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Ethical Issues in Forensic Psychiatry

  • Paul Cosyns
Chapter

Abstract

Forensic psychiatrists have the duty to provide appropriate care to mentally disordered offenders or prisoners, i.e., care comparable to those provided in regular psychiatric facilities. The psychiatrist can never disclose information of a competent patient without his consent, but exceptionally it may be necessary to protect third parties. The psychiatrist expert witness in court serves the best interest of the legal system and must inform the examinee that the confidentiality rule is not applicable in this context. Reduce as much as possible the need for coercive interventions or treatments in psychiatry.

Mental health-care professionals have a duty to treat all persons with mental disorders with respect of their dignity, human rights, and fundamental freedom. Forensic psychiatry is a subspecialty of general psychiatry, and its purpose is the care and treatment of mentally disordered offenders and others requiring similar services, including risk assessment and management [1]. There is no such thing as “forensic psychiatric ethics” and the general principles of medical ethics apply. But the practice of forensic psychiatry is situated at the interface of psychiatry and the law. These two disciplines have quite distinct roles and rules in society with few interactions. The practice of forensic psychiatry involves mostly three parties, the psychiatrist, the patient, and the society represented by the justice or penal system. The person concerned is at the same time a client of the justice system and a patient of the health-care organizations.

The best interest of the patient is the core business of health-care providers, while the best interest of society is that of the judicial system. This balance of conflicting interests exists also in general medicine when, for example, in case of specific infections, the physician must notify the relevant authorities of the patient’s disorder, whether the patient wishes so or not. In case of an involuntary admission to a psychiatric hospital, psychiatrists play an analogous role. A psychiatric expert in court works and testifies in the best interest of justice and, doing so, not necessarily in the best interest of the patient. A psychiatrist working in prison must accept a set of obligations that do not exist in current psychiatric practice. He may have dual roles and face conflicting situations where the prison’s interests must be placed above the patient’s and psychiatrist’s interest.

Justice and psychiatry have a distinct frame of reference, but in the field of forensic psychiatry, they must find ways to work or interact together with respect for their respective values, finalities, and singularities. All European countries, according to their own history and cultural background, have different legal implementations of the same basic ideas to promote the well-being and treatment of prisoners, mentally ill offenders, or forensic patients in general. Forensic psychiatrists must know and consider in their practice their national or regional laws and regulations in this domain. It is also essential that in all cases, the forensic patient should be clearly informed about any limitations of the confidentiality rule, if any. He should always know what is likely to happen to information given to the psychiatrist, and it is the duty of this latter to inform correctly his patient and to obtain his consent.

This chapter will briefly highlight the following ethical key questions in contemporary forensic psychiatric practice: confidentiality and its limits, the right to treatment for forensic patients, autonomy of the patient, consent, and coercion. Complementary information can be found in Ethics in Psychiatry [2], Ethical Issues in Prison Psychiatry [3], An Anthology of Psychiatric Ethics [4], and Forensic Psychiatry: Clinical, Legal, and Ethical issues [5].

20.1 Confidentiality

The protection of patient’s privacy and appropriate confidentiality are core values in psychiatric treatment. It means that personal patient’s information will be carefully maintained by each health-care professional, regardless the form—verbal, written, electronic, videotape, and biological—in which this information is held. Confidentiality is both an ethical professional multimillennial obligation—since the Hippocratic Oath, 400 years BC—and a legal obligation in most European countries. Psychiatrists must know the laws of their country and comply with them, but in health-care decision-making, they will also consider and balance the different values present in each case. Obeying the law does not always guarantee an appropriate ethical treatment decision.

The “European Standards on Confidentiality and Privacy in Healthcare” justifies as follows the principles of health-care confidentiality [6]:
  • Individuals have a fundamental right to the privacy and confidentiality of their health information.

  • Individuals have a right to control access and disclosure of their own health information by giving, withholding, or withdrawing consent.

  • For any non-consensual disclosure of confidential information, health-care professionals must have regard to its necessity, proportionality, and attendant risks.

These principles of medicine also apply to forensic psychiatry. A competent patient can give consent to disclosure of confidential information and exercise control over the dissemination of the information. Valid consent requires that the patient has been duly informed about the content, the purpose, and the consequences of the proposed disclosure. It requires also an adequate comprehension of the procedure and patient’s freedom to accept or refuse disclosure. Opinions vary if the psychiatrist is then bound to the disclosure request of his patient. It may occur that the requested disclosure is not in the best interest of the patient.

Family members, acquaintances, or informal carers who are involved in the care of a patient may understandably request some information about diagnosis, treatment, or management of the health-care problems of the patient. These information may be in the best interest of the patient by improving their understanding of his problems and best ways to respond to and deal with his needs. The confidentiality rule remains, but the therapist can negotiate with the patient which kind of information can be disclosed to these persons to obtain that beneficial goal.

