Ethical Consequences of Role Confusion in Court-Related Cases
Mary Alice Fisher, Ph.D.
4 CE Credits – 25 test items – $100
This page contains learning objectives, course outline and complete text for this CE course. You can read the course online, print the course or save it to your computer.
At the bottom of the course there is a link that allows you to purchase the test. You will be required to create an account (using your email address) so that you will be able to complete the test immediately, or on your schedule. You may also begin the test and save it to finish at a later time.
Once you submit the online test, it will be automatically graded. You may take the test up to 3 times in order to pass (80% correct out of 25 questions). Once you pass, you will be required to complete an evaluation form, after which you will be able to immediately download a certificate of CE credits.
This is a beginning to intermediate course. After completing this course, you should be able to:
- List some roles played by mental health professionals in court cases & describe their ethical responsibilities.
- Name some Virginia laws that can affect your participation in court cases and describe their ethical implications.
- Regarding testimony in court cases, describe the difference between a “fact witness” and an “expert witness”
- Name two possible consequences of role confusion in court-related cases.
Which Hat Are You Wearing? [ Table 1: Court-Related Roles]
Ethical Responsibilities in All Roles
- Informed Consent – [Table 2: Ethical Responsibilities About Informed Consent Conversation]
- Limits of Confidentiality
- Nature, Purpose & Anticipated Course of Services
- Involvement of Third Parties
- Dual Roles & Conflicts of Interest
Potential Disclosures – [Table 3: Possible Disclosures in Psychotherapy Cases]
- Voluntary Disclosures
- “Involuntary” Disclosures
Subpoenas vs. Court Orders
- What is the Legal Difference?
- Why is the Difference Ethically Important?
- How Should You Respond?
- Voluntary vs. “Involuntary” Testimony
- Fact Testimony vs. Expert Testimony
- Pre-Trial Depositions vs. Courtroom Testimony
Specific Court-Related Roles & Their Different Ethical Responsibilities – [Table 4]
- Involuntary Roles
- Therapist or Neutral Evaluator Court-Ordered to Provide Client Records
- Therapist or Evaluator Court-Ordered to Provide Deposition or Courtroom Testimony
- Voluntary Roles
- “Forensically Naïve” Psychotherapist Participating with Client Consent
- “Forensically-Informed” Provider of “Hybrid” Services
(a) Court-Ordered Clinical Services
(b) CIT (Court-Involved Therapy), FFT (Forensic Family Therapy), etc.
7. “Pure Forensic Expert”
Potential Consequences of Role Confusion
- Ethical Issues: Potential Harm to Clients
- Rick-Management Issues – Potential Risks to Clinician
- Public Impressions of the Mental Health Professions
AAMFT: American Association of Marriage and Family Therapy
ACA: American Counseling Association
APA: American Psychological Association
APAPO: American Psychological Association Practice Organization
NASW: National Association of Social Work
APsyA: American Psychiatric Association
TEXT OF CE COURSE #5
Mental Health Professionals in Court-Related Cases:
Ethical Consequences of Role Confusion
Attorneys and judges increasingly seek the involvement of mental health professionals in both civil and criminal court cases (Gottlieb & Coleman, 2012). Involvement in a legal case can include a number of different roles, each of which may bring a different set of ethical responsibilities. Sometimes these roles are undertaken voluntarily, but sometimes mental health professionals find themselves involuntarily entangled in a court-involved clinical case. This course will consider the ethical implications of both types of roles.
Forensic mental health professionals, armed with specialized training, enter the legal system voluntarily. Furthermore, psychotherapists without forensic training or legal sophistication sometimes voluntarily enter a court case at the request of a client.
Additionally, mental health professionals have been encouraged by their professions and pressured by attorneys to voluntarily take on new court-related roles. (See, for example, APA Practice Organization, Legal and Regulatory Affairs Staff, 2010, 2011 February; Bailey, 2005; DiAngeles, 2011, Greenberg, 2019; Grossman & Okun, 2002; Grossman et al., 2003; Holloway, 2005; Munsey, 2007; Nordal, 2010; Welsh, Greenberg, & Graham-Howard, 2009.) Some of the new roles are called “hybrid” roles because they combine both clinical and legal functions. For example, in “Court-Involved Therapy” (CIT) and “Family Forensic Psychology” (FFP), a clinician might enter a case with a plan to provide both therapy to family members as well as assistance to the court in their legal dispute. These roles require specialized training.
However, mental health professionals who lack forensic training are sometimes thrust into the legal arena “involuntarily.” For example, a judge may order a psychotherapist to provide records or testify about a client, even if the client objects.
Which Hat(s) Are You Wearing?
This wide array of roles has created confusion, not only among mental health professionals themselves but also among judges and attorneys. The unfortunate result is that the client’s rights are sometimes ignored.
As discussed below, each of these roles can bring different ethical responsibilities. In preparation for considering the reasons for the differences in ethical implications, Table 1 lists some of the court-related roles now undertaken by mental health professionals. These roles are separated into two categories: (1) voluntary roles, meaning roles undertaken without legal coercion; and (2) “involuntary” roles, defined in this course to mean roles a clinician can be legally ordered to accept and may be legally unable to reject.
The first section of Table 1 lists some of the roles undertaken by trained forensic experts. A longer list of possible forensic roles can be found in the Specialty Guidelines for Forensic Psychology (APA, 2013), hereafter referred to as “APA Forensic Guidelines.” This course will not focus on these forensic roles, because detailed guidelines are available elsewhere.
These forensic roles should ordinarily be undertaken only by those who have received specialized training. As suggested by Koocher & Keith-Spiegel in their ethics text (2016), “Remember that when venturing into the legal arena, whether by choice or chance, specialized training or expert guidance is an absolute necessity” (p. 451). Regrettably, however, the promise of professional and financial rewards is leading some who lack the appropriate training to accept these forensic opportunities, with resulting ethical quandaries and legal complications (Woody, 2009).
This course will not focus on these forensic roles, because detailed guidelines are available elsewhere for the forensic experts who undertake these roles. In addition to the APA Forensic Guidelines described above (2013), APA provides the APA Handbook of Forensic Psychology (Cutler & Zepf, 2014) and a forensic chapter in the APA Handbook of Ethics in Psychology (Gottlieb & Coleman, 2012), as well as guidelines for custody evaluators (APA, 2010), and guidelines for parenting coordinators (APA, 2012). The Association of Family and Conciliation Courts also provides guidelines (AFCC, 2005; 2006; 2010). Additionally, many books and journal articles are devoted entirely to topics of interest to forensic specialists. That said, these resources are not always helpful to those mental health professionals who lack forensic training but who are voluntarily undertaking one or more of the roles listed in the remainder of Table 1. This article will therefore focus instead on the remaining court-related roles that mental health professionals sometimes undertake naively or find themselves embroiled in unexpectedly.
The remaining sections of Table 1 list voluntary and involuntary roles that are sometimes undertaken by mental health professionals who are “legally uninformed clinicians,” who “know very little about forensic issues or the experience of testifying” and who thereby “run an increased risk of exposing themselves to legal liability“ (Knapp, Younggren, VandeCreek, Harris, & Martin, 2013, p. 139). For example, the second section of Table 1 lists voluntary “hybrid” roles which combine clinical and forensic functions. This would include cases in which a psychotherapist accepts a referral to provide court-ordered therapy for members of a separating or divorcing family while also serving as advisor to the court about the custody decisions in their legal case. These are “quasi-forensic clinical roles” that are “clinical in function yet require a level of forensic sophistication necessary for effective intervention” (Greenberg & Gould, 2001, p. 470). Although such roles should be undertaken only by “forensically-informed” mental health professionals (Greenberg, Gould, Gould-Saltman, & Stahl, 2003, p. 245), clinicians who are naive about the ethical, legal, and clinical implications of their participation in legal proceedings may often find themselves in such cases, whether voluntarily or involuntarily.
There is a small body of literature containing resources for those who serve in “hybrid” roles voluntarily. (See, for example, AFCC, 2010; Dewey & Gottlieb, 2011; Greenberg, 2019; Greenberg & Gould, 2001; Greenberg, Gould-Saltman, & Gottlieb, 2008; and Welsh et al., 2009). However, the available literature can sometimes confuse matters when it fails to make clear distinctions among the various court-related roles and their differential ethical obligations.
To facilitate the discussion of court-related roles and their ethical obligations, we will use a “hat” metaphor to describe some of the roles that that mental health professionals might play in court-related cases. Regardless of the context, “mental health professionals should (1) be aware of exactly what hat(s) they are wearing at any given moment, (2) understand the ethical responsibilities of each hat they wear; (3) avoid multiplying hats unnecessarily; and (4) avoid wearing potentially conflicting hats whenever legally possible” (Fisher, 2013, p. 118).
Ethical Responsibilities in All Roles
Certain ethical responsibilities will apply regardless of the hat(s) one wears, because mental health professionals are expected to uphold their Ethical Standards in all roles and settings. Below, we will discuss three of the ethical issues that would apply in all roles and contexts: Informed Consent; Competence; and Dual Relationships. Other ethical responsibilities will also apply in various roles, including court-related roles, as discussed in later sections.
- Informed Consent
First, regardless of their role(s), mental health professionals are ethically required to begin each professional relationship with an informed consent conversation. In other words, they must first provide certain information; and then the informed person gives (or refuses to give) consent to receive services under the conditions described. But informed consent is not a one-shot thing. As required by most professional ethics codes, this conversation should be re-opened whenever appropriate (see below).
Second, regardless of the “hat” they wear, mental health professionals are ethically required to obtain informed consent for disclosure of confidential information. This consent can be obtained either (1) during the initial informed consent conversation at intake, when describing the “limits of confidentiality” that will apply to all clients (above); or (2) at any subsequent time before making a disclosure specific to this client, such as when using a “consent for release of information” form before disclosing information to the client’s family member or attorney or testifying in the client’s court case voluntarily.
At either time, the informed consent conversation involves more than just providing information. As noted in the APA and NASW Ethics Codes, we must provide sufficient opportunity for the client to ask questions and receive answers (APA Ethical Standard 10.01a; NASW Ethical Standard 1.03). This informed consent process is ethically so important because it protects the rights of prospective clients to give “informed refusal” rather than give consent, or to withdraw a previously-given consent (NASW Ethical Standard 1.03a). It is also ethically important to avoid obtaining “uninformed consent“ (Fisher, 2013, 2016), which is defined here as “a signature on a consent form by a client who was not adequately informed about the possible implications of giving consent.”
“One trap we can fall into is resenting consent as a formality to be gotten out of the way. . . Viewing consent as an obligation and burden makes it hard to meet the needs of patients. . . A first step in remedying the situation is to recognize that informed consent is not a static ritual but a useful process.” (Pope & Vasquez, 2016, pp 185-186)
The Center for Ethical Practice (2016) provides a chart of the extensive information that must be shared with prospective clients during the initial informed consent process, as required by specific Ethics Codes. (See at https://www.centerforethicalpractice.org/informedconsentchart )
Table 2 provides a much more limited list of some of the ethically-required content that can be especially relevant to court-related cases. The links can be used to access your own profession’s Ethics Code to read the complete ethical standards. Regardless of profession, all mental health clinicians can learn from reviewing all the ethical standards and guidelines about informed consent as listed and described below, whether or not provided by their own profession.
