Therapists in Court

Providing Evidence and Supporting Witnesses

Tim Bond, Amanpreet Sandhu

• Publisher: SAGE Publications Ltd
• Year: 2005
• Print ISBN: 9781412912686, 9781412912679
• eBook ISBN: 9781446239070
• Edition: 1
• Topic: Psychology
• Subtopic: History & Theory in Psychology
• Index: Psychology

`A recent SAGE Publication called Therapists in Court provides invaluable, step-by-step guidance to mental health practitioners in the UK. Even though different countries use different legal systems, many issues faced in the legal domain are based on the principle of protecting the rights of both parties and balancing often competing roles. Despite its base in the UK legal system, Therpists in Court provides essential advice on many of these issues for all mental health practitioners, regardless of their location? - New Therapist

`[Therapists in Court] spells out very clearly the vastly different worlds of therapy and the courts. Detailed and careful preparation is advised although not offered by the courts to the uninitiated. There are many examples given of typical Initial Statements; Disclosure Documents; and several different Court Reports which may be requested under different circumstances. This is a user-friendly handbook that one can use to get an initial overview of the likely legal scenarios therapists may experience, and which can be used for more detailed study if and when the need arises. Tim Bond and Amanpreet Sandhu provide therapists with a useful reference in which the legal process as it may apply to themselves and/or their clients becomes more easily understood? - Eisteach

?This book fills an important gap in the literature and will I hope remain in print long term, with appropriate amendments and revisions. It should be read by any therapist whose client is or may be involved in court proceedings, civil or criminal, as witness, plaintiff or defendant: that is, by all therapists of any discipline. It will be essential reading for trainees. I wish it had been around when I was learning my job? - Dr Jean Harris - Hendriks, Honorary Senior Lecturer and Consultant in Child and Adolescent Psychiatry, Traumatic Stress Clinic, London

`Therapists in Court provides a clear and useful summary of what to do when faced with legal processes and will be extremely helpful both to counsellors called to provide evidence in court and to lawyers who wish to refer their clients for support during the legal process or afterwards´ - Sarah J Head, Client Support Manager, Alexander Harris Solicitors

`It is extraordinary that no such work already exists. I predict that Therapists in Court will become not just useful but indispensable to all practitioners, not least because of the accessible and jargon-free language in which the law is conveyed. Ultimately, clients will be the beneficiaries of a better informed profession´ - Marcel Berlins, Barrister, Author of The Law Machine, Media Law Module Leader at City University London, and Guardian Legal Correspondant

?It often happens that lawyers get frustrated trying to find the answer to a point of law in their textbooks. Therapist need have no such worries! When trying to find out how the courts of law may affect them in their work, they will find it all here - in a comprehensive and very readable account of what is involved. Here is all you ever wanted to know about the courts but were afraid to ask!? - Sheriff Nigel Thomas CBE

`So many therapy books contain too much padding with references to other published work that is already familiar. The reader has to work hard to ?extract the gold from the dross?. This title is not one of these. Your review read the whole book through in one sitting because of the clarity of the writing and logical sequence. I wanted to know what to do next. Bearing in mind that this is about legal matters, it may be described as ?un-putdownable? - Play for Life

Therapists in Court is the first in a series of handbooks providing legal guidance for practitioners from all the talking therapies, including counselling, psychotherapy and psychology. For many practitioners, becoming involved in a court case is a frightening and disturbing experience. The tone of legal letters and the adversarial atmosphere of a courtroom is very different from their usual working environment.

Providing clear practical guidance backed up with illuminating examples, the book is an invaluable source of information in situations such as:

o responding to a solicitor?s letter

o supporting a witness in their preparation to appear in court

o being called as a witness.

Part One

Therapists entering the legal process

1	Solicitor Letters

The sight of an official-looking envelope from a solicitor peering out from under a pile of junk mail is enough to instil a sense of fear and trepidation among most therapists. A common first reaction is to open the letter with the intention of complying fully with what is being requested. The solicitor headed paper, official tone of the contents, and the authoritative demands made, are all designed to play on the reader’s anxiety that any refusal to comply will mean some kind of legal reprimand or lead them to being hauled up in front of the judge. Lawyers know their letters can be intimidating to the lay person. They are not above using scare tactics in order to extract all the available information that will assist them with their client’s case. Lawyers often implicitly encourage the mistaken belief in therapists that they have no choice but to comply with their requests. The reality is somewhat different. Except in the limited circumstances discussed in this chapter, there is no overriding duty to respond or divulge any information at the mere request of a solicitor’s letter. Understanding the motives behind such letters and their function in the legal process will help you to avoid taking impulsive actions when responding to a solicitor’s letter. This chapter encourages you to take a step back and consider all the relevant factors before responding.

