October 1997

Therapy vs. Forensics: 

Irreconcilable Conflict Between Therapeutic and Forensic Roles of Mental Health Professionals

by Stuart A. Greenberg & Daniel W. Shuman

Tightened insurance reimbursement rules, a growing market for forensic mental health professionals, and zealous patient advocacy by therapists have combined to induce many therapists, including those who once avoided the judicial system, to appear as forensic expert witnesses on behalf of their patients. Although there are explicit ethical precepts about psychologists and psychiatrists engaging in these conflicting dual roles, they have not eliminated this conduct. Psychologists and psychiatrists have not understood either why these ethical precepts exist or how they affect the behavior of even the most competent therapists. The specific problem addressed here is that of the psychologist or psychiatrist who provides clinical assessment or therapy to a patient-litigant and who concurrently or subsequently attempts to serve as a forensic expert for that patient in civil litigation.

Psychologists may testify as fact witnesses as well as either of two types of expert witnesses: treating experts and forensic experts. No special expertise beyond the ability to tell the court what is known from firsthand observation is required to be a fact witness. What distinguishes expert witnesses from fact witnesses is that expert witnesses have relevant specialized knowledge beyond that of the average person that may qualify them to provide opinions, as well as facts, to aid the court in reaching a just conclusion. Psychologists and psychiatrists who provide patient care usually qualify to testify as treating experts, in that they have the specialized knowledge, not possessed by most individuals, to offer a clinical diagnosis and prognosis. A role conflict arises, however, when a treating therapist also attempts to testify as a forensic expert addressing the psycholegal issues in the case (e.g., testamentary capacity, proximate cause of injury, parental capacity).

In the preceding description, the therapeutic relationship occurs first and the forensic role second, but there are parallel concerns with the reverse sequence (i.e., the subsequent provision of therapy by a psychologist or psychiatrist who previously provided a forensic assessment of that litigant). There are also similar concerns about the treating therapist’s role in criminal litigation. This article, however, will address only civil litigation.

Role Conflict

In most jurisdictions, a properly qualified therapist testifies as a fact witness for some purposes (to information learned firsthand in therapy), and as an expert witness for some purposes (to opinions about mental disorder that a layperson would not be permitted to offer). Thus, a therapist may, if requested to do so by a patient or ordered to do so by a court, properly testify to facts, observations and clinical opinions for which the therapy process provides a trustworthy basis. This testimony may include the history as provided by a patient, the clinical diagnosis, the care provided to a patient, the patient’s response to that treatment, the patient’s prognosis, the mood, cognitions, or behavior of the patient at particular times and any other statements that the patient made in treatment.

To be admissible, an expert opinion must be reliable and valid to a reasonable degree of scientific certainty (a metric for scrutinizing the certainty of expert testimony as a condition of its admissibility). It is improper for the therapist to offer an expert opinion as to proximate cause for two reasons. First, the type and amount of data routinely observed in therapy is rarely adequate to form a proper foundation to determine the psycholegal (as opposed to the clinically assumed) cause of the litigant’s impairment, nor is therapy usually adequate to rule out other potential causes. Second, such testimony engages the therapist in conflicting roles with the patient. Common examples of this role conflict occur when a patient’s therapist testifies to the psycholegal issues that arise in competency, personal injury, worker’s compensation and custody litigation.

Clinical, ethical, and legal concerns arise when the treating expert offers psycholegal assessment: an assessment for which the treating expert does not have adequate professional basis, for which there are inherent role conflicts, and for which there will almost certainly be negative implications for continued therapy.

The temptation to use therapists as forensic experts falls on fertile ground because clinical psychology and psychiatry graduate students often do not receive adequate training in forensic ethics. The legal arena is sufficiently foreign to most academicians and their students that ethics training focuses primarily on licensing laws and ethical codes for general practice. Therapists are not typically trained to know that the rules of procedure, rules of evidence, and the standard of proof are different for courtroom testimony versus clinical practice.

The temptation to use therapists as forensic experts on behalf of patient-litigants exists because of erroneous beliefs about efficiency, candor, neutrality and expertise. Using a therapist to provide forensic assessment appears efficient because the therapist has already spent time with the patient and knows much about him or her that others have yet to learn; using a therapist avoids substantial expenditures of time and money for an additional evaluation. A therapist appears to gain candid information from a patient-litigant because of the patient’s assumed incentive to be candid with the therapist to receive effective treatment. Although litigants may learn much about themselves as a consequence of receiving thorough forensic evaluations (Finn & Tonsager, 1996), the same treatment incentive does not exist in a forensic examination. Thus, the facts forming the basis for a therapist’s opinion may initially appear more accurate and complete than the facts that could be gathered in a separate forensic assessment. In addition, a therapist does not appear to be the attorney’s hired gun who has come into the case solely to assist in advancing or defeating a legal claim or defense. Thus, a therapist’s forensic assessment may appear more neutral and less immediately skewed by financial incentives toward a particular result than does a separate forensic evaluation.