Using Clear and Understandable Language: In court-involved cases it is especially important to be sure the prospective client understood the information provided in the initial informed-consent conversation. The APA and AAMFT Ethics Codes require that the conversation use “language that is reasonably understandable” to clients (APA Ethical Standard 3.10a and AAMFT Ethical Standard 1.2). The ACA Ethics Code requires that information about the rights and responsibilities of both counselors and clients be presented both “in writing and verbally” (ACA Ethical Standard A.2.a). NASW requires not only that social workers “should use clear and understandable language” but also that “when clients are not literate or have difficulty understanding the primary language used in the practice setting,” social workers “take steps to ensure clients’ comprehension. This may include providing clients with a detailed verbal explanation or arranging for a qualified interpreter or translator whenever possible” (NASW Ethics Code 1.03a, b). Finally, as noted above, it can be ethically important to provide clients with ample opportunity to ask questions and receive answers (e.g., see APA Ethical Standard 10.01; NASW Ethical Standard 1.03).
Providing Ethically-Required Information: Table 2 provides a very abbreviated list. Every profession’s Ethics Code contains a much longer list of requirements about specific information that must be provided to prospective clients in the initial informed-consent conversation. (For example, see lists at Center for Ethical Practice, 2014.) The subjects below are included in Table 2 because they are especially relevant to a discussion of the ethical issues in court-related cases.
- Limits of Confidentiality: In order to adequately protect prospective clients, clinicians must protect their right to know the risks before they share sensitive personal information that the clinician might later be required to disclose without their consent. [See later section for further discussion about “Potential Disclosures”] Ethics Codes have Standards requiring that this aspect of the initial informed-consent conversation must take place “at the outset of the relationship” (APA Ethical Standard 4.02b), “at initiation” (ACA Ethical Standard B.1.d), and “as soon as possible” (NASW Ethical Standard 1.07e). The timing is important. If the clinician delays this part of the intake, the prospective client may begin the initial interview by sharing information that the clinician might later be required to disclose to others, whether required by agency policy or required by law.
What to say to clients about the potential limits of confidentiality will depend entirely upon the “hat” you are wearing at the moment, as well as the hat you could be legally required to wear later. One of the biggest ethical mistakes in court-related cases occurs at intake and involves making confidentiality promises that will be impossible to keep.
When conducting intakes with prospective psychotherapy or assessment clients, you inform them about the underlying confidentiality rule and its standard exceptions (e.g., reports mandated by your state laws or required by policy in your setting). But depending upon the laws in your state, it will also be important to inform them that if they later become involved in a court case, you can be court-ordered to don the second “hat” of provider of treatment records and/or the hat of courtroom witness without the client’s consent. (See Section 4 of Table 1
The NASW Ethics Code (2017) requires that social workers “review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required” and specifies that this conversation occur “as soon as possible in the social worker–client relationship” (NASW Ethical Standard 1.07e).
Similarly, the AAMFT Ethics Code (2015) requires that therapists not only review with prospective clients “the nature of confidentiality and possible limitations of the clients’ right to confidentiality” but that they also “review with clients the circumstances where disclosure of confidential information may be legally required” (AAMFT Ethical Standard 2.1) and “clarify roles and the extent of confidentiality when legal systems are involved” (AAMFT Ethical Standard 7.5). In multi-person cases, such as in couple or family therapy, the ACA Ethics Code requires that “counselors seek agreement and document in writing such agreement among all involved parties regarding the confidentiality of information” (ACA Ethical Standard B.4.b).
As discussed in detail later, if you are a psychotherapist, it is ethically important to remember when donning a second court-ordered “hat” that you still continue to wear the initial “psychotherapist hat” or “evaluator hat,” and that this affects how you must respond to that second court-ordered role, especially as it relates to disclosure of confidential information. This is important whether the case involves a current client or a former client.
However, sometimes clinicians wear a court-related “hat” from the beginning. (See Sections 1 and 2 in Table 1 above). In such cases you are ethically required to begin by providing different information about the limits of confidentiality. For example, if you begin the relationship in the role of a forensic psychologist conducting a court-ordered evaluation, you must inform prospective examinees that whatever they tell you will not be treated as confidential, because it may be included in your report to the court or disclosed in your deposition or courtroom testimony. The APA Ethics Code (2017) requires that clinicians inform prospective clients about “whether the services are court-ordered or mandated and any limits of confidentiality before proceeding” (APA Ethical Standard 3.10c).
Similarly, if you provide CIT (Court-Involved Therapy) or practice FFP (Family Forensic Psychology) and are conducting an intake with a family that is involved in a custody dispute, you must begin the relationship by explaining that you will be wearing not only a “family therapist hat,” but that you will also be wearing the second “hat” of adviser to the court in their custody case. Ethics texts call such cases “hybrid” cases, because the clinician has loyalties to both the client(s) and to the court. This is also the case in court-ordered therapy cases. Obviously, the discussion of limits of confidentiality in such cases must be very different from the intake discussion in a standard therapy case where the clinician is not wearing that second “hat.”
Regardless of role, the initial informed consent discussion of confidentiality is ethically important. Mental health professionals in any role are responsible for informing prospective clients about foreseeable limits of confidentiality before obtaining their consent to receive services. This initial discussion protects the individual’s right to give “informed refusal” rather than incur the risks of giving “uninformed consent” and entering the relationship inadequately informed and therefore unprotected (Fisher, 2013, pp. 58, 69). The “limits of confidentiality” portion of the initial informed consent conversation has been described as the ethical equivalent of a legal “Miranda Warning,” whereby individuals are warned that the information they confide might later be disclosed in a way that could be used against them. The client’s right to be informed about “limits of confidentiality” is important in all aspects of clinical practice, but it is especially important in court-related roles.
Note, however, that in order to be prepared to inform prospective clients, mental health professionals must first inform themselves. “Practitioners need to fully understand the law in the state in which they practice so that they can help clients avoid situations in which what they say in psychotherapy might be used against them in a court of law” (Younggren & Harris, 2008, p 592). This includes being prepared to provide a state-specific warning about the confidentiality implications of giving consent to receive services. In order to be adequately prepared for this conversation, mental health professionals must be clear not only about legal matters (such as the exceptions to the therapist-client privilege laws in their state), but also must understand the nature and implications of any role they might potentially play in a court case (Fisher, 2008, 2012, 2013).
[Note: See further discussion of “limits of confidentiality” below, in section entitled “Potential Disclosures,” which considers ethical difference between voluntary and “involuntary” disclosures.]
- Nature, Purpose, & Anticipated Course of Services: This part of the initial informed consent conversation is often neglected because it can be clinically impossible to develop a treatment plan in the first session. However, rather than completely ignoring this ethically-required topic at the intake interview, it can be important to at least inform the prospective client about the general nature and purpose of the particular types of service they may be giving consent to receive, and about the implications if they become involved in a court case. Other aspects of these topics can be discussed further as treatment goals are determined
The AAMFT Ethics Code (2015) requires that prospective clients be “adequately informed of significant information concerning treatment processes and procedures” (AAMFT Ethical Standard 1.2). The APA Ethics Code (2017) requires that before giving consent for therapy services, prospective clients need to be informed about such things as “the nature and anticipated course of therapy, fees, and the involvement of third parties” (APA Ethical Standard 10.01). The NASW Ethics Code (2017) require that prospective clients be informed about “the purpose of the services, risks related to the services. . . relevant costs, reasonable alternatives, clients’ right to refuse or withdraw consent, and the time frame covered by the consent” (NASW Ethical Standard 1.03a). The ACA Ethics Code (2014) provides the longest list of possible subjects:
“They inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor’s qualifications, credentials, relevant experience, and approach to counseling; continuation of services upon the incapacitation or death of the counselor; the role of technology; and other pertinent information. Counselors take steps to ensure that clients understand the implications of diagnosis and the intended use of tests and reports. Additionally, counselors inform clients about fees and billing arrangements, including procedures for nonpayment of fees.” (ACA Ethical Standard A.2.b.)
Resuming this aspect of the informed consent conversation is necessary if circumstances change or if the service the client will receive is not a typical one, or is experimental. (This will be discussed further in later sections about specific roles.)
- Involvement of Third Parties: The content of this part of the informed consent conversation will be governed by the circumstances of the case. When services are performed to or through an organization, the APA Ethics Code (2017) requires that prospective clients be informed about “which of the individuals are clients” and “the relationship the psychologist will have with each person and the organization” (APA Ethical Standard 3.11). The AAMFT Ethics Code (2015) requires that if services are provided at the request of a third party, the marriage and family therapist clarify “the nature of the relationship with each party and the limits of confidentiality” (AAMFT Ethical Standard 1.13); and APA (2017) has a similar requirement (APA Ethical Standard 3.07). These Ethical Standards would apply if the court (or a court-related entity) is involved in contracting for the services, or if the services are ordered by the court.
The NASW Ethics Code (2017) requires social workers to inform prospective clients if there will be “limits to the services because of the requirements of a third party payer.” (NASW Ethical Standard 1.03). Similarly, the APA Ethics Code (2017) requires that “if limitations to services can be anticipated because of limitations in financing, this is discussed with the recipient of services as early as is feasible” (APA Ethical Standard 6.04dI).
In a court-ordered forensic evaluation, or in any of the “hybrid” roles described in Table 1, it is essential to inform the prospective client that you begin the case with an understanding that there will be court involvement. This makes she court a “third party” in the case from the beginning, so the relationship with the court must be discussed in the initial informed-consent conversation, with special attention to the implications for addressing the resulting “limits of confidentiality.” Unless the client gives informed consent at intake for the expected release of information to the court or gives subsequent informed consent at the time of the release, a mental health professional has no ethical basis for releasing confidential information unless required by law or court order. (See discussion below of “Subpoenas vs. Court Orders.”)
Documenting the Informed Consent Conversation. Regarding all the items listed in Table 2, mental health professionals must remember that a signature on a consent form is not synonymous with informed consent. As discussed later, this is especially important in court-related cases. Obtaining “truly informed consent” involves more than obtaining a signature on a form; it requires actually informing the client, and that requires providing the relevant information in understandable language. Rather than simply “going through the motions” and complying with “minimal standards of informed consent that psychologists often have chosen to employ (the ethical floor) . . . the principle of informed consent can inspire psychologists to endeavor toward the highest possible level of ethical behavior (the ethical ceiling)” (Pomerantz, 2012, p. 311). (See discussion of “empowered collaboration” in Pomerantz, 2012; and the consent forms provided by Pomerantz & Handelsman, 2004. See also the discussions of informed consent in Chapter 5 of Fisher, 2013, and in Chapter 2 of Fisher, 2016.)
