The Review: A Journal of Undergraduate Student Research

Volume 5 Article 4

2002

The Different Duties and Responsibilities of Clinical and Forensic Psychologists in Legal Proceedings

Denise Hugaboom St. John Fisher College, [email protected]

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Recommended Citation Hugaboom, Denise. "The Different Duties and Responsibilities of Clinical and Forensic Psychologists in Legal Proceedings." The Review: A Journal of Undergraduate Student Research 5 (2002): 27-32. Web. [date of access]. .

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Abstract In lieu of an abstract, below is the essay's first paragraph.

Clinicians and forensic psychologists are two types of psychologists who are often required to appear as witnesses in court proceedings. Their roles, duties, and responsibilities in legal issues arc surprisingly different, but it is possible for them to overlap. It is important for psychologists to recognize both the obligations and limitations of their responsibilities when testifying. An important and often unclear question that generally arises is: how can psychologists best fulfill their legal and ethical duties ot their clients?

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The Different Duties and Responsibilities of Clinical m and Forensic Psychologists in Legal Proceedings WI by Denise R. Hugaboom Wi

Clinicians and forensic psychologists are were restricted in Whalen v. Roe (1976). In two types of psychologists who are often this case, the Court ruled that a patient does required to appear as witnesses in court not have a constitutional right to proceedings. Their roles, duties, and informational privacy of communications or responsibilities in legal issues arc records generated in the course of medical surprisingly different, but it is possible for treatment when the records are adequately them to overlap. It is important for protected from unauthorized disclosure psychologists to recogrnze both the (Smith-Bell & Winslade, 1994). There are obligations and limitations of their only I 0 states which have recognized a m responsibilities when testifying. An constitutionally based psychotherapist­ m important and often unclear question that patient privilege for psychotherapeutic generally arises is: how can psychologists communications, and the decisions that were best fulfill their legal and ethical duties to made in those states are now at least 15 to their clients? 20 years old (Smith-Bell & Winslade, 1994, Clinical psychologists play an important citing Smith, 1980, citing Bremer v. State, role in legal issues regarding their clients. 1973). Clinicians may be asked to submit records to It is reassuring to know that with these insurance companies, report suspected ambiguous lines that border legal rights and incidents of child abuse, and testify on ethical requirements, there are some behalf of or against their clients in a court of particular cases in which the decision law. Unfortunately, when asked or required between right and wrong is defined as to participate in legal proceedings of any clearly as black and white. There are times sort, clinicians are faced with indistinct when legally and ethically, a clinician must guidelines that blur between legal and break confidentiality. Corey (2001) lays out ethical requirements. several circumstances in which counselors One of the primary requirements of a must legally report certain information. practicing clinician is to maintain Counselors are required to break confidentiality with a client (American confidentiality and report or even testify Psychological Association 1992). Once a when clients pose a danger to themselves or client discloses private infonnation to a others, and when a counselor believes that a therapist in an environment in which it is minor (a person under the age of 16) is a expected that the information will not victim of rape, incest, or abuse. They are ordinarily be disclosed to third parties, it also required to release their records to a becomes confidential (Smith-Bell & third party upon request of the client. Winslade, 1994). The laws regarding Finally, therapists must release certain confidentiality and privacy have changed information if it becomes an issue in court over time. The constitutional right to action. Besides these specific situations, a privacy was first recognized by the Supreme clinical therapist is legally required to testify Court in Griswold v. Connecticut, ( 1965) to all other psychotherapeutic and in Eisenstad/t v. Barrd (1972). communications unless that material has the However, the constitutional rights to privacy status of being privileged. Refusal to do so