There are three situations in which a therapist could receive a letter from a solicitor:

1. Where the client intends to take action against a third party: Anne is suffering from post-traumatic stress disorder as a result of experiencing sexual harassment at work and would like her therapist to disclose notes for the purpose of bringing an action against her employers.
2. Where the third party intends to take action against the client. This is most likely to occur where the police are in the process of conducting an investigation: The police have been investigating Anne for some time and believe she may have sold some of her assets for the purpose of financing a terrorist act. The police will want disclosure from the therapist in pursuit of their investigation.
3. Where the client intends to take action against the therapist: Anne believes that her therapist has not offered her the correct therapeutic treatment and that her health has deteriorated even more as a direct consequence of this. She is bringing an action in professional negligence against her therapist.

The most frequent source of correspondence concerns the first of these situations and is therefore considered first within this chapter.

Responding to a letter where a client intends to take action against a third party

This is perhaps one of the most common ways in which a therapist will come into contact with the law. For example, they may have been counselling a client suffering from post-traumatic stress following a road traffic accident. It is quite probable in such cases that the client will be pursuing a claim for injury and his or her solicitor may contact the therapist for any relevant information in support of such a claim. Sometimes the therapist will have been alerted to this possibility by the client themselves who will often disclose that they are considering suing an individual who has caused them harm. However, these letters can arise unexpectedly, particularly in relation to former clients. Many solicitors use a standard format for these letters. The following is a typical example:

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Dear Ms Offer

Re: Ann Bloggs

We are instructed by our above-named client whom we understand is a client at your practice.
We are preparing our client’s claim for personal injury arising out of an accident that occurred on 15 October 2004.
We should be grateful if you would supply us with a complete copy of your client notes and records.
We are of course prepared to pay your reasonable charges in accordance with the Data Protection Act (Subject Access) (Fees 7 Miscellaneous Provision) Regulations.
Please find enclosed a copy of our client’s signed medical authority form. You will note that no proceedings are contemplated against your practice or against the health authority.

We look forward to hearing from you.

Yours sincerely

Mills & Sterling Solicitors

However the letter is worded it will usually include a statement and evidence that the request is being made with the client’s permission. This is intended to reassure the therapist that the request is being made with the client’s knowledge and full support, in order to alleviate any concerns over confidentiality. However, it is not unreasonable for the therapist to contact the client to ensure that they understand the implications of this request and that they are giving full and informed consent.

There is also usually reference to the Data Protection Act 1998. This reference is commonly used to inform the therapist that the client is legally entitled to the information and that the therapist has a legal obligation to provide it. This was widely accepted as good law until a recent development in common law. The distinctive feature of the 1998 legislation had been to extend data protection principles from electronic records to all types of records including manual records, such as case notes. The current state of the law is more complex than this, following Durant v. Financial Services Authority 2003. The practical implications of these recent legal developments are that the client’s right to insist on access to his or her records is currently restricted to those that are held electronically or have been made on behalf of a public service, such as education, health and social services (Freedom of Information Act 2000). Clients who have been receiving services in any other context no longer have a legal entitlement to their handwritten records. In the absence of any legal duty to disclose records to clients, therapists are entitled to use their own judgement in deciding whether to disclose records in response to this type of letter. This is fundamentally an ethical decision to be made in accordance with the ethical principles that inform your work.

The precise content of a letter from the solicitor can vary considerably. The second example illustrates how important it is to read the letter carefully:

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Accident: Ann Bloggs on 15 October 2004

We act for the above-named Client in connection with a claim for compensation for personal injuries and financial loss suffered as a result of an accident, which occurred on the aforesaid date.
We would be grateful if you could forward to us, as soon as possible, our Client’s counselling records or copies of the same and we enclose a Form of Authority authorising disclosure of the above documents.
Please note that we confirm that we shall pay your reasonable administration/photocopying charges.

Yours faithfully

Mills & Sterling Solicitors

The significant features of this letter are firstly, there is no statement or evidence that the request for information has been initiated at the client’s request. A conscientious therapist would certainly want to clarify this issue with the solicitor and most probably the client before making any decision on how to respond. Secondly, there is no explicit or implicit reference to any legal obligation to provide information. The wording and tone of the letter suggest that the decision about how to respond rests with the therapist.

How should therapists deal with the initial contact from a solicitor?

