An
Urgent Call: Treating Psychologists Are Not Expert Witnesses
By Rosemarie Scolaro Moser, PhD,
and Christopher Barbrack, PhD, JD
When a
psychologist is initially hired from the outset to provide expert
opinion regarding a client, all parties are informed of the specific
role of the psychologist as an expert in an independent evaluation.
The American Psychological Association's Ethical Principles of Psychologists
and Code of Conduct (APA, 1992) advises psychologists to clarify
their roles (see Standard 1.21 a). With the increase in litigation
of personal injury, the demand for forensic psychologists and expert
witnesses continues to grow. However, also accompanying this increase
in litigation is the likelihood that non-forensic psychologists in
general practice will find themselves in the midst of plaintiffs'
attorneys and subpoenas for psychological opinions regarding the
clients whom they evaluate and treat. Unfortunately, all too many
psychologists are unaware of how they should respond when they are
asked to become experts, to offer opinions, and to provide testimony.
The purpose of this article is twofold: 1) to educate psychologists
about the parameters and limitations of their professional roles
when they are requested to testify or form expert opinions on behalf
of their clients; and 2) to provide a document that psychologists
can use to educate attorneys regarding the complex issues related
to the expert vs. treating psychologist roles.
Most psychologists
do not routinely engage in forensic work. Yet, more often than ever,
they are discovering that they are unwittingly placed in positions
in which they are asked to offer deposition or trial testimony for
clients who were initially referred for general psychological services.
While the psychologist-client relationship may not be initiated in
a forensic context, the client may be involved coincidentally in
a lawsuit or may become involved in a lawsuit some time after the
therapy begins, or even after the therapy relationship has been terminated.
By virtue of a lawsuit, clients may place their mental health at
issue. Such cases may include the depressed male client who is referred
by the family practitioner due to a fall at a hotel that resulted
in chronic pain, or the female client who is raped at her place of
employment, or the young boy who is afraid to ride in cars and is
suffering from PTSD after being a passenger in a motor vehicle accident.
Such clients may sue for emotional damages. In these and similar
cases, the client's (plaintiff's) well being is at issue and is the
cause for litigation while in treatment. On the other hand, there
is the scenario that occurs when a psychologist is asked to provide
evidence regarding a client's pre-accident functioning, only after
the treatment has been terminated. The opposing side (defendant)
may claim that the client was already emotionally compromised before
the accident. Here, one of the only ways to establish the client's
pre-accident mental health status is to examine relevant pre-accident
documents and witnesses.
Duality
of Roles
First
and foremost, when a psychologist is not initially hired
as an expert, but is providing psychological services that are
non-forensic in
nature, the ethical guidelines warn of potentially harmful,
conflicting roles (see APA, 1992, Standards 1.17 & 7.03). A shift
from treating psychologist to expert psychologist may result
in a conflict and
duality of roles that can be psychologically damaging to the
client, even if the client gives full permission for the psychologist
to
testify. Furthermore, the treating psychologist is not a truly
unbiased, objective expert. Thus, the treating psychologist
when asked to testify,
whether for trial or deposition, should make a good faith effort
to resist. The psychologist should carefully and thoroughly
explain to the client and to the attorney involved why psychology's
ethical
and professional guidelines argue against such a shift in roles.
These guidelines are ultimately in place for the protection,
welfare, and best interests of the client and the public.
When psychologists
enter into a non-forensic, non-expert role to evaluate and/or treat
clients, certain expectations are understood. The psychologist's
role is to act as the client's advocate, to promote the best interests
of the client, and to protect the client. Clearly, this is a biased
role and not one of an independent expert. In the therapeutic relationship,
psychologists pick and choose which information is essential to expose,
what needs to be presented to the client, what will wound the ego
or self if made conscious or public. The psychologist focuses on
tailoring the evaluation or treatment so that it can produce maximum
benefit for the client, enhancing healing and recovery.
In
contrast, the work of the expert is clearly at odds with that
of the
treating psychologist. For the expert, the goal is to seek
the "truth," as
best as can be approximated, and in doing so, certain information
which may not be necessarily therapeutic for the client, is
exposed and rendered public. Consider the following hypothetical
example:
A client
is significantly depressed and in chronic emotional and physical
pain, directly related to the injuries from a motor vehicle accident.
The treating psychologist understands and acknowledges this. The
psychologist also realizes that perhaps the client sometimes distorts
the truth, may not be totally truthful, suffers from a longstanding
personality disorder and past history of substance abuse, has been
noncompliant at times, and is difficult to treat due to trust issues.