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may result in the therapist being charged a Tarasoff warning, or a wa rning by the with contempt of court (Smith-Bell & clinician to the potential victim and to the Winslade, J 994). pol ice. If that attempt to protect or warn The only situation in which the therapist fails, the clinician is then required by law to is aware of relevant in fo rmati on but is testi fy in court aga inst the patient. It seems In legally pcnnitted to refuse to speak about it that following the Tarasoff decision, patients es is when that information is considered in California have the right to less and less to privileged. A privilege is the exception to pri vacy. The Cali fornia courts are now or the genera! rule that the public has a right to saying that the usual rul es of confidentiality aJ relevant information in a court proceeding, and privilege do not apply to any patients Jy and this common-law rule can be used by who have demonstrated that they will be or re the therapist to protect the client's right to have been dangerous (Meyers, 1991 ). re privacy and confidentiality. A piece of Section I 024 of the Evidence Code of the a information must fulfill several requirements California Supreme Court creates this broad ;t­ in order to be held privileged. The exception by stating, "There is no ~c information must be from a patient to a privilege... if the psychotherapist has :re licensed or certified therapist, or to an reasonable cause to believe that the patient to assistant of a therapist. A professional is in such mental or emotional condition as 14, relationship must ex ist between the patient to be dangerous to himself or to the person re, and the clinician, and the communications or property of another and that disclosure of must be related to the provision of the communication is necessary to prevent ise professional service. Finall y, because the the threatened danger" (Meyers, 199 1-ci ti ng nd communications must be considered as Section I 024 of Cali fornia Evidence Code). ne confidenti al, they may not be released by the As the psychotherapist-patient privilege on client to a third party (Smith, 1986- 1987). diminishes, more and more responsibility is as When information holds the privileged put on the therapist to make the right choice, 1es status is one of the few times that a therapist and more and more consequences face the JSt is not legally required by a court of law to therapist for making the wrong choice. mt testify for or against the client. In legal confines, cJ inicians face many >rs The laws and requirements that guide tough choices. Decisions regarding m. behavior vary from state to state, causing testifying against a client in a court of law, iak another source of concern for practicing testifying on behalf of a client, or even ify clinicians. California's laws are currently deciding whether or not to report a or perhaps the most diverse, including the potcntiaJly "dangerous" client often require ta newly enforced duty of psychotherapists to time, careful judgment, and opinions that ; a testify against their clients at trial. come from the heart. Each decision comes are California's laws mandate that no therapist with numerous consequences. If a decision 1a can be licensed to practice without passing a is made to follow ethical guidelines and nt. test that includes a measure of understanding maintain confidentiality, the therapist risks am of the duty to warn and protect (Meyers, being held in contempt of court and jailed. urt 1991). The Tarasoff case in California has If a decision is made to follow legal ' a become notorious due to the California requirements and break confidentiality, the jfy Supreme Court's decision regarding it. The therapist risks losing an effective therapeutic Ilic Tarasoff decision requires that a confession relationship due to a shattering of trust. A the of an intention to commit murder by a client counselor's first priority is to do what is best so to a therapist must be reported in the form of for the client, and testifying against the

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cli ent is obviously not always the best thing. Although there arc ways in which Because of the fu zzy lines surrounding legal treating clinical psychologists arc simil ar to H and ethical guidelines, it is possibl e that a fo rensic experts, there are also many ways in counselor might break confidentiality whi ch they are different. A forensic mi stakenl y when not legally required to do psychologist generall y meets with the so. This could result in the counselor being patient only one or two times in order to stripped of hi s or her license to practice, a conduct an evaluati on. The meeting and devastating outcome. Because of the evaluation take place only after a cri me has possibility of these consequences, it is o t1en been committed and an accusation has been better to have a forensic psychologist, or made. Forensic evaluations are usuall y expert witness, testify in a court proceeding. short, and less information is covered than A fo rensic psychologist's job is similar would be in a clinical evaluation (Iverson, in some aspects to a clinician's job. 2000). Because the forensic psychologist is "Forensic psychology'' is defined in the not the patient's treating psychologist, he or Forensic Specialty Guidelines (1 99 1) as "all she can more easily detennine objective forms of professional psychological conduct reality, whereas a clinician generally focuses when acting, with definable foreknowledge, on a patient's subjective reality (Faust & as a psychological expert on explicitly Ziskin, 1988). Forensic psychologists may psycholegal issues, in direct assistance to be asked to write a report, as in the issue of courts, parties to legal proceedings, child custody, or they may be asked to put correctional and forensic mental health their ability to use in a courtroom and testify facilities, and administrative, judicial, and as expert witnesses. One of the most legislati ve agencies acting in an adjudicative important differences between clinical and capacity" ( 1991). Forensic psychologists fo rensic psychologists in issues regarding provide services only in areas of psychology legality, however, is the difference of for which they have specialized knowledge, informed consent. skill, experience, and education. They are When a patient sees a cl inical responsible fo r presenting fundamental and psychologist for the first time, he or she is reasonable levels of knowledge of legal , given informed consent. Info rmed consent professional, factual, and civic standards is a process by which the therapist educates that govern their participation as experts in the client about hi s or her rights and courtrooms. These standards give a forensic responsibilities in therapy. Some aspects of psychologist the privilege to testify under informed consent include general goals of the title of an expert witness. The major counseling, the responsibilities of the difference between an expert witness and a counselor toward the client, the non-expert is that the expert is permitted to responsibilities of the client toward the and expected to render a personal opinion counselor, the limitations of and (Iverson, 2000). They have the expectations to confidentiality, legal and responsibility to provide services in a ethical parameters that could define the manner consistent with the highest standards relationship, the qualifications and of the profession, and must make a background of the therapist, and the services reasonable effort to ensure that their services the client can expect (Corey, 200 I). The and products of their services are used in a limitations of and expectations to responsible manner (Forensic Specialty confidentiality is the most important aspect Guidelines, 1991 ). of informed consent with relation to the possibility of the counselor testifying in

