

About the Authors. Preface. Acknowledgments. Introduction. List of Contributors. Part One Ethics in Forensic Psychiatry. 1 Ethical Issues in Forensic Psychiatry in the United States (Robert L. Sadoff). 2 Minimizing Harm: A Perspective from Forensic Psychiatry in the United Kingdom (John A. Baird). 3 Mental Health and Human Rights in Forensic Psychiatry in the European Union (Emanuele Valenti and Luis Fernando Barrios Flores). Part Two The Practice of Forensic Psychiatry. 4 The Forensic Psychiatric Examination (Robert L. Sadoff). 5 The Forensic Psychiatric Report (Robert L. Sadoff). 6 Expert Psychiatric Testimony (Robert L. Sadoff). Part Three Vulnerable Populations in the Justice System. 7 Children and Adolescents (Robert L. Sadoff). 8 The Elderly, the Mentally Retarded, and the Severely Mentally Disabled (Robert L. Sadoff). 9 Victims and Predators of Sexual Violence (Robert L. Sadoff). 10 Immigrants: A Vulnerable Population (Solange Margery Bertoglia). 11 Prisoners and Death Row Inmates (Robert L. Sadoff). 12 Forensic Psychiatric Experts: Risks and Liability (Robert L. Sadoff). 13 Risks of Harm to the Forensic Expert: the Legal Perspective (Donna L. Vanderpool). Index.

Ethical issues in forensic psychiatry.

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In Defense of the Insanity Defense

The insanity defense continues to be at the center of a great controversy. Most psychiatrists favor the concept of relieving a seriously mentally ill person of criminal responsibility if his mental illness significantly affects his behavior. Most attorneys also adhere to the notion that insanity is a viable defense, when significant mental illness is involved. Recently, at-tempts have been made to abolish the insanity defense for a number of reasons.

Should Forensic Psychiatrists Conduct Psychological Testing

Forensic psychiatrists occasionally conduct psychological testing, for a host of reasons that may include a lack of access to psychological consultation, a lack of funding for such consultation, or a genuine belief that they are technically and legally qualified to select, administer, score, and interpret the most suitable instruments for informing a particular medicolegal opinion. This phenomenon may have several clinical, ethical, and legal ramifications, depending upon the forensic psychiatrists level of training, the forensic issues being addressed, and the nature of the psychological tests employed. In this article, the authors distinguish between what constitute “psychological tests” as opposed to appraisals, rating scales, and inventories. Also addressed is the need for formal training and supervision, including familiarity with the mechanics of test construction and statistically determined interpretive limitations. The authors offer recommendations and provide several case vignettes that illustrate how these issues may surface in both civil and criminal law contexts. The article concludes with the caveat that psychiatrists should avoid using psychological tests without obtaining and maintaining necessary credentials.

Board Certification in Forensic Psychiatry and Psychology: Separating the Chaff from the Wheat

Psychiatrists and psychologists are under increasing pressure to obtain board certification in their areas of specialization. While this has been the norm for psychiatrists, it is less true for psychologists as of this writing. Regardless, both professionals have been permitted to testify in court without board certification, particularly since the Federal Rules of Evidence 702 tend to be somewhat broad-based in their definition of what constitutes an expert. This article reviews the basic need for board certification and reasons why it should become a requirement for those who practice forensic psychiatry and psychology. The article considers some of the reasons why individuals in both professions may have been reluctant to pursue board certification in the past, as well as some of the pitfalls encountered in the process of becoming certified. Further discussion illuminates the need for psychiatrists and psychologists to adhere to rigid requirements for credentialing and to avoid dubious alternatives such as so-called “vanity” boards that offer ongoing grandfathering periods without rigorous credentials reviews and examination. The impact of such questionable credentials on the forensic field is also discussed.

Formal training in forensic mental health: psychiatry and psychology.

The field of forensic mental health has grown exponentially in the past decades to include forensic psychiatrists and psychologists serving as the primary experts to the court systems. However, many colleagues have chosen to pursue the avenue of serving as forensic experts without obtaining formal training and experience. This article discusses the importance of formal education, training and experience for psychiatrists and psychologists working in forensic settings and the ethical implications that befall those who fail to obtain such credentials. Specific aspects of training and supervised experience are discussed in detail.

