Michael Griffin, JD, LCSW
Staff Attorney 
The Therapist
July/August 2015

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Therapists who treat clients involved with the legal system must be aware of legal and ethical problems that entangle unwary practitioners. A variety of hypothetical scenarios are presented below, which depict examples of circumstances that commonly arise.¹ Although numerous issues may be evident in the scenarios provided, for purposes of this writing, the discussion emphasizes the importance of the following factors: the therapist’s role, client expectations and issues of consent; conflicts of interest; scope of competency; and, questions to consider when providing a professional opinion.

The Therapist’s Role, Client Expectations, and Issues of Consent 
A therapist can avoid many potential problems by clarifying and defining the nature of his or her role as therapist. Some clients may be uncertain about what to expect from psychotherapy or have an unrealistic impression of the therapist’s role. Ethically, the therapist is expected to work jointly with his or her client in the development of a treatment plan.² By discussing what the therapist can, or in some instances, cannot provide to the client, the client is offered a realistic portrayal of what he or she may expect from therapy, and it may assist him or her in deciding whether to work with the particular therapist.³

Common Scenarios:

1. At the conclusion of her third session, a client informs her therapist that her attorney would like to speak with the therapist. When the therapist asks the client what the request concerns, she says that she isn’t sure, and tells the therapist that the therapist would need to call her attorney to find out.

Discussion: In this situation, the client appears to be directing the therapist, and her behavior suggests that she believes her therapist is obligated to contact the attorney. In fact, the therapist would have no such obligation and would be wise to decline the client’s request, in order to clarify her role and to better understand the client’s expectations. If the therapist elected to contact the attorney prior to discussing the specifics and implications with the client, there is a risk that the client may interpret the therapist’s action as an implied agreement to become involved in the legal matter. If the therapist and client ultimately determined that the client’s expectations were inconsistent with the therapist’s understanding of his or her role, there may be a need for a referral to a professional who is be better suited to the client’s needs.

2. The therapist receives a call requesting services from an individual who informs the therapist that he is “court-ordered” to attend therapy.

Discussion: In this situation, until the therapist determines what the court order states, it is difficult for him or her to know whether he or she is the appropriate source of help to the caller. It would be helpful to obtain clarification as soon as possible from the potential client regarding the order, in order to determine whether there is a need for special expertise on the part of the therapist (e.g., problems with anger, spousal abuse, substance abuse, etc.). If the client failed to provide the requested information after a reasonable period of time, the therapist may insist on seeing a copy of the order, prior to continuing to work with the client.

3. The therapist receives a phone call requesting services from the father of two children aged 12 and 10. He states that he is seeking support for the children, and is concerned about how they are adjusting to the separation and pending divorce of their parents.

Discussion: Until the therapist has an opportunity to speak further with the caller, it is difficult to know whether he is seeking therapeutic support for his children, or if he also intends to utilize the therapist to provide input to the court. While it is possible that the father does not intend to involve the therapist in the divorce action, on many occasions the parent in this situation would expect the therapist to advocate for the “best interest” of his children. Unless the therapist directly addresses such questions, the dad may not raise the issues with the therapist until many sessions have taken place. At that point, if the therapist informs the dad that he does not intend to interject his views into the legal matter, there may be a breakdown in their relationship, and thus an abrupt end to the therapy of the children. It is always preferable to address such issues at the outset of treatment, in order to avoid potential misunderstandings regarding the therapist’s role.

