Clinician Encounters with the Criminal Justice System

AuthorHoward Rubel
Pages89-102

CHAPTER 6
Clinician Encounters with the
Criminal Justice System
Howard Rubel
I. INTRODUCTION
An ideal world would allow for assessment and treatment of patients in an environment that would
guarantee that all of the records relating to the clinician’s eorts, the patient’s progress, and to the
patient’s history, treatment, and success would be used exclusively for clinical purposes. Reality, however,
demonstrates that despite the existence of rules of condentiality, doctor/patient privilege, legislative
prohibitions against disclosure of private information, and of the concerted eorts of medical advocates,
patient advocates, and legislators, everything that happens between clinicians and their patients (and
related information in any form) is potentially subject to disclosure and production for the purposes of
legal proceedings. Furthermore, the participants in a clinical relationship can nd themselves, willingly
or not, involved in the processes of the criminal justice system.
Clinicians may be required to participate in various aspects of the criminal justice system. ey may
serve as a conduit for information received as part of the clinical process; they might serve as record
keepers, or as witnesses on behalf of their patients or against their patients, and occasionally, as their
own advocates in the face of allegations brought by or on behalf of their own patients.
II. PATIENT-INITIATED CRIMINAL COMPL AINT
A. Advising the Client whether to Initiate a Complaint
Anecdotal evidence indicates that patients who have been the subject of behaviour that may be pro-
hibited by law have been more frequently receiving advice from their clinicians whether ocial com-
plaints should be made. Giving advice has the potential to transfer some liability for the repercussions
of the decision to the clinician, and it is advisable for a clinician to direct a patient to a lawyer for advice
rather than to make any direct recommendation to a patient. While the clinician certainly has a role to
play in advising whether initiating a complaint is in the best mental-health interests of the patient, it is
better to assist in the consultation with legal counsel than to suggest a complaint be made without prior
consultation with a lawyer. Refraining from advising the patient directly insulates the clinician from
the decision-making process, and minimizes the risk of being viewed as responsible for a patient’s poor
decision, or of being unwillingly drawn into the criminal-trial process.
In discussing the ramications of a decision to initiate a charge, consideration should be given
whether to proceed through the civil courts or to involve the police by lodging a criminal complaint.
Depending on the circumstances and the weight of evidence available, civil proceedings might be more
appropriate than criminal charges, and the civil justice system will allow fuller control of the process to
be retained by the patient. Once a complaint has been lodged with the police, the wishes of a complain-
ant to discontinue criminal proceedings are only one factor taken into consideration by prosecuting

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