Dual Agency and Wearing Two Hats: On the Incompatibility of Clinical Psychiatric Assessment and Forensic Psychiatric Evaluations

DUAL AGENCY AND WEARING TWO HATS: THE INCOMPATIBILITY OF CLINICAL PSYCHIATRIC ASSESSMENT AND FORENSIC PSYCHIATRIC EVALUATIONS‍

Distinguishing the ethical, legal, evidentiary and informational differences between fact and expert witnesses is an issue that continues to puzzle many psychiatrists, non–psychiatric physicians, attorneys and various governmental administrators. I composed this document as a response to the growing discomfort that I have felt as a treating psychiatrist when I am asked by various individuals or agencies to: send them copies of my patient’s confidential psychiatric records, render an expert forensic opinion on the cause of my patient’s alleged mental disability, determine a date regarding when my patient can return to work, and/ or give my professional guarantee that my former adolescent patient can currently responsibly operate responsibly around the nuclear weapons on a submarine.

Below is my synthesis – or, better, an aggregation – of selected published documents from nationally respected medical and psychiatric authorities on the topic of dual agency or “dual relationships.”  I make no claim to originality. I have borrowed heavily – if not, at times, verbatim – from the authors of the articles referenced at the end of my essay.‍

What is dual agency? Dual agency occurs when, for example, the same psychiatrist serves as both the treating psychiatrist and the expert witness for the same patient. Dual agency may occur in the following circumstances: (1) a company psychiatrist owes a treatment duty to his patient – an employee of the same company – and a simultaneous obligation to the company to return the patient to work immediately; (2) a military psychiatrist owes a treatment duty to his enlisted patient and a simultaneous duty to the military to maintain security; (3) a jail psychiatrist owes a treatment duty to his inmate patient (who is awaiting his trial) and a simultaneous duty to the state to obtain an inmate’s confession; (4) a state–employed psychiatrist owes a duty to the best interest of his death row patient and a simultaneous job assignment to get the execution done.‍

Expert testimony. Who is in a more favorable position to provide accurate and honest expert testimony in the case of a psychiatric patient under treatment who subsequently becomes involved in a question of law – whether it involves a criminal or an administrative law issue? Here are the two choices:

1. The non-treating forensic psychiatrist divorced from the therapeutic relationship; or:
2. The treating psychiatrist who, over a period of time has seen the patient within the context of a therapeutic alliance and has had an opportunity to not only evaluate, but also understand the psychodynamics of the patient’s mental illness, personality function, interpersonal relationships and patterns of behavior preceding – for example – the incident or condition forming the basis of a legal or administrative inquiry?
   

The ethically correct answer is A.

Scenarios. The following vignettes illustrate the potential ethical dilemmas a psychiatrist might encounter in wearing two hats with the same patient.

Scenario A:  A psychiatrist is treating an a patient in an out–patient treatment setting who reports committing a crime. The duty of the treating psychiatrist is to his patient’s best interest – which, in this case,  is for the psychiatrist to maintain confidentiality. However, a forensic psychiatrist who examines the patient (– now called a defendant) to determine if the defendant was legally insane (and therefore not culpable) at the time of the crime, has a different duty. The forensic psychiatrist’s duty is to honestly determine if the patient was sane at that moment in time. His duty is to the legal system, not to the patient. Whether his honest conclusion is helpful to the defendant or harmful to the defendant is basically irrelevant to the forensic psychiatrist’s role. And confidentiality is commonly set aside in order to accomplish his or her forensic task.

Scenario B: A long–term outpatient office patient has recently sustained a head injury at work and submits a Workmen’s Compensation claim. The patient claims that he is unable to think clearly enough to do his work, and that he should be on sick leave for two months. The treating psychiatrist agrees that the patient would benefit from two months off work, but for a different reason. The patient’s wife is about to give birth, and the psychiatrist believes that it is very important for him to be involved with the birth process, the early nurturing of the baby and the care–taking of his wife. The two months of Workmen’s Compensation leave would allow time for this involvement, with pay. Leave time under the Americans with Disability Act would allow for the time, but without pay. Should the treating psychiatrist report to the patient’s employer that the time off is needed due to the work–related head injury? Such support by the psychiatrist would be in the best interest of the patient, but not necessarily honest. Or should the psychiatrist report that the patient’s head injury does not cloud his thinking enough to warrant time off work? This would be honest, but contrary to the interest and preference of the patient. Or should the psychiatrist refuse to answer the employer’s inquiry?  Such a refusal would be both honest and in the patient’s best interest, and is the correct response.

