Ethical and Legal Issues for Mental Health Professionals: in Forensic Settings
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East Dane Designer Men's Fashion. Detention on the grounds only of public safety is commonplace in criminal justice settings; but makes little sense in health settings where the patient's welfare is morally and legally the object of the professional duty of care.
The ethical argument against preventive detention rests on the claim that doctors do these detained patients both a wrong, and a harm. Other related dilemmas include the question of how far any social group should infringe the liberty of members in order to protect its members; and the validity and reliability of risk assessments as a justification for measures which do restrict liberty. This conceptual question contradicts notions of the moral neutrality of medicine, and raises again, but in a different setting, the questions raised by Szasz about psychiatry as a covert measure of social control.
Many forensic patients do suffer from illnesses, for which they need help and relief, even if their behaviour does not change.
Ethical and Legal Issues for Mental Health Professionals: In Forensic Settings
However, treatments that make offender patients feel better, but which don't reduce their offending behaviour, may not be welcomed by those who understand the primary duty of forensic psychiatrists to be making people safer. This question of whose benefit should count has an interesting twist in relation to expense.
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If new but expensive anti-psychotic medication significantly reduced offending behaviour, then surely it would be justifiable to allocate resources for that medication. Patients who made a good response to such expensive medication would not only be less dangerous, but also more manageable, perhaps in less expensive settings.
Thus a fairly considerable expense prescribing anti-psychotic medication would result long term in considerable savings, both to the patient and to society. However, this kind of resource-allocation, cost-benefit analysis is rarely done in relation to forensic psychiatry.
In practice, such drugs are very expensive and tend to be restricted; mentally disordered offender patients who might benefit from them end up on cheaper, standard and less effective medications, and detained indefinitely in high security hospitals, which they do not like, and find stigmatising. Of course, such hospitals do provide employment for large numbers of people, and a place for society to hide away unwanted and unattractive people.
Expensive drugs that significantly reduce violent behaviour and thus reduced secure hospital populations might therefore also have other social impacts. The crucial issue of scope relates to the duties of forensic psychiatrists to third parties. There needs to be more discussion about the nature and scope of duties to third parties; especially as they impact on psychiatrists' duty of care to patients. There is a well established tradition in medicine of doctors having duties to third parties; for example, in public health.
But in public health settings, there is no single patient or patients known to the doctor, whose interests will be significantly harmed if the doctor pays attention to the claims of third parties. Furthermore, what is being mooted for forensic psychiatrists is a specific professional duty to protect the public. This would be part of the psychiatrist's duty of care; it would go beyond any normal duty of a citizen to prevent violence, and would resemble the duties of law enforcement agents.
It may be argued after the well-known case of Tarasoff 6 that there is a duty to warn and protect identifiable third parties. Increasing information about risk would justify a greater claim on the part of those third parties.
Ethical and Legal Issues for Mental Health Professionals: In Forensic Settings by Steven F. Bucky
But this position is rather different from that which argues that psychiatrists have a primary duty of care to protect the public from harm from offender patients. At present, if an ordinary citizen makes threats to kill someone, the police may or may not act depending on whether they think the citizen has actually breached the relevant statute; however, if an individual with a history of mental illness makes a threat to kill, then it is sometimes claimed that psychiatrists should immediately detain that person indefinitely against his or her will.
I would argue that forensic psychiatrists do have duties to third parties in certain circumstances, but do not have an overall primary duty to protect the public. If, however, after public and professional debate it was determined that there was a primary duty, specific to forensic psychiatrists, to protect the public, perhaps arising from their specialist knowledge, then this change should be made explicit and forensic psychiatrists should become like other professional groups whose duty is to protect the public. Extra training would be required to make forensic psychiatrists conversant with relevant types of law; their new duties should be explicitly stated in their contracts, and relevant advice should explicitly be given to patients.
I hope that I have demonstrated that complex ethical dilemmas arise daily in the management of patients by forensic psychiatric services. I have not even touched on more conceptual questions, such as how mental illness might excuse; or related legal issues, such as the ethical dilemmas that arise in relation to psychiatrists giving expert evidence.
Our American counterparts face starker dilemmas in relation to giving testimony in cases involving the death penalty. Many of the questions raised have complex profound philosophical concepts and dilemmas at their heart; I look forward to future articles in the journal, in which philosophical analysis may help to elucidate profound and painful problems in forensic psychiatry.
Also by George Stricker
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