The therapist as judge, jury and ­executioner

By Michael G. Brock

“Mark you this, Bassanio,
The devil can cite Scripture for his purpose.
An evil soul producing holy witness
Is like a villain with a smiling cheek,
A goodly apple rotten at the heart.
Oh, what a goodly outside falsehood hath!”
—Antonio
The Merchant of Venice, Act I, Scene iii
(William Shakespeare)

Definition: Usurpation,
“The unjustly intruding upon or exercising any office, franchise, or liberty belonging to another.”
—Black’s Law Dictionary,
2nd Edition

An ideologue—one who thinks ideologically—can’t lose. He can’t lose because his answer, his interpretation have been determined in advance of the particular experience or observation. They are derived from the ideology, and are not subject to the facts. There is no possible argument, observation or experiment that could disprove a firm ideological belief for the very simple reason that an ideologue will not accept any argument, observation or experiment as constituting disproof.
—James Burnham
The Suicide of the West (p. 108)

Somewhere in America, today, somewhere in Michigan, or most likely, in several places in Michigan, court is in session. The presiding judge is not really a judge and has no legal training. He is not even a lawyer, nor has he made any effort to study the applicable law. Nonetheless, there are no laws or (enforced) ethics codes preventing him from trying this type of case. It has not occurred to him, or even to much of the legal community that it is wrong for him to do so, so why should he concern himself? He doesn’t even call this a court, but it is very much a court of law, and the stakes are very high. At issue is the termination of parental rights.

Whose parental rights? Yours, and you probably didn’t even know about this trial. Even if you had been informed, you wouldn’t be welcome. These trials work far better if the accused is not present. He probably would want to give testimony on his own behalf, and that is not really necessary. There is no need for due process in this court. The judge already knows what has happened and has all the evidence necessary to make an informed decision. (S)he knows this because (s)he has heard the accuser’s side of the story. There is no reason not to assume that everything the accuser says is the truth. The fact that the judge has a prior advocacy relationship with the accuser, and is being paid by the accuser for his work on this case is really irrelevant to the process. The end will justify the means. And the end is — everyone will agree on this — of the utmost importance. It is the protection of our children from abuse.

The accuser will inform the judge of the details of abuse disclosed to (her)him so that the judge will know what questions to ask to get the facts from the child. The child will be a little reluctant to disclose the abuse at first, despite the fact that (s)he has been well prepared by the accuser for the judge’s questions. There is no need for a prosecutor or defense counsel in this court; the inquisitional style legal system really works better for the intended purpose. However, as a courtesy the judge might keep the accuser’s counsel informed, or even take a few suggestions regarding what evidence is necessary for a change of custody and how the necessary evidence might best be obtained. The accuser’s counsel might also advise the judge regarding the use of certain legal terms, such as “the best interests of the child.” This is reasonable since Therapy Court judges are not generally familiar with legal terminology or procedure.

On the basis of the accuser’s testimony, the judge makes a presumption that the child has been abused. (It is, after all, standard and proper therapeutic practice to accept a presenting parent’s statements as truthful.) Once the key witness, the child, is willing to testify to your guilt, the judge can send the case to a duly elected court and the matter can be formalized. There is no need to keep an accurate record of these proceedings because the formal court will do this in the process of confirming Therapy Court’s findings. At the start of the process the judge makes a finding of fact regarding what the child’s problem is, including the likely cause of that problem (i.e., trauma from sexual abuse) and writes that conclusion in the record in the form of a diagnosis. Any definition of a medical (including mental health) diagnosis will state that it is a conclusion as to the nature and cause of a medical condition, to wit:

Webster’s New World Medical Dictionary: Second Edition: Diagnosis: 1. The nature of a disease; the identification of an illness. 2. A conclusion or decision reached by diagnosis. The diagnosis is rabies. 3. The identification of any problem. The diagnosis was a plugged IV. The word diagnosis comes directly from the Greek, but the meaning has been changed. To the Greeks a diagnosis meant specifically a “discrimination, a distinguishing, or a discerning between two possibilities.” Today, in medicine that corresponds more closely to a differential diagnosis.

Differential diagnosis: The process of weighing the probability of one disease versus that of other diseases possibly accounting for a patient’s illness. The differential diagnosis of rhinitis (a runny nose) includes allergic rhinitis (hay fever), the abuse of nasal decongestants and, of course, the common cold. The American Heritage Stedman’s Medical Dictionary: Di·ag·no·sis (d?’?g-n?’s?s) n., pl. -ses (-s?z). Medicine. The act or process of identifying or determining the nature and cause of a disease or injury through evaluation of patient history, examination, and review of laboratory data. The opinion derived from such an evaluation.

