Private space: The contrasting nature of clinical and medico-legal access to the self

Abstract

Clinicians face demands to assess or detain people who are perceived to be a danger to society when little or nothing that is clinically possible can ameliorate the risk of future violence. This creates significant conflict in the clinician's role between the needs of the individual and the needs of society. Such assessments require clinical observation and testimony regarding the person's thoughts, feelings, and actions. The criminal justice system has limits to how far it can go in pursuing private aspects of the self including the right to silence, and the rules that surround confessions. Clinicians, on the other hand, are permitted, through a very long history of clinical ethics, to have access to the private self to meet health needs. Some of the issues of conflict between societal demand for protection, and clinico-ethical duties to the person, have emerged in the debate regarding the concept of the ‘forensicist.’ The assessee may have difficulty separating the clinical from the criminal justice involvement of a clinician. Both assessor and assessee are potentially subject to a desire to please those in authority. This paper reconsiders these old tensions from the perspective of the rules and conditions that allow access to or protect private aspects of the self, in the context of the assessment of the criminal defendant.

Keywords:

• Forensic assessment
• forensicist
• medical ethics
• risk of violence