10 Differences Between Therapeutic and Forensic Relationships

Nevertheless, the therapeutic and forensic roles demand different and inconsistent orientations and procedures (adapted from Greenberg & Moreland, 1995). The superficial and perilous appeal of using a therapist as a forensic examiner is debunked by an examination of the conceptual and practical differences between the therapist-patient relationship and the forensic examiner-litigant relationship.

1) Perhaps the most crucial difference between the roles is the identification of whose client the patient-litigant is. As implied by the name, the patient-litigant has two roles, one as therapy patient and another as plaintiff in the legal process. The patient-litigant is the client of the therapist for the purposes of treatment. The patient-litigant also is the client of the attorney for guidance and representation through the legal system.

The therapist is ultimately answerable to the client, who decides whether to use the services of a particular therapist. The forensic evaluator is ultimately answerable to the attorney, or the court in the case of a court-appointed expert, who decides whether to use the services of a particular forensic evaluator. This arrangement best protects the parties’ interests as well as the integrity of the therapist and the forensic evaluator.

2) The legal protection against compelled disclosure of the contents of a therapist-patient relationship is governed by the therapist-patient privilege and can usually be waived only by the patient or by court order. Legal protection against compelled disclosure of the contents of the forensic evaluator-litigant relationship is governed by the attorney-client and attorney-work-product privileges. Because the purpose of a forensic relationship is litigation — not treatment nor even diagnosis for the purpose of planning treatment — communications between a forensic examiner and a litigant are not protected under a physician-, psychiatrist-, psychologist-, or psycho-therapist-patient privilege. The forensic evaluator, however, having been retained by the attorney, is acting as an agent of the attorney in evaluating the party or parties in the legal matter. This legal agency status puts the forensic evaluator under the umbrella of the attorney-client privilege and usually protects privileged information until such time that the evaluator is declared to be a witness at trial. The main practice point to be made here is that the logic, the legal basis, and the rules governing the privilege that applies to care providers are substantially different from those that apply to forensic evaluators. Given this, the duty to inform forensic examinees of the potential lack of privilege and the intended use of the examination product is embodied in case law (Estelle v. Smith, 1981) and the Specialty Guidelines for Forensic Psychologists (SGFP) adopted by the American Psychology-Law Society (APA Division 41 ) and the American Board of Forensic Psychology in 1991. The Specialty Guidelines state the following:

Forensic psychologists have an obligation to ensure that prospective clients are informed of their legal rights with respect to the anticipated forensic service, of the purposes of any evaluation, of the nature of procedures to be employed, of the intended uses of any product of their services, and of the party who has employed the forensic psychologist (Committee on Ethical Guidelines for Forensic Psychologists, 1991, p. 659).

3) The evaluative attitude of each expert is different. The therapist is a care provider and usually supportive, accepting, and empathic; the forensic evaluator is an assessor and usually neutral, objective, and detached as to the forensic issues. A forensic evaluator’s task is to gain an empathic understanding of the person but to remain dispassionate as to the psycholegal issues being evaluated.

4) To perform his or her task, a therapist must be competent in the clinical assessment and treatment of the patient’s impairment. In contrast, a forensic evaluator must be competent in forensic evaluation procedures and psycholegal issues relevant to the case.

5) A therapist uses this expertise to test rival diagnostic hypotheses to ascertain which therapeutic intervention is most likely to be effective. For example, a therapeutic diagnostic question might be whether a patient is a better candidate for insight-oriented psychotherapy, systematic desensitization or psychopharmacologic intervention. A forensic evaluator must know the relevant law and how it relates to a particular psychological assessment. A forensic evaluator then uses this expertise to test a very different set of rival psycholegal hypotheses that are generated by the elements of the law applicable to the legal case being adjudicated.

6) Information from the patient-litigant is subjected to different degrees of scrutiny. At least with competent adults, therapy is based primarily on information from the person being treated, information that may be somewhat incomplete, grossly biased or honestly misperceived. Even when the therapist does seek collateral information from outside of therapy, such as when treating children and incompetent adults, the purpose of the information gathering is to further treatment, not to validate historical truth. Effective therapy can usually proceed even in the face of substantial historical inaccuracy. Thus, the historical truth of matters raised during therapy cannot, simply on that basis alone, be considered valid and reliable for legal purposes.

