Youth Services Law

Having a Treating Therapist Serve As a Forensic Witness Is Rarely a Good Idea

Posted In Expert Witness

Definition of Witness

I often find myself in a case opposing a party who has designated his or her or a child's treating therapist as an expert witness on various forensic issues. This arrangement is rarely, if ever, a good idea. I understand the temptation to save money by hiring one person instead of two. However, a treating therapist who tries to serve as an expert forensic witness faces an ethical conflict that can completely undercut both roles.

The core problem is that a forensic witness must be objective, while a therapist's job is to support his or her client. To quote The Evaluation of Child Sexual Abuse Allegations:

In a treatment relationship, even one directed by a court or conducted under the aegis of an agency, the therapist's primary loyalty should be clear: it is to the patient or client, rather than to the patient's family, a social agency or a court. . . . The neutrality and objectivity needed from a forensic examiner cannot be expected once the therapeutic alliance has been formed and the mental health professional has made a commitment to helping the client beyond simple protection.

None of the organizations that set standards will go so far as to completely forbid the practice. But all of them strongly discourage it. At the very least, a treating therapist testifying as an expert should be able to quantify the "different responsibilities and tasks required of each role," as well as the "appropriate steps" he or she took "to guard against role conflict" and to "make sure that the client understands the nature and different responsibilities of each role." APSAC Practice Guidelines, Code of Ethics ¶ C2.

The American Psychological Association cautions its members that dual relationships “may interfere with their ability to practice in a competent and impartial manner.” Specialty Guidelines for Forensic Psychology, Guideline 4.02. The guidelines encourage practitioners to make a referral when possible, Guideline 4.02.01.

Not all issues involving court cases require forensic testimony. As the APA notes,

Providing expert testimony about a patient who is a participant in a legal matter does not necessarily involve the practice of forensic psychology, even when that testimony is relevant to a psychological issue before the decision maker. For example, providing testimony on matters such as a patient’s reported history or other statements, mental status, diagnosis, progress, prognosis, and treatment would not ordinarily be considered forensic practice . . . . In contrast, rendering opinions and providing testimony about a person on psycholegal issues (e.g., criminal responsibility, legal causation, proximate caus) . . . would ordinarily be considered the practice of forensic psychology.

        Guideline 4.02.02.

The guidelines for forensic psychiatrists state that a child’s therapist “should not be the person who is conducting the forensic evaluation.” Practice Parameters at p. 45S. One reason is that treating therapists are able to promise more confidentiality than forensic examiners, id.

The more recent Ethics Guidelines for the Practice of Forensic Psychiatry, published by the American Academy of Psychiatry and the Law, caution,

Psychiatrists who take on a forensic role for patients they are treating may adversely affect the therapeutic relationship with them. . . . The forensic evaluation and the credibility of the practitioner may also be undermined by conflicts inherent in the differing clinical and forensic roles. Treating psychiatrists should therefore generally avoid acting as an expert witness for their patients or performing evaluations of their patients for legal purposes.

        Guideline IV, Honest and Striving for Objectivity, Commentary.

Thus, while it is technically possible for a treating therapist to serve as a forensic witness, the inherent conflicts make it extremely difficult for a treatment provider to serve both roles well. The better course is to have different people provide different services.

Other resources on the issue include: 

APSAC Handbook on Child Maltreatment

Principles of Forensic Mental Health Assessment 

American Psychological Association, Specialty Guidelines for Forensic Psychologists

American Academy of Child and Adolescent Psychiatry, Practice Parameters (not updated since 1997)

America Academy of Psychiatry and the Law, Ethical Guideines for the Practice of Forensic Psychiatry

APSAC Practice Guidelines

Greenberg & Shuman, “Irreconcilable Conflict Between Therapeutic and Forensic Roles,” Professional Psychology: Research and Practice, Vol 28(1):50-57 (Feb 1997)

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