Ethical and Legal Aspects of Trauma Evaluation

Posttraumatic stress disorder (PTSD) is a pathological response to significant traumatic events that may prove distressing and even debilitating. Although clinical descriptions dating from ancient Greece and Mesopotamia suggest that the condition has been known for thousands of years, and the term gross stress reaction appeared in the DSM-I, the term PTSD itself did not emerge until the 1970s and did not enter the DSM until 1980 (1). PTSD is now generally characterized by four sets of symptoms, including avoidance, intrusive disturbances, changes in arousal, and negative alterations in mood and cognition, but presentation may vary considerably (2). What was once thought of as primarily a syndrome of combat veterans and natural disaster survivors is now recognized as a widespread phenomenon that affects one in every 16 Americans (3). These patients are at elevated risk for attempting suicide, for mood and substance use disorders, and for unemployment (4). Many more individuals who meet the criteria for PTSD likely go undiagnosed (5). The overall impact of trauma and PTSD on American society should not be underestimated.

Increased attention to trauma-related psychopathology over the past 50 years has led to a range of distinctive ethical challenges. The emergence of a range of pharmacological and talk-based therapies, some of which have more empirical grounding than others, raises questions related to the choice of interventions for which evidence of efficacy remains limited. These questions, in turn, have implications for informed consent and physician liability. Boundary issues may also prove difficult to navigate in treating PTSD, and therapists should stay attuned to vulnerabilities of trauma survivors and to the risks of trauma bonding (6).

PTSD remains highly stigmatized in some populations, delaying diagnosis and treatment. At the same time, the potential for malingering remains a concern in both military and civilian settings where pecuniary gains or legal exculpation are potential benefits. In some cases, these concerns may lead to overzealous screening and false negatives on assessment. Ethical complexities may arise in forensics examinations for PTSD when patients fail to fully understand the duties and legal obligations of evaluators. Avoiding retraumatization during the evaluation process may also raise novel issues of dual loyalty.

Case 1, Part 1

Mr. A is a 55-year-old retired firefighter who presents to your outpatient practice seeking intranasal esketamine treatment for PTSD. He reports that he was involved in an unsuccessful water rescue during a flood the previous year in which he watched one of his colleagues be swept down a river to her death. Approximately 2 weeks later, he began to experience flashbacks in which he “sees” her drowning; he also drives several extra miles each morning to avoid crossing that same river on the way to visit his former workplace. His wife has become increasingly concerned about his mental health—specifically, his nightmares, poor concentration, and episodes of “brooding”—and insists that he see a psychiatrist. He explains that he found you after searching the Internet for a psychiatrist who offers esketamine treatment and has an office walking distance from his home.

• 1.1. You elicit further details regarding Mr. A’s symptoms and conclude that he meets the criteria for a diagnosis of PTSD and also that he does not pose an imminent danger to himself or others. You then explore with Mr. A his reasons for seeking intranasal esketamine therapy as opposed to interventions with a stronger evidence base, including trauma-focused cognitive-behavioral therapy (TF-CBT) and selective serotonin reuptake inhibitors (SSRIs). He explains: “I don’t have any interest in therapy. That can take a long time, and I don’t want to have to come back here each week. Besides, I don’t really like talking about myself. And I absolutely do not want antidepressants. I had a buddy who took Prozac, and it destroyed his sex life. But I’ve been reading about esketamine on the Internet, and I think that I might like it. It seems to work fast, and I won’t have to talk about my childhood.” When you suggest that there might be other therapeutic options, Mr. A interjects: “With all due respect, Doc, I know what I want. Now can you help me, or can’t you?” Which ethical value is best reflected in Mr. A’s wish to decline TF-CBT and SSRIs in favor of intranasal esketamine?

  • A. Cultural humility

  • B. Informed consent

  • C. Autonomy

  • D. Therapeutic privilege

  • E. Moral relativism

• 1.2. Although you do offer certain patients intranasal esketamine for treatment-resistant depression, you have some legal reservations about offering this intervention to Mr. A, as he has never tried any of what are widely regarded as first-line treatments for PTSD. You are particularly concerned about whether you have an obligation to inform Mr. A that other interventions with stronger evidentiary support are available. Unfortunately, when you attempt to discuss these other treatment options with Mr. A, he says, “I don’t want to hear about other options.” You recall that there was a famous malpractice case that raised issues of whether psychiatrists must disclose other treatments with a strong evidentiary base and whether they must discuss these evidence-based treatments with their patients. This case was which of the following?