The psychologist's role has been to build trust, develop rapport,
be nonjudgmental, and to ultimately facilitate healing, self-acceptance,
and realistic expectations. If this psychologist is placed in the
role of expert, to discuss the damages sustained by this client,
as a function of the motor vehicle accident injuries, then this psychologist
may very well be asked for opinions and judgments about the client's
history, personality, and truthfulness. The client is then confronted
by the psychologist's opinions and judgments in a public forum (not
in the safe haven of a therapeutic relationship), perhaps before
the client is even ready to hear them. All of the psychotherapeutic
work that was completed is now in jeopardy and the client feels betrayed.
To make matters worse, if the client does not win the case or if
it is not settled favorably, the client feels doubly wounded, betrayed,
and victimized. This event may also color the client's opinions about
psychologists and psychotherapy in general.
When a
psychologist first tries to resist acting as an expert, the following
arguments may be offered by the attorney:
"You
can help your client by telling us the details of how she/he
has suffered. You are the only one who truly knows her/his psychological
condition."
"You,
by virtue of being a doctor, are an expert and have already
rendered your opinion in your records."
"If
you take the stand, we will only ask you about what you have
already documented in your chart, you can refuse to answer
other questions. "
"Your
client wants you to testify. By not doing so, you are abandoning
your client."
The psychologist
should not be led astray by these arguments. A goal of the psychologist
is to protect the welfare of the client. Remember, it is not the
goal of the psychologist, whether forensic or treating, to win a
case. The case is to be won by the attorney who is hired to do so.
The attorney has the opportunity to hire and use an expert for the
sole purpose of rendering a true independent opinion. Doing so takes
the burden off the treating psychologist, protects the psychologist-client
relationship, and renders the abandonment issue irrelevant. Unfortunately,
it may be less expensive if an attorney can use the treating psychologist
who already knows the client, rather than hire an often more costly
forensic psychologist. Thus, the incentive to seek an independent
opinion may be limited by a financial point of view.
With
the client's proper consent, however, all of the treating
psychologist's records are available for review and thus, it is not
always
necessary for the psychologist to act as "fact" witness to simply
reiterate what is in the records. So, the likely purpose of securing
legal testimony from a psychologist is to get at something more than
what is in the record: more than what a fact witness (one who is
not an "expert" but simply reports facts without interpretation
or opinion) can offer. This can be a trap for the treating
psychologist who believes that she/he can control the line
of testimony to focus
only on the record and only on the facts.
The
psychologist fact witness is permitted to testify as to the
direct treatment
experience. Questions for a fact witness might include: 1)
Did you treat Mr.
Smith? 2) When did you treat Mr. Smith? and 3) What was your
diagnosis of Mr. Smith? Even a question such as, "Was it your opinion
in 1995 as the treating psychologist that Mr. Smith's drinking was
related to his intense interpersonal anxiety?" elicits factual
and appropriate information about the past treatment. In other words,
the past opinion becomes the present fact. However, the psychologist
fact witness should not answer questions designed to elicit new opinions: "Would
it be your opinion now that the anxiety you observed in 1995 is related
to the anxiety Mr. Smith is presently experiencing?" This question
is proper for an expert who may be able to formulate an opinion
based on reviewing records of past treatment, past evaluations,
and contemporaneous
examination of the client. It is the expert witness who has
the unique privilege of providing opinions to the jury.
Subpoenas
and Disclosure
Psychologists
should not permit attorneys to run roughshod over them. Most attorneys
trade in an adversarial system and are accustomed to argument; most
psychologists are not. Just as psychologists should educate themselves
about the fact vs. expert witness roles so too should they learn
how to handle subpoenas. In some states, subpoenas are issued by
attorneys. These documents appear quite official, often bearing the
signatures of a court official (not a judge). Some attorneys will
ask for information to which they are not entitled in the hope that
something pertinent to the case will be divulged. It is often beneficial
for treating psychologists to question, challenge, or otherwise resist
the initial subpoena. Sometimes this is easily done if the proper
release has not been obtained from the client. Many state laws or
regulations require that client waiver of confidential information
include specific language. Many attorneys are not aware of regulations
specific to psychologists and may view the psychologist-client relationship
in the same way they regard the physician-patient relationship; however,
a proper waiver/release for a physician may not be a proper waiver/release
for a psychologist.
If there
is no proper release, the psychologist should respond to the subpoena
request rather than ignore it altogether. One way to do so is to
send a letter indicating that if the individual noted in the subpoena
is a client in your practice, then a specified, proper release must
be completed. Such a letter can be developed for a psychology practice
in a standard format with a blank release form attached to it. It
can be routinely sent out as part of office procedure when a subpoena
is received. Please note, it is necessary to respond to any subpoena
that is signed by a judge.
