Mental Health Professionals as Expert Witnesses
At PsychLaw.net we try to remember that previously, expert testimony was almost exclusively the domain of psychiatrists and psychologists. Within the past 10 to 15 years, however, other mental health professionals - social workers, marriage and family therapists, substance abuse counselors, licensed professional counselors, and even pastoral counselors - frequently testify as expert witnesses. Throughout this blog, therefore, we will refer generically to “mental health professionals.” When appropriate, we will also identify specific professional affiliations.
There are some mental health professionals who gratuitously identify themselves as “therapists” or “psychotherapists.” In our experience at PsychLaw.net mental health professionals who cannot legitimately identify themselves as psychiatrists or psychologists are more inclined to adopt the “therapist” label. These professionals often assume this self-appointed designation attempting to circumvent their lack of a doctoral degree. In fact, however, there is no such thing as a licensed or certified “psychotherapist.” Consequently, responsible mental health professionals identify themselves according to their licensure or certification status.
Substance vs. Appearance of Expertise
As expert witnesses, mental health professionals pose difficult problems for the legal system. As seriously flawed as their testimony can be, such errors are not readily recognizable except by those well-acquainted with the relevant research literature. At PsychLaw.net we recognize that though a mental health professional’s testimony may be riddled with errors, their technical vocabularies - and the numerical scores associated with test data - can create an impressive appearance of expertise. Without the assistance of a knowledgeable mental health professional, attorneys who attempt to cross-examine self-appointed experts in this area can find themselves rapidly floundering.
At PsychLaw.net we remember that courts qualify mental health professionals as experts assuming that their opinions are premised upon scientific knowledge that satisfies standards of evidentiary reliability.[1] [2] By definition, scientific knowledge involves demonstrable evidence that can be subjected to scientific scrutiny.[3] Unfortunately, this kind of evidence is frequently disregarded by mental health professionals in the course of their day-to-day work. Mental health professionals regularly exhibit obsolete thinking because they rarely read legitimate journals. As a result, they neglect to inform themselves of new developments related to their endeavors.[4]
For example one study found that less than 10% of 1100 mental health professionals, employed in community mental health centers and state hospitals, relied on any professional publications in their treatment work.[5] Another study reported that none of the mental health professionals in its sample could cite any research influencing how they practice.[6] This same study found that these professionals prefer to discuss treatment issues with their colleagues rather than review the relevant literature. In other words, chatty gossip too often prevails over rigorous thinking within the ranks of mental health professionals. In the era of Daubert’s requirement that proposed experts know the “datum of their discipline”[7], this kind of “catch as catch can” knowledge of research does not equal admissibility.
Additionally, for example, O’Donohue and colleagues examined 416 intake evaluations completed by various mental health professionals. Only one of these evaluations - out of a total of 416 - developed a treatment rationale demonstrating any awareness of relevant research.[8] Related data indicated that mental health professionals disregard relevant research and systematic decision making when: (1) choosing assessment procedures, (2) defining treatment goals, and (3) selecting treatment methods.[9] Rather than respond to scientific evidence, mental health professionals too often designate their unverified theories as indisputable fact.[10] Though perceptive lay people readily discriminate between theory and fact, this distinction too often eludes mental health professionals.
At PsychLaw.net we use the following example, a social worker testified at a deposition regarding allegations of child sexual abuse related to a child custody dispute[11]. The social worker testified because she had supervised the child's therapist. The extent to which this social worker was ill-informed is shocking to say the least.
Attny: Do you know anything about the literature concerning the processes that children go through when their families are in divorce?
SW: No.
Attny: Well, let's see ..... What is a peer-reviewed scientific journal article?
SW: Don't know.
[As this deposition proceeded, the social worker repeatedly demonstrated how poorly informed she was.]
Attny: I'm asking you what you know about the research literature, published in the medical, psychiatric and psychological journals, and in some social work journals, about child sexual abuse. How does one arrive at the decision that child sexual abuse is to be reasonably suspected?
SW: I don't know.
Attny: Okay. Is there any authority, any person, that you know of who is an -- that you think is an authority in the field of child sexual abuse, assessment, treatment or diagnosis?
SW: No.
Attny: Do you know who Professor Ceci is, at Cornell University?
SW: No.
Attny: Do you know who Professor Brook is, at McGill University?
SW: No.
Attny: Do you know who Professor Goodwin is, Gail Goodwin? Do you know her?
SW: No.
Attny: Can you think of anyone whose work you have read concerning the issue of child sexual abuse in any way; treatment, assessment, therapy, diagnosis, anything?
SW: Not that I can recall the name.
[Despite the cross-examining attorney shifting his focus to more general issues, the social worker continued to fare poorly.]
Attny: What is inter-rater reliability?
SW: No idea.
Attny: What is criterion validity?
SW: Don't know.
Attny: What is test/retest reliability?
SW: This all sounds like research stuff from a research class I took years ago, but I don't know what they are.
