A Consideration of the Relationship between the Rules of Court and the Code of Ethics in Forensic Psychiatry

Abstract

Objective

To consider the relationship between the Rules of Court for expert witnesses and the revised Ethical Guideline No. 9 and Practice Guideline No. 9 of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and how this affects the responsibilities that psychiatrists have to a court and to their profession, when they enter the legal arena.

Method

Literature relevant to the subject, the Federal Court rules relating to expert witnesses and the RANZCP Guidelines are discussed and compared, with examples used to illustrate particular issues that arise from time to time in the civil jurisdiction. A distinction is drawn between the functions of those psychiatrists who undertake forensic assessment and those who undertake clinical work, and some of the ethical challenges facing forensic psychiatrists are considered.

Results

The Rules of Court relating to expert witnesses and the RANZCP Guidelines No. 9 have a complementary relationship and are thus ethically consistent with each other and provide a basis for psychiatrists to maintain and enhance the integrity of their profession.

Conclusion

Forensic psychiatry is a particularly complex medical speciality and one that can create enormous personal conflict for clinicians, especially those who are not forensic consultants. It may therefore be time for the College to develop an accreditation process for those prepared to undertake further study in the nature and practice of forensic psychiatry.

In recent times in this journal and elsewhere, a number of commentators have considered ethical issues, including the problems relating to bias, confronting psychiatrists in the forensic context [1–6]. The purpose of this paper is to develop further those discussions, by considering the relationship between the Rules of Court for expert witnesses and Ethical Guideline No. 9 and Practice Guideline No. 9 of the Royal Australian and New Zealand College of Psychiatrists (RANZCP).

This paper then, will consider the responsibilities that psychiatrists have to the Court and to their profession, when they enter the legal arena.

For the purposes of this paper, the legal arena may be defined as the context whereby a psychiatrist is called to report and/or give oral evidence in relation to a person currently before a court or tribunal. This discussion does not include the criminal jurisdiction, which has considerations that go beyond the scope of this paper.

Further, this discussion is restricted to those psychiatrists who are sought for independent assessment and does not include those who have been, or are the treating psychiatrist of the person about whom they are asked to report, notwithstanding that a treating psychiatrist may in fact be called to give evidence about a patient, current or past. However, this paper does not assume that independent assessors are full time forensic psychiatrists. In Australia, for example, the majority of psychiatrists who are asked to conduct forensic psychiatric examinations are not necessarily forensic consultants.

Experts in the legal system

An expert is a person who is permitted to give opinion evidence as distinct from other witnesses who are only permitted to give evidence as to what they personally heard, saw or sensed; in general a witness may not express an opinion [2].

Psychiatrists are not the only experts in the legal arena. The legal rules governing experts apply equally to anyone called to give expert evidence.

The Rules of Court

Background

Most jurisdictions have formalized rules which govern the duties of experts. These rules stem from an English case [7] which endorsed the following as the duties and responsibilities of experts [8]: (i) expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or context by the exigencies of litigation; (ii) an expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within the expert's expertise. The expert should never assume the role of advocate (my emphasis); an expert witness should state the facts or assumptions on which the expert's opinion is based and should not omit to consider facts that detract from the concluded opinion; (iii) an expert witness should make it clear when a particular question or issue falls outside the expert's expertise; (iv) if an expert's opinion is not properly researched because the expert considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one; (v) if, after exchange of reports, an expert witness changes view on a material matter, such change of view should be communicated to the other side without delay and when appropriate to the court.

Particular form: Practice Direction

The Federal Court of Australia has incorporated the above in a Practice Direction, which form has been followed by most state jurisdictions. In South Australia, for example, a lawyer seeking a report from an expert is required to forward to the expert a copy of the Supreme Court Rules and the Practice Direction relating to experts and the expert must declare that he or she has read the Rules and Practice Direction and agrees to abide by them [9].

For convenience I will confine my comments to the Federal Court Practice Direction.

The Federal Court Practice Direction [10] states the following: (i) an expert witness has an overriding duty to assist the Court on matters relevant to the expert's area of expertise; (ii) an expert is not an advocate for a party; (iii) the expert witness’ paramount duty is to the Court and not to the person retaining the expert.

