The Different Duties and Responsibilities of Clinical and ...

The Review: A Journal of Undergraduate Student Research

Volume 5 Article 4

The Different Duties and Responsibilities of
Clinical and Forensic Psychologists in Legal
Proceedings

Denise Hugaboom

St. John Fisher College

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Hugaboom, Denise. "The Different Duties and Responsibilities of Clinical and Forensic Psychologists in Legal Proceedings." The
Review: A Journal of Undergraduate Student Research 5 (2002): 27-32. Web. [date of access]. <http://fisherpub.sjfc.edu/ur/vol5/iss1/
4>.

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The Different Duties and Responsibilities of Clinical and Forensic
Psychologists in Legal Proceedings

Abstract
In lieu of an abstract, below is the essay's first paragraph.
Clinicians and forensic psychologists are two types of psychologists who are often required to appear as
witnesses in court proceedings. Their roles, duties, and responsibilities in legal issues arc surprisingly different,
but it is possible for them to overlap. It is important for psychologists to recognize both the obligations and
limitations of their responsibilities when testifying. An important and often unclear question that generally
arises is: how can psychologists best fulfill their legal and ethical duties to their clients?

This article is available in The Review: A Journal of Undergraduate Student Research: http://fisherpub.sjfc.edu/ur/vol5/iss1/4

Hugaboom: The Different Duties and Responsibilities of Clinical and Forensic Psychologists

The Different Duties and Responsibilities of Clinical
and Forensic Psychologists in Legal Proceedings
by Denise R. Hugaboom

Clinicians and forensic psychologists are were restricted in Whalen v. Roe (1976). In
two types of psychologists who are often this case, the Court ruled that a patient does
required to appear as witnesses in court not have a constitutional right to
proceedings. Their roles, duties, and informational privacy of communications or
responsibilities in legal issues arc records generated in the course of medical
surprisingly different, but it is possible for treatment when the records are adequately
them to overlap. It is important for protected from unauthorized disclosure
psychologists to recogrnze both the (Smith-Bell & Winslade, 1994). There are
obligations and limitations of their only I0 states which have recognized a
responsibilities when testifying. An constitutionally based psychotherapist-
important and often unclear question that patient privilege for psychotherapeutic
generally arises is: how can psychologists communications, and the decisions that were
best fulfill their legal and ethical duties to made in those states are now at least 15 to
their clients? 20 years old (Smith-Bell & Winslade, 1994,
citing Smith, 1980, citing Bremer v. State,
Clinical psychologists play an important 1973).
role in legal issues regarding their clients.
Clinicians may be asked to submit records to It is reassuring to know that with these
insurance companies, report suspected ambiguous lines that border legal rights and
incidents of child abuse, and testify on ethical requirements, there are some
behalf of or against their clients in a court of particular cases in which the decision
law. Unfortunately, when asked or required between right and wrong is defined as
to participate in legal proceedings of any clearly as black and white. There are times
sort, clinicians are faced with indistinct when legally and ethically, a clinician must
guidelines that blur between legal and break confidentiality. Corey (2001) lays out
ethical requirements. several circumstances in which counselors
must legally report certain information.
One of the primary requirements of a Counselors are required to break
practicing clinician is to maintain confidentiality and report or even testify
confidentiality with a client (American when clients pose a danger to themselves or
Psychological Association 1992). Once a others, and when a counselor believes that a
client discloses private infonnation to a minor (a person under the age of 16) is a
therapist in an environment in which it is victim of rape, incest, or abuse. They are
expected that the information will not also required to release their records to a
ordinarily be disclosed to third parties, it third party upon request of the client.
becomes confidential (Smith-Bell & Finally, therapists must release certain
Winslade, 1994). The laws regarding information if it becomes an issue in court
confidentiality and privacy have changed action. Besides these specific situations, a
over time. The constitutional right to clinical therapist is legally required to testify
privacy was first recognized by the Supreme to all other psychotherapeutic
Court in Griswold v. Connecticut, (1965) communications unless that material has the
and in Eisenstad/t v. Barrd (1972). status of being privileged. Refusal to do so
However, the constitutional rights to privacy

26

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The Review: A Journal of Undergraduate Student Research, Vol. 5 [2002], Art. 4

