"The Treating Psychiatrist Thrust into the Role of Expert Witness," by Thomas G. Gutheil, MD and James T. Hilliard, J.D, Psychaitric Services 2001, Vol. 52 No 11 is essential reading for any psychiatrist caught in the headlights of the court. I have just read this article and realized that I could have been saved serious suffering if I had read this 20 years ago. As it came out in 2001 it would not have saved me from the worst grief I experienced as an 'expert witness' in court. The example they begin with is truly 'every psychiatrist'. They further use a most useful term to describe treating psychiatrist activities, 'patient centred' compared to the court which is definitely not necessarily patient centered. In my personal case the judge was intent on beating me up as badly as they'd been throttling my patient from the get go with the help of the most horrendously biased opinion of a supposedly objective person. All my patient had told me about the discriminatory process was confirmed but in the process I was sucked into the nightmare.
Gutheill and Hilliard suggest "therapists sitting in their offices may legitimately venture informal opinions about third parties solely on the basis of what patients tell them, for supportive effect - for example...Such pronouncements pose no difficulty when the psychiatrist is operating empathically from within the patient's world view and from no other point of reference" However later they say "courts focus on more objective evidence, and in this context therapists should use extreme caution - or refuse entirely - when they are asked to give opinions about a patient or a third party, particularly when litigation is involved.'
Very usefully, Gutheill and Hillard remind us that 'Practitioners should be aware that the more helpful to their patients their letters or reports may be , the greater the likelihood that an opposing attorney will want to depose them and call them at trial."
Their recommendations are most useful and like their whole paper show great experience and insight.
1) "Patients have the right to know what use will be made of communications between their therapists and other parties."
Note here that years ago I have made my work transparent and shared what I have written with my patients. I have never changed the body of the work to alter my opinon but I have at the patients request excluded information that on reflection appeared extraneous and no way serving my opinion but potentially could harm my patient. This was challenged and I had to seek legal counsel who wholly supported my practice. However I was dealling with a reactionary and patriarchal organization that works in extremely secrecy and behind closed doors so they were attempting indeed politically opposed to such transparency. In the end it was not an issue but even something so obvious can cause a physician to encounter difficulties regarding records and record keeping. Increasingly the legal and administrative misuse and outright abuse of physicians clinical records will make clinician record keeping of no benefit for patients and clinicians and solely for the service of third parties. Already I have seen this trend and likelihood and watch my colleagues increasingly not recording pertinent or relevant clinical information out of dire fear of how it might be used by third parties. Given that we take an oath to 'do no harm' we must be aware that third parties are not similiarly constrained. Some third parties I've dealt with have the ethics of a snake and the dna of a cockroach where my patients health and welfare is concerned.
2) 'clinicians should develop the general habit of records sources of clinical data - for example - 'from the nurses notes....." This is a very good idea and one I have used occasionally and will use more often. It's clinically relevant and shows great insight.
3) The "roles of treating psychiatrist and expert witness should usually be separated' . I think this is a great idea and occurs often however I've been subpoened by the courts and as a result of my testimony lost a patient as the therapeutic relationships was destroyed by this process. Recently I told the police my patient shouldn't be allowed to have guns in response to his request only to have him come to see me belligerent and frankly frightening. I've not seen him since and believe that society would have benefitted from our continued relationship even though I suspect he's off finding some psychiatrist who approves of his gun ownership as a result of what I believe was a breach of confidentiality. However in fairness, the patient may well have figured he was denied gun ownership and figured it was because of me.
4) Gutheil and Hilliard recommend it as wise to seek advise from local counsell such as that which represents doctors when in doubt. Excellent thought. I've found this to be true and learned immensely useful information from the counsell that helps doctors in general. I've found that our CMPA has saved me even worse balderdashes than those I've been involved in because I've phoned and discussed my situations with their representatives learning alot in the process.
Gutheeil and Hilliard are to be celebrated for this excellent paper which I truly recommend to all psychiatrists.