Ethical and Legal Issues for Mental Health Professionals

in Forensic Settings

Steven F Bucky, Joanne E Callan, George Stricker, Steven F Bucky, Joanne E Callan, George Stricker

• Publisher: Routledge
• Year: 2011
• eBook ISBN: 9781136915499
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

Get crucial ethical and clinical knowledge as it relates to the legal system

Ethical and Legal Issues for Mental Health Professionals: in Forensic Settings comprehensively focuses on the integration of ethical, legal, and clinical issues for practicing mental health professionals dealing with legal processes in forensic settings. This unique text is organized around the most current ethical and legal standards as defined by the mental health professionals of psychology, social work, marriage and family therapy, and psychiatry. Respected well-known authorities with diverse backgrounds, expertise, and professional experience offer a far-reaching discussion of ethical and legal issues important for every mental health professional to know.

Practicing clinicians increasingly find themselves needing to deal with the legal system about a multitude of issues. Ethical and Legal Issues for Mental Health Professionals: in Forensic Settings not only presents mental health professionals, but also attorneys who defend mental health professionals providing legal and ethical discussions of importance to the field. This powerful resource provides up-to-date crucial knowledge for graduate students and clinicians alike. The final book in the three volume series will focus on special populations/special treatment modalities.

Topics in Ethical and Legal Issues for Mental Health Professionals: in Forensic Settings include:

• the discovery process
• depositions
• personal injury evaluations
• various types of witness preparation for court testimony
• psychological evaluations
• juvenile court dependency
• forensic evaluations
• dealing with litigation with civil lawsuits
• tests that relate to false memories of trauma
• APA's Ethics Committee process and State Ethics Committees processes

Ethical and Legal Issues for Mental Health Professionals: in Forensic Settings is an essential text for all mental health professionals, including psychologists, psychiatrists, social workers, counselors, therapists, and graduate students in mental health and related fields.

1

Introduction

Steven F. Bucky

This is a companion volume to the editors’ earlier handbook, focusing as did its predecessor on the integration of ethical, legal, and clinical issues for mental health professionals (MHPs). It was written for practicing clinicians who increasingly find themselves in processes that involve the legal system. The goal of this volume is to help the clinician integrate ethical, legal, and clinical material as it relates to forensic settings and processes.

It is worth noting that forensic issues are of increasing interest to new students committed to becoming licensed MHPs. For example, incoming students at the first editor’s institution, the California School of Professional Psychology at Alliant International University, frequently ask for special training practica, internships, and supervision on forensic issues. These issues are also clearly of interest to students at Alliant’s other campuses, where a relatively new Forensic Center has been established.

MHPs are generally held to a very high standard when involved in the legal process; thus, skill in courtroom processes is required, and attention to relevant ethical issues is of particular importance for MHPs who are associated with the forensic arena. There is also increased vulnerability to ethics and licensing board complaints and civil lawsuits. For example, the fastest-growing type of licensing board complaint is against MHPs who are professionally involved in child custody evaluations (see Gold, chapter 6 in this volume).

The goal of this book is to keep current with legal and ethical guidelines and principles, especially in light of recent revisions to ethics codes and changes to statutes and legal precedents (e.g., the extension of the Tarasoff ruling as a result of Ewing v. Goldstein, an appeals case decided in 2004). The reader should bear in mind that a code of ethics applies to all members of a particular professional organization (e.g., American Psychological Association, American Association for Marriage and Family Therapy, National Association of Social Workers), and that laws and forensic practices are specific to geographic locations. To function competently, the MHP must integrate rules, regulations, laws, and guidelines and apply them in cautious, justifiable, and legally and ethically sound ways in the courtroom. The quality of professional judgments and professional practices and the perception of objectivity, fairness, and balance are high priorities in clinical practice in general and are of even greater importance in the MHP’s forensic activities. Additional principles worth noting include such issues as basing decisions on the scientific foundations of the profession and arriving at judgments and recommendations that are clearly described and supported by the evidence and research.

The Organization of this Volume

This volume is organized in three parts. Part I addresses issues that are specific to court situations. In chapter 2, Donald Bersoff describes the nature and purpose of depositions. Depositions are seen as part of the discovery process that helps to determine the outcome of the action that has been brought. Oral depositions are described, and specific advice is given as to how best to approach a deposition. In chapter 3, David Stein addresses the role of psychologists involved in personal injury litigation. Issues related to assessment, interpretation, and report writing are discussed, and trial preparation, testimony, and posttrial considerations are outlined. Pamela Thatcher then discusses specific aspects of preparation and testimony for psychologists who are called to testify as a percipient witness or an expert witness (see chapter 4).

Part II of the book addresses issues that are related to forensic assessments and techniques. In chapter 5, Arthur Wiens and Reed Mueller describe how to complete and use a psychological evaluation in an ethical and socially responsible manner and suggest strategies for minimizing the probability of ethical violations. In chapter 6, already touched on, Russ Gold addresses issues commonly at the center of lawsuits and formal complaints arising out of child custody work. The evaluation process in child custody cases is discussed, with special attention placed on the need to maintain objectivity throughout the evaluation process by asserting appropriate boundaries. Margaret Lee then discusses acting as a special master in high-conflict postdivorce child custody cases (see chapter 7). In chapter 8, Richard Romanoff describes conducting criminal forensic evaluations and the ethical considerations in performing these assessments.