It is good practice for therapists to give careful consideration to any request for information from a solicitor. Where the first contact is by telephone, it is reasonable to ask the solicitor to put his or her request in writing, unless the solicitor is following up something that you have already agreed with your client to your own satisfaction. If the therapist is satisfied that there is no legal obligation to provide this information, they may simply ignore the request or perhaps, more professionally, simply respond stating that they do not intend to supply the requested information. In some instances the information may have already been destroyed as part of good data protection practice. Where this is the case the solicitor should be informed that these records no longer exist. In some instances no records will have been made and again the solicitor should be informed.

Where the therapist is uncertain about either their legal obligations or how best to respond to the initial letter, it is quite reasonable to ask for further information.

Making a request for further information

Therapists can in effect ‘turn the tables’ on the solicitor, by asking the solicitor to provide further or full information in support of the request for information. They can request any of the following, which has not been provided adequately in the original request:

• Confirmation and proof that the client has authorised disclosure of requested information.
• Details of the solicitors making the request and who they are representing.
• Precise details of what information they are asking to be disclosed.
• Why they are asking for disclosure of the information.
• Within what time scales the information is required.
• What assurances can be given about any subsequent use of the information provided.

When all relevant information has been obtained from the solicitor, the therapist is then in a position to make an informed decision about the next steps to take. The therapist is also able to demonstrate that proper care has been taken and that any decision regarding disclosure has been made conscientiously. The opportunity to obtain further information is sometimes restricted by the solicitor’s willingness or ability to respond to the therapist’s questions. In this case, the therapist is faced with making a decision on the available evidence or, if the matter is of such fundamental concern, refusing to make a decision until the information is provided. There have been instances where the initial request for information has been made at extremely short notice, for example within three days of a court or tribunal hearing. In these circumstances the therapist may wish to obtain the additional information by telephone, to be confirmed later in writing, in order to make an adequately informed decision. Where the therapist is feeling unduly pressurised, either by the demanding, authoritative tone of a letter or by the pressure of short time limits, it is advisable to obtain independent legal and/or professional advice. Obtaining independent advice is widely accepted as good practice before responding to any request for information, unless the therapist is satisfied about the basis for the request. It is virtually impossible to retrieve information once it is disclosed, so this decision is critical both to the therapeutic relationship and to the legal proceedings.

How do some therapists respond to a typical request from a solicitor?

In order to establish how some therapists would respond to requests from solicitors about their clients, a typical case scenario was developed by Caroline Jones as part of a regular feature of the Counselling and Psychotherapy Journal (CPJ) produced by BACP (Bond et al., 2001: 6–8). Although the original article suggested three different ways to respond to the request from the solicitors, the response in the example below has been adapted to provide a single, all-encompassing approach to the example at hand. The response is tailored to the specific scenario. However, there are also some general principles relating to responding to a solicitor’s letter, which therapists can take away with them.

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John came for counselling with Maria several months after he experienced a traumatic incident at work. Since the incident he has been on sick leave and is being treated by his GP for anxiety and depression. The symptoms he presented include flashbacks, nightmares, lack of confidence, withdrawal from his social network and increased smoking and drinking – all symptoms associated with post-traumatic stress disorder. After a number of sessions, which John is finding helpful, he informs Maria that he is suing his employers. Shortly before the next session Maria receives a letter from his solicitors requesting that she passes her complete, original case file to them to assist in the case. Written consent from John is enclosed with the request.

Maria’s primary concern is working with John to help him overcome the trauma as quickly as possible. Whether or not John expressed an intention to sue for damages, she needs to be mindful of this possibility from the outset and consider raising it at an appropriate point in their counselling sessions. Although it would be ideal for their work to continue independently of any legal proceedings, it would be unrealistic to assume that this would be the case. Current legal practice places great emphasis on disclosure of all potentially relevant evidence in civil proceedings of this kind, in the interests of enhancing justice for everyone involved in the case.

Upon receiving the letter from the solicitor, Maria should not panic. First and foremost she needs to consider the request against the ethical principles that guide her practice. These requests often raise complex issues, which may be about trust, respecting the client’s autonomy, promoting the client’s well-being, avoiding harm to the client, providing justice and the therapist’s own entitlement to self-respect. Maria may also want to consider the implications for herself in terms of the potential risks of complying or refusing to comply with the request. However, in relation to the client’s interests, these considerations would often be secondary to the decision-making process. Bearing all of this in mind, Maria then needs to give careful consideration to the request in order to decide what action will be the most help...

Table of contents

• Cover Page
• Title
• Copyright
• Contents
• Preface
• Acknowledgements
• Introduction
• PART I Therapists entering the legal process
• PART II Working with clients involved in the law
• Glossary
• References
• Index