Ethical Practice in Forensic Psychology: A Systematic Model for Decision Making
Forensic Ethics and the Expert Witness

Ethics in forensic mental health work is of concern to practitioners and academics. A recent issue of The Journal (Vol. 36, No. 2) was largely devoted to the 25-year anniversary, and 2007 presentation, of Alan Stone's^1,2 provocative challenge to the field to develop appropriate ethics guidelines; or else, to abstain from court testimony or forensic work altogether. The two volumes named above, one on forensic psychology and another on forensic psychiatry, reflect the growing importance of this subject. Perhaps the continued interest reflects or reveals many forensic practitioners’ uneasiness about the ethics and appropriateness of much of forensic work, in contrast to their confidence regarding the ethical status of their clinical work with patients.

These books approach the subject in vastly different ways. There are marked differences in discipline, practicality, thoughtfulness, theory, sophistication, intended audience, presentation, and readability.

Ethical Practice in Forensic Psychology was published by the American Psychological Association and coauthored by three psychologists: two are neuropsychologists, and the third focuses on family law. The authors state that the book is “intended to serve as a text for forensic psychology students, trainees, and practitioners” including “career forensic psychologists.” The book contains seven relatively brief chapters including: “The Interface of Law and Psychology: An Overview,” “The Referral,” “Collection and Review of Information,” “The Evaluation,” “Documentation of Findings and Opinions,” “Testimony and Termination,” and “Addressing Ethical Misconduct.”

Perhaps the most useful chapter is the Overview, in which the authors present their “Proposed Model of Ethical Decision Making in Forensic Psychology.” The authors formulate these eight steps: identify the problem; consider the significance of the context and setting; identify and use ethics and legal resources; consider personal beliefs and values; develop possible solutions to the problem; consider the potential consequences of various solutions; choose and implement a course of action; and assess the outcome and implement changes as needed. The authors use six brief case vignettes to illustrate applications of their proposed model.

The text draws heavily from the 2002 American Psychological Association's “Ethical Principles of Psychologists and Code of Conduct,” which in turn adopts the principalist biomedical ethics paradigm of Tom Beauchamp and James Childress published in Principles of Biomedical Ethics.³ Their approach focuses on the four principles of beneficence, nonmaleficence, justice, and respect for autonomy. Although the Code of Conduct's General Principles are aspirational, and the subsequent Ethical Standards are more proscriptive, these documents are not centered on forensic activities. The 1991 “Specialty Guidelines for Forensic Psychologists” are also used in the text. Because the primary reference point for the text is the Code of Ethics, the volume lacks depth of analysis. At times, this brings a cookbook feel to the discussion.

The authors essentially do not present or discuss forensic ethics theory, given their strict tie to the Beauchamp and Childress principles of biomedical ethics. Without reflection, they stretch beneficence to be subsumed under justice. Cultural concerns in forensic evaluations are mentioned, again with reference to the Psychologists’ Code of Conduct. There is no regard for the historical background of these ethics. There is a brief discussion of forms of evaluator bias in terms of heuristics, but the authors ignore many of the forms of bias described in 2004 by Thomas Gutheil and Robert Simon in Psychiatric Annals.⁴ Objectivity, rather than striving for objectivity—the AAPL Ethics requirement—is cited as the goal of forensic evaluation. Harm to evaluees is reformulated as “unjust harm” to accommodate the negative outcome for some forensic evaluees in the course of serving justice. Generally, there is little that is controversial in this work, given its superficiality and conformity with the Code of Conduct.

The authors’ intended audience and reference point is psychology, not psychiatry, social work, or nursing. There is a striking omission of discussions and citations from the forensic psychiatry literature. For example, the only citation from The Journal is the 1995 edition of the “AAPL Ethical Guidelines.” The book contains a discussion of the use of psychological tests in forensic settings, including the appropriateness of obtaining informed consent before evaluating deception and symptom validity testing for malingering. However, the authors do not examine the ethics involving forensic assessment instruments, assistance to military or law enforcement, and capital punishment. Many aspects of criminal forensic work are omitted. The discussion of report writing is superficial.

