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Independent Practitioner/Fall 2005 |
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Practitioner Information |
Conflicting Roles in Child Custody Disputes: An Effort To Introduce Some Clarity Into a Contentious Debate Michael C. Gottlieb |
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In 2002, Kaslow wrote an article reminding us of the potential danger that arises when playing more than one professional role in child custody matters. Saunders (2004) responded arguing inter alia that: some colleagues could misinterpret what she had written; and the distinctions she made were arbitrary. In reading his response, I was struck by the fundamental discrepancy in their positions. Here I will: review Kaslow’s article; list Saunders’ responses along with a critical analysis of them; and endeavor to introduce some clarity to a contentious debate. In each issue The American Psychology – Law Society News (AP/LSN), the Division 41 newsletter, publishes a column edited by Mary Connell, Ed.D. entitled, “Expert Opinion.” In this column, Connell poses ethical dilemmas to members of the Society and asks them to respond. In this case, Connell’s question to Kaslow was:
Kaslow’s Answer First Kaslow listed a variety of roles that psychologists may play in family law matters such as custody evaluator, child therapist, mediator, and “pure” expert witness i.e., those who provide “social framework evidence” (Monahan & Walker, 1988). She then noted that the overarching goal in all such cases was the best interest of the child(ren) and that prudence dictated assuming no more than one role in such cases. She then illustrated her point by an example of a marital therapist switching to the role of mediator for a couple who subsequently chose to divorce. She suggested that shifts such as these were contra-indicated because of the differences in the approaches and goals required by the two roles. She went on to argue that accepting both assignments could cause role ambiguity and lead to great confusion. In a second example, she contrasted the roles of child custody evaluator (CCE) and a therapist who served as an expert witness. She noted that the role of the CCE was to: gather relevant data; write a report to the court: and remain neutral and faithful to one’s data. On the other hand, she reminded us that therapists typically have very limited data and are more inclined to be biased in their favor of their clients. She concluded that:
Saunders’ Response Saunders (2004) responded based on his concern that Kaslow’s position was arbitrary and could be misinterpreted; he offered a second opinion. First, he claimed that the distinctions in roles Kaslow referred to were arbitrary and a result of “an after the fact analytic rationale superimposed on the legal process” (p. 168). Second, he argued that such role distinctions were often impossible. “This is the rough equivalent of distinguishing types of psychotherapy, based on outcomes or transcripts of content” (p. 168). Here he emphasized that what was distinctive were 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” (p. 168). Third, from an ethical perspective, he contended that it was the consumers’ understanding of the intervention that was crucial so they could make their own decisions regarding how and with whom they chose to proceed. Fourth, post hoc analysis had little if any value in determining client choices in forensic settings and that: “the entire concept of roles, as illustrated by Kaslow, fallaciously suggested that the psychologist or other participants can and should make these distinctions in advance, and that 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. . . . As with the fundamental concept of legal privilege, the privilege belongs to the client, to the practitioner” (p. 168). Fifth, while professional roles are generally defined in advance, Saunders noted that the court may order changes in our roles “with very little structure provided by the bench” (p. 169). He provided a detailed example illustrating a case in which the court ordered a psychologist to play potentially conflicting roles that contradicted Kaslow’s position arguing that the court order was rendered as a service to the parties, their children, and the court. Sixth, he criticized Kaslow for not helping the reader by failing to explain the concept that underlies dual roles viz., conflict of interest. He asked: “When, specifically, do these “roles,” which in the end are nothing but the presumptions of an observer in the first place, become harmfully conflictual? . . . there is no implication that fault . . . can necessarily be attributed on the basis of such a post hoc understanding” (p. 169). Seventh, he criticized Kaslow for making too many assumptions that all multiple relationships are harmful. Saunders then offered some “elementary lessons.” 1. “Circumstances matter,” and “blanket pronouncements about what should and what should not be done are seldom useful . . . .” (p. 170). 