Part III of the book addresses issues that are specific to mental health professionals and litigation. In chapter 9, O. Brandt Caudill discusses the various forms of litigation that mental health professionals may find themselves facing and how these different types of litigation can be quantified. Margaret Bogie and Eric Marine describe the life cycle of a professional liability claim, historical claims data, and future trends in professional liability litigation and their expected impact on claims (see chapter 10). In chapter 11, Constance Dalenberg, Eve Carlson, and O. Brandt Caudill discuss the acceptance or lack of acceptance regarding the existence of recovered memories and the recovered memory experience and accuracy, emphasizing the importance of an unbiased assessment. Finally, Julia Ramos Grenier and Muriel Golub discuss the ethics complaint procedure for the American Psychological Association and the structure and functioning of a state ethics committee (see chapter 12).

Reference

Ewing v. Goldstein, 120 Cal.App.4th 807 (2004).

Section I

The Mental Health Professional and the Legal System: Court Situations

The first part of this book takes up a variety of issues related to the mental health professional’s interactions with the legal system, concluding with the various court situations that can occur for the practitioner. More specifically, depositions, personal injury cases, and preparation for court testimony are described in detail. Although depositions can take many forms, only oral depositions are discussed. Specific advice is given regarding how best to approach a deposition. In personal injury cases, psychologists may be called as consultants, experts, or percipient witnesses, the last because of an ongoing relationship with the client. Examples are given of appropriate behavior in each of those roles. A mental health professional called to testify may function as a percipient witness or as an expert witness. Differences between depositions and trial testimony are described. Consultation with the attorney is an important part of preparation for testimony, and specific aspects of preparation and testimony are described.

2

Depositions

Discovery, Procedures, and Practice Pointers

Donald N. Bersoff

Introduction

Litigation and trials are not synonymous. It is unlikely that a civil case filed in a federal or state court will be heard in a trial setting.¹ The case may be dismissed early on for technical legal reasons (e.g., the case was brought in the wrong jurisdiction) or because the plaintiff made a claim the law does not recognize. If the case survives such early challenges, the judge can still render a decision without a trial (i.e., summary judgment) if the court concludes that both sides agree to the central facts and the case can be decided as a matter of law. And, of course, a case may be ended before trial if the opposing parties decide that a settlement is in their best interests.

The vehicle that helps determine whether a civil case should go to trial or be terminated sooner is the process of “discovery.”² Every state government and the federal government have developed rules for engaging in, controlling, and enforcing discovery in civil litigation.³

Nature and Purposes of Depositions

Civil trials are specifically designed to avoid surprise. Before trial, each side is entitled to know almost everything about the other side’s case, both its strengths and its weaknesses. That knowledge is gleaned through discovery. There are at least seven methods for obtaining discovery: (a) oral depositions; (b) written depositions; (c) written interrogatories (i.e., questions propounded by the other side that must be answered in writing by the parties to whom they are addressed); (d) requests for the production of documents or things; (e) requests for permission to enter on land or property; (f) requests for a physical or mental examination of parties; and (g) request for admissions. This chapter is limited to a discussion of oral depositions, a process in which attorneys for one of the parties interrogates under oath potential witnesses, including expert witnesses, who may testify for the opposing parties.

The overarching purposes of an oral deposition can perhaps be best characterized as defensive and offensive (Suplee & Donaldson, 1988). From a defensive perspective, the opposition uses the deposition to fully educate itself about the other side’s case, asking more and more detailed questions “to squeeze the witness dry of all relevant information” (Suplee, 1982, p. 266). In this way, the experienced interrogator learns all the opposing witnesses know and, in the case of experts, what their opinions will be and what facts they have relied on to arrive at those opinions. This legitimate search for evidence permits the attorney to evaluate the strengths and weaknesses of the respective positions of the parties, seek a settlement if that appears warranted from the deposition testimony, or be better able to confront and counter the deponents’ testimony should the case ever come to trial. In addition, should one or more of the witnesses whose depositions have been taken become unavailable through death, illness, or unavoidable scheduling conflicts, the deponents’ testimony is preserved, and relevant portions of the deposition may be read at trial.

From an offensive perspective, the opposition seeks to use deposition testimony against the witness at trial. Because depositions are taken under oath, they can be powerful weapons for attacking the credibility and reliability of witnesses, particularly when statements they make during the deposition are at odds with statements made during trial. Witnesses can then be confronted during cross-examination by this conflicting testimony. Similarly, opposing attorneys can use depositions to create conflicts at trial between deponents’ testimony and that of other experts or witnesses. Finally, the deposition may be used to support a motion for summary judgment if all the testimony discloses that there are no material factual issues in dispute.

