Avoiding Liability Bulletin – October 2013
Therapists commonly get in trouble for making custody recommendations when they have not been hired to conduct a custody evaluation. There is a difference between saying that a person (the client) would make a good custodial parent and saying that the child would be better off if custody were with the client. Practitioners also get in trouble by writing about (expressing a professional opinion) a person or persons who they have not treated or examined – without stating that their comments are based upon information they have obtained solely from the treatment of the patient and not from the treatment or evaluation of such other person(s). Practitioners must be careful of the representations that they make under oath or otherwise, especially in contested custody or visitation matters!
In many states, disputes between the parties involved in family law matters are more likely to result in a complaint being made against the treating (or evaluating) mental health practitioner than in most other situations. Custody and visitation disputes, especially those in which the therapist or counselor has treated one of the parties or one or more of the children, produce a lot of grist for the disciplinary mill. Hopefully, licensing boards and their investigators are cognizant of the fact that an angry parent who was denied legal or physical custody might lash out at a therapist or counselor who may have treated one or more of the parties to the litigation or a child.
My experience has been that many of these complaints go nowhere. But there are some that proceed forward. Those usually involve the practitioner who has provided some form of written report (or a declaration or affidavit) to the court, wherein the therapist appears to be favoring one parent over the other. This “bias” may in fact be true and justified, or it may be the result of inaccurate and improper involvement of the practitioner. In some cases, the practitioner goes too far in his or her enthusiasm to help the patient. For example, instead of declaring under oath that the therapist has been informed by the patient of the consistent tardiness of the parent with visitation, the careless or overly enthusiastic therapist simply declares that the parent with visitation is consistently late in bringing the child back from weekend visitation.
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.