Witnesses Playing God

 Posted on October 09, 2010 in Uncategorized

[A] good-faith, case-by-case, consequential ethics approach should be used that balances the greatest good for the greatest number without trampling unduly on individual rights and each citizen's constitutionally protected liberty interests.

Sreenivasan, Frances, and Weinberger, Normative Versus Consequential Ethics in Sexually Violent Predator Laws: An Ethics Conundrum for Psychiatry, J Am Acad Psychiatry Law 38:3:386-391 (2010) (via Karen Franklin, In the News: Forensic Psychology, Criminology, and Psychology-Law; via Pam Lakatos)

In Texas, the question that a psychologist might be asked to answer in a Sexually Violent Predator committment proceeding is whether, to a reasonable scientific certainty, the respondent "suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence," where "‘Behavioral abnormality' means a congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person."

There are three possible answers a psychologist could give to this question: "yes," "no," or "I don't know." (The third, because psychology may not be prepared to determine whether a person is a menace to the health and safety of another person.)

A psychologist may think that an SVP statute casts too fine a net, capturing people who should not be committed. Or she may think that it casts too coarse a net, letting people who should be committed go free. While the first case would provide a reason for an ethical psychologist not to testify on behalf of the State, neither case should affect the psychologist's answer if she takes the stand.

A witness's testimony should never be results-oriented. Witnesses are called to tell the truth, not to get particular results. There is little more satisfying to a trial lawyer than showing a jury that a witness is shading his testimony even slightly to affect the outcome of the case. The consequentialist approach that Sreenivasan and her colleagues would adopt would have psychologists altering their testimony based on their perception of the greatest good for the greatest number (as well as their idea of how much trampling on individual rights is due).

They recognize that there is something wrong with this idea; they write:

Critics of this approach would argue that the reasoning of the clinician drives the goodness of the outcome. Moreover, an individual with flawed reasoning, such as one who cannot accurately assess the situation or does not make an effort to gather all data, would not be able to determine the best action. Therefore, adopting a consequential ethics position may also include the moral imperative that mental health professionals have a full understanding of the potential negative consequences of their opinions. The better informed clinicians are, the more likely that consequences will be favorable.

That's all true; I marvel at the notion that a psychologist might even imagine that she would have enough data to know what the "greatest good for the greatest number" was or how much rights-trampling was due. (Maybe they really are all crazy.)

Here's a criminal-defense lawyer's further critique: balancing the greatest good for the greatest number is not your job.

Sreenivasan and company write:

The task for the SVP/SDP evaluator is to find a solution to the seemingly intractable conflict between the clashing normative values of public safety and of civil rights.

No, it really isn't. If the statute is too narrow, lobby the legislature to change it; if it's too broad, don't participate in the proceedings. Let the lawyers fight over how much trampling on constitutionally protected liberty interests is justified.

You are just a witness. I know it's tempting, but please: Don't play God.