Table Of Contents
Forensic and therapeutic roles are generally considered incompatible. The psychotherapist’s or counselor’s role is that of a patient advocate, which often presents irreconcilable conflict with the objective-evaluative role of a forensic expert. Psychotherapists are generally ‘biased’ in favor of their clients, as they have a commitment for the patient’s welfare. In contrast, forensic experts are committed to a truthful, objective and unbiased reporting to the court. The forensic-therapist dual relationships often present conflict of interests and, as a result, are often unethical and should be avoided under most circumstances.
One of the most important pieces of advice from risk management experts to clinicians or treaters is, if you are the clinician-treater, do NOT make custody recommendations or get involved with legal aspects of divorce and custody. One of the most common, and regretfully frequent, board complaints in recent years occurs when psychotherapists, counselors or clinicians who are treaters make custody recommendations without the qualifications or expertise to do so and without the data to support it. It is important for psychotherapists and counselors who serve in clinical roles to, whenever possible, avoid writing letters regarding custody recommendations or harm assessment in divorce and custody cases regarding their clinical client. If a judge (not a parent’s attorney) instructs or orders a clinician to give his/her opinion regarding custody, the clinician should first object and explain to the judge the rationale of the objection. If the judge insists on hearing from the clinician, the clinician can either claim that he/she does not have enough data to make an informed decision or comply as a last resort. It has been documented that some attorneys and clients set clinicians up by initiating therapy with a hidden agenda of getting a letter that ‘simply’ states something such as “Mary is a good and fit mother”, “Johnny seems extremely upset after he spends time with his mother” or “Jane is scared of Bruce’s explosive nature.” It is important for counselors-psychotherapists-treaters to leave custody recommendations to court-appointed, qualified and certified custody evaluators and not sign pre-constructed letters from their client’s attorney about their “expert opinion.”
Forensic dual relationships which takes place in prison, jails and other correctional settings are often unavoidable and are significantly different from forensic dual relationships in custody cases. More info on Forensic dual relationships in correctional settings
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- Berson, J. S. Dual Relationships for the Psychologist when custody is an Issue
- Campbell, T. W. (2005). Treating Therapist vs. Expert Witness
- Covell, C. and Jennifer Wheeler, J. (2006) Revisiting the ‘Irreconcilable Conflict between Therapeutic and Forensic Roles’: Implications for sex offender specialists (pages 6-8)
- Gordon, S. G., (2016). Crossing the Line: Daubert, Dual Roles, and the Admissibility of Forensic Mental Health Testimony. Scholarly Works. Paper 969. http://scholars.law.unlv.edu/facpub/969.
- Greenberg, S. and Shuman, D.W. (2007). When Worlds Collide: Therapeutic and Forensic Roles. Professional Psychology: Research and Practice, 38, 129-132.
- Heltzel, T. (2007). Compatibility of Therapeutic and Forensic Roles. Professional Psychology: Research and Practice, 38 (2), 122-128.
- Nidich, P. A. (1999). Ethical Issues in the Use of the Treating Psychiatrist as an Expert Witness
- Reid, W. H. (1998). Treating Clinicians and Expert Testimony. Journal of Practical Psychiatry and Behavioral Health March, 1-3.
- Reid, W. H. (2002). Forensic Work and Nonforensic Clinicians-Part I. Journal of Psychiatric Practice, 8 (2) 119-122.
- Reid, W. H. (2002). Forensic Work and Nonforensic Clinicians, Part II: Reports and Depositions. Journal of Psychiatric Practice, 8 (3) 181- 183.
- Reid, W.H (2010). When Lawyers Call Clinicians. Journal of Psychiatric Practice 2010;16:253-257.
- Strasberger, L., Gutheil, T., & Brodsky, A. (1997). On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry, 154, 448-456.
Alternative View on Expert vs. Clinician
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- Butters, R. P. & Vaughan-Eden, V. (2011). The ethics of practicing forensic social work. Journal of Forensic Social Work, 1, 61–72.
- Cooper, G. J. (2010). Integrity and zeal. In T. Dare & B. Wendel (Eds.) Professional Ethics and Personal Integrity (pp. 79–99). Newcastle, UK: Cambridge Scholars Publishing.
- Devaney, S. (2007). The Loneliness of the Expert Witness. Medical Law Review, 15, 116-125
- Eisner, D.A.(2010). Expert Witness Mental Health Testimony: Handling Deposition and Trial Traps. American Journal of Forensic Psychology, 28, 47-65.
