The ethical boundaries of forensic psychiatry: a view from the ivory tower.

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AA Stone. The ethical boundaries of forensic psychiatry: a view from the ivory tower. Bull Am Acad Psychiatry Law 12:209-19, 1984 (Republished: J Am Acad Psychiatry Law 36: 167-74, 2008) (Extended version in – The ethics of forensic psychiatry: a view from the ivory tower, in Law, Psychiatry, and Morality: Essays and Analysis by AA Stone 1984)

The keynote address of Alan A. Stone at the Annual Meeting of the American Academy of Psychiatry and the Law (AAPL) in 1982 is often referred to as the timely goad that propelled the profession into examining the ethical framework for the practice of forensic psychiatry. Although some 35 years later, the framework still has significant gaps and open to criticism, that keynote address and the following dialectic with Paul Appelbaum, Erza Griffith, and Stephen Morse is a fascinating professional debate on the minefield of ethics in Forensic psychiatry practice.

He announces first up that he is not a forensic psychiatrist even though his intention is to attack forensic psychiatrists for an apparent lack of clear guidelines on what is proper and ethical. He sceptically asks:
The boundary question – Does psychiatry have anything true to say that the courts should listen to?
Is one twisting justice? – The risk that one will go too far and twist the rules of justice and fairness to help the patient.
Is one deceiving the patient? – The opposite risk that one will deceive the patient in order to serve justice and fairness.
Is one prostituting the profession? – The danger that one will prostitute the profession, as one is alternatively seduced by the power of the adversarial system and assaulted by it.

He outlines the purist position guided by Kant: “concerning the question whether the mental condition of the agent was one of derangement or of a fixed purpose held with a sound understanding, forensic medicine is meddling with alien business.” and “physicians are generally still not advanced enough to see deeply into the mechanisms inside a human being in order to determine the cause of an unnatural transgression of the moral law.” Echoed by Freud, “the physician will leave it to the jurist to construct for social purposes a responsibility that is artificially limited to the metapsychological ego,” and further pointed by Heinz Hartmann (psychoanalyst, in his monograph Psychoanalysis and Moral Values), “psychoanalysis could say something about why people come to hold the values and morality they hold but nothing about those values and morals.”

He balances the purist position on five philosophical strands:
Fact-Value distinction (eg psychiatric testimony regarding paraphilia or child custody matters)
Determinism vs Free Will
Deconstruction of self (eg psychiatric testimony in multiple personality and dissociative reactions)
Mind-Brain problem
Normal science and Morality

“Are we embarrassed to let the public know that the state of our art is such that we do not know everything and that there are different schools and theories in psychiatry?” (Jonas Rappeport)

“when the psychiatrist’s goal is to do the best he/she can to ease the patient’s suffering, he/she has a powerful justification. It is the justification for every physician who did not wait for science and theory to be perfected. Do whatever you can to help your patient and primum non nocere, first of all do no harm. These contradictory claims constitute the ethical dialectic of the physician’s practice. We have not yet found the synthesis of this thesis and antithesis; our fate is to struggle with this contradiction. But as physicians we know what the ethical struggle is. We know the boundaries of the ethical debate. When we turn our skills to forensic psychiatry, when we serve the system of justice, we can no longer agree on the boundaries of the debate.”

He raises concerns regarding the role of a psychiatrist in the adversarial court system, “… because we want to have our cake and eat it too. We want to be doctors who are healers, and we want to serve the adversary system.”

He cursory refutes the common defensive explanations of ‘good clinical practice’, ‘standards of science’, equitable nature of the adversarial system, and disclosures against confidentiality.

He refutes justice as the adequate ethical paradigm for forensic practice, “… justice is a beneficence to a society of unidentified persons. In contrast, the doctor’s practical ethical duty is to ease the suffering of particular identified patients. Medicine has not yet solved the problem of how to balance the particular good of the identified patient against the general good of the unidentified masses. We lose our practical ethical guideline when we try to serve such greater good.” Of course, he cites the dubious role of psychiatrists in the authoritative regimes like Russia or Nazi Germany.

He concludes, “The philosophers say life is a moral adventure; I would add that to choose a career in forensic psychiatry is to choose to increase the risks of that moral adventure.”

Useful Ref:
– Morse S: Failed explanations and criminal responsibility. 68 Va L Rev 971-1084, 1982
– Moore MS: Legal Conceptions of Mental Illness, in Mental Illness: Law and Public Policy. Edited by Brody B, Englehardt T. Reidel, Netherlands, 1980
– Rappeport J: Ethics and forensic psychiatry, in Psychiatric Ethics. Edited by Bloch S and Chodoff P. Oxford, Oxford University Press, 1981
– The unconscious of a conservative: A special issue on the mind of Barry Goldwater. Fact 1(5) 3-64, 1964

It is significant that this paper came after Stone’s presidential address (he was 108th President of APA) at the 133rd annual meeting of the APA in 1980: Conceptual Ambiguity and Morality in Modern Psychiatry. (published in American Journal of Psychiatry 137(8):887-891, 1980.) To get a building sense of Stone’s unease with the practice of forensic psychiatry, it is important to briefly look at this 1980 paper.

