Abstract
The medico-legal report is one of the few ‘windows’ to psychiatry. Writing medico-legal reports is challenging. Most psychiatrists will be expected to do so at some point in their career. A thoughtful, well-structured report can be a rewarding experience for the writer.
Types of forensic reports
In most jurisdictions there are two broad areas of report writing: civil and criminal. Civil reports deal with civil commitment; civil competencies; and guardianship, compensation for mental injury and abuse and neglect of children. Criminal reports deal with competency to stand trial, mental state at the time of the crime, mitigating defences, and presentencing reports to aid the court in disposition matters (including, in New Zealand, matters relating to preventive detention). The nature of the respective report is important as it determines the writer's role, ethics and the report's content.
Background to the ethics of forensic report writing
In general, psychiatric ethics concern the doctor–patient relationship and the issues that flow from this such as autonomy, beneficence and non-maleficence [1]. The forensic psychiatrist is often in ethical conflict in relation to role and responsibility, agency and moral obligation.
The Hippocratic oath, which embodies the physicians' promise to ‘act primarily for the benefit and not for the harm of individuals, to protect their confidences, to refrain from performing abortion and euthanasia and having sexual relationships with individuals or their families, and to lead a life of moral integrity’, until a few decades ago, was the ‘bedrock’ of medical ethics [2]. More recently, doubts about the oath's historical origins, its moral relevance and its ability to address societal obligations have arisen [2]. Society as a whole expects loyalty to individual patients from clinicians. Society also demands that medicine respect their collective rights in regard to issues that relate to public protection, cost-effective management and resource allocation. In general, society regularly turns to medicine to serve multiple gate-keeping roles [3]. As a result, ‘society maintains contradictory private and public expectations of medicine’ [4, p. 7].
Examples of conflicts between medicine's social obligations and medicine's obligation to the individual include confidentiality versus the duty to protect members of the public; autonomy versus coercion to facilitate treatment; and beneficence versus the giving of expert evidence that may be damaging to the individual.
Freedman and Halpern warn against the long-term consequences of psychiatrists becoming agents of the state [5]. Pellegrino believes that the moral premise, that the law takes precedence over medical ethics, that the good of the many is more important than the good of the few, is erroneous. This can lead to abuses as seen in Nazi Germany, communist Soviet Union [6] and more recently in Japan [7]. Pellegrino reminds us that ‘the integrity of medical ethics is not immune to corrosion in democratic countries’ [6, p. 1623]. These authors caution regarding psychiatrists' involvement in the forensic area.
Others, such as Appelbaum [8,9], argue that the role of psychiatry in the medico-legal setting departs from the paradigm of the treatment setting and so traditional ethics do not apply. Appelbaum believes that the role of the forensic psychiatrist is primarily as ‘evaluator’, not as therapist. Principles of non-malifecence and beneficence are of secondary importance. He is of the view that the forensic psychiatric paradigm requires as a primary value ‘the advancement of justice’. Appelbaum opines that the principles of forensic psychiatry are ‘subjective truth-telling’ (the expert's genuine belief in the testimony), ‘objective truth telling’ (the acknowledgement of limitations of the testimony and limits of scientific knowledge) and ‘respect for the person’.
Stone [10] argues that the law has always imposed the standard of ‘truthfulness’ on the expert. He argues that, irrespective of this, the sociopsychological context of the criminal justice system makes the psychiatrist vulnerable to pursuing economic, narcissistic and other ends. He states that psychiatrists are at risk of claiming ‘more objective certainty and subjective conviction than they could possibly justify in a clinical context’.
Involvement in the assessment and treatment of death row prisoners takes the participation of forensic psychiatrists in medico-legal matters to its logical and extreme conclusion. That is, applying psychiatric knowledge and treatment in order to allow harm to be done to the individual [5]. Although the death penalty is not an issue for Australasian psychiatrists, this issue is reflected in other forms of local legislation [11].
Bloche [4] argues that the tension created between doctors' ethical obligations to the individual and ethical obligations to society is healthy and that this tension respects the needs of the community as well as those of the individual. Balancing both these obligations ensures ‘a healthy measure of restraint on [psychiatrists’] service to the state' (p.8). We agree.
