Irreconcilable Conflict Between Therapeutic and Forensic Roles
Stuart A. Greenberg
University of Washington
Daniel W. Shuman
Southern Methodist University
Despite being contrary to good patient care and existing clinical and
forensic practice guidelines, some therapists nevertheless engage in
dual clinical and forensic roles. Perhaps because an injured litigant
seeking treatment is required to engage in 2 distinct roles (litigant and
patient), care providers may be tempted to meet both sets of that
person's needs. Through the presentation of 10 principles that
underlie why combining these roles is conflicting and problematical,
the authors stress the importance of avoiding such conflicts, avoiding
the threat to the efficacy of therapy, avoiding the threat to the
accuracy of judicial determinations, and avoiding deception when
providing testimony.
With increasing frequency, psychologists, psychiatrists, and other mental health
professionals are participating as forensic experts in litigation on behalf of their patients.
Factors such as tightened insurance reimbursement rules, a growing market for forensic
mental health professionals, and zealous patient advocacy by therapists have combined to
induce many therapists, including those who once zealously avoided the judicial system,
to appear, often willingly, as forensic expert witnesses on behalf of their patients.
Although therapists’ concerns for their patients and for their own employment is
understandable, this practice constitutes engaging in dual-role relationships and often
leads to bad results for patients, courts, and clinicians.
Although there are explicit ethical precepts about psychologists and psychiatrists
engaging in these conflicting roles, they have not eliminated this conduct. One important
factor contributing to this continued conduct is that psychologists and psychiatrists have
not understood why these ethical precepts exist and how they affect the behavior of even
the most competent therapists. When the reasons for the ethical precepts are understood,
it is clear why no psychologist, psychiatrist, or other mental health professional is
immune from the concerns that underlie them.
This article contrasts the role of therapeutic clinician as care provider and the role of
forensic evaluator as expert to the court, acknowledges the temptation to engage in these
two roles in the same matter, explains the inherent problems and argues strongly against
doing so, and discusses the ethical precepts that discourage the undertaking of the dual
roles, as well as the legal and professional responses to this dilemma. The specific
problem addressed here is that of the psychologist or psychiatrist who provides clinical
assessment or therapy to a patient–litigant and who concurrently or subsequently attempts
to serve as a forensic expert for that patient in civil litigation.
Expert persons may testify as fact witnesses as well as either of two types of expert
witnesses: treating experts and forensic experts. No special expertise beyond the ability to
tell the court what is known from first-hand observation is required to be a fact witness.
Being an expert person, however, does not preclude one from simply providing to the
court first-hand observations in the role of a fact witness. What distinguishes expert
witnesses from fact witnesses is that expert witness have relevant specialized knowledge
beyond that of the average person that may qualify them to provide opinions, as well as
facts, to aid the court in reaching a just conclusion. Psychologists and psychiatrists who
provide patient care can usually qualify to testify as treating experts, in that they have the
specialized knowledge, not possessed by most individuals, to offer a clinical diagnosis
and prognosis. However, a role conflict arises when a treating therapist also attempts to
testify as a forensic expert addressing the psycholegal issues in the case (e.g.,
testamentary capacity, proximate cause of injury, parental capacity).
Although in the preceding description the therapeutic relationship occurs first and the
forensic role second, there are parallel concerns with the reverse sequence (i.e., the
subsequent provision of therapy by a psychologist or psychiatrist who previously
provided a forensic assessment of that litigant). There are also similar concerns about the
treating therapist's role in criminal litigation. However, this article will only address civil
litigation because the concerns and considerations arising in criminal litigation are
somewhat different, such as therapy provided under court order and the provision of
therapy and evaluation in forensic hospitals pending criminal responsibility or
competency to stand trial determinations.