- Greenberg, S. A. & Shuman, D. W. (1997). Irreconcilable Conflict Between Therapeutic and Forensic Roles. Professional Psychology: Research and Practice, 28, 50 57.
- Gutheil, T. G. and Hilliard, J. T. (2001). The Treating Psychiatrist Thrust Into the Role of Expert Witness, Psychiatric Services, 52, 1526-1527.
- Gutheil, T. G., Simon, S.I. & Simpson, S. (2006). Attorney s Request for Complete Tax Records from Opposing Expert Witnesses: Some Approaches to the Problem. Journal of the American Academy of Psychiatry and Law, 34, 518-522.
- Haag, A. M. (2006). Ethical dilemmas faced by correctional psychologists in Canada. Criminal Justice and Behavior, 33(1), 93–109.
- Heltzel, T. (2007). Compatibility of Therapeutic and Forensic Roles. Professional Psychology: Research and Practice, 38, 122-128.
- Horvath, A. O. & Luborsky, L. (1993). The Role of the Therapeutic Alliance in Psychotherapy. Journal of Consulting and Clinical Psychology, 61, 561-573.
- IACFP (2010). Standards for psychology services in jails, prisons, correctional facilities, and agencies, 3rd ed. Criminal Justice and Behavior, 37, 449–808.
- Iverson, G. L. (2000). Dual relationships in psycholegal evaluations: Treating psychologists serving as expert witnesses. American Journal of Forensic Psychology, 18(2), 79-87.
- Reid, W. H. (2013). Developing a Forensic Practice: Operations and Ethics for Experts. New York & London: Routledge, Taylor & Francis.
- Reid, W. H. (2003). Why Non-Forensic Clinicians Should Decline Forensic Referrals. Journal of Psychiatric Practice 9:163-166.
- Reid, W. H. (1998). Treating clinicians and expert testimony. Journal of Practical Psychiatry and Behavioral Health, March, 1–3.
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- Shuman, D. W. & Greenberg, S. A. (1998). The Role of Ethical Norms in the Admissibility of Expert Testimony. The Judges Journal, 37, 4 9, 42 43.
- Shuman, D. W., Greenberg, S., Heilbrun, K., & Foote, W. (1998). Special perspective: An immodest proposal: should treating mental health professionals be banned from testifying about their patients? Behavioral Sciences and the Law,16(4), 509–523.
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Ethics Codes and Specialty Guidelines Regarding Forensic Services
- American Psychological Association – APA. (2016). Ethical Principles of Psychologists and Code of Conduct
- 2.01 Boundaries of Competence>
- 3.06 Conflict of Interest
- 3.05 Multiple Relationships
- American Psychology-Law Society, Division 41 of the American Psychological Association (APA), Specialty Guidelines for Forensic Psychology (2012)
- Guideline 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 se-quential 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. If referral is not possible, the forensic practitioner is encouraged to consider the risks and benefits to all parties and to the legal system or entity likely to be impacted, the possibility of separating each service widely in time, seeking judicial review and direction, and consulting with knowledgeable colleagues. When providing both forensic and therapeutic services, forensic practitioners seek to minimize the potential negative effects of this circumstance (EPPCC Standard 3.05).
- Guideline 4.02.01: Therapeutic-Forensic Role Conflicts
- American Academy Of Psychiatry And The Law (AAPL) Ethics Guidelines For The Practice Of Forensic Psychiatry: Section IV. Honesty and Striving for Objectivity, parag. 7
- Psychiatrists who take on a forensic role for patients they are treating may adversely affect the therapeutic relationship with them. Forensic evaluations usually require interviewing corroborative sources, exposing information to public scrutiny, or subjecting evaluees and the treatment itself to potentially damaging cross-examination. 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.
- Treating psychiatrists appearing as “fact” witnesses should be sensitive to the unnecessary disclosure of private information or the possible misinterpretation of testimony as “expert” opinion. In situations when the dual role is required or unavoidable (such as Workers’ Compensation, disability evaluations, civil commitment, or guardianship hearings), sensitivity to differences between clinical and legal obligations remains important.
- When requirements of geography or related constraints dictate the conduct of a forensic evaluation by the treating psychiatrist, the dual role may also be unavoidable; otherwise, referral to another evaluator is preferable.