Re-Opening the Informed Consent Conversation: Obtaining informed consent is not a “one-shot” thing. It is an ongoing process. For example, the ACA Ethics Code (2015) indicates that “informed consent is an ongoing part of the counseling process, and counselors appropriately document discussions of informed consent throughout the counseling relationship (ACA Ethical Standard 2.a, emphasis added).
This is particularly important when it comes to discussion of limits of confidentiality. For example, the APA Ethics Code (2017) requires that the informed consent discussion of “limits of confidentiality” be conducted not only “at the onset of the relationship” but also “thereafter as new circumstances may warrant” (APA Ethical Standard 4.02b). The NASW Ethics Code (2017) specifies that the discussion of confidentiality’s limits occur “as needed throughout the relationship” (NASW Ethical Standard 1.07e). The AAMFT Ethics Code (2015) notes that “circumstances may necessitate” re-opening this aspect of the informed-consent conversation (AAMFT Ethical Standard 2.1). The APsyA Ethical Principles (2013) stipulate that “the continuing duty of the psychiatrist to protect the patient includes fully apprising him/her of the connotations of waiving the privilege of privacy” (APsyA Principle 4.2).
Finally, as required by APA Ethical Standards 3.10(c) and 4.02(b), if services are legally mandated, or if a legal case appears likely, a psychologist must reopen this informed consent conversation for a discussion of the potential implications for confidentiality.
Mental health professionals may practice only within areas for which they are qualified by training and experience. In addition to general statements about competence, some Ethics Codes contain Standards specific to court-related competence.
The APA Ethics Code requires that mental health professionals who assume roles in the legal system “are or become reasonably familiar with the judicial or administrative rules governing their roles” (APA Ethical Standard 2.01f). In other words, whether or not they have received formal training as forensic specialists, mental health professionals who voluntarily assume a court-related role are expected to be familiar with the workings of the legal system and aware of the ethical obligations of their role. Those who find themselves ordered by a judge to participate involuntarily in a court-related role should obtain consultation in order to learn the legal parameters of that role, as well as its ethical responsibilities and possible complications, as well as the predictable dilemmas of wearing that particular hat, in order to protect the rights of their client (Knapp, VandeCreek & Fingerhut, 2017)
In regard to providing testimony in a legal case, the AAMFT Ethics Code (2015) states as follows:
“Marriage and family therapists who provide expert or fact witness testimony in legal proceedings avoid misleading judgments, base conclusions and opinions on appropriate data, and avoid inaccuracies insofar as possible. When offering testimony, as marriage and family therapy experts, they shall strive to be accurate, objective, fair, and independent . . . Marriage and family therapists demonstrate competence via education and experience in providing testimony in legal systems.” (AAMFT Ethical Standards 7.2 and 7.3.)
General advice about competence from the NASW Ethics Code (2017) is also relevant in legal contexts:
“Social workers should provide services and represent themselves as competent only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience” and “ should provide services in substantive areas or use intervention techniques or approaches that are new to them only after engaging in appropriate study, training, consultation, and supervision from people who are competent in those interventions or techniques” (NASW Ethical Standard 1.04).
Similarly, the American Psychiatric Association (APsyA, 2013) stipulates that “a psychiatrist who regularly practices outside his or her area of professional competence should be considered unethical” (APsyA, 2013, Principle 2.3).
Mental health professionals who are unfamiliar with the legal system can be surprised by the ethical complications that can arise and can easily become confused about their role. The legal process can be complicated, attorneys can be deliberately aggressive, and mental health professionals inexperienced with the process may easily be intimidated (Fisher, 2013). “Most mental health professionals are not lawyers. In fact, at best, lawyers make most mental health professionals quite anxious, and this anxiety can result in responses to legal demands that can harm their clients’ interests and put themselves at risk” (Harris & Younggren, 2011, p. 13).
It is sometimes suggested that mental health professionals who work with court-involved families should learn to “adjust their practices to the expectations and standards of the legal arena” (Greenberg, Gould-Saltman & Gottlieb 2008, p. 193). To some extent this may be appropriate advice for clinicians who choose to be involved in court-related cases. However, mental health professionals are not ethically free to voluntarily “adjust” their practices in a manner that would conflict with their own ethical or clinical standards. While familiarizing themselves with the legal process, they must remain clear about their ethical responsibilities as applied to the legal roles they might enter, and not neglect those in favor of a legal focus.
It complicates matters that mental health professionals are not always able to trust the advice they receive from attorneys. That can sometimes be true if the attorney for one’s practice is unfamiliar with mental health law, and it is sometimes true even about advice received from a client’s own attorney; but caution is especially advised if the legal advice comes from the attorney of someone who is the client’s adversary in a court case. The Trust (formerly the APA Insurance Trust) alerts mental health professionals to the ethical and legal pitfalls created by bad advice, citing situations in which attorneys have lied and “misrepresented the legal obligations engendered by a subpoena” and threatened the clinician with legal action “for failing to respond to a subpoena when, in fact, the subpoena from an attorney alone does not permit the psychologist to reveal information” (Knapp et al., 2013, p. 143). Similarly, Harris and Younggren (2011) describe intimidating misrepresentations by attorneys, including such things as claiming “My subpoena is actually a court order” (p. 13). (For further discussion of interactions with attorneys, see later section, “Subpoenas vs. Court Orders.”) It is therefore important to seek trustworthy legal advice from an attorney familiar with mental health law in one’s own state.
However, for gaining competence in any role, consultation must not stop with obtaining legal advice. “Attorneys are experts about the law, but therapists must take responsibility for being experts about the ethics of their own profession. They should be familiar with their ethical responsibilities, able to describe them clearly, and prepared to ask their legal questions from that perspective” (Fisher, 2013, p. 48). In other words, mental health professionals are expected to be familiar with the Ethics Code and relevant Guidelines of their own profession, and toward that end those who become involved in court cases can benefit from a trustworthy ethics consultant.
Consultation can be an essential means of obtaining and maintaining professional competence. However, unless the clinician has obtained consent for the consultation from the client(s), it will be ethically important not to provide any identifying information to the consultant. In this regard, peer consultation groups can provide professional support in stressful court-related cases, but group members who will recognize the case should recuse themselves from the discussion unless the presenting clinician has obtained consent from the client(s) to share identifiable information with the group.
- Dual Roles & Conflicts of Interest
Ethical practice requires that mental health professionals avoid problematic dual roles or conflicts of interest whenever legally possible. (See, for example, APA Ethical Standards 3.05, Multiple Relationships; and 3.06, Conflict of Interest; ACA Ethical Standard A.6., Managing and Maintaining Boundaries and Professional Relationships; NASW Ethical Standard 1.06, Conflicts of Interest). “Although not all multiple roles are ethically inappropriate, caution demands careful parsing of particular roles” in court cases (Woody, 2009, p. 79, emphasis added).
For example, the AAMFT Ethics Code contains detailed instructions about avoiding dual roles and conflicts of interest when conducting forensic evaluations. In Section VII of that Ethics Code, which is devoted to “Professional Evaluations,” there are Ethical Standard 7.5 (“Avoiding Conflicts”), Ethical Standard 7.6 (“Avoiding Dual Roles”), and Ethical Standard 7.7 (“Separation of Custody Evaluation from Therapy”). Taken together, these Ethical Standards make it very clear that it is ethically important to avoid combining the roles of therapist and evaluator. “Clear distinctions are made between therapy and evaluations. . . Marriage and family therapists avoid providing therapy to clients for whom the therapist has provided a forensic evaluation and avoid providing evaluations for those who are [therapy] clients, unless otherwise mandated by legal systems.”
The APA Ethics Code addresses the issue of conflicting roles in couple or family therapy. “If it becomes apparent that psychologists may be called on to perform potentially conflicting roles (such as family therapist and then witness for one party in divorce proceedings), psychologists take reasonable steps to clarify and modify, or withdraw from, roles appropriately” (APA Ethical Standard 10.02). Furthermore, “when psychologists are required by law, institutional policy, or extraordinary circumstances to serve in more than one role in judicial or administrative proceedings, at the outset they clarify role expectations and the extent of confidentiality and thereafter as changes occur” (APA Ethical Standard 3.05c). (See “Re-Opening the Informed Consent Conversation,” above.)
Mental health professionals who are unfamiliar with the court system can be slow to realize that some of the court-related roles described in the following sections will explicitly involve wearing multiple hats and/or juggling conflicting loyalties. This makes it less likely that they will be prepared to deal with that fact and less likely that, in advance, they will discuss with all involved parties the implications of their potential dual roles.
Some voluntary court-related dual roles are easily avoidable. For example, mental health professionals are cautioned to avoid combining a forensic hat with a therapist hat. “Knowledge is necessary to provide both types of service. Wisdom is necessary to choose not to provide both services to the same person” (Greenberg and Shuman, 2007, p.129). Knapp et al. (2017) similarly advise against “mixing treatment and forensic relationships. . . The forensic role differs considerably from the treatment role. Whereas a psychotherapist focuses on the welfare of the client, forensic mental health professionals have their primary obligation to the attorneys or courts that hired them. Their relationships with the clients are courteous but not necessarily intended to promote their welfare” (pp. 175-176). For this reason, both the APA Forensic Guidelines (2013) and the APA “Guidelines for Child Custody Evaluations in Family Law Proceedings” (2010) contain cautions against combining the roles of therapist and forensic examiner.
Dual relationship issues can overlap with the confusions created when mental health professionals ask the singular question, “Who is the client?” (Fisher, 2009). As discussed later, mental health professionals in court-related roles can reach more clarity by asking instead, “Which hat(s) am I wearing?” and “In whose behalf?” Sometimes the answer to both questions can be singular, but by definition, mental health professionals in “hybrid” roles must deal with two “clients” simultaneously. For example, clinicians who provide therapy services to a court-ordered client will enter the case having loyalties and responsibilities to both the court and the client, because these two hats are donned simultaneously: One hat creates contractual responsibilities to the court (because it ordered the therapy and probably expects a report, which requires disclosing client information), and the other hat creates ethical responsibilities to the therapy client (whose rights are protected by the psychotherapist’s Ethics Code). This combination of hats can make “hybrid” roles ethically complicated. This is discussed in later sections about such roles.
Finally, forensic specialists sometimes erroneously advise their clinician colleagues who are not forensic specialists that whenever mental health professionals are involved in a court-related case, they must consider the court to be “their client” and that their primary responsibility is always to assist the court, not to protect the client’s confidentiality. This advice would be appropriate for someone who enters the court wearing only a neutral “forensic specialist hat.” In fact, according to the APA Forensic Guidelines (2013), “the client” is always defined as the entity who requested and/or pays for their forensic services, whereas the person being evaluated is described simply as “the examinee.” However, when someone enters the courtroom wearing a “psychotherapist hat,” it is not appropriate to advise them that the court is their client. Even if the psychotherapist dons a court-related hat atop that clinical hat, from an ethical perspective the psychotherapy client remains “the client.” The term “atop” is important here, because it can be easy for mental health professionals to forget that the initial clinical hat not only remains, but that it remains the primary hat. Adding the court-related hat does not remove any of the ethical or clinical responsibilities of that initial role, and this would be true whether the psychotherapist is testifying voluntarily or involuntarily.