  • A. Jaffee v Redmond

  • B. Osheroff v Chestnut Lodge

  • C. Roy v Hartogs

  • D. Tarasoff v Regents of University of California

  • E. Hargrave v Vermont

• 1.3. You phone your malpractice lawyer and ask her whether you will face liability for offering intranasal esketamine therapy under the circumstances described. She explains that, most likely, you may offer this treatment without fear of losing a malpractice suit if

  • A. The treatment meets the standard of care

  • B. A respected minority of physicians would do so

  • C. The Food and Drug Administration (FDA) has approved intranasal esketamine for this purpose

  • D. Both A and B

  • E. Both A and C

Case 1, Part 2

You are finally able to persuade Mr. A to engage in meaningful informed consent that includes a warning that intranasal esketamine may not prove effective and also that, even if it does so, the benefits may not prove long lasting. Under these circumstances, you feel comfortable offering the requested treatment. Mr. A phones you the next morning to report that he feels much better: He has not had any flashbacks in 24 hours, and he enjoyed his first good night of sleep in 1 week. However, he then returns to your office the following week, complaining that the treatment has “worn off.” He appears visibly frustrated. When you suggest that, in light of the short-term therapeutic benefit, it might be worth trying another round of esketamine, or possibly an infusion, he replies, “That’s not going to work for me, Doc. I can’t be coming here all the time. But I have another idea. I read online that a drug called psilocybin can treat PTSD. Can you prescribe it to me?” You explain that the evidence base for using psilocybin in PTSD remains extremely limited; that psilocybin is illegal in your state; and that, in any case, you have no experience in treating patients with psilocybin. You strongly urge him to consider a more widely accepted therapeutic intervention.

• 1.4. Mr. A expresses disappointment in your response. He states that he is willing to travel elsewhere for this therapy if there is a jurisdiction where it is legal and asks whether it might be possible for you to refer him to another provider who might help him. Which of the following might be an appropriate reply to Mr. A’s request?

  • A. “I know a colleague in a state where psilocybin is legal to whom I can refer you.”

  • B. “I can’t prescribe psilocybin, but you can likely buy it over the Internet.”

  • C. “You might check with local medical centers to see if there are any institutional review board–approved clinical trials for psilocybin in patients with PTSD for which you might be eligible.”

  • D. “No evidence supports the use of psychedelics like MDMA or psilocybin for PTSD treatment. Anybody who tells you otherwise is deceiving you.”

  • E. “Psilocybin remains illegal under federal law, but I can recommend a colleague in a foreign country where it is legal if you can find a way to get there.”

Case 2, Part 1

Dr. X has been asked to conduct an evaluation of Ms. Y, a 32-year-old immigrant, by her attorney for the purpose of composing an affidavit to be used in her upcoming asylum hearing. In this context, Dr. X explains to Ms. Y the role of the forensic examiner in the evaluation process and the concomitant limitations on confidentiality, and she consents. Dr. X then conducts a 3-hour evaluation during which Ms. Y reports having been detained by the authorities in her native country and having been tortured as a result of her political activism, an episode that led her to flee to the United States the previous year. She states that several of her fellow activists were also detained and tortured at the same time. She also reports a range of symptoms consistent with a diagnosis of PTSD, including nightmares, flashbacks, intrusive thoughts, chronic dysphoria, and efforts to avoid persons and places that remind her of her trauma. Ms. Y starts sobbing multiple times during the interview and then pauses to compose herself. When Dr. X asked specifically about the nature of the torture, Ms. Y shook her head and said, “I can’t. I just can’t talk about it.”

• 2.1. Dr. X notes a number of minor discrepancies and inconsistencies in Ms. Y’s account of her experiences. For instance, at one point, she says that she was first taken to the detention center in the morning, and at another time, she says that it was in the afternoon. At different times during the interview, she states that her first detention lasted 3 days and that her first detention lasted 1 week. She also reports multiple details that are inconsistent with the affidavit that she had previously provided to her attorney, including the age at which she married her husband and the number of times that she was arrested by the authorities. Dr. X ascertains that Ms. Y has no underlying disorder of memory or cognition, that she is literate, and that she holds a graduate degree. Which of the following is the most likely explanation for the inconsistencies and discrepancies that Dr. X encounters?

  • A. Malingering

  • B. Cultural difference

  • C. Trauma

  • D. Confabulation

  • E. Neurological impairment

• 2.2. Dr. X believes that learning more about the kind of abuse and torture that Ms. Y allegedly suffered—ideally told in her own words—would improve his final report. He explains, “I know it is difficult to share your experiences, but I want to present the most accurate account possible for the courts. Are you sure you can’t tell me any more about what happened?” In deciding whether to ask Ms. Y once again to share her story, what should be the most important consideration for Dr. X?