Stone lays out the basic tenet of the address as the sense of personal conflict with the limitation of pragmatic eclecticism practice of psychiatry. In the year before, in his response to presidential address, he had proposed the model of Pragmatic Eclecticism as the peaceful coexistence between the biological, social, psychodynamic, and behavioural models, all held together by the medical model of psychiatry; a state of clinical coherence while the conceptual clarity was yet to be achieved.

To explain his concerns, he tells us a parable of Black Sergeant. The parable is Stone’s own experience in assessing and the then testifying in the trial of a black sergeant, which had led to punitive outcome for the sergeant. His assessment was assisted by the black sergeant’s candid account of his life experiences coloured by the racial discrimination and feelings of angst as the key drivers of his offending behaviour. This man was previously assessed and diagnosed with kleptomania by a different psychiatrist, using the psychodynamic model of unconscious impulses. However, Stone, in his testimony, taking a more social and cultural approach, understood the offences as the man’s revenge against an unjust system, thus taking out of the unconscious realms to the actions with intent, and assisting the law in attributing full guilt and condemnation.

He asks: what role does our practice and our theory play in the courtroom drama of guilt and forgiveness?

He laments that while eclecticism is the biggest strength of psychiatry by allowing the psychiatrist to consider a biological man, moved by dynamic passions and ideals, shaped by culture and shaping culture, it is also our biggest weakness. The account of black sergeant’s offending behaviour could have been understood by either psychodynamic or social lens, and both had plausible truth, but the psychodynamic account presented the person as the victim of his own internal conflicts, while the social account presented him as taking retribution against the society; the former account would have generated sympathetic legal outcome, while the later brought the full force of law on to him. Hence, the eclecticism also becomes our biggest weakness in not knowing what weight to give each perspective account, to reach a judgement about their relative significance, condemning us to practice in perpetual ambiguity.

It is not just a problem of getting a biological, a psychodynamic, a behavioural, and a social psychiatrist to agree among themselves. How does the individual eclectic psychiatrist who conscientiously considers all these factors reach a judgement about their relative significance?

He argues that we are faced with this theoretical ambiguity every time we try to articulate ourselves outside the walls of our offices, when we testify in the court, formulate our diagnostic nosology, or issue position papers. We do not have an overarching theory to cover the four paradigms yet. Thus, the appeal of sticking to the conceptual clarity of narrow paradigms.

Our profession is influenced by history, morality, and human values, and in turn has also influenced it by making contribution to the contemporary consciousness. He challenges us that while practicing we are always carrying with us concealed positions on human values, moral postures, and even politics, and whether we admit or not, we are responsible for the influence of those hidden values in our work. He gives the example of homosexuality in 1970s as one of those areas where seeing it as an illness was an implied imposition of our own value system, supported by different theories from all four paradigms, but lacking one coherent system to organize those perspectives.

He challenges us to consider psychiatry’s explicit influence on the subject of homosexuality and an implicit influence on shaping the view of womanhood in the society. If, with the gay liberation movement, the social paradigm about homosexuality has changed, but what, if anything, has changed for the biological, psychodynamic, or behavioural psychiatrists? Though Stone is not clear about how he sees psychiatry influence on the subject of women, I think, he may be alluding to the misunderstood notion of ‘psychopathogenic mother’ in the psychodynamic model.

This challenge … comes when many would like to retreat to their narrow paradigm. It comes at a time when the spirit of pragmatic expedience dominates our profession, narrows our horizons, and saps our moral courage.

He reminds us that while in our offices we are motivated by the moral enterprise of compassion, understanding, art, and science, we may be faced by an increasingly difficult and complex world, that may try to attack and belittle us, but given that it is easier to treat sick persons than sick societies, does it not lead us to distort the composite sketch of human condition? He cajoles us to remember that the world we perceive as outside our offices, is already inside, may be in microcosm, and we do get shaped by the moral and historical values, and in turn psychiatry does influence the contemporary value system of what it means to be a human. However, in absence of our own composite sketch of humanity (an overarching theoretical framework of health and mental illness), we must struggle with the ambiguities of our profession, and our compassion may be our only guide and comfort.

It took another 14 years before Appelbaum, who had been a student of Stone, came up with a theory of ethics for Forensic Psychiatry, in his AAPL Presidential address in 1996.