Should AAPL Enforce Its Ethics? Challenges and Solutions

The Regulatory Reality

Despite its use as a resource document in ethics adjudications, AAPL's code of ethics is not easily considered regulatory. There are admonitions against examining a defendant before access to counsel and a prohibition against participating in torture. However, the intent and language are more aspirational and educational, an observation made by many of those who have written and revised The Guidelines over the years. Indeed, the code's aspirational Preamble notes that AAPL is dedicated to the “highest standards of practice in forensic psychiatry.”

Certainly, the AAPL Guidelines could become regulatory merely by virtue of a parent organization's (e.g., AMA or APA) intent to enforce them and establishing a process for doing so, but there is no such process in place. In fact, before a district branch (DB) reviews an ethics complaint, the alleged misconduct must first be framed as a violation of the applicable APA Principles and their Annotations. The APA Annotations form the applicable standards for investigation and adjudication in the same way that laws, regulations, and case law form applicable legal standards in criminal, civil, and administrative procedures.

Problems arise when the APA Annotations do not address the specific areas of ethics risk in forensic psychiatry. The result is that ethics adjudications of forensic psychiatrists rely on a set of regulatory standards that may be a poor fit for the conduct that is being judged. Forensic psychiatrists may not be sufficiently protected. In adjudication, then, the Guidelines give way to the Annotations. In fact a DB, which is technically bound only to APA standards, is under no obligation to consider the AAPL Guidelines at all.

How does this work in practice? Of the nine AMA Principles and their APA Annotations, there are two principles and one annotation that are most often relied on to assess the conduct of a forensic psychiatrist:

• AMA Principle 2: “A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.”¹

• APA Annotation 3: “A psychiatrist who regularly practices outside his or her area of professional competence should be considered unethical. Determination of professional competence should be made by peer review boards or other appropriate bodies.”²

• AMA Principle 4: “A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.”¹

How might these regulatory principles be applied in a forensic psychiatric complaint, and how would they differ from the more aspirational AAPL Guidelines? Consider a hypothetical but common complaint against a testifying expert. The complaint alleges that the expert's testimony was unethical because of some or all of the following: the expert misrepresented his expertise, testified beyond his expertise, and testified in a biased and misleading fashion.

The findings, if any, of the DB will be most influenced by consideration of the APA's “standards of professionalism,” and whether the psychiatrist was “honest in all professional interactions.” Some forensic psychiatrists and others familiar with the controversy over the status of medical testimony argue that testimony is not the practice of medicine. They assert, correctly, that there is no offer of treatment. Moreover, in the absence of a clinical context, the ethics rules concerning patients and relationships with physicians do not necessarily apply. Conversely, the AMA's Council on Ethical and Judicial Affairs (CEJA Opinion 9.07), has left no doubt that it considers medical testimony the practice of medicine.⁷ This tension is left to the DBs to resolve and underscores a persistent observation about the lack of interpretive standardization across district branches.

The AMA Principles and APA Annotations apply to such cases in a broad way and are judged by such general factors as whether the testimony was honest, competent, and free of deception. The AAPL Guidelines, although they directly address the ethical aspects of testimony, are not the first-line resource for deciding the question.

It is open to argument whether testifying outside one's expertise is analogous to practicing outside one's expertise. Some may argue that if Principle 2 applied to testimony, it would say so explicitly. An expert's credentials and expertise have central importance in medical testimony. They are keystones to the court's admission of expert testimony and to the expert's credibility. If credentials and expertise were relevant to this critical function, the Principles would say so. Their silence is more consistent with the relatively small role that the description of a physician's training and experience plays in the patient encounter. The Principles offer no specific guidance on how to apply this forensic standard of professionalism beyond the general language provided by AMA Principle 2.

Similarly, allegations of bias against a testifying expert are not uncommon. Yet, the APA Annotations give no guidance on how to frame the understanding of improper medical testimony. Forensic commentators argue that poor testimony is not necessarily synonymous with dishonest testimony.⁸ Yet, unlike AAPL's Guidelines, there is no guidance in the Annotations about what constitutes honesty in a forensic context. In fact, the AAPL Guidelines accept bias as inevitable, noting that experts should strive to reach an objective opinion.

In addition, the word “regularly” (e.g., “who regularly practices outside his or her area”) in Annotation 3 confers ambiguity. Does “regularly” mean testifying unethically across many trials, or many times in a single trial? Meeting the probative standard of multiple trials may be difficult for resource-poor ethics committees, whereas the standard of a single trial may be unduly harsh for an expert who makes an uncharacteristic misjudgment in a single case.