Role Conflict
In most jurisdictions, a properly qualified therapist testifies as a fact witness for some
purposes, as he or she is expected to testify to information learned first hand in therapy,
and as an expert witness for some purposes, as he or she is permitted to testify to opinions
about mental disorder that a layperson would not be permitted to offer. Thus, a therapist
may, if requested to do so by a patient or ordered to do so by a court, properly testify to
facts, observations, and clinical opinions for which the therapy process provides a
trustworthy basis. This testimony may include the history as provided by a patient; the
clinical diagnosis; the care provided to a patient; the patient's response to that treatment;
the patient's prognosis; the mood, cognitions, or behavior of the patient at particular
times; and any other statements that the patient made in treatment. A therapist may
properly testify, for example, that Ms. Jones reported the history of a motor vehicle
accident (MVA) 2 weeks prior to the start of therapy and that the therapist observed the
patient to be bruised, bandaged, tearful, and extremely anxious. The therapist may
properly testify that he or she observed, and that Ms. Jones reported, symptoms that led to
a diagnosis of posttraumatic stress disorder (PTSD). The therapist may also describe the
particular type of treatment used, the patient's response to that treatment, and her
prognosis. The therapist may properly testify that the primary focus for the therapy was
the MVA, or the PTSD secondary to the MVA. The therapist may even properly testify
that, for treatment purposes, the operating assumption was that the MVA rather than her
impending divorce or recent job termination or the death of a family member was what
caused the patient's distress.
To be admissible, an expert opinion must be reliable and valid to a reasonable degree
of scientific certainty (a metric for scrutinizing the certainty of expert testimony as a
condition of its admissibility). It is improper for the therapist to offer an expert opinion
that the MVA was the proximate cause of her impairments rather than the divorce, job
termination, or bereavement. This is true for two reasons. First, the type and amount of
data routinely observed in therapy is rarely adequate to form a proper foundation to
determine the psycholegal (as opposed to the clinically assumed) cause of the litigant's
impairment, nor is therapy usually adequate to rule out other potential causes. Second,
such testimony engages the therapist in conflicting roles with the patient. Common
examples of this role conflict occur when a patient's therapist testifies to the psycholegal
issues that arise in competency, personal injury, worker's compensation, and custody
These concerns do not apply when the treating expert witness stays within the
boundaries of facts and opinions that can be reliably known by the treating professional.
Indeed, the treating therapist can be compelled to testify to information perceived during
the therapeutic process and to opinions previously formed for the purpose of therapy but
cannot be compelled to do a forensic examination or analysis (Shuman, 1983). Clinical,
ethical, and legal concerns arise when the treating expert offers psycholegal assessment—
an assessment for which the treating expert does not have adequate professional basis, for
which there are inherent role conflicts, and for which there will almost certainly be
negative implications for continued therapy.
The temptation to use therapists as forensic experts falls on fertile ground because
clinical psychology and psychiatry graduate students often do not receive adequate
training in forensic ethics. Although graduate training in ethics has vastly improved in
general, most graduate ethics courses teach clinicians in training about the dual roles that
most often get therapists in difficulties: mainly, sexual and other nonprofessional
relationships with patients. The legal arena is sufficiently foreign to most academicians
and their students that ethics training primarily focuses on licensing laws and ethical
codes for general practice. For example, few psychologists receive training in the
Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for
Forensic Psychologists, 1991) because few see themselves as forensic psychologists.
When these clinicians eventually testify in court, they see themselves as benignly telling
the court about their patients and perhaps even benevolently testifying on behalf of their
patients. Therapists are not typically trained to know that the rules of procedure, rules of
evidence, and the standard of proof is different for court room testimony than for clinical
The temptation to use therapists as forensic experts on behalf of patient–litigants
exists because of erroneous beliefs about efficiency, candor, neutrality, and expertise.
Using a therapist to provide forensic assessment appears efficient because the therapist
has already spent time with the patient and knows much about him or her that others are
yet to learn and not without substantial expenditures of time and money for an additional
evaluation. A therapist appears to gain candid information from a patient–litigant because
of the patient's assumed incentive to be candid with the therapist to receive effective
treatment. Although litigants may learn much about themselves as a consequence of
receiving thorough forensic evaluations (Finn & Tonsager, 1996), the same treatment
incentive does not exist in a forensic examination. Thus, the facts forming the basis for a
therapist's opinion may initially appear more accurate and complete than the facts that
could be gathered in a separate forensic assessment.
In addition, a therapist does not appear to be the attorney's hired gun who came into
the case solely to assist in advancing or defeating a legal claim or defense. Thus, a
therapist's forensic assessment may appear more neutral and less immediately subject to
financial incentives to reach a particular result than does a separate forensic evaluation.
And, it is sometimes assumed that if a therapist has the expertise to be trusted to treat the
condition for which a patient seeks compensation, surely the therapist has the expertise to
testify about it. Indeed, in many ways it would appear from this analysis that one would
have to be foolish not to have therapists also testify as forensic experts. Nevertheless,
examining the differences between the therapeutic and forensic relationships, process,
and expertise reveals that such foolishness is the mirror image of sensibility.