The practice direction provides guidelines for the form of the written expert evidence. As the Australian Law Reform Commission (ALRC) has commented, such guidelines are designed to ensure expert evidence can be understood by those tasked to make decisions and to the other side [8]. If the evidence of the expert cannot be relied upon, the decision maker is left at an immediate disadvantage.

Thus, these guidelines also emphasize the ethical obligations of the expert to the Court [8]. The Federal Court Practice Direction [10] contains the following: expert reports should end with a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate and that no matters of significance which the expert regards as relevant have, to the expert's knowledge, been withheld from the Court.

The Practice Direction [10] goes on to say that if experts retained by the parties meet at the direction of the Court, it would be improper conduct for an expert to be given or to accept instructions not to reach agreement.

In brief, the above demonstrates an attempt by the Courts to ensure that expert evidence is as expert as it can be, without any undue influence from parties seeking a favourable response for their side. In theory, then, no party should have any idea of the content of an expert's opinion until such time as the assessment has concluded and the report is handed to the respective parties or to the Court.

The psychiatrist in the legal arena

In the legal arena, it appears sometimes that psychiatrists face more scrutiny than other experts [6].

A reason for this may be, as Simon has suggested [5]: the abandonment of usual clinical practices. For example, in the legal arena the assessment of a plaintiff usually takes one or two sessions. Most of what is taken down is based on what the plaintiff says and the plaintiff usually has something to gain. Therefore, common sense ought to dictate that what is being taken down has to be rigorously scrutinized, in accordance with clinical experience.

This may be illustrated by reference to posttraumatic stress disorder (PTSD) in the legal arena, specifically in the victims compensation context.

PTSD in the legal arena

Freckelton and others have commented that PTSD has become an area of controversy in the legal arena [11,12].

In New South Wales, for example, a Parliamentary Select Committee inquiring into victims’ compensation issues found that a number of legal firms were ‘coaching’ their clients in the symptoms of various illnesses, for example PTSD, prior to being seen by the mental health professional for ‘independent’ assessment [13]. McFarlane has made a similar observation, when he noted that ‘there has been a recent trend, by legal counsels, to apply the notion of PTSD to include a range of non-traumatic events in the hope of best serving their clients’ interests’ [14].

Such concern may be warranted when one considers the clinical literature which describes PTSD as relatively rare [15] and comparatively less common, when considered next to trauma in the community, which is ubiquitous [16].

Courts in different jurisdictions [17–19] have made comments similar to those of McFarlane [14] and have insisted that, objectively, the trauma must be extreme, as that word is defined in the DSM-IV-TR [20] before making a finding that PTSD is a consequence of the wrongdoing.

It is incumbent on the expert psychiatrist to remember that, when a plaintiff is sent to him or her for assessment, the plaintiff usually has a vested interest in the detection of pathology [3], so that compensation or a benefit will be paid. This will also be the goal of the plaintiff's lawyer. Alternatively, a defendant's lawyer who sends a plaintiff for assessment is likely to have the opposite goal.

Ethical Guideline No. 9 [21] and Practice Guideline No, 9 [22]

For the independent psychiatric assessor, the relevant guidelines applicable to the writing and provision of a report in the legal arena are found in Ethical Guideline No. 9 and Practice Guideline No. 9.

Practice Guideline No. 9.1.1 summarizes the role of the independent psychiatric assessor: to assist a court, tribunal, or administrative decision maker in coming to an appropriate decision in regard to the matter before it.

This essentially states what the Federal Court Practice Direction [10] directs: that an expert has an overriding duty to assist the court. In assisting the court, some information may not help the client of the lawyer who has asked the psychiatrist to conduct the assessment, for example the client's extensive criminal record, but the psychiatrist must consider carefully whether this information is important.

Practice Guideline No. 9:2.3 states in part that, irrespective of who has retained the psychiatrist, he/she must adhere to the principle of honesty and strive for objectivity [22]. This appears to capture the essence of the previous guideline No. 9:2.7: that the psychiatrist should take care not to act in the role of an advocate when reporting.

This is what is stated in the Federal Court Practice Direction [10]: that an expert is not an advocate for a party. Thus, notwithstanding that a psychiatrist may empathise with the intense suffering of the person he/she has to assess [23], in accepting his/her role as an independent assessor, he/she has to be prepared to state an opinion that may be antithetical to what the assessee wants, and which may also be contrary to an approach one might take in the treatment setting.

