Dr. Kiley is helping Helen Campbell cope with the aftermath of a highly contentious divorce. Helen tells Dr. Kiley she is suing the attorney who represented her during her divorce because she feels he did a poor job. Helen adds that her new attorney plans to ask Dr. Kiley to testify about how the divorce harmed her. Unbeknownst to Helen, her former attorney, whom she now plans to sue, is also a psychotherapy client of Dr. Kiley's.
What is Dr. Kiley to do?
A first step is to consult with an ethics expert or a trusted colleague, said ethics and legal experts at APA's 2003 Annual Convention in Toronto. Members of APA's Ethics Committee and Committee on Legal Issues (COLI) discussed the vignette above as well as 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 looking for you to be a fact witness, an advocate or a rescuer? Does she 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 Dr. Kiley may need to explain to Helen and her 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. Helen may not have thought through the repercussions of having her mental health history exposed in public.
When therapists step into the courtroom, they are walking a fine ethical line, said Nordal.
"There is an inherent conflict between serving in a forensic capacity and serving in a therapist capacity," she explained. 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--as in the Dr. Kiley case--must limit their testimony to facts such as diagnosis, course of treatment and progress because they are unable to provide an impartial forensic opinion.
Should Dr. Kiley decide to testify or be subpoenaed, she would be unable to testify about the harm Helen suffered because of her divorce, explained Ethics Committee member Michael Gottlieb, PhD. Doing so would be both a conflict of interest and beyond her bounds of competence--and contrary to several provisions of APA's Ethics Code, he said.
Recommendations for Dr. Kiley
With those considerations in mind, the panelists agreed that Dr. Kiley should explain to Helen and her new attorney that she can only provide limited, fact-based testimony and that what she may say about Helen's mental health history may in fact damage Helen's case--as well as the therapeutic relationship if Helen is unhappy with Dr. Kiley's efforts.
Helen and her attorney may then change their minds about having Dr. Kiley testify. Often, the speakers said, attorneys approach therapists because they are seeking "cheap" expert testimony; when they understand the cons, they may seek a forensic evaluator instead.
If Dr. Kiley is forced to testify by subpoena, she must remember her ethical obligation to avoid a forensic role for which she is not appropriately prepared, such as assessing the divorce's impact on Helen. Preferably, said Campbell, she'll remind the judge and attorneys of her duty before she takes the stand.
What could Dr. Kiley have done to avoid her dilemma in the first place? She should have considered the informed consent process more closely by anticipating what issues might arise, said Gottlieb.
"Among other things, Dr. Kiley might have told her she would not be able to protect the confidentiality of Ms. Campbell's communications if she were called as a witness during her contentious divorce, especially if custody of her children were at issue," said Gottlieb. "She might also have thought to discuss with her how, if forced to testify, [that] could harm their professional relationship."The vignette of Dr. Kiley is adapted from Ethics & Behavior (Vol. 7, No. 4).