Ten Differences Between Therapeutic and Forensic Relationships
As can be seen from Table 1 , the therapeutic and forensic roles demand different and
inconsistent orientations and procedures (adapted from Greenberg & Moreland, 1995).
The superficial and perilous appeal of using a therapist as a forensic examiner is
debunked by examining the conceptual and practical differences between the therapist–
patient relationship and the forensic examiner–litigant relationship.
The first and perhaps most crucial difference between the roles is the identification of
whose client the patient–litigant is. As implied by the name, the patient–litigant has two
roles, one as therapy patient and another as plaintiff in the legal process. The patient–
litigant is the client of the therapist for the purposes of treatment. The patient–litigant is
as well the client of the attorney for guidance and representation through the legal
The nature of each relationship and the person who chooses to create it differs for
therapy and forensic evaluation. The therapist is ultimately answerable to the client, who
decides whether to use the services of a particular therapist; the forensic evaluator is
ultimately answerable to the attorney, or the court in the case of a court-appointed expert,
who decides whether to use the services of a particular forensic evaluator. The patient
retains the therapist for treatment. The attorney (or the court) retains the forensic
evaluator for litigation. This arrangement allows for the relationship that is most
straightforward and free of conflict of interest. It best protects the parties’ interests as well
as the integrity of the therapist and the forensic evaluator.
Second, the legal protection against compelled disclosure of the contents of a
therapist–patient relationship is governed by the therapist–patient privilege and can
usually only be waived by the patient or by court order. Society seeks to further the goal
of treatment through recognition of a privilege for confidential communications between
a therapist and patient in most jurisdictions under a physician, psychiatrist, psychologist,
or psychotherapist–patient privilege (Shuman & Weiner, 1987).
Legal protection against compelled disclosure of the contents of the forensic
evaluator–litigant relationship is governed by the attorney–client and attorney–workproduct
privileges. Because the purpose of a forensic relationship is litigation, not
treatment nor even diagnosis for the purpose of planning treatment, communications
between a forensic examiner and a litigant are not protected under a physician–,
psychiatrist–, psychologist–, or psychotherapist–patient privilege. The forensic evaluator,
however, having been retained by the attorney, is acting as an agent of the attorney in
evaluating the party or parties in the legal matter. This legal agency status puts the
forensic evaluator under the umbrella of the attorney–client privilege and usually protects
privileged information until such time that the evaluator is declared to be a witness at
trial. Until that time, most states, especially in civil matters, allow the attorney to prevent
access to that attorney's retained expert by opposing counsel, thus best protecting the
party's interest should the evaluator's independent opinion not favor the party of the
attorney who has retained him or her. Because it would not be a therapeutic relationship,
no such potential protection is available if the forensic evaluator were to be retained
directly by the party, thereby creating the onus of one's own expert who was hired to
evaluate some potential merit to the case instead being used to discredit the retaining
side. Because parties, through their attorneys, need to be able to evaluate the merits of
their case candidly without such jeopardy, the attorney–work-product privilege covers
such trial-preparation use of experts retained by counsel.
The main practice point to be made here is that the logic, the legal basis, and the rules
governing the privilege that applies to care providers are substantially different from
those that apply to forensic evaluators. Given this, the duty to inform forensic examinees
of the potential lack of privilege and the intended use of the examination product is
embodied in case law (Estelle v. Smith, 1981) and the Specialty Guidelines for Forensic
Psychologists (SGFP) adopted by the American Psychology–Law Society (APA Division
41) and the American Board of Forensic Psychology in 1991. The Specialty Guidelines
state the following:
Forensic psychologists have an obligation to ensure that prospective
clients are informed of their legal rights with respect to the
anticipated forensic service, of the purposes of any evaluation, of the
nature of procedures to be employed, of the intended uses of any
product of their services, and of the party who has employed the
forensic psychologist. (Committee on Ethical Guidelines for Forensic
Psychologists, 1991 , p. 659)
The third difference is evident in the evaluative attitude of each of the experts. The
therapist is a care provider and usually supportive, accepting, and empathic; the forensic
evaluator is an assessor and usually neutral, objective, and detached as to the forensic
issues. A forensic evaluator's task is to gain an empathic understanding of the person but
to remain dispassionate as to the psycholegal issues being evaluated. For therapists,
empathy and sympathy—generating a desire to help—usually go hand-in-hand. For
forensic evaluators, the task is a dispassionate assessment of the psycholegal issues.
