Balance and Change in Forensic Psychiatry

The American Academy of Psychiatry and the Law (AAPL) has stressed the virtue of balance in the preamble of its ethics guidelines, noting the importance of balancing competing obligations to the individual and society.¹ The forensic psychiatrist encounters the need for balance routinely and in a variety of areas.² In expert witness work, thoroughness must be balanced with conciseness. In daily life, personal duties and goals must be balanced with professional duties and career goals. The accelerated rate of change in technology, society, and politics prompted President Biden to remark in late 2022 that “America is at an inflection point.”³ An inflection point refers to a radical event that changes the course of reality.⁴ Artificial Intelligence (AI) and AI-powered surveillance systems will give further momentum to the current inflection point causing “our technological landscape” to be transformed (Ref. 5, p 475).⁵ When a significant inflection point occurs, it is usually necessary to adapt while maintaining balance. As a noun, balance can refer to a state of equilibrium or harmony. To have balance may indicate an awareness of competing viewpoints resulting in greater objectivity and rationality. Balance is an understated value with multiple connotations including stability, as well as a means of discerning and judging.

From the time of the alienist until the present, forensic psychiatry managed to balance itself somewhere between psychiatry and forensic-legal medicine.⁶ This has heretofore been accomplished by pursing “a dynamic balance between clinical empathy and rationality” (Ref. 7, p 252). While the ethics values of medicine are applied to forensic psychiatric treatment, the ethics of forensic-legal psychiatry have been described as “consequentialist.”⁸ Forensic psychiatric experts are obliged to balance competing obligations to the individual and to society. In seeking to maintain this balance, AAPL stresses that forensic psychiatrists should be bound by the following ethics principles: respect for persons, honesty, justice, and social responsibility.¹ The challenge now faced by medicine, and thus forensic psychiatry, is that information now flows too fast for a single individual to keep pace. One reasonable solution to consider involves leveraging certain skills and approaches. The rate of change in psychiatric knowledge ultimately leads forensic psychiatrists to a “desirable narrowing of focus” to best strive for “maximal proficiency.”⁹ I propose that adaptation may be promoted through teamwork, technology, and returning to a balancing touchstone when necessary. Before addressing these three proposals, let us first return to one of the most significant historical challenges to the balance of psychiatry and what might be learned from its outcome.

Osheroff v. Chestnut Lodge

From the Osheroff case we may learn something about the hybrid nature of psychiatry and the importance of balance.¹⁰ The plaintiff in this milestone case was 42-year-old Dr. Ray Osheroff, a nephrologist who was admitted to Chestnut Lodge in 1979. He had psychosocial stressors, was in his third marriage, and experienced periods of depression and anxiety. In the past, he had been treated with tricyclic antidepressants (TCAs) and individual therapy with moderate improvement, but like many, he had difficulty adhering to treatment. He was treated at Chestnut Lodge for a period of about seven months with exclusively psychoanalytically oriented therapy. He deteriorated significantly, developing a severe agitated depression. His family intervened and facilitated his transfer to Silver Hill Hospital, where he was treated with a TCA and an antipsychotic medication. He improved and was discharged after approximately three months and sued Chestnut Lodge, alleging, among other things, negligent treatment and failure to obtain full informed consent by not disclosing and discussing alternative treatments. The contrast between the two hospitals’ approaches represented the dichotomous thinking prevalent in psychiatry at the time. While Silver Hill focused on Dr. Osheroff’s biological depression, Chestnut Lodge focused on long-term psychotherapeutic change through dynamic psychotherapy.

In Osheroff, biological and psychoanalytic psychiatry clashed in an epic battle. Proponents of biological psychiatry were convinced that true progress was only to be found in evidence-based randomized controlled trials. Proponents of psychoanalytic psychiatry instead sought to rely on their observations of the dynamic aspects of human nature. To listen to both sides at the time was to discover that there appeared to be no middle ground. Although the case was settled out of court in the mid-1980s, it is considered “an important historical moment of transition in modern psychiatry” (Ref. 11, p 423). It was after the case settled that the battle between biological and psychoanalytic psychiatry took place in the pages of the American Journal of Psychiatry. Arguing from the corner of science was the eminent biological psychiatrist Gerald Klerman, MD, who had served as a plaintiff’s expert. Representing the corner of psychoanalytically informed psychiatry was Alan Stone, MD, who was not an expert in the case, but of course a “dominant figure in the ethics of psychiatry and forensic psychiatry,”¹² who had also served as an APA president.^12,13 Klerman went as far as stating that there should be a legally recognized “right to effective treatment” and stressed the primacy of the randomized controlled trial.¹⁴