may result in the therapist being charged a Tarasoff warning, or a wa rning by the
with contempt of court (Smith-Bell & clinician to the potential victim and to the
Winslade, J994). police. If that attempt to protect or warn
fails, the clinician is then required by law to
The only situation in which the therapist testi fy in court aga inst the patient. It seems
is aware of relevant in formati on but is that following the Tarasoff decision, patients
legally pcnnitted to refuse to speak about it in California have the right to less and less
is when that information is considered pri vacy. The Cali fornia courts are now
privileged. A privilege is the exception to saying that the usual rul es of confidentiality
the genera! rule that the publi c has a right to and privilege do not apply to any patients
relevant information in a court proceeding, who have demonstrated that they will be or
and this common-law rule can be used by have been dangerous (Meyers, 1991 ).
the therapist to protect the client's right to Section I024 of the Evidence Code of the
privacy and confidentiality. A piece of California Supreme Court creates this broad
information must fulfill several requirements exception by stating, "There is no
in order to be held privileged. The privilege... if the psychotherapist has
information must be from a patient to a reasonable cause to believe that the patient
licensed or certified therapist, or to an is in such mental or emotional condition as
assistant of a therapist. A professional to be dangerous to himself or to the person
relationship must ex ist between the patient or property of another and that disclosure of
and the clinician, and the communications the communication is necessary to prevent
must be related to the provision of the threatened danger" (Meyers, 199 1-ci ti ng
professional service. Finally, because the Section I024 of Cali fornia Evidence Code).
communications must be considered as As the psychotherapist-patient privilege
confidential, they may not be released by the diminishes, more and more responsibility is
client to a third party (Smith, 1986- 1987). put on the therapist to make the right choice,
When information holds the privileged and more and more consequences face the
status is one of the few times that a therapist therapist for making the wrong choice.
is not legally required by a court of law to
testify for or against the client. In legal confines, cJ inicians face many
tough choices. Decisions regarding
The laws and requirements that guide testifying against a client in a court of law,
behavior vary from state to state, causing testifying on behalf of a client, or even
another source of concern for practicing deciding whether or not to report a
clinicians. California's laws are currently potcntiaJly "dangerous" client often require
perhaps the most diverse, including the time, careful judgment, and opinions that
newly enforced duty of psychotherapists to come from the heart. Each decision comes
testify against their clients at trial. with numerous consequences. If a decision
California's laws mandate that no therapist is made to follow ethical guidelines and
can be licensed to practice without passing a maintain confidentiality, the therapist risks
test that includes a measure of understanding being held in contempt of court and jailed.
of the duty to warn and protect (Meyers, If a decision is made to follow legal
1991). The Tarasoff case in California has requirements and break confidentiality, the
become notorious due to the California therapist risks losing an effective therapeutic
Supreme Court's decision regarding it. The relationship due to a shattering of trust. A
Tarasoff decision requires that a confession counselor's first priority is to do what is best
of an intention to commit murder by a client for the client, and testifying against the
to a therapist must be reported in the form of

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Hugaboom: The Different Duties and Responsibilities of Clinical and Forensic Psychologists

cli ent is obviously not alwa ys the best thing. A lthough there arc ways in which
treating clinical psychologists arc simil ar to
Beca use of the fuzzy lines surrounding legal fo rensic experts, there are also many ways in
whi ch they are different. A forensic
and ethical guidelines, it is possibl e that a psychologist generall y meets with the
patient only one or two times in order to
counselor might break confidentiality conduct an evaluati on. T he meeting and
evaluation take place only after a crime has
mi stakenl y when not legally required to do been committed and an accusation has been
made. Forensic evaluations are usually
so. This could result in the counselor being short, and less information is covered than
would be in a clinical evaluation (Iverson,
stripped o f hi s or her license to practice, a 2000). Because the forensic psychologist is
not the patient's treating psychologist, he or
devastating outcome. Because o f the she can more easily detennine objective
reality, whereas a clinician generally focuses
possibility of these consequences, it is o t1en on a patient's subjective reality (Faust &
Ziskin, 1988). Forensic psychologists may
better to have a forensic psychologist, or be asked to write a report, as in the issue of
child custody, or they may be asked to put
expert witness, testify in a court proceeding. their ability to use in a courtroom and testify
as expert witnesses. One of the most
A forensic psychologist's job is simil ar important differences between clini cal and
forensic psychologists in issues regarding
in some aspects to a clini cian 's job. legality, however, is the difference of
informed consent.
" Forensic psychology'' is defined in the
When a patient sees a cl inical
Forensic Specialty Guidelines (1 99 1) as "all psychologist for the first time, he or she is
given informed consent. Informed consent
forms of professional psychological conduct is a process by which the therapist educates
the client about hi s or her rights and
when acting, with definable foreknowledge, responsibilities in therapy. Some aspects of
informed consent include general goals of
as a psychological expert on explicitly counseling, the responsibilities of the
counselor toward the client, the
psycholegal issues, in direct assistance to responsibilities of the client toward the
counselor, the limitations of and
courts, parties to legal proceedings, expectations to confidentiality, legal and
ethical parameters that could define the
correctional and forensic mental health relationship, the qualifications and
background of the therapist, and the services
facilities, and administrative, judicial, and the client can expect (Corey, 200 I). The
limitations of and expectations to
legislati ve agencies acting in an adjudicative confidentiality is the most important aspect
of informed consent with relation to the
capacity" ( 199 1). Forensic psychologists possibility of the counselor testifying in

provide services only in areas of psychology

for which they have specialized knowledge,

skill, experience, and education. They are

responsible for presenting fundamental and

reasonable levels of knowledge of legal ,

professional, factual , and civic standards

that govern their participation as experts in

courtrooms. These standards give a forensic

psychologist the privilege to testify under

the title of an expert witness. The major

difference between an expert witness and a

non-expert is that the expert is permitted to

and expected to render a personal opinion

(Iverson, 2000). They have the

responsibility to provide services in a

manner consistent with the highest standards

of the profession, and must make a

reasonable effort to ensure that their services

and products of their services are used in a

responsible manner (Forensic Specialty

Guidelines, 1991 ).