  • A. Objectivity

  • B. Due process

  • C. Settled insanity

  • D. Retraumatization

  • E. Duty to protect

Case 2, Part 2

Ms. Y explains to Dr. X that she is afraid to share some of the details of her experiences or to name her abusers because she has heard that several of them are now in the United States. She asks if her statements will become public documents or be posted online by the courts. “It’s not just that it’s so hard to talk about,” she explains. “It’s also that if they know that I’m living here in the United States and can identify them, they might come after me again—even here. What do they have to lose?” She says that she has also read about torture and abuse victims from her own nation and other nations being targeted by government agents from abroad. She says that she will only share the specifics of her torture and the identities of her attackers with Dr. X if he agrees to keep portions of what she shares confidential.

• 2.3. How should Dr. X respond?

  • A. Dr. X should explain that his evaluation is entirely confidential as it is covered by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

  • B. Dr. X should explain that his evaluation is largely confidential as a result of long-established principles of medical ethics.

  • C. Dr. X should reassure her that the American legal system can guarantee her safety and that the stories of foreign activists being targeted are largely untrue or exaggerated.

  • D. Dr. X should emphasize that federal legal documents in the United States are generally held under seal, so the odds of her attackers learning the details of her affidavit are extraordinarily low.

  • E. Dr. X should clarify that he cannot ensure the confidentiality of specific portions of her evaluation, as he has an obligation to be truthful with the courts.

• 2.4. At the conclusion of the evaluation, Ms. Y thanks Dr. X. She then asks if he can write her a prescription for a medication that will treat her PTSD. In response, Dr. X again clarifies the role of the evaluator. Ms. Y answers, “I understand all of that, but the evaluation is over now, and I trust you. It’s hard to imagine telling my story again to somebody else.” What should Dr. X do next?

  • A. Agree to treat Ms. Y to avoid the likelihood of retraumatization.

  • B. Agree to treat Ms. Y because the ethical principle of autonomy ensures her the right to choose her doctor.

  • C. Decline to treat her because of the risk of trauma bonding.

  • D. Decline to treat her to ensure appropriate role separation.

  • E. Decline to treat her with medication, because medication is not clinically indicated, but refer her to a colleague for TF-CBT.

Answers

• 1.1. The answer is C. Respect for autonomy is one of the core principles in most conceptions of contemporary Western bioethics (6). Autonomy ensures that a competent patient is able to make decisions regarding the course of his or her care, including whether to reject certain interventions in favor of others. It is often thought to stand in contrast to paternalism, in which other parties, such as physicians, decide what is in the best interests of patients. Barring other compelling legal or ethical reasons, Mr. A is generally entitled to accept or reject various treatments for PTSD. Informed consent is one way in which physicians protect patient autonomy by sharing all relevant information, including risks and potential benefits, with patients before rendering treatment and making certain that patients are in agreement with the proposed interventions. It is generally expected before nonemergent treatment. One exception to the rule of informed consent is that of therapeutic privilege, which refers to the right of doctors to act in a paternalistic manner to withhold information from patients in those rare cases in which sharing this information would adversely affect outcomes. Cultural humility refers to a process of “self-reflection” about one’s own culture and those of one’s patients in effort to build a relationship of trust and respect (7). Moral relativism is the philosophical concept that morality is not absolute but, rather, a reflection of subject and context.

• 1.2. The answer is B. Osheroff v Chestnut Lodge is arguably the most influential lawsuit in the history of American psychiatry never to reach final adjudication (8). Ray Osheroff, a nephrologist suffering from clinical depression, was admitted to Maryland’s venerable Chestnut Lodge psychiatric hospital in 1979 and received psychoanalytically oriented psychotherapy for 7 months without significant improvement; he then received pharmacologist treatment at a different facility and reportedly recovered (9). Osheroff’s subsequent lawsuit, which was ultimately settled, claimed that he had a right to be informed of treatment options with the strongest evidentiary basis. As a result of that case, it is now widely accepted that, at a minimum, psychiatrists must make patients aware of alternative treatment options for which there is stronger evidence. Jaffee v Redmond is a 1996 U.S. Supreme Court decision that upheld psychotherapist-patient privilege and the right of mental health professionals not to testify about confidential patient disclosures in the federal courts. Roy v Hartogs was a New York case that clarified that sexual relationships between psychiatrist and patients constitute malpractice. Tarasoff v Regents of University of California is a California state case that addressed the issue of duties to warn and to protect potential third-party targets of violent psychiatric patients. Hargrave v Vermont is an appellate court case that upheld the enforceability of psychiatric advance directives in some jurisdictions, but it is not yet a national precedent.

