Abstract
Forensic psychiatry, as a medical specialty, perhaps understandably leans toward beneficence or welfare as its main ethical underpinning. However, the special nature of the art or science of forensic psychiatry makes it imperative that beneficence is not the only ethical principle that guides the ‘good’ forensic psychiatrist. Indeed, the commonest ethical dilemmas in forensic psychiatry arise from a conflict between two ethical principles: beneficence, or promotion of welfare, and respect for justice. These two paradigms dominate discussions about the moral role and ethical duties of forensic psychiatrists and, in effect, give rise to two different practices in forensic psychiatry, each of which can also be said to have acquired a national identity. We discuss these competing principles and offer some thoughts about what this means for the ethics and values of forensic psychiatry.
Welfare, altruism and medicine: the beneficent ideal
The welfare identity of forensic psychiatrists arises from their role as doctors. Medical training contains a beneficent ideal that has been central to the ethical identity of doctors since Hippocratic times. A duty of beneficence has been identified as one of the central ethical principles of medical practice [1], and it forms the basis of most medical codes of conduct. The British General Medical Council states that ‘the care of the patient is your first concern’ and many other medical ethical codes do likewise.
The fact that public opinion polls continue to show that doctors are the professional group that the public trust most, suggests that most people still see the main role of the doctor as one who ‘does good’ to others. This altruistic role is one that doctors value as much as the public. It can be argued that doctors obtain selfesteem, not only from doing good to others, but by being seen to do good, against heavy odds. To be a professional carer is to triumph over the adversity of illness, and also to attend to the needs of those who are vulnerable and dependent, and not exploit them. By extension, doctors are widely assumed not to be ill themselves, or to be needy and dependent in the ordinary way.
This altruism and beneficence has much in common with the parenting role, which is also highly valued in all societies. Children are also needy and dependent, and need their carers to be strong for them. Parents put their children's needs before their own, do not exploit their children's vulnerabilities, and present themselves to their children as calm and capable of dealing with distress and the threat of distress. If children are provided with a psychologically secure environment, they will learn to manage their negative feelings (such as anger, fear, guilt and shame) much more effectively. Parents also take decisions for their children, because the capacity to take some sorts of decisions is a developmental process, and children will not always be able to do it for themselves.
Paternalism is, therefore, an important and positive aspect of the duty of beneficence similar to the duty the parents have toward their children.
Paternalism, welfare and psychiatry
Paternalism has also sometimes been thought to be an important aspect of being a doctor. Much of the early medical ethics literature centred on dilemmas about the patient's right to make choices for themselves (even if the outcome was not thought to be the bestmedically), which might then be in conflict with the doctor's duty of beneficence. However, more recently, the emphasis in general medical ethics has moved away from beneficence as a type of moral trump card, to respect for patient autonomy and choice as being primary. There has been recognition that doctor–patient relationships are sometimes not parental in nature, but are more fiduciary or mutual or equitable (the preferred term of ‘service users’ makes this point). This emphasis on patient autonomy and choice in decision-making has also led to a useful increase in research into how patients make treatment decisions and the factors that affect their capacity to do so.
However, paternalism is still a high-profile concept in psychiatry; especially forensic psychiatry. Psychiatric patients are still widely assumed to lack capacity to make decisions for themselves, especially treatment decisions. Most countries have enacted legislation that gives powers to health professionals tomake decisions for incompetent patients, including powers to over-ride incompetent treatment refusals. The original ethical argument (transliterated for psychiatry) behind this is as follows:
Most countries also have legislation that allows psychiatrists to over-ride even competent treatment refusals in the name of risk or welfare, or both.
Competing values: welfare and autonomy
Given the high value that we place on respect for individual autonomy in Western cultures, the beneficence justification for over-riding autonomy is important for psychiatrists, partly, in order to maintain a sense of professional identity. This is also important psychologically (given that many patients hugely dislike being coerced, and may be hostile to their psychiatrists), because the coercive model does not fit with the beneficent ideal of being a doctor that most psychiatrists grew up with. Psychiatrists may also re-assure themselves that they are taking these unpopular decisions on behalf of their patients, in their future interests, with the same beneficent intent that parents have for their children. Indeed, the legal concept of parens patriae supports the idea that the state has an interest in caring for those of its citizens who cannot care for themselves, and psychiatrists are empowered by the state to do this. Some authors, most notably Alan Stone [2], has called this the ‘Thank You’ theory, where the patient will be grateful in the recovery period for the ‘intervention’ that was initiated, against his will, to prevent further deterioration when he lacked the necessary judgement (owing to his illness) to seek or accept help.