There are important ethical differences between (1) planned disclosures for which the client has given consent and (2) unplanned, unexpected, and/or “involuntary” disclosures which may be legally required whether or not the client gives consent and whether or not the clinician wants to disclose the information.
The earlier section on “Informed Consent” emphasized the importance of informing prospective clients about potential “limits of confidentiality” – the circumstances when the clinician knows that confidential information might be disclosed without the client’s consent. Mental health professionals are often very unprepared for this conversation, either because (1) they have not spent enough time outlining the predictable “voluntary” limits of confidentiality that will actually apply in their own practice or agency, and/or because (2) they are not familiar enough with the potential “involuntary” disclosures that can be imposed by the state’s laws and regulations. (See above for how this course defines the term “involuntary.”)
Table 3 outlines some of the disclosure details that clinicians should be ready to discuss with prospective clients. This outline can be useful in two important ways. First, in preparation for the initial informed consent conversation, it can be a study guide for clinicians to use while clarifying their own policies about potential disclosures of confidential client information. Second, during this ethically- and legally-required initial informed consent conversation with prospective clients, this outline can be very useful as a client handout that helps clinicians describe potential “limits of confidentiality.”
This outline needs little or no explanation, but we will briefly review some of the possible ways of adapting Table 3 for use in your own setting. This list in this Table might apply in any clinical case, but the focus here will be on court-related disclosures.
- Voluntary Disclosures
For cases that fall in this section of Table 3, prospective clients are informed that if they give consent to receive services, they are consenting to accept certain policies and conditions. This includes policies about voluntary disclosures of identifiable client information without obtaining the client’s further consent at the time of the disclosure.
For a clinician in individual private practice, the nature of voluntary disclosures will be entirely within the control of the individual who owns the practice. That clinician will also have the sole responsibility for being sure the information provided to prospective clients is accurate and complete, and that it is provided in language simple enough for them to understand. Finally, that clinician will be responsible for training all clinical and non-clinical staff in the setting, in order to be sure they understand how to protect client confidentiality and other client rights.
For group practices, however, there is a problem if some of the clinicians in the group are insufficiently informed about policies that can generate disclosures of confidential information. It would be important for the owners of group practices to provide a complete list of all potential voluntary disclosures to all their participating clinicians – whether employed or independently contracted – so that they will themselves be informed enough to adequately inform their potential clients. Group practice owners are also responsible for being sure all members of the group are using accurate and adequate informed-consent forms, regardless of whether all must use uniform forms or whether they are free to create their own forms.
For agency clinicians, it will be important that they not only obtain all the necessary information about the agency’s policies, but that the forms they provide to prospective clients will adequately inform them about the agency’s actual policies regarding voluntary disclosures. Otherwise, it may be necessary for the clinician to offer to help revise the forms or (if that is not possible) to create a personally-constructed checklist adapted from Table 4 to use during the initial informed consent conversations with potential clients.
Most voluntary disclosures would apply to all clients, so the same list of “limits of confidentiality” can be provided to all potential clients in a Notice of Privacy Practices – or as a list adapted from Table 3. Finally, regardless of the nature of the practice or setting, it will be important for someone to be responsible for providing training to the non-clinical staff. This is the only way to ensure that employees and contracted agents will not be providing “off-the-list” disclosures. The Center for Ethical Practice (2009) provides sample contracts that will make compliance with confidentiality policies a condition of employment.
NOTE: For any voluntary disclosure that the clinician did not explain at intake as a potential “limit of confidentiality,” the clinician must thereafter obtain the client’s written consent before disclosing the confidential information. This is legally required by the federal HIPAA regulations (see HIPAA “Final Rule,” 2013); as well as ethically required (see Fisher, 2016 and your own professional Ethics Code. For example see AAMFT Ethical Standard 2.2, Written Authorization to Release Client Information; ACA Ethical Standards 3.10d, Informed Consent; and 4.05, Disclosures; NASW Ethical Standard 1.07, Privacy and Confidentiality.)
- “Involuntary” Disclosures
Every state has some “reporting laws” that require mental health professionals to disclose confidential information in certain circumstances. For example, all states have laws requiring the reporting of abuse or neglect of children or incapacitated adults, and most states have some form of “duty to warn” or “duty to protect” law that applies if the client threatens harm to an identifiable person. Such disclosures are legally required whether or not the clinician wants to disclose and whether or not the client gives consent.
In contrast, every state also has laws that prohibit disclosures. For example, states have privilege laws that protect the information from certain types of relationships from being used as evidence in court cases. These can include husband-wife privilege laws, attorney-client privilege laws, etc., which legally recognize certain protected relationships. Therapist-client relationships are ones in which privilege laws can protect the information generated in that relationship from being used as evidence in a court case without the client’s consent. However, these privilege laws have exceptions, which allow attorneys to issue subpoenas to mental health professionals, and these can lead to court orders for disclosure. (See below.)
Across states, there are wide variations in the exceptions to privilege, so it is necessary for clinicians to clarify what the exceptions will be in their own state. For example, in most states, information confided to a mental health professional may not have full privilege protections in a child abuse case, or in a court case where the client brings his/her own mental health into issue in the case (e.g., by suing someone for causing them psychological pain or distress). In some states, there is little or no clinician-client privilege in criminal cases. In a very few states, there is a “judicial-discretion exception” to therapist-client privilege – the broadest and least predictable type of exception – which gives each judge the legal authority to order any therapist to disclose confidential information in any type of case.
The risk of such legally-imposed disclosure demands can apply to any client, which is why such potential “limits of confidentiality” should be explained to all potential clients during the initial informed-consent conversation, before obtaining consent to provide services. These potential risks of disclosure should also be included in the HIPAA-required Notice of Privacy Practices or provided to clients in an equivalent document in settings where HIPAA does not apply.
It is not always easy to obtain a complete list of potential “involuntary” disclosures that might apply in your own state. In some states, the mental health associations or other professional organizations can provide a list of potential legally-imposed disclosures. (See, for example, Fisher, 2014.) Some national professional associations also provide state-specific lists of potential limits of confidentiality or a state-specific sample “Notice of Private Practices.” If none of these are available in your state, you might consider joining with other colleagues in creating such a list. This can be an interdisciplinary endeavor, since most such laws apply across professions.
Additionally, for agency employees, disclosures may be required either by policy or by law. For example, an agency is free to create policies allowing disclosures to other related agencies for coordination of services. In state agencies, legal regulations can impose disclosure requirements in various circumstances. The agency has responsibility for providing a list of potential disclosures for its mental health employees
Subpoenas vs. Court Orders:
Knowing the difference between a subpoena and a court order is not only legally important, but it is also ethically necessary, because the legal difference can lead to very different ethical responsibilities.
- What is the Legal Difference?
First, this is how the two are described in the 2013 Second Edition of the risk-management handbook published by The Trust, a malpractice insurer:
“A subpoena is a document issued by an attorney instructing the recipient to provide documents or to be present to give oral testimony. The exact form of a subpoena may vary from jurisdiction to jurisdiction, but it typically includes a signature or stamp of the clerk of court, prothonotary (court clerk) or an attorney.
“A court order is a document issued by a presiding judge that instructs the recipient to provide documents or oral testimony. The exact form of the court order may vary from jurisdiction to jurisdiction, but it typically includes identification of the case and the signature of the judge.” (Knapp et al., 2013, p. 121)
These definitions may seem almost identical, but note that the origins of the documents are different: “A subpoena is a lawyer’s assertion that she/he is entitled to the requested information, while a court order results when a judge orders that the information be released as evidence (APA Practice Organization, 2011, November 17, page 1). The first subpoena you receive in a given case will rarely, if ever, be a court order.
This makes it very important to be able to tell the difference between a subpoena and a court order. Which one did you receive? There are some ways to tell:
“A court order typically has “order” typed on it and is signed by a judge or magistrate. It will often have verbiage reflecting that one party has brought a motion to compel you to provide documents or testimony, the court has considered that motion, and it is now ordering you to provide the requested information. . . .
“A subpoena typically has “subpoena” typed on it and is signed by an attorney instead of a judge. It may be issued by a clerk of the court. If you are still unsure whether the document is a subpoena or court order, you can contact the clerk of the court that issued the subpoena or, if a particular judge is identified on the document, you can ask to speak to that judge’s law clerk.” (APA Practice Organization, 2011, November 17, p. 1)
- Why is This Legal Difference Ethically Important?
Ethically, mental health professionals have no basis for releasing confidential information without a court order unless they have obtained the client’s informed consent for information to be released. In other words, ethically speaking, “a subpoena from an attorney alone does not permit the psychologist to reveal information” without the client’s consent (Knapp et al., 2013, p 121).
Legally, a subpoena does require some response, usually within a specified time period. The nature of the response will depend upon several variables, including the nature of the court case, the nature of the information being requested; the client’s wishes about the disclosure; the legal response options under your state’s laws. Once informed about the nature of the information being requested, the informed client may decide to give consent for its released in response to the subpoena. However, when an informed client objects to releasing the confidential information and refuses to sign an authorization for its release, the mental health professional is ethically obligated to initiate a legal response to the subpoena, attempting to avoid or limit the disclosure of information.
Because subpoenas can be legally contested, it is ethically important to contest the subpoena unless the client has given consent for the disclosure. In contrast, there are few if any legal options for contesting a judge’s order, and therefore disclosing in response to a court order is more ethically acceptable.
Regrettably, “there have been situations in which attorneys have lied and misrepresented the legal obligations engendered by a subpoena and have threatened the psychologist with legal action for failing to respond to a subpoena when, in fact, the subpoena from an attorney alone does not permit the psychologist to reveal information” (Knapp et al., 2013, p. 143). Similarly, Harris and Younggren (2011) report that attorneys sometimes mislead clients by claiming that their subpoena is actually a court order. “The fact that an attorney representing one side tells you that a subpoena is a court order does not mean that it compels the release of information about your clients” (p 13).
In other words, competence in legal contexts includes an understanding of certain legal matters, such as the difference between a subpoena and a court order; but ethical competence requires an understanding that these legal distinctions can have very important ethical implications. Legally, it is not appropriate to completely ignore a subpoena; but ethically, “although a subpoena requires some response, a subpoena alone will generally not be sufficient to warrant a disclosure of confidential information” (APA Committee on Legal Issues, 2006, p. 215).
- So exactly how should a mental health professional respond to a subpoena?
“Receiving a subpoena, a legal command to testify about a client or turn over client records, is often a perplexing and anxiety-provoking experience” (APA Practice Organization, 2008, Fall, p 2). It can be important for the recipient to pause long enough to be sure about such things as (a) who sent it, and what is their role in the case? and (b) exactly what is being requested? There must be a response within a legally-determined time frame in your state. But responding too quickly can lead to mistakes with ethical and legal implication.
