when the therapist is called to court you can make it out alive maggie labarta, ph.d., august, 2015...
TRANSCRIPT
1
WHEN THE THERAPIST IS CALLED TO COURT
You can make it out alive
Maggie Labarta, Ph.D., August, 2015
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OBJECTIVES (MAKING IT BACK TO KANSAS)
What you should expect
How to respond (and not to)
Learn roles you can play in Court (and can’t)
Managing Court testimony & challenges
3BEFORE YOU GET CALLED …
Be clear about your role and the boundaries, and the limits to confidentiality with your client from the outset
“Duty to warn” in cases of potential harm to self or others
Abuse reporting requirements
Court orders received in advance
Referral source or payer requirements
Be accurate about how your skills and role with the client and any other involved parties Evaluation
For Court – to aid in making a determination
For Court or others – to recommend treatment course
Treatment – In cases referred by the criminal justice or dependency systems, there may be a court order or case plan requiring disclosure of at least some information; or specific goals to be achieved
Make sure all your opinions are on the record and supported by data, expertise, research Those in the medical record
Those verbalized at staffings or letters or phone calls
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THE MEDICAL RECORD
Review relevant referral and prior assessment data Internal or external
Be thorough, document the basis for your diagnosis and treatment plan, making sure to have considered all elements of a referral as well as the goals of the client
Assess risk
Record opinions in the medical record only about the client in your care
Ensure that you are Charting attendance
Following up on no-shows
Recording the evidence-based practices used
Recording progress in treatment Symptom changes
Functional changes
Changes in risk status
5
WAYS YOU CAN END UP IN COURT
Client asks
Attorney for the client asks
You are subpoenaed Attorney for your client
Attorney for the other side
The Court
Subpoena duces tecum
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FIRST STEPS WHEN YOU GET CALLED
Send to Health Information Management/Medical Records
Ensure the subpoena is legally sufficient Let your supervisor and/or Risk Management know – check your
organization’s notification requirements
Let the client know If client wants you to honor the subpoena, s/he needs to sign a release
If s/he does not, his/her attorney or your agency’s attorney can attempt to quash the subpoena because you do not have the necessary
Information;
Credentials;
Standing;
Or, because doing so violates statutory client privilege or can cause harm
7ROLES
Judge and Jury Triers of fact
Prosecutor/Plaintiff’s Counsel Seeks Justice as representatives of the state
Defense Counsel Advocates for accused/defendant, within specified limits
Witnesses Provide information to the Court useful to help the trier of fact
decide the issues at hand, or
Understand technical matters important to the decision(s) to be made
Legal standard in cases where custody is at issue (dependency or divorce) is the “best interest of the child”
In criminal cases, public safety and amenability to treatment are often at issue
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WHAT ROLE CAN YOU PLAY IN COURT
Expert – A professional retained or subpoenaed for their specific expertise who
Offer opinions that may assist the trier of factin understanding technical knowledge in order to support their ability to make a sound ruling in a case;
Are credentialed by the Court as specialists;
Are typically allowed more leeway in testimony than fact witnesses;
Have the content of their testimony carefully examined by the court via attorneys or direct questioning for validity.
Fact witness – An individual, sometimes a clinical professional, who Has personal knowledge of events pertaining to the case
Can testify as to things they have personally observed or witnessed;
May not offer opinions.
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DETERMINING YOUR ROLE
Scope - what have you been charged with accomplishing?
By whom – who do you represent? “Agency” Responsibility - Who are you accountable to?
A client?
The Court?
A third party?
Are you offering information? – “Fact Witness”
Are you offering technical expertise? – “Expert Witness”
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WHAT COURTS LOOK TO EXPERTS FOR
Specific expertise in some element critical to the facts the Court is deciding. Based on: Field of expertise
Degree
Experience in the field
Previous experience as an expert Be prepared to describe in detail
Ability to educate the jury or trier of fact Disease/problems encountered in the case
How science applies to the instant case Treatment needs and issues,
Generalizability of treatment progress/gains
Competence
Capacity and capability to perform tasks or roles effectively or within acceptable standards
Expert qualification is subject to challenge by counsel
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WHAT AFFECTS WHAT HAPPENS TO THERAPISTS IN COURT?
