Crossing the Line: Daubert, Dual Roles, and the Admissibility of Forensic Mental Health Testimony

Sara Gordon
Cardozo Law Review, Vol. 37, No. 4, 2016

Abstract:    

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient — a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, and she has an obligation to give objective and truthful testimony. But this testimony can result in the patient’s detention or punishment, a legal outcome that implicates the mental health professional’s corresponding obligation to “do no harm” to the patient. Moreover, the conflict of interest created by a dual relationship can affect the objectivity and reliability of forensic testimony.

A dual clinical and forensic relationship with a single patient is contrary to quality patient care, and existing clinical and forensic ethical guidelines strongly discourage the practice. Notwithstanding the mental health community’s general consensus about the impropriety of the practice, many courts do not question the mental health professional’s ability to provide forensic testimony for a patient with whom she has a simultaneous clinical relationship. Moreover, some state statutes require or encourage clinicians at state-run facilities to engage in these multiple roles. This Article argues that the inherent conflict created by these dual roles does not provide a reliable basis for forensic mental health testimony under Federal Rule of Evidence 702 and should not be admitted as reliable expert testimony by courts. Because dual relationships are often initiated due to provider shortages and the unavailability of neutral forensic examiners, this Article will also discuss the use of telemedicine as a way to provide forensic evaluations in under served areas, especially those where provider shortages have prompted mental health professionals to engage in dual clinical and forensic roles. Finally, this Article argues that courts should exercise their powers more broadly under Federal Rule of Evidence 706 to appoint neutral and independent mental health experts to conduct forensic evaluations in civil commitment and criminal competency proceedings.

The article is here.

Managing Risk When Contemplating Multiple Relationships

By Jeffrey Younggren and Michael C. Gottlieb
Professional Psychology: Research and Practice, Vol 35(3), Jun 2004, 255-260.

Abstract

Entering into dual relationships with psychotherapy patients has been a topic of significant controversy in professional psychology. Although these types of extratherapeutic alliances have generally been considered to be unethical conduct, some authors recently have supported their development as both ethical and, in some cases, even therapeutic (A. Lazarus & O. Zur, 2002). In this article, the authors briefly review the general literature regarding dual relationships and offer the reader guidelines in applying an ethically based, risk-managed, decision-making model that could be helpful when a practitioner is considering entering into such relationships or when such relationships inadvertently develop.

The entire article is here, behind a paywall.

The authors ask many great questions from a risk management perspective.

Not All Multiple Relationships are Created Equal

By Ofer Zur
Independent Practitioner, 34/1, 15-22. 2014.

Introduction

Most mental health professionals have attended risk management and ethics workshops where one of the central messages was the dire warning that multiple relationships are generally unethical, inherently harmful, mostly prohibited, and should be avoided.  While the term "unethical" is thrown about liberally when it comes to multiple relationships, the fact is that none of the major professional organizations' codes of ethics prohibit all forms of dual or multiple relationships.

The entire article is here.

In Bed with our Clients: Should Psychotherapists Play Matchmaker or is this Plain Old Erotic Transference?

By Keely Kolmes, PsyD.
http://drkkolmes.com

Last January, there was an opinion piece in the New York Times, written by Richard Friedman on whether therapists should play Cupid for clients, basically performing as a matchmaker, setting them up on dates. The article focused primarily on the fantasies that some clinicians have about wanting to do this and the potential issues that could come up regarding transference. It did not speak directly to erotic transference, but I think this is a key component of such a question.

Following the article, HuffPost Live did a segment on which I was one of four guests interviewed about our points of view on the issue. As expected, the show included diverse opinions and even had the one clinician, Terah Harrison, who has expanded her practice to include matching services.

Another clinician, Dr. Lazarus, argued passionately that we are "uniquely well positioned" to make such matchmaking recommendations to our clients. Jeff Sumber agreed it was unethical but he admitted to having such strong fantasies about fixing up his clients that he'd deliberately scheduled people in hopes they might meet. (I imagine his clients are now wondering as they arrive for therapy if the person leaving is someone he has chosen for them?)

Guess which role I played on this segment? Yes, I was the conservative fuddy-duddy talking ethics, dual relationships, and risk management.

The entire story is here.

Jodi Arias Trial - Teachable Moments

Dr. Samuels's Testimony on his evaluation of Jodi Arias. Witness for the Defense


Dr. DeMarte's Testimony on her evaluation of Jodi Arias.  Witness for the Prosecution.



The YouTube video can be found here.

There are quite a few teachable moments in both of these videos.

Thanks to Gary Schoener for these links.

Vignette 17: Titles, Roles and Boundaries

Dr. Thomas is a psychologist who is a part owner of a private practice in which they offer Employee Assistance Program (EAP) services.  The EAP service provides a solution-focused, three-session benefit for companies within Pennsylvania.  Dr. Thomas normally does not handle EAP services. Several staff members were either ill or overbooked, so Dr. Thomas responds to EAP requests during the day.

When dealing with the EAP program, she thinks her title of “doctor” might put people off, so she announces herself as “Sue” when dealing with EAP clients.  When returning a call from Chuck who works for a company with the EAP benefit, the psychologist indicates that she is "Sue" from the EAP program.  Chuck is a 20-year old man who immediately expresses a great deal of agitation and anger. He complains loudly about his parents and his girlfriend. In the process of conversation, Dr. Thomas realizes that Chuck is the son of her next-door neighbors.  While Chuck now lives in an apartment in town, she remembers him well.  She actually attended his graduation party briefly and hired him to cut her lawn for two years.

Also during the course of the phone contact, Chuck expresses some homicidal rage toward his parents, particularly around financial issues and early childhood sexual abuse from his father. Dr. Thomas wants him to come in immediately for a more in-depth evaluation. Chuck hesitated to have a face-to-face interview at the practice, but agreed only if he can talk with Sue.  Sue schedules the appointment for early in the evening.

What are the ethical concerns in this scenario?

How would you advise Dr. Thomas to handle them?

If you were a co-owner of the business, how would you feel about this situation?

Vignette 9: Psychologist as Character Witness?

A psychologist receives a phone message from a former patient.  The former patient is asking for the psychologist to be a “character witness” as he has an upcoming hearing for a minor criminal offense. His attorney believes that some good, written character references will really help out with the case.

The psychologist pulls the former patient’s chart.  The psychologist has not worked with the patient for about two years. Additionally, none of the treatment issues had to do with impulse control or antisocial tendencies. Therapy lasted about a year and focused on depression and relationship issues. The psychologist recalls that the patient had always been good-natured, attended appointments regularly, and worked well in therapy.  The psychologist remembers the former patient as a likeable person.

How would you feel about receiving this request?

What ethical issues are involved?

What are your potential options?

If you decide to provide information, would you consider communicating with the prior patient’s attorney?  What would you need from the attorney?

Ethics and the Invisible Psychologist

Ethics and the Invisible Psychologist

This article can be found in the public domain here.