Informed consent in psychotherapy.

OBJECTIVE: The authors sought a rational approach to implementing informed consent within the practice of psychotherapy. METHOD: The history of informed consent in psychotherapy was reviewed to define a common synthesis that maximizes the potential benefits and minimizes the potential hazards. RESULTS: The benefits of informed consent in psychotherapy include fostering a positive treatment outcome through enhancing patient autonomy, responsibility, and self-therapeutic activity; lessening the risks of regressive effects and therapist liability; and helping the practice of psychotherapy extend beyond particular parochialisms by providing checks and balances on therapist judgments. The hazards include the unpredictability of interactional outcomes and the possibilities of replacing positive expectancy with negative suggestion, replacing a therapeutic alliance with a legalistic stance, and misimplying that patients are passive recipients. CONCLUSIONS: Practical implementation of informed consent in psychotherapy must balance such tensions in service of optimal treatment. As a guiding principle, the authors recommend that psychotherapists convey to a prospective patient information that is material to the particular patient's decision. The level of detail needed in informed consent discussions varies directly with the cost and risks of the proposed treatment, the presence of viable alternatives and their relative grounding in scientific data and professional acceptance, and the presence of significant controversy. Unresolved is the question of how to address problematic or controversial psychotherapeutic trends that temporarily enjoy wide professional support.

Memory as power: who is to decide?

The transactional aspects of human memory remain enigmatic: memory disputes carry intense affective charge; memory's effects vary with how content is framed or slanted by one's perspective; memory is vulnerable to suggestive influence; and these processes are seen at all levels of social scale from simple dyads to whole societies. These observations suggest that memory serves important functions in mediating interpersonal relationships. As hypotheses for further study, I propose that (1) memory mediates interpersonal power dynamics; (2) social legitimization countermands memory's truth value when the two conflict; (3) suggestibility protects otherwise disadvantaged individuals by rendering them more adaptable to dominant others' belief systems; and (4) mutual suggestion ties together all levels of scale within a given society. All of these hypotheses are discussed within a context of recent controversies surrounding hypnotically refreshed eyewitness testimony and adult delayed traumatic recall, which are worked out at the intersection of mental health and legal practice with a pivotal role given to the expert witness. The presumption of innocence dominates current trends in these areas. Cases that appear to violate this presumption, such as Pennsylvania v. Crawford (718 A.2d (Pa. 1998)), affirm another fundamental principle of democracy: that the ultimate issue of witness credibility is to be decided not by an expert, but by the citizenry itself-as represented in the jury.

Posttraumatic polarization in psychiatry and law.

Psychological trauma heightens and rigidifies the penchant of humans for dichotomizing others into allies and enemies. With today's "adult delayed recall" controversy a case in point, traumatized individuals tend to unite into tightly knit in-groups that resemble cults and to denigrate others as enemies. This process creates new enmities where objective interests otherwise clash only minimally. The trauma response is reinforced by the neurobiology of avoidance and reenactment. Among all protagonists, polarized beliefs are mutually shaped by suggestive interactions that resemble hypnosis. The end result is to reenact and perpetuate the trauma response on a large scale. In the contemporary milieu, this process presents a formidable obstacle to cooperative problem solving. Discussion focuses on strategies by which clinical and forensic psychiatrists can help to master this obstacle. These strategies include balancing interests, extending the role of informed consent, and overall, striving to mitigate the unwitting reinforcement and transmission of the trauma response.

Quantifying psychological victimization: scientific uncertainty, legal necessity.

Quantifying psychological victimization presents a formidable conundrum for psychiatry and the law. On the one hand, the task is fundamentally uncertain, due to causal complexity that includes disparity between projected image and inner reality, context dependence, volition, and conflicting interests. On the other hand, the task is necessary for just determination in such areas of law as disability assessment, victim impact, compensation, and psychological crimes such as harassment. A multiaxial protocol is proposed to meet this problematic charge. The five dimensions of this protocol are (1) gross estimate of victimization, including severity of the stressor, the degree of resulting impairment, and variably, the degree of the victim's nonresponsibility; (2) reliability; (3) other conditions; (4) conflicts of interest; and (5) evaluator bias. Intuitive estimates are used widely here instead of operationalized criteria, to enhance flexibility and widen relevance. Evaluators are asked to determine and explain the weighting that should be given to different factors and to give a self-statement of their own biases.

