Continuing Education & Resources for Mental Health Professionals

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

ROLE POSSIBLE
COURT-RELATED ACTIVITIES
On whose behalf
are you
wearing this hat?
ETHICAL OBLIGATIONS
A.
Involuntary
Roles


THERAPIST or EVALUATOR:

(SUBPOENAED BY OPPOSING PARTY and ORDERED BY JUDGE )

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

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

[See Reference #4, below.]

 

 

 

 

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

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

C. Provider of Testimony
(Witness Subpoena)

?

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

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

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

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

?

1. At intake, inform each prospective therapy patient or assessment client about the foreseeable limits of confidentiality, including those imposed by law (such as court ordered disclosures  in court cases).2. Understand relevant laws: Legal exceptions to therapist-patient privilege can include (child abuse or neglect cases or (b) patient places own mental condition at issue; and in some states (c) judge considers the information admissible as evidence because “necessary for the proper administration of justice.”  (See § 8.01-399 and § 8.01-400.2 )

3. When patient does not consent to disclosure, (a) file (or cooperate with patient’s attorney in filing) a motion to quash the subpoena; (b) if judge orders disclosure, limit disclosure to the materials specified, remembering that your primary responsibility is to your patient.

 4. Give no opinion about anyone other than the patient named in the subpoena unless (a) you evaluated or saw them in therapy and (b) they have given written consent for disclosure.
B.
Voluntary
Roles

  

1. THERAPIST:

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

 

 

 

A. Provider of Records
or  Other Documents

 

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

C. Consultant to
Patient’s Attorney

  

Your
Therapy Patient

 

 

(who has waived privilege and has given written
informed consent
for you to disclose
in this context)

1. Before agreeing to disclose records or provide testimony voluntarily, inform patient of the nature and content of records and/or potential testimony (e.g., explain that inviting your testimony opens door to questioning and cross-examination about any aspect of the therapy, diagnosis, or mental condition; discuss how you might respond to such questions, etc.)  Explain to patient (and with patient’s consent, explain to his/her attorney) that you must answer questions truthfully and may not provide only positive information as a “good character” witness.2. In the absence of a judge’s “court order,” you have no ethical basis for disclosing anything to anyone unless you obtain the patient’s written consent to (1)consult with his/her attorney or (2)disclose records/information to someone else.

 

 

 

 

 

 

 

 

 

 

2. PROVIDER OF 
COURT-ORDERED
CLINICAL
INTERVENTION

 

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

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


B. COURT-ORDERED
CO-PARENTING
CONSULTATION/
EDUCATION

Court-Ordered
Patient(s)/Client(s)

1. who was informed in advance about the nature of this role;

and

2. who consented to accept the limits of confidentiality as specified in the court’s order and explained at intake (e.g., if reports or testimony will be expected by the court.)

NOTE:  Court can order patients to obtain this service, but therapists are ethically obligated to refuse to take on this role if (a) the case would create a dual relationship or conflict of interest; or (b) the ordered service falls outside this therapist’s area of competence.

1.
In advance, clarify court’s expectations about services; possibly participate in drafting or revising court’s order to ensure that it matches the services you are able/willing to provide and the information you are willing to disclose.

2.
At intake, inform prospective patient(s) about scope and details of  court order, clarify your role, and discuss confidentiality and its limits.
C. PARENT
COORDINATION
IN CUSTODY CASE
(Specialized Training
Required)

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


THE COURT
In this type of role, the Court is the primary client, so the parents who receive the services must be informed of the limits of confidentiality that will be imposed by that contracted relationship (e.g., sending regular reports to the court).
This Role Requires Specialized

Ethical and Legal Training

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

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

 

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

 

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

COLLABORATIVE
DIVORCE
COACH
(Specialized Training
Required)
Serves as member of a team of professionals (e.g., attorneys, accountants, child specialists) who  provide services to divorcing couples who are attempting to finalize divorce and custody arrangements without an advisarial process.
 The Couple
Who Hires the
Collaborative Team
to Facilitate
Their Divorce/Custody
Case
 This Role Requires

Specialized

Ethical and Legal Training

 

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

 

 

 

 

 

 

 

 4. FORENSIC SPECIALIST

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

 

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

A. FORENSIC EVALUATOR
(Specialized Training
Required)
 

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

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

 – – – – – – – – –

B.EXPERT WITNESS

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

 

THE COURT

OR

ONE PARTY
IN THE CASE

This Role Requires

Specialized

Ethical and Legal Training

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

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

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

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

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

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

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

 4. FORENSIC SPECIALIST (cont.) 

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

C. CONSULTANT

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

 

 

Attorney for 

 One Party

  in the Case

 1. Obtain contract identifying client and clarifying your role.  If meeting weith attorney’s client or other parties, obtain informed consent to disclose the information they provide.2. In role of “reviewer,” conduct only an internal review of another’s notes or report; base opinions/testimony only on that data; do not re-interview or re-test another’s client. [In contrast, see "second-opinion forensic evaluator," above]
4. FORENSIC SPECIALIST (cont.)Hired as Independent
Forensic Specialist
With No Prior
Relationship to
Any Parties
in the Case
D. MEDIATOR 

Providing mediation services to help parties resolve a dispute

 
 The  Court or

Parties in the Case

 

 

 

 1. Obtain contract that identifies your role, explains confidentiality and its limits2. To avoid dual relationship or conflict of interest, do not take the case if you have (or have previously had) a relationship with any of the parties in the case.

Mary Alice Fisher, Center for Ethical Practice, (2010, updated 2014).

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

References:
1. American Psychological Association (2009). Guidelines for child custody evaluations in family law proceedings.  American Psychologist, Vol. 49, No. 7 (July), 677-680.  Retrieved from http://www.apa.org/practice/guidelines/child-custody.pdf

2. American Psychological Association (2013).  Specialty guidelines for forensic psychology. American Psychologist 68 (1), 7-19. doi: 10.1037/a0029889 Retrieved from https://www.apa.org/practice/guidelines/forensic-psychology.aspx

3. American Psychological Association and American Board of Forensic Psychology (2011, August 20). Specialty Guidelines for Forensic Psychology.  Retrieved from http://www.ap-ls.org/aboutpsychlaw/SGFP_Final_Approved_2011.pdf

4.American Psychological Association Committee on Legal Affairs (2006). Strategies for Private Practitioners Coping With Subpoenas or Compelled Testimony for Client Records or Test Data. Professional Psychology: Research and Practice Vol 27, No. 3, 245-251.  Retrieved from http://www.apa.org/about/offices/ogc/private-practitioners.pdf

5. American Psychological Association Practice Organization, Legal and Regulatory Affairs Staff (2010, April).  Tools and Training in Parenting Coordination.  Retrieved from http://www.apapracticecentral.org/update/2010/04-29/parenting-coordination.aspx

6. Association of Family Conciliation Courts (2005).  Guidelines for Parenting Coordination.  Retrieved from
http://www.afccnet.org/Portals/0/PublicDocuments/Guidelines/AFCCGuidelinesforParentingcoordinationnew.pdf

7. Association of Family Conciliation Courts (2011).  Training for Parenting CoordinationRetrieved from http://www.afccnet.org/ConferencesTraining/AFCCTraining

8. International Academy of Collaborative Professionals (2011).  Collaborative Solutions for Divorce and MoreRetrieved from http://www.collaborativepractice.com/_t.asp?T=Kit
==========================
Center for Ethical Practice (2010; updated 2014).

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