2. “It is a mistake to overvalue the importance and functioning of the psychologist . . . as opposed to the concerns of the numerous other participants. . . . Sometimes the mixing of ‘roles’ . . . is not only a good thing, it is the best thing” (p. 170). He concluded by noting that the notion of distinct roles is something like an “urban legend:” “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” (p. 170). Rather, . . . “psychologists should make their decisions based on their sense of the best interest of the client, with proper consultation among all those concerned” (p. 170). Examining the Issues Kaslow used common examples to illustrate the point that performing multiple roles in child custody cases is generally contraindicated. Such a position is consistent with the APA Ethical Principles and Code of Conduct (2002), the APA Guidelines for Child Custody Evaluations in Divorce (1994), the Specialty Guidelines for Forensic Psychologists (1992) and current scholarship (Greenberg and Shuman, 1997). Saunders made a variety of points. Some are correct; others are inconsistent, distort Kaslow’s position, use logical fallacies and/or simply begin from inaccurate assumptions. Below I will try to critically analyze each of the issues he raised. Role Distinctions are Arbitrary The first argument has two components: forensic role distinctions are arbitrary; and that these roles are superimposed on the legal process. If arbitrary is taken to mean that such decisions are: capricious; based on one’s preferences; and not governed by principles (McKechnie, 1983), Saunders is simply incorrect. Such a statement ignores Kaslow’s point that each role comes with its own set of principled assumptions, roles and responsibilities, and that the expectations may differ significantly (e.g., See Greenberg and Shuman, 1997 for a detailed discussion of the differing roles of care provider and forensic evaluator). While different roles may blur at the edges, I know of no scholarship arguing that these distinctions are arbitrary. Rather, they have been developed based on sound principles regarding limiting oneself to the data (e.g., APA, 1994 §12; and APA, 2002, §2.04) and maintaining boundaries of competence (e.g., APA, 2002, §2.01(a)). Second, I do not understand what Saunders’ means when he writes that these distinctions are superimposed on the legal process. As an experienced professional in the area, Saunders knows that such roles are granted to us, often by court order, and that strict legal limitations can apply to those who serve in these capacities. It is not the place of mental health professionals to impose anything on the legal system, and Kaslow never suggested that we should. Role Distinctions are Impossible Saunders argued that such role distinctions were often impossible, but his argument is not persuasive. First he offers the example of the difficulty in identifying various types of psychotherapy from transcripts. This point is simply irrelevant. Regardless of the type of therapy being provided, the professional is still occupying only one role viz., therapist. His second point is more difficult to understand. It is true that the end goals and focus of the work are distinctive, but these goals are accomplished by procedures that are readily distinguishable. That is, the “interventions” as he terms them, are dictated by the professional’s role. For example, a well crafted CCE may contribute to a settlement agreement rather than litigation. This is a desirable outcome, but it does not mean that the evaluator should also serve as a mediator to facilitate that outcome; the goals and focus of the work are legally distinct regardless of “the thought processes of the psychologist.” Psychologists who accept assignments in family law matters certainly need to clarify their roles when needed, but they do not have the privilege of proceeding as they wish. Our thoughts, “interventions” and goals all must be consistent and follow both legal mandates and appropriate professional guidelines. Consumer Understanding is Critical Saunders’ third point is absolutely correct. It is vital that consumers understand the role of the psychologist in the legal dispute, and while he does not say so, his recommendation also represents good risk management. But, Kaslow never suggested anything to the contrary. However, it is important to note that parties do not always have the option of choosing how they wish to proceed. This certainly does not mean that they should not be provided with information, but their choices are often limited by a variety of factors related to their legal circumstances. Post Hoc Analysis Saunders argued that explaining the concept of limited roles to consumers before providing services to produce better outcome was fallacious. If one were to suggest that adhering to recommended professional roles produced better outcomes, it could well be misleading if not deceptive, and Saunders would be right. But, Kaslow never suggested such an idea, and I am unaware of any scholar who has ever said so. Saunders’ argument is a red herring. Rather, the purpose of defining professional roles at the outset is intended to avoid harm. That is, explaining these issues beforehand is necessary because it is reasonably foreseeable that harm could arise if the professional failed to remain within his/her assigned role. Saunders then argued that it is not a matter of what the psychologist thinks so much as what the consumer understands. He is absolutely correct that consumers need to understand our roles in the legal system, but to suggest that the consumer might understand the psychologist’s role differently from how the psychologist construes it is not a prudent way to initiate services. Finally, Saunders raised the issue of privilege. Privilege refers to those “statements made by certain persons within a protected environment . . . from forced disclosure on the witness stand . . .” (Black, 1991). For our purposes, the “protected environment” refers to communication made to health care providers such as psychologists. It is true that the privilege belongs to clients who are in psychotherapy relationships, but parties