Professional Practice: Child and Family Interventions in the Forensic Setting

Dr. Florence Kaslow accepted an invitation to discuss issues attendant to assuming dual or multiple roles, specifically in a divorce or custody case, and her response was published in the Winter 2002 issue of the American Psychology Law Society newsletter. Her response underscored the potential pitfalls in assuming multiple or dual roles, the popularly held position, and she ably provided support for that argument. Dr. T. Richard Saunders offered a second opinion, arguing for a quite different tack that was thought provoking. We offer it for your consideration, and welcome commentary.—The Editors

Speaking as a psychologist who has practiced for many years in the child maltreatment and child custody context, I read with trepidation Dr. Florence Kaslow’s (2002) article on this topic. My apprehension arises from what I anticipate as possible misinterpretations that can be placed on her article, and I want to express some concerns about her ideas and offer a second opinion.

Forensic Roles

First, Dr. Kaslow makes much of the notion of various “roles” psychologists may play in court-related settings. She emphasizes consultant, expert witness, evaluator, and mediator as examples of these roles. What she does not note is that the distinctions she proposes, while common, are in many respects completely arbitrary. They are the result of an after the fact analytic rationale, superimposed on the legal process of case disposition.

Depending upon the type of “treatment” or other invention employed, distinguishing the behavior of psychologists actually playing these different “roles” is often impossible in my experience. This is the rough equivalent of distinguishing types of psychotherapy, based on outcomes or transcripts of content, which the technical eclectics among us (e.g., Lazarus & Zur, 2002, Norcross, 2002, p. 346-347; Zur, 2001) frequently assure us cannot be done. What are actually distinctive, as Dr. Kaslow acknowledges, are the end goals and the focus of the work, in the thought processes of the psychologist – not necessarily the intervention itself, its results, or the specific procedures thought to be employed.

Freedom of Choice For the Client

From the point of view of the recipient, which from the perspective of ethics is one that is crucial, it is of course the consumer’s understanding of the intervention that is important. That is, if the participants have an informed understanding of the goals and methods employed, then they can make their own decisions about with whom, and how, they choose to proceed.

Post hoc analyses of interventions have little if any value in determining client choices in forensic settings. In fact, I submit that the entire concept of roles as illustrated by Dr. Kaslow fallaciously suggests that the psychologist or other participants can and should make these distinctions in advance, and if they did so, some better professional behavior would ensue.

To my way of thinking, what matters most is not what the psychologist thinks about what the psychologist does, or what the psychologist intends. What matters is what the recipient of the services knows and chooses to do with that knowledge. Too often, it seems that many forensic psychologists convince themselves that in their interactions with clients, the critical part of the interaction is all about them – i.e. the forensic psychologists – and not about the client. This is certainly not the legal view of the situation, and it is not one that to me is professionally valid, either (e.g., American Bar Association 1997). As with the fundamental concept of legal privilege, the privilege belongs to the client, not to the practitioner.

Multiple Clients in the Legal Setting

Another concern that needs emphasis is that the behavior of the psychologist often has sources other than what the psychologist chooses to do or not do. For example, it is often necessary to reach an agreement with legal counsel for two or more contending parties, in order to open the way to certain professional services – whether evaluation, treatment, mediation, or something else. The court itself often plays a role in these determinations, since the bench may select and charge the psychologist with certain tasks, or else the Court may endorse an agreement originally put forth by legal counsel.

If I may offer a brief example, a psychologist became involved in what had become a visitation dispute between two parents, when there had been allegations of serious criminal actions (among other things, child sexual abuse) by one of the parents, involving two minor children. In this instance, the criminal aspects of the case were never addressed. Instead, the Court determined that it credited the testimony it had already heard, to the effect that visitation with the suspect parent should continue, but that caution in the form of supervision of the visits was required. When the psychologist who had evaluated the children testified, the judge asked directly whether, since he already knew the children and many details of the case, the psychologist would be willing to serve as the appointed visitation supervisor. With some stipulations, this was agreed to by the attorney for both sides, as well as the two parents themselves (the children were not separately represented).

