Dual Roles in Custody Litigation: Ethical Conflicts with Therapeutic and Forensic Roles


Dual Roles in Custody Litigation: Ethical Conflicts with Therapeutic and Forensic Roles

Author: Miles Mason, Sr. published in the Tennessee Bar Journal in March 2020. Citation: 56 Tennessee Bar Journal, 3 (March 2020).  Copyright 2020 Tennessee Bar Journal and Miles Mason Family Law Group, PLC. Reprinted with permission.

Most mental health professionals serve primarily as therapists to clients and patients. A smaller yet substantial number dedicate their practice solely to forensic evaluation, thereby avoiding multiple role situations. Among the majority, though, a potentially serious ethical conflict arises in assuming dual roles as both treating psychotherapist and expert witness or forensic evaluator in a client’s child custody litigation.

Certain dual roles breach therapy boundaries, raising ethical concerns about conflicts of interest that could impact the psychotherapist’s or counselor’s professional reputation and malpractice exposure.

Multiple Affiliations Are Dual Roles

In general, complications can occur whenever the mental health professional has more than one affiliation with a client. An additional affiliation could be as friend, family member, business associate, employer, partner or teacher, to name a few. More specifically, the dual roles discussed herein arise when the treating psychiatrist, psychologist or counselor becomes engaged in a current or previous client’s family law case as:

1. Expert witness; or
2. Forensic evaluator.

These witness roles raise significant ethical concerns for the treating practitioner. As discussed later, even if a psychotherapist is subpoenaed to testify as a fact witness in their patient’s child custody hearing, they could arguably be engaging in dual roles under the applicable ethics code. As a fact witness, they may be subjected to minimal risk, but the problem does not disappear. In practice, conflict of interest is very much in the eye of the beholder.

Whether or not there is an ethical conflict depends as much upon specific circumstances as it does the practitioner’s statement or disclaimer regarding the scope of his or her services in the family law case. Consider the psychotherapist’s interactions, communications and actual function in the relationship with the patient. Look beyond the role asserted or disclaimed to determine whether potential ethical conflicts exist.

APA Ethics Code: Avoiding Conflicts of Interest

Mental health professionals should avoid any situation that combines the role of treating therapist with that of expert witness or forensic evaluator. The American Psychological Association’s Ethical Principals of Psychologists and Code of Conduct (APA Ethics Code) Standard 3.05 states in part:

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.1

On conflicts of interest, APA Standard 3.06 provides that:

Psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial or other interests or relationships could reasonably be expected to (1) impair their objectivity, competence or effectiveness in performing their functions as psychologists or (2) expose the person or organization with whom the professional relationship exists to harm or exploitation.2

Some arrangements are narrowly excepted from the precept against multiple roles, particularly when court orders are involved. But in the absence of exceptional circumstances (for instance, time is of the essence in a one-doctor rural community), attempting to serve both masters will seldom yield positive results for patient or practitioner.

Treating Therapist as Fact Witness in Child Custody Proceedings

The mental health professional may be drawn in as a treating fact witness in a divorce or child custody proceeding involving the patient. Practitioners fare better when they understand the legal implications of being subpoenaed for information about their patients. A family lawyer could subpoena the psychologist to appear and testify (subpoena ad testificandum)3; to personally appear and produce specified documents, records or tests, among other things (subpoena duces tecum)4; or to produce those things without personally appearing (subpoena duces tecum in lieu of appearance).5

Being subpoenaed should raise a red flag for the treating psychotherapist who is asked to release confidential patient communications, treatment records or other protected private information about a client. The ethical obligation to avoid multiple relationships is not the only concern in this situation. There is also the doctor-patient privilege issue.

Doctor-Patient Privilege

Confidential communications between doctors and their patients are privileged. Although the scope of the privilege may vary,6 Tennessee law extends some form of doctor-patient privilege to therapists, psychiatrists,7 psychologists,8 licensed social workers,9 counselors, and marital and family therapists.10

Therefore, the primary ethical concern raised when a treating psychotherapist divulges fact-specific patient information is the breach of duty to keep patient confidences.11 If the doctor-patient privilege is waived by the adult patient who holds it or, alternatively, if the parent or court-appointed guardian ad litem waived the privilege for a minor child, then one might believe the “all clear” signal has been given for the practitioner to testify freely. Still, it is prudent to tread lightly by seeking a specifying order from the bench.