Fourth, to perform his or her task, a therapist must be competent in the clinical
assessment and treatment of the patient's impairment. In contrast, a forensic evaluator
must be competent in forensic evaluation procedures and psycholegal issues relevant to
the case. A therapist must be familiar with the literature on diagnoses and treatment
interventions, knowing from among which diagnostic categories and treatment
interventions the patient's difficulties would be best identified and treated. The forensic
evaluator must know the basic law as it relates to the assessment of the particular
impairment claimed.
Fifth, a therapist then uses this expertise to test rival diagnostic hypotheses to ascertain
which therapeutic intervention is most likely to be effective. For example, a therapeutic
diagnostic question might be whether a patient is a better candidate for insight-oriented
psychotherapy, systematic desensitization, or psychopharmacologic intervention. A
forensic evaluator must know the relevant law and how it relates to a particular
psychological assessment. A forensic evaluator then uses this expertise to test a very
different set of rival psycholegal hypotheses that are generated by the elements of the law
applicable to the legal case being adjudicated. A psycholegal question might be whether
an impairment in the plaintiff's functioning would not have occurred but for the death of
the plaintiff's child that was allegedly caused by the defendant. Another forensic question
might be whether the proximate cause of a plaintiff's impairment is a discriminatory
promotional practice, a hostile work environment, quid pro quo sexual harassment, or
management retaliation for having filed a complaint.
The sixth difference is the degree of scrutiny to which information from the patient–
litigant is subjected. Historical truth plays a different role in each relationship. At least
with competent adults, therapy is primarily based on information from the person being
treated, information that may be somewhat incomplete, grossly biased, or honestly
misperceived. Even when the therapist does seek collateral information from outside of
therapy, such as when treating children and incompetent adults, the purpose of the
information gathering is to further treatment, not in the pursuit of validating historical
truth. In most instances, it is not realistic, nor is it typically the standard of care, to expect
a therapist to be an investigator to validate the historical truth of what a patient discusses
in therapy. Indeed, trying to do so by contacting family members, friends, or coworkers
and by requesting corroborating documentation may frustrate therapy even if the patient
has signed a release of information. Further, this corroboration is usually unnecessary.
Effective therapy can usually proceed even in the face of substantial historical inaccuracy.
For example, a patient's impaired self-esteem, body image, and sexual interest might be
effectively treated regardless of the fact that her reported memory of having been
sexually abused early in childhood by her maternal uncle was inaccurate and that she was
actually abused by her paternal uncle. Similarly, a fear of small places can be effectively
treated even if the cause was having been locked in a closet by an angry spouse or parent
and not by being trapped in a faulty elevator. Depression from poor work performance,
excessive and losing gambling, almost being caught defrauding an employer, and having
to resign can be treated even if the reason for the depression conveyed to the therapist by
the patient is that he or she was the victim of an incompetent and unfair supervisor.
The more important question for most psychotherapeutic techniques is how a patient
perceives or feels about the world—what is real to that patient—not factual or historical
truth (Wesson, 1985). Even for those therapeutic techniques that involve confrontation
and challenge of a patient's conceptions of events, therapists rarely conduct factual
investigations into circumstances surrounding patient claims in therapy. Thus, the
historical truth of matters raised during therapy cannot, simply on that basis alone, be
considered valid and reliable for legal purposes. This is not a criticism of therapy. This
approach to psychotherapy makes sense given its temporal framework. If a patient report
or a diagnostic hypothesis is not borne out, it can be revised in later sessions. This
approach to therapy, which is informed and educated but still somewhat trial-and-error,
typically does no harm unless the patient is in a high-risk situation, such as being suicidal
or in an abusive environment.
