Vignette:

Your are psychologist in private practice and have been working

in therapy with a client whose complaints include anxiety and

depression attributed to a variety of problems including

dissatisfaction at work, problems in her marriage, and unresolved

anger toward family members for events that occurred long ago.

During the fourth month of therapy you receive a call from an

attorney who reports that she is representing the client in a

lawsuit against her employer, alleging that the client has been

the victim of sexual harassment and a hostile work environment,

resulting in emotional disability. The lawyer advises that, as a

mental health professional intimately knowledgeable about her

client's mental condition, she intends to call you as a expert

witness in the upcoming trial in civil court. She inquires about

your hourly fee for forensic evaluation and expert testimony, and

then asks you to conduct whatever additional evaluations are

needed to prepare for court. She also indicates that she will ask

you to testify about the client's diagnosis, treatment and

adjustment. The attorney advises that she has already informed

your client of this possibility; a faxed release that you receive

later in the afternoon confirms that your client is agreeable to

this. What should you do? ____________ ____________ Randy K.

Otto, Ph.D. Department of Mental Health Law and Policy Florida

Mental Health Institute University of South Florida 13301 N.

Bruce B. Downs Blvd. Tampa, Florida 33612 (813) 974 9296

otto@hal.fmhi.usf.edu

Response:

I am basing my response on both the Specialty Guidelines for

Forensic Psychologists (SGFP) and the most recent Ethical

Principles for Psychologists and Code of Conduct (EPPCC).

Obviously, the opinion given here represents my own view and

should not be construed as an official interpretation of the

SGFP, nor of the EPPCC.

This situation bears most directly on the problem of dual-

role relationships, although other facets of the ethics codes and

guidelines are also involved. The EPPCC sections 7.02 [Forensic

assessments], 7.03 [Clarification of role] and 7.05 [Prior

relationships] are directly applicable to this vignette, as are

the (roughly) corresponding sections of the Specialty Guidelines

--IV-D [Dual roles], VI [Methods and procedures].

First for the easy part. No particular problems with

respect to confidentiality exist in that the client has

explicitly waived her privilege [EPPCC 5.05, Disclosures].

However, the therapist should discuss this matter with the client

and not rely solely upon the patient's lawyer to have adequately

informed the client of what sorts of information would be

disclosed at trial. That is, the informed consent obtain at the

start of therapy would not ordinarily have included this sort of

information, and the therapist should ensure that the client

fully understands the nature of the personal disclosures that

would be entailed by her testifying [SGFP sections IV-E, and V,

as well as corresponding sections of EPPCC].

Now for the hard part. In my view, the therapist cannot

agree to become an "expert" witness in this case. While she may

have detailed professional information about the client's

"diagnosis, treatment and adjustment," this information was

obtained in the context of a therapeutic relationship, not in the

context of an independent and neutral evaluation of the client's

response to the alleged sexual harassment. Thus, according to

the EPPCC [7.05], the therapist may testify as a "fact witness,"

conveying her professional information as to diagnosis, treatment

progress and the like, but she should not agree to offer "expert"

testimony on the underlying psycholegal issue, namely, the

causative connection between the alleged harassment and any

"emotional harm." Clearly, the therapist is in a professional

position to offer the former sort of testimony, but should make

clear [SGFP III-B, Boundaries of Competence; EPPCC 7.02, Forensic

assessments] that she did not undertake, in the course of

diagnosing and treating this client, the kind of psycholegal

assessment that would be required to address the causation-harm

issues. That is, the sort of expert testimony requested would,

in my view, require an analysis of the client's level of

emotional adjustment prior to the alleged sexual harassment as

well as an analysis of her emotional state during and consequent

to that harassment. In performing such an analysis competently

and independently, a forensic examiner would ordinarily rely upon

data from prior records as well as interviews of a number of

third parties, and would not base her findings soley upon the

self-report of the client. This is a very different data base

than that to which the therapist would have access. In addition,

the therapist's pre-existing relationship with the client would

constitute a dual-role which would make it difficult, if not

impossible, for her to assume the "neutral" role (and to gather

that "additional information") having already formed a

therapeutic role relationship with the client.

Hence, I see this vignette as primarily involving problems

of dual roles, which in turn raise issues about the adequacy of

the assessment. In my view, the therapist can testify as a

"fact" witness, but not as an "expert." If she has performed an

adequate assessment of her client prior to and during their

therapeutic relationship, she can greatly assist her client, but

she does not have either the objectivity nor the data that would

be required for her to agree to change from the role of therapist

to expert.