Scenario C: A patient is applying for Social Security disability benefits. The treating psychiatrist is asked by the Social Security Administration to complete its questionnaire regarding the listing of and severity of psychiatric symptoms, capabilities and mental status of the applicant, as well as cause of the disability and prognosis for the patient. The psychiatrist completes the form honestly after first obtaining the patient’s consent. When the application for benefits is then subsequently denied by Social Security, the patient blames his treating psychiatrist for the denial, claiming that the psychiatrist should have completed the questionnaire with answers that would satisfy Social Security Administration’s requirements for disability compensation. Since the psychiatric assessment for the purposes of treatment is different from the psychiatric exam for the purposes of rendering an expert opinion, the patient then sues his treating psychiatrist for medical malpractice for not performing a thorough forensic psychiatric evaluation before responding to the agency’s request for what is tantamount to his expert opinion on the issue.

Scenario D: The parents of an eight year old child with a diagnosis of attention–deficit/ hyperactivity disorder submit a disability claim to Washington State Department of Health and Social Services (DSHS) for Social Security disability benefits. The parents have recently withheld effective medication from their ADHD child in order to maximize the severity of his symptoms for the purposes of obtaining the maximum monthly disability payment allowed by Washington State. The agency then requests an expert opinion from the treating psychiatrist about how disabled this child is, how long he will be disabled, what modifications should be made at the school to accommodate his handicapping condition, etc. This  request – from Washington State Department of Social and Health Services in this case – should probably be regarded as a potential ethical trap. One possible ethical response would be for the treating psychiatrist to discuss the situation with the patient and parents, provide copies of the chart notes (– i.e., after obtaining informed assent from the child, and informed consent from the parents), and suggest to Washington State Department of Health and Social Services that an independent psychiatrist make an assessment for the purposes of determining disability.

Two masters. The acknowledged experts in the field of ethics in psychiatry assert that psychiatrists cannot ethically serve two masters – serving the law as an expert witness (or providing expert opinion to such agencies as Washington State DSHS, Workmen’s Compensation, the Veterans Administration, or the Social Security Administration) and serving the patient as a treating psychiatrist – without creating an irreconcilable role conflict. Wearing the hats of both expert witness and treating psychiatrist is problematic because (– among other reasons): there are differences in conceptions of truth and causation, differences in the forms of alliance, differences in the types of assessment procedures, differences in purposes, and differences in ethical guidelines.

With regard to forensic psychiatry cases, Strasburger, Gutheil, and Brodsky (1997) argued that: “It is prudent for clinicians to resist both the external pressures emanating from the attorney or patient or both, and the internal pressures from the therapist’s felt allegiance to the patient. The legal process is directed toward the resolution of disputes; psychotherapy pursues the medical goal of healing. Although these purposes need not always be antithetical and may even be congruent, the processes themselves typically create an irreconcilable role conflict.”

Several years ago, psychiatrist William Vicary, M.D. agreed to be both the treating psychiatrist and expert witness for Eric Menendez, who – along with his brother – was accused of murdering his parents while his parents slept. Dr. Vicary later admitted that he made a series of ethical and legal blunders during the court trial –some of which were a consequence of succumbing to playing  a dual agency role.

Roles. Knowing one’s role is important in all contexts of the psychiatric profession. This is one of the central points of consultation/ liaison, as well as psychotherapy. Once the psychiatrist enters a case in a particular role, that role should not change without the expressed and informed consent of all parties and considerable thought on the part of the psychiatrist as to what the ramifications of such an action might be. For example, the American Academy of Psychiatry and the Law warns in its Ethical Guidelines for the Practice of Forensic Psychiatry that “a treating psychiatrist should generally avoid agreeing to be an expert witness or perform an evaluation of his patient for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.” From my reading of the literature, it appears that such “legal purposes” include asking that the treating psychiatrist provide an expert opinion to agencies for the purposes of determining the merits of a medical/ psychiatric disability compensation claim.

Exceptions. Legitimate exceptions to the above situation of “wearing of two hats” include assessing competence to give informed consent, and petitioning a court for involuntary commitment. As a side issue, while some psychiatrists have argued that psychiatrists have a responsibility to obtain informed consent for psychotherapy, including advising the patient about the exceptions to confidentiality such as child custody disputes, commitment proceedings, explicit threats to third parties, and in civil cases whenever the patient present his mental condition as an issue at trial, other psychiatrists have argued that informed consent is not necessary – or even appropriate – when beginning psychotherapy.

