Which Hat Are You Wearing?
Chart of Court-Related Roles
| ROLE | POSSIBLE COURT-RELATED ACTIVITIES | On whose behalf are you wearing this hat? | ETHICAL OBLIGATIONS |
| Therapist: Voluntarily participating (AT PATIENT REQUEST & WITH PATIENT CONSENT) |
A. Provider of Records B. Courtroom Witness—regarding facts —regarding “expert” opinion (if so qualified) 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 without patient consent (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., re: 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 exceptions. 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.) YOU AGREED TO WEAR THIS HAT) * NOTE: For other 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 “ |
The Court or One Party in Case | 1. Obtain training and experience required for practicing in these roles; 2. Refuse referral if you have/had relationship with any of parties. 3. Refrain from offering opinions about any party not evaluated. 4. If a court-ordered evaluation, obtain copy of order to clarify referral question and expectations about your role; revise if needed. If for one party, obtain contract identifying examinee(s) and clarifying scope your of role. 5. 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 they provide 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) |
The Court or One Party In Case or Guardian ad Litem | 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 |
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| 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 | 1. Obtain contract that identifies who is the client and clarifies your role. If meeting with attorney’s client or other parties, obtain informed consent (above) 2. As a “reviewer,” conduct only internal review of another’s notes or report; base opinions/testimony only on the data provided there; do not re-interview or re-test another’s client. [In contrast, see role of "second-opinion evaluator" (in "Forensic Evaluator" above).] |
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| 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. |
| *NOTE: This chart does not include the emerging role of “Parent Coordinator” in child custody cases – a role that gives the mental health professional some limited legal authority to impose decisions about visitation arrangements, etc. This “hat” should be worn only with a Consent Order from the court, and after appropriate training for the role. The American Psychological Association is currently developing Guidelines about this role. Meanwhile, the Association of Family and Conciliation Courts has developed Guidelines for Parent Coordinators and provides training for that role. This chart also does not include the role of “Divorce Coach” as a mental health member of a Collaborative Divorce Team. |
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| Adapted From: Fisher, M.A. (2010) Can You Keep A Secret? Patient Confidentiality and its Limits in Virginia, 6th Edition. Center for Ethical Practice, 934 East Jefferson St., Charlottesville VA 22902. | |||
Other references:
1. American Psychological Association (2009). Guidelines for child custody evaluations in family law proceedings.
American Psychologist, Vol. 49, No. 7 (July), 677-680.
2.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.
3. American Psychological Association (Division 41) and American Board of Forensic Psychology (1991; and 9/2/08 Draft Revision) Specialty Guidelines for Forensic Psychology
