June 11, 2003
Dear Editor,
Dr. Schoenholtzs note raises important questions about how the dual agency of managed health care interacts with the potential dual agency engendered when forensic psychiatrists are asked to offer opinions as to optimal treatment and prognosis with current treatment. (The term dual agency refers to what some call a role or mission conflict in which a professional has duties toward separate agents with potentially conflicting interests.1) In so doing Dr. Schoenholtz builds on questions regarding dual agency and informed consent raised by the work of (among others) Anna Freud, Jay Katz,2 Alan Stone, Paul Appelbaum, Thomas Gutheil, Larry Strasburger, and Robert Simon. These issues, some of which we have addressed in earlier publications,3,4 form the subtext of our current work.5 Although forensic psychiatrists have pioneered in exploring what objectivity means in medicine and mental health, with the advent of managed health care all of American medicine confronts the pitfalls of dual agency.
Under California law, workers compensation evaluations necessarily address the issue of treatment recommendations. California WCAB (Workers Compensation Appeals Board) regulation 10606, (j) states: "These reports should include where applicable... Treatment indicated." Also, the standard, formal, accepted medical-legal evaluation referral letters contain the request: "Regarding medical treatment: a) Is the treatment which has been provided reasonable and necessary to cure or relieve the effects of industrial injury? b) What further medical treatment is reasonable and necessary?" The more informal cover letters often include the question: "Any treatment recommendations?"
Do the fundamental principles of beneficence and objectivity necessarily collide when the forensic psychiatrist makes treatment recommendations to the retaining party, or (if the retaining party is the insurance company) when the forensic psychiatrist receives permission from both sides to make recommendations directly to the patient or the patient's treating clinician? When does such permission have to be sought explicitly? When is it implicit? When can it be said to be unreasonably withheld? And what should a forensic psychiatrist do if it is withheld?1
Although one wants to avoid the normative fallacy of inferring what clinical practice ought to be from workers' compensation presentations in regions dominated by managed health care, it is important to extend our understanding of the latter reality through further empirical study. We are currently preparing for submission for publication the results of an exploratory study based on the presentations of workers compensation claims for evaluation to one forensic psychiatrist's (DRs) practice.6 Since practices vary across states, populations, and according to the goals and contracts of referral sources, we welcome critics of our work to join us as collaborators in a more representative cross-regional set of forensic practice studies.
Composite cases are commonly used to protect patient confidentiality and to illustrate "classical" presentations in medical teaching and texts. The medical mind learns well when thinking about cases, as opposed to principles.7,8 Those cases typically are composites, which allow for inclusion of the most significant features. Reliance on such paradigm cases is likely to increase, given computer-based "virtual" patient teaching methods and HIPAA protections of patient confidentiality.
Finally, intrusion into the forensic psychiatric examination by a representative of the examinee can be destructive to the goal of objectivity, which, according to standard practice and the AAPL Ethics Code, all forensic psychiatrists should strive for.9 Professional organizations in related disciplines, such as the American Academy of Clinical Neuropsychology, have made strong policy statements discouraging the participation of nonobjective observers in forensic examinations.10 The presence even of tape recorders has been shown to be enough of a distraction to result in a significant decline in performance on setting-sensitive neuropsychological tests such as those measuring memory. On the other hand, motor performance is relatively insensitive to the presence of recording devices.11 Such findings support forensic psychiatrists customary precautions against the distorting influence of third parties. They also indicate why similar precautions are not needed in other kinds of forensic medical examinations that evaluate relatively setting-insensitive (e.g., motor) performance measures.
An even more intriguing implication of such findings is that not only the forensic, but also the clinical evaluation of psychiatric impairment may be particularly sensitive to third-party interference, and therefore may need special protection in order to attain the desired validity. It may prove to be essential for any forensic psychiatric evaluation of clinical care to ask, on a case by case basis, whether managed-care restrictions and record requirements are in evidence. If so, did they drive history taking, mental status observations, diagnostic formulations, and treatment plan recommendations to the detriment of patient care?
California state law recognizes that the nature of the forensic psychiatric examination, unlike other medical examinations (e.g., orthopedic), makes it inappropriate to have a third party present. Thus, under California law, a patient can have a witness in any exam EXCEPT a psychiatric one. This provision reflects a realistic concern that the presence of nonobjective third parties is likely inadvertently to turn a forensic psychiatric examination from an objective evaluation into a de facto attorney coaching session, a rehearsal, or a setting-driven repeat of a deposition or a narrative previously given to the attorney.
