Dual Relationships and Ethical Obligations

Dual relationships inevitably involve conflicts of interest. Just as an attorney cannot represent the business interests of a client in one matter, and also represent that client’s spouse in a divorce action, mental health professionals are prohibited from engaging in similar conflicts of interest. At PsychLaw.net, we consider dual relationships problematic and unethical. This is clearly articulated in the various ethical codes. Take for example Standard 1.06 (c) of the Code of Ethics for social workers which states:

“Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client.  In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries.  (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or multiple relationships can occur simultaneously or consecutively).”^[1]

Similarly, the ethical code for marriage and family therapists also prohibits dual relationships.  Standard 1.2 of the Code of Ethics of the American Association for Marriage and Family Therapy states:

“Marriage and family therapists are aware of their influential position with respect to clients, and they avoid exploiting the trust and dependency of such persons.  Therapists, therefore, make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of exploitation.  When a dual relationship cannot be avoided, therapists take appropriate professional precautions to ensure that judgment is not impaired and no exploitation occurs.  Examples of such dual relationships include, but are not limited to, business or close personal relationships with clients.”^[2]

The ethical code for psychologists also prohibits dual relationships.  Standard 1.17 (a‑c) of the code of ethics for the American Psychological Association ‑ addressing “Multiple Relationships” ‑ states:

“(a) In many communities and situations, it may not be feasible or reasonable for psychologists to avoid social or other nonprofessional contacts with persons such as patients, clients, students, supervisees, or research participants.  Psychologists must always be sensitive to the potential harmful effects of other contacts on their work and on those persons with whom they deal.  A psychologist refrains from entering into or promising another personal, scientific, professional, financial, or other relationship with such persons if it appears likely that such a relationship reasonably might impair the psychologist’s objectivity or otherwise interfere with the psychologist’s effectively performing his or her functions as a psychologist, or might harm or exploit the other party.

(b) Likewise, whenever feasible, a psychologist refrains from taking on professional or scientific obligations when preexisting relationships would create a risk of such harm.

(c) If a psychologist finds that due to unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist attempts to resolve it with due regard for the best interests of the affected person and maximal compliance with the Ethics Code.”^[3]

Additionally, at PsychLaw.net we look to the ethical standards regarding the “Forensic Activities” of psychologists ‑ specifically Standard 7.03 addressing “Clarification of Role” ‑ states:

“In most circumstances, psychologists avoid performing multiple and potentially conflicting roles in forensic matters.  When psychologists may be called on to serve in more than one role in a legal proceeding ‑ for example, as consultant or expert for one party or for the court and as a fact witness ‑ they clarify the role expectations and the extent of confidentiality in advance to the extent feasible, and thereafter as changes occur, in order to avoid compromising their professional judgment and objectivity and in order to avoid misleading others regarding their role.”^[4]

Similarly, the Specialty Guidelines for Forensic Psychologists indicate the following:

“Forensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship.

When it is necessary to provide both evaluation and treatment services to a party in a legal proceeding (as may be the case in small forensic hospital settings or small communities), the forensic psychologist takes reasonable steps to minimize the potential negative effects of these circumstances on the rights of the party, confidentiality, and the process of treatment and evaluation.” (p. 659).^[5]

The Ethical Guidelines for the Practice of Forensic Psychiatry, adopted by the American Academy of Psychiatry and the Law state:

“A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.”^[6]

Quite obviously, then, the ethical obligations of mental health professionals preclude them from testifying as expert witnesses in matters involving their patients.  A 1997 article perceptively outlined these considerations in the following manner:

“Engaging in conflicting therapeutic and forensic relationships exacerbates the danger that experts will be more concerned with case outcome than the accuracy of their testimony.  Therapists are usually highly invested in the welfare of their patients and rightfully concerned that publicly offering some candid opinions about their patient’s deficits could seriously impair their patient’s trust in them.  They are often unfamiliar with the relevant law and the psycho legal issues it raises.  They are often unaware of much of the factual information in the case, and much of what they know comes solely from the patient and is often uncorroborated.  What they do know, they know primarily, if not solely, from their patient’s point of view.  They are usually sympathetic to their patient’s plight, and they usually want their patient to prevail.”^[7]

We at PsychLaw.net would also indicate there is nothing inappropriate about treating therapists testifying as fact witnesses regarding their patients.  Testifying as a fact witness, however, necessitates that treating therapists clearly recognize the limits of their testimony as a result of their therapeutic role.  When asked to express an opinion directly related to the legal matter at hand, treating therapists are obligated to acknowledge their limitations.  Surprising as it may seem, most therapists have not carefully considered the inevitable conflicts between expert witness and treating therapist.  Therefore, legions of treating therapists are more than ready to take a witness stand and testify as expert witnesses.^[8]  When cross‑examination directs a treating therapist’s attention to the dual relationship problems involved, many therapists reluctantly acknowledge these problems. Consider, for example, how a psychologist responded to the following cross‑examination.

