Ethics Challenges in Forensic Psychiatry and Psychology Practice

Ezra Griffith

• Publisher: Columbia University Press
• Year: 2018
• ISBN:
  9780231544849
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

Forensic psychiatry and psychology involve specialized practice with unique patients, including children, the incarcerated, and involuntary clients, presenting practitioners with specific ethics challenges. In this volume, Ezra E. H. Griffith offers a selection of engaging essays that guide practicing forensic specialists through particular situations that often result in ethics dilemmas.

In chapters covering topics such as forensic practice and critical feminist theory, neuroethics in court, work with asylum applicants, and ethics problems presented by the internet, the contributors demonstrate methods to help practitioners resolve problems that they are likely to encounter in forensic practice. The concentrated focus on thinking through ethics quandaries encourages forensic practitioners to reflect regularly on the ethics dimensions of their work and provides them with the tools to create ethics-based solutions that are transparent and understandable and best serve their clients. This essential book provides a roadmap for specialists in these evolving fields to recognize dilemmas through reflection and consideration, thoughtfully articulate the problems, and create solutions.

PART I

APPROACHES TO SOLVING ETHICS PROBLEMS IN FORENSIC PRACTICE

1

RESOLVING ETHICS DILEMMAS IN FORENSIC PRACTICE

William Connor Darby and Robert Weinstock

We believe most people enter the fields of psychiatry and psychology with a desire to act ethically and that most are interested in trying to do the right, or most ethical, action when faced with challenges. This aspiration does not disappear when entering the forensic realm, but it does become more complex when operating at the intersection of law and psychiatry/psychology. To aid practitioners, we will present a method of resolving ethics dilemmas named “dialectical principlism.”

Dialectical principlism was developed specifically to help forensic psychiatrists and psychologists face ethics challenges characterized by conflicting duties and opposing principles. The method integrates ethics guidelines such as those from medical and forensic organizations like the American Medical Association (AMA) (2001), American Psychiatric Association (2013, 2014), American Psychological Association (2010), American Academy of Psychiatry and the Law (AAPL) (2005, 2013), and American Academy of Forensic Sciences (AAFS); ethics theories such as principlism, casuistry, narrative, ethics of caring, and normative ethics; and ethics models specific to forensic professionals such as the principlism approach of Appelbaum (1997), the robust professionalism of Candilis and Martinez (2001), and the narrative approach of Griffith (1998).

We will demonstrate the special features of dialectical principlism, including how it affords the balancing of conflicting ethics criteria in determining the most ethical action. The framework strives to achieve this goal by prioritizing ethics considerations according to a practitioner’s specific professional role. We distinguish between “primary” and “secondary” duties to highlight how the model weighs principles in a manner dependent on the role of the practitioner. For example, a practitioner in a treatment role has a different set of primary duties from one in a forensic role, and, thus, a different calculus occurs in these two settings.

The context of the situation and the unique set of personal, cultural, and societal values created from a practitioner’s narrative are used to assign weights to primary and secondary duty principles. Finally, these principles are balanced by using the reflective-equilibrium method of Rawls (1971) to decide on what is the most ethical action for that specific individual, in that specific role, given that specific situation. A hypothetical ethics dilemma will be used to illustrate how dialectical principlism works practically and accomplishes this end.

SPECIAL ETHICS CONSIDERATIONS AT THE INTERSECTION OF LAW AND PSYCHIATRY/PSYCHOLOGY

Ethics in forensic work for psychiatrists and psychologists presents special challenges. That is because it operates at the intersection of two disparate fields. Psychiatry is a branch of medicine, with patient welfare as its primary concern. Treating psychologists also prioritize their clients’ welfare. In the legal system, on the other hand, the major focus is to settle disputes and achieve legal justice. When engaged in forensic practice, forensic professionals bring to the legal system their own methods, goals, rules, ethics, and values, which are distinct from those of the legal system. Ethics dilemmas may arise when the ethics principles and rules that govern forensic practice are in conflict with those that govern lawyers. Ethics dilemmas also occur when the ethics principles relevant to forensic practice are themselves in conflict, thereby creating questions about which principles to prioritize.