To avoid being sued later for breach of duty in the event the case ends unfavorably for the patient (expect a claim of “lack of informed consent” or “invalid waiver”), the psychotherapist should seek a court order preemptively before testifying and disclosing privileged patient information. An experienced family law attorney would anticipate this additional requirement and work with the court and opposing counsel to provide the expert with this protection.

Where is the APA on this? First, the APA Ethics Code prohibits disclosure of confidential patient-information without consent (as in a waiver) unless doing so is either necessary to protect someone from harm or is “mandated by law.”12  Presumably, mandated by law includes court orders. Once the judge has ordered disclosure of privileged information, noncompliance with that order may result in contempt of court. The APA lets the psychotherapist comply with the court order, as mandated by law, without being jailed for defending a draconian interpretation of its ethics code.

Second, the APA Ethics Code proscribes combining roles reasonably likely to interfere with the practitioner’s “objectivity, competence or effectiveness” or that risk “exploitation or harm” to the patient. Treating the patient and later (or simultaneously) testifying as a fact witness in court does not, in and of itself, involve the multiple relationship concerns raised by APA Standard 3.05.

Slippery Slope: Fact Witness to Treating Expert Testimony

Fact witnesses testify about what they have firsthand knowledge of. Lay witnesses are fact witnesses who testify about what they heard, saw, read or otherwise experienced without offering opinions (some exceptions apply). A fact witness needs “[n]o special expertise beyond the ability to tell the court what is known from first-hand observation.”13

Importantly, a treating therapist or clinician acting as a fact witness does not offer a professional opinion.14 This means that, normally, the psychotherapist acting as treating fact witness will testify about actual treatment and not draw any psycho-legal inferences and conclusions.

Consider this example: Ordered to appear in the patient’s child custody dispute, the psychologist testifies under oath about that patient’s raw test data. The legal issue is the patient’s fitness as a parent. Although credentialed, as fact witness the psychologist is not in court to offer an expert opinion on the patient’s fitness as primary residential parent.

Realistically, though, being examined on the witness stand by the parties’ lawyers while holding to a facts-only position can be quite challenging. The fact witness could accidentally slip into the role of treating expert.

Despite guidance from the APA Ethics Code, the psychologist might venture beyond testifying as fact witness to testifying as treating expert. Being pressed into that dual role by the client (or by ego and expediency) creates ethical risks. In the roles of therapist, fact witness, and now treating expert witness, the practitioner could be asked to form an opinion about his or her own tests, diagnosis, treatment decisions, prognosis, pharmacological choices and so on.

The treating psychotherapist testifying in court should exercise discretion during direct and cross-examination. As treating fact witness, responses should be limited to factual data, opining only on matters reliably gleaned from treatment. Although not an exhaustive list, testimony should be restricted to the following:

  • Patient’s history as reported by the patient directly and without interpretation;
  • Clinical diagnosis following study of the patient’s symptoms, signs and findings;
  • Care and type of treatment provided to the patient;
  • Patient’s response or reaction to care and treatment;
  • Prognosis for the patient’s recovery;
  • Patient’s judgment, mood, awareness, perception, reasoning and behavior at certain times; and
  • Statements made by the patient during the course of treatment.15

Regarding testimony on a clinical diagnosis, arguably an objective diagnosis would take into consideration certain data that an independent expert witness may derive, but not so the treating expert witness.  For example, the independent expert may also conduct one or more collateral interviews, test for malingering, or consider the parent’s possible secondary gain motive.  Without a doubt, the treating expert witness does not typically follow the same procedures that the independent expert follows in order to maintain objectivity in the case.

With the benefit of prudence and experience, a treating psychotherapist avoids the slippery slope by discerning the often nuanced distinction between fact witness and expert witness testimony. As Greenberg & Shuman note, as long as the treating expert witness “stays within the boundaries of facts and opinions that can be reliably known by the treating professional,” common problems associated with this dual role may be averted.16

Those boundaries are crossed the moment the treating fact witness makes a psycho-legal assessment. For example, the witness may offer a psycho-legal opinion that PTSD caused the patient to believe the other spouse engaged in inappropriate marital conduct. Such an assessment exceeds the recommended scope of fact witness testimony because the information obtained for treatment purposes is substantially different from that which is necessary to draw an objective psycho-legal inference or opinion for evaluation.