In contrast to the relative silence and ambiguity of the Annotations, AAPL's Guidelines offer more direct guidance to members of the organization, the public, and investigators. For example, AAPL's Guidelines are specific in defining the ethics-based description of credentials: “Expertise in the practice of forensic psychiatry should be claimed only in areas of actual knowledge, skills, training, and experience.”⁵ By using the conjunction “and” rather than “or,” AAPL underscores that expertise rests on a foundation of not one but several pillars. Knowledge acquired in a library is no surrogate for actual training and experience.

Similarly, on the topic of avoiding partisanship in an adversarial proceeding, the Guidelines offer ethics guidance that goes beyond purely regulatory language: The adversarial nature of most legal processes presents special hazards for the practice of forensic psychiatry. Being retained by one side in a civil or criminal matter exposes psychiatrists to the potential for unintended bias and the danger of distortion of their opinion. It is the responsibility of psychiatrists to minimize such hazards by acting in an honest manner and striving to reach an objective opinion. Psychiatrists practicing in a forensic role enhance the honesty and objectivity of their work by basing their forensic opinions, forensic reports, and forensic testimony on all available data. They communicate the honesty of their work, efforts to attain objectivity, and the soundness of their clinical opinion, by distinguishing, to the extent possible, between verified and unverified information as well as among clinical “facts,” “inferences,” and “impressions.” Psychiatrists should not distort their opinion in the service of the retaining party. (Section IV)⁵

The Guidelines do not attempt to provide a simple or binary answer to a complex question. They provide educational guidance for reasoning about a complex set of circumstances. They remind practitioners and reviewers that an opinion of what is medically true should include all available data and not just those that may be most supportive.

Consequently, the Guidelines' aspirational text does provide context for APA DBs, whose ethics committees are frequently required to review and adjudicate forensic ethics complaints. Although APA DBs have traditionally focused on enforcing the Annotations alone, it is not uncommon for DB members to consult the AAPL Guidelines or other resources to shed light on forensic cases. In fact, this practice is becoming not only more common but necessary as the field grows increasingly complex, specialized, and fragmented. Nonetheless, it remains optional, meets occasional resistance, and leads to variability among DBs. DBs are under no obligation to consult outside sources.

Without greater consensus and discussion within AAPL we cannot resolve here the question of whether the AAPL Guidelines should apply to psychiatrists who are not members of the organization. As aspirational guidelines that reach beyond minimal regulatory standards and aspire to the kinds of ideals we strive for in our profession, they may be considered to apply to all who practice forensic psychiatry.

However the Guidelines simply do not hold with the same rigor if a psychiatrist is not formally bound to the professional organization. AAPL is a voluntary organization with an educational, scientific, and charitable mission that cannot easily extend its jurisdiction and apply an enforcement framework that it specifically defers to the APA. Indeed, the 1986 Healthcare Quality Improvement Act provides civil immunity to healthcare agencies that engage in regulating their members, but does not extend beyond the membership.⁹ The landmark decision of Austin v. American Association of Neurological Surgeons (AANS), in which Dr. Austin, a neurosurgeon and member of AANS lost his lawsuit against the organization that sanctioned him, underscores the relationship between members and the organizational code of conduct.^8,10

One resource document that regularly provides a model for considering aspirational documents is the APA Opinions of the Ethics Committee on The Principles of Medical Ethics (Opinions).¹¹ Often consulted by DBs, the Opinions contain a five-page section devoted to “Forensic Issues.” However, this booklet is in part a historical document, the opinions are only those of the APA Ethics Committee, and it does not represent formal APA policy. Nonetheless, the Opinions contain specific examples of forensic conduct and reasoning about its ethics, providing reviewers with increased insight on specific topics. The AMA Code of Medical Ethics, too, is a resource with some direct forensic relevance. Occasionally consulted by ethics committees, its pertinent sections include forensic topics such as the relationship between ethics and the law, confidentiality, the attorney–physician relationship, independent medical examinations, and medical testimony.

Our contention is that the AAPL Guidelines can fulfill a formal regulatory role for DBs as they consider ethics complaints. The Guidelines address, for example, the interface of confidentiality and informed consent in different legal settings. They address as well the conceptual duty to maintain honesty and strive for objectivity within an adversarial interaction. Moreover, an entire section is devoted to accurate identification of qualifications and expertise, a section critical to the courtroom where qualifying the expert is a vital gate-keeping function. In forensic circumstances, the Guidelines can offer important context to a DB ethics committee applying APA Annotations.

At first glance, however, the APA Annotations do not seem to allow much room for the consideration of subspecialty aspirations. They draw much of their power from their regulatory language: the brevity, terse tone, prevalence of “should” language, and the practice of using it in adjudicating ethics complaints is testament to this reality. Moreover, the Principles are those of the AMA, with the APA Annotations provided to give examples of how the principles apply to the special circumstances of psychiatry. However, although AAPL, APA, and AMA are separate organizations, a strong historical, professional, and organizational bond exists among them. The AMA House of Delegates includes representatives from the APA and AAPL. AAPL membership is contingent on the members' agreeing to abide by APA ethics, and AAPL members must also abide by the AMA Code of Medical Ethics. The links between the ethics of medicine, psychiatry, and forensic psychiatry invite application of the subspecialty's Guidelines.