When the patient is incapacitated or unable to consent a family member or legal representative who has the right to give proxy consent must be contacted by the psychiatrist. Each European country has specific procedures that must be followed in such circumstances. It is generally accepted that the legal representative has to act in the best interest of the patient. In case of dispute between the psychiatrist and the legal representative, the court may be involved and settle the case.

In emergency situations, the psychiatrist may act in the best interest of the patient and disclose the minimal necessary information to deal with the acute and urgent situation.

The psychiatrist can never disclose information in the best interest of a competent patient without his consent, but in exceptional situations, disclosure may be necessary to protect overwhelming interests of third parties. Exceptional situation in which the disclosure serves an interest that outweighs the patient’s right to privacy. Take, for example, situations where the life or integrity (physical, sexual, or psychological) of a third party is at risk. Without disclosure, there is no possibility of averting the harm, and disclosure will likely avert the harm. It remains a controversial issue if the “duty to protect” is also a legal issue, and therapists should inform and comply with the national laws of their country. It is recommended to therapists confronted with such a problem to discuss the case anonymously with a colleague in support of his own judgment. It may also be argued that the disclosure of information in such a case may be helpful to both parties: it protects the potential victim but also the patient in treatment from committing new crimes. It is not the primary duty of a therapist to prevent relapse, but relapse is obviously not the best interest of the patient. Treatment and relapse prevention are not per se antinomies.

Concerning incompetent patients, disclosure may be justified to protect them as victim of severe abuse, for example, sexual abuse.

In any case the health professional should always record all the details of the decision in the patient’s record and its justification to disclose confidential information. If possible look for support for patients whose confidentiality is to be breached, and if possible ensure that the potential victim has access to appropriate support and advice.

Forensic psychiatrists have a double knowledge in psychiatry and law, and besides their duty to treat mentally disordered offenders, they may be asked to appear in court as expert witness to give their opinion on specific issues requested by a judge. All European countries have a specific legal system concerning the concept of criminal responsibility or competence as a prerequisite for punishment. In case of lack of criminal responsibility, the person will be admitted to a treatment facility rather than a prison. The psychiatrist in court acts within the law of his country and accepts the authority of the legal profession. He provides in court his opinion, but the judge or jury takes the decisions. As expert witness he no longer serves the best interest of ill individuals but the best interest of the legal system and society. In this context the forensic psychiatrist faces several ethical issues and must:
  • Duly inform the examinee about his role as expert witness, and explain that in this situation, he is not a health-care provider.

  • Inform the examinee that the confidentiality rule is not applicable in this context and explain the consequences of it.

  • Refuse to assess his own patient as expert witness to avoid a conflict of role.

  • Get the approval of the examinee (or the court) before interviewing the family, friends, or third parties to gain more information.

  • Present his specialist knowledge as forensic psychiatrist in an understandable written or spoken language for the judge, lawyer, and examinee.

  • Provide objective information focused on the questions asked by the judge and avoid going outside of this scope.

  • Although the expert witness is not a treating psychiatrist, he may inform the court of treatment needs which are in the best interest of the examinee.

20.2 The Right to Treatment for Prisoners and the Principle of Equivalence

Physicians and health-care providers have the professional duty to treat patients and relieve their suffering. Even in the absence of a “legal” right for treatment as such, the basis of the right of mentally disordered prisoners for appropriate care, as compared with care delivered in the community, can be found in the United Nations Universal Declaration of Human Rights and the European Convention on Human Rights and Biomedicine (2006). Since persons who are detained in criminal justice institutions are no longer free to access treatment for themselves, it is accepted that providing optimal treatment to them constitutes an ethical and professional obligation in European countries. Treatment must be defined not only in terms of medications but also nursing, psychological treatments, and community support.

The Draft Recommendation Rec(2004) of the Council of Europe states that in penal institutions “…the principle of equivalence of care with that outside penal institutions should be respected with regard to their health care” (art. 35, Council of Europe [7]). The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) also considers the principle of equivalence as fundamental. Forensic health-care services inside as well as outside prisons should be able to provide medical treatment and nursing care in conditions comparable to those provided outside prison in regular psychiatric facilities.

The CPT is part of the Council of Europe and visits on a periodic basis any places in Europe where persons may be deprived of their liberty. It provides to the states a controlling but nonjudicial preventive mechanism to protect persons deprived of their liberty against any form of ill-treatment. The professional competence and independence of the caregivers is stressed in the CPT Standards: whatever the formal position under which a prison doctor carries on his activity, his clinical decisions should be governed only by medical criteria (71/72, CPT Standards [8]). Independence of the health-care staff is indeed an ethical issue because it may conflict with considerations of prison management and security (the dual role conflict). The assessment of quality and effectiveness of medical work should be done by a qualified medical authority and not by bodies responsible for security or administration.