However, tensions still remain about the extent to which it is actually true that allmajor psychiatric disorders abolish the capacity to make rational decisions that could (and should) be respected by others. Research in the US has shown that people with severe mental illnesses may still retain capacity to make complex decisions, including decisions about treatment and participation in research [3]. Further, several legal judgements have upheld the view that it is possible for people with severe mental illnesses to make competent treatment refusals, even if this leads to negative consequences for them [4], [5]. One case [6] concluded that treatment refusals by adults should be respected, even if the reasons for them did not seem rational. It is useful to note here that all these cases mentioned earlier were limited to treatment for physical ailments, whether or not the refusal was linked with mental illness.
These decisions seem to indicate that the courts are supporting respect for autonomy overwelfare, even if this brings about harmful consequences for the individual. If such an approach is applied to psychiatric patients, then this makes the issue of detention and forced treatment on the grounds of patient welfare more complex to analyse and put into practice. ‘I know best, and I amdoing this for your own good’ may no longer be an entirely convincing argument for psychiatrists to use with patients.
Forensic psychiatry and welfare
However, it is not just patient welfare that justifies detention and coerced treatment in psychiatry. The welfare of others is also considered a justification for over-riding the autonomy of psychiatric patients. English mental health legislation states that individuals may be detained involuntarily for treatment of a mental disorder, either for the patient's own health and safety or for the protection of others. In fact, most jurisdictions (with the notable and very recent exception of Scotland) have a dangerousness clause that includes ‘to prevent harm to self or others’ as a justification for detention. Patients do not have to lack capacity to justify detention; detention is possible if a risk of harm to others is perceived to be present by the detaining professionals.
Although many psychiatrists get involved in work with patients who potentially pose a risk to others, or who have actually harmed someone, forensic psychiatry has historically defined itself as the psychiatry of mentally abnormal offenders. Historically, at least in the British Isles, forensic psychiatry began as a service to prisoners with mental health needs. The principle of welfare demanded that prisoners get the same access tomental health care as anyone else. Developments in prison medicine generally, and a wider interpretation of the duty of beneficence, resulted in a belief that prisoners with severe mental health problems should be transferred from prison to new psychiatric services that could both treat their illness and provide security. In addition, there was a need to provide services for disturbed patients who could not be managed in open psychiatric wards. Once admitted to these secure units, forensic patients needed ongoing rehabilitation and treatment in the ordinary way, and forensic psychiatrists provided this service. They also developed expertise in the assessment of risk, the assessment of security needs, and the relationship between mental disorder and criminal violence. We will return to this issue later.
In this treatment context, forensic psychiatrists find themselves facing many ethical dilemmas. For instance, what would it mean in practice to make a forensic patient better? Can forensic patients have any claims to confidentiality [7]? Fundamentally, these dilemmas seem to rest on a conflict between the patient's welfare and the public welfare (in terms of public safety). Forensic psychiatrists, like any other medical practitioner, are under an overarching ethical duty to ‘make the care of their patient their first concern’, and this includes taking the wishes of the patient into account; even (as the previous court cases have indicated) if the patient's treatment choice is potentially harmful to them. However, if the psychiatrist perceives the patient still to pose a risk to others, then the psychiatrist may assume that their duty to public welfare ‘trumps’ their duty to the patient's welfare. The UK's General Medical Council explicitly gives guidance in these terms.
Only a few legislations (mainly state law in the US) have placed a legal duty on psychiatrists to protect the public as part of their professional role. The emphasis on professional role is important here, because it is quite possible to argue that every psychiatrist has a role in public protection, as part of their private role as citizens. How they interpret and enact that role is left up to them. However, what many forensic psychiatrists would argue is that they have a professional role, and an ethical duty, to promote public welfare by protecting the public; this duty of public beneficence over-rides their duty of beneficence to the patient. This takes its most extreme form in the use of mental health legislation for preventive detention purposes, that is, where psychiatric services detain patients solely to prevent them from harming other people. Similarly, doctors in other branches of medicine (e.g. Public Health) often quite legitimately (and usually without much controversy) do things that may be contrary to the patient's wish or interest in the name of greater public good. As much of modern medical ethics is driven by uncritical consequentialism [8], this is not seen as an aberration and is accepted as such.
