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Court Cases: Are You Clear About Your Role?

Ethical & Legal Implications of Role Confusion in Court-Related Cases

Regardless of practice setting or specialty, clinicians are often involved in court cases — consulting with a client’s attorney, providing records, responding to requests from a GAL, attending a deposition or providing courtroom testimony, etc. This can be voluntary (at the patient’s request) or “involuntary” (if the court orders you to comply with a subpoena). We will use Dr. Fisher’s new article to discuss why different court-related roles create differential ethical obligations. This workshop should be useful whether you are already “forensically savvy” or are still “forensically uninformed.”

OUTLINE

 I. Possible Roles of Mental Health Professionals in Court-Related Cases

A. Voluntary Roles

Forensic Specialist
Therapist Providing Records or Testimony Voluntarily and With Patient’s Consent
Therapist Providing Court-Ordered Intervention Services

B. “Involuntary” Roles

Therapist Court Ordered to Provide Testimony Against Patient’s Wishes
Non-forensic Evaluator Ordered to Provide Testimony Against Patient’s Wishes

C. “Hybrid” Roles Deliberately Combining Clinical Work and Court Involvement

 II. Ethical Standards, Guidelines, & Professional Advice about Court-Related Roles

A.  Ethical Standards Relevant to Court Cases
B.  Guidelines for Forensic Specialists

C.  Differential Ethical Responsibilities Across Various Court-Related Roles
D.  Recommendations about Responding to Subpoenas vs. Court Orders
E.  Professional Observations About Preparedness for Court-Related Roles

 III. Legal Information 

A.  Selected Virginia Statutes

Privilege Statutes
— 8.01-399 (Psychiatrists and Clinical Psychologists)
— 8.01-400.2 (Other Mental Health Professionals)
Health Records Privacy Statute
— 32.1-127.1:03
Copies of Records
— 8.01-413 (Released to Others as Potential Evidence)
— 32.1-127.1:03 (Released to Client)
Testimony
— 8.01-401.1 (Fact Witness vs. Expert Opinion)

B.  Selected Federal Statutes & Regulations

42 U.S.C. § 290dd-2;
42CFR, Part 2

C.  Court Decisions

Virginia Supreme Court — Fairfax Hospital vs. Patricia Curtis
U.S. Supreme Court — Jaffee vs. Redmond

IV.  Responding Ethically to Legal Demands

A.  Responding to “Informal” Legal Demands (§ 8.01-399)
B. 
Responding to Subpoenas & Court Orders (§32.1-127.1:03 ¶H)
C. 
Responding to Record Requests in Multi-Client Cases
D. 
Providing Deposition or Courtroom Testimony

 V.  Implications of Role Conflicts, Role Confusion, & Dual Roles

A.  Ethical Implications
B. 
Legal and Risk-Management Considerations
C. 
Clinical Implications

 LEARNING GOALS:

  1. List some roles played by mental health professionals in court cases & describe their ethical responsibilities.
  2. Name some Virginia laws that can affect your participation in court cases and describe their ethical implications.
  3. Regarding testimony in court cases, describe the difference between a “fact witness” and an “expert witness.”