Bias and Therapeutic Alliance

Another concern is an inherent lack of objectivity. Bias could range from merely influential to very prejudicial, depending upon duration of treatment, patient’s medical and psychological condition, and other pertinent factors. Bias goes directly to the weight of the testimony. After reviewing data collected as the treating doctor, would a psychiatrist opine that treatment-X was contraindicated? Or that the prescribed medication worsened the patient’s symptoms? Such testimony would be against the expert’s own interests, hence the conflict. Every expert witness, regardless of discipline, should be prepared to answer questions about the methodology employed in forming an opinion.

When testifying as an expert, any inferences drawn and opinions offered should be unbiased, trustworthy and free from influence. But the potential for bias in dual relationships is ever-present. Some refer to it as a therapeutic alliance between mental health professional and patient.17

A patient-litigant might reasonably expect his or her own therapist to give positive testimony, provide a supportive role, and present data in a favorable light all because of the therapeutic alliance. The patient could perceive negative testimony as wrongly severing that alliance, which could lead to an ethics complaint or malpractice action. If the case goes against the patient or if the treating expert’s testimony generates further litigation or an appeal, then the likelihood of a “lack of informed patient consent” claim against the psychotherapist increases.

Additionally, opposing counsel will attempt to impeach the treating expert’s objectivity and veracity. If opposing counsel calls into question the expert’s credibility as a witness and the court accords the testimony the lesser weight of the evidence, then impeachment at some level was successful.

Therapeutic and Forensic Role Conflicts

Tennessee Bar Journal cover, March 2020

A psychologist or psychiatrist may sometimes be appointed by the judge to serve as a forensic evaluator, particularly in custody cases. Litigants may hire their own independent child custody evaluators, launching a battle of the experts. But when the forensic evaluator is or was treating the spouse, parent, or child, a troubling conflict of interest arises. The mental health professional in a past or current therapeutic role with the patient cannot serve as forensic evaluator in the patient’s case. Accepting this dual role violates APA Ethics Code Standards 3.05 and 3.06, risks harm to or exploitation of the patient, and could demonstrably weaken the patient’s case.

Forensic Evaluator Serves the Court

The forensic evaluator is an expert witness who serves the court. Unlike the treating expert witness, a forensic evaluator collects data specifically for the purpose of drawing psycho-legal opinions and inferences. The most common forensic examination is the child custody evaluation. A psychotherapist in the role of forensic child custody evaluator assists the court in determining what legal decision-making authority, parenting time, and child support arrangements are in the child’s best interests. Importantly, both parents are placed under scrutiny during the forensic investigation. When one parent is or was also the evaluator’s patient, the expert has a conflict of interest. Should the forensic evaluator later become the child’s therapist, that, too, creates a conflict.

With the psychotherapist assuming multiple relationships with a patient — in a therapeutic role and an evaluative role for the court -— the treating relationship presumptively compromises the expert’s objectivity. Therefore, an existing therapeutic role should preclude qualification as a forensic expert witness ab initio. There is an important exception: When the court orders the psychologist or psychiatrist to step in as forensic evaluator despite an existing therapeutic relationship because, for instance, no other expert is available. A rare occurrence, yet possible.

Can Therapeutic and Forensic Roles Ethically Coincide?

With few exceptions, the clinician cannot be both the client’s treating psychotherapist and a forensic evaluator in that client’s custody case without violating professional ethics. Ofer Zur, PhD, of the California-based Zur Institute (offering training and continuing education for mental health professionals) noted that:

Forensic dual relationships involve clinicians who serve as treating therapists, evaluators and witnesses in trials or hearings. Serving as a treating psychotherapist or counselor as well as an expert witness, rather than fact witness, is considered a very complicated and often ill-advised dual relationship.18

In Tennessee, a mental health professional should not testify in an evaluative role — that is, as a forensic child custody evaluator — if also serving in a therapeutic role with the subject of such investigation and evaluation. The forensic evaluator’s absolute objectivity is essential to a just result from the legal proceedings. Again, bias and therapeutic alliance make absolute objectivity unobtainable.

Getting back to basic conflicts of interest, serving in this dual role could negatively impact the court proceedings and both parties, not just the patient. Any multiple relationship with a patient that could reasonably be expected to impair the psychotherapist’s objectivity, competency, effectiveness and impartiality should be avoided. The APA Ethics Code parallels Tennessee’s position on this issue.