Some psychiatrists argue that the basis for the duty of public welfare is actually an extension of the duty to the patient, because it is in the patient's interest to be prevented from causing harm to others. This is an appeal to a traditional paternalistic approach, which preserves the beneficent ideal, as described earlier, and removes any anxiety that psychiatrists are acting like policemen without the safeguards. The problem with this argument is that it is highly discriminatory against the mentally ill, in terms of respect for autonomy and individual choice. It is arguably not in anyone's interest to harm others (although a discussion of this argument demands a paper in its own right), and yet those of us who are not deemed to be mentally ill are not prevented from harming others in the usual way, and having to face the consequences. Protecting patients from the consequences of their own actions suggests that there is something special about mental illness that justifies psychiatrists in their paternalism.
If it is argued that mental illness robs people of the capacity to decide not to harm others, then it must be counter-argued that the current evidence base is against this: most mental illnesses do not affect capacity to make decisions, even of the most complex kind, and do not necessarily affect the capacity to decide whether or not to harm others. Jurisprudence and moral philosophy make it clear that it is not inevitable that those with mental illnesses are deprived of all criminal responsibility. But if this is the case, then only in some limited circumstances will it be justifiable for forensic psychiatrists to act paternalistically to prevent their patients harming others: for example, where there is clear and present danger to a named individual, and the psychiatrist is confident that the patient lacks capacity. English civil case law supports this approach, in cases where the courts have clearly been reluctant to make psychiatrists responsible for their patients' behaviour [9], [10]. The courts have put responsibility for criminal behaviour in the first instance with the perpetrator, with the presumption that each person has the capacity to decide whether or not to act violently.
There is a further counter-argument to the paternalistic position that promoting public welfare is a benefit to the patient, which is that the individual duty of care to the patient is in danger of being abandoned: which itself may be a cause of harm to the patient. Take the English case of MrH[11]. Mr Hcommitted several violent crimes and eventually was admitted under English mental health legislation to a secure hospital. His treating team would now like to discharge him, but no community team will take him on, because he is perceived to pose a risk of noncompliance (not of re-offending, although it is argued that non-compliance will lead to re-offending). The House of Lords ruled that there was no duty of care on psychiatrists to take over his care. As long as an effort had been made to find him a treating team, the legal duty of care had been fulfilled. Regardless of the law, no doctor in the community appeared to think that they had a duty of beneficence and care toward this man, without regard to how unpleasant and uncooperative he might be.
Mr H might well argue that he has suffered serious harm (namely indefinite detention in a secure hospital) as a result of psychiatrists abandoning their duty of care to him in favour of public welfare. Note too, that the risk to the public was not immediately anticipated: it was not a risk of serious violence to a named individual, nor was Mr H, so lacking in capacity that he was not able to make decisions. The risk to public welfare consisted only in that Mr H might not cooperate with his community psychiatrists, and that this lack of cooperation might lead to a breakdown in a therapeutic alliance, which might increase the risk of violence in the future.
One can, of course, argue, that doctors fulfilled the generic duty of care by not abandoning him, and by providing care that was thought appropriate for his condition. One problem in forensic psychiatry (likemany other branches of medicine) is the competing value systems of its various subspecialties and the lack of agreement about what constitutes successful treatment. The hospital doctor who decided that Mr H was noweminently manageable in the community disagreed with the doctor who was going to provide the actual care and supervision. This system or macroissue does not render this a complete failure of the beneficence model, but raises the issue of how clinical freedom relates to patient benefit. Although the House of Lords judgement did not make explicit reference to it, clinical freedom is an essential aspect of modern medical practice. This clinical freedom, of course, has to be exercised in a framework of ‘reasonableness’ and one can argue that there is no way to resolve disputes when attention to the competing clinical freedoms of two doctors mean that a patient's expressed interests are ignored.