Note: A differential diagnosis, also known as an alternative hypothesis, is not deemed necessary in Therapy Court, where both the condition and cause are considered obvious, although it is a routine part of a forensic interview. This is a major difference between Therapy Court and forensic interviewing, which is both proper for use in the courtroom and best practice for anyone interviewing a child in these circumstances, it is also the lawful way to interview a child suspected of being abused in Michigan.1 It is also noted on the first page of the text of Michigan’s “Protocol for Interviewing Children Suspected of Being Abused” that children should not be forensically interviewed by a treatment therapist. Rather, forensic interviewing is separate role with its own rules:

“Although information obtained from an investigative interview might be useful for making treatment decisions, the interview is not part of a treatment process. Forensic interviews should not be conducted by professionals who have an on-going or a planned therapeutic relationship with the child.”2 Protocol author, Debra Poole PhD, professor of psychology at Central Michigan University, added these recommendations in her recent book or forensic interviewing: “Clinicians providing treatment can inadvertently harm the credibility of children’s allegations when they cross over into a forensic role by mining for disclosures or assuming an investigative role following disclosures.”3

This is nothing new. The recommendation of not mixing treatment and forensic roles was included in the first version of the forensic interviewing protocol in 1998, and was accepted as best practice long before that. It is also recommended as best practice not to mix forensic and treatment roles in virtually every ethics code regarding mental health practice, for example: American Counseling Association Code of Ethics. E.13.c. “Client Evaluation Prohibited Counselors do not evaluate current or former [treatment] clients, clients’ romantic partners, or clients’ family members for forensic purposes. Counselors do not counsel individuals they are evaluating.”4 Forensic Evaluation is defined as: “The process of forming professional opinions for Court or other legal proceedings, based on professional knowledge and expertise, and supported by appropriate data.”
Not all mental health codes address forensic practice specifically, but the ones that do are very clear about the separation of this role from that of counselor. For example, the 2011 American Psychological Association’s (APA) specialty guidelines for forensic psychology clearly states: 4.02.01 Therapeutic-Forensic Role Conflicts Providing forensic and therapeutic psychological services to the same individual or closely related individuals involves multiple relationships that may impair objectivity and/or cause exploitation or other harm. Therefore, when requested or ordered to provide either concurrent or sequential forensic and therapeutic services, forensic practitioners are encouraged to disclose the potential risk and make reasonable efforts to refer the request to another qualified provider. If referral is not possible, the forensic practitioner is encouraged to consider the risks and benefits to all parties and to the legal system or entity likely to be impacted, the possibility of separating each service widely in time, seeking judicial review and direction, and consulting with knowledgeable colleagues. When providing both forensic and therapeutic services, forensic practitioners seek to minimize the potential negative effects of this circumstance (EPPCC Standard 3.05).5
Moreover all ethics codes call for avoiding dual and conflicting roles, and the consensus in forensic literature is that there is in most instances an irreconcilable conflict between treatment and forensic roles. The reason for this should be clear: a therapist has a fiduciary responsibility to his treatment client. He can’t both seek his client’s best interests and hold himself out as a neutral party capable of advising the court regarding matters in which his client’s interests may interfere with those of another party. He is also very unlikely to have sufficient objective knowledge to make an informed recommendation. For example, when a counselor is treating a child, a substantial portion of the information a therapist has about the child is from whoever presents the child for treatment. One side of an argument is extremely persuasive6, and children can and do tell very different stories depending on who brings them, as anyone who has ever done a custody evaluation can tell you.

The one exception where a therapist might have sufficient information regarding a therapy client to provide an informed opinion is when he or she is doing marriage or family counseling, and is being asked by a judge for a custody recommendation. This is, in my view, unconscionable, but it happens. It is for this reason that Michigan law requires all parties over the age of 18 to sign off on releasing information to the court under these circumstances, but I’ve heard of cases where pressure was brought upon the parties to sign — or else!

Strange as it may seem, a lot of judges just don’t realize the magnitude of the ethics violation they are requesting or ordering when they do this. The proper way to handle this is for the judge to appoint a custody evaluator, but they may feel it would be cheaper and/or more expedient to obtain the information from someone who already has it, even if it presents a conflict for that person. However, most judges, when informed that what they are requesting constitutes an egregious violation of ethics, will retract the request. I’ve never been asked to provide a recommendation for a couple or a family I was counseling, but I wouldn’t, even if I had an opinion. I would go to court and say, “I think it’s a tossup, 50/50. They are both such wonderful people I could not make up my mind.”