In other states, if necessary, psychodynamically informed judges usually will heed motions to protect forensic psychiatric examinations from being tainted by an examinees or attorneys insistence on manipulating the setting. Similarly, mental health notes are afforded a greater degree of protection from intrusion by the legal system under the Jaffee v. Redmond Supreme Court decision.12 Unfortunately, however, clinical mental health practice is not similarly protected from the intrusive influence of managed health care organizations.
Like medical education in general, forensic psychiatric education can benefit from additional inquiry into how to achieve and maintain diagnostic objectivity in the face of third-party influences ranging from managed health care restrictions to the process constraints inherent in the workers compensation system. Carefully designed empirical studies, conducted with mutual consent, can avoid the pitfalls of intrusion and promote forensic psychiatric inquiry, teaching, and research. Moreover, forensic psychiatrys long experience of seeking objectivity amidst conflicting interests can be of enormous value to clinicians newly confronting third-party intrusion in managed-care-influenced clinical practice.13
Harold J. Bursztajn, M.D.
Associate Clinical Professor of Psychiatry
Harvard Medical School, Boston, MA
co-Director, Program in Psychiatry & the Law
Harvard Medical School @ Massachusetts Mental Health Center
telephone: 617-492-8366 telefax: 617-441-3195
e-mail: harold_bursztajn@hms.harvard.edu
Robindra K. Paul, D.P.H., M.D.
Clinical Instructor
Department of Psychiatry
University of Pittsburgh School of Medicine
Pittsburgh, PA
David M. Reiss, M.D.
Private forensic psychiatric practice
San Diego, CA
Robert M. Hamm, Ph.D.
Professor of Family and Preventive Medicine
University of Oklahoma Health Sciences Center
Oklahoma City, OK
The authors wish to thank the members of the Harvard Medical School Program in Psychiatry and the Law for their thoughtful reading and analysis of earlier drafts of our note.
1 Reiser SJ, Bursztajn HJ, Gutheil TG, Appelbaum PS: Divided Staffs, Divided Selves: A Case Approach to Mental Health Ethics. Cambridge, U.K.: Cambridge University Press, 1987
2 Katz J: The Silent World of Doctor and Patient. New York: Free Press, 1984
3 Bursztajn HJ, Feinbloom RI, Hamm RM, Brodsky A: Medical Choices, Medical Chances: How Patients, Families, and Physicians Can Cope with Uncertainty. New York: Delacorte, 1981; New York: Routledge, 1990; Iuniverse.com, 2001
4 Bursztajn HJ, Scherr AE, Brodsky A: The rebirth of forensic psychiatry in light of recent historical trends in criminal responsibility. Psychiatr Clin N Am 17:611-35, 1994
5 Bursztajn HJ, Paul RK, Reiss DM, Hamm RM: Forensic psychiatric evaluation of workers' compensation claims in a managed-care context. J Am Acad Psychiatry Law 31:117-9, 2003
6 Hamm RM, Reiss DM, Paul RK, Bursztajn HJ: Inappropriate workers compensation claims for psychiatric care: evidence for cost shifting in a managed care environment. Manuscript in preparation for publication.
7 Schmidt HG, Norman GR, Boshuizen HP: A cognitive perspective on medical expertise: theory and implication. Acad Med 65:611-21, 1990
8 Abernathy CM, Hamm RM: Surgical Intuition. Philadelphia, PA: Hanley & Belfus, 1995
9 American Academy of Psychiatry and the Law: Ethics guidelines for the practice of forensic psychiatry. In: American Academy of Psychiatry and the Law Membership Directory. Bloomfield, CT: American Academy of Psychiatry and the Law, 2000:x-xiii
10 American Academy of Clinical Neuropsychology: Policy statement on the presence of third party observers in neuropsychological assessments. Clin Neuropsychologist 15:433-9, 2001
11 Constantinou M, Ashendorf L, McCaffery R: When the third party observer of a neuropsychological evaluation is an audio-recorder. Clin Neuropsychologist 16:407-12, 2002
12 Jaffee v. Redmond (95-266), 518 U.S. 1 (1996)
13 Bursztajn HJ, Brodsky A: Captive patients, captive doctors: clinical dilemmas and interventions in caring for patients in managed health care. Gen Hosp Psychiatry 21:239-48, 1999