The problem, as we have seen, is that an AAPL member responding to an ethics complaint is adjudicated according to The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry and not according to AAPL's Ethics Guidelines. The APA has never formally adopted AAPL's Guidelines and, in the absence of this regulatory endorsement, cannot use them as the basis for a finding of ethical misconduct. The Guidelines solely clarify requirements within the APA framework, and that only inconsistently across DBs.

We argue that, for forensic ethics complaints, the enforceable regulatory Annotations may not provide enough of a moral or informational framework to resolve them. In these circumstances, DB ethics committees should reach beyond the Annotations to the AMA and AAPL to provide fair and informed analysis of alleged infractions. If AAPL's Ethics Guidelines are truly intended, as stated in their Preamble, to “supplement the Annotations Especially Applicable to Psychiatry…” recognizing them explicitly for regulatory purposes may be an important addition to the process of reviewing complaints and would also establish transparent organizational permission for their use.

We consequently propose that DBs consult subspecialty members during forensic ethics cases, and that APA and AAPL collaborate to add wording to the APA Procedures to encourage DBs to review documents from allied organizations like AAPL and AACAP.

The Implications of an Aspirational Standard

Recent developments in forensic ethics offer additional justification for this approach. Griffith and others^12,–,14 have underscored the importance of social context in practicing by a professional code: neither practice nor code exists in a vacuum, but rather in a complex setting of values and perspectives. At a time when aspirational meant going beyond what is required,^15,16 Griffith's call for cultural sensitivity in forensic work challenged ethics theories to go beyond the more regulatory requirements of forensic practice. Presenting the cultural narrative of nondominant defendants in reports and testimony challenges practitioners to aspire to conditions that are not yet present in the legal system. Earlier commentators had merely underscored a legal (or clinical) foundation for forensic ethics, advocating a focus on prosecutorial or defense needs, with one prominent theory calling for an elevation of principles of justice and truth-telling.^17,–,19 Such approaches did not always provide guidance when parties were not actually seeking the truth and when the legal system provided limited opportunity for the forensic expert to foster justice. The evolution from this early approach required more of regulatory codes and ethics committees, an aspirational standard.

To certain writers, this more aspirational approach was an opportunity to give real-world meaning to the subspecialty's Guidelines.^15,20 It acknowledged multiple cultural perspectives and approaches in forensic ethics, drawing on the viewpoint of the evaluee, the community, and that of the retaining party. It was not enough to rely on a single framework or set of regulations. By aspiring to a more robust view of professionalism, courtroom experts would be better equipped to avoid unethical practices and the temptations of biased or exaggerated testimony.

The aspirational approach requires more than an appreciation of the perspective of members of nondominant groups. Acknowledging other perspectives also means a familiarity with theoretical approaches that recognize different influences on the expert. The aspirational approach recognizes the uncertainty of applying a single model to all cases. It means developing one's knowledge of the ethics literature, and a comfort with the habits and skills of ethical practitioners. Developing skill in the recognition of ethics-related problems in state and correctional institutions, for example, demands more than a minimalist understanding of regulations and rules. For the practitioners and ethics committees facing ethics complaints, a healthy understanding of the profession's aspirations means raising the ethics bar.

The difficulty for the existing process is that aspirational and educative language is poorly suited for deciding actual cases. Investigators and committees would have difficulty interpreting what it means to strive for objectivity, minimize special ethics hazards, or avoid distortion (Guidelines Section IV).⁵ Common interpretations and language were not yet prevalent in the enforcement of forensic ethics. Also, DB ethics committees and state licensing boards have an uneven knowledge of and sensitivity to forensic matters.

Finally, as we have seen, AAPL's procedures generally refer cases to the APA, and the APA primarily applies its clinically focused and generalist Annotations. Is there a framework that allows procedural change and formal consultation with subspecialty practitioners during ethics complaints? Is there a model that improves the enforcement of forensic cases by finding a middle ground between the more exacting regulatory model and the more ambitious aspirational one?

A Framework for Converging Regulatory and Aspirational Enforcement Standards

Answers would begin to take shape at a debate held at AAPL's Annual Meeting in 2010.²¹ The panelists, the authors of this article, realized that it was possible to fit the two seemingly incongruous models into a framework that supports accepted practices and standards. Indeed, the hindrance could be resources and political will.