It is against the background of this debate and conflict that forensic psychiatrists engage in their task of report writing. Those who choose to work as forensic psychiatrists should make themselves aware of the ethical difficulties involved.
Advice on the ethical approach to medico-legal assessment
The following is practical advice for the development of reports. Some advice derives from the authors' experience and reflects their views.
Ethical principles that govern the practice of psychiatry in Australia and New Zealand are outlined in the Royal Australian and New Zealand College of Psychiatrists
Clarify roles and boundaries
Request for a court report can arise from the individual themselves, a judge, counsel for the defence, prosecution or a civil agency representing the individual or another third party. Individuals are sometimes referred for evaluation under coercion, and sometimes without legal representation. In such circumstances, the person undergoing the evaluation can misperceive the situation and cooperate with the psychiatrist in the belief that anything he or she reveals will result in a beneficent outcome. For this reason, it is important to clarify roles and boundaries from the outset. Some authors argue that the deliberate use of empathy by the psychiatrist should not be used with the specific intention of ‘coercing’ (our word) information from the individual [16].
Clarifying roles and boundaries can be difficult in the context of inpatient forensic psychiatric assessment. In this situation, the psychiatrist is commonly the therapist and evaluator. There is potential for disruption of the therapeutic alliance and possible ‘therapeutic’ bias. Stone [10] has suggested that the forensic psychiatrist should avoid this conflict. In some jurisdictions this may not be practicable. It could be argued that it is the treating psychiatrist who will have the greater knowledge of the patient with which to inform the court when there is a challenge to civil committal or when the individual is remanded to a psychiatric hospital for assessment and requires further treatment. When confronted with circumstances that may cause conflict it may be wise to seek the second opinion of a colleague.
Obtain informed consent
Annotation 1 in the Royal Australian and New Zealand College of Psychiatrists
Annotation 3 requires that a person be competent to give consent. A dilemma is created in some medico-legal situations when the person is incompetent to give consent to a forensic report. We suggest that, in such cases, consent should be obtained from a close relative, guardian or other statutory agent, such as the court.
Explain the limits of confidentiality
Confidentiality is an important issue [17–19]. In a forensic evaluation there are limits to confidentiality. Annotation 3 [12] states that the limits of confidentiality should be clarified as part of the process of obtaining consent. This implies that the individual should be specifically warned that information could be made public and used in a manner that they perceive is adverse to them and potentially be made available to third and injured parties. In our opinion, it is not possible to promise confidentiality even when attorney–client privilege applies, as this would preempt any decisions made by the individual's counsel.
Although there may be a duty to the court when writing a forensic psychiatric report, there is an obligation to report only what is relevant to the case [9,20]. Care must be taken when adding information that implicates another person in an unreported crime or information that may be damaging to a third party. In doing so, the forensic psychiatrist may unwittingly become an agent of the State, potentially establishing grounds for charges against the individual or another party [15,20]. Damaged third parties may have cause to litigate.
It may be necessary to pursue further information from third parties or to access previous psychiatric information. Specific consent from the individual should be obtained in this regard [15]. We suggest careful apprisal of third parties of the limits of confidentiality and possible consequences prior to engaging them in an assessment.
In respect of a patient threatening another person, the psychiatrist is in a difficult position in regard to confidentiality. Annotations 6 to 8 [12] states that information may be released if the psychiatrist is aware of and unable to influence the individual's intention to seriously harm others; but that the psychiatrist's actions must be justifiable and the information limited to relevance. The forensic psychiatrist retained by the individual's council is a representative of the attorney and is governed by the attorney–client privilege. In such a situation, the forensic psychiatrist should be guided by College ethics.
It is important to be aware of the stage of the proceedings and take care not to address issues that may prejudice the individual's case or disrupt the legal process.
Respect individual autonomy
Given the sensitive nature of the information, individuals may refuse to be evaluated. The ethical issues relate to whether assessment is court mandated or voluntary. A court-mandated report might proceed irrespective of incompetence or informed refusal as long as consent from the individual's legal representative has been obtained. In our view, an individual's refusal to comply with an evaluation for a non-court-mandated report should be respected, evaluation discontinued and the individual informed of the possible consequences of non-participation. There is a risk that in doing this, the individual is subtlety coerced to continue. To guard against this, when a refusal to participate occurs, we suggest suspending the assessment until the individual has had the opportunity to discuss the issue with his or her counsel.
