Abstract
Andy McClure, Orange, New South Wales, Australia:
Peter Gaughwin's article makes a strong case that, nothwithstanding the nature of the adversarial system, ‘the obligations to the legal system (of medical practitioners providing medico-legal reports) are those to the court, not necessarily to the referring lawyer’ [1]. Treating psychiatrists, in particular, are subjected to considerable pressure, mostly arising from the patient's transference, to ‘please the patient’ and provide that which is sought (i.e. a favourable report). We are, of course, acquainted with similar pressures around issues such as prescribing [2].
Unfortunately, Gaughwin failed to refer to some recent significant work on the ethics of forensic psychiatric practice [3,4]. In my view, this literature establishes that, not only may the judicial process be unwittingly subverted by an otherwise ethical treating psychiatrist; the treatment process may likewise be sabotaged by the influence of a patient's ongoing litigation. To quote Paul Appelbaum [4],
How ought a treating psychiatrist respond when a patient or the patient's lawyer requests that the psychiatrist prepare a report on the patient's unsuitability for custody of a child or agree to testify on the degree of emotional harm the patient suffered in an automobile accident? Optimally, patients should be told why such behaviour threatens to undermine ongoing treatment. An offer can be made to help identify another clinician to perform the forensic evaluation. In essence, the psychiatrist is saying, ‘Your treatment is so important to me that I don't want anything else to get in its way.’ If framed properly, this response can have a powerful, positive effect on the psychiatrist patient relationship.
From this, it would seem that the only available course of action for a treating psychiatrist is to decline any involvement in his or her patients' legal problems, whether civil or criminal. (This has been my own personal practice for at least 18 months now.)
I would submit that any revision of the College's Code of Ethics [5] should give due consideration to these questions.