According to the European Convention on Human Rights and Biomedicine (2006), the principle of equivalence of care promotes the ideal of “equitable access to health care of appropriate quality,” but it does not mean “same” care as outside prison or forensic settings. Specific characteristics of the detention situation are to be considered. Not all the state of the art treatment modalities or treatment goals are necessarily possible in prison or forensic settings. Principally the detention in closed correctional settings is a complicating factor to provide medical and psychological care and treatment. Treatment programs, protocols, or guidelines from the regular non-forensic mental health care can generally not be used as such in detention settings but must be adapted to this specific environment. It is easier for medical forensic hospitals to comply to the principle of equivalence than for prison settings due to the negative impact of the prison culture on treatment possibilities. This is more obvious for the low level of psychological treatment possibilities in prison and, as consequence, a higher level of prescription of psychopharmacological drugs.

In many European countries, there is a growing trend to create structural bridges between the criminal justice system and health-care authorities in order to improve the medical and psychological treatment of mentally disordered prisoners. Providing treatment is not part of the core business of the criminal justice system or prison authorities. Therefore, we can only hope that the structural integration of the health-care authorities in the organizational and financial framework will enhance the overall level of the principle of equivalence. In most European countries, the equivalence of care remains an object of concern taking into account cost cuts, the rising number of prisoners and a prison culture that is not focused on rehabilitation [9].

20.3 Autonomy of the Patient and Consent to Treatment

Mental health-care professionals have a duty to treat all persons with medical or psychological disorders with respect to their dignity, human rights, and fundamental freedom. There is a universal agreement about the importance of the ethical principle of respect for the autonomous choices of persons and the individual decision-making in health care, especially informed consent and refusal. The European Convention on Human Rights and Biomedicine (2006) states this basic right as follows (art 5): “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it…The person concerned may freely withdraw consent at any time.”

Respect for patient’s autonomy means that the therapist complies with the “informed consent” doctrine which is threefold in an ethical perspective:
  1. 1.

    The right of the patient to get information on the treatment, and the duty of the therapist to provide information.

     
  2. 2.

    The competency of the patient to understand its significance and consequences.

     
  3. 3.

    The competency of the patient to give his/her consent.

     

It is a legal as well as an ethical obligation to obtain patient’s consent, and this depends strongly on the quality of the relationship between the psychiatrist and the patient which is of prominent importance in this perspective. The dialogical process between psychiatrist and patient must convey trust, empathic understanding, and emotional support. To obtain consent to treatment is often a first step in the development of a working alliance necessary for the treatment process.

In case of an incompetent patient, the psychiatrist must obtain the informed consent of the family, patient’s legal representative, or caregiver according to the legal provisions of his country. They should act in the best interest of the patient which means that they should consent to what the patient would have chosen if he/she had retained decision capacity in the current situation [10]. Even if the patient is incompetent and legally unable to consent (say “yes”) or refuse (say “no”), it remains advised to ask for his/her opinion and to let him/her participate as far as possible in the treatment decision process. This is an advised preventive measure to reduce the need for coercive interventions as much as possible.

The principle of patient’s autonomy and consent to treatment is not absolute and has its limitations. The “Declaration of Madrid” of the World Psychiatric Association states this as follows: “No treatment should be provided against the patient’s will, unless withholding treatment would endanger the life of the patient and/or those who surround him or her. Treatment must always be in the best interest of the patient.” A patient may refuse a proposed treatment, and the therapist must comply with it, but in some cases, he is empowered to reverse this refusal. In the next subheading, we will focus on the ethical justification of coercion or involuntary treatment and on the moral rightness of whatever we define as appropriate coercion in psychiatric treatment.

20.4 About “Coercive” Measures and “Compulsion” in Forensic Practice and Correctional Institutions

There is a continuum of possible treatment pressures to influence patient’s decision-making about a proposed treatment by therapists. The most common is “persuasion” that appeals to reason in the patient-therapist dialogical process, followed by “coercion” with conditional propositions and “compulsion” and the use of force.

Coercion is generally linked to conditional propositions, i.e., if the patient accepts the proposed treatment, the therapist will do something in his interest. Take, for example, a sex offender who may be released from prison if he accepts community treatment as an outpatient. This is an “offer,” and if he refuses he remains in prison which is his current baseline situation. Another example is the psychotic patient who will be involuntary admitted to hospital if he does not accept medication as an outpatient. This is a “threat”; his future condition will be worse if he doesn’t comply with the proposed treatment. In both cases the patient feels subjectively that he is not totally free to take a personal decision and feels some coercion to accept an alternative he would otherwise not have chosen. In any case the proposed conditional alternative of the therapist must always be in the best interest of the patient.