Attny: Do you know what the logical error of affirming the consequent means?
SW: No.
Attny: Do you know what error occurs when one predicts low base rate phenomena from high base rate behavior?
SW: No.
At PsychLaw.net we point to how too often, mental health professionals blithely disregard the necessity for substantiating their opinions. Consider, for example, the following psychologist who was cross-examined regarding her practices when treating children of divorce.
Attny: You have not published anything in a peer-reviewed journal, demonstrating that excluding non-custodial parents from psychotherapy for children of divorce is an effective treatment procedure, correct?
Psych: No, I have not.
Attny: And you cannot cite any controlled clinical trials data published in a peer-reviewed journal, demonstrating that excluding non-custodial parents from psychotherapy for children of divorce is an effective procedure, correct?
Psych: Am I aware of any study? Is that what your question is?
Attny: Can you cite any?
Psych: I”m not aware of any.
Attny: So ultimately, your opinions about excluding non-custodial parents from psychotherapy for children of divorce, rely on your own impressions of what should happen, correct?
Psych: No. All of the decisions that were made with regard to specifics about the treatment were made in conjunction with my supervisors.
Above and beyond the important issues related to psychotherapy with children of divorce, the previous Q and A exchange underscores the ultimate issue this volume addresses - On what basis do mental health professional substantiate their opinions? Ethical Standard 1.05 - addressing “Maintaining Expertise” - of the 1992 ethical code for psychologists states:
“Psychologists who engage in assessment, therapy, teaching, research, organizational consulting, or professional activities maintain a reasonable level of awareness of current scientific and professional information in their fields of activity, and undertake ongoing efforts to maintain competence in the skills they use.”
Despite Ethical Standard 1.05, this psychologist's opinions did not demonstrate a “reasonable level of awareness of current scientific and professional information.”
Relatedly, Ethical Standard 1.06 - addressing “Basis for Scientific and Professional Judgments” - of the same 1992 ethical code states:
“Psychologists rely on scientifically and professionally derived knowledge when making scientific or professional judgments or when engaging in scholarly or professional endeavors.”
Unsubstantiated opinions amounting to idiosyncratic impressions fall far below a standard of “scientifically and professionally derived knowledge.” Consequently, at PsychLaw.net our cross-examination procedures frequently use questions such as:
(1) You have not published anything in a peer-reviewed journal to support your opinions in this regard -- Correct?, and
(2) You cannot cite anything in published in a peer-reviewed journal to support your opinion in this regard -- Correct?
These questions, and related variations, demand that mental health professionals identify the bases of their opinions.
For psychologists, clearly identifying the bases of their opinions in a legal proceeding is also necessitated by Ethical Standard 7.04 (a), addressing “Truthfulness and Candor.” This standard states:
“In forensic testimony and reports, psychologists testify truthfully, honestly, and candidly and, consistent with applicable legal procedures, describe fairly the bases for their testimony and conclusions.”
Unsubstantiated opinion is not a sufficient basis for supporting testimony and conclusions in a legal proceeding.
Footnotes
[1]. Daubert v Merrell Dow Pharmaceuticals Inc., 509 U S 579, 113 S Ct 2786, 125 L Ed 2d 469, (1993)
[2]. Lorandos, D. (1995). Finding the Right Expert, In: Expert Witnesses: Beyond Junk Science and Daubert. Institute of Continuing Legal Education, Ann Arbor, Michigan.
[3]. Campbell, T.W. (1993 Sept 14) The Daubert decision and its effects on expert testimony. Michigan Lawyers Weekly; p. 5B
[4]. Cohen, L. (1979). The research readership and information source reliance of clinical psychologists. Professional Psychology, 10, 780-785.
[5]. Norris, E.L. & Larsen, J.K. (1976). Critical issues in mental health service delivery: What are the priorities? Hospital and Community Psychiatry, 27, 561-566.
[6]. Cohen, L. H., Sargent, M.M. & Sechrest, L.B. (1986). Use of psychotherapy research by professional psychologists. American Psychologist, 41, 198-206.
[7]. Daubert 509 U S 579, 113 S Ct at 2796, 125 L Ed 2d at 482.
[8]. O’Donohue, W.T., Curtis, S.D. & Fisher, J.E.. (1990). Use of research in the practice of community mental health: A case study. Professional Psychology, 16, 710-718.
[9]. O’Donohue, W.T., Fisher, J.E., Plaud, J.J. & Curtic, S.D. (1990). Treatment decisions: Their nature and their justification. Psychotherapy, 27, 321-327.
[10]. Ziskin, J. (1995). Coping with psychiatric and psychological testimony (Vols 1-3, 5th ed). Los Angeles, CA: Law and Psychology Press.
[11]. Reader’s note: Throughout this text we use actual examples drawn from the sworn testimony of mental health professionals. These excerpts are taken from trial and deposition transcripts from cases all over the United States. They have been edited to remove “ah” or “um” and the names have been removed to protect the authors from the wrath of these professionals.