General ethics texts often include helpful information and advice about responding to subpoenas. APA provided a useful flow-chart in their article, “Strategies for Private Practitioners Coping with Subpoenas or Compelled Testimony for Client Records or Test Data” (APA Committee on Legal Issues, 2006); and other APA publications provide detailed clarifications and advice. The following “Q&A” was adapted from the one published by the APA Practice Organization in their Fall 2008 issue of Good Practice:
“Question: I intend to comply with the subpoena. Should I just turn over the documents or show up to testify, or do I first need my client’s written consent?
“Answer: Turn over the information only if your subpoena qualifies as a court order, unless your client gives consent for you to disclose it voluntarily. In most states, you can turn over the documents or show up to testify without obtaining your client’s consent only if the subpoena you received qualifies as a court order from a judge, which is rare. Typically a court order will be identified as such on the first page. In addition, the document will be signed by a judge, not a judge’s clerk or an attorney. If you are not sure whether the document is a court order, you may contact the court that issued the document and ask to speak to the judge’s clerk.
“If you don’t have a court order, obtain your client’s written consent or authorization. If the document is not a court order (the first subpoena you receive in a matter rarely is a court order), you will need to obtain your client’s consent or authorization before turning over confidential information. This step is required because most state and federal jurisdictions recognize a psychotherapist-patient privilege that allows the client to prevent confidential material from being disclosed to others. . . . When obtaining this consent, you should tell your client exactly what you have been asked to turn over and explain that there is no guarantee that the information will be kept confidential.” (APA Practice Organization, 2008, Fall, p. 4.)
When a court order is received, there are few legal options available for protecting the information. However, the ACA Ethics Code requires that “When ordered by a court to release confidential or privileged information without a client’s permission, counselors seek to obtain written, informed consent from the client or take steps to prohibit the disclosure or have it limited as narrowly as possible because of potential harm to the client or counseling relationship” (ACA Ethical Standard B.2.d., Court-Ordered Disclosure)
At various stages of this response, it may be helpful to consult with the patient’s own attorney with the client’s consent. Attorneys may advise the clinician that obtaining the client’s consent is not necessary. However, whether or not it is legally necessary to obtain the client’s consent in this circumstance, it is ethically necessary to obtain consent before disclosing confidential information, even to the client’s attorney. In order to obtain “truly informed” consent, it would be important to inform the client about what will be revealed to the attorney.
The following steps provide some ethical options for responding to an attorney-initiated subpoena:
- Clarify who sent the subpoena. If this is not immediately clear on the face of the subpoena, contact the clerk of the court from which it was sent and ask the name of the attorney (and/or law firm) where it was initiated. If it was sent by the client’s attorney, obtain the client’s consent to have a conversation with the attorney about the implications. The attorney cannot possibly know what is in the records or what you might say in your testimony. Depending on the nature of the confidential information, releasing it to be potentially used as evidence may not be in the client’s best interest. [See later section on “Prevention.”]
- Clarify what is being requested and identify who is requesting it. The subpoena will be one of two types, depending upon what is being legally requested:
(1) A subpoena duces tecum is a request that the recipient provide certain physical evidence. In most cases, when sent to a mental health professional it is a request for treatment records or other records relevant to a particular patient.
(2) A witness subpoena is a request for the recipient to provide testimony in a pre-trial deposition or court proceeding.
Several clarifications are important from the very beginning, because a misunderstanding can lead to ethical and/or legal mis-steps.
A subpoena may ask you to produce patient records and/or to testify at a deposition or hearing in your client’s case. If you have consent from your client, be sure that the consent covers what the subpoena is seeking. Consent to produce documents, for example, does not give you permission to testify at a deposition. (APAPO, Winter 2012, p. 10)
If you have questions about exactly what is being requested or exactly who is requesting it, obtain consultation from a neutral party, whether a knowledgeable colleague, your own practice attorney, or the clerk of the court from which the subpoena was sent. “Subpoenas often seem to be asking you to testify in person, when they in fact are just seeking documents. Know who you are supposed to deliver documents to, or where and when are you supposed to appear to testify. Also be sure you’re clear about the applicable due date.” (APA Practice Organization, 2008, pp 2-3.)
- Talk with the client about the subpoena. Begin by notifying the client (or former client) that you have received a subpoena regarding their case.
If the subpoena requests records and the client wants them released, review together exactly what is in the records and who will have access to them. The context is that the records are being requested for possible use in a court case involving the client, and there is a possibility that they could become part of the public discussion during the court case. If the client wants to give consent for records to be released in that context, it must be informed consent, given after being truly informed about what will be released.
If the subpoena requests your testimony, you can give the client examples of the questions that may be asked and samples of how you would answer. As above, if the client wants to give consent for you to testify, then before giving consent the client must be informed about the pros and cons of that possibility. Clients sometimes have the mistaken belief that their therapist can serve as a “good character witness“ and provide only helpful testimony, but in fact witnesses have no control over the questions that may be asked.
- Does the client want the information released? If the answer is “Yes,” then obtain the client’s written informed consent to provide the documents and/or testimony. If the answer is “No,” then the clinician has no basis for disclosing the information voluntarily, so someone needs to file a motion requesting that a judge protect the information. State laws vary about what legal procedures are appropriate at this initial stage, but in many states, someone can simply file a motion asking the judge to quash the subpoena and issue a “protective order.” If the judge refuses to protect the information, a “disclosure order” may be issued by the court. Once such a court order has been received, the clinician may have no further legal options available and the information may need to be released, even if the client does not give consent
You can discuss these options with the client’s attorney (with the client’s consent), who may be willing to file the motion at the client’s request. If the client has no attorney, or if the client’s attorney refuses to file a motion to quash the subpoena, you can file the motion yourself, either through your own attorney or on your own. (There are state-by-state variations in this legal procedure. See if your state professional association provides a protocol. For example. Virginia clinicians are successfully using the “do-it-yourself” Motion to Quash Form provided by the Center for Ethical Practice (2010), but this may not be appropriate in other states.)
Reminder: A subpoena alone does not allow you to disclose confidential information. Ethically, mental health professionals have no basis for voluntarily release of confidential information without a court order unless they have obtained the client’s informed consent for it to be released.
The topic of “Testimony” actually overlaps with all of the ethical topics in the earlier Section, “Ethical Responsibilities in All Roles”:
- Informed consent is involved, because psychotherapy clients and assessment examinees have a right to be informed in advance about the potential content and implications of testimony. Whether the hat of “witness” is donned voluntarily or involuntarily, the ethical issue of confidentiality is involved because it is the client’s private information that will be disclosed.
- Dual relationships are involved, because unless the mental health professional is wearing the neutral hat of “forensic specialist,” giving testimony will involve wearing more than one hat, and sometimes this will involve conflicting loyalties.
- Competence is always involved, Mental health professionals are responsible for knowing how the specific hat(s) they are wearing will affect their ethical obligations when giving testimony — which means they must inform themselves about this in advance in order to be prepared to discuss this with the parties involved in the case. There are also some legal things about testifying that mental health professionals must know about. “I am convinced that most clinical practitioners called into the courtroom lack sufficient factual knowledge about the judicial system, such as the rules of procedure and evidence” (Woody, 2002, Part I, p. 11).
Competence therefore includes understanding not only your clinical and ethical responsibilities, but also understanding some legal specifics about testifying. Depositions and courtroom testimony can create anxiety for legally naive mental health professionals and can bring a multitude of ethical and legal dilemmas. There can also be risks. The Trust’s risk-management manual (Knapp et al., 2013) devotes an entire section to “Psychologists as Witnesses” (pp. 142-153) which includes very valuable observations and recommendations.
Most of the roles listed in Table 1 can include the possibility of providing a sworn deposition or courtroom testimony, either voluntarily or involuntarily. The professional literature uses a range of terms to describe these different types of witnesses, each of which might involve a slightly different set of ethical responsibilities.
Forensic specialists (Table 1, Section 1) can serve as several types of witnesses, depending upon the hat they are wearing when they provide their testimony. (1) Forensic examiners who provide testimony based on their own assessment findings are usually described as “examining experts” (Woody, 2009, p. 79), although they are often called simply “forensic experts” (Knapp et al., 2017, p. 169. (2) Those who offer testimony strictly on scientific issues, without having any relationship to the parties in the case, are referred to as “testimonial, educational, or pure witnesses” (Gottlieb & Coleman, 2006, p. 94) or as “academic/behavioral science experts” (Woody, 2009, p. 79). (3) Those who provide expert testimony reacting to the work or testimony of someone else may do so in the form of “reviews, rebuttals, or second opinions” (Gottlieb & Coleman, 2012, p. 96) and may be termed “expert critics” (Woody, 2002, p. 18) or “professional critics of other experts” (Woody, 2009, p. 79).
Mental health professionals who take on “hybrid” roles in family custody cases often serve as both psychotherapist and as an expert witness for the court (see CIT and FFT in Table 1, Section 2), so when testifying they are sometimes referred to as “treating experts” (Greenberg & Gould, 2001, p. 473). In contrast, psychotherapists who testify about their own clients (Table 1, Sections 3 and 4) are often advised to serve only as “fact witnesses or percipient witnesses” (Gottlieb & Coleman, 2006, pp. 93-94) rather than providing expert opinion testimony, especially if they are testifying involuntarily and against the client’s wishes.
Below, we briefly consider three ethically-important aspects of testimony, since a failure to understand these distinctions can place clients at risk. (Also see further discussion of testimony below in Section on “Some Court-Related Roles & Their Differential Ethical Responsibilities.”)
- Voluntary vs “Involuntary” Testimony
Voluntary testimony is defined here as testimony provided at client request and with client consent. “Involuntary” is defined here as court-ordered testimony, which can be legally required whether or not the client consents and whether or not the clinician wishes to disclose.
As noted earlier, clients who request that their therapist testify in their court case voluntarily may presume that the therapist can be a good “character witness” for them. Sometimes, without warning, a therapist receives a subpoena from the client’s attorney because the client has suggested that their therapist be called to testify. They may sign a consent form at the attorney’s office. Two potential problems: (1) The client and the attorney don’t know what is in the records or what the therapist might say when cross-examined on the stand, so the client who signed that consent form gave not “truly informed” consent but instead gave “uninformed consent.” Therefore, (2) neither the client nor the client’s attorney know whether or not the information the therapist might provide as evidence will be in the patient’s best interest. A further underlying problem is that sending the subpoena will alert the opposing side in the case to the fact that the client has a therapist who may have information they can use against the client in the case. (See below the section on “Prevention”)
- Fact Testimony vs. Expert Testimony
“Fact witness” is an appropriate role for psychotherapists, especially if they wearing the witness hat “involuntarily” because the court ordered them to testify even though their client did not want them to be disclosing confidential information. Mental health professionals who are wearing a therapist hat are usually advised to testify only to the “facts of the therapy” (i.e., what is in the official records).
Fact witnesses have firsthand knowledge of facts that are relevant to the case at issue before the court. They are only allowed to testify about what they know firsthand and cannot opine as to what the facts might mean in the case. A pure fact witness cannot give opinions or testify about something that was said to them by another person. Such hearsay testimony is generally prohibited because the person who communicated the knowledge is unavailable to be cross-examined (Knapp et al., 2013, pp. 145-146).