It is advisable for a therapist to be cautious about engaging in the treatment of a minor, without the involvement of both parents. Initially, the therapist must ensure that he or she has obtained the necessary consent to provide services.^{4 5 6} If the minor’s parents are married, either parent may provide consent to the minor’s treatment. If the parents are divorced, where there is joint legal custody, either parent may provide consent to the treatment, so long as there is no court order or provision in the divorce decree that expresses a contrary requirement. For example, the divorce decree may state that the parents are expected to jointly select a health care professional. In that instance, a parent could not unilaterally initiate treatment for the minor, and if he or she failed to communicate with the other parent regarding the proposed treatment, the therapist could be accused of treating the minor without legal consent to do so. Consequently, if a therapist were to consider treating a minor without the consent of both legal custodians, it is advisable for him or her to ask the requesting parent to produce a copy of the divorce decree, to confirm that the parent does in fact have the authority to unilaterally provide consent for the minor’s therapy.⁷

Conflicts Of Interest 
There is a potential conflict of interest when a treating therapist provides an evaluation of his or her client for use in a legal proceeding. By offering his or her opinion or recommendation regarding a client for use in a legal matter, it may expose the therapist to an allegation of bias because of his or her concurrent psychotherapy role. Should the opinion concern a legal issue (such as custody), a parent may further claim that the therapist did not meet the legal criteria for making a custody recommendation.^{8 9 10}

Common Scenarios:

1. A therapist has been working with a 10-year-old boy for the past year. The child’s mother informs him that the parties have agreed that the therapist is the perfect person to supervise the boy’s visits with his father.

Discussion: When a therapist takes on an additional role in a case, there are legal and ethical implications. While the parties in this case have considerable confidence in the child’s therapist, there is an apparent conflict of interest for the therapist if he or she elects to supervise the child’s visits with the father. Among other issues, if the therapist is expected to provide feedback to the court concerning the need for ongoing supervision of the dad’s contact with his son, the therapist’s relationships with these clients would arguably be affected. If the therapist provides such a report to the court, it may be alleged that his or her objectivity in writing the report was impaired by virtue of his or her pre-existing treatment role.

2. After several months of conjoint therapy, a couple elected to divorce. The husband calls the therapist to request individual therapy for himself.

Discussion: At the conclusion of marital therapy, it is common for a therapist to be asked to provide individual therapy to one of the members of the couple. Doing so is not out of the question, but it is a decision that should be carefully considered by the therapist.¹¹ In this scenario, the couple is proceeding to engage in litigation against one another (i.e., a divorce). One issue to consider is that it may be difficult, if not impossible, to resume marital counseling with the couple at any time in the future if they elected to forego their divorce. Regardless of whether both individuals thought it was appropriate for the therapist to provide the individual therapy, emotions have a way of changing over time, and the therapist may find him or herself in the middle of their dispute. It is hardly unusual for one or both members of a couple to ask their former therapist to take a position in favor of one partner or the other. Another problem is that the non-participating partner may question the value of the marital work, if he or she begins to suspect that the therapist was more sympathetic to the plight of his or her former partner.

3. A therapist is employed in a correctional setting and has been providing therapy to an inmate. To the therapist’s surprise, he is served with a subpoena which states that he is ordered to appear at a hearing in criminal court. The attorney who issued the subpoena contacts the therapist and informs him that she intends to ask for his opinion as to whether the client is competent to stand trial.

Discussion: A therapist may be compelled by a subpoena to appear as a witness in a matter, but that does not mean that he or she would be permitted to offer an opinion, if doing so would constitute unprofessional or unethical conduct. Furthermore, unless the client had waived the psychotherapist-patient privilege, the therapist would be expected to assert the privilege on behalf of his or her client prior to answering questions about the client.¹² In this case, the question as to whether the client was legally competent to stand trial is likely to be outside of the therapist’s scope of competency, and providing such an opinion would be in direct conflict with his or her role as psychotherapist to the individual. ¹³

Scope Of Competency 
In all cases, a therapist is legally and ethically required to possess a sufficient degree of education, training, and experience in order to competently treat his or her client.^{14 15}

Common Scenarios:

1. The father of a seven-year-old girl brings his daughter to see a therapist because he suspects that her stepfather may have sexually molested her.