In contrast, the role of a forensic examiner is, among other things, to offer opinions regarding historical truth and the validity of the psychological aspects of a litigant’s claims. The accuracy of this assessment is almost always more critical in a forensic context than it is in psychotherapy. A competent forensic evaluation almost always includes verification of the litigant’s accuracy against other information sources about the events in question. These sources may include collateral interviews with coworkers, neighbors, family members, emergency room personnel, or a child’s teacher or pediatrician, and a review of documents such as police reports, school records, military records, medical records, personnel files, athletic team attendance, credit card bills, check stubs, changes in one’s résumé, depositions, witness statements and any other possible sources of information about the litigant’s pre- and post-incident thoughts, emotions, and behaviors.

7) The need for historical accuracy in forensic evaluations leads to a need for both completeness in the information acquired and structure in the assessment process to accomplish that goal. Therapeutic evaluation, in comparison, is relatively less complete and less structured than a forensic evaluation. Moreover, a patient provides more structure to a therapeutic evaluation than does a litigant to a forensic evaluation. Ideally, a patient and therapist work collaboratively to define the goals of a therapeutic interaction and a time frame within which to realize them. The time frame and goals of a forensic evaluation are defined by the legal rules that govern the proceeding, and, once these are determined, the forensic evaluator and litigant are usually constrained to operate within them.

8) Although some patients resist discussing emotionally laden information, the psychotherapeutic process is rarely adversarial in the attempt to reveal that information. Forensic evaluation, although not necessarily unfriendly or hostile, is nonetheless adversarial in that the forensic evaluator seeks information that both supports and refutes the litigant’s legal assertions. This struggle for information is also handled quite differently by each expert. The therapist exercises therapeutic judgment about pressing a patient to discuss troubling material, whereas a forensic evaluator will routinely seek information from other sources if the litigant refuses to provide it or to corroborate it when the litigant does provide information.

9) The goals of each of these relationships differs. Therapy is intended to aid the person being treated. A therapist attempts to intervene in a way that will improve or enhance the quality of the person’s life. Forensic examiners strive to gather and present objective information that may ultimately aid a trier of fact (i.e., judge or jury) to reach a just solution to a legal conflict. A forensic examiner is obligated to be neutral, independent, and honest, without becoming invested in the legal outcome.

10) The patient-litigant is likely to feel differently about expert opinions rendered by therapists than those rendered by forensic experts. To develop a positive therapist-patient alliance, a therapist must suspend judgment of the patient so that the therapist can enter and understand the private perceptual world of the patient without doing anything that would substantially threaten that relationship.

In contrast, the role of a forensic examiner is to assess, to judge, and to report that finding to a third party (attorney, judge, or jury) who will use that information in an adversarial setting. Because a forensic psychologist or psychiatrist has not engaged in a helping relationship with the litigant, it is less likely that his or her judgment-laden testimony would cause serious or lasting emotional harm to the litigant than would that of the psychologist or psychiatrist who has occupied the therapeutic role.

Waiving the Dual-role Conflict

These role differences are not merely artificial distinctions but are substantial differences that make inherently good sense. Unless these distinctions are respected, not only are both the therapeutic and forensic endeavors jeopardized for the patient-litigant, but so are the rights of all parties who are affected by this erroneous and conflictual choice. This role conflict poses both therapeutic risks to the patient-litigant, and risks inaccuracy and lack of objectivity in the court’s process and to all of the litigants.

Existing Professional Guidelines

On the basis of these concerns, both psychological and psychiatric organizations have sought to limit situations in which dual functions are performed by a single psychologist or psychiatrist. In increasing detail and specificity, professional organizations have discouraged psychologists and psychiatrists from engaging in conflicting dual professional roles with patient-litigants. As the Ethical Guidelines for the Practice of Forensic Psychiatry, adopted by the American Academy of Psychiatry and the Law (AAPL) in 1989, note:

A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.

In a similar vein, the Specialty Guidelines for Forensic Psychologists indicate the following:

Forensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship.

When it is necessary to provide both evaluation and treatment services to a party in a legal proceeding (as may be the case in small forensic hospital settings or small communities), the forensic psychologist must take reasonable steps to minimize the potential negative effects of these circumstances on the rights of the party, confidentiality and the process of treatment and evaluation (Committee on Ethical Guidelines for Forensic Psychologists, 1991, p. 659).