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Hugaboom: The Different Duties and Responsibilities of Clinical and Forensic Psychologists

objectivity, and di sclose any potenti al that clinicians who play the role of forensic
psychologists may cause more trouble than
conflicts to the relevant parties (Iverson they are worth. There arc probably more
consequences associated with thi s type of
2000). testimony than any other that has been
mentioned so far.
The American Psychologica l
One reason that clinical psychologists'
Association also published in its Ethi cal testimony as ex pert witnesses is so
problematic is that they often just are not
Principles of Psychologists and Code o f knowledgeable enough about forensic
matters. According to studies performed by
Conduct several standards of professional Faust and Ziskin ( 1988), clinical
psychologists often cannot answer forensic
conduct regarding the expert testimony of questions accurately. This discredits them
as witnesses, and the credibility of a so-
clinical psychologists. Rotgers and Barrett called expert witness is vitaJly important in a
court of law. Faust and Ziskin also report
( 1996) discuss four of these standards in that clinical psychologists are not as likely
as forensic psychologists to help a judge and
their article regarding implications and jury make more accurate conclusions than
would otherwise be possible. In fact, results
recommendations for practicing clinical of one study showed that professional,
practicing clinical psychologists performed
psychologists serving as expert witnesses. similarly to high school students in a task
which required them to predict violence of a
Standard 1.06, entitled "Basis for Scienti fi e given individual. It is astounding to find out
that in the results of many studies involving
and Professional Judgments" encourages prediction of violence, clinicians are wrong
at least twice as often as they are correct
psychologists to rely on scientific and (Faust & Ziskin, 1988).

professionaJly derived knowledge in their Not only are clinical psychologists not
knowledgeable enough about forensic
practice as both clinicians and as expert matters, they often depend on the wrong
information to lead them to making
witnesses. Standard 2.02, "Competence and conclusions and predictions. In many cases,
that fact that clinical criteria have been met
Appropriate Use of Assessments and does not mean that the satisfaction of legal
criteria has been established (Faust & Ziskin
Interventions" requires clinical 1988). For example, the clinical criteria that
determine the diagnosis of insanity do not
psychologists to select assessment include some tests that are required for the
diagnosis of legal insanity, such as the
instruments for their evaluations on the basis capacity to appreciate the consequences of
one's actions, or to resist an impulse.
of research indicating the appropriateness of Therefore, a clinician acting as an expert
witness might be inclined to base his
the instruments for the specific issues at

hand, and directs psychologists to work

actively to prevent misuse of those

instruments. Standard 2.04, "Use of

Assessment in General and With Special

Populations" requires familiarities of

psychometric properties and limitations of

assessment instruments which are used in

the practice of psychology and may be used

in a forensic evaluation. FinaJiy, Standard

2.05, " Interpreting Assessment Results"

requires clinical psychologists to directly

state any reservations they may have about

the accuracy and limitations of their forensic

assessments.

With the rules and guidelines that have

been established to allow clinicians to testify

as experts, this type of testimony has

become common in courtrooms nationwide.

According to Faust and Ziskin, clinicians

appear in up to as many as one million legal

cases annually (1988). It appears, however,

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Hugaboom: The Different Duties and Responsibilities of Clinical and Forensic Psychologists

References Meyers, C. J. ( 1991 ). Where the protective
privilege ends: Ca li fomia changes the
American Psychologica l Association. rules for dangerous psychotherapy
( 1992). Ethical principles and code of patients. Journal ofPsychiat1y and the
conduct. American Psychologist, 47, Law, 19 (2), 5-31.
1597-1611.
Rotgers, F., & Barrett, D . (1996) Daubert
Committee on Ethical Guidelines for v. Merrell Dow and expert testimony by
Forensic Psychologists. ( 1990). clinical psychologists: Implications and
Specialty guidelines for forensic recommendations for practice.
psychologists. Law and 1Juman Professional Psychology: Research and
Behavior, 15, 655-665. Practice, 27, (5), 467-474.

Corey, G. (200 I). Theory and practice of Smith, S.R. ( 1986- 1987). Medical and
counseling andpsychotherapy. United psychotherapy privileges and
States of America: Wasworth. confidentiality: On giving with one hand
and removing with the other. Kentucky
Faust, D., & Ziskin, J. (1988). The expert Law Journal, 45, 473-557.
witness in psychology and psychiatry.
Science, 24 1, 31. Smith-Bell , M., & Winslade, W. J. (1994).
Privacy, confidentiality, and privilege in
Iverson, G. (2000). Dual relationships in psychotherapeutic relationships.
psycholegal evaluations: Treating American Journal ofOrthopsychiatry,
psychologists serving as expert 64, (2), 180-193.
witnesses. American Journal of
Forensic Psychology, I 8 (2), 79-87.

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