Compulsion means involuntary admissions to a psychiatric hospital as well as involuntary treatment and involves the use of force against patient’s will. It is regulated by law, and therapists will comply with the laws on patient’s or prisoner’s rights of their country. The Draft Recommendation Rec (2004) of the Council of Europe “concerning the protection of the human rights and dignity of persons with mental disorder” states guiding cumulative conditions when considering involuntary treatment:
  • The patient must present a psychiatric disorder stated by a health-care professional.

  • He fulfills the criterion of dangerousness for himself or third parties. Dangerousness, the risk of violence or threat to physical integrity of third parties, and the presence of a psychiatric disorder are principal determinants and prerequisites for involuntary treatment. The threat to the physical integrity of third parties must be linked to the mental disorder of the patient and not to other environmental or social causes. Health-care professionals are not competent to treat social deviance as such in the absence of a mental disorder.

  • The rule of the least restrictive alternative must be respected, which means that no less intrusive means of providing appropriate care are available. A patient who meets the (legal) criteria for involuntary treatment can avoid it if equal protection and treatment efficacy can be achieved at a lower level of constraint. Involuntary treatment must be proportional to the health status and symptomatology of the patient, and the therapist will use minimal coercion necessary to restore or maintain the competence of the patient.

  • Even in case of involuntary treatment, the therapist shall take the opinion of the concerned person into consideration. He gives information about the current situation to the patient and about what will happen in the short term.

  • Involuntary treatment should always be part of a written treatment plan, reviewed at appropriate intervals, and take place only in an appropriate environment, more specifically not in a prison but in a (forensic) health facility.

The major ethical justifications of the use of external coercion in treatment are:
  1. 1.

    The treatment redresses competence in incompetent patients.

     
  2. 2.

    The treatment reduces the risk of violence toward third parties.

     
  3. 3.

    The individual patient ultimately benefits from the planned treatment (lack of treatment will be detrimental for the mental health of the patient).

     

The proposed treatment must be suitable, beneficial, and effective for the psychopathological problem of the patient. Psychiatric conditions with poor prognoses will not improve with coerced therapy, whatever the treatment may be. Therapists must be aware of the limitations of their therapeutic decisions and/or programs.

Reducing the need for coercive interventions in psychiatry is obviously a legitimate aim because most patients judge negatively a previous involuntary treatment even though they nonwelded health benefits. This can be achieved by several ways:
  • Therapists must aim for a more active role and involvement of the patient in making treatment choices and decisions at each stage of the therapy.

  • Initiatives involving the use of “advance statements” by patients seem to be effective. Take, for example, a patient with a psychosis who anticipates a relapse. He may state in an “advance directive” his treatment preferences in anticipation of a future relapse of his psychosis. The patient has then a greater impact on his/her treatment at the time of psychotic relapse when he may be not capable of making treatment decisions.

  • Coercive interventions on hospital wards such as the use of seclusion or restraint can be significantly reduced by appropriate staff education and management.

As forensic mental health care also shifts from forensic hospital to the community, the locus of the provision of mental health services has partly moved to the community. Take, for example, the coerced or even mandated compulsory community treatment of substance abusers proposed as an alternative to repeated inpatient hospitalizations in which involuntary treatment with medication is often required [10]. Another example is the coerced treatment of sex offenders released into the community. Even if the patient formally agrees with the treatment proposal of hormonal testosterone lowering treatment as a condition, there is often some form of informal coercion, e.g., if the prisoner wants a conditional release from prison, he must agree with the proposed hormonal treatment [11].

Take-Home Messages

  • Forensic psychiatrists have the duty to provide appropriate care to mentally disordered offenders or prisoners, i.e., care comparable to those provided in regular psychiatric facilities.

  • The psychiatrist can never disclose information of a competent patient without his consent, but exceptionally it may be necessary to protect third parties.

  • The psychiatrist expert witness in court serves the best interest of the legal system and must inform the examinee that the confidentiality rule is not applicable in this context.

  • Reduce as much as possible the need for coercive interventions or treatments in psychiatry.

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Copyright information

© Springer International Publishing AG, part of Springer Nature 2018

Authors and Affiliations

  • Paul Cosyns
    • 1
  1. 1.Faculty of Medicine and Health SciencesCollaborative Antwerp Psychiatric Research Institute (CAPRI), Antwerp University Hospital, University Forensic Centre (UFC) and University of AntwerpEdegem/WilrijkBelgium

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