The Scope of Discovery

The scope of discovery, including depositions, is very broad. Most of the rules of evidence that control the introduction of evidence in a courtroom do not pertain during a deposition. In trial, only relevant evidence testified to by a competent witness and otherwise comporting with the rules of evidence is admissible. Evidence is relevant if a logical connection exists between the evidence and the proposition for which it is offered, that is, if it has the tendency to make the existence of a material fact more probable or less probable than it would be without the evidence.

Under the Federal Rules of Civil Procedure (1996), information may be acquired during discovery that does not necessarily conform to the rules of evidence that control at trial:

Parties may obtain discovery regarding any nonpriviledged matter that is relevant to the claim or defense of any party–including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Rule 26(b), pp. 144–145. (emphasis added)

Because of the breadth of discovery, interrogators can ask deponents questions in a deposition they could not in a courtroom. Such questions can include inquiries about personal matters or about statements that would fall within the proscription of the hearsay rule in court.⁴ Although some of these questions may be objected to and forbidden if asked at trial, it may be perfectly permissible to ask them in a deposition and to require the deponent to respond.

Deposition Procedures

Although they are legal proceedings and conducted in conformity with formal rules of procedure, depositions do not take place in courtrooms. They are almost always held in the offices of the opposing lawyer,⁵ although some state courts require that depositions be held at the local courthouse. Those who attend depositions include the person whose deposition is being taken (e.g., an expert witness or one of the parties to the suit) and the attorney who is conducting the deposition, as well as lawyers for all the parties in the lawsuit, the parties themselves if they so wish, a notary public, and a court reporter who records the entire deposition verbatim, although the last two roles are usually filled by the same person.

Depositions are scheduled by serving notice on the intended deponent [Federal Rules, 1996, Rule 30(b)(1), pp. 72–73]. Such notice must include not only the name and address of the deponent but also the date, time, and place of the deposition as well as the method by which the testimony will be recorded [Rule 30(b)(2), p. 73]. If the deponent is a party to the litigation, serving the notice is enough to require compliance. If the deponent is not a party but, for example, an expert, the notice is accompanied by a subpoena ordering the deponent’s presence. The notice may be attached to a subpoena duces tecum, which is essentially a request that certain documents designated in the subpoena be produced at the deposition. For example, an expert who will be deposed may be asked to bring a copy of his or her curriculum vitae, the test protocols completed by the party/patient, and notes taken during the patient’s psychological assessment or therapy.

In the typical deposition, the attendees sit around a conference table. The deponent and his or her attorney sit on one side of the long edge of the table and the opposing attorney on the other side, with the court reporter in the middle, at the short end of the table. The parties, if they attend, sit with their respective representatives. Neither the judge who may ultimately hear the case nor a jury is at the deposition.

The atmosphere at a deposition is deceptively informal. The law firm at whose offices the deposition is taken will supply coffee and soft drinks, and the lawyers may engage in what looks like collegial banter. Everything that the deponent says, however, even in a light moment, in the restroom, or during a break may find itself eventually recorded in the transcript of the deposition, to the horror and chagrin of the unwary deponent. Take the following example: An expert witness who is being deposed finds himself in the men’s room with the opposing attorney. At the wash basin, the expert offhandedly remarks that he wishes he was as positive about his opinion as he was told to sound during his deposition testimony. The attorney makes some jocular rejoinder, but when he gets back to the conference table and the deposition proper is resumed, the lawyer asks the expert to repeat for the stenographic, sworn record what he said in the men’s room about the strength of his opinion. Thus, it is often a crucial mistake for the deponent to treat the deposition frivolously. Depositions are often of consequential, if not vital, significance. They are considered the most important of all the pretrial discovery mechanisms, and despite the apparent demeanor of the actors, depositions should be accorded the utmost solemnity.

The first formal event that occurs at a deposition is the taking of the oath, administered by the notary public/court reporter. This ritual serves to solemnize the proceeding. The examination by opposing counsel then begins. Depositions are most usually recorded stenographically by a court reporter, but at the instigation of the party taking the deposition, it may be recorded by audiotape or videotape. In those cases, however, the federal rules warn that the appearance or demeanor of the deponents or attorneys cannot be distorted through audio or videotaping (Federal Rules, 1996, Rule 30[b][4], p. 73).

Deponents are required to answer all questions, even those they may consider objectionable or intrusive. The lawyer representing the deponent may have a legitimate cause to object if a particular question were asked at trial, but given the broad scope of discovery and the different evidentiary rules that govern it, there are many fewer bases for objecting to the opponent’s questions. The attorney representing the deponent may lodge objections for the record and at times may be compelled to object if he or she wishes to preclude the use of inadmissible testimony at trial. Nevertheless, the deponent must answer the question during the deposition.

There are times when the lawyer representing the deponent will instruct the deponent not to answer, but that occurs infrequently. Certain testimony may be protected by one of the recognized privileges (e.g., attorney-client or psychotherapist-...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Acknowledgments
• Editors
• Assistant Editor
• 1. Introduction
• Section I: The Mental Health Professional and the Legal System: Court Situations
• Section II: Forensic Assessment and Techniques
• Section III: Mental Health Professionals and Litigation
• Glossary
• Index
• The Contributors