In contrast, the role of a forensic examiner is, among other things, to offer opinions
regarding historical truth and the validity of the psychological aspects of a litigant's
claims. The accuracy of this assessment is almost always more critical in a forensic
context than it is in psychotherapy. A competent forensic evaluation almost always
includes verification of the litigant's accuracy against other information sources about the
events in question. These sources may include collateral interviews with coworkers,
neighbors, family members, emergency room personnel, or a child's teacher or
pediatrician and a review of documents such as police reports, school records, military
records, medical records, personnel files, athletic team attendance, credit card bills, check
stubs, changes in one's resume, depositions, witness statements, and any other possible
sources of information about the litigant's pre- and postincident thoughts, emotions, and
behaviors. However, therapists do face a dilemma regarding the historical accuracy of the
information provided by the patient, depending on how they or their patients act on that
information. This is illustrated by a case in which a therapist was successfully sued for
slander by a father who was identified through memories recovered in therapy as
allegedly having abused the therapist's patient as a child every Friday evening. The father
offered employment records at the therapist's trial that revealed that he had worked for
the railroad and had been working out of town every Friday evening in question (Blow,
Seventh, the need for historical accuracy in forensic evaluations leads to a need for
completeness in the information acquired and for structure in the assessment process to
accomplish that goal. Therapeutic evaluation, in comparison, is relatively less complete
and less structured than a forensic evaluation. Moreover, a patient provides more
structure to a therapeutic evaluation than does a litigant to a forensic evaluation. Ideally, a
patient and therapist work collaboratively to define the goals of a therapeutic interaction
and a time frame within which to realize them. The time frame and goals of a forensic
evaluation are defined by the legal rules that govern the proceeding, and once these are
determined, the forensic evaluator and litigant are usually constrained to operate within
them. To make maximum use of the time available, forensic evaluators usually conduct
highly structured assessments using structured interviews supplemented with a battery of
psychological tests and forensically oriented history and impairment questionnaires.
Certainly the plaintiff is encouraged to describe the events in question, but it is the
forensic evaluator's task to establish a preincident baseline of functioning, a complete
description of the incidents alleged in the legal complaint, the subsequent areas of
resilience and impairment of the plaintiff's functioning, the proximate cause of any
impairment, and the likely future functioning of the plaintiff, if necessary, ameliorated or
enhanced by any needed therapy.
Eighth, although some patients will resist discussing emotionally laden information,
the psychotherapeutic process is rarely adversarial in the attempt to reveal that
information. Forensic evaluation, although not necessarily unfriendly or hostile, is
nonetheless adversarial in that the forensic evaluator seeks information that both supports
and refutes the litigant's legal assertions. This struggle for information is also handled
quite differently by each expert: The therapist exercises therapeutic judgment about
pressing a patient to discuss troubling material, whereas a forensic evaluator will
routinely seek information from other sources if the litigant will not provide it or to
corroborate it when the litigant does provide information. In the extreme, when presented
with excessive underreporting or overreporting of critical information, the forensic
evaluator might even decide that the litigant is dissembling.
Ninth, consider the goals of each of these relationships. Therapy is intended to aid the
person being treated. A therapist–patient relationship is predicated on principles of
beneficence and nonmaleficence—doing good and avoiding harm. A therapist attempts to
intervene in a way that will improve or enhance the quality of the person's life. Effective
treatment for a patient is the reason and the principal defining force for the therapeutic
relationship. According to the Hippocratic oath, “Into whatever house I enter, I will do so
to help the sick, keeping myself free from all intentional wrong-doing and harm. . . .”
Similarly, according to the ethical principles of psychologists, “Psychologists seek to
contribute to the welfare of those with whom they interact professionally. . . . [They
attempt] to perform their roles in a responsible fashion that avoids or minimizes
harm” (APA, 1992 , p. 1600).
Forensic examiners strive to gather and present objective information that may
ultimately aid a trier of fact (i.e., judge or jury) to reach a just solution to a legal conflict.
A forensic examiner is obligated to be neutral, independent, and honest, without
becoming invested in the legal outcome. A forensic evaluator advocates for the findings
of the evaluation, whatever those findings turn out to be. Thus, the results of a forensic
examination may well be detrimental to the legal position of an examinee (American
Psychiatric Association, 1984) and contrary to basic therapeutic principles.
Tenth, the patient–litigant is likely to feel differently about expert opinions rendered
by therapists than those rendered by forensic experts. Consider the role of judgment in
therapeutic relationships. There is a robust, positive relationship between the success of
the therapist–patient alliance and success in therapy (Horvath & Luborsky, 1993). To
develop a positive therapist–patient alliance, a therapist must suspend judgment of the
patient so that the therapist can enter and understand the private perceptual world of the
patient without doing anything that would substantially threaten that relationship. Indeed,
some believe that even a posttherapy disturbance of this therapeutic alliance may cause
serious harm to a patient; hence many advocate substantial limitations on personal
relationships between former patients and their therapists.