This is the nature of independent assessment. As Gutheil has noted, there is a critical distinction between forensic and general psychiatry and this has ‘profound ethical implications’ [23]. In brief, the traditional doctor–patient relationship does not apply in forensic psychiatry. Independent forensic examiners see plaintiffs, defendants or clients, but not patients, as can be seen in the definition of independent medical examination in Ethical Guideline No. 9 [21]. In clinical practice a psychiatrist sees patients, and one of the ethical obligations in relation to seeing a patient is to serve the best interests of the patient [24]; the forensic examination may, in fact, produce a result that is contrary to the hopes or wishes of the examinee. Ethical Guideline No. 9:1.3 suggests similarly.

Ethical Guideline No. 9 and Practice Guideline No. 9 are totally appropriate and ethically consistent with the Practice Direction [10] and the RANZCP Code of Ethics [24].

The function of a psychiatrist in the legal arena

The function of the psychiatrist in the legal arena is well described in Ethical Guideline No. 9:1.2 and Practice Guideline No. 9:1.1. In brief, the psychiatrist informs the Court of the following in respect of the person who has been assessed: (i) whether the person has a psychiatric injury; (ii) the nature of the injury, if there is one; (iii) the person's general history; (iv) the person's medical and psychiatric history; (v) whether the history and symptoms presented by the plaintiff are consistent with clinical experience and/or with any background material that has been provided to the psychiatrist; (vi) what the prognosis is for the injury.

In theory, it is not for the independent psychiatrist to determine the ultimate issue before the Court: if the person has been injured and whether that injury occurred in consequence of the defendant's actions [23].

However, the reality is that a Court is more likely than not to ask the psychiatrist the question as to whether the injury probably arose, or was exacerbated, by the actions of the defendant [23] and a psychiatrist is then required to answer the question if he or she can: (i) yes; (ii) no; or (iii) there are multiple causes and it is impossible to cite any particular one as the cause. This is essentially Practice Guideline No. 9:2.2. However, at the end of the day, it is for the Court to determine the role any particular cause had in bringing about the compensable injury [25].

Ethical challenges for the independent psychiatrist

The role of bias in the evidence of experts in general has been recently reviewed in a survey of judicial opinion which found that a significant number of judicial officers were concerned with the problem [26]. Similar concerns about psychiatrists in particular have been expressed in the popular press [6,27] and in a Parliamentary Select Committee Report [13].

As already suggested, any psychiatrist, as indeed any expert witness, can quite unconsciously develop bias, or be influenced by personal ideologies, or what Tennant has called ‘positional biases’ [3]; this could also be called loss of objectivity, something inherently warned against in Practice Guideline No. 9:2.3. For example, as Halasz has suggested in his discussion of the diagnosis of ADHD, it may be an ideological bias on the part of the psychiatrist that leads him or her to an intentional misdiagnosis in order that the person being assessed will receive a financial reward [28]. The potential end result of such a position, as well as the ethical implications [2,13,28], is apparently not considered.

Gutheil [23] and Tennant [3] have suggested the following ethical challenges for the forensic psychiatric examiner: the delicate question of malingering or exaggeration of symptoms; the often challenging determination of the causal linkage between the alleged injurious act and the present emotional condition, especially when the history contains much previous trauma and abuse, as well as genetic risks and other parallel events which may or may not be traumatic; the maintenance of objectivity when confronting a person who may be suffering as intensely as a patient in treatment, thus testing the examiner to maintain the focus that this is not a patient, but an examinee.

Other ethical challenges include [1,5,29,30]: personal feelings about the person being examined or the situation which has brought the person before the examiner; the influence of social and cultural variables; underlying attitudes and beliefs held which could influence the writer's opinion; opinions being influenced by the financial rewards of writing a report helpful to the referring solicitor and maintaining a referral base; the ‘rush’ of being involved in the legal arena; volunteering opinions in areas outside one's expertise [31]; lack of preparedness to change opinion in Court, even if sound evidence contrary to the opinion is put to the examiner.

Experts often come to grief in Court when there is rigidity about their opinion, especially when solid contrary evidence is put to them, or when the assessment process is shown to be lacking [32], for example failure to take an adequate history or assuming that the person's history only begins with the incident [5].

