The Therapist Must Go To Court

Treating therapists may sometimes be called upon to enter the legal arena because their clients are in litigation. To show how a therapist can address some of the challenges that arise in these situations, I’ve generated a “luncheon conversation” with a fictitious friend and colleague.

I was looking forward to lunch with my good friend and colleague. I hadn’t seen her for over a month, and the message she had left on my phone was intriguing. After proposing a restaurant and confirming the date and time for our luncheon, she concluded by saying, “After doing my best to avoid it, it looks like I’ll be testifying in court, whether I want to or not. I have lots of questions for you.”

I wondered what she meant. What had happened? Was she being sued? Had she commenced a lawsuit against someone? Had she been the victim of a crime – or, and this seemed most unlikely – had she been charged with a crime? As it turned it, it was none of these.

As soon as we met at the restaurant and were seated, she blurted it out: “It looks like I’m going to have to testify in court because of one of my clients,” she said.

“What do you mean?” I said.

“I took on a new client about four months ago,” she said. “She told me she was having lots of problems because she was afraid to drive. She said she had been a passenger in a car that was hit head on, and she simply couldn’t do it. She said talking about it, or even thinking about it, would cause her to start trembling and crying. I could see that the idea of driving a car was a source of anxiety for her.”

“Okay,” I said.

“So, I diagnosed her with a phobia, and proposed a plan based on systematic de-sensitization. She agreed, and we now spend part of every session working on it.”

“Any progress?” I asked.

“Some, but it’s been slow. She’s been able to do some visualization with minimal anxiety, but we haven’t gone as far as getting behind the wheel yet.”

“I see. So, let me guess. There’s a lawsuit on the horizon.”

“That’s how it looks,” she said. “Just as her most recent session came to an end, she mentioned, in that ‘by the way’ manner we’ve all heard so often, that she retained an attorney to sue the driver who caused the accident she was in. She said her attorney wanted to see her treatment records, and that he would be sending me a release she had signed, and would be calling to tell me about the case and to ask me some questions. As she was heading out the door, she also said that sooner or later the lawyers for the person she was suing would probably want to question me, and that I would need to think about dates when I would be available. Actually, I think she said they would want to question me in a deposition.”

“She certainly left you with quite a bit to think about, didn’t she?"

“You can say that again. My head was swimming when she left.”

“Well, maybe it was good that all of this came up at the very end of a session. It gives you some time to think about what you want to say to her. And to her lawyer.”

“Some time, yes, but not a lot. Her lawyer already sent me her signed authorization to release information, so I expect a call from him pretty soon. And her next appointment with me is the day after tomorrow. So, I need to get my thinking straight about all of this.”

“I’m glad we met today,” I said. “We can go over the basics.”

“Great,” she said. “Where do we start?”

“To begin with,” I said, “you may want to explain to her and her lawyer what role you can play in the lawsuit.”

“Okay,” she said, “I’ve given this one some thought already, because I remember what you said in your forensic DVD program. I understand that as the treating therapist, I should not try to serve as my client’s retained expert. I understand the rule against playing multiple roles. I get the principle. But here’s my problem: As a practical matter, how do I avoid being drawn into the role of expert?

“Tell me what you think will happen,” I said.

“Well, my guess is that the attorney will ask me to confirm that I diagnosed her with a phobia, and I certainly have no trouble with this. I also won’t have any trouble confirming that I’ve been treating her with desensitization therapy, and that progress has been slow. All of this is in my records.”

“Okay,” I said.

“The problem will arise when he goes on, as I suspect he will, to ask for my opinions about causality. At the very least, he’ll probably ask me if I think the automobile accident she told me about is the cause of her phobia. It’s here that I’ll start to feel uncomfortable.”

“I think you’re on the right track,” I said.

“The problem is that I’m not in a position to say whether or not her phobia was caused by any particular accident. It could have been caused by the accident she told me about, but maybe not. I haven’t seen her health care records, and can’t be sure that this was the only accident she’s ever been in, or whether she received treatment for this particular kind of phobia in the past. For all I know, she was afraid to drive before she was in this latest accident.”

“What will you say when the lawyer offers to send you all the records you need?” I said.

“I think I’ll explain that looking over her past records to form opinions about causality simply isn’t my role, and that taking this step would diminish my effectiveness as her treating therapist. I could also explain to him, and to my client, that the ethics of my profession don’t allow me to play the role of expert and the role of treating therapist at the same time.”

“I think you’ve got a good plan,” I said.

“Thanks,” she said. “But didn’t you say something like ‘to begin with’ when we first began discussing this? What else are you thinking about?”

“Is there a way this lawsuit could affect your client’s treatment with you?” I asked.

My friend was pensive for a moment, and then said, “Well, yes, there is a way. She’s going to learn, pretty quickly, that what she says to me is no longer completely confidential. She’s authorized me to release all of my treatment records to her lawyer and to the lawyer for the other side. The lawyers in the case, and maybe other people if the case goes to trial, are going to see my treatment records. These records contain entries about statements she made in sessions that she probably assumed would never be made public.”

“How do you think she’ll feel about this?”

“Good question”, she said. “It’s possible she’s already been told by her lawyer to expect a loss of privacy and is prepared, but then maybe not. I think I should go over my records with her before I send them to the lawyers so that she knows what is being disclosed.”

“That seems reasonable,” I said. “Have you given any thought to what you will say if she asks you to change the records to omit statements that she wants to be kept private?”

“I suppose that could happen,” she said, “and if it does, I’ll just tell her that I can’t change the records I’ve already made. This could be distressing for her, but it wouldn’t be ethnical for me to alter the records.”

“I’m not sure she’ll find much comfort in learning it would be unethical for you to alter the records,” I said.

My friend was again pensive for a moment. She then said, “ If there’s something in the records that she thinks should remain confidential, I could suggest that she talk to her lawyer about it. If the lawyer agrees with her, perhaps he can tell the judge about it, and ask the judge for an order to protect some of the records from disclosure.”

“I think you’re right on target,” I said. “Is there anything else you need to talk to your client about?”

“I guess I ought to make sure she understands that if the lawyers want to see the my records to date, there’s a good chance they’ll want to see the records I generate in the future, that is, as long as the case is pending. Unfortunately, knowing that others will read the session notes, as well as anything she might give me, for example pages from her personal journal, will probably discourage her from disclosing very much in our sessions. If she’s reluctant to discuss all issues that are on her mind, at least some of what we should be working on will have to be deferred.”

“I agree,” I said.

“But it’s her choice about what to disclose and what not to disclose, isn’t it? And if it is, doesn’t she deserve to know about her loss of privacy so that she can make informed choices?"

“Yes and yes,” I said.

“Thank you so much,” she said. “You’ve been really helpful.”

“You’re most welcome,” I said, “but in truth I only asked a couple of questions. The answers were all yours. And once again, perfect timing. Here’s our food.”

“But wait!” she exclaimed. “What if they decide to depose me? We haven’t talked about this yet!”

“That’s another subject altogether,” I said. “We can talk about it the next time we get together. In the meantime, you might want to review the two sections of my DVD program that discuss depositions. Even if you aren’t going to be testifying as a forensic expert, I’m pretty sure you’ll find the material helpful.”

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