What We Owe the Psychopath: A Pragmatic Reply

between a genetic vulnerability and abusive upbringings. With regard to people of whom this is true, the claim that because we are partly responsible for their condition, we have special obligations to them, might be plausible. (Even establishing that is more difficult than Gillett and Huang imply: Does the fact that some members—perhaps now dead—of a society were responsible for a harm entail that the society has obligations of reparation? It might vary from case to case: Were there, or should there have been, institutions that ought to have prevented the abuse?) But psychopathy does not appear to develop as a product of abuse. Rather, its development is buffered against any intervention we know how to make. We might compare our role in the development of disorders, and the obligations consequent on such roles, to other cases in which our intuitions are clear. If I, in my negligence, provide you with tainted food and you sicken, I may owe you a special obligation. But if I provide you with untainted food and you experience an allergic reaction I had no reason to expect, I do not seem responsible for your sickness and do not have special obligations to you. Our situation with regard to the psychopath seems more analogous to the second case than the first. Indeed, on one theory of psychopathy, according to which its development is a product of a frequency-dependent adaptation, psychopathy might develop in individuals with genetic vulnerabilities because we are trusting and moral, rather than abusive. On this account, psychopathy develops because the conditions exist in which it is possible to cheat and deceive and get away with it: when there are a sufficient number of “nice” people to take advantage of (Mealey 1995). Surely we do not owe psychopaths anything because their condition is the product of how well we treated them? It bears emphasis, however, that abusive social conditions may play a role in how psychopathy develops, even if they do not affect whether it develops. It has been suggested that psychopaths will exhibit a propensity to violence only if they come from deprived or violent backgrounds (though this is controversial; see Blair, Mitchell, and Blair 2005); we may conceivably owe violent psychopaths special recompense. Whether we do depends not only on whether this etiological account is correct, but also on other factors. First, it depends on whether the fact that had his environment been better, the psychopath would have developed into a manipulative and deceptive, but not violent, person entails any obligations on those responsible for the environment (it is worth noting that manipulative and deceptive people are not always less harmful than violent people). Second, it depends on whether one believes that psychopaths are responsible for their actions. A majority of philosophers appear to believe that they are, regardless of their many deficits (for discussion see Levy 2007; Levy in press). We have a special responsibility to psychopaths only if we have treated them unjustly. It is unlikely that all psychopaths have been treated unjustly by us. We may well, as Gillett and Huang suggest, have special obligations to many criminals, indeed, perhaps to the great majority. Whether psychopaths fall into that class depends on the correct story of the syndrome’s etiology and also on the state of our ability to affect their development.

Minimizing Harm in Psychiatric Treatment and Research

What do the two target articles in this issue—”What We Own the Psychopath: A Neuroethical Analysis” (Gillett and Huang 2013) and “Ethical Considerations in Deep Brain Stimulation for the Treatment of Addiction and Overeating Associated with Obesity” (Pisapia et al. 2013)—have in common? They each refer to ethical issues related to psychiatric treatment or research. Much has been written about the ethical concerns in medicine, protecting both the patient, and the subject in medical research. The common ethical doctrine for all of medicine, including psychiatric research and treatment, is “primum non nocere” or first do no harm. Many treatments, especially surgery, do result in temporary pain or discomfort. We owe our patients an explanation of what harm may occur, how long it will last, and how we can help ameliorate the harmful effects of our therapeutic efforts. We also owe our patients confidentiality, informed consent for all we do to and for them. We must demonstrate respect for patients through honesty, lack of coercion and striving to be unbiased irrespective of the patient’s diagnoses. One of the articles in this issue discusses the psychopath from the perspective of neuroscientific assessment, arguing that the psychopath is a “victim as well as a sinner” and should be treated accordingly. We should set aside our previously held notions that the psychopath is “an evil scourge of contemporary society” and offer treatment in a therapeutic community. The other paper stresses the ethical requirements in conducting research on deep brain stimulation (DBS), emphasizing the need to abide by these requirements when engaged in any experimental treatment and psychiatric or medical research. Thus, both articles generate significant ethical concerns for the medical professional. As a forensic psychiatrist, I recognize that I cannot strictly adhere to the doctrine of “First do no harm,” when assessing individuals in criminal or civil cases. When working for the prosecution in a criminal case, I can be of great harm to the defendant if I find that he or she does not have a mental or emotional condition that would aid his or her defense. In some cases, my testimony could result in a sentence of death. In civil cases, when working for the defense in a personal injury matter, I may find no significant psy-

From the Journal of Psychiatry & Law Archives: Bernard L. Diamond. M.D. on “The Psychiatrist as Advocate”:

Dr. Bernard L. Diamond (1973) published the first article in the first issue of the Journal of Psychiatry & Law. Entitled “The Psychiatrist as Advocate,” it was a follow-up to his famous editorial, “The Fallacy of the Impartial Expert” (Diamond, 1959). Given the impossibility of total impartiality, the expert witness can still be ethical, but then undertake a form of activism. After nearly 40 years, we continue to reassess our boundaries as expert witnesses. In this article, the author has asked Dr. Robert L. Sadoff to comment on Dr. Diamonds ideas in the context of contemporary ethics.

4. Competency Restoration

Like many legal concepts, competence to stand trial (CST; see Chapter 1 in this volume) seems reasonably clear in its definition, yet considerably more vague in its application and understanding by the public and by forensic examiners (Gutheil, 1999). As noted by the Supreme Court of the United States in Godinez v. Moran (1993), ‘‘while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial’’ (p. 398). How, then, when defendants have initially been determined incompetent to stand trial, are they optimally restored to competency? The answer to this question lies in recognizing and addressing the psychiatric conditions and other personal circumstances underlying this forensic disability. Trial incompetency is strongly associated with psychosis and the presence of more severe psychopathology, including disorientation, hallucinations, impaired memory, and impaired thought and communication (Nicholson & Kugler, 1991). A defendant’s competencymay be impaired by other factors, including mental retardation, neurocognitive disorders, the effects of substance abuse, and physical illness. CST is a multidimensional construct, and it varies depending on the content, the person, and the task that is the subject of the evaluation (Freckelton, 2009); defendants