Some ethical problems Some ethical problems in forensic psychiatry in forensic psychiatry

Jozsef Kovacs, MD, PhDJozsef Kovacs, MD, PhD, , Brigitta Baran MD, PhDBrigitta Baran MD, PhD

Semmelweis University, BudapestSemmelweis University, Budapest

What is forensic psychitry?What is forensic psychitry?

It „..includes all aspects of the care It „..includes all aspects of the care and treatment of offenders with and treatment of offenders with mental disorders.”*mental disorders.”*

„„Forensic psychiatry is a Forensic psychiatry is a subspeciality of psychiatry in which subspeciality of psychiatry in which scientific and clinical expertise is scientific and clinical expertise is applied in legal contexts…”**applied in legal contexts…”**

*Sen P, Gordon H, Adshead et. al.: Ethical dilemmas in forensic psychiatry: two illustrative cases.*Sen P, Gordon H, Adshead et. al.: Ethical dilemmas in forensic psychiatry: two illustrative cases. J J Med EthicsMed Ethics 2007; 2007;3333:337-341:337-341

--*AAPL Ethics Guidelines for the Practice of Forensic Psychiatry , 2005--*AAPL Ethics Guidelines for the Practice of Forensic Psychiatry , 2005

The challanges of a forensic The challanges of a forensic expertexpert

She works not with her colleaguesShe works not with her colleagues She works with pofessionals of She works with pofessionals of

different disciplinesdifferent disciplines Basic questions for an expertBasic questions for an expert

Forensic psychiatrist as an Forensic psychiatrist as an expert witnessexpert witness

Forensic psychiatrists as expert witnesses Forensic psychiatrists as expert witnesses examine defendents (and not patients)examine defendents (and not patients)

The client of the forensic expert is not the The client of the forensic expert is not the defendant, but the court *defendant, but the court *

*Grubin, D.: Commentary: mapping a changing landscape in the ethics of forensic psychiatry J Am Acad Psychiatry Law *Grubin, D.: Commentary: mapping a changing landscape in the ethics of forensic psychiatry J Am Acad Psychiatry Law 36:185-190, 2008 (p. 186) Cit: J L Knoll IV. Ethics in Forensic Psychiatry. (In: R. I. Simon—L.H. Gold: Textbook of Forensic 36:185-190, 2008 (p. 186) Cit: J L Knoll IV. Ethics in Forensic Psychiatry. (In: R. I. Simon—L.H. Gold: Textbook of Forensic Psychiatry (Second ed.) Psychiatry (Second ed.)

**

The vulnerability of forensic The vulnerability of forensic patientspatients

The source of vulnerability*The source of vulnerability*– Their mental disabilityTheir mental disability– Some of them are detained against their will Some of them are detained against their will

– *Sen P, Gordon H, Adshead et. al.: Ethical dilemmas in forensic psychiatry: two illustrative cases.*Sen P, Gordon H, Adshead et. al.: Ethical dilemmas in forensic psychiatry: two illustrative cases. J Med J Med EthicsEthics 2007; 2007;3333:337-341:337-341

Vulnarabilities created by Vulnarabilities created by new brain imaging new brain imaging

technologytechnology Neuorethics as a new disciplineNeuorethics as a new discipline „„Mind reading” may significantly Mind reading” may significantly

limit traditional freedomslimit traditional freedoms Some examplesSome examples

The four principles The four principles of of medical ethicsmedical ethics

The modern „mantra”: the four The modern „mantra”: the four principlesprinciples– The principle of respect for the The principle of respect for the

autonomy of the patientautonomy of the patient– The principle of nonmThe principle of nonmaaleficienceleficience– The principle of beneficenceThe principle of beneficence– The principle of justiceThe principle of justice

The principles of forensic The principles of forensic psychiatry according to psychiatry according to

AAPL*AAPL* Respect for PersonsRespect for Persons Honesty Honesty JusticeJustice Social responsibility Social responsibility

*AAPL Ethics Guidelines for the Practice of Forensic Psychiatry, 2005 *AAPL Ethics Guidelines for the Practice of Forensic Psychiatry, 2005

Respect for PersonsRespect for Persons

The corollary of this principleThe corollary of this principle– informed consentinformed consent– The prerequisite of informed consent is The prerequisite of informed consent is

the competency of the evalueethe competency of the evaluee

The Insanity DefenceThe Insanity Defence

A distinction should be made betweenA distinction should be made between– Legal insanityLegal insanity– Clinical insanityClinical insanity

The two standards of the insanity The two standards of the insanity defense*defense*– Cognitive standardCognitive standard– Volitional standardVolitional standard

– *R M Wettstein (2014): Insanity and the Insanity Defense In: Bioethics, 4th Edition*R M Wettstein (2014): Insanity and the Insanity Defense In: Bioethics, 4th Edition

Honesty and Striving for Honesty and Striving for Objectivity* Objectivity*

The forensic expert should not be a The forensic expert should not be a „hired gun”„hired gun”

„„Treating psychiatrists should…avoid Treating psychiatrists should…avoid acting as expert witness for their acting as expert witness for their patients or performing evaluations of patients or performing evaluations of their patients for legal purposes.”their patients for legal purposes.”