The question about whether it is part of the therapeutic role of psychiatrists to stop their patients harming others, goes back to Roman times, if not before [12]. It seems to be an ethical dilemma involving a clash of values relating to different types of beneficence and welfare: the value to the patient of having their views listened to and respected, the value to society of being protected from the (tiny but real) risk of violence posed by the mentally ill, and the value to each citizen of having the knowledge that professionals will protect individuals from intrusions by the state, unless they have a specified role in public welfare. Psychiatrists can argue that if they are to bemade responsible for their patients' negative behaviours, then it is inevitable that detention decisions will become confused with public welfare. In addition, given the increasing criticism of mental health professionals if patients are violent to others, it is hard not to think that detention decisions will also become confused with self-protective decisions on the part of psychiatrists.
One solution would be for psychiatrists to volunteer for this type of public welfare/protection role. In this role, they would be employed and trained by the state, and would have both a clear mandate and duty to protect the public from psychiatric patients. Both they and the patients would know that their chief duty was to public welfare, and that the patient's wishes were not the focus of the psychiatrist's duty of care, either ethically or legally. This would have the advantage of not confusing individual treatment benefit with public welfare, and not requiring psychiatrists to carry out a type of moral sleight of hand. Itwould also reduce the suspicion that all that the psychiatrists care about is their own future professional and personal welfare and the welfare of the public.
Forensic psychiatry and justice: the American way
So far we have described the welfare paradigm as the dominant ethical principle in forensic psychiatry and some of the dilemmas that such an approach brings. We turn now to the justice paradigm of forensic psychiatry. For political and historical reasons, this approach defines forensic psychiatric practice in the US, and, therefore, offers a current live example of how this different paradigm works in practice.
The justice paradigm has its roots in criminal jurisprudence and the practice of criminal law. Based on Greek philosophy, Anglo-Saxon legal jurisdictions recognize that social blame and punishment for offending is only justified if the offender is fully responsible for their actions; if they ‘own’ their actions, as an individual choice. Thus, the law recognizes that if an offender has any mental condition that affects their capacity to make free choices, and keep the law, then they should not be held as blameworthy for their actions. By the nineteenth century, the courts in England were admitting expert testimony on this issue from the first psychiatrists.
Psychiatrists acting as experts in the criminal courts provide an example of the practice of medicine directly affecting the justice process. Respect for justice is recognized as an important principle in medical ethics, although in the traditional ‘four principles’ account of medical ethics, it is respect for justice as fairness in terms of access to services or resources which is more commonly considered. However, when the courts call upon medical expertise, there is a duty on doctors to respect justice by contributing to due legal process, by the provision of good quality information, to enable the court to carry out its task on behalf of the citizenry.
Although many doctors may be called upon to provide expert testimony to the courts on all sorts of medical clinical matters, only psychiatrists can be asked to give evidence about a purely moral issue. In the criminal courts, psychiatrists are being asked to offer opinions about the presence or absence of amental disorder at the time of the offence; and they are often asked for their opinion as to guilt, as a matter of medical expertise. It is a moot point whether guilt for an offence can ever be a medical scientific matter. Some would argue that it is always and only a social judgement; others that continuing developments in neuroscience mean that criminal actions will eventually be ‘explained’ by medical scientific knowledge. In any event, the key issue here is that psychiatrists who give expert testimony are forensic psychiatrists who are intimately involved in the administration of justice. In an early edition of a standard work on psychiatric ethics, this was the definition of, and approach to, forensic psychiatry [13], and this is the definition for forensic psychiatry used by the American Psychiatric Association (APA) and the American Academy of Psychiatry and Law (AAPL).
There is another reason why respect for justice should be paramount in forensic psychiatry. Given the powers that forensic psychiatrists have, and the vulnerability of the patients, attention to justice needs to be primary to prevent exploitation of the vulnerable. Forensic psychiatric patients are especially vulnerable because they are mentally ill, incarcerated and unpopular. They are also often poorly educated, suspicious and alarming. It is all too easy for those in positions of authority to decide that their interests can be over-ridden, or that their voices can be ignored, because of their histories of criminality and mental illness. However, one construes the concept of justice, be it as the process of justice (the justice system) or justice as fair treatment, it has always included attention to the prevention of discrimination.