Under Tennessee evidentiary rules, the judge “shall disallow” the forensic expert’s opinions and inferences if drawn from untrustworthy data or facts.19 Dual roles create an untrustworthy situation. When the expert witness lacks objectivity (whether the flaw is actual or perceived), his or her expert testimony could be regarded as having minimal value to the court. In other words, the value of the forensic report can be questioned or negated given the therapeutic relationship with the patient. Be mindful of the cost involved in conducting forensic child custody evaluations. Even an abbreviated investigation could cost many thousands of dollars.

Irreconcilable Conflict Between Therapeutic and Forensic Roles

Unlike a patient’s waiver of doctor-patient privilege allowing the treating psychotherapist to testify as fact witness or as expert treating witness, a patient-litigant cannot waive the doctor-patient privilege allowing a treating psychiatrist or psychologist to serve as forensic evaluator.20 That is the bright-line rule the parties, attorneys, court, and mental health professionals must abide by. It stems from a presumed conflict of interest in the dual role of treating psychotherapist and forensic evaluator.

Characteristics Required of Forensic Evaluators

To effectively serve the court, forensic evaluators must possess specific attributes. In addition to being properly credentialed, the following characteristics are required of all forensic evaluators:

  • Objectivity;
  • Impartiality;
  • Detachment;21
  • Independence of judgment;
  • Neutrality;
  • Requisite knowledge, skill,
  • experience and training;
  • Ability to maintain professional boundaries;
  • Adherence to standard assessment procedures;
  • Ability to overcome personal biases;
  • Competency;
  • Use of multiple methods of data gathering; and
  • Ability to maintain complex professional records.22

The expert must also have sufficient knowledge of applicable Tennessee family law to render a psycho-legal opinion, provide a written or testimonial report, and make recommendations to the court. The forensic evaluator uses special knowledge to assist the court in making a determination of, for instance, sole or joint legal decision-making authority over the child.

APA Guidelines for Child Custody Evaluations

The APA’s rationale for avoiding dual therapeutic and evaluative roles, as set forth in its Guidelines for Child Custody Evaluations in Family Law Proceedings, is that these multiple relationships “undermine the court’s confidence” in the expert’s “opinions and recommendations.”23  Essentially, this vote of no confidence can result in little weight or credibility being given the expert’s evaluative work product.

The APA guidelines are clear. The psychotherapist should decline court appointments and private referrals that would result in this multi-role ethical conflict. Worrisome conflicts arise whenever the practitioner:

  1. Assumes a forensic role after treating the patient; or
  2. Provides a forensic evaluation and later takes on the examinee as a patient for treatment.

The Connecticut divorce case of Azia v. DiLascia illustrates the second situation.

In Azia, the trial court pointedly minimized the expert opinion of an APA member who performed the custody evaluation as a judicially appointed special master. The forensic examination was conducted in October 1998. The following month, while the family law case was ongoing, that same doctor was hired by the mother as the child’s treating psychotherapist. Disregarding the impact a dual-role ethics conflict might have on the parties, the doctor accessed information about the child-examinee for the purpose of treatment. This information was provided to the special master in confidence during the forensic child custody evaluation!

The Azia court scathingly described the harmful fall-out from the expert’s conflicting dual roles:

[Doctor’s] thoughtful consideration of ethical considerations could have saved this issue as a cause of further tension between the two parents. Instead, she served to function as a catalyst for further mistrust between the parties … The failure of [doctor] to recognize that any ethical considerations should have required her to pause and consider with great caution her acceptance of [child] as a patient is most troubling; the court accords her expert opinion little weight.” [Emphasis added.]24 

The Azia court cited APA guidelines for forensic child custody evaluations and the APA Ethics Code instructing psychotherapists to avoid performing dual, potentially conflicting roles in forensic investigations. A damaged reputation was only one of the prices this doctor paid by failing to avoid an obvious, serious conflict of interest. She arguably caused harm by exacerbating an already emotionally charged situation, violating the APA’s general principle to “strive to benefit those with whom they work and take care to do no harm.”25

The treating psychotherapist might argue how the court cannot order assumption of a dual role and performance of new services regarding a patient or client. Consequently, appropriate forensic responses to questioning would not be forthcoming. For example: “Counselor/Your Honor, I cannot honestly answer that question. First, it exceeds the scope of my services to Client. Second, I did not apply the forensic procedures necessary for me to honestly and objectively answer that question. Therefore, I cannot answer as I do not know.” 26

In the event a court orders the treating psychotherapist into a dual role situation as forensic evaluator in a family law case, precautions should be taken to minimize ethical conflicts and potential harm. Obtain independent counsel and seek clarification from the judge about the specific forensic duties to be performed, as well as the scope of confidentiality applicable to the situation.