Preparing and writing court reports
The purpose of the forensic report is to assist the court in coming to an appropriate decision in regard to the matter before it. When it is to be followed by expert testimony it will be regarded as ‘Evidence-in-Chief’. Therefore it should be accurate and defensible under cross-examination [13]. There are a number of steps to be taken in the process of compiling a report. These include being instructed, evaluation, formulating an opinion and, finally, drafting the report.
Instruction
The process of instruction requires the formalisation of the various parties' roles and responsibilities, understanding the medico-legal issues of the case and negotiation of time and resources.
Clarify and formalise issues
It is wise to ensure that instruction is formalised in writing. This should provide identifying data, contact telephone numbers and addresses, the purpose of the report, medico-legal issues in regard to the case, court dates and an agreement about payment. On receipt of this documentation the forensic psychiatrist would be wise to clarify roles, responsibilities and expectations of both parties. Occasionally, a non-legal third party will make a request for a forensic report. It may be advisable in such cases not to proceed without formal legal instruction. In this situation, it is probably best to advise the third party to seek his or her own legal advice.
Understand the medico-legal issues
It is important that the forensic psychiatrist understands the legal criteria that define the medico-legal issue and, at minimum, to have reviewed the legal text itself.
Negotiate adequate time
Forensic evaluations are often longer than general psychiatric evaluation. Allow as much time as necessary. Be prepared for further assessments with the individual, the family, the victim(s) or other witnesses. Allow enough time to adequately review the available evidence. The standard of the quality of the evaluation is one that would be accepted by one's peers [20]. The need for further special examination such as a computed tomography scan, electroencephalogram, sleep laboratory testing and neuropsychological testing may be identified during the evaluation. The time frame may need to be negotiated with the agent. Consideration may well be given to refusing the case if the time is too limited.
Negotiating fees
In the private sector, it may be prudent to ensure that sufficient funds are available to allow a proper assessment to occur at a rate that is acceptable to both parties. It is, in our view, the responsibility of the forensic psychiatrist to clarify the fee prior to commencing the evaluation. It may be advisable to obtain this in writing from the agent. It is possible that dissatisfaction with funding arrangements could adversely effect the evaluation through bias or inattention to detail on the part of the psychiatrist [21].
Evaluation
The purpose of the evaluation is to address the legal question. Evaluation consists of understanding the past and present behaviour and the mental state of the person before the court in relation to the legal question.
Prepare for the interview
Prior to seeing the individual, there are a number of evaluative steps that could be undertaken first. This may include review of all material (formal charges made against the defendant, police summary of facts, police interview by video and the transcript, relevant statements and affidavit material, psychological and psychiatric reports and clinical notes).
Collect information relevant to the medico-legal issue
A forensic psychiatric assessment differs from a general psychiatric assessment in that it focuses on the specific medico-legal issue at hand.
Medico-legal issues that deal with civil and criminal competencies most commonly require specific application of present psychiatric phenomena to the specific medico-legal issue. The assessment may therefore focus predominantly on establishing the presence or absence of current mental illness and elucidation of psychological phenomena, their severity and relevance to the specific issue of competency.
In regard to assessments of mental state at the time of the offence (diminished responsibility, insanity, automatism, provocation, specific and general intent and infanticide), the assessment focuses on a careful review of the offence. The objective is to establish the nature of the psychological phenomena that were active at the time of the offence and the impact these symptoms had on the individual's motives and intent in regard to the offence itself. In legal terms the objective is to establish the degree to which the ‘mens rea’ was present, absent or distorted and its nexus with offending behaviour. In legal terms ‘mens rea’ means ‘guilty mind’ and implies the mental component of behaviour as opposed to ‘actus reus’ which means ‘guilty action’, the physical component of the crime [14]. ‘Mens rea’ broadly speaking, encompasses the concepts of knowledge, purpose, voluntariness, intention, rational thought and consciousness [20]. Whereas assessments of insanity and automatism focus on psychiatric phenomena at the time of the offence, it may sometimes be important to contextualise the offence and explain the factors that may have contributed to the offence. This is sometimes the case in assessments for a defence of provocation, which may require a psycho-dynamic understanding expressed in a formulation.
