Psychologists who do not identify as forensic psychologists know that they need to be prepared for those occasions when they may find themselves transported to that venue by no choice of their own. Our APA Ethics Code gives us direction on this point in stating, “When assuming forensic roles, psychologists are to become reasonably familiar with the judicial or administrative rules governing their roles.” Let’s take a look at Dr. John Q. Public’s foray into a court appearance and see how he fares.
Dr. Public is a licensed psychologist who primarily does psychotherapy with adults and children and some assessment with children. Dr. Public has been seeing a child for several months for his difficulties in school both in academics and behavior.
The child’s parents divorced several years ago and the boy does see his father occasionally, but the focus in therapy has been on the boy’s life at school and home. Out of the blue, Dr. Public received a notice to appear in court for a proceeding brought by the father to reconsider custody. Dr. Public was well aware that he was a treating psychologist and thought he would be able to enact his role competently in court. The mother was informed of the court notice and agreed to his testimony as the treating psychologist.
When Dr. Public took the stand, he made observations about the boy’s progress as well as difficulties in school. Dr. Public soon found himself thrown rapid fire questions by the opposing counsel about the mother’s fitness for custody and being given challenges to produce reasons the father should not have custody. Dr. Public steadied himself and responded that as the treating psychologist, he could not make custody judgments because he had not done a custody evaluation.
Then, just as he was feeling confident about his answer, the judge asked, “Dr. Public, now surely after seeing this boy for these months, you have some opinion about the parents. You’re not being asked to make a custody evaluation, and I would really value your general opinion here. Think of yourself as just a member of the public, not a psychologist, and tell me your overall viewpoint.”
The rephrasing of the question and the fact that the judge was pressuring him, threw Dr. Public out of the decision tree he had carefully prepared for his response. He thought, in the intensity of the moment, that he not only could but should answer. The judge was sounding as if Dr. Public wasn’t competent if he couldn’t answer these questions. Dr. Public responded that “if he were giving an opinion and not an evaluation and if his comments were to be regarded strictly as a member of the public” that he could give his thoughts about both parents given what the boy had told him.
How did Dr. Public do? We might want to give him an “A” for effort but his report card performance then begins to slip:
- Informed Consent: When Dr. Public began seeing the boy for treatment, he had no idea that custody or any court engagement would be in the picture. He had informed the boy at the outset of therapy that he might have to disclose material to his mother and gave the risk conditions under which he would do so but he did not include this circumstance. He now has to deal with the great potential of a rupture in his relationship with the boy, having revealed what the boy thought was confidential.
- Opinion versus Evaluation: Perhaps in his interest to cooperate, Dr. Public accepted the judge’s distinction between opinion and evaluation. The APA Child Custody Guidelines and the APA Ethics Code treat the terms opinion and evaluation equivalently in that an opinion is an evaluative statement. Further, even though Dr. Public had firsthand knowledge of the mother’s parenting style, insomuch as Dr. Public did consult with and include the mother in quite a few sessions, he had not conducted interviews, administered instruments or sought other critical data that would be necessary to render an opinion on custody.
- Private or Public Conduct versus Professional Conduct: A litmus test that can assist psychologists in making the public versus professional distinction is this. Is it really likely that the judge would ask the bailiff to go outside the courthouse and select the fifth person to walk by, bring that person into court, and ask an opinion that would be utilized in the court’s decision? If the answer is “no” then the psychologist is not acting as a member of the public. As unlikely as this scenario may sound to the reader, there are many cases in which this very trick has been played on psychologists in several venues.
Dr. John Q. Public has had his turn in the proverbial washing machine wringer. On the bright side, the case of a well-meaning psychologist getting caught in the wringer can be educational and corrective more readily than those few cases of intentional unethical conduct of which we hear more often.