Treating psychotherapists may volunteer or be subpoenaed to appear in court and testify as expert witness regarding their clients. This generally occurs in cases involving personal injury or medical malpractice, and it is quite common for attorneys to contact the treating therapist.
Many therapists do not know the difference between a “fact or percipient witness” and “expert witness.” In their desire to help their client, they may end up hurting their client’s case and putting themselves in harm’s way.
A dual role of therapist and expert witness may constitute an ethical violation, due to the therapist acting outside his/her scope of practice, unavoidable conflict of interest, or due to engaging in unethical multiple relationships.
Psychologists, MFTs, social workers, counselors or psychiatrists who take the stand as an expert witness in cases involving a current or former client are likely to face many traps and pitfalls:
The psychotherapist’s or counselor’s role is that of a patient advocate, which often presents irreconcilable conflict with the more objective-evaluative role of a forensic expert.
Serving as both a treating therapist and an expert witness may be an improper dual relationship. Forensic and therapeutic roles are generally considered incompatible by several professional organizations’ codes of ethics.
Psychotherapists are generally biased in favor of their clients, while forensic experts are committed to a truthful, objective and unbiased reporting to the court.
The forensic-therapist dual relationship often presents a conflict of interest and, as a result, is often unethical and should be avoided under most circumstances.
As with all multiple relationships, the context of therapy ultimately determines the appropriateness of the dual or multiple role. In certain correctional and forensic settings, treating psychologists are expected and/or mandated to also serve as court-appointed evaluators and testify in court as experts. Then in many rural or small communities dual relationships are unavoidable.
Another potential unethical area of conduct is when therapists testify as expert witnesses regarding harm when they neither conducted a thorough investigation regarding harm, nor are experts in harm assessment.
Therapists may act unethically if they provide an expert opinion regarding a former therapist’s (supposedly) unethical conduct, which is solely based on the their client’s self-report and without reviewing the psychotherapy records, interviewing the former therapist, or reviewing other collateral relevant evidence.
Terminating therapy in order to assume an expert role does not solve the problem, as the therapist is still biased and may still engage in unethical sequential dual relationships.
Realize what questions you should not answer as a “fact witness” before you take the stand.
If you are subpoenaed to testify as an expert in a case involving a current or former client, consider serving only as “fact witness” and seek consult before accepting the expert role.
Do not render expert opinion regarding harm, unless you conducted an independent and objective evaluation and harm assessment falls within your scope of practice.
Avoid giving an expert opinion regarding a former therapist, which is based solely on your client’s self-report. Read carefully the Subsequent Therapist Syndrome article prior to offering an opinion or critique regarding former therapist’s performance.
The 2001 American Psychological Association’s (APA) SPECIALTY GUIDELINES FOR FORENSIC PSYCHOLOGY clearly states: 4.02.01: Therapeutic-Forensic Role Conflicts: Providing forensic and therapeutic psychological services to the same individual or closely related individuals involves multiple relationships that may impair objectivity and/or cause exploitation or other harm. Therefore, when requested or ordered to provide either concurrent or sequential forensic and therapeutic services, forensic practitioners are encouraged to disclose the potential risk and make reasonable efforts to refer the request to another qualified provider.
Some states have a clear statute regarding forensic multiple relationships, where the statute prohibits therapists from serving as evaluators (experts) and treaters. Texas: Texas Asministrative Code, Title, 22, Part 21, Chapter 465, Rule 461.18 (a)(5) states: “When seeking or receiving court appointment or designation as an expert for a forensic evaluation a licensee specifically avoids accepting appointment or engagement for both evaluation and therapeutic intervention for the same case. A licensee provides services in one but not both capacities in the same case.”
Some codes of ethics have direct or indirect guidelines that prohibit therapists or counselors from also serving as evaluators (forensic experts) and treaters.
AAMFTCode of Ethics, 2015 7.6 Avoiding Dual Roles. 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 clients, unless otherwise mandated by legal systems.
7.7 Separation of Custody Evaluation from Therapy. Marriage and family therapists avoid conflicts of interest in treating minors or adults involved in custody or visitation actions by not performing evaluations for custody, residence, or visitation of the minor. Marriage and family therapists who treat minors may provide the court or mental health professional performing the evaluation with information about the minor from the marriage and family therapist’s perspective as a treating marriage and family therapist, so long as the marriage and family therapist obtains appropriate consents to release information.
ACACode of Ethics of 2014 E.13.c. Client Evaluation Prohibited. Counselors do not evaluate current or former clients, clients’ romantic partners, or clients’ family members for forensic purposes. Counselors do not counsel individuals they are evaluating. E.13.d. Avoid Potentially Harmful Relationships. Counselors who provide forensic evaluations avoid potentially harmful professional or personal relationships with family members, romantic part- ners, and close friends of individuals they are evaluating or have evaluated in the past.
CAMFTCode of Ethics, 2011 8.4 DUAL ROLES: Marriage and family therapists avoid providing both treatment and evaluations for the same clients or treatment units in legal proceedings such as child custody, visitation, dependency, or guardianship proceedings, unless otherwise required by law or initially appointed pursuant to court order.
NASWCode of Ethics, 2017 1.06 Conflicts of Interest …. Social workers who anticipate a conflict of interest among the individuals receiving services or who anticipate having to perform in potentially conflicting roles (for example, when a social worker is asked to testify in a child custody dispute or divorce proceedings involving clients) should clarify their role with the parties involved and take appropriate action to minimize any conflict of interest.
NBCCCode of Ethics, 2016 58. NCCs shall not provide forensic evaluation services concerning current or past clients or client’s family members. Also, NCCs shall not provide forensic evaluation services regarding their own family members, friends or professional associates.
Many codes of ethics clearly state that psychotherapists, when possible, should avoid incompatible multiple relationships. American Psychological Association (APA) (2016): A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists.National Association of Social Workers (NASW) (2017): Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client. In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries.California Association of Marriage and Family Therapists (CAMFT) (2011): Marriage and family therapists therefore avoid dual relationships with patients that are reasonably likely to impair professional judgment or lead to exploitation.
Most importantly, realize that the forensic arena is very different that clinical one and different rules are apply. Without proper preparation and knowledge your good intentions may result in harm to your client and yourself.
Unless you are a forensic expert,consult before you respond to a subpoena or take the stand.