Delayed traumatic recall in adults: a synthesis with legal, clinical, and forensic recommendations.

Despite considerable consensus on what is known and unknown about delayed traumatic recall in adults, this topic remains one of the most polarized issues within both forensic psychiatry and society as a whole. Competing priorities of values contribute to this polarization. So do often subtle confusions of categories: experiential with substantive realities; clinical with legal priorities and criteria; distinctions between explicit and implicit with declarative and procedural memory; conditioned avoidance with declarative knowledge; and prediction of traumatic sequelae from known traumatic events with postdiction of possible traumatic events from symptoms that may imply prior traumatization. Memories are rendered more vulnerable to falsification through social influence and intrinsic suggestibility-- and probably more so when suggestive input bypasses conscious scrutiny. Legal, clinical, and forensic guidelines are proposed to sort out these complexities, balance conflicting professional duties and priorities, balance protection of children with defending legitimate social structures such as the family, and better use our growing knowledge about the vicissitudes of human memory.

Dissociative identity disorder: adaptive deception of self and others.

Dissociative identity disorder (multiple personality) is increasingly diagnosed, often follows childhood trauma, and is characterized by rigidification of phenomena that resemble hypnosis. To interpret dissociated aspects of selfhood as autonomous entities is a useful heuristic; but when taken too literally, it leads to three kinds of anomaly: (1) legal: dissociators remain culpable for misdeeds carried out beyond apparent awareness or control; (2) clinical: legitimization sometimes leads not to relief, but to escalating cycles of regressive dependency; and (3) scientific: the form of dissociated entities varies with how they are defined, in ways that are intrinsically motivated and clinically manipulable. These anomalies yield to an evolutionary perspective that views dissociative identity disorder as an evolved strategy of adaptive deception of self and others; e.g., a beaten subordinate avoids further retribution by "pleading illness." Such a deceit best avoids detection when fully experienced; through its intensity and persistence, it becomes real at a new level. One's basic competencies remain intact, however, and are the source of the anomalies described. They can be clinically accessed and empowered, providing the key to therapeutic change when dissociative processes are problematic. Overall, despite clear impairment in subjective awareness and volition, dissociative-disordered individuals are best held fully accountable for the consequences of their actions.

Appropriate short-term risk in psychiatry and the law.

Effective treatment decisions sometimes require substantial risk of short-term harm, which can be shown after-the-fact to have been preventable, thereby carrying some liability risk. To err on the side of short-term comfort or safety, however, may greatly increase the overall and long-term risks. For instance, to intrusively restrain a borderline patient from threatened acting out, may (1) fuel a regressive cycle that heightens future risk, (2) deprive the clinician of therapeutic leverage, and/or (3) so disrupt the treatment system that other patients unnecessarily suffer. Long-term thinking is not always convincing to judge or juror, because of less direct causal connections; hence, there is pressing need to develop rational criteria for when it should hold sway. Two competing trends of legal doctrine are relevant: risk-benefit analysis (utilitarian) and absolute values (absolutist). Presumptions of appropriate short-term risk separately weigh five relevant factors, in interaction with one another: imminent safety, long-term risk, voluntariness of other agent, therapeutic boundaries, and social values. Forensic psychiatrists are advised to take a stronger stand in support of short-term risk, when needed to enhance long-term safety and optimal standards of care.

Disruptive medical patients. Forensically informed decision making.

Patients who disrupt medical care create problems for physicians. The risks are not entirely clinical. Although these patients may compromise sound clinical judgment, some are also litigious and express their dissatisfaction in legal or other forums. It then becomes necessary for treating physicians to be aware of the legal and ethical boundaries of their patient care responsibilities. Some disruptive patients are treated by setting limits, which is usually affirmed by health care agreements. A hospital review board may advise clinicians on these agreements and on the management of disruptive patients. If termination of the physician-patient relationship is considered, physicians must follow proper protocol. We examine these forensic considerations and place them in the context of malpractice. Communication, consultation, and documentation are the key elements in reducing liability.