In a custody case that has abuse allegations connected with it, there is no inherent conflict of interest for the evaluator to do a forensic interview as part of the custody evaluation, as these roles are both for the purpose of providing evidence to the court and do not involve dual and conflicting roles. James Bow et, al (2002)7 pointed this out some time back, but he also stressed the importance of utilizing a protocol (such as that created by Poole and Lamb) as a way of insuring that the results would be reliable: “In terms of assessing the allegations of sexual abuse and sexual offending, respondents8 [to his survey] seemed to struggle. Although they reported assessing many of the critical areas found in sexual abuse and sexual offending protocols, only about one third actually used a formal protocol, model, or guidelines. Most respondents indicated that they developed their own protocols. Furthermore, in the assessment of the alleged sexual perpetrator9, specialized questionnaires or inventories were infrequently used, and when used, were sometimes inappropriate. The infrequent use of formal, standardized protocols/guidelines with alleged victims and perpetrators along with the infrequent or inappropriate use of some instruments with the alleged perpetrator raises serious questions, especially regarding the defensibility of findings and practice in a court of law. In addition, respondents ranked the interviews with the alleged victim and alleged perpetrator as the most important data sources, which further highlight the need for legally defensible interviews. The apparent need for comprehensive practice guidelines suggests that APA should take a leadership role in formally endorsing guidelines for assessing allegations of sexual abuse and sexual offending, especially in conjunction with child custody disputes.”

The APA has yet to recommend, require, or develop a protocol for forensic interviewing, such as the one they have for conducting child custody evaluations,10 despite the recommendations of Bow and others, and the fact that research in the field has been spearheaded by its members (such as Ceci, Bruch, Kuehnle and Poole). But if those highly educated and experienced in the field of forensics are likely to overestimate their abilities and underperform in their attempts to provide useful evidence to the courts in this area, it is even more the case when these efforts are made by treatment professionals who have no idea where to draw the line between forensic and treatment practice. A proper forensic interview involves listening more than talking, letting the child take the lead, rather than leading the child to answers we already know, and impartial neutrality, rather than that of a crime fighter whose job is to “crack the case.” Trained forensic interviewers have trouble making these distinctions; therapists don’t have a chance…

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Meanwhile, back in Therapy Court, the judge will then want to question the key witness, which is, of course, the child who has been abused. He knows what the child has to say, but getting him to say it is sometimes difficult; children who have been abused are often reluctant to disclose, a fact we are very familiar with from anecdotal evidence (acceptable in Therapy Court in place of forensic research, which cannot always be relied upon to support intuitive supposition). Moreover, we also know from anecdotal reports that children never lie about something this important, and the child has, after all, disclosed this evidence to the accuser. So it is often necessary to dig for the evidence, to ask the child the same questions repeatedly, in a leading manner, and over a long period of time in order to encourage the child to disclose the abuse; and by telling him that children often tell the judge about these things and the judge knows how difficult it is to talk about it, but that the child will feel much better once she has.

The judge is very sensitive to the child’s needs, helps the child remember if the details of what he told the accuser are a little vague, and rewards the child with a “good for you!” when the child has finally worked up the courage to disclose. He will encourage the child, who is now convinced of the truth of the disclosure, never to back down from confronting the perpetrator of this horrible crime, “empower” the child by teaching him confrontation skills, and let him know that the judge will do everything he can to see that the perpetrator never again has the opportunity to hurt him.

Once the child has disclosed, the judge truly has all the proof that any court would ever need to confirm the verdict he made at the beginning of the process with his diagnosis of PTSD (he hasn’t been to war yet, so this has to be a reference to the effects of abuse). It is then time to reach a conclusion of law. The judge’s ruling is that the child needs to be kept from contact with the guilty party (often times the accuser’s ex-spouse by some odd coincidence) permanently; that the parental rights of the accused need to be terminated. Therapy Court will make this ruling in the form of a recommendation (but who is going to dispute it?), then refer the case on to Child Protective Services and the formal court for the necessary confirmation, having saved the court much time and expense, as well as the difficulty of trying to obtain proper forensic evidence and weighing this evidence during a standard, due process, adversarial type of trial. In the formal proceeding it is sufficient for the child to reiterate what he has told the Therapy Court judge, and for the formal court to rubber stamp this judge’s ruling.