In other words, this testimony is unlike that of the “expert” role of neutral forensic specialist who is hired to give an opinion or to report on his/her evaluation concerning legal issues (APA Committee on Professional Practice and Standards, 2003, p. 598). (Also see APA Practice Organization, Legal and Regulatory Affairs Staff, 2005, 2011; Knapp et al., 2013; & Knapp, VandeCreek & Fingerhut, 2017.)
Consultation can be helpful for therapists who are unfamiliar with providing testimony. Colleagues who have forensic experience can “role play” the situation to prepare for the possibility of intense cross-examination. If anxious on the witness stand, therapists can easily “overtestify” (e.g., provide answers to questions that weren’t even asked). If testifying against a client’s wishes, this can result in unnecessary breaches of confidentiality.
(See later section for further discussion of problems experienced by naïve fact witnesses, including the circumstances when opposing attorneys may attempt to maneuver a “fact witness” into providing “expert” opinions.)
“Expert testimony” is provided by someone who has been designated as an “expert” by the court. This designation is usually based on their training and the role they are playing in this particular court case. Unlike a “fact witness,” an expert witness can go beyond facts to provide opinions and conclusions drawn from those facts.
The general rule is that an expert witness has knowledge in an area that is directly relevant to the dispute and is beyond the knowledge base of the average layperson. In addition, expert witnesses can take the factual situation and draw conclusions related to the issue in dispute (Knapp et al., 2013, p. 146).
NOTE: An “expert witness hat” is always worn voluntarily. The court can order a mental health professional to testify and provide evidence “involuntarily,” but the court cannot order someone to testify as an “expert” rather than as a fact witness.
The testimony that might be provided by an expert witness can vary, depending upon the role they have played in the case. The roles discussed below are only examples, because there are many other “hats” that might be worn voluntarily by an expert witness.
(1) A therapist testifying with client consent can choose to testify as an expert. Fisher (2013) suggests that anyone in the therapist role should always testify cautiously. “Unlike the role of forensic evaluator, the role of therapist is not an investigative or fact-finding role, so the data generated in treatment can include important limitations and biases” (p. 176). The testifying therapist should therefore acknowledge “limitations in his or her role, information base, and treatment methods used, and limit conclusions accordingly” (Greenberg & Gould, 2001, p. 477).
(2) Mental health professionals can wear the hat of consultant to the court, based on their area of expertise. Without a prior relationship with any of the parties in the case before the court, they might serve as academic behavioral science experts and provide expert testimony about something like the developmental needs of young children at various ages (Gottlieb & Coleman, 2012; Woody, 2009)
(3) A neutral forensic evaluator may conduct a child custody evaluation or an assessment of the impact of someone’s injury for a personal injury lawsuit, and then provide expert testimony about the results. (APAPO, Legal and Regulatory Affairs Staff, 2005).
(4) Another possible expert role would involve wearing the hat of forensic expert critic, giving an opinion about another mental health professional’s testimony (e.g. testifying as an expert who has reviewed the assessment results and conclusions of another witness, and whose testimony may debunk” the testimony of that evaluator). This person ordinarily does not meet or interact with the parties in the court case and does not conduct a separate forensic evaluation.
(5) In contrast, a different type of expert testimony might be provided by a mental health professional who has been in a “hybrid” role. For example, a clinician who practices CIT or FFP will have worn two hats from the beginning — both a “therapist hat” with the clients and a “consultant hat” with the court. Those wearing these dual hats must always inform therapy clients at intake that they will be wearing not only a therapist hat but also the hat of consultant to the court and potentially therefore the hat of expert witness in the courtroom.
(6) Finally, a clinician may voluntarily provide court-ordered services. This could include a court-ordered evaluation, court-ordered psychotherapy, court-ordered co-parenting consultation, etc. In this court-ordered expert role, the mental health professional would explain the “limits of confidentiality” to the client at the beginning of the relationship, including the fact that information about the case will be provided to the court, as ordered.
- Pre-Trial Depositions vs. Courtroom Testimony
A deposition is a legal proceeding that is ordinarily conducted in advance of the formal courtroom proceedings in the case. It is often held in the office of the attorney who sent the subpoena. It is a “discovery” process — an opportunity for that attorney to learn what the mental health professional might say during courtroom testimony.
To make a proceeding as fair as possible, each side is allowed to discover what evidence the other side will be presenting to be better able to prepare for or refute it. . . . A deposition is taken outside the presence of a judge. (Knapp et al., 2013, p. 150.)
In their risk-management text, Knapp et al. (2013) caution mental health professionals about responding to questions in pre-trial depositions where “there is no judge to appeal to if lawyers raise questions that you have doubts about answering” (p. 148). “With no judge around, some lawyers will take liberties in the questioning and comments that they would not take in a trial. They may be unusually aggressive or offensive to discern how far they can push the witness” (p. 150). Harris and Younggren (2011) suggest that in some cases, it can be useful to have one’s own attorney present in a deposition to help determine if the questions are appropriate.
In contrast, courtroom testimony is provided with a judge present, as well as the attorneys representing both sides in the case. Hopefully, the mental health professional will have had the opportunity to meet with the client’s attorney beforehand, in order for there to be an understanding of the type of information that might be contested during the proceeding.
Some Specific Court-Related Roles
& Their Differential Ethical Responsibilities About Confidentiality
In Table 4, the last column summarizes some of the ethical responsibilities involved in the selected court-related roles discussed in each section. The focus here is on informed consent and confidentiality, but as described above and as discussed below the Table, other ethical responsibilities will also apply.
- “INVOLUNTARY” ROLES
In this course, as noted above, we use the term “involuntary” to describe court-related roles that a mental health professional undertakes without client consent only because legally ordered to do so. Sometimes, services that were initiated for purely clinical purposes can later become the subject of legal proceedings if a judge orders that treatment records be disclosed as evidence, or orders that a psychotherapist give testimony about a current or former client. Similarly, the results of an earlier psychological evaluation, conducted only for clinical purposes, can be court ordered to become evidence in a court case. In either situation, the court order can bring to the witness stand a clinician with no training or preparation about court procedures or about giving testimony.
In developing their general knowledge base, mental health professionals should not only learn the legal exceptions to their own state’s privilege laws but should also understand the ethical importance of distinguishing between subpoenas and court orders. Although a psychotherapist is legally required to take some action in response to receiving a subpoena, it is ethically important to remember that subpoenas can be issued without a judge’s knowledge, do not carry the legal weight of a court order, and can be overturned by a judge (Fisher, 2013). “Although a subpoena requires a response, a subpoena alone will generally not be sufficient to warrant a disclosure of confidential information” (APA Committee on Legal Issues, 2006, p. 215).
The APA Committee on Legal Issues has provided a helpful document: “Strategies for Private Practitioners Coping with Subpoenas or Compelled Testimony for Client Records or Test Data” (2006). Detailed discussion of the distinction between subpoenas and court orders, and advice about responding to subpoenas, is also available in ethics texts and journal articles, and from risk-management sources.
When psychotherapists are court ordered to testify involuntarily (i.e., without their client’s consent), they are being legally required to breach therapeutic confidentiality and should volunteer no information beyond what is required for answering questions appropriate to the “fact witness” role. Nevertheless, as noted above, therapist witnesses should be alert to the fact that “at times attorneys will call a psychologist as a fact witness . . . and then try to direct questioning in a manner that elicits expert testimony” (Knapp et al., 2013, p. 143).
Professional opinions vary about the clinical and ethical appropriateness of voluntarily providing deposition or courtroom testimony about one’s therapy client, but “the chances for harm only increase when the testimony is compelled” (Gottlieb and Coleman, 2012, p 118). If ordered to testify about a client who has not given consent, the most client-protective response is to limit the disclosure to the extent legally possible. (In Table 4, the question mark in the third column reflects the fact that testimony is not being offered with the client’s consent and may not be in the client’s interest.)
For this reason, a therapist in this circumstance is usually advised to testify only as a fact witness, not as an expert witness. (See definitions above.) As mentioned earlier, an “expert witness hat” is always worn voluntarily. The court can order a mental health professional to testify and provide evidence “involuntarily,” but the court cannot order someone to testify as an “expert” rather than as a fact witness. Even if a judge declares someone qualified to testify as an expert, psychotherapists are legally free to refuse the role of expert witness (Eisner, 2010), and those who testify in that role without forensic training may be placing themselves at risk (Fisher, 2013, p. 175). However, mental health professionals should raise this issue before testimony begins. Upon taking the stand, they can state that they are present involuntarily, that they are not trained as a forensic expert; that they are not being paid to provide expert witness testimony in this case; and that they will testify only as a fact witness. “Although attorneys may argue against this posture on the therapist’s part, judges will usually respect this position, since the therapist is there involuntarily and is often unpaid, in contrast to forensic expert witnesses who are often highly paid for being in that role” (Fisher, 2013, p. 288).
Similarly, although a clinical evaluator can always refuse a legal request to conduct an evaluation for forensic purposes, a neutral evaluator is sometimes called as a witness if information from a psychological evaluation previously conducted for another purpose is sought as evidence in a court case. In that circumstance, the same ethical issues would apply. Where appropriate, and with client consent, the evaluator can consult with the client’s attorney about ways to prevent the disclosure or to limit it to the extent legally possible.
When a mental health professional wears a psychotherapist hat, and then dons a court-related hat atop that hat, the therapy client remains “the client.” In other words, contrary to what some forensic specialists suggest, when psychotherapists enter the courtroom wearing a therapist hat, the court does not become their “client”: Their primary ethical responsibility is still to their client. This is especially true if the therapist is there involuntarily, testifying against the client’s wishes, only because judge ordered them to wear that witness hat atop their clinical hat. As witness, they have a legal responsibility to respond truthfully, but they can limit their disclosures to the extent legally possible. Remembering that they are still wearing the clinical hat can help mental health professionals avoid “over-testifying” or answering questions they are not asked.
Forethought can sometimes avoid unexpected legal complications. It may be impossible for psychotherapists to avoid all involuntary involvement with the legal system, but there are some ways to lessen the likelihood. Gottlieb and Coleman (2012) suggest practices such as careful client screening and selection. For example, forensically unprepared mental health professionals are free to screen cases and refuse those that are likely to be headed into court involvement. Psychotherapists who wish to avoid the dual hats of “therapist plus witness” can also make their position clear “up front” with prospective psychotherapy clients by using intake forms stipulating that “the clinician does not offer expert testimony” (Gottlieb & Coleman, 2012, p. 119).
Fisher (2004) has provided some “non-subpoena forms” that can be signed by prospective clients in couple therapy or by parents in prospective child therapy cases, agreeing that the therapy services are to be provided only for clinical purposes, and promising not to subpoena the therapist or the records for legal purposes. Although these signatures are not legally binding and might not be enforced by a court (APA Committee on Professional Practice and Standards, 2003; Knapp et al., 2013), they can reduce the likelihood that clients will naively encourage or allow their attorney to subpoena their therapist. In other words, signing such a statement at the beginning of the relationship “may dissuade patients from trying to get the therapist involved in a court case” (Knapp et al., 2013, p. 143). Although such non-subpoena contracts do not legally prevent a judge from ordering confidential information to be available as evidence, there is some anecdotal evidence that when this promise is documented in the record and the signed form placed atop the record, judges may take it into consideration when deciding whether to order a therapist to testify or to release records as evidence if subsequently subpoenaed by one party in a multi-client case, such as a couple therapy case that involves a custody case.