to legal disputes are not our clients. Furthermore, if they are ordered to do certain things by the court, such as submit to CCEs, their privilege is waived. Saunders misuses this term in a way that risks misleading the reader. Inadequate Structure Saunders correctly reminds us that sometimes courts may ask us to change roles during pending litigation. Giving Saunders the benefit of the doubt, it may be that the court does so in the sincere belief that making such an order is a service to the parties. But, even if this were the court’s intention, as a general proposition, accepting such assignments is not prudent as Kaslow correctly noted. Judges and attorneys do not always understand our ethical obligations, and it is our responsibility to make them known when potential role conflicts arise. (e.g., Specialty Guidelines for Forensic Psychologists, 1991, §IV.D) When such situations arise, one generally explains the issue to the court and seeks permission to be excused from one of the assignments if it is reasonably foreseeable that harm might result. It is not wise for a psychologist to uncritically accept such assignments regardless of how well intentioned they may be. Conflict of Interest It was not within Kaslow’s scope to explain foundational concepts such as conflict of interest. Furthermore, such information is well established within the literature and widely available (e.g., Specialty Guidelines for Forensic Psychologist, 1991, §IV; APA, 1994, §7; and APA, 2002, §3.05 & §3.06). Nevertheless, Saunders is correct that such roles are presumptions. He then asked when dual roles become harmfully conflictual. No one can know the answer to this question, including Kaslow. This is precisely why it is our obligation to raise the issue, clarify our role and make decisions based on a reasonably foreseeable standard. The fact that we cannot predict harm does not mean we can ignore its possibility. Here Saunders raises the issue of post hoc understanding. For some reason he implied that Kaslow suggested that such roles should be formalized after the fact. Not only did she never suggest such a notion, but to do so would clearly violate basic tenants of informed consent (e.g., APA, 2002, §3.10). All Multiple Relations are Harmful Kaslow never said that all multiple relationships were harmful, and no respected authority with whom I am familiar has said so. In fact, multiple relationships are permissible in a variety of circumstances (e.g., Gottlieb, 1993: and Younggren and Gottlieb, 2004). This is a straw man argument. Circumstances Matter Finally, the elementary lesson that circumstances matter is of course correct, but it is another red herring. Kaslow never argued that circumstances did not matter. Furthermore in this interchange, Kaslow, Saunders and I have confined ourselves to a discussion of our roles within a particular circumstance, the legal system. He then attacked Kaslow for “blanket pronouncements” when she made none. She never said mixing roles should never occur. She only noted that doing so was imprudent, thereby providing the practitioner some latitude in professional decision making for which Saunders inaccurately criticized her. Overvaluing Ourselves Saunders referred to those practitioners who value their importance over that of others. Here I think we can all agree that such arrogance is inappropriate, especially when operating within the legal system. However, I do not understand why he raised this issue as Kaslow never mentioned it. Ethical Principles and Case Studies Saunders’ then contended that mixing roles may not only be a good thing but the best thing. First, as I noted above, Kaslow never said that it was unethical to mix roles ipso facto, only that doing was imprudent. Second, the examples Saunders cited do not make his point. It may well be that in isolated cases mixing roles may well have been beneficial. But Kaslow was not talking about individual cases. She discussed decision making based upon principles derived from our ethics code and various professional guidelines. One can find exceptions to most principles in our profession. Here Saunders argues the consequent. Simply because the cases he cited ended well does not mean that the rules should change. Urban Legends Saunders concluded by arguing that the idea of distinct roles is something of an urban legend. How he could make such a statement eludes me. First, the notion of distinct roles is hardly an old notion received from the past. Rather, it is a relatively recent development arising from our experience within the legal system. Second, Saunders completely ignored the origin of this idea, namely the considered and principled thought process of a large number of his colleagues. He may disagree with their conclusions, but arguing by hyperbole and trivializing opposing views does not contribute to the debate. Rather, Saunders casts himself in the role of Narcissus when he suggests that “psychologists should make their decisions based on their sense of the client.” I dissent. In my view, this is the reason why we have judges. An Effort to Introduce Some Clarity Saunders has raised a variety of highly contentious points that I will try to clarify. First, as a theoretical point and perhaps as an aspirational principle, Saunders’ argument for empowering clients is well made. Unfortunately clients cannot know what adverse outcomes might arise if we allow our roles to blur. He is right that it is our duty to inform them, but it is also true that at times we must make considered decisions to trump their wishes when, out of an abundance of caution, we