EXPERT WITNESS: I beg to differ

By Michael G. Brock

The National Psychologist for January-February 2012 ran an article in the Risk Management section regarding proper responses to the courts' requests for information from mental health professionals (MHPs) . They cited two cases: The first had to do with a marital/family counselor who had been treating a family for more than a year. The parents ultimately decided to break up and the court ordered the family therapist to provide a custody/parenting time recommendation.

The court's logic was that, as the treating therapist, the MHP knew the family best and was therefore the person best qualified to assist him in making this decision. There certainly is logic to that point of view, and I have had it expressed to me by judges. I've also been consulted by colleagues who have found themselves in this situation and not known what to do. Even if they didn't know that this action presented a clear danger to them - constituting dual and conflicting and therefore unethical roles - these colleagues were not happy about the court's request for them to act in this capacity, but were intimidated by the courts request/order and were reluctant to incur the judge's wrath by declining.

When colleagues inquire, I tell them that I don't believe a judge can order them to perform a mental health function on behalf of the court unless they have agreed to perform that function and have been adequately compensated. But the real problem is that many judges are simply unaware that they have put the MHP in an untenable position. The judge's responsibility is to seek the best interests of the child; the law makes that clear. The lawyers for either side owe their primary obligation to the parent who has contracted their services. But for the MHP, all of the parties involved are his clients, and he cannot ethically prefer the interests of one treatment client to the interests of another treatment client, the needs of the children notwithstanding.

In the case cited, a recommendation for custody and parenting time was made and the result was understandably a complaint filed with the licensing board.

The second case cited involved an MHP being requested to turn over psychotherapy records to the attorneys in an unspecified legal proceeding. The authors state, "The psychologist was very concerned that the information contained in the records was very private and violated the confidentiality rights of her client. Consequently, she simply refused to comply with the court order. Because of her refusal, the judge sanctioned her and ordered her to pay a significant fine along with the costs incurred by the attorney in trying to obtain these materials."

The article points out that most therapists don't understand their rights and responsibilities when it comes to the forensic arena, especially when they are not voluntarily participants; people whose practice routinely brings them into contact with the courts. The authors observe that some situations require compliance and some do not. As a rule, a court cannot order an MHP to provide a specific service to the court, particularly if the request violates the standards of professional practice. However, some type of action is required. The authors suggest notifying the court as to why the order cannot be complied with and the ethical and professional standards foundation for this.

So far, so good. But the authors go on to say that the mental health professional cannot educate the court on legal matters. "That is simply out of their area of expertise." They further state that the two examples given in the article demonstrate these differences.

I beg to differ. First of all, while I know very little about the law, I do have some knowledge of the laws that govern my professional behavior, and particular those that apply to my actions in a forensic setting. For one thing, I know that, in addition to violating professional guidelines regarding confidentiality and the principle of "First, do no harm," releasing records of family therapy without the written approval of all parties over 18 is a violation of Michigan law except when that therapy is ordered by the court. I have had cases in family court where the judge has ordered the parties to sign releases to have their marital/family and/or individual therapy records provided to the court or to the attorneys. I find this rather frightening, and for this reason I keep the minimum records necessary to comply with law and protect the client from harm and myself from liability in these cases. Moreover, I would be a difficult witness if subpoenaed.

I am also aware that in Jaffe v. Redmond , the U.S. Supreme Court ruled the doctor-patient confidentiality privilege extended to all therapist-client relationships. I would certainly want to bring this to the court's attention before supplying records in violation of Michigan statute and federal case law. If, after a discussion of the matter, the court continued to insist that I provided the records, I would consult legal counsel through my malpractice carrier and most likely turn over the records.

However, I have never found a judge to be this unreasonable. I once was asked on the stand by an attorney to go into the specific responses to each question on the MMPI-2. I said that I thought that would be a violation of federal copyright law and the matter was immediately dropped.

Forensic mental health practice involves the appropriate application of behavioral science to a legal situation. No one really wants to see a serious misapplication of evidence, though granted, there might be (and often are) competing interests. If, in the interests of justice, the court finds an application of scientific evidence for other than its intended purpose is appropriate, that is ultimately where the authority and responsibility lies.


Michael G. Brock, MA, LLP, 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. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. 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@

Published: Wed, Jan 18, 2012