If legal professionals do not believe that this Therapy Court, with its tremendous power, secrecy, incredible unfairness, appalling lack of due process and usurpation of the power of legitimate courts exists, or think that this portrayal of its method of operation is a gross exaggeration of a standard practice, I assure you that it does exist, and that legal and mental health professionals perpetuate its existence every time they refer a forensic case to a treatment therapist for a resolution, or accept forensic evidence obtained by this so-called therapeutic process. The fact that it continues to go on tells me that both legal and mental health professionals fail to grasp the inherent conflict between legal due process and legitimate mental health treatment practice, and/or to insist on providing and accepting only legitimate forensically obtained evidence in the courtroom. Toward this end, mental health professionals and their representative organizations need to accept as a standard of practice the “Protocol” which is currently law for State of Michigan employees outlining the proper, forensically valid method of interviewing and recording the interviews of children suspected of being abused, or to develop their own protocol consistent with current forensic research and the researchers’ recommendations. These recommendations are remarkably consistent at this point in time.

Of the four main mental health disciplines, psychiatry, psychology, social work and counseling, none, as far as I can find through research, has adapted a specific protocol for interviewing children suspected of being abused, nor published basic principles to be observed when undertaking this specific task. The result is that the quality of work done by mental health professionals in this critical field—and their ability to distinguish these forensic activities from treatment—lags behind the standards set and applied in other areas of mental health forensics, such as child custody. This is a matter of utmost importance; and begs the question why legal professionals put so much faith—or any faith at all—in mental health evidence provided by these professionals in a legitimate court of law.

If professional organizations refuse to adopt state of the art guidelines for their own membership (because they fear possible accompanying liability?), the legislature owes it to the citizens of this state to impose at least the minimal standards of practice for mental health professionals in their own area of expertise that it has on police investigators and prosecutors charged with obtaining forensic mental health evidence for the court. After all, these procedures were developed by mental health professions as a response to numerous innocent people being prosecuted in the 1980s for crimes that, not only did they not commit, but that it was ultimately determined nobody committed; or that if anybody did commit these crimes, the evidence was so badly botched by Therapy Court the truth can never be known (State of NJ v. Margaret Kelly Michaels11, North Carolina v. Robert Kelly12, Florida v. Fijnje13, McMartin Preschool Trial14, etc.).

In addressing the issue of valid evidence, however, one must also ask why judges and lawyers often seek blindly for any mental health professional willing to perform forensic functions according to their specifications rather than going to people who have made an effort to study and employ proper forensic techniques in child custody and abuse cases. Even in this day and age it is not unusual to encounter people seeking partisan evaluations and recommendations, or to have cases referred to me by mental health professionals who have no experience doing this kind of work but have been asked to fill a forensic role by the court. Do judges and lawyers really want biased evidence? If legal professionals would rather seek out unqualified people to do forensic work because they have a longer CV, rather than sending these cases to a person who has done his homework, they are going to continue to get unreliable evidence, and that does not bode well for our judicial system or our nation’s future.

I have seen reports from custody evaluators who do not do child abuse forensic interviews stating that children have not been coached in cases where I had a couple of hours of taped, properly obtained interviews that proved the children were coached. This is highly significant because it has been my experience that people who coach their children to make false allegations may lie low when their efforts fail, but because there are rarely any consequences, they inevitably try again. Therapy Court is like any other court, only more so, in this most important respect; the more times you try the same case, the better chance you have of making the allegations stick. So it is important not only to identify through proper forensic investigation whether or not a child has been abused by the alleged perpetrator, but also by the coach if there is one, and to hold people who commit this crime accountable.

In the end, legal professionals, and especially the courts, have to know enough about what constitutes valid mental health forensic evidence to make an informed decision about what to let in and what to exclude, and not just to take the easy road of opting to believe the person with the highest credentials. The worst evidence in forensic cases in my experience is provided by treatment professionals, especially those who conduct Therapy Court, and the best work is done by those who have made a study of forensics, and who truly know the difference between treatment and forensic mental health, regardless of their level of education. Relying on credentials—or even experience, over sound and supported argument and properly obtained evidence—is at best snobbish, and at worst foolhardy and irresponsible. It reminds me of one of my late mother’s favorite quotes from John W. Gardner about intellectual snobbery,

“We must learn to honor excellence in every socially accepted human activity, however humble the activity, and to scorn shoddiness, however exalted the activity. An excellent plumber is infinitely more admirable than an incompetent philosopher. The society that scorns excellence in plumbing because plumbing is a humble activity and tolerates shoddiness in philosophy because it is an exalted activity will have neither good plumbing nor good philosophy. Neither its pipes nor its theories will hold water.”15

Ultimately, neither will its legal system.