Evaluations for compensation for mental injury may require attention regarding the impact of stressors on mental state and the temporal nature of those stressors to the onset and perpetuation of that mental state. The issue of causality can be the focus of the assessment because of the question of compensation. These assessments can be time consuming and require a careful review of previous psychiatric and developmental history.
Reports on child neglect and abuse will require astute, objective and thorough understanding of the familial, social and systemic environment of the child and the relationship between these and the presenting symptoms. Depending on the maturity of the child, the assessment may focus on gathering collateral information in the regard to the child and its environment, frequently with the object of substantiating the clinical facts.
Disposition and sentencing reports need to be comprehensive. All the issues pertaining to the case, in our opinion, are important. This should include diagnosis, formulation, an understanding of the relationship between the psychological phenomena and the medico-legal issue, prognosis and management of the illness and the risk.
The focus of the assessment varies according to the medico-legal question being asked.
Explore all sources
Information from the individual alone is rarely adequate. It is frequently necessary to obtain collateral information from third parties and review other sources such as previous psychiatric notes. Collateral information can be invaluable in clarifying, supporting or refuting information obtained from the individual under assessment.
Drafting the report
Although the forensic psychiatrist may have information to formulate opinion on a variety of topics, the report needs to be drafted according to the medico-legal question asked. The report should be easy to read and should separate findings from opinion.
Make the report easy to read and understand
The use of language is important. Resnick [22] suggests using the principles of clarity, brevity, simplicity and humanity. Clarity is achieved by avoiding use of technical jargon, hedging statements, double negatives and ambiguity. Write factual and clinical data in the past tense. Write the opinion in the present tense. Brevity is achieved by using short words, short paragraphs and sentences of less than 20–25 words. Avoid superfluity and repetition. Simplicity can be achieved by avoiding the use of multisyllabic words, words that end in ‘tion’, making verbs nouns and meaningless introductions to sentences. Make as much use of simple words as possible. Use ‘quotations’ which animate the data, active rather than passive tense and write in a manner that can be read aloud comfortably. Avoid apologies, vagueness, adjectives, adverbs, pejorative language and generalities. Avoid the use of technical terms or, if unavoidable, explain their meaning in parenthesis [15]. Some writers include a glossary of terms at the end of their reports.
Utilise sections
The report can be roughly divided into two main parts that deal with the findings and the opinion. Findings can further be divided into sections: the introduction, the body, mental status examination and summary.
The introductory section acknowledges the referral from the agent requesting the report, the understanding of the medico-legal situation, the status of the case, nature of the charges and the purpose of the report. This is generally followed by a list of sources of information that the forensic psychiatrist has reviewed and a statement that indicates that a process of consent has occurred between the forensic psychiatrist and the individual.
The body of the report outlines the clinical findings. These should be reported without inference and as far as is reasonably possible, including the free narrative of the individuals interviewed. Verbatim quotes can be helpful. Not all of the information obtained need be included in the report.
The mental status can include the assessment of phenomena relevant to the medico-legal issue in question.
It is often helpful to include a ‘summary’ of the relevant data that incorporates the main findings of relevance on which the opinion is going to be based.
Separate findings from opinion
The opinion section of the report deals with the psychiatrist's inference of how the findings relate to the medico-legal issue. Delineating which part of the report deals with the opinion will allow the reader to distinguish finding from inference. Information in the findings section could be reported in an objective fashion with the absence of inference or conclusion about the findings until the opinion section [23].
Opinions
Be a psychiatrist, not a lawyer
Medico-legal questions are legal questions informed by medical opinion. Terms such as ‘mental disorder’, ‘insanity’, ‘competency’ and ‘capacity’, ‘automatism’ and ‘mental injury’ are legal concepts. They are not medical concepts. The justice system invites experts to provide psychiatric information which it can utilise to apply to the legal concept in order to determine the presence or absence of the issue in legal terms. Although experienced experts can have intimate understanding of the medico-legal concept, sometimes better than that of a relatively inexperienced lawyer, it is in our view better to be cautious when crossing such professional boundaries.