Attny: Aren’t you obligated to acknowledge that your therapist role with Mr. Smith, and any proposed role for you as an expert witness, involves a dual relationship?

Psych: Yes.  A dual relationship does exist at times between treating professionals who treat and also testify.

Attny: Just a moment ago you acknowledged that if the court recognizes you as an expert, you’re obligated to testify objectively, candidly, and forthrightly; correct?

Psych: Yes.

Attny: However, testifying objectively, candidly, and forthrightly could threaten any past or future therapeutic alliance; correct?

Psych: Mr. Smith is not in treatment with me.

Attny: Isn’t it true that testifying as an expert could threaten a past or future therapeutic alliance between Mr. Smith and you?

Psych: Mr. Smith and I have no plans to resume the treatment relationship … and there’s no way that I know of to threaten a past treatment relationship through being an expert witness.

Quite obviously, the psychologist could not guarantee that Mr. Smith would never return to seek her services as a therapist.  Consequently, her testifying as an expert witness created a substantial risk of a dual relationship. At PsychLaw.net we feel that well informed professionals recognize such risks and avoid them.

Conversely, other mental health professionals clearly overstep the limits of their responsibilities as evaluators.  Consider, for example, how the following psychologist trapped himself into a dual relationship.  This psychologist had undertaken an evaluative role in a child custody dispute.  The psychologist had no therapeutic responsibilities whatsoever.

Attny: Did you ever say to any third person, and by third person I mean someone other than the minor child, state that in the event this case goes to a full hearing, you are going to testify and recommend a reduction in Ms. Smith’s parenting time, lower than what she is receiving?

Psych: I may have.

Attny: Did you intend that as a penalty of some sort for going forward with this hearing because you view going forward as not in the minor child’s best interest?

Psych: No sir.

Attny: So, in other words, if this case goes to trial and you testify, you expect your testimony to be “I want her [Ms.Smith] to have less parenting time than what she currently has and less than I have recommended in my report” is that what you intended to do?

Psych: No.  What I intended to do, and what my report was meant to do, was kind of warn the parties that this situation has to change.  I try in my reports not only to report my findings and opinions, but if I have an opportunity, to try and educate in a sense.

When this psychologist sought to “educate” one of the parties, he backed himself into a dual relationship.  His responsibilities were limited to reporting his “findings and opinions.”  Attempting to “educate” one of the parties is obviously inconsistent with confining oneself to evaluative responsibilities. At PsychLaw.net we feel the following cross‑examination outline will effectively alert judges to the inappropriateness of treating therapists testifying as experts.