Another problem arises when a psychiatrist, in an effort to assist an examinee, an examinee's family or the lawyer for the examinee, gives evidence of opinions that cannot be sustained in any reputable literature, as sometimes has happened in cases involving children [26,33]. Such behaviour, arguably, is in breach of Ethical Guideline No. 9.6, which requires that opinions be based on contemporary scientific standards [21],

It is the role of solicitors and barristers to advocate vigorously for their clients in the legal arena; that is not the role of the medical expert [2]. This does not mean that one cannot argue forcefully for one's opinion, but as already commented, it is imperative on the expert to consider alternative explanations, if credible, different evidence is put to them. For example, if the expert has based his opinion on a history given by the plaintiff (or defendant), and it is put to the expert that, in fact, the history is quite different from that given by the examinee, then the expert has to be able to admit that he/she would likely change the opinion, or be able to justify why the opinion should stand, notwithstanding the falsehoods provided by the examinee. When courts refer to advocacy, they are referring to lawyers advocating for the plaintiff or defendant. This is a positive description. When an expert is referred to by a court as an advocate for the party calling him/her, the reference is pejorative [2].

Responsibility to the profession

Principle 8 of the RANZCP Code of Ethics [24] requires that psychiatrists share the responsibility of upholding the integrity of the medical profession.

Bloch and Pargiter [34] have suggested that there are four potential purposes of the Code of Ethics in psychiatry, namely: to protect and promote the professional status of psychiatrists; to self-regulate; to sensitize psychiatrists to the ethical dilemmas of their work; to serve as a tool in professional ethical education.

The court room, unlike clinical practice in general, is a very public demonstration of a psychiatrist's skills and a psychiatrist has a very specific role: to use those skills to assist the Court. Thus, when a psychiatrist crosses ethical boundaries, it is publicly reported, for example in the popular press [6,33] as well as in the professional literature [26,35].

Therefore, when a psychiatrist acknowledges that he or she has read the Practice Direction of the Court and agrees to abide by it [9,10], he or she is saying to the Court that he or she acknowledges a duty first and foremost to the Court. If asked in Court, under oath or affirmation, whether the report is his or hers, then acknowledgement of the duty to the Court is explicit.

If under cross-examination it becomes clear that the psychiatrist is a supporter for the side which has called him/her, then in effect the psychiatrist is demonstrating bias and scant attention to the Practice Direction and thus has not been guided by the ethical or legal guidelines relating to the task he/she has accepted [21]. Such bias is always unethical, because it can hurt not only the party calling the psychiatrist, but also the other party [2], which in turn can hurt the psychiatric profession as a whole and, in consequence, has the potential to hurt patients, especially if the profession is brought into disrepute [3,4].

Arguably, this is also perjury which could be referred to the appropriate authorities.

Conclusion

Ethics are an integral component of professional life [34]. However, as Bloch, Chodoff and Green have warned: ‘ethical dilemmas are not resolved by easy, ready made remedies … Immutable ethical rules are simply not available’ [36].

It may seem that the Rules of Court and Practice Directions [9,10] are an unwarranted attempt to dictate to psychiatrists their behaviour in forensic reporting. However, while such rules do prescribe the modes that courts, at this time, want followed, nonetheless such rules are not an alternative to ethical behaviour. Rather, such rules may be seen as a complement to ethical guidelines: rules that attempt to ensure that everyone who comes before the Court is treated equally and fairly.

No system is perfect and no rules of court or ethical guidelines are going to resolve the innumerable problems that arise regularly. Nonetheless they at least provide a basis for proper behaviour and, as Tennant has suggested [3], encourage psychiatrists in the legal arena to truly evaluate their position about possible bias.

Forensic psychiatry is a particularly complex medical specialty, one that can create enormous personal conflict for clinicians, especially those who are not forensic consultants.

Thus, the rules and ethical guidelines point to an issue that has been raised previously: whether a register of psychiatrists considered truly expert ought to be developed [2], or, as Phillips has suggested, and which may be more practical, the development by the College of an accreditation process for those prepared to undertake further study in the nature and practice of forensic psychiatry [J. Phillips, pers. com. 2002].

(The views expressed herein are personal and do not necessarily reflect the views of the author's employer.)