*AAPL Ethics Guidelines for the Practice of Forensic Psychiatry , 2005*AAPL Ethics Guidelines for the Practice of Forensic Psychiatry , 2005

Objectivity versus AdvocacyObjectivity versus Advocacy

The pitfalls of the advocacy roleThe pitfalls of the advocacy role

ConfidentialityConfidentiality

This fundamental ethical principal has This fundamental ethical principal has limits in forensic psychiatrylimits in forensic psychiatry

Warning must be given to examinees Warning must be given to examinees about the limitations of confidentialityabout the limitations of confidentiality

The differences between a forensic The differences between a forensic examination and a clinical examination and a clinical examination should be carefully examination should be carefully explainedexplained

Special Hungarian problemsSpecial Hungarian problems

Providing psychiatric care and treatment Providing psychiatric care and treatment of potentially violent patients without of potentially violent patients without medium and high security unitsmedium and high security units

Forensic psychiatric expertise without Forensic psychiatric expertise without education/qualification in psychiatry but education/qualification in psychiatry but forensic medicineforensic medicine

Forensic psychiatric expertise without Forensic psychiatric expertise without psychiatric practice –institutes of forensic psychiatric practice –institutes of forensic sciences (established since 1960-s)sciences (established since 1960-s)

Contested topics I. Surgical Contested topics I. Surgical castration of sex offenders*castration of sex offenders*

The problemThe problem The debate within the EUThe debate within the EU The criticism of the European The criticism of the European

Committee for the Prevention of Committee for the Prevention of Torture and Inhuman or Degrading Torture and Inhuman or Degrading Treatment or Punishment (CPT)Treatment or Punishment (CPT)

*McMillan J: The kindest cut? Surgical castration, sex offenders and coercive offers *McMillan J: The kindest cut? Surgical castration, sex offenders and coercive offers J Med EthicsJ Med Ethics 2014;2014;4040:583-590:583-590

Contested topics II. Psychiatrists and Contested topics II. Psychiatrists and the Death Penaltythe Death Penalty

1.) Is a forensic psychiatrist allowed to 1.) Is a forensic psychiatrist allowed to carry out competence-to-be-executed carry out competence-to-be-executed evaluations?evaluations?

2.) Is a forensic psychiatrist allowed to 2.) Is a forensic psychiatrist allowed to treat an inmate who is incompetent to be treat an inmate who is incompetent to be executed, for the purpose of restoring executed, for the purpose of restoring competence? competence?

3.) Is the sate allowed to forcibly 3.) Is the sate allowed to forcibly medicate an incompetent defendant to medicate an incompetent defendant to make him comptent to be executed?make him comptent to be executed?

Physician participation in Physician participation in executionsexecutions

The AMA (American Medical The AMA (American Medical Association) opinionAssociation) opinion

The distinction between treatment The distinction between treatment and evaluationand evaluation

Contested topics III. Contested topics III. Psychiatrists and Psychiatrists and

InterrogationsInterrogations Physicians and torturePhysicians and torture The APA (American Psychiatric The APA (American Psychiatric

Association) statement Association) statement

12.8.The Interrogation of a 12.8.The Interrogation of a Guantanamo Prisoner Guantanamo Prisoner

(Adapted by J. Kovacs. Source: R.M. Veatch—A.M. Haddad—D.C. English (2010): Case Studies in Biomedical (Adapted by J. Kovacs. Source: R.M. Veatch—A.M. Haddad—D.C. English (2010): Case Studies in Biomedical Ethics. Oxford: Oxford University Press.)Ethics. Oxford: Oxford University Press.)

„„American soldiers captured a man, and transferred him to the detention center at American soldiers captured a man, and transferred him to the detention center at Guantanamo Bay. The man was labelled a „high-value detainee.”Guantanamo Bay. The man was labelled a „high-value detainee.”