It is unclear why the authors limited the breadth and depth of the text, which is relatively brief and succinct. In contrast, many of the law and psychology volumes published by the American Psychological Association are quite substantial. At the end, I was left with the impression that I had not learned a great deal.

On the other hand, the text is highly readable, although the analyses are often repetitive. The authors appropriately emphasize the need for self-analysis, review of the relevant forensic literature, and consultation with knowledgeable forensic experts. They adopt an aspirational approach, encouraging forensic evaluators to improve their forensic knowledge and skills continually. They suggest that forensic evaluators periodically share their work with a colleague in informal peer review, but they omit the utility of organization peer review activity.

The volume is practical, and at times the authors offer reasonable advice on ethics to the reader (e.g., avoid charging higher fees for testimony, avoid preliminary reports, and forgo treating the forensic evaluee). They distinguish the ethics obligations of the trial consultant from those of the evaluator. And I appreciated the last chapter on dealing with the perceived unethical conduct of opposing or treating experts, a subject that is too often ignored. Nevertheless, most experienced forensic clinicians, and readers of The Journal will be better served by reading the volume by Candilis and colleagues, to which we now turn.

The three authors of Forensic Ethics and the Expert Witness are recognized forensic psychiatrists with a substantial interest in forensic ethics. The approach to ethics theory taken here was introduced by the authors in their earlier publications^5–7 in which they champion and incorporate a contextualized, narrative approach into the so-called standard paradigm of forensic ethics offered by Appelbaum.⁸ The latter approach identifies such core forensic mental health values as truth telling, respect for persons, and justice. However, Candilis et al. seek to broaden the Appelbaum theory significantly by ambitiously encompassing Ezra Griffith's concern,⁹ expressed in The Journal in 1998, for cultural considerations, narrative, and other matters, in an effort to resolve the dual-agency dilemmas of forensic work. Their approach to forensic ethics is not merely minimalist, but aspirational.

The book contains three sections: The “Introduction and Overview,” containing two chapters; “Approaches that Guide Ethical Behavior,” containing three chapters; and “Applying Theory to Practice.” An appendix contains the codes of ethics of four forensic organizations.

The first section is a general overview of forensic mental health practice. The authors provide an interesting discussion and contrast the views of Bernard Diamond and Seymour Pollack, in a presentation of this material that I have not seen before. Candilis and colleagues also introduce the Appelbaum theory of forensic ethics, with organizational statements of ethics from the APA and AAPL. Published opinions from the AAPL Committee on Ethics (1995) are reproduced in the book for unconvincing reasons. Next, 10 forensic ethics cases from several disciplines are presented and briefly discussed.

Section Two is the heart of the book. The authors draw on history, philosophy, biomedical ethics, sociology, anthropology, and law when they introduce ethics theories and models. Chapter Five introduces the concept of “forensic professionalism.” The authors opine that a narrow view of forensic ethics and a commensurate forensic role as an objective technician “forgets its roots in the professional values and responsibilities of the health care tradition” (p 117). In support of their argument of an expanded forensic duty, the authors briefly present two cases of court-ordered forensic evaluations of women, one of which has been published.⁴ The evaluator in each case assumes a limited therapeutic role beyond that of forensic evaluator—in one case, identifying a treatment program for the criminal defendant-evaluee, and in the other, intervening when the evaluee's family struggles with her end-of-life decision.

The last and longest chapter departs substantially in format from the earlier material. Using the vehicle of a 1998 article in Current Opinion in Psychiatry by Alfred Freedman and Abraham Halpern¹⁰ on psychiatric involvement in capital punishment, the authors dissect the arguments and present their analysis of appropriate and inappropriate ethical reasoning. This is by no means a cookbook formula by which forensic experts can resolve ethics dilemmas, but an academic discussion.