Forensic psychiatry is wedded to justice, whether as process or fairness, even if practitioners are not always conscious of it. Participation in the justice process system as described earlier is as much a forensic psychiatry role as is the attention to the principle of justice as fairness. If respect for justice is seen as treating similarly situated people similarly and fairly, forensic psychiatrists can act justly by ensuring their patients have the same voice, same dispensation and same claim to justice as any other participant citizen. In other words, all other things being equal, the forensic patient does not get separate or indeed special treatment in the law courts. Ensuring that there is no discrimination is an essential part of the justice process, so removing mental disorder as a discriminator in all but the most disturbed cases affords patients the same justice to which every other citizen is entitled. Every citizen is entitled to the best defence (and the state entitled to the best prosecution); so, either party can rely on factors which can act as discriminators (defence, mitigation, aggravating factors) without being discriminatory. For example, mental illness can serve as a discriminator in determination of culpability or mitigation in a just way, without mental illness being discriminatory by an automatic assumption that thementally ill are less responsible; or by doing away with the concept of responsibility altogether.
Ethics and experts
In the last 50 years, psychiatric testimony has been called upon in other legal fora apart from the criminal; so, there are forensic psychiatrists in the family courts, civil courts, and courts such as employment tribunals or courts martial. There has been considerable debate about the ethical duties of these psychiatrists, because of the possibility that the provision of expert testimony will result in some negative outcome for the person evaluated by the psychiatrist. There have been repeated calls for psychiatrists not to be involved in capital cases, or at least not any decisions about its imposition or execution [14]. There have also been calls, on the grounds of welfare, that psychiatrists should only act for the defence in criminal cases, that is, where they may do some good to the patient/evaluee, and at least do no harm [15]. Others have argued that psychiatric knowledge can be so uncertain, subjective and political in nature that it threatens to harm the justice process, rather than assist it [2]. In the criminal court, there are obvious harms, such as the loss of liberty and/or any other punishment: including the death penalty.
The values of justice and welfare clash in complexways for the forensic psychiatrist in the courtroom. It is undeniably in the public good for the courts to have access to expert knowledge that supports and enhances justice. In theory, such evidence benefits everyone, rather in the way 1016 JUSTICE AND WELFARE that public health physicians contribute to public welfare through their expertise. However, the psychiatrist who acts as an expert will usually have to carry out an examination of an individual person, and have a professional relationship established. At this point, welfare proponents argue that the psychiatrist has ethical duties to his evaluee as a patient; whereas justice proponents argue that the evaluee is not a patient in the ordinary sense. It would seem intuitively fair that if the relationship between the doctor and the evaluee is not a therapeutic relationship, then different ethical priorities will be relevant [16].
It would seem reasonable to suppose that different relationships will give rise to different ethical duties. Our duties to our patients are different from those to our colleagues, which are different from those to our children. The problem may really lie in how this relationship is explained, or even exploited. As long as the evaluee understands that the psychiatrist may not put his interests first, and consents to the evaluation, then there should be no ethical difficulty, any more than the individual who has to undergo a health check on behalf of his insurers or employers. However, it is often argued that psychiatric evaluees may not appreciate the difference in relationship; especially if they are vulnerable, distressed and imprisoned. It is easy for people, especially those in distress, to make the ‘therapeutic misconception’ [17] and see the evaluating psychiatrist as ‘their’ doctor. It then becomes the responsibility of the psychiatrist/doctor to clarify the nature and scope of this relationship, just like any other facet of a professional relationship.
There is another, more abstract suggestion, which is sometimes made by welfare-oriented forensic psychiatrists, namely that once one has become a doctor, one can never step out of the beneficent role. To be a doctor is to carry out actions that benefit patients, and everything that a doctor does relates to that professional identity. On this account, there is no division of identity; a man who cheats, lies or is rude is a bad doctor, even if the cheating, lying and rudeness took place outside any medical relationship. To some extent, this is the approach taken by the English General Medical Council, which sees professional misconduct not only in terms of patient harm or wrong, but also as bringing the profession into disrepute. One can argue that a ‘bad’ person acting as a doctor will bring the ‘badness’ into his or her practice of medicine and, hence, for a forensic psychiatrist to willingly and knowingly give evidence that might bring about any kind of harm to anyone is to behave unethically.
