hawaii psychological association convention 2009 november 9, 2009 swimming with sharks: practice,...

Hawaii Psychological Association Convention 2009Hawaii Psychological Association Convention 2009November 9, 2009November 9, 2009

Swimming with Sharks: Practice, Swimming with Sharks: Practice, Ethics, and Risk Management for Ethics, and Risk Management for

Court-Involved TherapistsCourt-Involved Therapists

Swimming with Sharks: Practice, Ethics, and Risk Management Swimming with Sharks: Practice, Ethics, and Risk Management for Court-Involved Therapistsfor Court-Involved Therapists

Rosemary Adam-Terem, PhD, President, Hawaii Rosemary Adam-Terem, PhD, President, Hawaii Psychological Association Psychological Association

& &

Marvin W. Acklin, PhD, ABAP, ABPP, Independent Marvin W. Acklin, PhD, ABAP, ABPP, Independent Practice, Clinical & Forensic Psychology, & Director Practice, Clinical & Forensic Psychology, & Director

Pacific Forensic Associates, Inc.Pacific Forensic Associates, Inc.

Swimming with Sharks: Practice, Ethics, and Risk Swimming with Sharks: Practice, Ethics, and Risk

Management for Court-Involved TherapistsManagement for Court-Involved Therapists

Therapists may become court-involved when Therapists may become court-involved when their clients they are seeing (1) separate their clients they are seeing (1) separate and file for divorce or (2) they may be and file for divorce or (2) they may be involved in psycho-legal interventions involved in psycho-legal interventions established by the Court, Custody established by the Court, Custody Evaluators, or Guardians Ad LitemEvaluators, or Guardians Ad Litem

Swimming with Sharks: Practice, Ethics, and Risk Swimming with Sharks: Practice, Ethics, and Risk Management for Court-Involved TherapistsManagement for Court-Involved Therapists

Court-Involved TherapistsCourt-Involved Therapists

Attorneys, mental health professionals, and Attorneys, mental health professionals, and ultimately judicial officers may need to ultimately judicial officers may need to determine: (1) whether a child's therapist has determine: (1) whether a child's therapist has sufficient expertise regarding divorce-related sufficient expertise regarding divorce-related issues to effectively assist the child; (2) whether issues to effectively assist the child; (2) whether the therapist has retained sufficient professional the therapist has retained sufficient professional objectivity to avoid biasing treatment; and (3) the objectivity to avoid biasing treatment; and (3) the quality and credibility of the treating therapist’s quality and credibility of the treating therapist’s data, reports, and/or opinions.data, reports, and/or opinions.

Swimming with Sharks: Practice, Ethics, and Swimming with Sharks: Practice, Ethics, and Risk Management for Court-Involved Risk Management for Court-Involved

TherapistsTherapists

Things court-involved therapists need to Things court-involved therapists need to know: (1) children’s adjustment to divorce, know: (1) children’s adjustment to divorce, (2) impact of adult conflict on children, (3) (2) impact of adult conflict on children, (3) children’s suggestibility, (4) domestic children’s suggestibility, (4) domestic violence, (5) child abuse, (6) alienation violence, (5) child abuse, (6) alienation dynamics and (7) children’s coping skills and dynamics and (7) children’s coping skills and development. Some basic knowledge of development. Some basic knowledge of court processes, mandated reporting, and court processes, mandated reporting, and testimony is also helpful.testimony is also helpful.


Many of the assumptions which underlie Many of the assumptions which underlie traditional psychotherapy cannot be traditional psychotherapy cannot be extended to treatment in a forensic case, extended to treatment in a forensic case, including confidentiality and information including confidentiality and information presented to the therapist. Treatment presented to the therapist. Treatment information may not be confidential information may not be confidential especially if reports are made to lawyers especially if reports are made to lawyers or CEs. The challenge for the forensically-or CEs. The challenge for the forensically-informed therapist is to be aware that the informed therapist is to be aware that the information being brought into the information being brought into the treatment session could be intentionally or treatment session could be intentionally or unintentionally distorted.unintentionally distorted.

Swimming with Sharks: Practice, Ethics, and Swimming with Sharks: Practice, Ethics, and Risk Management for Court-Involved Risk Management for Court-Involved

TherapistsTherapists

Therapists working with court-involved Therapists working with court-involved children in families or more likely to be children in families or more likely to be asked to provide treatment information to asked to provide treatment information to a third party that are therapists providing a third party that are therapists providing traditional community treatment.traditional community treatment.


A child's perceptions and statements A child's perceptions and statements may be altered by external influences may be altered by external influences such as suggestive questioning. It is such as suggestive questioning. It is essential that the therapist critically essential that the therapist critically evaluate the nature, source, and evaluate the nature, source, and representativeness of the information representativeness of the information being brought into the sessions.being brought into the sessions.