Culture Therapists are collaborative
Helpers
Advocates
Often believe truth is relative, and is constructed collaboratively Truth is interpretation of experience
Truth is malleable – therapy alters a person’s “Truth”
Courts are adversarial Both sides present their best evidence for their theory of the case
Jury or Judge (in a bench trial) is the ultimate “trier of fact”
Truth is not relative, it is made up of immutable facts
Characteristics of the role of aid to the trier of fact Impartial
Shares information based on First hand observation
Scientific “certainty”
Clarity of role
Experience
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IN CHILD WELFARE CASES (LIONS)
Typical Issues
Parental fitness
Readiness for re-unification
Need for treatment/medication
Progress in treatment
Residency options
Adoptability
Testifying about custody If the issue the Court is adjudicating is “parental fitness” or determining a child's
physical residence, visitation, therapist doesn’t know best, but may know something
Therapy requires that the therapist establish a bond = source of bias
Therapy usually lacks sufficient basis for comparing status and stability of others not in treatment
Very specific professional ethical and regulatory requirements
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PRACTITIONER REQUIREMENTS - PSYCHOLOGISTS
64B19-18.007 Requirements for Forensic Psychological Evaluations of Minors for the Purpose of Dissolution of Marriage, Support, or Time-Sharing Action.
(1) It is a conflict of interest for a psychologist who has treated a minor or any of the adults involved in a dissolution of marriage, support, or time-sharing action as defined by Chapter 61, F.S., to perform a forensic evaluation for the purpose of recommending a time-sharing schedule and parenting plan. Consequently, a psychologist who treats a minor or any of the adults involved in a dissolution of marriage, support, or time-sharing action as defined by Chapter 61, F.S., may not also perform a forensic evaluation for the purposes of recommending a time-sharing schedule or parenting plan. So long as confidentiality is not violated, a psychologist may provide a court, or a mental health professional performing a forensic evaluation, with factual information about the minor derived from treatment, but shall not state an opinion about time-sharing schedules and parenting plans.
(2) The psychologist who serves as an evaluator shall not also serve as guardian ad litem, mediator, therapist or parenting coordinator regarding the children in the instant case. The psychologist who has had a prior role as guardian ad litem, mediator, therapist or parenting coordinator shall not serve as an evaluator for the children in the instant case.
Rulemaking Authority 490.004(4) FS. Law Implemented 490.009(1) FS. History–New 6-14-94, Formerly 61F13-20.007, Amended 1-7-96, Formerly 59AA-18.007, Amended 9-30-04, 12-25-12.
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PRACTITIONER REQUIREMENTS – COUNSELORS, SOCIAL WORKERS, MARRIAGE & FAMILY THERAPISTS
64B4-7.006 Requirements for Evaluations of Minors for the Purpose of Addressing Custody, Residence or Visitation Disputes.
(1) To perform evaluations of minors for the purpose of making a recommendation regarding custody, residence or visitation, the licensee shall have:
(a) Competence in performing assessments of a psychological nature on children and families;
(b) Education and training in the areas of child and family development, child and family psychopathology, and the impact of divorce on children and families; and
(c) Knowledge of the legal standards and procedures governing divorce and child custody.
(2) When providing such evaluation of a minor, the licensee shall:
(a) Be impartial, act in the best interest of the child, avoid conflicts of interest, and not have been the treating psychotherapist nor had a prior relationship with any of the parties to the evaluation; and
(b) Use multiple avenues of data gathering, including testing and interviewing methods, and shall involve all persons central to the child in question, including, at a minimum, communication with the child, the parties seeking custody or visitation, any treating mental health professional, family physician, and relatives of the immediate families.
Rulemaking Authority 491.004(5) FS. Law Implemented 491.009(2)(s) FS. History–New 12-21-97.