Most of the ethical responsibilities and pitfalls that apply for psychotherapists will also apply to mental health professionals who previously conducted a clinical evaluation for another purpose, but whose report and/or testimony is now being sought as evidence. This would include reports of evaluations conducted for school placement purposes but later sought as evidence in a custody case.
- VOLUNTARY ROLES
- “NAÏVE” PSYCHOTHERAPISTS in VOLUNTARY ROLES
Psychotherapy clients often request that their therapist provide testimony in their court case. However, agreeing to wear this “hat” can create complications, which is why professional opinions vary about the clinical and ethical appropriateness of providing a deposition or courtroom testimony about one’s therapy client, even with the client’s consent. For psychotherapists who wish to avoid this role, Fisher (2004) has provided a sample “non-subpoena contract” which prospective patients can be asked to sign.
Among voluntary roles, this one may carry the greatest risks, including clinical and legal risks as well as ethical risks. That is because mental health professionals who undertake this role are often unclear about the role’s ethical responsibilities, uninformed about the legal process that might be involved, and unsophisticated about the potential implications. There are also risks that arise because “patients who are involved in legal cases are a high-risk group because of the inherently adversarial nature of forensic proceedings” and “the role of being in court may place psychologists in a position where they are, or appear to be, acting against the best interests of their patients” (Knapp et al., 2013, p. 141).
This participation can include wearing a range of different hats, several of which involve dual relationships. For example, with the client’s consent a psychotherapist may consult with a client’s attorney, may provide records of clinical services, or may disclose information about a client in a deposition or in courtroom testimony. Note that these roles are not mutually exclusive. Theoretically, a psychologist might decide to wear all of these hats in a single case if the client gives consent. Ordinarily, these activities do not qualify as “forensic psychology.” According to the APA Forensic Guidelines (2013), “practices are not considered ‘forensic’ solely because the conduct takes place in, or the product is presented in, a tribunal or other judicial forum” (APA, 2013, Introduction; & Guideline 4.02.02).
Ethical pitfalls include failure to obtain fully informed consent before disclosing information. A person who is giving consent for confidential information to be disclosed should do so only after first being informed about the nature of the information to be disclosed and the foreseeable implications of disclosing it, even if the disclosure is to the client’s own attorney. The clinician should first discuss with clients the type of information that might be disclosed and give them the opportunity to place limitations on the disclosure before they give consent for the conversation(s) to take place. For mental health professionals, this is ethically important, even though the client’s attorney may advise that obtaining the client’s consent is not legally necessary (Harris & Younggren, 2011).
Obtaining truly informed consent is also important before agreeing to provide records or testify voluntarily. Clients who ask their therapist to testify in their court case often presume that the therapist will be a good “character witness” for them, not realizing what issues might be raised or how their therapist’s testimony might be used against them. Therefore, before clients give consent for the clinician to disclose treatment records they should first be informed in detail about the content of the records and perhaps be given the opportunity to read the record themselves. There should also be discussion of the fact that once released, the therapist and the client lose control over whether the content remains confidential. Similarly, before obtaining consent to testify, mental health professionals should not only inform the client about the information that might be volunteered, but also should discuss the type of questions that might be asked in cross-examination and explain the answers that might result.
Professional opinions vary about the clinical and ethical appropriateness of voluntarily providing testimony about one’s own therapy client. For example, in their forensic chapter in the APA Handbook of Ethics in Psychology, Gottlieb & Coleman (2012) suggest that “it is rarely if ever helpful, and potentially harmful, for a clinician to testify regarding a psychotherapy client, even when given permission to do so” (p. 118). This is consistent with the opinion that therapeutic and forensic roles are irreconcilable (S. A. Greenberg & Schuman, 1997; 2007) and that there are “fundamental incompatibilities between the psychotherapist’s clinical and legal functions” (Strasberger, Gutheil & Brodsky, 1997, p. 448). In contrast, Heltzel (2007) believes that restricting a therapist’s participation in legal proceedings would be “to the detriment of the public interest” (p. 128); and Woody believes that “reconciliation” of the two roles can be possible (2002, Part 1, p. 12) and that sometimes “information from the clinical services will be of great importance to the legal matters” (2009, p. 81). The difficulty with the latter arguments is that instead of focusing on ethical concerns (i.e., avoiding potential harm to clients) they focus on legal and social issues (i.e., facilitating the legal process and furthering the public interest). Whereas these goals may be consistent with the responsibilities of a forensic psychologist whose main function is to assist the court, the question is whether they are appropriate goals for a therapist whose primary ethical responsibility is to the client.
Testifying as a witness for a current patient runs a risk of damaging the treatment relationship. To a certain extent, successful treatment requires psychologists to have some esteem in the eyes of their patients, and that is difficult to sustain when an attorney is trying to discredit them on the witness stand. Patients typically will want their treating psychologist to be their advocate, but the responsibility of a psychologist as a witness is to tell the truth. Patients will want their psychologists to be strong and competent, whereas in reality some psychologists may be anxious and uncertain. Psychologists should discuss this in advance to prepare the patient for the potential downsides of their testimony. (Knapp et al., 2013, 148.)
In addition to these clinical and ethical issues, this role can create legal problems for naïve clinicians who are unfamiliar with the court system. These can arise not only from lack of familiarity with the legal processes and procedures involved, but can also arise if an anxious therapist testifies beyond what the client expected. For example, naïve clinicians can be at risk for “overtestifying” (e.g. answering questions they were not asked), or can be at risk of being led by an assertive cross-examining attorney to provide “expert testimony” when they had intended to provide only “fact testimony” in order to best protect their patient’s privacy.
Such risks make it important for any legally-naïve psychotherapist, before testifying either voluntarily or involuntarily, to seek consultation about the role they are about to assume, whether from a colleague or an attorney. Role playing a cross-examination can be very helpful for clinicians who are new to depositions or courtroom testimony.
- “FORENSICALLY-INFORMED” MENTAL HEALTH PROFESSIONALS in VOLUNTARY “HYBRID” ROLES
Those who combine clinical and forensic functions are sometimes called “forensic psychotherapists” (Knapp et al., 2017, p. 177) or “treating experts” (Greenberg & Gould, 2001, p. 473) to distinguish them from the neutral forensic experts described below who have no prior relationship with any of the parties in the case. Unlike most psychotherapists, therapists who serve in these “hybrid” roles must begin clinical relationships by announcing that they will be wearing dual hats, with loyalties both to those receiving clinical services and to the court.
(a) Court-Ordered Roles. Mental health professionals often provide clinical services that were ordered by a court. This can include such activities as court-ordered psychotherapy, or court-ordered co-parenting coordination in divorce and visitation cases. Some have suggested that accepting these roles is entering an “ethical minefield” (Shearer, 2003, p. 9). Knapp et al. (2017) consider these to be “hybrid” roles, because mental health professionals who provide court-ordered services have “loyalties to both the patient and the court” and “the court’s demands for information may conflict with traditional standards of confidentiality” (p. 176). Others might argue that these roles actually belong in the “Forensic Specialist” category of Table 1. However, according to the APA Forensic Guidelines (2013), “the fact that therapeutic services are ordered by the court does not necessarily make them forensic” (p. 11). Nevertheless, any clinician who agrees to provide court-ordered services must be familiar with both the ethical responsibilities of the clinical role and the intricacies of the legal system in order to avoid placing clients at risk. Regrettably, mental health professionals sometimes take on these court-ordered roles without sufficient understanding of their possible clinical, legal, and ethical complications.
Some of the newer court-ordered “hybrid” cases require even more legal involvement and specialized training. For example, providing Court-Ordered Parenting Coordination involves wearing a quasi-legal hat, with mental health professionals having “court-granted authority to help families resolve disputes” (Kirkland & Sullivan, 2008, p. 622). Specialized training is needed for this role. (See Guidelines for Parenting Coordination (Association of Family Conciliation and Courts, 2005.)
Court-ordered clinical cases are always undertaken voluntarily: Judges can order clients to obtain services, but they are not in a position to compel a particular provider to provide those services. Therefore, when the court issues a court order to someone to obtain clinical services, this does not legally require a specific clinician to perform that service. “Patients may arrive claiming that the court has ordered the clinician to be their therapist” but “the clinician is not bound by such an order and is free to accept or reject the case” (Gottlieb & Coleman, 2012, p. 119). While it is a courtesy to the court to explain in writing why you will not take the case, “any reason you give is adequate. Perhaps the needs of the patient are outside of the areas of expertise of the psychologist, or the schedule is already filled, or the case is too demanding at this time” (Knapp et al., 2013, p. 145).
Ethical pitfalls in this role include failure to adequately prepare for the initial informed consent conversation. According to the APA Ethics Code (2017), “When psychological services are court ordered or otherwise mandated, mental health professionals inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding” (Ethical Standard 3.10(c)).
In a court-ordered clinical case, that initial conversation is ethically and legally critical to the protection of the prospective clients’ rights. For the purposes of the discussion in this course, Table 2 presents a very brief list of ethically required content; but generating a complete list requires reading numerous sections of the Ethics Code of your own profession, and the list will vary depending upon the role. (See expanded list on the website of the Center for Ethical Practice, 2016.) In court-ordered cases, these Ethical Standards would require discussion of such things as the nature of one’s role with each party, including the relationship with the court; the nature of the proposed services and the fact that they are court ordered or mandated; the foreseeable limits of confidentiality created by the court’s order, including the probable uses of the information that will be obtained; who will have access to that information; and an explanation of who is the “client,” which involves discussion of any potentially conflicting loyalties.
Therefore, preparation for the intake conversation in these cases necessarily requires that the mental health professional clarify the court’s order before scheduling the intake. Whenever a judge orders a client into mental health services, “it is desirable for the judge to clarify the goals and nature of services ahead of time and whether the judge wants a report, how frequently he or she wants the report, and to whom the report should be sent” (Knapp et al., 2013, p. 109).
The clinician’s responsibilities therefore include reviewing the written court order and if necessary taking steps to have it amended, to be sure that it specifies both what is required of the client and what is required of the clinician. Only then are mental health professionals in a position to begin the relationship with an honest discussion about what information they might provide to the court — a discussion required by both the APA Ethics Code and the federal HIPAA regulations, even if the services are ordered by the court. “For example, if the psychologist who provides therapy to a court-ordered client will be expected to provide progress reports, treatment summaries, or courtroom testimony, that should be specified in the contract” and should be explained to all participants in advance (Fisher, 2013, p. 176).
