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