Armed with independent legal advice and tailored court orders, the treating psychiatrist, psychologist or counselor is in the best position to safeguard his or her professional reputation and minimize unreasonable exposure to an ethics complaint. Winging it on the witness stand really isn’t an option.

 


MILES MASON SR. practices family law in Memphis and is a graduate of the University of Memphis Cecil C. Humphreys School of Law. He authored The Forensic Account Deskbook, published by the American Bar Association Family Law Section.  A second edition was released this spring.

 

NOTES:

1. American Psychological Association (APA) Ethical Principles of Psychologists and Code of Conduct (2017), Standard 3.05 Multiple Relationships.
2. APA Standard 3.06 Conflict of Interest.
3. Tenn. R. Civ. P. 45.01.
4. Tenn. R. Civ. P. 45.02.
5. Tenn. R. Civ. P. 45.02.
6. Tenn. R. Evid. 501, Privileges Recognized Only as Provided.
7. Tenn. Code Ann. § 24-1-207, Psychiatrist-Patient Privilege.
8. Tenn. Code Ann. § 63-11-213, Psychologist/Psychological Examiner-Client Privilege.
9. Tenn. Code Ann. § 63-23-109, Social Worker-Client Privilege.
10. Tenn. Code Ann. § 63-22-114, Professional Counselor/Marital and Family Therapist/Clinical Pastoral Therapist-Client Privilege.
11. APA Standard 4.01 Maintaining Confidentiality.
12. APA Standard 4.05.
13. Stuart A. Greenberg, PhD, ABPP, and Daniel W. Shuman, JD, MD, “Irreconcilable Conflict Between Therapeutic and Forensic Roles,” Professional Psychology: Research and Practice, Vol.28, No.1, 50-57, 50 (1997).
14. Tenn. R. Evid. 602.
15. Greenberg & Shuman, “Irreconcilable Conflict Between Therapeutic and Forensic Roles,” Professional Psychology: Research and Practice, Vol.28, No.1, 50-57, 51 (1997).
16. Greenberg & Shuman, “Irreconcilable Conflict Between Therapeutic and Forensic Roles,” Professional Psychology: Research and Practice, Vol.28, No.1, 50-57, 51 (1997).
17. Terence W. Campbell, PhD, and Demosthenes Lorandos, PhD, JD, “Cross Examining Experts in the Behavioral Sciences,” § 2:2 Treating Therapist vs. Expert Witness, Thomson Reuters © 2008-2013.

18. Ofer Zur, PhD, on “Dual Relationships, Multiple Relationships, Boundaries, Boundary Crossings & Boundary Violations in Psychotherapy, Counseling & Mental Health,” retrieved 12/18/19 from https://www.zurinstitute.com/boundaries-dual-relationships.
19. Tenn. R. Evid. 703.
20. Greenberg & Shuman, “Irreconcilable Conflict Between Therapeutic and Forensic Roles,” Professional Psychology: Research and Practice, Vol.28, No.1, 50-57, 54 (1997).
21. Greenberg & Shuman, “Irreconcilable Conflict Between Therapeutic and Forensic Roles,” Professional Psychology: Research and Practice, Vol.28, No.1, 50-57, 53 (1997).
22. APA Specialty Guidelines for Forensic Psychology (2013).
23. APA Guidelines for Child Custody Evaluations in Family Law Proceedings (2010), Guideline-7: Psychologists strive to avoid conflicts of interest and multiple relationships in conducting evaluations.
24. Azia v. DiLascia, FA 980548239S, 1999 WL 98946 (Conn. Sup. Ct., Oct. 18, 1999). See also Azia v. DiLascia, 64 Conn. App. 540 (Conn. App. Ct. 2001), fn.9,15.
25. APA (2017) General Principles, Principle A: Beneficence and Nonmaleficence.
26. See also Greenberg & Shuman, “Irreconcilable Conflict Between Therapeutic and Forensic Roles,” Professional Psychology: Research and Practice, Vol.28, No.1, 50-57, 56 (1997).

 

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