The Committee on Psychiatry and Law of the Group for the Advancement of Psychiatry (GAP, 1991) concluded in 1991, "While, in some areas of the country with limited number of mental health practitioners, the therapist may have the role of forensic expert thrust upon him, ordinarily, it is wise to avoid mixing the therapeutic and forensic roles" (p. 44). Similarly, the Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association (APA, 1992) admonishes, "In most circumstances, psychologists avoid performing multiple and potentially conflicting roles in forensic matters" (p. 1610). Finally, the most recent and the most specific of these codes, the American Psychological Association’s (1994) guidelines for conducting child custody evaluations, concluded the following:

Psychologists generally avoid conducting a child custody evaluation in a case in which the psychologist served in a therapeutic role for the child or his or her immediate family or has had other involvement that may compromise the psychologist’s objectivity. This should not, however, preclude the psychologist from testifying in the case as a fact witness concerning treatment of the child. In addition, during the course of a child custody evaluation, a psychologist does not accept any of the involved participants in the evaluation as a therapy client. Therapeutic contact with the child or involved participants following a child custody evaluation is undertaken with caution.

A psychologist asked to testify regarding a therapy client who is involved in a child custody case is aware of the limitations and possible biases inherent in such a role and the possible impact on the ongoing therapeutic relationship. Although the court may require the psychologist to testify as a fact witness regarding factual information he or she became aware of in a professional relationship with a client, that psychologist should decline the role of an expert witness who gives a professional opinion regarding custody and visitation issues (see Ethical Standard 7.03) unless so ordered by the court (p. 678).

The Legal Perspective

Even though there are explicit ethical precepts addressing this dual role, there are no reported judicial decisions to date that address the exclusion of a forensic assessment by a psychologist or psychiatrist who has served as a litigant’s therapist. Courts may not see this as an issue of competence or qualification, but instead, at most, as one of weight or credibility. Thus, the therapist would be permitted to testify and the ethical precept could be used to challenge credibility. Some courts may not recognize the role conflicts or not see them as important; other courts may see them, but are too concerned with efficiency to give them great weight.

Although even the clear ethical conflict may not yet persuade a court to exclude the testimony of a therapist who offers a forensic assessment, the effect of this departure from professional standards on the perceived credibility of the witness may persuade attorneys to resist this two-for-one strategy. Deviating from the ethical codes or practice guidelines of one’s profession is an appropriate and effective basis for impeaching a witness, and the explicit ethical and specialty guidelines that address this problem simplify this task for the cross-examining attorney.

Similarly, under both the test of "general acceptance" in the relevant professional community of Frye v. United States (1923) and the "good grounds given what is known" test of Daubert v. Merrill Dow Pharmaceuticals (1993), forensic assessment by a patient’s therapist does not generally provide a reliable basis for a forensic assessment and should be avoided by the ethical psychologist and viewed skeptically by the courts. The Supreme Court’s decision in Daubert requires federal courts to make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning properly can be applied to the facts in issue" (p. 592). This decision is part of a trend in both state and federal courts toward a more demanding level of scrutiny requiring scientific support or validation for the assertions made by mental-health professionals in forensic settings. This trend (e.g., State v. Russel, 1994) is seen even in states that have chosen to apply the "general acceptance in the relevant professional community" test (Frye, 1923) instead of the test used in Daubert. Psychologists and psychiatrists should expect courts to demand evidence of the research that supports their opinions and that supports the data acquisition methods on which opinions are based. A forensic evaluation must be based on information that is more complete and more accurate than that typically obtained as part of therapy.

To date, society has taken a largely laissez-faire, market orientation to psychotherapy. Most successful malpractice claims against mental-health professionals have involved sex with patients, drug interactions, failure to warn or protect and suicide (Smith, 1991). However, engaging in dual roles raises the potential for a lawsuit against a therapist by a patient alleging lack of informed consent. This could be claimed by a disgruntled patient-litigant who expected the therapist to be as successful and partisan an expert witness as he or she was a therapist.

Where Then Should the Line Be Drawn?

As stated earlier, psychologists and psychiatrists may appropriately testify as treating experts (subject to privilege, confidentiality, and qualifications) without risk of conflict on matters of the reported history as provided by the patient, mental status, the clinical diagnosis, the care provided to the patient and the patient’s response to it, the patient’s prognosis, the mood, cognitions, or behavior of the patient and any other relevant statements that the patient made in treatment. These matters, presented in the manner of descriptive "occurrences," and not psych-olegal opinions, do not raise issues of judgment, foundation or historical truth. Therapists do not ordinarily have the requisite database to testify appropriately about psycholegal issues of causation or capacity. These matters raise problems of judgment, foundation, and historical truth that are problematic for treating experts.