We see a number of difficulties with this argument. First, it takes the beneficent ideal to an extreme. Nothing about medical training makes a person inherently more virtuous or altruistic. Although attractive as a proposition, it seems grandiose, especially when entrants to the profession are not vetted for such virtues and can enter the profession for a variety of reasons. Second, participation in the justice process is a public good, and doctors' refusal to participate could so distort the justice process that it would render it unjust; which again would be harmful to all, including defendants. Finally, due process and the exercise of law are about a balance between the claims of the group and the claims of an individual. In fact, all doctors derive their authority and social status from society, in addition to any financial or psychological benefits they may have carved out for themselves. Therefore, it is not contentious to ask doctors to have societal interests somewhere in their deliberations, although such an interest should not necessarily predominate. Principles of medical ethics have never suggested that the individual's interests must always be preferred by doctors over the public interest. Indeed, most ethical guidance about confidentiality, for example, explicitly sets out those cases where the public interest in knowledge about a case or a patient justifies the doctor disclosing private medical information.
But there remains disquiet about forensic psychiatrists as witnesses in the justice process. Recently in the UK, new legislation makes it possible for psychiatrists to give evidence in relation to sentencing, in cases where the judge has particular concerns about risk and re-offending. In such cases psychiatrists are indirectly contributing to punishment, and using their expert knowledge to do so. Some would argue that this is medicine assisting the State too far; and is morally no different to doctors participating in torture, corporal punishment and the death penalty. Even if, hypothetically speaking, it is accepted that there is a role for doctors in the punishment of offenders, the main ethical objectionwould be that there is no good quality evidence base for an expert to share with the court in relation to risk of re-offending. Rather than contributing to the justice process, it might be seriously misleading and lead to a miscarriage of justice.
The commonest concern about unregulated psychiatric experts is that because they are paid (and this is their livelihood), they will put financial self-interest ahead of impartiality, objectivity and truth. This may or may not be true. However, there is an ethical imperative to provide the best quality professional opinion possible, and those who do not do so are betraying this principle. The self-interest criticism can be levelled at welfare-biased forensic psychiatrists who regularly put some other interest of the patient and the public interest ahead of their patient's stated wish and best interests. One could even argue that there ismore perversion of the traditional medical role by welfare-biased forensic psychiatrists by not acting for the patient's best interest. Just acting for the patient's best medical interest (which is not synonymous with the patient's best interest) in preference to his other interests and respect for the patient's autonomy can be seen as contrary to the traditional medical role. On the other hand, experts who value justice are not claiming that their testimony is really for the evaluee's good and they are at least transparently pursuing another, legitimate societal good.
We might also ask whether it is always true that avoiding punishment for our patients is a good that must be pursued at any cost. Some offenders may be glad to ‘pay their dues’; and there is evidence that trust in social functioning rests on punishment of rule breakers. It has been argued that competent adults have a right to be punished, as a matter of justice. If a defendant gets punished because of psychiatric testimony, is this harm? If the punishment is recommended by a psychiatrist, it can be said that this is contrary to accepted medical ethics. Does the same hold true if the punishment is consequent to a psychiatrist's finding of no psychiatric condition that would mitigate culpability? Can a psychiatrist knowbefore evaluating a defendant if his findings are going to harm the defendant? Should psychiatrists refrain from evaluating defendants in order to prevent any chance of harm coming the defendant's way?
To some extent, this issue of what constitutes harm also arises as a clinical ethical dilemma in relation to treatments for forensic psychiatric patients. For many patients getting to grips with their offending past, and its impact on them and those around them, is distressing and painful. Like chemotherapy for cancer, psychiatric treatment for forensic patients is often very uncomfortable, and goes beyond the distressing side-effects of the commonly used medication. It certainly can be an argument against imposing treatment on unwilling, but competent offender patients, much like any other physical treatment. However, a description of the nature and range of ethical problems in the treatment of forensic patients is a topic for another paper.
Conclusion
We have tried to set out two paradigms, justice and welfare, which we believe underpin the ethical framework of forensic psychiatry. In our view, the welfare paradigm, with its emphasis on traditional medical duties of beneficence and non-maleficence seems to dominate English forensic psychiatry. The justice paradigm, with its emphasis on respect, objectivity and the pursuit of truth, dominates American forensic psychiatry. Other countries may have a balance between the two. Although it is vital to be able to see both perspectives and take them seriously, we would argue that respect for justice should be the principle value of forensic psychiatry; if only because, as Rawls [18] suggests, none of us knows when we may have need of justice.