Which Hat Are You Wearing? Roles & Ethical Responsibilities of Mental Health Professionals in Court Cases

THERAPIST or EVALUATOR:

(SUBPOENAED BY OPPOSING PARTY and ORDERED BY JUDGE )

Receives suboena for information about current or former therapy patient
or assessment client;
judge refuses to quash subpoena and orders that information be produced as evidence.

Participation is “Involuntarily” (i.e., is legally compelled,
against patient’s wishes and without patient’s consent)

[See Reference #4, below.]

A. Provider of Records/Documents
About Current or Former Therapy Patient
(Subpoena Duces Tecum)

B. Provider of Records/Documents
From  Assessment
Earlier Conducted for a Non-Forensic Purpose
(Subpoena Duces Tecum)

C. Provider of Testimony
(Witness Subpoena)

?

Certainly you  are not
participating on behalf of your therapy patient or assessment client, who objects to this disclosure.

You obtained information for other purposes, but now you are about to disclose that confidential information as evidence in a court case, against his/her wishes and without his/her consent.

Nor are you here
on behalf of a party who is opposing your patient in this case, and who has subpoenaed your records and/or testimony.

You are therefore here involuntarily, at the request of someone who is in an advisarial relationship with your patient.  Your task is therefore to protect the patient’s confidentiality to the extent legally possible.

?

1. THERAPIST:

Participating voluntarily in this legal process
(a) at patient’s request
and/or
(b) with patient’s written informed consent

A. Provider of Records
or  Other Documents

B. Provider of Testimony
1. Fact Witness
(e.g., re: Patient’s Behaviour or Statements)
       2. Opinion (“Expert”) Witness
(e.g., re: Diagnosis, prognosis)

C. Consultant to
Patient’s Attorney

2. PROVIDER OF 
COURT-ORDERED
CLINICAL
INTERVENTION

A. COURT-ORDERED
THERAPY
(Activities will vary case by case, depending upon
(1) clinical needs and
(2)details of the
court order,
but may include:

1. Providing  Therapy
2. Providing  Progress Reports
3. Providing Records
4. Testifying
– – – – –

B. COURT-ORDERED
CO-PARENTING
CONSULTATION/
EDUCATION

This is a quasi-legal role, stipulated in the divorce agreement or in a Judge’s Consent Order, giving the mental health professional limited legal authority to impose certain conditions on the parents. 

3.  PROVIDER OF
OTHER
COURT-RELATED SERVICES
IN WHICH CLIENTS PARTICIPATE VOLUNTARILY

a. Clinician voluntarily agrees to wear this hat
and play this role.
 

b. Client is not court ordered to receive this service.

[For resources
and training opportunities,
see References below.]

 4. FORENSIC SPECIALIST

Hired as an
Independent
Forensic Specialist
With No Prior
Relationship to
Any Parties
in the Case

[As noted, these roles require
specialized training.  For resources and training opportunities, see References, below.]

A. FORENSIC EVALUATOR
(Specialized Training
Required)
 

ASSESSING:
(either as an initial evaluation or a “second-opinion evaluation”)

1. Civil Case:
Abuse, Damages,
Mental Distress, etc.
2 Divorce/Custody Case:
Parenting Ability
Needs of Child, etc.
3. Criminal Case
Competency for Trial
Mental Status at Offense

 – – – – – – – – –

B.EXPERT WITNESS

1. Based on
Prior Evaluation
     (above)
OR
2. “Independent Expert”
Testimony
(e.g., testifying about relevant issues, such as developmental needs of 4-year-old children — or pursuant to role as reviewer of another’s work (see below).)

THE COURT

OR

ONE PARTY
IN THE CASE

This Role Requires

Specialized

Ethical and Legal Training

1. Obtain the training and experience required for practicing in these specialty roles.

2. Refuse referral if you have prior relationships with parties in case.

3. Refrain from offering any opinions about any party not seen and/or evaluated.

4. If a court-ordered evaluation, obtain copy of order to clarify court’s referral question and expectations about your role; revise if needed.

5. If for one party, obtain contract identifying them as client and clarifying scope of your role.

6. Before beginning, obtain consent from each person after informing them of (a)nature of your loyalties and role; and (b) limits of confidentiality (i.e., specify with whom you will share the information they give you; inform them that any information you obtain, and/or your opinions based on it, may be disclosed in your report and/or in testimony, and is not confidential.)

7. Limit “expert opinion” testimony to those areas for which you have the necessary factual information, training, and/or professional expertise.

C. CONSULTANT

1. Advising Attorney
(with or without
meeting his/her client)
2. Reviewing Another’s
Work
(e.g., reviewing and evaluating another’s therapy notes or evaluation report; perhaps testifying as above)

Attorney for 

 One Party

  in the Case

Mary Alice Fisher, Center for Ethical Practice, (2008, updated 2014).

Also see adapted version as Appendix VI in: Fisher, M.A. (2013). The Ethics of Conditional Confidentiality: A Practice Model for Mental Health Professionals.  New York, Oxford University Press.   ISBN13: 9780199752201