I have wondered why mental health professionals have always been hesitant to testify in court cases.  I have testified in over 500 cases myself and have found consistently that there is huge fear by my own colleagues to help a person in court with their expertise and knowledge. These professionals could help a victim of abuse, a victim of rape, a victim of crimes perpetrated on them yet don’t.  Let’s look at what the APA says about it. Maybe some of my colleagues won’t be so hesitant to testify if they do it legally correct and are confident in their knowledge and experience and expertise.

APA’s Ethics Committee and Committee on Legal Issues (COLI) discussed the ethical nuances of other forensic situations at two back-to-back sessions, “Relationship Between Ethics and Law” and “Top Ethical Dilemmas” (see page 68). “Don’t stop thinking like a psychologist as you make these decisions,” advised Ethics Committee member Linda Campbell, PhD. For example, she said, think about what the client really wants: Is she/he

looking for you to be a fact witness, an advocate or a rescuer? Does she/he understand what information is in your records and how that might play out in court?

“While they may expect you to go to court to be their advocate…you may in fact look like anything but an advocate by the time the defense lawyer gets through with you,” explained APA Board of Directors member Katherine Nordal, PhD. “Your obligation is to help them understand the pros and cons of even having you involved in the courtroom at all.”

Weighing the decision

Indeed, there are many reasons for therapists to avoid the courtroom in a similar situation, said the presenters. Just a few matters that the hypothetical which may need to explain to client and her/his attorney:

  • When plaintiffs put their mental status at issue in a lawsuit, their entire lives, including psychotherapy, may become an open book, said Robert Kinscherff, JD, PhD, a COLI member and former chair of APA’s Ethics Committee. Client may not have thought through the repercussions of having his/her mental health history exposed in public.
  • When therapists step into the courtroom, they are walking a fine ethical line, as “There is an inherent conflict between serving in a forensic capacity and serving in a therapist capacity.
  • In a forensic role, she said, psychologists are independent expert witnesses providing an analysis of the situation.
  • However, clinicians who are in the courtroom as fact witnesses–must limit their testimony to facts such as diagnosis, course of treatment and progress because they are unable to provide an impartial forensic opinion.

If one testifies and is a therapist of the client they are testifying for, it could be both a conflict of interest and beyond their bounds of competence–and contrary to several provisions of APA’s Ethics Code. Years of experience and additional trainings after one receives their degree in the areas of competence and expertise is required. Courts look for experts with extra training in the area of competence and testimony.

Recommendations 

With those considerations in mind, a mental health professional must notify the attorney that she/he can only provide limited, fact-based testimony and that what they may say about client’s mental health history may in fact damage the case–as well as the therapeutic relationship if client is unhappy with professional’s efforts.

If courts want a forensic psychologist to testify then an attorney and your client may seek a forensic evaluator instead and as a mental health professional, you can work with the forensic evaluator/psychologist by providing materials that would be helpful to the case in a collaborative effort.

If one is forced to testify by subpoena, one must remember their ethical obligation to avoid a forensic role for which they are not appropriately trained or prepared for.

When I testify, I use nationally accepted assessment instruments with my clients, as part of my testimony, use my over 37 years of experience, my extra certifications and extra training which I keep current and add to each year.  Professional conduct and testimony requires preparation, ethical conduct, not “acting” like you know more than you do and testifying outside your scope of expertise and knowledge, and if asked or subpoenaed to do so – let the courts know you are not qualified if you are not