Philosophical differences. Beyond the potential feelings of betrayal or other practical effects on the treatment relationship that might follow forensic evaluation or testimony lies an additional problem: successful psychiatric treatment often rests on philosophical principles that may be antithetical to the procedures and claims involved in personal injury litigation. For example, patients expect their treating physician to see things from their point of view and be advocates for their individual interests. To make useful assessments and to have courtroom credibility, however, forensic psychiatrists must evaluate plaintiffs from an objective stance. Forensic psychiatrists may be advocates, but they generally argue for the soundness of their conclusions, not for one of the parties to a legal dispute.

Obligations of treating psychiatrists. Treating psychiatrists (not just psychotherapists) have primary obligations to advance their patients’ interests and avoid causing them harm, reflecting the principles of beneficence and nonmaleficence. Psychotherapy with adult patients involves a search for meaning, narrative, and insight which cannot be expected to meet legal standards of proof. A therapist might take a psychodynamic perspective, with its emphasis on conflict and the role of the unconscious. In contrast, forensic psychiatric examinations are concerned with objective facts and historical truth, favoring objective descriptive psychiatry with its emphasis on classification and reliable diagnosis. In psychiatric treatment, the patient must learn to accept personal responsibility as a condition of change. In building a treatment alliance, the treating psychiatrist usually attempts to ally with that part of the patient that seeks to change, to give up self–destructive or self–sabotaging behaviors, and to resume or develop healthy adaptations.  The treating psychiatrist often hopes to enhance the patient’s well–being by helping him or her master his/her own difficulties and by increasing the patient’s autonomy through mutual discovery of conflicts, deficits, cognitions, behaviors, and desires that impede optimal functioning.

Improvement in psychiatric treatment thus depends in part on the patient’s accepting responsibility for his/ her predicaments and for getting himself or herself out of them. The perspective is future oriented; troubles should be ameliorated for a better, happier life. Entitlements – financial or otherwise – may have to be discarded so that one can better cope with everyday existence.

Responsibility. One must accept that life is hard and often unjust, and assume responsibility for one’s role. On the other hand, the essence of tort liability is to place that responsibility elsewhere than on the patient/ plaintiff. The forensic psychiatrist may be allied with (or else opposed to) that part of the adult evaluee which seeks concrete redress for injury, exculpation from responsibility, or avoidance of responsibility through a finding of incompetence. The evaluator’s approach to the evaluee – whether the evaluee is a child, adolescent, or an adult – may emphasize psychopathology –  in contrast to the normalizing approach of the treating psychiatrist. The attention that the forensic psychiatrist pays to a psychopathological slice of past life, without any hope–giving search for renewal and remediation, may foster a depressive rather than an encouraging outlook.

Again, in at least some litigation situations, the adult patient (or legal guardian of a child) as plaintiff seeks to assign responsibility to others to achieve recompense and vindication. Treatment of children and adults in psychotherapy, for example, is brought about through an empathic relationship that has no place in, and is unlikely to survive, the questioning and public reporting of a forensic/ compensation evaluation.  In revealing information to treating psychiatrists,  patients – except, for example, when the physical safety of identified others is endangered – can be assured that their disclosures will be used by their psychiatrists only to further their interests.

A forensic psychiatrist works in an entirely different ethical framework from that of the treating psychiatrist, one built around the legitimate needs of the justice system. The forensic psychiatrist relies on multiple sources and begins an interview with an explicit legal question, sifting relevant psychiatric data to answer that specific legal or administrative psychiatry question. His duty is to seek and reveal the truth, as best he can, whether or not that advances the interests of the evaluee (the patient). The ethical principle guiding forensic psychiatry is honesty.  But a psychiatrist’s honest conclusion does not always serve the best interest of the patient.  (This pursuit of truth is not unbounded, however –  forensic psychiatrists must manifest respect for the persons they evaluate, a principle that excludes, for example, use of deception in the quest for truth. This is why the forensic evaluation begins with a disclosure of the nature of the evaluation and the limitations on confidentiality.)

The ethical forensic psychiatrist must identify for the examinee the parties to whom the gathered information will be released. This always includes the party retaining the psychiatrist and any involved court. Informing the examinee of the limits of confidentiality is similar to a Miranda warning.)