Conceptually, we argue that it may be most appropriate for AAPL to enforce its own ethics guidelines. Forensic psychiatrists know the field best, peers are available to analyze cases, and the literature and culture are more readily available. However, liability, limited organizational resources, and insufficient administrative support are major obstacles to this option. On rare occasion, adjudication of ethics complaints (among DBs) has turned expensive when accused physicians and their attorneys mount a particularly aggressive defense. Moreover, a single successful lawsuit for negligently conducting ethics enforcement could jeopardize the financial stability of an organization like AAPL.

Nor is the referral to state licensing boards ideal. Although boards may take on forensic psychiatry cases, they rely on general statutes and administrative regulations, are composed largely of nonpsychiatrists, and are often unaware of the nuances at the intersection of law, medicine, and psychiatry. Their administrative mandate remains the supervision of clinical practice, so that adjudicating standards of courtroom testimony faces the same problem of interpretation and inconsistency found in the district branches. Yet, these boards do have resources and a political mandate to enforce professionalism.

Many of AAPL's ethics guidelines could be enforced according to the APA Annotations should the APA and its district branches elect to do so. Those elements of the guidelines that are clearly aspirational, perhaps because they require discerning the practitioner's intent, could apply less stringently. After all, it may be difficult to determine whether a practitioner has striven to be objective.

Nonetheless, reviewers could determine whether a concrete attempt has been made to obtain basic evidence, such as police reports and defendant psychiatric records in a criminal case, evidence that would be a likely necessity for a thorough review. Determining whether certain minimal requirements were met would be a way to gauge how much striving for objectivity had been exercised.

While striving for objectivity is historically an aspirational standard that individuals can apply in assessing their own behavior, it could be evaluated by a careful review of the actions of accused practitioners. Of course, as some commentators have pointed out, objectivity is often difficult to achieve given the many subjective forces, internal and external, that shape forensic data.^14,22 Ethics committees and reviewers would have to take this into account when trying to use an aspirational standard, even one that can be operationalized by reviewing attempts to gather basic evidence.

As we have seen, the APA already enforces several similarly complex questions of ethics that fall within its Annotations. If the AAPL Guidelines are to be seen as more than an occasional tool for fleshing out the meaning of APA Annotations, it will require AAPL's support and a formal agreement within APA for how it is to be realized. This agreement would require joint revision of associated documents by the organizational memberships (APA and AAPL) and a political process akin to other policy revisions.

Such an approach would necessitate the addition of regulatory language that refers district branches to subspecialty guidelines when needed. Using specialty ethics guidelines in this way reinforces subspecialty expertise in the regulatory process and complements recent trends in APA ethics policy. In the past 10 years, the APA has moved to supplement ethics enforcement with educational efforts (an aspirational strategy), and has established an educational option that can be applied to less serious infractions.^6,23 This alternative educational approach decreases the burden of adversarial procedures, encourages rehabilitation of improper conduct, and implements educational interventions that improve members' understanding of ethics principles. It is also less likely to result in costly legal challenges.

The process may be as simple as an insertion into Part IIB of the Procedures, “Review of Allegations.” For example: DBs may supplement their review and assessment of complaints by consulting subspecialty ethics guidelines. Consulting ethics resources from respected organizations can promote an increased understanding of the nature and context of particular complaints. This practice does not supplant the primacy of the Principles, but aids in their interpretation, given the complex ethics landscape associated with the increased subspecialization of psychiatry. Given the evolution of current enforcement practices, it seems most realistic for the APA to continue to enforce forensic ethics. The APA need not adopt AAPL's Guidelines outright, but most of the guidelines can be referred to and interpreted in ways that incorporate both regulatory and aspirational standards. With stronger representation from the forensic community on adjudicatory committees, perhaps through the presence of an AAPL member on the DB committee that reviews forensic ethics complaints, a closer tie to forensic professionalism could be forged. Certainly, agreement would have to be reached on those areas where there is not yet sufficient concordance to enforce a recognizable standard. Ultimately, the adjudicatory usefulness of the AAPL Guidelines would extend to clarifying the meaning of certain Annotations and assisting in the determination of whether a behavior was ethical or not (Table 1).

We have already intimated how such an interpretive framework could be formed. Where language is explicit and on point, the standards from both the Guidelines and the Annotations would be regulatory: no torture, no evaluation before access to counsel, and no contingency fees (Guidelines), combined with no sex with patients, no fee-splitting, and no unauthorized disclosure of confidential information (Annotations). Where the language offers guidance for reasoning through nuanced questions, such as the differences among facts, inferences, and impressions, or the meaning of striving for objectivity, enforcement using the Guidelines and Annotations together would require not only the presence of forensic expertise but greater consensus in interpreting the regulations.

How might the joint application of Guidelines and Annotations work? As we have noted, the combination of AMA and APA Principles is already used to adjudicate forensic ethics cases. Let us consider how they can be used together with the AAPL Guidelines in a mixed interpretive framework.