When faced with issues that seem to fall between the above guideposts, it is useful to ask whether each opinion is one that could or should have been reached in therapy. Thus, if the legal system did not exist, would therapists be expected to reach these sorts of conclusions on their own? Would doing so ordinarily be considered an aspect of the therapy process? Would the opinion be considered exploratory, tentative, and speculative, or, rather, as an adequate basis for guiding legal action outside of therapy? Is the therapist generating hypotheses to facilitate treatment, or is he or she reasonably scientifically certain that this opinion is accurate? Is it based on something substantially more than, "My patient said so?"

Conclusion

Psychologists, psychiatrists, and other mental-health professionals have given and received criticism about the use of expert witnesses whose partisanship appears to overwhelm their professionalism. Engaging in conflicting therapeutic and forensic relationships exacerbates the danger that experts will be more concerned with case outcome than the accuracy of their testimony. Therapists are usually highly invested in the welfare of their patients and rightfully concerned that publicly offering some candid opinions about their patient’s deficits could seriously impair their patient’s trust in them. They are often unfamiliar with the relevant law and the psycholegal issues raised. They are often unaware of much of the factual information in the case, and much of what they know comes solely from the patient and is often uncorroborated. What they do know, they know primarily, if not solely, from their patient’s point of view. They are usually sympathetic to their patient’s plight, and they usually want their patient to prevail.

By failing to recognize the inherent limitations of their work as therapists, as well as the conflicting therapeutic and forensic roles, psychologists, psychiatrists, and other mental health professionals risk harm to their profession, their patients and the courts. Although therapists frequently enter the forensic arena in their efforts to help, these efforts may not only put therapists in ethical difficulty but may also neutralize the impact both of their testimony and their work as therapists. Therapists need to acknowledge the limits of what they can accurately and reliably say on the basis of therapeutic relationships.

References

American Academy of Psychiatry and the Law. (1989). Ethical guidelines for the practice of forensic psychiatry. In Membership Directory of American Academy of Psychiatry and the Law ( pp. x-xiii ). Bloomfield, CT: Author.

American Psychological Association. (1992). Ethical principles of psychologists and code of conduct. American Psychologist, 47, 1597-1611.

American Psychological Association. (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677-680.

American Psychiatric Association. (1984). Psychiatry in the sentencing phase: A report of the task force on the role of psychiatry in the sentencing process. Washington, DC: Author.

Blow, S. (1995, January 11). "Slander case shakes family," Dallas Morning News, p. 25a.

Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655-665.

Committee on Psychiatry and Law, Group for the Advancement of Psychiatry. (1991). The mental health professional and the legal system (Rep. No. 131). York Brunner/Mazel.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 405 U.S. 597 (1993).

Estelle v. Smith, 451 U.S. 454 (1981).

Finn, S. E., and Tonsagec, M. E. (1996). Therapeutic assessment: Using psychological testing to help clients change. Manuscript in preparation.

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Greenberg, S. A., & Moreland, K. (1995). Forensic evaluations and forensic applications of the MMPI/MMPI-2. Unpublished manuscript, University of Minnesota, Department of Continuing Education and Conference Services, Minneapolis, and The American Academy of Forensic Psychology.

Horvath, A.O., & Luborsky, L. (1993). The role of the therapeutic alliance in psychotherapy. Journal of Consulting and Clinical Psychology, 61, 561-573.

Shuman, D. W. (1983). Testimonial compulsion: The involuntary medical expert witness. Journal of Legal Medicine, 4, 419-446.

Shuman, D. W. (1994). Psychiatric and psychological evidence (2nd ed.). Colorado Springs, CO: Shepherds/McGraw-Hill.

Shuman, D. W., & Weiner, M. F. (1987). The psychotherapist-patient privilege: A critical examination. Springfield, IL: Thomas.

Smith, S. R. (1991). Mental health malpractice in the 1990s. Hous. L Rev., 28, 209-283.

State v. Russel, 882 P.2d 747 (Wash. 1994).

Wesson, M. (1985). Historical truth, narrative truth, and expert testimony, Wash L Rev., 60, 331-354.

This article is excerpted from a paper published in the February 1997 issue of Professional Psychology: Research and Practice, 1997, American Psychological Association; adapted by permission. Interested readers should refer to the full published manuscript.

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Stuart Greenberg is a diplomat in forensic psychology, ABPP, practices forensic psychology in Seattle, and is on the adjunct faculty of the University of Washington Department of Psychiatry and Behavioral Sciences. Dr. Greenberg can be reached via Internet address stuartg@u.washington.edu

Daniel Shuman is a professor of law at Southern Methodist University School of Law in Dallas, Texas, and an adjunct professor of psychiatry at the University of Texas Health Science Center at Dallas.