ORGANIZATIONAL GUIDELINES

To help forensic experts facing these conflicting obligations to the law and their practice, many organizations have ethics guidelines applying to forensic work that frame the boundaries of what is or is not ethical practice. These organizations include the AMA, American Psychiatric Association, American Psychological Association, AAPL, and AAFS. For example, AAPL requires that practitioners be honest and strive for objectivity in their forensic reports and testimony (American Academy of Psychiatry and the Law 2005), and AAFS guidelines preclude the distortion of a practitioner’s qualifications, experience, and data.

Ethics dilemmas occur when practitioners encounter competing guidelines. If one guideline is completely neglected for another, then the risk for unethical action increases. That is, following any guideline rigidly while neglecting all others is potentially problematic; such actions may cause conflict with other duties, other responsibilities, and even other guidelines.

For example, a forensic expert could disregard the ethical problem of the potential for misleading the person being evaluated by omitting an explanation of his role and purpose of the examination in order to obtain the most honest and objective conclusion to the legal question. But this would mean being dishonest with the evaluee and not showing him respect. This example illustrates how attempting to adhere to only one guideline to the exclusion of all others risks violating fundamental ethics values. Familiarity with the guidelines is important so that practitioners can adhere to them and identify when conflicts exist. Such situations require determining which guidelines to prioritize. This process of prioritizing may subsequently lead to different conclusions on how to act most ethically.

To deal with the problems related to conflicting ethics guidelines, forensic experts may implement relevant ethics theories and models to help lay out and emphasize what criteria should be considered.

ETHICS THEORIES PERTINENT TO FORENSIC PSYCHIATRY AND PSYCHOLOGY

Some of the major ethics theories relevant to forensic work are normative ethics (including virtue, deontology, and consequentialism), ethics of caring, principlism, narrative, and casuistry (closely related to and possibly including narrative).

Virtue ethics originated in the virtues delineated by Plato and Aristotle. In recent years, it has had a resurgence, emphasizing the need to have moral character in order to behave ethically and to be reflected in the usual practice of virtuous professionals (Candilis, Weinstock, and Martinez 2007). That is, it is insufficient simply to have been educated on ethics theories or aware of the important considerations; it is also necessary to have moral character and the intent or desire to carry out the right action.

Other types of normative ethics include duty (deontological ethics) and consequentialism (utilitarian ethics). Consequentialism contends broadly that the morality of an action be judged based on its consequences: the right action is the one that produces the best outcome or does the most good (Hope 2004). Deontological ethics, on the other hand, judges the morality of an action based on rules such as “always tell the truth.” For example, a deontologist might argue that it is never moral to lie or not to tell the whole truth and also that it is never ethical to kill a person (Hope 2004).

There are limits to how far either of these methods alone can rule and determine our most ethical action. For example, most would disagree with killing one person to harvest his organs so that a number of other people could live; nevertheless, doing so could be argued as an extension of consequentialism. But in this situation, the strong deontological principle of not killing others would be determinative. In a parallel manner, strictly adhering to deontological ethics values alone might lead to serious consequences, such as when the Gestapo in Nazi Germany asks where to find hiding Jews and not lying would lead to their capture and torture.

There is also Gilligan’s (1982) ethics of caring, which is in part an outgrowth of feminist ethics. It is an alternative to the developmental principlist model of Kohlberg for moral development. Kohlberg (1984) considered thinking in terms of principles to explain that the morality of an action is the highest stage of moral development and that most people never achieve it. But it has been argued that this can lead to a “cold” kind of morality. That is, should we as individuals in contrast to society really aspire to treat all people the same? Should we give our family, our friends, and ourselves no more consideration than anybody else?

The two major conceptions of the practice of bioethics include principlism and casuistry (Cudney 2014). Modern principlism such as that proposed by Beauchamp and Childress (2013) involves balancing context-dependent conflicting principles. Contemporary advocates of casuistry such as Jonsen and Toulmin (1988) argue for a more “bottom-up” approach of starting from paradigm cases and then drawing the relevant principles, rights, and rules to apply to new cases (Paulo 2015).

