by Daniel H. Swerdlow-Freed, Ph.D.
Psychologists and other mental health professionals who provide therapy are increasingly being asked by attorneys to assume the additional role of expert witness in some of their therapy patient's litigations. These requests cover a range of legal matters such as claims of personal injury, wrongful discharge, and child custody disputes. In recognition of the high potential for conflict of interest in these circumstances, ethical standards have been promulgated for psychologists, limiting multiple role relationships. Unfortunately, some psychologists and attorneys are unaware of these standards and that violating them can compromise a patient's therapy. Additionally, an evaluation performed by a litigant's treating therapist yields findings that are easily challenged as biased and unreliable.
Psychologists who recognize this potential for role conflict avoid conducting forensic evaluations of their therapy patients. Likewise, attorneys who understand this problem can best serve their client's legal interests by retaining a mental health professional who is able to perform a neutral, independent, and unbiased forensic evaluation.
Different attitudes: A major difference between a therapeutic and a forensic relationship involves the attitude the professional brings to it. Therapists generally listen empathically to their patients, providing a non-critical, non-judgmental attitude. By communicating uncritical acceptance, therapists convey to patients that it is safe to discuss their intimate thoughts and feelings without fear of being judge or criticized.
Forensic evaluators, in contrast, are more neutral, objective, and detached when discussing an examinee's difficulties. There is a deliberate focus on obtaining historical information in an organized, systematic manner, especially information relevant to the psycho-legal issues of that particular case.
Degree of scrutiny: Historical information is gathered by therapists and forensic examiners alike, albeit for different purposes. Therapists obtain personal histories in order to understand the patient's intra- and interpersonal dynamics, to make a diagnosis, and to formulate a treatment plan. Therapists recognize the limitations to information obtained from a single source, although this is not generally considered a serious obstacle to conducting effective therapy. For example, if a patient seeks treatment after having experienced a personal injury, it is common to rely on the person's account of the injury event and not seek other information that either supports or refutes it. In other words, therapy proceeds without the therapist establishing the veracity of the patient's account and without regard for the psycho-legal issues relevant to that patient's situation.
When conducting forensic evaluations, it is common to obtain collateral information that bears on the examinee's psychological functioning. This may include school, work, mental health, and medical records, as well as contacts with significant individuals in the examinee's lie, such as teachers, employers, parents, and therapists. A key reason for obtaining this information is to have a benchmark against which to compare the examinee's account of his/her functioning. The forensic examiner will note the degree of consistency and/or discrepancy between these various sources of information, and these findings will be used to determine the examinee's overall veracity.
Lastly, the type and amount of information that is collected by therapists differs from that gathered by forensic examiners. Therapists gather information sufficient to provide treatment, rarely, if ever, gathering the type or amount of information required to form opinions regarding psycho-legal issues, such as the proximate cause of an injury or the best interests of a child. Lacking this critical information, therapists are not in a position to offer credible, informed opinions regarding the ultimate issue(s) in a case.
Limits of expertise: In order to provide effective treatment, therapists must be knowledgeable about various psychological disorders and therapeutic techniques. In contrast, forensic examiners must be knowledgeable about appropriate evaluations procedures and the psycho-legal issues that are relevant in a particular case. Forensic examiners must also be capable of properly applying the obtained information to answer the legal questions in the matter in which the evaluation was obtained.
To accomplish the above tasks, therapists ask questions relevant to issues of personality dynamics and symptom severity. They rely on knowledge of treatment literature to select appropriate interventions and evaluate the effectiveness of these in an ongoing manner.
Forensic examiners need to have knowledge of psycho-legal issues and related law. They also must be knowledgeable about different forensic assessment procedures, knowing which to administer to answer the psycholegal question at issue.
Goals of the relationship: People who enter therapy seek relief from problems. They may want to improve their adjustment to some life circumstance, resolve an emotionally distressing situation or improve self-understanding. Regardless of the patient's goals, the therapeutic relationship is a helping relationship, and therapists typically do not reveal their personal thoughts and feeling about their patients. To do otherwise could irreparable harm the therapeutic relationship and the patient's emotional well being.
Forensic examiners, on the other hand, render conclusory opinions about examinees, presenting their findings in an objective, detailed manner. The primary goal of an evaluation is to provide relevant information regarding the examinee's psychological functioning to aid the trier of fact in reaching a resolution in the legal dispute. Forensic examiners are expected to present their findings in a neutral fashion and to advocate for their opinions, which is supported by data, regardless of whether these are consistent with the examinee's desires or expectations. Because the examiner-examinee relationship has not been defined as a helping one, the likelihood is reduced that the examinee will feel irreparably harmed by the examiner's opinion.
Other substantial role differences argue against therapists conducting forensic evaluations of their therapy patients. When psychologists engage in this practice, they may be deviating from their ethical code and relevant practice guidelines. The alert attorney can use this opportunity to impeach the psychologist's competence and can cast doubt upon the findings.
It is good practice and a recommended risk management strategy for therapists to avoid entering into multiple relationships with patients. Therapeutic and forensic roles are substantially different and therapists do not routinely conduct the type of inquiry that permits the formation of credible opinions about psycholegal issues. When therapists offer opinions without sufficient basis, this has the potential to harm their patients, is unfair to other litigants, and deprives the court of the neutral and objective information it needs to resolve the legal dispute.
Source: Greenberg, S. A. & Shuman, D. W. (1997) Irreconcilable Conflict between Therapeutic and Forensic roles. Professional Psychology: Research & Practice, Vol. 28, No. 1, 50-57.
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