Very little structure was provided by the bench in playing this new “role.” So, the psychologist developed a plan in writing for how to proceed, and presented it to the Court for its endorsement (or not). The Court approved, in writing, of the plan, and implementation proceeded as the Court ordered.

Interestingly, both parents then began to object to the plan, for completely different reasons. One parent tried to argue what had already been lost as a legal point, that there should be no visitation of any kind. The other parent objected that the plan should be ignored, because it was too burdensome. Neither side was successful in persuading the bench to change its mind, and the Court rejected legal motions to change its order.

As a result, the parent who wanted supervision set aside appealed to a higher court, using an earlier ruling as a precedent. In that earlier case, the Maryland Court of Appeals ruled that a trial judge abused his discretion by allowing supervision of parental visits to be determined by a mental health professional. In this case, however, the Court of Appeals ruled that there was no abuse of discretion, because the Court had not left anything to be determined by the psychologist. The appeals court specifically cited the letter seeking approval of the Court as an indication that the lower tribunal had retained its legal authority, and that the psychologist was acting only as a legitimate agent of the trial judge.

This is a specific example of a psychologist playing “roles” in a forensic setting that were clearly not in accord with Kaslow’s analysis. This was done partly as a service to the various clients, the Court, and the attorneys. It was also partly a service to the children—the parents who were not subjected to the vagaries of someone else coming into the case de novo and having to re-examine them, acquaint themselves with the facts, and delaying matters – while the children risked some vicarious traumatization revealing to yet another stranger what had happened to them.

Conflict of Interest/”Dual Relationships”

Another question that arises frequently, again from a legal point of view, concerns whether any conflict of interest exists that might affect the quality of the services rendered to the client. Usually, this is construed as any factor that might affect loyalty to the interest of the client, such as some hidden financial consideration (Slovenko, 1973). Thus, for example, an attorney would not ordinarily accept a defendant as a client if the attorney also did legal work for the plaintiff. Or, if a lawyer had a presumed fiduciary responsibility to one side of a case, that lawyer would not undertake to represent another party adverse to the first. Often, these potential conflicts are handled by disclosure to the client (American Bar Association,1997).

In practice, what this means is that relationships hidden or unknown to the client are not permitted, if they affect advocacy in legal proceedings. In psychology, private financial or personal/sexual entanglements with the various clients in a case might be examples of the same type of adverse conflict of interest.

However, Dr. Kaslow’s analysis in terms of “roles” does not help us understand these conflicts of interest. When, specifically, do these “roles,” which in the end are nothing but the presumptions of an observer in the first place, become harmfully conflictual? Actually, an analysis post hoc of a given set of circumstances and actions may provide a heuristic value to a case, very much like a psychological post mortem can provide valuable information about a suicide. However, there is no implication that fault (legally or professionally) can necessarily be attributed on the basis of such a post hoc understanding.

Again, let me illustrate with an example. A married couple approached a psychologist after they made a firm decision to divorce. These former counseling clients requested that the psychologist see their two children and assist the entire family in achieving a positive post-divorce adjustment. The children had no pre-divorce history of difficulties, and the task was accomplished in a brief set of interviews, with provision for further follow-up, if either parent or either child felt it useful or necessary.

Unknown to the psychologist, the two adult parties placed a clause in their divorce decree, naming him as a mediator concerning any matter they might dispute regarding the children in the future. The psychologist discovered this some time after the divorce was final, when one of the parents approached him to help mediate a parenting issue. Both parties had agreed to this arrangement, they had told their legal counsel about it, and there was a brief colloquy with the bench about it during their final divorce proceeding. The Court gave its consent to the arrangement on the record. In this example, the psychologist played multiple roles, all with the knowledge and consent of both the adult parties and their legal counsels, together with the endorsement of the court.

Now, if we apply Dr. Kaslow’s reasoning, the psychologist had been a marital therapist, family therapist, and later a mediator within the same family. In my thinking, the “client” all along was the couple initially and later the family as a whole.

