During a recent risk management consultation a psychologist reported how a judge had ordered him to render a forensic recommendation regarding a family that he had been treating. This psychologist had been treating the family in question for more than a year, but eventually the parents decided to divorce. As a consequence of the decision to divorce, they began to battle over which parent should have what amount of time with their respective children.
The psychologist found himself in the middle of their legal dispute and, without input from the psychologist, the judge ordered him to provide a custody recommendation to the court. It was the judge’s opinion that the psychologist in question was most qualified because he had been treating the family for more than a year and, to quote the judge, “He knew the family the best.”
While fully aware of the role conflicts that exist between providing therapy to clients and concurrently providing forensic opinions in a legal matter, the psychologist thought that since the judge had ordered it, he had no choice but to comply. So, he went ahead and rendered a custody recommendation to the court, an act that resulted in a complaint being filed about his conduct with the state licensing board.
In another consult, a judge ordered a psychologist to turn all the psychotherapy records of a client over to the attorneys involved in a legal matter. The psychologist was very concerned that the information contained in the records was private and violated the confidentiality rights of his client. Consequently, she simply refused to comply with the court order. Because of this refusal, the judge sanctioned her and ordered her to pay a significant fine along with the costs incurred by the attorneys in trying to obtain these materials.
The words “court ordered” can be quite daunting and confusing to practicing psychologists, most of whom are unfamiliar with the power and respective authority of those who are involved in the legal system. In addition, most psychologists do not understand what their rights are when they find themselves working in the forensic arena in one fashion or another.
The courtroom is a confusing arena of decision-making to be sure, but the seriousness of this level of confusion is only enhanced by the reality that it is also “foreign turf” to most practicing clinicians. This confusion frequently involves a misunderstanding of the concept of judicial authority within the legal system.
When something is “court ordered” the order generally establishes the courts authority over the matter at hand. While in some circumstances it will requires compliance, in others it does not. For example, should a psychologist be ordered to provide a professional service under the auspices of the court, it does not necessarily mean that the psychologist must provide those services.
What it does mean is that the judge has given the request the judicial stamp of approval, if you will. What it does not mean is that psychologists who are so ordered by the court are required to comply with the order even if the request violates the standards of professional practice. Simply put a court cannot order a psychologist to violate professional standards.
While psychologists who have been ordered to do something for the court must take some type of action when so ordered, they do not necessarily have to provide the service identified in the order. What they should do is notify the court of why the order cannot be complied with and the ethical and professional standards foundation for this.
What is important to remember is that while psychologists can educate the court on professional matters, such as what service a psychologist can or cannot provide, they cannot educate the court on legal matters. That is simply out of their area of expertise. The two examples that appear at the outset of this article are great examples of these types of differences.
While in the first example, the psychologist had a professional responsibility and duty to educate the court on how the order violated the standard of care and of ethical practice, the second dealt with a legal determination made by the court. While a psychologist surely should feel free to contact the court regarding these issues, a lack of compliance with a legal determination, is truly risky.
To make matters more serious, an inability to understand the differences between these two issues could expose treating psychologists to potential civil lawsuits and licensing board complaints. For example, if a treating psychologist is ordered to render an opinion as to the best suited parent to have custody of a child, the disgruntled parent could argue that such a decision constituted malpractice because the psychologist had a conflict of interest in the matter.
The argument for the psychologist would be that such a recommendation was court ordered. While this would likely constitute a successful defense, the psychologist would still be faced with potential hefty legal costs and time spent defending against the allegations.
So, what is the psychologist supposed to do when these types of things occur?
First, if you do not know what to do, do not do anything until you get guidance. This is very important. Most psychologists are not lawyers and until you are able to get legal advice, decisions about what to do in legal matters can be quite dangerous. So, seeking out answers from an attorney, an ethics committee or another type of legal resource is in order.
Second, psychologists should not be afraid to communicate with the court regarding questions and concerns they have about court orders. If a professional believes an order is a violation of the standards of professional practice, this should be expressed in correspondence to the court and/or to the attorneys involved in the matter. Remember, judges and lawyers are usually not psychologists and may be unfamiliar with the significant role conflicts that exist when a treating psychotherapist is required to render a forensic opinion to the court.
If neither of these provides a solution to the dilemma at hand, then it is in the best interests of the psychologist dealing with this dilemma to retain legal representation in the matter. When this is necessary, contacting your malpractice carrier is in order since such representation might be covered by your professional liability policy.
Jeffrey N. Younggren, Ph.D., is a clinical and forensic psychologist in Rolling Hills Estates, Calif. He is also an associate professor at the UCLA School of Medicine. His email is: firstname.lastname@example.org
Elizabeth A. Younggren, J.D., is an attorney at Reback, McAndrews and Kjar, a firm that specializes in medical malpractice defense. She graduated from UCLA with honors and earned her law degree at Loyola Law School (JD, 2004). She is a member of the bar of California; US District Court, Central District of California. Her email is: email@example.com