Discussion: The therapist who receives such a request has a number of questions to consider, which include, but are not limited to, the following: Does this therapist have the education, training and experience that would qualify him or her to evaluate, and provide therapy to, a victim of sexual abuse? What is the parent hoping the therapist will do in this situation? Has a suspected child abuse report been filed in this matter? Has there been an investigation of the suspected sexual assault? If so, what was the outcome? What is the basis of the father’s suspicion? Is there a history of conflict and/or legal disputes between the parents of this child? Unless the therapist is in possession of such information, not only would it be very difficult for him or her to provide appropriate treatment, the likelihood of encountering legal and ethical problems would be substantial.

2. An attorney calls the therapist and says that he is in need of a therapist to provide treatment to a teenage girl who was involved in an auto accident last year. The attorney states that the therapist would be paid his full fee from the proceeds of the expected recovery in the lawsuit.

Discussion: There is little doubt that the lawsuit in this matter includes allegations that the teenage girl has suffered emotional harm as a result of the auto accident. The therapist who accepts this case must understand that his or her competency to evaluate and treat this client may be subjected to a greater degree of scrutiny than is evident in most cases.

In every case, the therapist is required to maintain a treatment record that reveals his or her sound clinical judgment, the standards of the profession, and the nature of the services being rendered.^{16 17} In this scenario, it is likely that the treatment record for this girl will be sought.

If the therapist is called as a witness to offer his or her opinion about the girl at a deposition or trial, he or she is expected to be impartial, rather than to advocate on behalf of the client.¹⁸ In that circumstance, although the therapist would be free to offer his or her opinion about the client’s therapy, and her symptoms, this is not to suggest that it would be desirable for the therapist to provide an “evaluation” of the client, or to offer an opinion as to the ultimate legal issues in the matter. ¹⁹

3. A therapist is currently treating a 17-year-old male who was suspended by his high school after getting into a fight with another student. The client’s parents tell the therapist that their son’s school would like the therapist to write a letter stating that he “does not pose any risk to any other student at the school.”

Discussion: The school official who posed such a question had good intent. He or she is legitimately concerned about the well being of all of the students at the school. It is probable, however, that the person who asked the question was also hoping to limit his or her potential liability (or that of the school), by obtaining a statement from a professional that could be relied upon as a representation that it was safe to allow the client to return to the school setting. The problem here is that it would be very difficult for a therapist to say, with a reasonable degree of certainty, that his or her client did not pose any risk to any other student at the school. Not only would such a statement imply that the therapist was certain about what the client may or may not do at the present time, it implies that such an opinion would be applicable to the client’s future conduct.

As a general rule, there is no obligation on the part of a therapist to author a written opinion about his or her client’s conduct. The question here is whether the therapist agreed at the outset of this case that he or she would provide his or her opinion about the client. If so, the content of any such opinion, and to whom it would be offered, would depend on several factors, and would require consent to release information about the client. There is no single formula for a report in this situation, Questions To Consider When Providing A Professional

Opinion 
A therapist must exercise reasonable care when offering his or her professional opinion regarding a client. (Extra caution is not unreasonable when the client is involved in litigation).²⁰

Therapists may wish to consider the following questions before offering a professional opinion regarding a client:

1. What is the specific issue that the therapist is being asked to address? 
2. Does the therapist possess the information being requested? 
3. Is it within the therapist’s scope of competence to express an opinion about the matter in question? 
4. Is the therapist being asked to address an issue that is not directly related to his or her role as therapist? 
5. Is the therapist being asked to address an issue that the therapist has previously declined to address? 
6. Does the therapist feel pressured or compelled to honor the request? If so, why? 
7. What does the therapist think will happen if he or she provides an opinion?

The fact that a therapist is likely to encounter difficult scenarios from time to time does not mean that disciplinary actions, ethics complaints, and malpractice lawsuits are inevitable. Every practitioner can protect him or herself by maintaining his or her awareness of, and familiarity with, the laws and ethical standards that apply to clinical practice.

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Michael Griffin, JD, LCSW, is a staff attorney at CAMFT. Michael is available to answer member calls regarding legal, ethical, and licensure issues.