Beauchamp and Childress (2013) developed four principles of biomedical ethics: autonomy, beneficence, nonmaleficence, and distributive justice. Distributive justice is not legal justice. It refers specifically to the fair allocation of limited medical resources. There have been incremental revisions of their views in the various editions of their book. In the 2013 edition, they clearly assert that common morality is relevant. When the four principles of medical ethics conflict with one another or with common morality, they assert that they need to be balanced using Rawls’s reflective equilibrium to determine the most ethical action.

Principlism is often contrasted with casuistry (or a version of it called narrative). Casuistry in the past was used pejoratively and equated with ethical relativism devoid of higher principles and theory. Modern casuistry and principlism have been moving closer to each other in recent years (Cudney 2014).

In modern casuistry, paradigm cases are developed. When faced with a new situation, a paradigm case is selected with a similar ethics dilemma implying a similar solution. It is not unusual, however, for disagreements to arise regarding how much weight to apply to one facet of the case over another and which paradigm to use. This requires identifying the relevant facets to consider. These facets can then be weighed using the reflective-equilibrium method of Rawls as described by Beauchamp and Childress (2013) and becomes similar to the methods employed by principlists who apply and balance midlevel principles.

MODELS OF FORENSIC PROFESSIONAL ETHICS

In forensic professional ethics, principlism has best been applied by Appelbaum. In a response to Stone’s (1984) challenge to provide an ethics framework for the field, Appelbaum (1997, 2008) developed principles for forensic psychiatry to distinguish it from treatment psychiatry. Appelbaum claimed that ethics requirements are determined by the role of the profession. In forensic psychiatry, the goal is to promote legal justice. That goal is fostered ethically by subjective and objective truth telling as well as by demonstrating respect for persons.

Although Appelbaum’s model accurately defines the principles to help practitioners act ethically in most forensic contexts, there are some limitations on how it can guide ethical behavior. An example is which principle should take precedence in his model when they collide. For illustration, what do we do when fostering justice comes into conflict with showing respect for persons? Should we intervene when the legal system is not showing respect for the evaluee? Should we reject a case if we think the goal of an attorney is inappropriate or unethical, even if allowed by the law? That is, does answering the legal question honestly trump respecting persons when these conflict, or vice versa?

Appelbaum appropriately cautioned that forensic psychiatrists risk misleading the evaluee when they simultaneously adhere to the duties of a forensic role while also taking the ethical position of a treating psychiatrist, what he calls a “mixed model” (Appelbaum 1997). The rationale is that an evaluee can mistake the forensic psychiatrist as trying to help him even when hired by the prosecution. He contended that the risk is greatest if the psychiatrist him- or herself is confused as a result of considering traditional medical-ethics principles as relevant in a case. Although these are valid criticisms, Appelbaum did not directly address whether there is any place for traditional medical ethics in forensic psychiatric work.

Another forensic-ethics model, robust professionalism, does assert a role for traditional medical ethics in the field (Candilis, Martinez, and Dording 2001; Martinez and Candilis 2005; Candilis 2011; Candilis and Martinez 2011). In their model, the forensic professional acts most ethically by going beyond just answering the legal question to include efforts to resolve underlying conflicts and problems that benefit the individual being assessed. For example, this model could be used to achieve the most ethical outcome when consulted to make end-of-life decisions involving initial conflict between patient and family (Candilis, Weinstock, and Martinez 2007). These theorists argued that going beyond the narrowly defined forensic role is a central tenet of the forensic practitioner’s robust professional duty and not merely an afterthought.

Robust professionalism has elements related to narrative in that they both assert that as more information about the situation is obtained, the most ethical action becomes apparent. However, similar to Appelbaum’s principlism model, robust professionalism does not clearly address how a forensic expert should resolve conflicting ethics considerations. It also is not evident whether Candilis and Martinez develop paradigm cases or principles to compare and apply to new cases as in modern casuistry and whether their model implements Rawls’s reflective equ...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Introduction
• Part I: Approaches to Solving Ethics Problems in Forensic Practice
• Part II: Ethics in Major Areas of Forensic Practice
• Part III: Specific Ethics Problems in Forensic Practice
• List of Contributors
• Index