Ethical issues related to competence can also arise: The judge’s order must leave the mental health professional free to make essential clinical decisions, including the freedom to determine the appropriate clinical intervention(s) and the freedom to terminate a court-ordered therapy if appropriate. This would be ethically and clinically important if the client is missing scheduled sessions, is making no progress, or threatens the therapist; or if the needed services are outside the therapist’s area(s) of clinical competence. See recommendations in Guidelines for Court-Involved Therapy (Association of Family Conciliation Courts, 2010).
(b) CIT (Court-Involved Therapy) or FFT (Forensic Family Therapy). Activities such as these involve wearing the dual hats of (1) therapist to clients who are (or who are expected to be) involved in a court case and (2) expert consultant to the court about the case. Since psychotherapists are legally free to refuse the role of “expert witness,” this combination of roles would always be undertaken voluntarily. Because of the difference between the ethical and legal responsibilities of these two roles, this combination can place a mental health professional at risk for ethical complaints, as well as licensing board and other legal complaints. In order to avoid such risks, psychotherapists who undertake both roles must be “forensically informed” clinicians (Greenberg, Gould, Gould-Saltman, & Stahl, 2003, p. 245) who are prepared to provide “enhanced informed consent procedures” with prospective clients (Greenberg, Gould-Saltman, & Gottlieb, 2008, p 195) and who are also able to “think forensically” (Greenberg & Gould, 2001, p. 470) throughout their involvement in the case.
Although mental health professionals are often involved with families in crisis, they are often poorly prepared for the impact that the family’s involvement with a court process has on treatment . . . It is our contention that effective treatment with court-involved families can occur only when the therapist is knowledgeable about the myriad of forensic mental health and legal issues that often are imposed on the therapist, the children, and the treatment itself during custodial disputes. (Greenberg and Gould, 2001, pp. 469-470)
In the risk-management text provided by The Trust (Knapp et al., 2013) mental health professionals are advised not to underestimate the risks when working with legally-involved clients: “The hybrid role of ‘treating expert’ presents unique ethical and legal demands that require consideration of your roles and obligations” (p. 153).
- “PURE FORENSIC EXPERTS”
Adequate training is available for this role, including specialized continuing education. Much of the formal forensic training is provided at university-based forensic clinics. Training for various “hybrid” roles is also provided by groups such as the Association for Family and Conciliation Courts. In addition, there are journals devoted only to forensic issues (e.g., see Journal of Forensic Psychology Practice), as well as forensic articles in other journals (e.g., see Heltzel, 2007; Otto & Heilbrun, 2002; Woody, 2009); and many reputable books are devoted solely to discussion of forensic roles and their ethical and legal complication (for example see Cutler & Zapf, 2014).
This course definitely does not qualify as specialized forensic training for “hybrid” or “pure” forensic roles. However, some of the items in our bibliography point to important resources, including professional guidelines for those who wish to serve in these roles. (For example, see APA (2010, 2011, 2012, 2013); APA Practice Organization (2011); Association of Family Conciliation and Courts (2005, 2006, 2010); Center for Ethical Practice (2014).
Some of the most common ethical and legal pitfalls in this role arise from mis-steps committed by mental health professionals who are unprepared for the “hat” they have agreed to wear. As noted above, the promise of professional and financial rewards is leading some who lack the appropriate training to accept these forensic opportunities, with resulting ethical quandaries and legal complications (Woody, 2009).
Other ethical pitfalls can arise even for those who are well trained for forensic roles. For example, issues of bias and lack of objectivity can arise when a forensic evaluator is hired by one party in a court case. This can be avoided by providing forensic evaluations only if they are ordered by the court (i.e., the court is the “client”) and are paid for according to the court’s order (i.e., often splitting the cost equally between the two parties in the case).
There are also ethical pitfalls that arise from the combining of “pure forensic roles” with treatment roles. For example, a judge can order a client’s therapist to conduct a forensic evaluation. Fisher (2013) suggests that mental health professionals who are ordered by a judge to combine these roles should decline, citing the ethical conflicts and potential legal complications. According to Knapp et al. (2017), “the forensic role differs considerably from the treatment role” and the differences between the two roles can create important “differences in the informed consent process, nature of recordkeeping, and fees.” Ethical problems are likely to arise. “Whereas a psychotherapist focuses on the welfare of the patient, forensic psychologists have a primary obligation to the attorneys or courts that hired them. Their relationships with the clients are courteous but not necessarily intended to promote their welfare” (Knapp et al., 2017, p. 175-176).
Fisher also provides an example of the ethical and legal complications that can arise if these two roles are combined.
The informed consent interview for therapy patients will explain that confidentiality is the rule, that disclosure without patient consent is the exception, and that the information obtained in the therapist-patient relationship is privileged (i.e., protected to some degree from disclosure in court proceedings). In contrast, the informed consent interview for a court-ordered forensic evaluation will explain that information obtained during the evaluation will not be privileged: it may be included in a report that will be provided to the court and/or to others and may be disclosed as evidence if the forensic expert testifies. If a therapist agrees to conduct a forensic evaluation for a current or former patient, and then is required to testify on the stand, it can be impossible to separate the information obtained in those two separate roles. It may therefore be impossible to avoid revealing legally privileged information from the therapy relationship . . . in the midst of testifying about the non-privileged information from the forensic evaluation (Fisher, 2013, p. 173).
Potential Consequences of Role Confusion
Confusion about one’s role in a court-related case can have many potential consequences. Here we will very briefly point to only three types of consequences.
- Ethical Issues: Potential Harm to Clients. Regardless of how or why they arrive there, mental health professionals who are unfamiliar with the legal system can easily become confused about their role, unclear about its ethical implications, and unprepared to protect the informed consent rights, confidentiality rights, and due process rights of their clients or other involved parties. This confusion could be somewhat avoided, and therefore potential clients would be more protected from harm, if clinical graduate programs included significant training about forensic issues for mental health professionals who do not plan to be forensic specialists but who nevertheless may be ordered by a judge to don some court-related “hat.” Every mental health professional should have basic training about the legal procedures involved in providing depositions or courtroom testimony, and should learn how to anticipate and refuse the role of “expert witness” if they want to instead be a “fact witness.”
- Rick-Management Issues – Potential Risks to Clinicians. Court involvement can bring risks not only to clients, but also to mental health professionals themselves. For those unfamiliar with the legal process, supportive consultation relationships can be essential. It can be helpful to have more than one consultant: one who can be an ethical guide; one who knows the legal ropes; one who can provide ongoing clinical consultation if the court involvement creates complications in a therapy relationship; and one who can provide personal support through a stressful court experience. Detailed risk-management advice is available from The Trust (Knapp et al., 2013).
- Public Impressions — Attorneys, Judges, & The General Public Finally, if mental health professionals themselves are unclear about the differential ethical implications of their roles, it is not surprising that others are confused by the many different “hats” they wear in court cases. For example, a forensic psychologist may appear in court one morning as a neutral forensic specialist who has voluntarily conducted a forensic evaluation in order to provide information to the court (or to one of the parties to the case); and in this role, hired as an expert witness, s/he is ethically free to provide all the information requested, since the person evaluated was informed in advance about who might receive the information obtained by the evaluator. Then that afternoon the same psychologist may appear in in court “involuntarily” as a psychotherapist court-ordered to testify, having unsuccessfully attempted to quash a discovery subpoena, and who will be asked to provide information against a client’s wishes. In this role, since the client has not given consent for the therapist to testify, s/he will limit the testimony to “bare facts” and maintain the role of “fact witness,” refusing to provide expert opinion testimony, since s/he has not been hired as an expert witness.
Confusing matters further, two mental health professionals testifying in the same case may appear to be serving in the same role when, in fact, their ethical responsibilities are entirely different. For example, in a disputed child custody case, the first witness may be the psychotherapist of a ten-year-old child, subpoenaed by one parent and testifying “involuntarily” under court order, against the wishes of the child and the other parent; whereas the second witness may be a developmental psychologist who has no relationship with the child or any of the other parties, testifying about the developmental needs of ten-year-olds. Both mental health professionals have ethical responsibilities in this situation, but they are not the same ethical responsibilities. The first psychotherapist has a responsibility to protect therapeutic confidentiality to the extent legally possible, whereas the neutral developmental psychologist has no restraints on the responsibility to accurately present and describe all the available developmental research data.
To help reduce misunderstandings among attorneys, judges, and the public about their roles in legal cases, mental health professionals can be prepared to “announce their role” whenever entering the legal arena. When appropriate, this can include an explanation of the implications of this role for confidentiality and/or privilege.
It is not appropriate in the midst of a court case to initiate a formal training about their differing roles. However, if therapists themselves are very clear about which hat they are wearing whenever they appear in court, they can explain the limits of that role to the judge, and through their behavior they are educating the court about how their specific role in that case affects their ethical obligations about confidentiality. (Fisher, 2013, p. 133)
Hopefully, as courts become more aware of mental health professionals’ differential professional obligations, “they may be able to craft more appropriate orders, make more appropriate requests for services, reduce costs and delay, and effectively challenge mental health service that does not meet professional standards” (Greenberg, Gould-Saltman & Gottlieb, 2008, p. 214).
Prevention: Avoiding Pitfalls
This course has emphasized the importance of preventive measures that can help protect both clients and mental health professionals from the harms that can result from role confusion:
- Know Ethical Responsibilities in Any Court-Related Roles You Undertake
- Obtain Specialized Training for Court-Related Roles Undertaken Voluntarily
- Understand Relevant Legal Issues in Whatever Role is Undertaken, Whether Voluntarily or Involuntarily
- Find Trustworthy Consultants: Ethics Consultants, Legal Consultants, Clinical Consultants
- Plan Good Personal & Professional Supports.
There are important differences between the ethical duties of neutral forensic experts and the ethical responsibilities of mental health professionals who participate in court proceedings involving their own psychotherapy clients. Forensic mental health professionals enter the legal system voluntarily, armed with specialized training that clarifies their ethical and legal responsibilities. In contrast, mental health professionals without forensic expertise can be thrust into court-related roles “involuntarily,” as when a judge orders a psychotherapist to testify about a client, even if the client objects. At times, psychotherapists also enter the legal arena voluntarily to provide testimony at a client’s request or to provide services to a court-ordered client. However, regardless of how they arrive there, those who are unsophisticated about the legal system can easily become confused about their court-related role and its ethical responsibilities.
Mental health professionals involved in court-related cases are encouraged to ask themselves two questions: (1) “What hat(s) am I wearing?” and (2) “In whose behalf?” It is ethically important for mental health professionals to understand that their various court-related roles bring differential ethical responsibilities, especially as they relate to informed consent and confidentiality. Only when they have informed themselves about these ethical issues will they be prepared to explain their different roles to clients and others, prepared to protect the rights of all parties involved, and prepared to protect themselves from unnecessary risks. In each case they can also “announce” their role to attorneys and judges and explain its ethical boundaries, thereby reducing the misunderstandings about the changing roles of mental health professionals in the legal system.
American Association of Marriage and Family Therapy (AAMFT) (2015). Code of Ethics. Alexandria VA. Author. Retrieved from https://www.aamft.org/Legal_Ethics/Code_of_Ethics.aspx
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