In contrast, the role of a forensic examiner is to assess, to judge, and to report that
finding to a third party (attorney, judge, or jury) who will use that information in an
adversarial setting. To assess, a forensic examiner must be detached, maybe even
skeptical, and must carefully question what the litigant presents. Because a forensic
psychologist or psychiatrist has not engaged in a helping relationship with the litigant, it
is less likely that his or her judgment-laden testimony would cause serious or lasting
emotional harm to the litigant than would that of the psychologist or psychiatrist who has
occupied a therapeutic role.
Waiving the Dual-Role Conflict
These role differences are not merely artificial distinctions but are substantial
differences that make inherently good sense. Unless these distinctions are respected, not
only are both the therapeutic and forensic endeavors jeopardized for the patient–litigant
but as well the rights of all parties who are affected by this erroneous and conflictual
choice. Unlike some conflicts of interest, this role conflict is not one that the plaintiff can
waive, because it is not the exclusive province of the plaintiff's side of the case. The
conflict affects not only the plaintiff but also the defense and the court. This conflict not
only poses therapeutic risks to the patient–litigant but also risks of inaccuracy and lack of
objectivity to the court's process and to all of the litigants.
Existing Professional Guidelines
On the basis of these concerns, both psychological and psychiatric organizations have
sought to limit these situations when dual functions are performed by a single
psychologist or psychiatrist. In increasing detail and specificity, professional
organizations have discouraged psychologists and psychiatrists from engaging in
conflicting dual professional roles with patient–litigants. As the Ethical Guidelines for the
Practice of Forensic Psychiatry, adopted by the American Academy of Psychiatry and the
Law (AAPL) in 1989, note:
A treating psychiatrist should generally avoid agreeing to be an expert
witness or to perform an evaluation of his patient for legal purposes
because a forensic evaluation usually requires that other people be
interviewed and testimony may adversely affect the therapeutic
In a very similar vein, the Specialty Guidelines for Forensic Psychologists indicate the
Forensic psychologists avoid providing professional services to parties
in a legal proceeding with whom they have personal or professional
relationships that are inconsistent with the anticipated relationship.
When it is necessary to provide both evaluation and treatment
services to a party in a legal proceeding (as may be the case in small
forensic hospital settings or small communities), the forensic
psychologist takes reasonable steps to minimize the potential negative
effects of these circumstances on the rights of the party,
confidentiality, and the process of treatment and evaluation.
(Committee on Ethical Guidelines for Forensic Psychologists, 1991 , p.
The Committee on Psychiatry and Law of the Group for the Advancement of
Psychiatry (GAP, 1991) concluded in 1991 that “While, in some areas of the country with
limited number of mental health practitioners, the therapist may have the role of forensic
expert thrust upon him, ordinarily, it is wise to avoid mixing the therapeutic and forensic
roles” (p. 44). Similarly, the Ethical Principles of Psychologists and Code of Conduct of
the American Psychological Association (APA, 1992) admonishes that “In most
circumstances, psychologists avoid performing multiple and potentially conflicting roles
in forensic matters” (p. 1610). Finally, the most recent and the most specific of these
codes, the American Psychological Association's (1994) guidelines for conducting child
custody evaluations, concluded the following:
Psychologists generally avoid conducting a child custody evaluation in
a case in which the psychologist served in a therapeutic role for the
child or his or her immediate family or has had other involvement
that may compromise the psychologist's objectivity. This should not,
however, preclude the psychologist from testifying in the case as a fact
witness concerning treatment of the child. In addition, during the
course of a child custody evaluation, a psychologist does not accept
any of the involved participants in the evaluation as a therapy client.
Therapeutic contact with the child or involved participants following
a child custody evaluation is undertaken with caution. A psychologist
asked to testify regarding a therapy client who is involved in a child
custody case is aware of the limitations and possible biases inherent in
such a role and the possible impact on the ongoing therapeutic
relationship. Although the court may require the psychologist to
testify as a fact witness regarding factual information he or she
became aware of in a professional relationship with a client, that
psychologist should decline the role of an expert witness who gives a
professional opinion regarding custody and visitation issues (see
Ethical Standard 7.03) unless so ordered by the court. (p. 678)
The Legal Perspective
Although there are explicit ethical precepts addressing this dual role, there are no
reported judicial decisions to date that address the exclusion of a forensic assessment by a
psychologist or psychiatrist who served as a litigant's therapist. Courts may not see this as
an issue of competence or qualification, but instead, at most, as one of weight or
credibility. Thus, the therapist would be permitted to testify and the ethical precept could
be used to challenge credibility. Some courts may not recognize the role conflicts or not
see them as important; other courts may see them but are too concerned with efficiency to
give them great weight.