Cross‑Examination Regarding Treating Therapist and Expert Witness

1. X, you are familiar with the ethical standards of your profession ‑‑ Correct?
2. And of course you are familiar with ______ [hold up, and read title from Dr. X’s professional group=s ethical standards].
3. X, your profession generally recognizes that “dual relationships” with a patient are fundamentally unethical ‑‑ Correct?
4. Dual relationships prevail when one relates to a patient in multiple capacities ‑‑ Correct?
5. Relating to a patient as both therapist and business partner would be an example of a dual relationship ‑‑ Correct?
6. Your profession’s code of ethics prohibits you from involving yourself in dual relationships with your patients ‑‑ Correct?
7. [Read selected portions of the relevant ethical code addressing dual relationships] And so Dr., you are bound by these requirements ‑‑ Correct?
8. And ultimately, then, dual relationships are unethical because of their potential to harm patients ‑‑ Correct?
9. If I am your patient ‑ and we also involve ourselves in some business venture ‑ I could get confused about whether you are relating to me as therapist or business partner ‑‑ Correct?
10. And that kind of confusion could damage me because I might feel that business considerations have led you to change how you relate to me as my therapist ‑‑ Correct?
11. Now Dr. X, I would like you to consider your obligations as a treating therapist. The relevant research clearly demonstrates that a “therapeutic alliance” is necessary for effective psychotherapy ‑‑ Correct?
12. A therapeutic alliance means that you and your patient are aligned together pursuing the same therapeutic goals ‑‑ Correct?
13. A therapeutic alliance allows your patient to feel confident that you ‑ as the therapist ‑ are genuinely committed to his or her welfare ‑‑ Correct?
14. Therapeutic alliances also involve a degree of therapist empathy ‑‑ Correct?
15. In response to an empathic therapist, patients feel that their therapist understands them, as they understand themselves ‑‑ Correct?
16. In response to a therapeutic alliance, patients also feel that their therapist relates to them in a nonjudgmental manner ‑‑ Correct?
17. And this nonjudgmental manner of the therapist typically involves acceptance of the patient ‑‑ Correct?
18. When building a therapeutic alliance, therapists recognize the priority of the patient’s welfare ‑‑ Correct?
19. In your opinion, you have established a positive therapeutic alliance with your patient, Mr. Smith ‑‑ Correct?
20. Now, you understand that if you are recognized as an expert witness, you are obligated to testify objectively, candidly, and forthrightly ‑‑ Correct?
21. You do understand those obligations of candor, forthrightness and objectivity ‑‑ Correct?
22. X, aren’t you obligated to acknowledge that your previously assumed role as Mr. Smith’s treating therapist, and your proposed role as an expert witness, involves a dual relationship?
23. Just a moment ago, you acknowledged that if this Court recognizes you as an expert witness, you are obligated to testify objectively, candidly, and forthrightly ‑‑ Correct?
24. However, testifying objectively, candidly, and forthrightly could threaten the therapeutic alliance between you and your patient, Mr. Smith ‑‑ Correct?
25. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that the two of you are no longer aligned together pursuing the same goals ‑‑ Correct?
26. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling you are no longer committed to his welfare ‑‑ Correct?
27. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that you no longer understand him and his circumstances as he does ‑‑ Correct?
28. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that you no longer relate to him in a nonjudgmental manner ‑‑ Correct?
29. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that you no longer regard him with acceptance ‑‑ Correct?
30. And in this specific legal proceeding, your patient ‑ Mr. Smith ‑ prefers a particular outcome ‑‑ Correct?
31. And to the extent you enjoy a therapeutic alliance with Mr. Smith ‑ aligned together pursuing the same therapeutic goals ‑ you would prefer the same outcome related to this legal proceeding ‑‑ Correct?
32. And if you prefer a particular outcome from this proceeding ‑ an outcome that would benefit your patient ‑ it becomes basically impossible for you to testify objectively, candidly, and forthrightly ‑‑ Correct?
33. Therefore, Dr. X, would you agree that in view of your treatment relationship with Mr. Smith as his treating therapist, your testifying as an expert witness in this proceeding constitutes a dual relationship? And again for clarification purposes, your profession’s ethical code specifically prohibits you from entering into a dual relationship with your patients ‑‑ Correct?

Footnotes:

[1]. National Association of Social Workers (1996, August 15).  Code of Ethics.  Adopted by the NASW Delegate Assembly, Washington, DC, August 15, 1996, Effective January 1, 1997 (p. 2).

[2]. American Association for Marriage and Family Therapy. (Aug/Sept 1998).  AAMFT Code of Ethics – Eff July 1, 1998.  Family Therapy News, (p. 10).

[3]. American Psychological Association (1992).  Ethical principles of psychologists and code of conduct.  American Psychologist, 47, 1597,1611 (p. 1601).

[4]. American Psychological Association (1992).  Op cit., (p. 1610).

[5]. Committee on Ethical Guidelines for Forensic Psychologists (1991).  Specialty guidelines for forensic psychologists.  Law and Human Behavior, 15, 655-665.

[6]. American Academy of Psychiatry and the Law (1998).  Ethical guidelines for the practice of forensic psychiatry.  In Membership directory of American Academy of Psychiatry and the Law (pp. x-xiii).  Bloomfield, CT: Author.

[7]. Greenburg, S.A. & Shuman, D.W. (1997).  Irreconcilable conflict between therapeutic and forensic roles.  Professional Psychology: Research and Practice, 28, 50-57 (p. 56).

[8]. Remember, “objectivity” implicates competence.  See, ie: Malbrew v. Port Barre Mills, Inc., 693 So. 2d 259 (La. Ct. App. 1997) (noting that the only witness qualified to testify as to the claimant’s mental injury or illness was a clinical psychologist.  Two treating orthopedists, claimant’s treating physician and two treating psychiatrists were not competent).