AVOIDING LIABILITY BLOG

A Reminder

January 2013

… When a therapist or counselor testifies in a legal proceeding, whether at a deposition or at trial, the practitioner must remember that his or her primary legal and ethical obligation is to tell the truth. While this may seem simple and not needing mention, at least one caution is worthy of repeating (I have written about this before).

The caution is that when testifying about the extent of the mental or emotional harm suffered by a patient, the patient’s attorney may pressure the practitioner to testify to a degree of harm beyond that seen or believed by the practitioner. This sometimes happens because in a civil action for money damages, the greater the injury and the impairment, the more the case is worth – assuming that it can be demonstrated that it was the defendant’s negligence or intention that caused the harm. The practitioner must resist any such pressure and must make clear to the patient’s attorney and the patient that the practitioner’s testimony will be nothing but truthful, and that his or her professional judgment and integrity will not be compromised.

Cases where an employee was unlawfully discharged from employment and was thereby emotionally and economically harmed, or cases where the patient has suffered physical injury and psychological or emotional harm as a result of the negligence of the defendant, as in the case of an automobile or other accident, or in the case of medical malpractice, are examples of the kind of tort cases that mental health practitioners may encounter. In such cases, the patient will usually waive his or her psychotherapist-patient privilege as a matter of law by tendering the issue in the lawsuit – that is, by putting forth the issue of the alleged harm to his or her mental or emotional condition – thus opening the door to inquiry (including cross-examination at trial) by the opposing party’s attorney.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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