Although even the clear ethical conflict may not yet persuade a court to exclude the
testimony of a therapist who offers a forensic assessment, the effect of this departure
from professional standards on the perceived credibility of the witness may persuade
attorneys to resist this two-for-one strategy. Deviating from the ethical codes or practice
guidelines of one's profession is an appropriate and effective basis for impeaching a
witness and the explicit ethical and specialty guidelines that address this problem
simplify this task for the cross-examining attorney.
Similarly, under both the test of “general acceptance” in the relevant professional
community of Frye v. United States (1923) and the “good grounds given what is known”
test of Daubert v. Merrell Dow Pharmaceuticals (1993), forensic assessment by a
patient's therapist does not generally provide a reliable basis for a forensic assessment
and therefore should be avoided by the ethical psychologist and viewed skeptically by the
courts. Expert witnesses are held highly accountable for the accuracy of their opinions
through the rules of evidence; the rigors of deposition, voir dire, cross-examination; and
the testimony of opposing experts. Courts now scrutinize the admissibility of expert
opinion testimony on the basis of the quality of the science that underlies the testimony
(Shuman, 1994). The Supreme Court's decision in Daubert (1993) requires federal courts
to make a “preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and whether that reasoning properly can be applied to
the facts in issue” (p. 592). This decision is part of a trend in both state and federal courts
toward a more demanding level of scrutiny requiring scientific support or validation for
the assertions made by mental health professionals in forensic settings. This trend (e.g.,
State v. Russel, 1994) is even seen in states that have chosen to apply the “general
acceptance in the relevant professional community” test (Frye, 1923) instead of the test in
Daubert. Psychologists and psychiatrists should expect courts to demand evidence of the
research that supports their opinions and that supports the data acquisition methods on
which opinions are based. A forensic evaluation must be based on information that is
more complete and more accurate than that typically obtained as part of therapy.
To date, society has taken a largely laissez-faire, market orientation to psychotherapy.
Most successful malpractice claims against mental health professionals have involved sex
with patients, drug interactions, failure to warn or protect, and suicide (Smith, 1991).
However, engaging in dual roles raises the potential for a lawsuit against a therapist by a
patient alleging lack of informed consent. This could be claimed by a disgruntled patient–
litigant who expected the therapist to be as successful and partisan an expert witness as
he or she was a therapist. The argument would follow that the therapist should have
reasonably known that the patient would be less likely to disclose certain information
knowing that a third person would be made aware of, and potentially use, the information
to the detriment of the discloser and, therefore, the therapist should have warned the
patient of that potential consequence not just before the therapist changed roles but also
before therapy (and the disclosures) even began. It is similarly likely that most people
would choose to disclose more information with less self-censorship in psychotherapy
than in forensic examinations. Once this information has been disclosed in therapy, and
the therapy process then becomes the basis for forensic testimony by the therapist, this
then places the otherwise innocuous information into a different context and makes it
more likely that this disclosure will be used to the detriment of the patient (Shuman &
Weiner, 1987).
Where Then Should the Line Be Drawn?
As stated earlier, psychologists and psychiatrists may appropriately testify as treating
experts (subject to privilege, confidentiality, and qualifications) without risk of conflict
on matters of the reported history as provided by the patient; mental status; the clinical
diagnosis; the care provided to the patient and the patient's response to it; the patient's
prognosis; the mood, cognitions, or behavior of the patient; and any other relevant
statements that the patient made in treatment. These matters, presented in the manner of
descriptive “occurrences” and not psycholegal opinions, do not raise issues of judgment,
foundation, or historical truth. Therapists do not ordinarily have the requisite database to
testify appropriately about psycholegal issues of causation (i.e., the relationship of a
specific act to claimant's current condition) or capacity (i.e., the relationship of diagnosis
or mental status to legally defined standards of functional capacity). These matters raise
problems of judgment, foundation, and historical truth that are problematic for treating
When faced with issues that seem to fall between these guideposts, it is useful to ask
whether each opinion is one that could or should have been reached in therapy. Thus, if
the legal system did not exist, would therapists be expected to reach these sorts of
conclusions on their own? Would doing so ordinarily be considered an aspect of the
therapy process? In doing so, would the opinion be considered exploratory, tentative, and
speculative, or instead as providing an adequate basis for guiding legal action outside of
therapy? Is the therapist generating hypotheses to facilitate treatment or is he or she
reasonably scientifically certain that this opinion is accurate? Is it based on something
substantially more than, “My patient said so,” “My patient would have no reason to lie,”
or “My patient would not lie to me”?