Forensic ThinkingForensic Thinking: requires knowledge : requires knowledge of relevant research regarding children's of relevant research regarding children's adjustment to divorce, domestic adjustment to divorce, domestic violence, alienation dynamics, child violence, alienation dynamics, child abuse, children’s suggestibility, the abuse, children’s suggestibility, the impact of parental conflict on children, impact of parental conflict on children, child development and coping skills child development and coping skills children need to adjust successfully as children need to adjust successfully as they mature.they mature.


The therapist who does not engage The therapist who does not engage in forensic thinking, that is, in forensic thinking, that is, understanding the broad range of understanding the broad range of contextual possibilities concerning a contextual possibilities concerning a child's report, increases the risk of child's report, increases the risk of introducing a systematic bias into introducing a systematic bias into the child's treatment.the child's treatment.


Objective and balanced treatment Objective and balanced treatment involves two elements (1) the involves two elements (1) the therapist's ability to focus on and therapist's ability to focus on and understand the family situation in understand the family situation in which the child lives and (2) the which the child lives and (2) the therapist's ability to identify, formula, therapist's ability to identify, formula, and actively explore rival, different and and actively explore rival, different and plausible interpretations of the child's plausible interpretations of the child's behavior, statements, problems, and behavior, statements, problems, and needs.needs.


If the therapist becomes overly If the therapist becomes overly aligned with one litigating parent and aligned with one litigating parent and only considers that parent’s only considers that parent’s viewpoint, the result is biased viewpoint, the result is biased treatment and often an escalation of treatment and often an escalation of the parental conflict.the parental conflict.


Biased therapists may escalate Biased therapists may escalate conflict by providing treatment conflict by providing treatment information to the court at the information to the court at the request of one parent without request of one parent without obtaining a balanced understanding obtaining a balanced understanding of both sides of an issue. This is of both sides of an issue. This is unethical and poses a risk of license unethical and poses a risk of license complaint or malpractice.complaint or malpractice.


Offering opinions to the court based Offering opinions to the court based on an inadequate foundation of on an inadequate foundation of information, especially when the information, especially when the testimony crosses the line from testimony crosses the line from treatment opinions into forensic treatment opinions into forensic judgments, is a violation of the judgments, is a violation of the professional standards governing professional standards governing most therapists.most therapists.


Too often, therapists stray beyond Too often, therapists stray beyond the boundaries of their roles as the boundaries of their roles as treating therapists and into the arena treating therapists and into the arena of psycho-legal opinions and of psycho-legal opinions and recommendations.recommendations.


Be especially careful of parents in Be especially careful of parents in separation/divorce situations who initiate separation/divorce situations who initiate children's treatment unilaterally. Be children's treatment unilaterally. Be careful to check who has legal custody. It careful to check who has legal custody. It is bad practice to see only one parent and is bad practice to see only one parent and worse to make comments, especially to worse to make comments, especially to lawyers and judges, about parents who lawyers and judges, about parents who you have not seen. you have not seen.


Two types of experts: (1) treating expert Two types of experts: (1) treating expert and (2) forensic expert. The forensic and (2) forensic expert. The forensic expert is authorized to offer opinions on expert is authorized to offer opinions on psycho-legal issues such as parental psycho-legal issues such as parental capacity, or the best custody capacity, or the best custody arrangement for the child. This is outside arrangement for the child. This is outside the ordinary scope of the treating the ordinary scope of the treating therapist, who can report on the child's therapist, who can report on the child's diagnosis, treatment plan, progress in diagnosis, treatment plan, progress in treatment, and prognosis.treatment, and prognosis.


Treating therapists must understand Treating therapists must understand that the information they provide to that the information they provide to the court or a court-officer may used the court or a court-officer may used in the legal proceedings and may in the legal proceedings and may have significant consequences.have significant consequences.


When should a child's therapist be removed? If When should a child's therapist be removed? If the child's therapist is unable to provide the child's therapist is unable to provide balanced, objective, and effective therapy, the balanced, objective, and effective therapy, the therapist should be removed. This includes therapist should be removed. This includes situations where the therapist has seen a child situations where the therapist has seen a child with only one parent, has served previously or with only one parent, has served previously or concurrently as one parent’s therapist, where the concurrently as one parent’s therapist, where the therapist insists on treating the child based on therapist insists on treating the child based on their personal beliefs concerning facts in the their personal beliefs concerning facts in the child's life, or when the therapist does not child's life, or when the therapist does not adequately recognize the boundaries of expertise adequately recognize the boundaries of expertise between treatment and forensic roles.between treatment and forensic roles.