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Endnotes

¹ While this article includes suggested courses of action for therapists to consider in response to problem scenarios, the recommendations that are offered are not a substitute for consultation with a qualified professional and are not intended to represent an exhaustive list of all possible actions. 
The appropriate course of action in a given case depends on all of the relevant facts and circumstances. 
² §1.4.1 Code of Ethics, Patient Choices: Marriage and family therapists respect patient choices and work jointly with patients to develop and review treatment plans that are consistent with patients’ goals and that offer a reasonable likelihood of patient benefit. 
³ §1.5 Code of Ethics, Therapist Disclosures: Marriage and family therapists provide adequate information to patients in clear and understandable language so that patients can make meaningful decisions about their therapy. Marriage and family therapists respect the right of patients to choose whether to enter into or remain in a therapeutic relationship 
⁴ §3006, Family Code, “Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. 
⁵ §3083, Family Code, In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the court expressly authorizes the action. 
⁶ §3003, Family Code, “Joint legal custody” means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. 
⁷ If the parents are separated and there is a written separation agreement, the therapist should inquire whether the agreement contains any provision that limits the authority of either parent to consent to the child’s treatment. In circumstances where the minor’s parents have never been married, the biological mother or the biological father can provide consent to the minor’s treatment. 
⁸ §8.3,Code of Ethics, Conflicting Roles: Whenever possible, marriage and family therapists avoid performing conflicting roles in legal proceedings and disclose any potential conflicts. At the outset of the service to be provided and as changes occur, marriage and family therapists clarify role expectations and the extent of confidentiality to prospective clients, to the courts, or to others as appropriate. 
⁹ §8.4, Code of Ethics, Dual Roles: Marriage and family therapists avoid providing both treatment and supplying evaluations for the same clients or treatment units in legal proceedings such as child custody, visitation, dependency, or guardianship proceedings, unless otherwise required by law or initially appointed pursuant to court order. 
¹⁰ §8.9, Code of Ethics, Consequences Of Changes In Therapist Roles: Marriage and family therapists inform the patient or the treatment unit of any potential consequences of therapist-client role changes. Such role changes include, but are not limited to, child’s therapist, family’s therapist, couple’s therapist, individual’s therapist, mediator, evaluator, and special master. 
¹¹ §1.9, Code of Ethics, Family Unit/Conflicts: When treating a family unit(s), marriage and family therapists carefully consider the potential conflict that may arise between the family unit(s) and each individual. Marriage and family therapists clarify, at the commencement of treatment, which person or persons are clients and the nature of the relationship(s) the therapist will have with each person involved in the treatment. 
¹² §1015, Calif. Evid. Code, “The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1014.” 
¹³ §8.3, Code of Ethics: Conflicting Roles, Supra. 
¹⁴ §1845, Code of Regulations, it is unprofessional conduct for a therapist to hold him or herself out as able to perform professional services that are beyond his or her scope of competence. 
¹⁵ §3.9, Code of Ethics, Scope of Competence: Marriage and Family Therapists take care to provide proper diagnoses of mental and emotional disorders or conditions and do not assess, test, diagnose, treat, or advise on problems beyond the level of their competence as determined by their education, training, and experience. While developing new areas of practice, marriage and family therapists take steps to ensure the competence of their work through education, training, consultation, and/or supervision. 
¹⁶ §4982(v), Business and Prof. Code, “The failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered is unprofessional conduct. 
¹⁷ §3.3, Code of Ethics, Patient Records: Marriage and family therapists create and maintain patient records, whether written, taped, computerized, or stored in any other medium, consistent with sound clinical practice. 
¹⁸§8.5, Code of Ethics, Impartiality: Marriage and family therapists, regardless of their role in a legal proceeding, remain impartial and do not compromise their professional judgment or integrity. 
¹⁹ §8.4, Code of Ethics, Dual Roles, Supra. 
²⁰Griffin, Michael, JD, LCSW, “Sometimes It’s What You Don’t Say,” The Therapist, March/April, 2013