• 1.3. The answer is D. Psychiatrists are generally expected to offer treatment that conforms with the “standard of care,” a standard that generally reflects the practice of other physicians—although it is worth noting that, on rare occasions, courts may rule that widespread medical practices do not meet required legal benchmarks (10). In fact, physicians generally cannot contract with patients for treatment outside the standard of care and may be liable for malpractice if they do so. However, the “respectable minority” principle creates an exception that allows physicians to deviate from the standard of care if a significant number of highly regarded professionals in the field act similarly (11). Interventions that do not meet either the standard of care or the respectable minority threshold should be conducted by means of clinical research protocols to reduce the risk of liability. Although approval of the FDA is required for a physician to prescribe a medication, the medication does not have to be approved for that particular purpose, and off-label use does not necessarily create legal liability.

• 1.4. The answer is C. Several clinical trials are now underway to evaluate the safety and efficacy of various psychedelic substances, including psilocybin, in PTSD (12). It would be reasonable to refer Mr. A to a medical center conducting such a study, although a high probability exists that he might be screened out before enrollment. At present, although psilocybin has been legalized in one American state and multiple American municipalities, it remains illegal as a Schedule I controlled substance under federal law. In any case, it is generally inappropriate to refer patients elsewhere for care that is illegal in one’s own state and may raise the risk of civil and even criminal liability. Similarly, referring the patient abroad for interventions that are prohibited locally raises ethical concerns. Needless to say, encouraging a patient to purchase an illicit substance over the Internet raises not only legal and ethical concerns but also serious safety issues and is highly inappropriate. Although the evidence base for psilocybin as treatment for PTSD is limited, other psychedelics such as MDMA have shown promise in early clinical trials (13).

• 2.1. The answer is C. PTSD and severe trauma more generally may result in lapses in declarative memory (14). Minor inconsistencies in the reporting of remote events are to be expected and are likely exacerbated by both a history of trauma and the pressures of evaluation. Unfortunately, asylum seekers may be penalized for such minor lapses. A psychiatric evaluator should take care to understand and acknowledge the impact of trauma on memory. These minor lapses do not necessarily indicate broader neurological concerns such as dementia. It is important to distinguish these lapses from malingering, in which individuals intentionally fabricate their symptoms for secondary gain, such as to regularize their immigration status. There is no indication that minor inconsistencies in accounts of trauma survivors are indications of deception or malingering. Confabulation, sometimes known as honest lying, is a phenomenon in which an individual provides false information under the belief that it is true; it is often a symptom of significant neurological or psychiatric illness, but it is unlikely to be characterized by minor inconsistencies (15). Although trauma may manifest itself differently in different cultures, no evidence suggests that a significant variation exists in the declaration memories of variation populations in response to trauma.

• 2.2. The answer is D. Retraumatization is a serious concern whenever survivors of severe trauma are asked to recount their experiences. Although this may be a necessary risk in the clinical setting as part of some forms of therapy, minimizing the need for patients to recount the details of their experiences is particularly important in settings that are not designed to yield clinical benefits, such as forensic evaluations. Objectivity is also an important value in examinations for the courts, which makes these different from therapeutic interventions, but the quest for objective knowledge should not occur at the expense of the subject’s welfare. Asylum seekers are certainly entitled to due process, which involves treating litigants with fairness and according to established principles, but this is the responsibility of the courts, not medical professionals. Settled insanity is a controversial common law legal defense in which the defendant claims a permanent mental illness or cognitive defect stemming from substance use. The duty to protect refers specifically to the duty of mental health professionals in some jurisdictions to take action to protect potential third-party victims from violent threats by patients.

• 2.3. The answer is E. Psychiatrists preparing affidavits for the legal system have an obligation to ensure that those documents are accurate. Promising confidentiality in an asylum evaluation is inconsistent with that duty. Dr. X is not bound by HIPAA in this case, because he is not providing clinical care and has already explained to Ms. Y the limits of confidentiality in forensics evaluations, and she has consented to these terms. Similarly, the established principles of medical ethics allow for individuals to waive confidentiality for the purposes of evaluation in legal and forensic matters. It would be improvident for Dr. X to offer Ms. Y any guarantees regarding her personal safety, as foreign-born activists have been targeted while living in the United States and as this concern falls well beyond his role as an evaluating physician. Federal legal documents are not generally held under seal, and her abusers may well gain access to the result of Dr. X’s evaluation.

• 2.4. The answer is D. Role separation is a crucial aspect of the process of forensic evaluation. Dr. X may be called up to testify in court regarding his evaluation, and subsequent clinical encounters may jeopardize his objectivity. If he does not testify to Ms. Y’s liking, doing so might also jeopardize the therapeutic process. Avoiding retraumatization is an important goal but not one that would justify compromising objectivity in this case. Although Ms. Y may generally have a right to choose her own physician, that right is not without reasonable limits. Trauma bonding is the phenomenon by which victims form pathological attachments to their abusers, and it can be replicated in an unhealthy therapist-patient dyad (16). Nothing in the scenario suggests that Ms. Y might not benefit from an SSRI, although she might also benefit from TF-CBT.