Psychologists, psychiatrists, and other mental health professionals have given and
received criticism about the use of expert witnesses whose partisanship appears to
overwhelm their professionalism. Engaging in conflicting therapeutic and forensic
relationships exacerbates the danger that experts will be more concerned with case
outcome than the accuracy of their testimony. Therapists are usually highly invested in
the welfare of their patients and rightfully concerned that publicly offering some candid
opinions about their patient's deficits could seriously impair their patient's trust in them.
They are often unfamiliar with the relevant law and the psycholegal issues it raises. They
are often unaware of much of the factual information in the case, and much of what they
know comes solely from the patient and is often uncorroborated. What they do know,
they know primarily, if not solely, from their patient's point of view. They are usually
sympathetic to their patient's plight, and they usually want their patient to prevail.
By failing to recognize the inherent limitations of their work as therapists, as well as
the conflicting therapeutic and forensic roles, psychologists, psychiatrists, and other
mental health professionals risk harm to their profession, their patients, and the courts.
Although therapists frequently enter the forensic arena in their efforts to help, these
efforts may not only put therapists in ethical difficulty but may also neutralize the impact
both of their testimony and their work as therapists. Therapists need to acknowledge the
limits of what they can accurately and reliably say on the basis of therapeutic
relationships. Although it is difficult, when asked psycholegal questions, therapists must
be willing to testify “I cannot answer that question given my role in this case,” “I do not
have an adequate professional basis to answer that question,” “I did not conduct the kind
of evaluation necessary to reliably answer that question,” “I can only tell you what I
observed,” or “I can only tell you what my patient told me.” No matter how laudable their
motives might be, therapists who venture beyond these limits and into the arena of
psycholegal opinion are deceiving themselves and others. Engaging in an irreconcilable
role conflict and lacking an adequate professional basis for their testimony, they can be
neither neutral, objective, nor impartial.
American Academy of Psychiatry and the Law (1989). Ethical guidelines for the
practice of forensic psychiatry. In Membership directory of American Academy
of Psychiatry and the Law (pp. x–xiii). Bloomfield, CT: Author.
American Psychological Association (1992). Ethical principles of psychologists and
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report of the task force on the role of psychiatry in the sentencing process.
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Blow, S. (1995, January 11). Slander case shakes family. Dallas Morning News, p.
Committee on Ethical Guidelines for Forensic Psychologists (1991). Specialty
guidelines for forensic psychologists. Law and Human Behavior, 15, 655-665.
Committee on Psychiatry and Law, Group for the Advancement of
Psychiatry (1991). The mental health professional and the legal system (Rep.
No. 131). New York: Brunner/Mazel.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 405 U.S. 597 (1993).
Estelle v. Smith, 451 U.S. 454 (1993).
Finn, S. E., & Tonsager, M. E. (1996). Therapeutic assessment: Using
psychological testing to help clients change. Manuscript in preparation.
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Greenberg, S. A., & Moreland, K. (1995). Forensic evaluations and forensic
applications of the MMPI/MMPI-2. Unpublished manuscript, University of
Minnesota, Department of Continuing Education and Conference Services,
Minneapolis, and The American Academy of Forensic Psychology.
Horvath, A. O., & Luborsky, L. (1993). The role of the therapeutic alliance in
psychotherapy. Journal of Consulting and Clinical Psychology, 61, 561-573.
Shuman, D. W. (1983). Testimonial compulsion: The involuntary medical expert
witness. Journal of Legal Medicine, 4, 419-446.
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Correspondence concerning this article should be addressed to Stuart A. Greenberg,
University of Washington, 720 Olive Way, Suite 605, Seattle, Washington 98101-1853.
E-mail: stuartg@
Table 1. Ten Differences Between Therapeutic and Forensic Relationships