Concerned that Klerman had gone too far, Stone cautioned about embracing a “universal rule set by one school of psychiatry for the others” (Ref. 11, p 421), and pointed out the complex co-occurring psychological issues involved in Osheroff’s recovery. Stone also warned that Klerman’s edicts may “repudiate the traditional commitment of both the law and psychiatry to diversity” (Ref. 11, p 425). After Osheroff, and particularly during the so-called decade of the brain, the schism widened between “a reductionist scientific method, as manifest in evidenced based medicine, and that of a narrative form of knowledge derived from clinical experience” (Ref. 15, p 343). As for how biological psychiatry allowed its knowledge and efforts to become subservient to the pharmaceutical industry, one is left to wonder if this was not part of the consequences dreaded by Stone. The dichotomy highlighted by the Osheroff case reflected the general imbalance arising in the field of psychiatry. Over 40 years later, psychiatry finds itself reckoning with the limitations of biological psychiatry and having to balance neuroscience with psychodynamic tradition.¹⁶ We may inquire if psychiatry has fully recovered from the Osheroff imbalance and if so, to what degree. Placing too much weight on one school of thought and too little on the other produces a lack of balance that is required in psychiatry.

The AAPL Tree of Knowledge

For the past five decades, AAPL as an organization has focused on cultivating excellence in forensic psychiatric practice, teaching, and research, rather than focusing on advocacy. Our forensic colleagues in the UK have properly noted that AAPL “took a different path” from countries in which forensic psychiatry is primarily clinically focused.¹⁷ In an eloquent summation, Grounds¹⁷ observed that AAPL’s “mission was education, and they became scholars …. As befitted their scholastic pursuits, they named their order after the fruit of the tree of knowledge and became known as the Order of the Apple” (Ref. 17, p 1). Building upon Grounds’ apt metaphor, it can be said that the roots of the AAPL tree of knowledge took hold in 1969, growing stronger and anchoring it to the forensic legal landscape.

Changes requiring successful adaptation require thoughtful, effective analysis and decision making. Recall that there was once a time when forensic psychiatry in the United States was considered unethical by some. In response, AAPL leaders were profoundly thoughtful and balanced and set about crafting ethics guidelines which have sustained the organization to this day.¹⁸ AAPL was able to adapt and make effective changes that were virtuous and ethical, and strengthened the organization. An ardent move to embrace more advocacy encounters the problem of which concerns to advocate for and where to place boundaries on advocacy efforts. This has been done quite well for many decades by the AAPL Executive Council, but primarily for carefully chosen legal cases of clear import to psychiatry and the law. If AAPL moves toward greater advocacy, it will be even more crucial to tend to the tree of knowledge. Further, caution is necessary before walking too far out on a new or under-supported limb. Other questions arise when considering a departure from certain practices that have become traditions. Should there be a separate tree? A tree of social justice? Would this be redundant by merely planting trees that the APA has already planted? Would we risk losing ourselves in the forest? The tree of knowledge already requires a resolute and passionate team to support it properly. As the AAPL tree of knowledge grows, so must the team. This is a good thing in that more team members contribute a wider array of vital nutrients required for growth.

I believe it is important for AAPL to maintain its reputation as an organization striving for reliable, objective assistance to the courts. Yet I also believe there is an important place for advocacy when thoughtfully and effectively done. This latter endeavor will require careful consideration, planning, and collegial debate. Keeping this in mind, I suggest proceeding in a careful, thoughtful, and balanced manner. A famous painting by Zen Master Hakuin Ekaku comes to mind. Hakuin lived from 1686 to 1769 and is one of Zen Buddhism’s most influential figures.¹⁹ He believed that working for the benefit of others should be of primary concern, and he used his calligraphy and paintings to convey visual truths and teachings. Hakuin’s famous work, Blind Men Crossing the Bridge, depicts what appears to be a fallen tree limb stretching across a chasm.²⁰ Several blind people are carefully progressing along this dangerous bridge, feeling their way forward with limbs and walking sticks. While great art often has many levels of meaning, one interpretation is that it is a metaphor for the precariousness of life. We recognize that we are all like the blind person, and must cautiously grope our way forward in many aspects of life. Being alert and present, we might make it safely across. Despite the seriousness of the message, it nevertheless has a calming and clarifying effect.

