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...argued that predictions of risk based upon clinical judgment alone may be as flawed in disciplinary proceedings as they have been shown to be in other jurisdictions. The article draws upon Medical Tribunal cases, many of which are unreported, and from data taken from Annual Reports of the New South Wales Medical Board. It argues for more disciplined use of psychiatric evidence in disciplinary proceedings and a more proactive systemic approach to risk management.
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The New South Wales Medical Board receives over a thousand complaints per year against medical practitioners. (1) The complaints cover a range of factual situations, but can be broadly clustered into a number of areas--misuse or abuse of drugs, where the doctors either inappropriately prescribe drugs of addiction for their patients or have addiction problems themselves; sexual misconduct; Medicare fraud; complaints about inappropriate treatment; and complaints of 'impairment' where the doctor is said to have a mental, physical or other condition which may affect his/her ability to practise medicine. (2) The sanctions doctors face if complaints are proved against them are severe, the most serious being deregistration. Some doctors never regain their registration and are forced to find alternate careers and means of supporting themselves and their families. Some become 'lay' therapists. In this new role a number of them have again come to notice for continuing to treat patients following their de-registration by simply changing their title from doctor to counsellor or psychotherapist. (3)
Because the stakes are high and the repercussions are severe if a complaint is proved, some doctors go to extraordinary lengths to either defend themselves or to explain their behaviour, relying in many cases on psychiatric evidence. This is particularly true in cases involving sexual misconduct. Psychiatric evidence is also frequently called in cases where doctors have addiction problems, either to justify them being allowed to continue in practice, or to provide evidence of rehabilitation. The reliance upon psychiatric evidence occurs in the context of a tightening of the rules about expert evidence, and considerable scepticism about psychiatric evidence. Psychiatry has been referred to as 'the ultimate wizardy' (4) one writer commenting that '... in no case is it more difficult to elicit productive and reliable expert testimony than in cases that call on the knowledge and practice of psychiatry'. (5) The evidence of experts generally has come under increasing critical scrutiny, with experts themselves being the subject of disciplinary proceedings. (6)
This article explores the way in which psychiatric evidence is used in hearings involving sex or drug complaints against doctors in New South Wales. The evidence may be used, not only to explain or justify aberrant behaviour, but also to predict the risk of re-offending. It is argued that predictions of risk based upon clinical judgment may be as flawed in disciplinary proceedings as they have been shown to be in other jurisdictions. (7)
Background
Psychiatrists appear in disciplinary proceedings in a variety of different roles and these roles may often become somewhat blurred. The Medical Tribunal of New South Wales is a specialist tribunal or 'expert professional panel' (8) consisting of a judge, two doctors and a lay person. (9) Psychiatrists may therefore sit as members of the tribunal hearing complaints and are chosen for their clinical expertise. But they may also give evidence as witnesses in a number of different roles, including:
* as peer reviewers to comment on the standard of conduct of a psychiatrist about whom a complaint is made
* as treating doctors to report on the progress of a doctor about whom a complaint has been made
* as Medical Board-appointed psychiatrists whose role is to assess and/or monitor doctors referred to them by the Board.
In all of these roles psychiatrist witnesses may be accorded expert status even though they are not formally sworn in as experts and are not necessarily bound by the Expert Code of Conduct which applies under the new Uniform Civil Procedure Rules in New South Wales. (10) According to the Rules an expert is 'A person who has such knowledge or experience of, or in connection with, that question, or questions of the character of that question, that his or her opinion on that question would be admissible in evidence'. (11) The Expert Witness Code of Conduct provides that an expert has a general duty to the court and that 'An expert witness's paramount duty is to the court and not to the person retaining the expert'. (12) However, clearly there may be some role conflict in a treating psychiatrist giving evidence for a patient. Although he/she may not be accorded expert status, they are still likely to experience some degree of conflict between a duty to the court and a sense of loyalty to the patient. In its Ethical Guidelines for the Practice of Forensic Psychiatry the American Academy of Psychiatry and the Law states that a treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of the patient for legal purposes. The guidelines discuss a number of core conflicts in the treater/expert role including the focus on different outcomes, and the use of different assessment techniques for different clinical and forensic purposes. (13) Notwithstanding the problems and role conflict inherent in a treating doctor giving evidence in disciplinary proceedings, it is not unusual for this to occur in the New South Wales Medical Tribunal. However, as one report recently noted in relation to experts '... there is a widespread perception that, in many instances, expert witnesses consciously or subconsciously slant their testimony to favour the party who retains them'. (14)
The role of psychiatrist witnesses in the New South Wales Medical Tribunal should also be seen in the context of increasing criticism in recent years of the way in which complaints against doctors are investigated, (15) and of the way in which the hearings themselves are conducted. (16) Criticisms of the tribunal include the fact that:
* the 'peer reviewers' who may give evidence are selected by the Commission, which has both an investigative and a prosecutorial role, giving rise to possible perceived or actual bias
* the doctors who sit on the tribunal are appointed by the Medical Board, again giving...
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