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ich court. The client can then expect that what psychologists should be qualified as expert r to he or she says to the therapist will, in fact, witnesses (2000). These points arc sm remain confidential and privileged, unless comprised from the American Psychological nsic the counselor deems it necessary to break Association Ethical Principles and Code of the confidentiality for legal or ethical reasons. Conduct, and the Specialty Guidelines for '-r to In a typical forensic evaluation, informed Forensic Psychologists. The first point is and consent includes the psychologist making it that psychologists arc pennittcd to provide ; has known to the client that any information he expert testimony only after they conduct an been or she discloses with direct regards to the appropriate evaluation for this type of ~ally legal purpose of the evaluation will be testimony. Although some therapists feel than divulged at the therapist's discretion. that their initial clinical evaluation was rson, lnfonnation that does not bear directly in the sufficiently thorough to be used for expert ist is legal issues of the case at hand will remain testimony, there are fundamentally different 1e or confidential, and forensic psychologists will emphases on why that person first came to ctive make every effort to be sure that the client clinical therapy and why that person is now :uses understands his or her rights (Specialty in need of a forensic evaluation. Therefore, st & Guidelines for Forensic Psychologists, a new evaluation must be conducted with may 1991 ). Thus, while in a clinical setting the the current emphasis in mind. Secondly, a Je of client may be willing to speak freely with clinical psychologist must recognize and >put the expectation that what is said remains discuss with the client potential conflicts ~tify confidential, in a forensic setting, the client that may arise from this dual relationship. most is aware that much of what is said is subject Both parties should be aware that with the and to public disclosure. clinician testifying as an expert, some trust ·ding It seems that the jobs of a clinical that has built up over time might be broken : of psychologist and of a forensic psychologist down, and that the therapeutic relationship are entirely different from each other, with could suffer as a result. Third, psychologists nicaJ different descriptions, different should do their best to avoid performing he is requirements, different expectations, and multiple and potentially conflicting roles in ~sent different ethical and legal obligations. forensic matter. Although it is evident that a cates However, these roles can, and quite often dual relationship is occurring, the and do, overlap. Although some argue that psychologist should keep clinical matters in :ts of clinical psychologists do not have an mind in therapy sessions and forensic ls of adequate knowledge base for formulating matters in mind during the evaluation and in the expert opinions, expert testimony by clinical the courtroom. An effort should not be the psychologists has become commonplace in made to bring the two together; in fact, an the the courts of the United States (Rotgers & effort should be made to keep them and Barrett, 1996). Clinical psychologists must completely apart. Fourth, in professional and undertake several important steps and follow relationships which have been terminated, ~ the specific guidelines that have been developed the prior professional relationship does not and just for this purpose to be qualified to exclude the psychologist from testifying as a Vices conduct a forensic evaluation and testify as fact witness or from testifying to their The an expert witness. services to the extent permitted by to Iverson writes regarding dual applicable law. The psychologist should, spect relationships in psycholegal evaluations however, appropriately take into account the 1 the about four basic points that are directly ways in which the prior relationship might 1g m related to whether or not treating affect his or her current professional

