AAPL: Ask the Experts – 2022
Neil S. Kaye, MD, DLFAPA
Graham Glancy, MB, ChB, FRC Psych, FRCP
Neil S. Kaye, MD, DFAPA and Graham Glancy, MB, ChB, FRC Psych, FRCP (C), will answer questions from members related to practical issues in the real world of forensic psychiatry. Please send questions to [email protected].
This information is advisory only, intended for educational purposes. The authors claim no legal expertise and should not be held responsible for any action taken in response to this educational advice. Readers should always consult their attorneys for legal advice.Ask the Expert
Q: If I keep doing forensic work and hang up my day job shingle, what are the pros and cons of doing only expert witness work and not being an active practitioner?
Ah, the elusive siren’s call to abandon clinical work for the often more remunerative exclusive forensic practice. The appeal of such a path is obvious: regular hours, no on-call, no patient behaviors to worry about, no office staff to manage, less overhead, no phone calls for prior authorizations, no prescriptions renewals or arguing with minimally trained gatekeepers to do what’s right to help your patient.
But, there are many potential downsides to taking such a path. For me, the enjoyment of working with a person and seeing them get better is irreplaceable. I took a sabbatical from clinical work many years ago and found I missed it terribly, so I returned. I can’t imagine not being an active treating physician.
One of the benefits of earning income from various sources is the freedom to decline forensic cases that are uninteresting or in areas outside of your true expertise. If your only source of income is forensics, you will be tempted to take cases that you might otherwise decline, which invariably creates its own level of stress. Also, do you really have a sufficient, reliable, and steady stream of good forensic referrals? What happens if changes in Workers Comp law are enacted, or a key referring lawyer retires?
Expertise is not just about knowledge but also, in many cases (especially med-mal), about being familiar with the treatment and the standard of care. One can get “rusty” without staying active in the trenches and lose one’s real expertise. How comfortable would you be testifying about a patient who was on a medication you had never prescribed?
Some states require an expert witness to be in active clinical practice and set a threshold for such work (e.g., no more than 20% of your work is forensic). So, if you decide to just do forensics, you will need to be aware of laws in any state in which you are called that might be disqualifying. This is done to prevent the traveling “hired gun” scenario, an accusations which becomes harder to rebut if you do only forensics.
I have seen colleagues take this path as a step toward retirement. They may phase out their clinical work and then practice exclusively in the forensic arena for a few years. While that’s not unreasonable, the same cautions noted above apply.
I have a personal aversion to answering a question with “Well, that’s a good question,” especially when trainees use this phrase in cross-examination. When I received this question from a member, however, I have to confess I thought, “That’s a good question.” It is an area that I must confess to which I have not previously given serious consideration.
AAPL defines forensic psychiatry as “a medical subspecialty that includes research and clinical practice in the many areas in which psychiatry is applied to legal issues.” There are a number of subspecialties included under the rubric of forensic psychiatry. These include correctional psychiatry, sexual behaviors, and forensic rehabilitation, including working in forensic hospitals. It is likely true that there are a number of forensic psychiatrists and other forensic mental health professionals who only do forensic expert work. It is my experience that many of them do maintain some clinical practice, although this is varied across North America.
In order to be qualified as an expert in forensic psychiatry, generally, the expert establishes that they have the requisite relevant, reliable training, experience, and skill. Different jurisdictions have different practices, and it often comes down to the judge in a particular case. The Federal Rules of Evidence state that “a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify” (FRE 702). AAPL discusses qualifications in their ethics guideline, noting that “expertise in the practice of forensic psychiatry should be claimed only in areas of actual knowledge, skills, training, and experience”(American Academy of Psychiatry and the Law, 2005). It is surmised that AAPL uses “and” deliberately in that sentence, implying that all these skills are required for a forensic expert (Meyer & Gutheil, 2017).
As Dr. Kaye has noted, in some jurisdictions, a certain amount of clinical work is necessary to be qualified as an expert. In the US, most states limit malpractice expert testimony (especially for a plaintiff) to psychiatrists with current clinical experience, often experience in the specific type of patient care being questioned (e.g., suicidal patients, inpatient psychiatry, patient diagnosis). In order to get some sort of consensus in this area, I asked Dr. William Reid, an experienced forensic psychiatrist, past president of AAPL, and author of the book “Developing a Forensic Practice: Operations and Ethics Experts” (2013), for his opinion on the subject. He advised me that
Our usefulness to courts and our attractiveness to lawyers is based primarily in our psychiatric/medical backgrounds, not our forensic ones. It’s true that being able to understand the lawyer’s issues and translate clinical information into understandable legal (or jury) parlance is important, but it all rests on our credibility as psychiatrists first. The court needs psychiatric expertise, not forensic expertise. (Personal communication)
From a practical point of view, forensic practice can be complicated, difficult to organize, and stressful. It is sometimes a relief to be able to relax into routine clinical work for part of the week. Another scheduling problem is that if you take on multiple forensic cases, you may have to testify on multiple cases, and Murphy’s Law states that these all come in the same month.
Forensic practice also relies upon a referral base, which like in many other services, can be variable. I have spoken to consultants in many other fields, including top criminal lawyers, who upon finishing one or two big cases will suddenly have the negative cognition, “Will I ever get another referral?” This introduces self-doubt and panic and can be quite stressful. I have found, after 40 years in the field, that the answer has always been “Yes, but who knows?”
Various types of clinical work, however, do produce a steady flow of dependable work. For instance, a regular outpatient practice with reasonably dependable patients produces a regular income and occupies a certain portion of the week. Inpatient forensic rehabilitation or correctional work also not only satisfies these goals but may also be inherently interesting and satisfying. In my opinion, this is one of the real advantages of the broader field of forensic psychiatry in that almost every day can be a little bit different and varied.
My advice to young forensic psychiatrists is to spend the first 10 years of their career at an academic center if they have the opportunity to do so. This generally affords the opportunity to enjoy varied forensic psychiatric settings. It also provides the opportunity for teaching (an essential and rewarding thing in itself) and possibly research and academic writing. After these 10 years, it is reasonable to take stock and make a decision on the future type of practice. They may want to stay in the academic setting, or they may consider different types of practice. It is much harder to go in the other direction. If a young trainee sets up in private practice and then, after 10 years, feels unfulfilled or burnt out, it is harder to get a job in an academic setting—they have missed the boat.
While it may be possible to do only forensic work, the reality is that most of us will not develop a sufficient referral base to make that possible. Further, the lack of clinical work begins to lessen your ability to claim expertise in a number of common areas that present in our usual scope of practice. There is such a he need for good clinicians that in all good conscience, we can’t recommend pursuing only forensic work, other than perhaps as a time limited exit strategy to enter retirement.
American Academy of Psychiatry and the Law. (2005). Ethics Guidelines for the Practice of Forensic Psychiatry.
Meyer, D. J., & Gutheil, T. G. (2017). The expert witness. American Psychiatric Pub.
Reid, W. H. (2013). Developing a forensic practice: Operations and ethics for experts. Routledge.