Psychologists
may object to being placed in situations in which they must divulge
confidential information and may claim that the psychologist-client
relationship is a confidential one. However, this objection holds
little weight when the client has signed a proper waiver or a court
orders the psychologist to testify or produce documents. Furthermore,
the privilege is not held by the psychologist, rather it is the client
who holds the privilege and may choose to waive it.
Additionally,
psychologists may argue that not all of the information in
the client's record is necessary for, and relevant to, the
legal case. In this
situation, the attorney requesting the record must convince
the court that disclosure is necessary. In some cases, the
court will perform
an "in camera" (private) review of the information and "redact" (edit)
the record to eliminate the disclosure of unnecessary or inflammatory
information. This process is far superior to that of the psychologist
simply sending the entire record in response to the subpoena.
The
fact that there are always exceptions to the rule of confidentiality
that protects the psychologist-client relationship often leads
attorneys to push psychologists (and their clients) to make improper
disclosures.
This pressure or intimidation is successful more frequently
than one would expect. Psychologists' anxiety over having to
disclose
and their "knowing better" can be subverted by their misguided
beliefs that they are the key, critical providers and keepers of
significant input, as well as by their fear of, and ineptness with,
legal documents (subpoenas) that are personally served upon them.
Many psychologists do not realize that the request for information
is motivated by the attorney's need to save money or by an otherwise
insoluble time problem (e.g., a report or letter due "tomorrow").
Subpoenas usually have little to do with the expertise, appeal,
or uniqueness of the treating psychologist.
Taking
Action
So what
can psychologists do when they are placed in compromising positions?
First, they need to educate the client and the attorney about ethical
guidelines and the ultimate goal of protecting the client. If a psychologist
has developed a good rapport with the client and the client understands
that testifying may be harmful, there is less likelihood that the
client will agree to have the psychologist take the stand. If the
client's attorney understands this dilemma and experiences the psychologist's
unwillingness, the attorney may decide that the psychologist would
not present as a formidable witness anyway. Why would an attorney
choose to use a psychologist who is hesitant and admits to being
biased? Such testimony could be discredited and sound foolish. Second,
if the psychologist receives a subpoena to testify, she/he should
send a letter to the court and to the attorney(s) explaining the
ethical guidelines, role conflicts, bias, and the need to protect
the client, with a request to not be considered an expert in the
case. The present article may assist in educating all parties regarding
such requests.
Ultimately,
if all else fails and the psychologist is required to testify by
a judge's court order, the psychologist may attempt to only answer
questions that pertain to the facts of the case that have already
been considered and documented in the client's chart. The client's
attorney should be coached regarding this. As for the defending,
opposing attorney (cross examiner), there is little that can be controlled
in terms of the line of questioning. However, the psychologist is
advised whenever possible to resist offering opinions about new documents,
findings previously unknown to the psychologist, hypothetical situations,
and judgments about other practitioners' reports. The psychologist
should state the reasons for not offering these opinions, such as
the reasons offered in the present article. If a judge is presiding
over testimony, the judge may override the psychologist's resistance
by compelling the production of the requested opinions. However,
at least the psychologist will have made a good faith effort to protect
the client and to follow ethical and professional guidelines.
When a
judge is not present (such as when compelled to be deposed by court
order), the psychologist has greater leeway in refusing to answer
opinion-oriented, rather than fact-oriented, questions. Even so,
identifying inappropriate questions that seek to request information
that is beyond the facts of the client's record is not a simple task
when one is on the hot seat. The best scenario for the treating psychologist
is to try to avoid testifying altogether before being compelled to
do so by a judge.
A proactive
approach to this dilemma may be most helpful for all parties. Whenever
a client who has experienced an injury, harassment, or any other
event that may result in litigation presents for evaluation or treatment,
the psychologist will do well to clarify the treating vs. expert
witness roles early on so that there will not be future expectations
for the psychologist's legal testimony. This should be discussed
with the client as well as with the client's attorney (of course
with the proper consent of the client to speak to the attorney).
An Urgent
Call
Psychologists
should become educated so that they can exhibit unified behavior
and responses regarding their roles; so that they may consistently
act in an ethically appropriate manner. When psychologists act inconsistently,
they offer mixed messages to the public, and specifically to members
of the legal profession. Thus, it is not surprising that attorneys
may appear incredulous and annoyed when they encounter their first
treating psychologist who resists being deposed, claiming a conflict
of roles.
Psychologists
can learn not to be afraid of attorneys or the legal system. They
can learn to educate others about good practice and how to not let
those others place psychologists and their clients in risky, compromising
positions. Ultimately, it is the responsibility of all those individuals
who serve the public, whether through psychological or legal services,
to act in the best interests of the client, and to educate colleagues
about ethical guidelines.
Reference
American
Psychological Association. (1992). Ethical principles of psychologists
and code of conduct. American Psychologist, 47 (12), 1597-1611
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