The AFCC has convened a Task Force The AFCC has convened a Task Force on the Role of Court-Involved on the Role of Court-Involved Therapists to address areas of Therapists to address areas of competence, critical thinking, competence, critical thinking, confidentiality, psycho-legal treatment confidentiality, psycho-legal treatment interventions, information to be interventions, information to be provided to the Court, and provided to the Court, and collaboration with other professionals.collaboration with other professionals.


How Mental Health Professionals Promote DisputesHow Mental Health Professionals Promote Disputes

“ “What is most disturbing are the number of instances in What is most disturbing are the number of instances in which a mental health professional is willing to offer an which a mental health professional is willing to offer an opinion or even testify in court as to the disposition of opinion or even testify in court as to the disposition of issues under dispute (such as custody or visitation) without issues under dispute (such as custody or visitation) without having seen the other spouse or sometimes even the child. having seen the other spouse or sometimes even the child. Or a therapist attempts to see the whole family but only Or a therapist attempts to see the whole family but only after extensive individual counseling with one member, after extensive individual counseling with one member, making his or her neutrality questionable. Furthermore, the making his or her neutrality questionable. Furthermore, the court in some cases is willing to give credence to such court in some cases is willing to give credence to such testimony. Other counselors continue to see one party after testimony. Other counselors continue to see one party after the family counseling breaks down and participate in the the family counseling breaks down and participate in the polarization of positions and the escalation of the dispute.” polarization of positions and the escalation of the dispute.”


“ “Some therapists, who saw only one of Some therapists, who saw only one of the parents, encouraged the parents, encouraged uncompromising stands, reified distorted uncompromising stands, reified distorted views or the other parent, and wrote views or the other parent, and wrote recommendations and even testified on recommendations and even testified on behalf of their client with little or no behalf of their client with little or no understanding of the child’s needs, the understanding of the child’s needs, the other parent’s position, or the couple other parent’s position, or the couple and family dynamics.” and family dynamics.”


Practice PointersPractice Pointers Doing good while avoiding risk: Although Doing good while avoiding risk: Although

Family Court work can be tempting for a Family Court work can be tempting for a variety of reasons, and the court and lawyers variety of reasons, and the court and lawyers seem highly willing to attract new providers, I seem highly willing to attract new providers, I have seen a number of situations where have seen a number of situations where psychologists exposed themselves to psychologists exposed themselves to potentially license damaging risk. The potentially license damaging risk. The examples I provide below are from real life examples I provide below are from real life instances. Some of these cases were brought instances. Some of these cases were brought to me as an expert consultant.to me as an expert consultant.


1. Do not accept any case from the court where 1. Do not accept any case from the court where you are expected to provide information that could you are expected to provide information that could potentially be used by one parent against another, potentially be used by one parent against another, for example, a court appointment to determine a for example, a court appointment to determine a child's readiness for visitation, whether a child has child's readiness for visitation, whether a child has been abused, or where a child should live, been abused, or where a child should live, especially if you are using medical insurance. If a especially if you are using medical insurance. If a parent does not agree with you or if there is an parent does not agree with you or if there is an adverse effect, they can file a complaint with the adverse effect, they can file a complaint with the third party payor for violation of your insurance third party payor for violation of your insurance contract. Using health insurance in a contested contract. Using health insurance in a contested legal matter where the covered parties are in legal matter where the covered parties are in conflict is extremely risky.conflict is extremely risky.


2. If you accept an evaluation case, do 2. If you accept an evaluation case, do not do so without appointment to the court not do so without appointment to the court as an Evaluator or GAL, because otherwise as an Evaluator or GAL, because otherwise you do not have quasi-judicial immunity you do not have quasi-judicial immunity (immunity from law suit). In any case, you (immunity from law suit). In any case, you are not protected from license complaints. are not protected from license complaints. Make sure that you have a licensing board Make sure that you have a licensing board complaints rider on your malpractice complaints rider on your malpractice insurance.insurance.


3. If you accept a treatment case under 3. If you accept a treatment case under court order, for example of a child, do not court order, for example of a child, do not do so unless there is an intermediary do so unless there is an intermediary between you and the court. Be very careful between you and the court. Be very careful to separate the treatment and evaluator to separate the treatment and evaluator roles. Sometimes the court dumps a case on roles. Sometimes the court dumps a case on a provider to clean up a mess outside of a provider to clean up a mess outside of court. Insist there be a court officer to serve court. Insist there be a court officer to serve as intermediary to the Court.as intermediary to the Court.