Forensic psychiatrist and medical ethicist Paul S. Appelbaum, M.D. wrote that there is “a fundamental incompatibility between the ethics of the therapeutic and forensics functions. When clinical and forensic roles are combined in the course of treatment, information gathered with the understanding that it will be used only for the patient’s benefit is turned to other purposes. Regardless of the psychiatrist’s intent, that information may redound to the patient’s detriment. Alternatively, if patients are made aware at the onset of treatment that the therapist will also be performing a forensic function, it is difficult to imagine how open communication and effective treatment can take place.”  Once the patient has revealed his past developmental and psychiatric history, the patient cannot then retract what he has previously reported; hence, if asked appropriate questions, the treating psychiatrist must reveal this information – in many cases to the patient’s possible detriment. Thus, the treating psychiatrist, would be crossing an ethical barrier if he then gives testimony or otherwise provides an expert legal opinion about questions of disability compensation about his patient. In any event, the outcome is unfair to the patient.‍

Solutions. The problems with dual agency has led, for example, the Portland Oregon Veteran’s Administration adopting the procedure of using independent psychiatric examiners to interview veterans for the purpose of determining compensation and pension benefits.  Further, the mental health treatment records are not available to the compensation and pension psychiatrist. The hope is that this policy will reassure veterans who are worried about losing VA benefits as a consequence of candidly and honestly reporting to their treating psychiatrist that their symptoms were improving.

Child and adolescent psychiatrist Lee H. Haller, M.D. has commented: “It is surprising that the same clinician who would readily decline other involvement with the family outside of therapy, will allow himself to be seduced into contaminating the therapy by the patient’s attorney. This is exactly what is being asked of a therapist when he is requested to be an expert witness in litigation involving his patient. By acceding to the attorney’s request, the clinician is drawn into a dual role of therapist and expert witness. Not only does this contaminate the therapy, but it also leads to potential conflict for the clinician, since the expert witness’ job is to help the attorney (to the degree possible) win the case. Accepting this role will be perceived as an advocacy stance by the attorney, patient, and family. Clearly, such is not consonant with the concept of therapeutic neutrality and should therefore be avoided.”

From a therapeutic perspective, litigation  (or, as another example, “milking a disability claim”) can be a form of acting out. The psychological resistances and defenses that litigation tends to harden may impede the work of therapy/ treatment, since there is a clear and powerful financial disincentive against improving in physical or mental functioning before a settlement has been reached.‍

ὠφελέειν ή μὴ βλάπτειν. Ethical guidelines for physicians in clinical settings may conflict with those that apply to legal situations. The treating psychiatrist is bound by the ethical dictum of “first, do no harm,” [a closer translation of Hippocrates often misquoted statement is: “Do good, or at least do no harm.”] which does not apply directly in the courtroom or in the disability evaluation of an independent medical examiner. An evaluee may suffer substantial harm from a forensic expert’s testimony through lost self-esteem, deprivation of liberty, or even loss of life in capital sentencing.

Other problems with dual agency: the psychiatrist must look at the totality of the evidence, including material unfavorable to the patient’s welfare, which the treating therapist has, in effect, sworn to support. And a  treating psychiatrist’s testimony that a patient will require long–term treatment may be viewed as self–serving and destroy the credibility of the treating therapist’s testimony. Moreover, a patient must waive confidentiality to undergo a forensic examination, thus altering the therapeutic relationship, which may be hard to restore later. And even when there is a favorable verdict, the experience of hearing one’s intimate life revealed and analyzed in court may be exceedingly traumatic.

So how does a psychiatrist respond when approached to be an expert witness for a current patient? That is, what if the attorney asks the treating psychiatrist to provide expert testimony when psychiatric treatment has been initiated without any prior understanding that such testimony might be requested? The experts recommend the following. First, the psychiatrist should not discuss anything with an attorney until the psychiatrist has obtained informed consent from his patient or the legal guardian. Here, the work “informed” is key because the parties need to know, among other issues, that the psychiatrist cannot limit his disclosure to selected issues or data. Assuming that the patient and/ or legal guardians do want the treating psychiatrist to proceed and they document these wishes via written consent, then the psychiatrist is free to speak with the attorney and it is appropriate that the psychiatrist do so. The treating psychiatrist has pertinent information that the attorney needs, including the psychiatrist’s analysis of the problems and why the psychiatrist has undertaken a particular mode of treatment. If the attorney finds the input helpful to his client’s case, he will probably want the treating psychiatrist to give his testimony. Or what if the patient or the patient’s lawyer requests that the treating psychiatrist prepare a report on the patient’s suitability for custody of a child or agree to testify on the degree of emotional harm the patient suffered in an automobile accident? The treating psychiatrist should decline giving such expert psychiatric witness testimony, explaining to the attorney that being forced into such a role will have an adverse impact on the patient’s treatment. The treating psychiatrist should suggest that an independent medical/ psychiatric examination is preferable. This should be performed by another qualified psychiatrist who may use the data obtained by the treating psychiatrist, but who will also do an independent assessment. The independent forensic psychiatrist can then communicate openly with the attorney regarding the strengths and weaknesses of the case in a way that does not interfere with the treating psychiatrist’s ongoing relationship with the patient, presenting the case forcefully in the various legal settings. Use of an independent expert in such a manner allows the therapeutic work to go on simultaneously with the legal proceedings. The treating psychiatrist remains unencumbered by the legal proceedings and is available to the patient for ongoing therapeutic work and support during the legal process.