Be a phenomenologist first and a diagnostician second
Most medico-legal questions require understanding of the psychological phenomena, not diagnosis. In fact diagnostic categories, in our view, can create enormous difficulties for both the justice system and the expert. Medico-legal report writing primarily requires the approach of a phenomenologist, not a diagnostician. It may be wise to remember that categorical classification systems are provided with the object of improving interrater reliability to facilitate research, not for use in the courtroom [24]. It is often more appropriate to address the medico-legal issue in terms of the phenomena and relevant symptoms and to avoid comment on diagnosis until the issue has been addressed. For example, in an insanity defence, an explanation of the nature of the individual's delusions at the time of the offence and their impact on the offending behaviour has more relevance than saying ‘this person has schizophrenia and is therefore insane’. However, once the medico-legal issue has been resolved for the court or tribunal, the issue of disposition becomes relevant. Diagnosis is probably of greater importance here as it informs prognosis and treatment, both issues of interest to the court at this stage.
Show the reasoning process
The opinion is that part of the report that is of most interest to the court. The opinion should be based on the findings [20]. Credibility given to the report will likely depend on the strength of the reasoning. In our view it is important to state the opinion in a logical way. Structure the opinion by arguing the basis for each level of inference by first establishing the evidence for psychopathology. Outline the nature of the psychopathology and then explain the impact of the psychopathology on the person's behaviour. Finally, explain how the behaviour and psychopathology apply to the medico-legal issue. Be aware of the limits of inferring causality. It is often advisable to address other possible conclusions, giving reasons why they were excluded. Try to address inconsistencies and contradictions. Attention to these details will increase the reader's confidence in the credibility of the report and encourage the writer to think through the issues.
Maintain integrity
The report writer should be aware that involvement in forensic matters makes him or her to an extent responsible for the outcome for the individual. Exercise care in formulating the opinion and strive for objectivity. It is fair to say that all forensic reports are at risk of bias [25]. Any report writer who believes him- or herself to be impervious to bias is at risk. Be aware of personal feelings about the individual, the crime and potential influence by the agent. Psychiatric findings are largely subjective and the psychiatrist's opinion is vulnerable to influence of social and cultural variables [26]. Underlying attitudes and beliefs held by the forensic psychiatrist could influence the writers' opinions [26]. The report writer should make clear the limitations of the report and the writer's expertise if they are significant [26]. The forensic report should be written with the purpose of assisting the court (judge or jury) in making a determination.
Qualify the opinion on the ‘ultimate issue’
There is some debate as to whether forensic psychiatrists should offer opinions on the ‘ultimate issue’. It is not the psychiatrist that is ultimately making the legal determination, it is the court. If the forensic psychiatrist provides the court with an adequate description of the individual's mental state as it pertains to the relevant medico-legal issue, the judge or jury will be able to draw its own inference on the ultimate issue [20]. The determination of where the threshold lies is the main function of the court. An opinion on the ultimate issue potentially blurs the lines of responsibility and boundaries between the forensic psychiatrist and the legal system. The psychiatrist should resist giving opinions on the ultimate issue even when encouraged to do so by members of the justice system [20].
Conclusion
The majority of civil and criminal psychiatric medico-legal reports are requested by the court to assist in the determination of issues related to disposition (that is, management of the individual) or the determination of psychological deficits or emotional impact related to trauma. These kinds of reports reflect everyday practice and may be within the expertise of the experienced general psychiatrist. However, issues such as causality, insanity, automatism and provocation are complex and frequently difficult concepts to apply to psychiatry and require specific training.
The report is the final product of the forensic assessment. It represents the quality of the writer's work and to some degree will effect the public perception of psychiatry. Clarification of expectations, planning ahead, an ethical and thoughtful approach contribute to making report writing a rewarding endeavour.
Acknowledgement
The authors gratefully acknowledge the helpful comments provided by Paul Mullen in the drafting of this paper.