4. Avoid accepting any 4. Avoid accepting any appointments where the order says appointments where the order says that you have the final say, for that you have the final say, for example, in whether a child should example, in whether a child should visit.visit.


5. You should be aware that making decisions 5. You should be aware that making decisions that adversely affects a party's interests in a that adversely affects a party's interests in a legal matter without actually seeing them is legal matter without actually seeing them is extremely risky, unless you are covered, for extremely risky, unless you are covered, for example, by a mandated reporting statute. I example, by a mandated reporting statute. I continue to see reports regularly where a continue to see reports regularly where a therapist seeing a child makes a report about therapist seeing a child makes a report about visitation that crosses the line, expressing visitation that crosses the line, expressing opinions about a parent based on the child's opinions about a parent based on the child's report, without having done a proper report, without having done a proper evaluation, or seen the other parent.evaluation, or seen the other parent.


6. In a contested divorce case, 6. In a contested divorce case, always check to determine to always check to determine to determine if there are orders for determine if there are orders for concerning sole or joint legal concerning sole or joint legal custody.custody.


7. Be extremely wary in situations 7. Be extremely wary in situations where you are asked to see a child where you are asked to see a child without notification of the other parent, without notification of the other parent, including situations where there is joint including situations where there is joint legal custody, or if the other parent's legal custody, or if the other parent's health insurance is being used. In health insurance is being used. In general seeing children in individual general seeing children in individual therapy in contested divorce case, therapy in contested divorce case, without access to both parents, is without access to both parents, is potentially harmful.potentially harmful.


8. Be fully aware of the newly 8. Be fully aware of the newly revised APA Guidelines for revised APA Guidelines for Psychologists in Custody Psychologists in Custody Proceedings. If you are interested in Proceedings. If you are interested in deeper involvement consult the deeper involvement consult the Specialty Guidelines for Forensic Specialty Guidelines for Forensic Psychologists.Psychologists.


9. If the work you are doing can 9. If the work you are doing can conceivably be foreseen as conceivably be foreseen as "forensic," it is forensic-- be aware "forensic," it is forensic-- be aware newly revised of the Specialty newly revised of the Specialty Guidelines for Forensic Psychologists. Guidelines for Forensic Psychologists. They provide guidelines for practice They provide guidelines for practice that will keep you out of trouble.that will keep you out of trouble.


10. Be aware that any involvement in a Family 10. Be aware that any involvement in a Family Court case may ultimately expose you to Court case may ultimately expose you to subpoena for records and appearance (cross subpoena for records and appearance (cross examination). A recent Intermediate Court of examination). A recent Intermediate Court of Appeals opinion (Doe vs. Doe) states clearly that Appeals opinion (Doe vs. Doe) states clearly that any information a Custody Evaluator or GAL uses any information a Custody Evaluator or GAL uses from a therapist is discoverable (that is, not from a therapist is discoverable (that is, not confidential). The implications for this finding in confidential). The implications for this finding in relation to confidentiality issues needs to be relation to confidentiality issues needs to be debated in the HPA community. Make sure that debated in the HPA community. Make sure that your records will pass the scrutiny of an your records will pass the scrutiny of an adversarial attorney or expert.adversarial attorney or expert.


11. Be aware that to practice ethically 11. Be aware that to practice ethically you have to practice competently; you have to practice competently; therefore make sure that your practice is therefore make sure that your practice is based on documented education, training, based on documented education, training, and supervision.and supervision.


The court and attorneys do not care The court and attorneys do not care much about whether you know what much about whether you know what you are doing. It is your responsibility you are doing. It is your responsibility to protect yourself.to protect yourself.


ReferencesReferences• Impasses of divorce: The dynamics and resolution Impasses of divorce: The dynamics and resolution

of family conflictof family conflict. (Johnston & Campbell, 1988). (Johnston & Campbell, 1988)• The Treating Expert: A Hybrid Role with Firm The Treating Expert: A Hybrid Role with Firm

Boundaries (Greenberg & Gould, 2001)Boundaries (Greenberg & Gould, 2001)• Is the Child's Therapist Part of the Problem? Is the Child's Therapist Part of the Problem?

(Greenberg et al., 2003)(Greenberg et al., 2003)• Irreconcilable Conflict between Therapeutic and Irreconcilable Conflict between Therapeutic and

Forensic Roles (Greenberg & Shuman, 1997)Forensic Roles (Greenberg & Shuman, 1997)• When Worlds Collide: Therapeutic and Forensic When Worlds Collide: Therapeutic and Forensic

Roles (Greenberg & Shuman, 2007)Roles (Greenberg & Shuman, 2007)

hawaii psychological association convention 2009 november 9, 2009 swimming with sharks: practice,...

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