WARPED DIRECTIONS

Can one be both treating clinician and forensic psychiatrist at the same time?

By CATHERINE TEVES

"We are there to defend our findings kahit na for or against the patient. Wala tayong kinakampihan. Then we directly send the report to the court so it's up to the lawyers to get a copy there." -- Dr. Gonzales

Being jack-of-all-trades can also be dangerous. And why not? Inherent conflicts occur in dual agency when a psychiatrist functions as treating clinician and forensic psychiatrist in the same case because these roles differ and clash.

     “You cannot be both in one case,” remarked Dr. Norieta Calma-Balderrama who heads the Section of Child and Adolescent Psychiatry at the Child Protection Unit of the University of the Philippines-Philippine General Hospital.

     The former provides clinical care to his patient whose mental state is, in turn, assessed by the latter. In the second instance, the patient—or evaluee—is examined primarily to determine his competency to stand trial and his sanity before, during, and after alleged commission of the crime.

On the witness stand, the colliding nature of these roles becomes evident.

     Here, the treating psychiatrist testifies as an ordinary witness or witness-of-fact. “Collaborative lang sila. Kung ano’ng nakita, ’yon lang ang sasabihin,” noted Dr. Isagani Gonzales, chief of Forensic Service at the National Center for Mental Health.

     Forensic psychiatrists, meanwhile, testify as expert witnesses. “They can give opinion and make recommendations,” Dr. Gonzales clarified.

     Because the therapist’s obligation is towards his patient and the forensic’s responsibility is towards objectivity and the court, such opposing orientation sparks concerns about dual agency.

Treacherous Tracks

     Without check and balance, possible adverse consequences cut across ethical and clinical issues.

     • Evaluation might not be objective as there is a tendency to sympathize with the patient’s viewpoint and to feel a keen sense to do him no harm.

     • Clinical documentation might be manipulated to mislead other parties since records will most likely be revealed.

     • Collusion with patient or lawyer or both might occur to influence outcome of the case.

     • Clinical care could be altered to the patient’s detriment if evaluator’s view is distorted by other people’s comments regarding the subject in interviews made during evaluation.

     To dispel these, cases—mostly criminal—are referred to the NCMH, which comes in as an independent party. “We are there to defend our findings kahit na for or against the patient. Wala tayong kinakampihan. Then we directly send the report to the court so it’s up to the lawyers to get a copy there,” Dr. Gonzales said.

     • Confidentiality is also compromised. While therapists are bound to protect privileged communication, a forensic role requires disclosure of results from court-ordered evaluations.

     “Mayroon na itong intermingling with the law which dictates that you tell the truth no matter what. Sa court, walang limit, eh. Tatanungin ka talaga. So nawawala na yung confidentiality,” the forensic chief noted.

     Threats to privileged communication can affect a patient’s participation in therapy. And loss of clinical confidence from revelations made in court by the once-trusted clinician could lead to a sense of betrayal.

     The issue becomes more critical when kids are involved.

     “When a child comes in for therapy, I ask permission first before divulging any information… And I invoke the doctor-patient relationship in court so if they want an evaluation, they have to get another psychiatrist to do that,” Dr. Balderrama explained.

     Probability of future disclosure and its likely consequences are discussed with subjects as early as possible. “We inform them that this is for the courts and that what we’re going to discuss might come out during the proceedings. Who knows, someday they might become popular—that’s when people begin looking at their background. Since this may work against the kids later, I talk to them about it,” Dr. Balderrama reasoned.

Double Trouble

"I ask permission first before divulging any information... And I invoke the doctor- patient relationship in court so if they want an evaluation, they have to get another psychiatrist to do that." -- Dr. Balderrama

     Issues surrounding dual agency are exacerbated by other problems.

     • References remain vague. “There are legal terms na hindi namin maintindihan and medical terms na hindi rin maintindihan ng lawyers. Pag sinabi nilang ‘lucid interval’ apparently parang normal na. Pero ang schizophrenia, continuous process. Hindi bumababa o tumataas so hindi nagiging normal. “Mentally improved’ ang term na ginagamit namin. So pag nag-iimprove, may discernment. Pag may sumpong, wala,” Dr. Gonzales explained.

     Insanity also needs clarification, he noted, because lawyers appear to use it as a collective term although disorders range from neurosis to psychosis. And insanity defense is used to counter allegations of criminal responsibility.

     “Ginagamit natin dito ang M’Naghten Rule. Yung right-wrong test,” the doctor said. This legal test of insanity was drafted in l843.

     This English ruling excuses a defendant for his criminal conduct because of defective reasoning or mental illness which makes him  unaware of the deed’s nature and quality. “Kasi insane persons act involuntarily,” he added.

     It was used in the trial of convicted mass murderer Charles Manson and three females for the 1969 massacre of actress Sharon Tate and six others.

     Lawyers also need to understand concepts like exact time, age of discernment, and identity crisis as applied to children. “I wonder if they are conscious of this,” Dr. Balderrama remarked.

     “Both parties should reach a consensus kung ano’ng terms ang gagamitin,” stressed Dr. Gonzales who currently chairs the Philippine Psychiatric Association’s forensic committee.

     • Fellowship programs are not available locally. “You should know law. This is not part of our training,” Dr. Balderrama admitted.

     Dr. Gonzales agreed, observing that many private psychiatrists dread appearing in court. “Kailangan may knowledge about legal procedures para maintindihan what’s going on in court at ano ang roles ng mga nandoon,” he said.

     Local training today seems lacking, the doctor observed, although NCMH’s residents are given exposure to forensic work. “Among those we trained, some still feel inadequate so they refer their cases here,” he remarked.

     Likewise, no official body certifies forensic psychiatrists in the country today.

     But there are moves to minimize these deficiencies. Dr. Gonzales plans to introduce NCMH’s evaluation format to members of the PPA, and he also lectures on forensic psychiatry. Among his topics are tips on what to do when testifying.

     • Tell the truth. “Para hindi kayo malilito sa court.”

     • Be ready. “Dress properly, study the case, and be emotionally and physically prepared. Hindi dapat nagpupuyat. And be alert.”

     • Be neutral. “Let the lawyers argue. Mag-testify lang tungkol sa findings mo.”

     • Be direct. “Answer only questions that are being asked. Give concise, clear answers and avoid medical jargon.”

     • Watch your demeanor. “Don’t be arrogant, humorous, or defensive.”

     • Keep your cool. When harassed on the stand, relax. “This is their technique. Una, sunod-sunod ang questions para malito ka at maiba ang sagot mo. Then gagalitin ka para mawala ang poise mo.” Instead, look directly at the one asking the questions.

     Likewise, there are plans to establish fellowship programs. “I’m leaving precisely to study forensic psychiatry so that I can also train when I return,” Dr. Balderrama said, referring to her London trip.

     Dr. Gonzales himself was chosen by NCMH to prepare its own program. “Mga one or two years, pwede na. Kasi NCMH lang ang may pinakamaraming forensic patients kaya dito ka talaga makakapag-aral,” he reasoned.

     Avoiding dual agency is crucial to the justice system’s effectiveness and credibility but curiously, current ethical guidelines do not specifically ban such practice. “Walang clear-cut provisions,” Dr. Gonzales admitted. But with the increasing need for clinical assessments, the question is whether demand could be met without compromise.