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ETHICAL GUIDELINES
American Psychological Association. (2010). Guidelines for Child Custody Evaluations in Family Law Proceedings. American Psychologist, Vol. 65, No. 9, 863–867
American Psychological Association. (2011). Guidelines for Psychological Evaluations in Child Protection Matters. http://www.apa.org/practice/guidelines/child-protection.aspx
NASW. NASW Standards for Social Work Practice in Child Welfare. (2013). http://www.socialworkers.org/practice/standards/childwelfarestandards2012.pdf
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CRIMINAL CASES (TIGERS)
Role bias in therapy also applies here
Statutory requirements for certain evaluations (e.g. sex offenders)
Ethical standards for competencies
Violence risk is difficult to predict Not effectively done within
therapeutic or non-specialized relationship
Requires multiple data sources
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IMPLICATIONS FOR THERAPISTS (GETTING BACK TO OZ)
Define your role from the point of referral and make it clear to all parties
Be careful about how you describe your skills and role
formulate opinions
communicate thoughts (there is no thought that is not an opinion or a fact)
Remember you are always on the record, If the child is your client, don’t opine about the parents
And vice versa
There are no informal opinions
When there are concerns, refer to neutral third party
You can report on attendance and progress with regard to your treatment and related plan
You can be a fact witness Report what you have seen and heard directly, rather than opining
Report statements made in therapy, without drawing conclusions regarding
Report one report all, not just those that support one side or the other
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OPINIONS (BEARS) - GUIDING PRINCIPLES BEFORE YOU HAVE ONE
Requires specialized expertise allowing you to
Have technical and scientific knowledge in the specific area raised in the case
Keep current on research and evidence based practices and professional standards
Be able to indicate how that knowledge applies in this case
Indicate what alternative hypotheses you have considered
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SUMMARY: WORKING WITH THE COURT SYSTEM - WHEN YOU GET CALLED
Get releases from client(s)
Work with your agency and its protocols In some cases your agency’s attorney may work with you
Contact attorney(s) and ask what they want from you Remember your role and clarify it with attorney(s) - Fact vs expert?
Clarify the limits of what you can say
Know issues being tried or decided
Know laws/Statutes that apply to the case
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WORKING WITH THE COURTS - WHEN YOU HAVE TO GO
Know the system Adversarial process – between two theories
of a case
It is not you versus them – but it can feel that way
Don’t be invested in the outcome
You represent a body of knowledge as it applies to a case
Know the research
Stay current
Know opinions of other experts who may be in the case
Stay true to your role and expertise, not a role someone else wants you to have
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WORKING WITH THE COURTS - PREPARING TO TESTIFY
Prepare, prepare, prepare Review your excellent work thoroughly & the entire record if others are involved
You cannot testify about others’ work quality or opinions but can be asked to state what the record says
Review your background so you can present it concisely
Demand that the attorney calling you prepare you to testify Direct
Cross examination
Decide whether you should sit in on all experts’ testimony – may not be permitted for fact witnesses
Dress for the occasion (when in Rome…) Professional
Conservative
Jacket – it’s often cold, shivering looks like nervousness
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TESTIFYING: CREDENTIALS
The attorney who called you presents you Be straightforward If asked about a lack of a particular credential
or length of experience Admit
Do not overelaborate
Do not apologize
If you have defined your role from the outset, no one will be surprised
Challenges to credentials Reject the notion that you “should” be
something else in order to have done the work you are testifying about
Briefly
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TESTIFYING – INTERACTING WITH ATTORNEYS
Demeanor Open posture
Be aware of attorneys use of physical space
Use that jacket – don’t sweat or shiver
Make eye contact (attorneys, jury, judge)
Organize your thoughts and documents Take your time
Make sure you don’t fumble with paper
It’s okay to say, “I don’t know”
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WORKING WITH THE COURTS - TESTIFYING (CONT.)
Responding to questions Listen,
Understand (pause and reflect – give time for objections),
Don’t argue
Speak plainly; if you need clarification, ask for it
Answer, as briefly as possible
Then shut up
If you are fact witness, don’t slip into expert role
Experts: Anticipate
Stay away from acronyms or technical terms
Have simple explanations for common terms and phenomena
Use analogies from every day life
Be prepared to be questioned by judge
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TESTIFYING – CHALLENGES (THE REAL LIONS, TIGERS, AND BEARS)
Flattery: The garden path Being a court “expert” Court and being sought out is flattering,
Don’t fall for it – you will say something that makes you look foolish
Derision: Inducing self doubt Other side will try to make you look inept, inexperienced, wrong, ignorant of
key facts
Don’t fall for it - or you will
Hypotheticals and possibilities - Don’t get defensive, don’t go too far Admit the possibility, then make plain why it does not apply, briefly and
non-defensively
Embrace the challenge and take it farther, carefully
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Taking things out of context and generalizing Provide the context
Indicate the specifics that apply
Rapid-fire questions Ask for clarification, break them up for you
Let the attorneys do the fighting
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SUMMARY
When you take a client referral make your role clear to all parties
Stick to that role
Document carefully
If called, be informed and inform your agency
Prepare when called Organize records
Know your limitations
Speak carefully Breathe
Be proud of who/what you are – don’t diminish or exaggerate
Be brief
You are not the only source the courts will rely on – don’t own the outcome