The precise way to proceed will be the task of AAPL and its Executive Council, but there is much preliminary work to be done in terms of AAPL developing a custom of regular, cooperative, and productive dialogue among its members. To these ends, I offer two suggestions for consideration: preserve the AAPL tree of knowledge, and engage in more civil discourse. As an organization first established to promote “excellence in practice, teaching, and research in forensic psychiatry,”²¹ AAPL has created and developed a respectable reputation for scholarship, forensic-legal analysis, and service to the legal system. Preservation and advancement of AAPL’s dedication to forensic science is imperative. A failure to do so risks much, including the success of any agreed upon advocacy efforts in the future. The challenging task will be for AAPL to promote and engage in more meaningful civil discourse. By civil discourse, I refer to open and respectful dialogue that seeks mutual understanding and authentic engagement. While politeness focuses on appropriate codes of conduct, it is equally important to invoke responsiveness. Responsiveness means that the civility being applied is cooperative and involves a fair-minded willingness to listen to the other.²²

Dialogue and Civil Discourse

The overarching goal would be to preserve and continue to build upon AAPL’s forensic science mission, while balancing it with important advocacy efforts. This will require tolerance and open discussion, debate, and respect for fellow AAPL members at all stages of their careers. What is needed is more meaningful dialogue and deliberation. Dialogue does not place primacy on winning an argument. It is a “collaborative and relational process to engage with others and cocreate meaning” (Ref. 23, p 21). The dialogue I refer to is one in which both sides are open to new ideas and are respectful to each other, even while disagreeing. Deliberation is the process that allows a diverse group to come to collective decisions. Where competing imperatives exist, thoughtful deliberation may be used to clarify the collective judgment. Productive dialogue and deliberation require certain ground rules, especially for public discussions. For example, conflicting viewpoints are to be expected. Differences are to be politely examined. If possible, common ground and understanding should be sought.

Piel²⁴ observed that in forensic psychiatry, it is important to distinguish between types of advocacy when considering legislative advocacy efforts. Piel found that advocacy in medical education remains “amorphous,” and few programs offer organized education on the subject. This suggests that greater clarity about advocacy may be needed by AAPL prior to moving forward on various advocacy projects. Advocacy is defined as support of an idea, plan, or way of doing something.²⁵ Advocacy stresses the act of interceding, urging, or pleading. Traditionally, advocacy by physicians involved support for policies or actions that advance patient health care and the profession.²⁶ This traditional model of medical advocacy can be distinguished from social justice advocacy. The American Medical Association (AMA) has clarified that it considers “social justice” to be related to the “structure of power relations in a society” (Ref. 27, p 45). Thus, social justice advocacy is intimately associated with social and political beliefs that may have more distant connections to the procedures of medical practice or advancement of the profession. Because of the strong sociopolitical nature of social justice advocacy, some social justice concerns may be polarizing, or lack consensus among AAPL members.

For approximately the past decade, it has become increasingly difficult to discuss complex or divisive issues in educational institutions and society. Professionals in higher education have had to accept that they “live in divisive and polarizing times, often remaining in comfortable social bubbles, and experiencing few genuine interactions with people who are different or with whom we disagree. Stepping out and turning to one another is difficult but necessary” (Ref. 23, p 1). Thus, educators are keenly aware of this challenge, as well as the most viable solution: focusing on respectful dialogue and deliberation. At the present time, higher education remains worried about “increased polarization” threatening “meaningful civic discussion,” which is antithetical to empathy and greater understanding.^22,28 The cost of this division and isolation in separate ideological echo chambers has been the loss of meaningful dialogue and collaborative work.

A failure to develop meaningful civil discourse seems likely to create a vicious cycle leading to more division and misunderstanding. Thus, I conclude that more meaningful dialogue and deliberation is needed in settings that are authentic, respectful, and productive. Should this initially prove too daunting, AAPL might consider collaborative efforts to produce aspirational ground rules for its public discussions and civil discourse. Such aspirational rules need not be onerous and could be focused on cultivating a welcoming forum for all AAPL members. Maintaining an atmosphere of respect, compassion, curiosity, and comfort with differing viewpoints all seem to be consistent with professionalism in the field, regardless of the venue. In sum, these are qualities AAPL should be inclined to foster and model for all members.

