Avoiding Liability Bulletin – April 2013
… In an interesting case in California, an appeals court has ruled that a defense attorney in a juvenile court matter may hire his or her own psychotherapist (as an expert) to examine the minor defendant and to assist the attorney in the defense of the case, and that the attorney-client privilege covers the communications between the minor and the psychotherapist, rather than the arguably more porous psychotherapist-patient privilege. The case was a juvenile court proceeding, wherein a wardship petition was filed alleging that the minor had committed several “criminal” offenses under the Penal Code. The defense attorney sought a court order of appointment of the psychotherapist designated by the defense. To the extent that this decision is not overruled, the decision likely has wider application (in California) than to juvenile court proceedings.
The court ruled that the attorney may be selected by the defense, and that the psychotherapist need not be one of the mental health practitioners on the court lists for use as experts in certain litigation involving competency and related forensic issues. Those psychotherapists believed that they were duty-bound to report suspected child abuse or act pursuant to the duty to protect the intended victim of the patient’s dangerousness in “Tarasoff situations.” The court ruled that the defense can hire its own qualified expert to assist counsel in conducting reasonably necessary psychological evaluation, assessments, and other activities related to the presentation of the case. All reports were to go to the defense attorney who sought the court order of appointment of the psychotherapist.
The central question that arose related to the applicability of the psychotherapist’s child abuse reporting duties, as well as the duty that exists under the famed Tarasoff v. Regents University of California decision (the California Supreme Court decision in 1976 regarding dangerous patients and the duty of psychotherapists to protect intended victims), for the psychotherapist appointed to assist the defense. As stated above, most of the psychotherapists on the court-appointment lists were of the belief that they were under the “Tarasoff duty” and that their obligation to report child abuse was in existence – even if they were appointed by the court to provide evaluation services at the request of the defense.
The Court ruled that the communications between the defendant and the psychotherapist hired by the defense were covered by the attorney-client privilege – not the psychotherapist-patient privilege. The Court said that the attorney client privilege would extend to any disclosures made by the defendant to the psychotherapist on the “defense team.” The court likened the defense’s hiring of the defense expert (the psychotherapist) as the hiring of a translator or other expert witness hired by the defense – also covered by the attorney-client privilege. The Court stated that the belief of the psychotherapists on the court’s panel that they would have to report child abuse, if they had been appointed to assist the defense, was incorrect.
The psychotherapist hired as a defense expert would, of course, report any suspicion of child abuse or any situation requiring action to protect a third party to the lawyer representing the defendant. We need not here discuss the ethical or legal duties of an attorney under such circumstances in a particular state.
ABOUT THE AUTHOR
"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.