choose to avoid risking potential harm. It is not clear to me what Saunders thinks is wrong with doing so. Second, when custody issues are contested, and the legal system is brought to bear on them, those of us who play forensic roles serve within, and at the pleasure of, the legal system. We are expected to fulfill the roles assigned to us so long as they are consistent with our ethical obligations, and when they are not, it is our responsibility to make such conflicts known (APA, 2002, §1.02). It is dangerous to go beyond what we are asked to do without authorization, no matter how we may personally feel. Those who are uncomfortable with these constraints should not accept such work. Third, many of Saunders’ arguments are based on the false premise that we should do what is asked of us. I strongly disagree that we should uncritically accept what the legal system asks of us. If a court orders us to perform an activity that is professionally inappropriate, it is our obligation to inform the court and respectfully request clarification and/or to be excused from the assignment. Judges and lawyers typically do not understand our ethical principles, and it is not their responsibility to be familiar with them; it is our job to educate them. This is not simply a matter of good risk management. Informing attorneys and the court when ethical dilemmas arise for us works to prevent potential conflicts; failing to do so is an abdication of our professional responsibility. Making such disclosures should be done as a matter of respect for the legal system and to avoid potentially causing harm to litigants and their children. A fourth issue relates to who is the “client;” here Saunders conflates the issues. When parties are ordered by the court to seek our services such as in CCEs, the parties are not our clients. We are not working for them, and we do not owe them the same professional obligations that we do our psychotherapy clients. Fifth, while it is certainly important to provide parties with relevant information and seek their assent to our procedures, it is not our responsibility to provide informed consent because we cannot do so. This is because when parties are ordered to do something by the court, they have lost their power to consent. By ignoring this issue, Saunders simply makes the matter more confusing. Sixth, it is a truism that circumstance matters, but arguing ad absurdum, he paints Kaslow into a corner of extremism that she never occupied. One particular example deserves attention. By accusing Kaslow of taking the position that various professional guidelines require rigid adherence, he created a deeply flawed impression. Rather, he should have noted that guidelines:
Finally, Saunders is right that there are always exceptions to any rule. That is why the profession has written guidelines rather than enforceable standards. By distorting the facts and railing against a position no one has taken, his suggestions if followed could present potential risk management problems for new colleagues unfamiliar with the issues. Those wishing to understand these issues should refer among others, to the documents Kaslow cited. Conclusions Forensic psychologists are well advised to follow the guidelines of their profession, and Kaslow has written a good reminder for us all. Saunders is welcome to criticize the guidelines under which we operate. Instead, he criticized them indirectly by attacking Kaslow for making blanket pronouncements she never made through a variety of inaccuracies, inconsistencies, and logical fallacies. If Saunders wished to argue that forensic psychologists should be accorded more latitude in family law matters, it would have been helpful had he used principle-based and logical arguments to do so rather than shooting the messenger. Unfortunately, all he has succeeded in doing is conflating the issues. I hope Saunders can do better than remind us that circumstances matter and that we are all capable of overestimating ourselves. References American Psychological Association (1998). Guidelines for psychological evaluations in child protection matters. Washington, D.C.: Author. American Psychological Association (2002). Ethical Principles and Code of Conduct. Washington, D.C: Author. American Psychological Association (1994). Guidelines for Child Custody Evaluations in Divorce. Washington, D.C: Author. Black, H.C. (1991). Black’s Law Dictionary (6th Ed.). St. Paul, MN: West Publishing Co. Gottlieb, M.C. (1993). Avoiding exploitive dual relationships: a decision- making model. Psychotherapy: Theory, Research, Practice and Training, 30, 41-48. Greenberg, S.A. and Shuman, D.W. (1997). Irreconcilable Conflict Between Therapeutic and Forensic Roles. Professional Psychology: Research and Practice, 28, 50-157. Kaslow, F. W. (Winter, 2002). Expert Opinion. American Psychology – Law Society News, 22, 1, 26-27. McKechnie, J. L. (1983). Webster’s deluxe unabridged dictionary (2nd Edition). Cleveland, OH: Dorset & Baber. Monahan, J. & Walker, L. (1988). Social science research and law: A new paradigm. American Psychologist, 43, 465-472. Saunders, T. R. (Fall, 2004). Child and family interventions in the forensic setting: A second opinion. The Independent Practitioner, 24, 4, 168-171. Task Force on Specialty Guidelines (1992). Specialty guidelines for forensic Psychologists, Law and Human Behavior, 15, 655-665. Younggren, J., and Gottlieb, M.C. (2004). Managing risk when contemplating multiple relationships. Professional Psychology: Research and Practice, 35, 255-260. |
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