Of interest, except for two pages at the end of the volume, the authors do not return to the material presented in the first five chapters to summarize their thinking and to consider the next steps for the field, whether provided by these authors or others.

Readers may challenge the authors’ attempt to incorporate narrative ethics, clinical ethics, historical traditions, personal concerns, and others into a new forensic ethic. They write, “Our balancing approach weighs as many approaches as possible” (p 157). They provide only two case examples to support their expanded forensic ethics theory and role. Their wish to include clinical medicine theory and its corresponding duty in forensics may be more applicable to the problem of the forensic evaluator who occasionally strays into “clinical-like” activity, than to the therapist who is asked to conduct a simultaneous forensic evaluation. We may wonder why a new and greatly expanded theory of forensic ethics is necessary to deal with an outlier forensic case.

I was expecting a discussion of hard cases in the boundary and dual-relationship literature in psychology and psychiatry, but it never appeared. Many have written about the ethics and boundary problems in clinical practice in geographically rural, minority, and military communities.^11–13 Consider dilemmas faced by a military psychiatrist on an aircraft carrier who is asked to provide a routine urine drug screen witnessed by a current patient.¹³ Ofer Zur, in Dual Relationships and Psychotherapy, argued that the existing boundary literature is saturated with the view that dual relationships are “depraved” in contrast to the reality.¹⁴ Candilis and colleagues overlooked this contention, which supports their own.

Although the authors preach self-reflection and honesty for forensic experts, they fail to describe the limitations of and problems with their own approach, which tries to include all others. The importance of ethics theory has been described by Beauchamp, who noted that ethics theory (i.e., moral philosophy) has become progressively disconnected from practice in biomedical ethics which is increasingly influenced by law, policy, empirical study, government policies, and international guidelines.¹⁵ Also, Sidney Bloch and Stephen Green in a 2006 article in the British Journal of Psychiatry contend that psychiatry generally lacks consensus for an ethics framework.¹⁶ Should we consider incorporating a broader notion of respect for persons that approximates or incorporates their perspectives? What is the value of a comprehensive perhaps overinclusive forensic ethic and how would we apply it? Of course, all perceptions, interpretations, and expert opinions are value laden, context dependent, and reflective of one's biases and countertranferences. But is this really anything new, and where does it then take us? Does this expanded theory of ethics help us in better setting the boundary of appropriate conduct?

This is a sophisticated, intense, and academic volume most useful to those interested in theories of forensic ethics rather than in solving a particular ethics-based dilemma in practice. The chapters are not self-contained, perhaps because there are three coauthors and an identified editor or because of the nature of the material itself. As Appelbaum aptly notes in the Foreword, the book “is not a guide to action. It will not tell a forensic psychiatrist what to do when faced with a particular dilemma. Rather, it is a guide to thought.” For those readers looking elsewhere, Laura Roberts and Jinger Hoop published Professionalism and Ethics, a useful and thoughtful volume with both theoretical and practical information, but it is not centered on forensic work.¹⁷

Helpful remedies could have included a preface to the book to orient and guide the reader. Also, improved transitions at the beginning and end of each chapter and section, and a summary chapter would be welcome additions to this text. A glossary of ethics terms, perhaps similar to the one offered by Roberts and Hoop,¹⁵ would have been useful.

This is not light reading for the beach; its density, at times, detracts from its accessibility. The language is lofty, and there are many impenetrable paragraphs. The editing in the discussion of ethics theory is fragmented, and at times the reader will struggle. Also, the last chapter deviates from the earlier content and organization. It seems as though it was written by another author or for another publication. The prose, when presented in a question-and-answer format, is more direct and digestible.

Although the organization, editing, and language detract from the presentation of the argument, I can applaud the authors’ ambitiousness and effort. I look forward to subsequent publications extending and supporting their work.

• American Academy of Psychiatry and the Law