Teamwork

The field of medicine itself has adapted over the decades, morphing from the independent physician model to the medical team model. This was best described by neurosurgeon and writer Dr. Atul Gawande in 2011 upon giving his graduation speech to Harvard Medical School.³⁰ Gawande’s lecture, titled “Cowboys and Pitcrews,” was both prescient and prophetic. The message was that “medicine’s complexity has exceeded our individual capabilities as doctors.”²⁹ Thus, he points to the best and most reasonable solution available to us at present: we must rely on teamwork. Gawande adds that such teamwork can be creative, daring, and gratifying. The skills and experience derived from good teamwork pay dividends to each team member that are lasting and productive. With good teamwork comes the recognition that other team members can increase the chances of success and decrease the possibility of failure due to oversight.

Gawande’s advice on teamwork applies extremely well to forensic psychiatry and there are numerous areas in which to apply collegial collaboration. Forensic and correctional treatment settings cannot function without effective teams. A prominent example of this is forensic psychiatry’s recognition of the necessity of correctional officers as vital members of the mental health team.^30,31 The importance of teamwork can be found in many other areas of forensic psychiatry. The consensus that threat assessments are best done by a multidisciplinary team is yet another example. The multidisciplinary threat assessment team ensures effective coordination and communication across disciplines and organizations.³² This is critical for leveraging the benefits of various perspectives, expertise, and insights to address threats of targeted violence. I have been privileged to witness and experience the high level of efficiency, thoroughness, and reliability of the forensic team interview style when performing astronaut fitness evaluations for NASA.³³ Team members bring their own area of expertise and unique skills, which result in an evaluation that is comprehensive, inclusive, and balanced. Expanding on this model, the concept of forensic psychiatric investigative teams consisting of case-relevant specialists seems to be an approach worth exploring.

Upcoming generations of forensic psychiatrists have much to be enthused about, as there are vast and uncharted areas of forensic psychiatry to explore. Little has been written about best approaches to fundamental methods such as crime scene visitation,³⁴ or analyzing various types of behavioral evidence left by a defendant.³⁵ Forensic psychiatry investigative teams would be well-suited to develop systematic, organized protocols to reduce the likelihood that key data might be neglected. Forensic psychiatry interview teams hold promise not only for enhanced thoroughness, but also for improving interview style, objectivity, and recognition of cognitive bias in forensic psychiatric assessment.³⁶ One may not fully grasp one’s limitations until one has had other trained forensic psychiatrists and psychologists in the same evaluation who can constructively critique one’s opinion or evaluation style. This seems a logical adaption in an age of accredited forensic psychiatry training programs, where the concept of team consultation and supervision are already familiar procedures.^37,38

Technology

Man has, as it were, become a kind of prosthetic God. When he puts on all his auxiliary organs, he is truly magnificent; but those organs have not grown on him and they still give him much trouble at times.

—Sigmund Freud (Civilization and Its Discontents) (Ref. 39, p 38–9)

The AAPL tree of knowledge began to grow a small sapling branch called technology. That branch has grown over time and new saplings now grow off the original branch. AAPL will require numerous teams to prune and guide these new outgrowths. This will become a critical area during this accelerated period of technological progress. Advances in technology often progress much faster than we are prepared for, and this will likely present many challenges for AAPL, including proper objective use of technology and the ethics of surveillance technology. In only two or three decades the Internet and smartphones have dramatically altered our lives, producing both intentional and unintentional changes to our existence.⁴⁰ For forensic psychiatry, much of our evaluative database will consist of digital forensic science data, social media analysis, and behavioral analysis of real-time video. Forensic evaluations via videoconferencing seem likely to become routine given their efficiency, safety, and reliability.⁴¹

The field of medicine now relies on the smartphone as it once did the stethoscope. The smartphone has been described as the “clinician’s artificial organ,” and physicians now rely on this technology for effective communication, patient care, and reducing medical errors.⁴² We should examine how forensic psychiatrists make effective use of their smartphones. This is an area worth exploring for both forensic treatment efforts and forensic expert consultative work. We should similarly examine how smartphones can be best utilized in forensic fellowship training. Because this remained an unexplored question, it prompted an anonymous, unpublished survey of forensic psychiatry fellowships in the United States.⁴³ Ten survey questions were sent to 48 forensic fellowship directors and 73 forensic fellows. A total of 54 responses were received. The vast majority of fellowships (89%) reported using smartphone texting for communication between fellows and supervisors. But slightly less than half (46%) utilized a group text option to communicate. Of those forensic fellowships using texting to communicate with fellows, a majority (73%) felt that smartphone texting improved the supervisor-supervisee relationship. Less clear were the responses to questions about boundaries and whether fellows felt uncomfortable with certain texting styles and practices.