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objectivity, and di sclose any potential that clinicians who play the role of forensic conflicts to the relevant parties (Iverson psychologists may cause more trouble than 2000). they are worth. There arc probably more The American Psychological consequences associated with thi s type of Association also published in its Ethi cal testimony than any other that has been Principles of Psychologists and Code of mentioned so far. Conduct several standards of professional One reason that clinical psychologists' conduct regarding the expert testimony of testimony as ex pert witnesses is so clinical psychologists. Rotgers and Barrett problematic is that they often just are not ( 1996) discuss four of these standards in knowledgeable enough about forensic their article regarding implications and matters. According to studies performed by recommendations for practicing clinical Faust and Zisk in ( 1988), clinical psychologists serving as expert witnesses. psychologists often cannot answer forensic Standard 1.06, entitled "Basis for Scienti fi e questions accurately. This discredits them and Professional Judgments" encourages as witnesses, and the credibility of a so­ psychologists to rely on scientific and called expert witness is vitaJly important in a professionaJly derived knowledge in their court of law. Faust and Ziskin also report practice as both clinicians and as expert that clinical psychologists are not as likely witnesses. Standard 2.02, "Competence and as forensic psychologists to help a judge and Appropriate Use of Assessments and jury make more accurate conclusions than Interventions" requires clinical would otherwise be possible. In fact, results psychologists to select assessment of one study showed that professional, instruments for their evaluations on the basis practicing clinical psychologists performed of research indicating the appropriateness of similarly to high school students in a task the instruments for the specific issues at which required them to predict violence of a hand, and directs psychologists to work given individual. It is astounding to find out actively to prevent misuse of those that in the results of many studies involving instruments. Standard 2.04, "Use of prediction of violence, clinicians are wrong Assessment in General and With Special at least twice as often as they are correct Populations" requires familiarities of (Faust & Ziskin, 1988). psychometric properties and limitations of Not only are clinical psychologists not assessment instruments which are used in knowledgeable enough about forensic the practice of psychology and may be used matters, they often depend on the wrong in a forensic evaluation. FinaJiy, Standard information to lead them to making 2.05, "Interpreting Assessment Results" conclusions and predictions. In many cases, requires clinical psychologists to directly that fact that clinical criteria have been met state any reservations they may have about does not mean that the satisfaction of legal the accuracy and limitations of their forensic criteria has been established (Faust & Ziskin assessments. 1988). For example, the clinical criteria that With the rules and guidelines that have determine the diagnosis of insanity do not been established to allow clinicians to testify include some tests that are required for the as experts, this type of testimony has diagnosis of legal insanity, such as the become common in courtrooms nationwide. capacity to appreciate the consequences of According to Faust and Ziskin, clinicians one's actions, or to resist an impulse. appear in up to as many as one million legal Therefore, a clinician acting as an expert cases annually (1988). It appears, however, witness might be inclined to base his

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ms1c diagnosis on clinical testing, whereas a and the client have had a therapeutic than forensic psychologist would also be sure to relati onship, the therapist certainly knows more include appropriate tests for a legal more than would be known from simply IC of diagnosis. conducting a forensic evaluati on. The been Forensic evaluations made by clinical therapist risks embarrassing the patient by psychologists are aJso inaccurate for revealing information that the patient docs ~ists' numerous other reasons. It is difficult for a not expect to be presented in the therapist's so clinician to maintain the neutral role that is testimony. It is also possible that the ~ not necessary in a forensic evaluation simply therapist might be embarrassed personally if ens1c because it is evident that the clinician is not discredited through cross-examination, all of ~by in fact neutral to the client; they already which is likely to put serious strain on an nical know each other on a more intimate level effective therapeutic relationship (Iverson, ens1c because of the previous therapeutic 2000). them relationship (Iverson 2000). Obviously, the How docs a psychologist fulfill his or l so­ lack of neutrality will affect the clinician's her legal and ethical responsibilities to both t in a role in the courtroom. As previously the client and society? It is possible that an eport mentioned, it is also difficult for the answer could be made for them; if ikely clinician to focus on objective reality. They psychologists' records are subpoenaed, they e and arc minimally trained to do so; rather, they simply have no choice. But otherwise there than have been trained to focus primarily on the simply seems to be much gray area that ~ults patient's subjective reality (Faust & Ziskin, engulfs issues of confidentiality, informed 1onal, 1988). consent, legal and ethical laws. With Jaws nned Perhaps the most important reason why becoming stricter, it seems that citizens are task it is so problematic for a clinician to testify losing more of their rights to confidentiality ~of a as an expert is because of the detrimental and psychotherapist-patient privilege than id out effect it can have on the therapeutic ever. On the other hand, it seems that 1lving relationship. If a clinical psychologist citizens are far more protected from harm vrong serves as an expert witness, the process of because of the duty to warn and Tarasoff meet gaining informed consent is a tedious one. laws. Psychologists today need to be aware The client must consent to certain things of their own level of knowledge and know s not being revealed while choosing to keep when they are doing more harm than help. ·ensic others privileged. The psychologist then More than anything, psychologists need to vrong must answer any questions asked about the use their knowledge and their heart to fulfill aking information which is subject to public their legal and ethical duties responsibly. ~ases, knowledge while keeping the privileged 11 met information confidential. The clinician may legal unknowingly exert undue influence on his or iiskin her patient due to his or her gained position a that of trust and authority. The patient may feel o not as though he or she has disrespected or )r the offended the professional credentials of the s the psychologist by not giving consent (Iverson ;es of 2000). It is also important to consider the pulse. situation in which the therapist reveals !Xpert information that the client did not even e his expect to come up. Because the counselor

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References

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Iverson, G. (2000). Dual relationships in Smith-Bell , M., & Winslade, W. J. (1994). psycholegal evaluations: Treating Privacy, confidentiality, and privilege in psychologists serving as expert psychotherapeutic relationships. witnesses. American Journal of American Journal ofOrthopsychiatry, Forensic Psychology, I 8 (2), 79-87. 64, (2), 180-193.

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