Hypnotic transactions, and the evolution of psychological structure.

This article integrates study of hypnotic transactions with data on their primate antecedents, toward clarifying the question of differential responsibility. It concludes that psychological structures are recently evolved transactional processes that masquerade as explanatory entities, but obey rules of intentionality: a hypothesis with clinical and forensic implications.

Volition, deception, and the evolution of justice.

Criminal justice is inextricably associated with the attributive concept of volition. Although the voluntary-involuntary distinction is subjectively vivid, causal research shows its poles to be inseparable, i.e., the dichotomy is deceptive. Why a bulwark of civilization should be founded on paradox, may be clarified by examining the role of self-deception in man's evolutionary heritage. Natural selection for an optimal degree of self-deception probably occurred, both to facilitate deception of others and to foster human cooperation. This contributed to the evolution of psychiatric disorders, the voluntary-involuntary continuum, and large scale social systems. Society and its members reach an equilibrium within the truth-deception continuum, manifest in individuals by conscious versus unconscious and voluntary versus involuntary, and in society by tension between what actually occurs (realism) and its organizing ideals (idealism). Three legal models of criminal justice are understood in this context: The (1) utilitarian, most realistic, is essential to social survival but vulnerable to abuse; (2) rehabilitative, at an opposite idealistic pole, better supports the image of social beneficence that helps to bind society's members; (3) retributive, most heavily grounded in volition, puts greater emphasis on individual autonomy, and reciprocally modulates the other models. All are legitimized by evolutionary traditions that antedate homo sapiens, and none is sufficient in itself. Elements of all three models necessarily coexist within any existing society, their relative strength varying with its collective values, prosperity, and perceived safety.

Legal duties of psychiatric patients.

Psychiatric practice involves an implied contract in which each party fulfills a specialized role and incurs corresponding duties and obligations to be discharged as best able. Patients incur duties at three levels. First are specific duties that arise from patients' specialized role in their own health care: (1) to provide accurate and complete information, and (2) to cooperate with treatment within the bounds of informed consent. Second are general duties that apply to all citizens, but are especially relevant within the mental health context: (1) to respect the physical integrity of self, others, and property, and (2) to obey the law. The controversial "duty to protect" is at a third level, a transcendent duty that is specific to the context at hand, but in principle can apply to more than one party. Advantages of enforcing patients' duties include better care by treating professionals, optimum level of functioning of patients, and improved systems-wide morale and safety. Breach of patients' duty has many potential consequences in the forensic sphere: termination of care, malpractice defense, criminal prosecution, and tort liability. Complicating factors include the degree and effect of patients' psychiatric impairment, patients' legal status, and the role played by psychotherapeutic transference.

Spontaneous hypnosis in the forensic context.

"Hypnosis" denotes either specific phenomena (altered volition, perception, cognition, and recall) or interpersonal transactions that often elicit them. Basic research leads to paradox: hypnosis is validated, and shown to be dissociative in essence, at the same time that neither its phenomena nor transactions can be separated from those of everyday living without logical absurdity. This paradox can be resolved by assuming that consciousness and volition are complex, occurring simultaneously at many levels in the same waking individual. Hypnotic-like phenomena and transactions occur spontaneously, in either covert or overt forms. The former are pervasive, whereas the latter are often associated with psychological trauma. Forensic implications are twofold: for criminal responsibility, and the reliability of eyewitness testimony. Hypnotic-like states and transactions are rarely affirmed as an insanity defense because at some level these subjects are aware of what they are doing and why. Diminished capacity and mitigation of sentence are more appropriate defense strategies. Several conflicted traditions of case law have evolved to protect eyewitness testimony from hypnotic-like distortions in cognition, perception, and memory that can occur either during or outside of formal hypnotic procedures. These include the admissibility of posthypnotic testimony, due process safeguards at eyewitness identification procedures, and the admissibility of expert testimony on the findings of eyewitness research. These areas are inseparable from one another and demand a systematic coordinated approach.