People often bring legal action in the belief that it will be therapeutic and empowering. Sometimes it is, but is can also be traumatic. Moreover, the sense of entitlement fostered by an unremitting quest for justice tends to harden characterological defenses (i.e., the disordered thinking, feeling and/ or behavior found in those with personality disorders tend to become more pronounced in such circumstances), thereby making constructive change more elusive. In such cases, litigation may be said to bring about a developmental arrest or regression antithetical to therapeutic growth. Given such risks, the proper role of a treating psychiatrist is not to encourage a lawsuit or to be the patient’s legal advocate. Rather, it is to assist the patient in deciding whether or not to bring suit and to provide support in going through the legal process, if that be the decision. The published opinion of at least some psychiatrists is that the therapist ought to stand at the same distance from the lawsuit as from any other significant event in the adult patient’s life.‍

Attorneys often flummoxed. Attorneys find it difficult to believe that treating psychiatrists should not serve as expert witnesses and that their evaluations would not meet forensic needs, and that the treating psychiatrist serving as an expert witness might subvert ethical principles as well as therapeutic and legal goals. Perhaps attorneys’ expectations are based on their experience with physicians in other medical specialties for whom treatment of and testimony about physical injuries do not involve the potential conflict of interest generated by psychological damage litigation. Attorneys also may not wish to pay for or subject their clients to a separate psychiatric forensic examination, even though undergoing such an examination would be in their clients’ financial and emotional best interests.‍

“Just the facts, ma’am.” When an attorney requests information for litigation purposes, the psychiatrist is obliged to provide the requested information to the attorney within a reasonable period of time. But the treating psychiatrist is under no obligation to do a complete forensic and litigation assessment of his patient – or of a non-patient for that matter. An example of a partial response to an attorney requesting information of fact from the treating psychiatrist could read: “The patient was in therapy for depression or chronic pain and was seen on the following dates…The patient received the  following treatment…Because of the nature of the therapeutic relationship, it is difficult for me to make statements about the etiology of the patient’s condition or about prognosis, and I would recommend strongly that the attorney seek an independent assessment from another psychiatric consultant.” When a patient enters therapy with a psychiatrist without first mentioning his involvement in litigation proceedings, the patient can be told that the treating psychiatrist will respond only to an attorney’s written request for information and that any report will be confined to relatively factual information. Questions about cause and prognosis may have to be directed to an independent psychiatric consultant.‍

Conclusion. Psychiatrists’ increasing sensitivity to the opposing demands of their different roles is a positive development for the profession. Fairness to patients and to others whom we encounter in our professional work requires us to strive to disentangle these conflicting obligations. Dual agency is considered by most – if not all – psychiatrists who have published on this subject to be unwise and fraught with risk. The ethical principles of both the American Psychiatric Association and the American Academy of Psychiatry and the Law are contrary to the psychiatrist being a dual agent. Simultaneously having two conflicting roles in a case can only keep patients and treating psychiatrists from achieving the therapeutic benefits of a doctor-patient relationship that is based on mutual trust and expectations. Notwithstanding the growing pressures from the complex clinical/ legal marketplace to perform simultaneously in multiple roles, two heads are better than one only if they really are two distinct heads, each wearing its own hat.‍

References

1. Appelbaum, PS, “Ethics in Evolution: The Incompatibility of Clinical and Forensic Functions,” American Journal Psychiatry, 154:4, April 1997, page 445-446
2. Berger SH, “Ethics and Dual Agency in Forensic Psychiatry,” Psychiatric Times, June 1998
3. Haller LH, “Therapeutic Neutrality, AACAP News, July-August, 1995, page 21
4. Ogilvy D, Ogilvy: On Advertising, 1983
5. Strasburger, LH; Gutheil TC, and Brodsky A, “On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness,” American Journal Psychiatry,154:4, April pages 448-456
6. Ἱπποκράτης ὁ Κῷος (Hippocrates), Eπιδημίαί (“Of The Epidemics”), Book I, Section II, Paragraph 5; 400 B.C. or so

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