Is there anything wrong with this picture? I say not. Anything the psychologist produces as a mediator is always subject to court review, and the court always has continuing jurisdiction over minor children, in a divorce in Maryland and in many other states. The clients chose these procedures, knew that there were alternatives and what they were, and elected on their own after input from counsel to pursue their course of action. My argument is that this is their entitlement, and not the concern of forensic psychology in general, or of any organized group of psychologists.

Basically, I think the problem and greatest point of disagreement I see between myself and Dr. Kaslow is that she is prone to make too many assumptions (e.g., all multiple relationships are harmful, as opposed to some multiple relationships are harmful; Cummings, 2002). What I think psychologists need to learn, perhaps especially forensic psychologists, is a couple of important, elementary lessons:

1) In clinical work of all kinds, regardless of setting, circumstances matter. Blanket pronouncements about what should and what should not be done are seldom useful, as I have attempted to illustrate with my examples above. Sometimes, the circumstances matter more than any amount of armchair judgmentalism can fathom;

2) It is a mistake to overvalue the importance and functioning of the psychologist, in a given intervention, as opposed to the concerns of the numerous other participants. Certainly among these, I include the children in family cases, their parents, the attorneys representing all sides, and the judiciary. Sometimes, the mixing of “roles” as these are outlined by Dr. Kaslow is not only a good thing, it is the best thing. Family cases need not languish because of psychology’s lack of a convenient decision rule for professional functioning: Let the legally relevant standard and existing client protections prevail.

Legal Decision-Making

In that context, let me close with one final rejoinder about the point made by Dr. Kaslow concerning legal decisions, ultimate testimony, and related matters. Dr. Kaslow suggests (correctly) that some psychologists object to “ultimate issue” testimony (e.g., Melton Petrila, Poythess & Slobogin 1987). She might have added that decisions with respect to custody, selection of court-appointed experts, consent appointments by counsel, and a host of other decisions – are never made by a psychologist. The decisions in forensic settings are always made by someone other than a psychologist. Any preliminary procedural or technical decision made by a psychologist in case handling can be and will be legally reviewed, if necessary.

To reiterate in closing, the notion of distinct roles for psychologists in forensic settings is something like an urban legend. Courts of law are places to settle disputes, without combat. They are not sources of distributive justice, and they are not paragons of virtue. Clients in forensic cases are entitled to freedom of choice, and it is their selections, based on information from many sources, that matter – rather than the post hoc “Monday morning quarterbacking” which too often prevails in the thinking of psychologists.

Barring hidden commitments, true conflicts of interest, and inappropriate entanglements – such as sexual involvement with clients or financial exploitation – psychologists should make their decisions about participation in legal cases based on their sense of the best interest of the client, with proper consultation among all those concerned, including legal counsel and the court. They need not and should not rely on purely heuristic analytic devices as an algorithm for guidance in their forensic casework.

References

American Bar Association (1997). Model rules of professional conduct Chicago: Author.
Cummings, N.A. (2002). The last word. In A.A. Lazarus & O. Zur (Eds.), Dual relationships and psychotherapy New York: Springer.

Kaslow, F. W. (Winter, 2002). Expert opinion. American Psychology – Law Society News, 22, 1, 26-27.

Lazarus, A.A., & Zur, O. (Eds.). (2002) Dual relationships and psychotherapy. New York: Springer.

Melton, G.B., Petrila, J. Poythress, N.G., & Slobogin, C (1997). Psychological evaluations for the courts. (2nd Ed.) New York: The Guilford Press.

Norcross, J.C. (2001). Purposes, processes, and products of the Task Force on Empirically Supported Therapy Relationships. Psychotherapy: Therapy/ Research/Practice/Training, 38, 345-356

Slovenko, R. (1973). Psychiatry and law. Boston: Little, Brown, & Co.

Zur, O. (2001). Out of office experience: When crossing office boundaries and engaging in dual relationships are clinically beneficial and ethically sound. The Independent Practitioner, 2, 96-100.

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