A. Provider of Records

B. Courtroom Witness
---regarding facts
---regarding "expert" opinion
(if so qualified)

C. Consultant to
Patient's Attorney

Your
Therapy Patient

(who has
waived privilege and has requested
that you disclose
confidential
information
in this context )

1. Before agreeing to disclose records or provide testimony voluntarily, be sure patient understands nature and content of records and/or your potential testimony (e.g., explain possible scope of cross examination).
2. A "discovery subpoena" is not sufficient legal basis for disclosure. In absence of a court order from the judge, you have no ethical basis for disclosing anything to anyone unless or until you have obtained patient's written consent to disclose the records or information.
3. Patient's consent should also be obtained before consulting with patient's attorney.

Therapist:

"Involuntarily" participating

(SUBPOENAED BY
OPPOSING PARTY
and
ORDERED BY JUDGE )

(Providing therapy records
or testimony after
receiving a Subpoena
if judge so orders )

A. Provider of Records/Documents
(Subpoena Duces Tecum)

B. Provider of Testimony (Witness Subpoena)
---1. Deposition
---2. Fact Witness (e.g., Patient's Statements, Behavior)
---3. Opinion ("Expert") Witness
(e.g., Diagnosis, Prognosis, etc)

?

You are not doing this
"in behalf of"
your therapy patient

(whose confidential
information you are about to disclose
without his/her consent !);

but you do have
important
ethical obligations toward that patient (see next column).

?

1. At intake, inform each prospective therapy patient about the foreseeable limits of confidentiality, including those imposed by law (such as court orders in court cases).
2. Understand relevant privilege laws and their exceptionse.
3. Unless patient wants the information disclosed in this context, and has provided written informed consent, then (a) file (or cooperate with patient's attorney in filing) a motion to quash the subpoena; (b) if court orders disclosure, limit disclosure to the extent possible, remembering that your primary responsibility is to your therapy patient.
4. Give no opinion about anyone other than the patient named in the subpoena, unless (a) you evaluated them or saw them in therapy and (b) they have given written consent for disclosure.

Forensic
Specialist:

Voluntarily participating

(Hired as an
Independent Specialist,
with no prior relationship
to any parties in the case.)

* NOTE:
For emerging quasi-legal
forensic role of
court-appointed
"Parenting Coordinator," see note
at bottom of chart.

1. Forensic Evaluator*

--A. Criminal case
---- a. competency to stand trial
---- b. mental status at offense

--B. Civil case (damages; abuse)

--C. Custody case

[*This can be either
an initial evaluation
or a
"second-opinion evaluation"]

1. Obtain training and experience required for practicing in these specialty roles; know relevant APA Guidelines.
2. Refuse referral if you have/had relationship with any of parties.
3. Refrain from offering opinions about any party not seen and/or evaluated.
4. If a court-ordered evaluation, obtain copy of order to clarify court's referral question and expectations about your role; revise if needed.
5. If for one party, get a contract identifying them as examinee and clarifying scope your of role.
6. Before beginning, obtain consent from each person after informing them about: (a) nature of your role/loyalties and (b) limits of confidentiality -- specify with whom you will share information; inform them that information and/or your opinions, may be disclosed in report and/or testimony (i.e., are NOT confidential or privileged unless so protected by court.)

2. Expert Witness

--A. Pursuant to own evaluation
or
--B. Offering expert opinion on
the issues (e.g., developmental needs of 4-year-olds), offering no opinions about parties not evaluated)

1. As above.

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

3. Consultant

--A. Advising attorney
(with or w/o meeting his client)

--B. Reviewing Another's Work
(reviewing/evaluating another's
therapy notes or evaluation or report; advising attorney;
perhaps testifying [above])

Attorney for
One Party

Provider of
Court-
Ordered Services:

Voluntarily
participating

(YOU AGREED TO
WEAR THIS HAT)

Potential activities ,
as stipulated in Court Order:

A. Direct Services
(e.g., therapy, mediation, parent education, parenting consultation, etc.,
B. Testimony
C. Progress Reports
D. Providing Records

Court-ordered
client (who
(a) was informed in advance about the nature of your role and
(b) consented to accept the limits of confidentiality specified in the court's order)

1. Although Court has ordered this patient into therapy, you are ethically obligated to say "no" to being therapist if case creates multiple relationship or conflict of interest, or is outside your area of competence.
2. Clarify expectations; possibly participate in writing or amending the coure't order.
3. Begin therapy relationship by explaining scope of court order, clarifying role, and discussing limits of confidentiality.

Adapted From:
Fisher, M.A. (2008) Can You Keep A Secret? Patient Confidentiality and its Limits in Virginia, 5th Edition.
Center for Ethical Practice, 934 East Jefferson St., Charlottesville VA 22902
Revised 2010