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1 ACT NO. 238, Public Acts of 1975, as amended, being Sections 722.621 –– 722.638, Michigan Compiled Laws. (6) In each county, the prosecuting attorney and the department shall develop and establish procedures for involving law enforcement officials as provided in this section. In each county, the prosecuting attorney and the department shall adopt and implement standard child abuse and neglect investigation and interview protocols using as a model the protocols developed by the governor’s task force on children’s justice as published in FIA Publication 794 (8-98) and FIA Publication 779 (8-98), or an updated version of those publications.

2 Michigan Forensic Interviewing Protocol, https://www.michigan.gov/documents/dhs/DHS-PUB-0779_211637_7.pdf

3 See extended quote in, Is Forensic Science an Oxymoron? on my blog at michaelgbrock.com.

4 ACA Code of Ethics, https://www.counseling.org/docs/default-source/ethics/2014-aca-code-of-ethics.pdf?sfvrsn=fde89426_5

5 American Psychology Association-Law Society, Division 41 of the American Psychological Association (APA), Specialty Guidelines for Forensic Psychology http://www.apa.org/pubs/journals/features/forensic-psychology.pdf

6 “The first to plead his case seems right, until another comes and examines him.” Proverbs 18:17, New American Standard Bible

7 Assessment of Sexual Abuse Allegations in Child Custody Cases, James N. Bow, Francella A. Quinnell, Mark Zaroff, and Amy Assemany, Hawthorn Center, Professional Psychology: Research and Practice Copyright 2002 by the American Psychological Association, Inc. 2002, Vol. 33, No. 6, 566–575

8 Mostly PhD psychologist with extensive forensic experience

9 Psychiatry (Edgmont). 2005 Nov; 2(11): 26–29. Assessing Sex Offenders, Vladimir Coric, MD, Seth Feuerstein, MD, JD, Frank Fortunati, MD, JD, Steven Southwick, MD, Humberto Temporini, MD, and Charles A. Morgan, MD. Articles such as this one, which explores the state of the art in 2005, show that not a lot has changed, and our ability to assess the probability that someone is or is likely to become or repeat a sexual offender is still in the stone age, with devices that are in common use which include Polygraphs, Penile Plethysmography, and Visual Reaction Time still in common use with sex offenders. Beside to obvious fact that these are non or questionable science and intrusive, they are currently in use only with sex offenders and have no predictive value with the general population. This contrasts sharply with forensic interviewing protocols with victims, which are thought to have scientific validity if performed properly by a neutral party. In practical application this is not always the case, as we have discussed elsewhere.

10 American Psychological Association Guidelines for Child Custody Evaluations in Family Law Proceedings http://www.apa.org/practice/guidelines/child-custody.aspx

11 State v. Michaels, 264 N.J. Super. 579 (1993), 625 A.2d 489, state of New Jersey, plaintiff-respondent, v. Margaret Kelly Michaels, defendant-appellant. Superior Court of New Jersey, Appellate Division.

12 State v. Kelly, 456 S.E.2d 861 (1995), 118 N.C. App. 589, STATE of North Carolina v. Robert Fulton KELLY, Jr., No. 933SC676, Court of Appeals of North Carolina.

13 State of Florida vs. Bobby Fijnje, Frontline The Child Terror, https://www.pbs.org/wgbh/pages/frontline/shows/terror/cases/fijnjesummary.html

14 The McMartin case was the first of a rash of day care abuse cases prosecuted in a period of mass hysteria in the 80’s and came to symbolize the witch hunt atmosphere that began at that time, and has never really abated. https://en.wikipedia.org/wiki/McMartin_preschool_trial

15 Excellence. Can we be equal and excellent too? John W. Gardner. Harper, New York, 1961

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Michael G. Brock, MA, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. Much of his practice in recent years relates to driver license restoration and substance abuse evaluation, but he also consults and serves as an expert witness regarding forensic interviewing and the use of forensic interviewing protocols in cases of child sexual abuse allegations. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail: michaelgbrock@comcast.net, website, michaelgbrock.com.