In 2002, Former Secretary of Defense Donald Rumsfeld authorized extraordinary In 2002, Former Secretary of Defense Donald Rumsfeld authorized extraordinary interrogation techniques for high-value detainees. He also mandated that these interrogation techniques for high-value detainees. He also mandated that these interrogations be subject to oversight by health professionals. Special teams were interrogations be subject to oversight by health professionals. Special teams were created to work on interrogations called Behavioral Science Consultation Teams created to work on interrogations called Behavioral Science Consultation Teams (BSCTs). These teams were headed by a psychologist or psychiatrist. Their job was not (BSCTs). These teams were headed by a psychologist or psychiatrist. Their job was not simply to monitor interrogations but to employ their knowledge of human psychology simply to monitor interrogations but to employ their knowledge of human psychology to better exploit a prisoner’s psychological and cultural vulnerabilities for the purposes to better exploit a prisoner’s psychological and cultural vulnerabilities for the purposes of extracting information. of extracting information.

The prisoner in question was interrogated using very aggressive and controversial The prisoner in question was interrogated using very aggressive and controversial techniques. These included being deprived of sleep for more than a week at a time, techniques. These included being deprived of sleep for more than a week at a time, having hypothermia induced by air conditioning, being exposed to barking, growling having hypothermia induced by air conditioning, being exposed to barking, growling dogs, to which the prisoner has a phobia, being forced to take many bags of dogs, to which the prisoner has a phobia, being forced to take many bags of intravenous fluids and then to urinate on himself. Throughout the prisoner’s intravenous fluids and then to urinate on himself. Throughout the prisoner’s interrogation he was monitored daily by physicians. interrogation he was monitored daily by physicians.

A psychologist suggested that the prisoner be placed in a swivel chair so that he could A psychologist suggested that the prisoner be placed in a swivel chair so that he could be prevented from focusing his eyes on one spot. The interrogators employed be prevented from focusing his eyes on one spot. The interrogators employed dehumanizing techniques such as leashing the prisoner like a dog and making him dehumanizing techniques such as leashing the prisoner like a dog and making him bark, and remarking that the prisoner’s life was worse that that of the rats inhabiting bark, and remarking that the prisoner’s life was worse that that of the rats inhabiting the compound. the compound. „„

The Wider Debate About The Wider Debate About Particpation in Particpation in InterrogationsInterrogations

National security as justification National security as justification Utilitarian vs. Deontological Utilitarian vs. Deontological

arguments arguments

Normative theories of ethicsNormative theories of ethics

Each of them answers the question: Each of them answers the question: How should I live?How should I live?

Deontological theoriesDeontological theories– (deon=duty) You must fulfill your duties, (deon=duty) You must fulfill your duties,

irrespective of its consequencesirrespective of its consequences Consequentialist theoriesConsequentialist theories

– The moral value of an The moral value of an act act depends on depends on the non-moral consequences of that actthe non-moral consequences of that act

General characteristics of General characteristics of deontological theories of ethicsdeontological theories of ethics One must obey the known moral rulesOne must obey the known moral rules The moral rules are absolute (without The moral rules are absolute (without

exception)exception) The rules must be obeyed even if The rules must be obeyed even if

breaching them would produce greater breaching them would produce greater good good

There are possibly more than one morally There are possibly more than one morally acceptable solutionacceptable solutionss in any moral dilemma in any moral dilemma

Utilitarian dilemmasUtilitarian dilemmas

If 10 innocent persons are to be executed, If 10 innocent persons are to be executed, and one is offered to save nine of them by and one is offered to save nine of them by intentionally killing one of them, is it intentionally killing one of them, is it permissible to accept the offer?permissible to accept the offer?

Deontological answer: no, one must follow Deontological answer: no, one must follow the rule: Do not kill!the rule: Do not kill!

Act utilitarian answer: one can accept the Act utilitarian answer: one can accept the offer, if this really saves 9 innocent livesoffer, if this really saves 9 innocent lives

Counterarguments*Counterarguments*

Interrogation techniques, bordering Interrogation techniques, bordering torturetorture– may lead to false infomationmay lead to false infomation– may radicalize and fanaticize the enemy may radicalize and fanaticize the enemy – may traumatize those using torturemay traumatize those using torture

**Steven H. Miles (2014): Warfare: Torture. In: Bruce Jennings (ed.) (2014): Bioethics. (4th edition) Steven H. Miles (2014): Warfare: Torture. In: Bruce Jennings (ed.) (2014): Bioethics. (4th edition)

San Francisco—New York: Gale, Cengage Learning. (p. 3179-3183)San Francisco—New York: Gale, Cengage Learning. (p. 3179-3183)

Thank you for your Thank you for your attention!attention!