The impending tsunami of technology was foreseen by Dr. Thompson who focused on it in his 2019 AAPL Presidential address. Dr. Thompson stressed the “life-changing technological innovations related to the practice of forensic psychiatry” that have the potential to “render our society almost unrecognizable in the near future” (Ref. 44, p 18). It will be clear to any practicing forensic psychiatrist in 2024 that the tree branch of technology has grown into a major source of evidence that can become the center piece of a criminal case or a disputed aspect of a civil case. Relevant technological evidence must be carefully analyzed for use in opinion formation, decision making and practice improvement.

Google, Facebook, Twitter, and related platforms can capture critical behavioral evidence. Smartphones continuously gather data about behavior, location, and communications.⁴⁴ This was seen most recently in the high-profile double homicide case of lawyer Alex Murdaugh who was recently found guilty of murdering his wife and son. Investigators had access to a wealth of key information from the smartphones of Alex Murdaugh, his wife, and son. The data included not only texts, calls, and video, but also “steps recorded, apps asking for information, GPS locations” and other changes in the phones’ spatial orientations.⁴⁵ It is predicted that AI powered surveillance systems will soon be used for real-time facial recognition in public spaces. Such systems will be capable of storing data so that it can be accessed for use retrospectively.⁴⁶ At the present time, forensic case files consume many terabytes of data. Very soon, the ever-expanding terabytes of data will become unmanageable by humans alone. Large language models and generative pretrained transformers (GPTs) are already being used to search, recognize, and summarize vast amounts of data.

The field of Digital Forensic Science is in its infancy but is rapidly evolving as law enforcement and the criminal courts have come to understand its importance.⁴⁷ Forensic psychiatrists will need to keep pace with this evolution of digital evidence. Digital Forensic Science is defined as: the use of scientifically derived and proven methods toward the preservation, collection, validation, identification, analysis, interpretation, and presentation of digital evidence for the purpose of facilitating reconstruction of criminal events.⁴⁸ Forensic analysis of an evaluee’s texts and social media postings may be relied on to provide real-time data which can increase accuracy of inferences about mental state, motive, or knowledge of wrongfulness at the time of an offense.⁴⁹

A variety of new technologies are being implemented in mental health care as well. Thus far, such technologies have involved passive monitoring and machine learning, which capture behaviors and provide objective data regarding mental states.⁵⁰ Application of these technologies to the clinical forensic population, as well as criminal and civil forensic evaluations warrants careful consideration. Here is an area in which AAPL can help guide the proper acquisition and use of digital information.⁵¹ Although the courts will need to define the limits of “digital discovery,”⁵² forensic psychiatrists should assist with research and outlining best practices.

Conclusions

Among the maxims on Lord Naoshige’s wall there was this one: “Matters of great concern should be treated lightly.” Master Ittei commented, “Matters of small concern should be treated seriously”… Thinking about things previously and then handling them lightly when the time comes is what this is all about.

—Hagakure (Ref. 69, p 33)

Balance requires adaptation to changes. Recently, we have experienced many changes requiring adaptation, such as technology, information overflow, and important sociocultural changes. All these areas have had, and will continue to have, their effects felt in psychiatry and forensic psychiatry. Psychiatry remains a critically important medical specialty; arguably even greater now with increasing recognition of postpandemic mental health problems and increasing anxiety and depression among young persons. I believe that balance and teamwork have played significant roles in psychiatry’s continued importance and recognition as a vital medical subspecialty. Similarly, both psychiatry and forensic psychiatry will need to continue to strive for balance, perhaps even more so, during this time of change. For forensic psychiatry, the two aims of forensic scientist and forensic mental health advocate must be balanced. AAPL has always been inclined to careful analysis, deliberation, and balanced decision making. The balance of the middle path is a time-tested aphorism in the law, as well as many philosophical and wisdom traditions. It suggests the avoidance of extremes in the face of a dilemma. While being aware of the extremes and thus respecting them, the middle way provides broadness of vision, knowledge, and insight. At the present time, during substantial technological, social, and cultural change, I stress the importance of balance, teamwork, technology, and touchstone.