What Do Mental Health Professionals Need from Family Attorneys?
December 20, 2015
Mental health professionals walk a very tight ethical rope in dealing with clients who are divorcing or going through divorce related litigation. Because of the potential ethical dilemmas, mental health providers need attorneys to understand these binds, respect them, and do everything they can not to blur them. Without question, the number one request that mental health professionals have for family attorneys is to provide clear direction of the role and scope of their involvement with the clients.
Too often, the attorney approaches the mental health professional with vague directives such as “Work with the client to help them get along with their child,” or “See the client and tell us what you think.” In both of these statements, there is a lack of clarity of the mental health professionals’ role, scope, or even who is the client. In addition, there is no clarity on the role of the mental health provider in terms of their involvement in the overall litigation. If there is an active case going on, or the mental health professional is being brought in as part of a settlement agreement, it is vital to provide the professional with a clear Order from the court.
The Order needs to clarify the role of the professional, who is responsible for payment of the fees for the services, and if the mental health professionals work will be covered under the normal psychotherapist-client privilege or if the mental health professional will be conveying summaries of their work in written form and/or in oral testimony. Be sure to work with the mental health provider in the crafting of the order to make sure that the roles that are described in the Order meet with all of the ethical guidelines for the mental health professional. Furthermore, the mental professional must also provide an informed consent to the client outlining the scope of the professional relationship, limits of confidentiality, fees, risks, and other related issues.
Mental health professionals can ethically only provide one role per case. A psychologist cannot be a child custody evaluator and then transition to the child’s therapist. Vague Orders which state that the named psychotherapist is to see all of the children for individual psychotherapy may put the therapist in an ethical bind. Checking ahead with the mental health professional before drafting the Order will optimally result in an Order that is also ethically workable for the mental health professional. If the professional has already been involved with the family in one capacity, they should not be designated to provide another type of service even if they are qualified. Too often psychotherapists had one role prior to the litigation (e.g. Marital therapist), and one role after the litigation (e.g. Parent Coordinator). The clients need another professional to serve in the second role. The only situation it could be ethically OK is if there were no other providers who could serve that type of role. This realistic only happens in rural areas. Even in that case, the mental health professional would take on the role and proceed with caution.
The last issues relate to the psychological evaluation and/or treatment of children. Attorneys for one parent frequently ask mental health professionals to see a child for an evaluation or treatment without notifying the other parent. As long as both parents are the legal parents, a mental health provider has an ethical obligation to notify both parents and include both parents in the evaluation, treatment, and feedback of the evaluation and treatment. When an attorney suggests that a child be seen and a parent not notified, the mental health provider by complying, colludes with one parent in keeping information about the child’s treatment from the other parent.
In addition, and far worse, is the effect on the child of their therapist and parent colluding with the child to keep the secret away from the other parent. By not including the other parent, the therapist does not get that parents input and perspective on the child’s functioning. There would be no way for the psychotherapist to understand the child’s needs without hearing from both of the parents. Lastly, Attorneys need to stop asking a child’s psychotherapist to give an opinion regarding the custody arrangement of the child.
It is unethical for a mental health professional to opine about custody arrangements without performing a child custody evaluation.
Even though it is unethical, there are many psychotherapists, particularly those who rarely work in forensic cases, who will offer their opinions. When you seek out their opinion, you are placing these psychotherapists in a position of being open to licensing board ethics complaints, professional association ethics complaints, and even malpractice complaints. If opposing counsel brings in one of these psychotherapists who unwittingly give custody opinions, the therapist needs to be cross-examined regarding the ethics, or lack thereof, of providing an opinion. They should also be asked to explain how they can ethically provide a custody recommendation without having conducted a child custody evaluation. The bottom line is they cannot ethically provide the custody recommendations.
You can make the mental health professionals’ job easier by always providing clear Orders and not requesting therapists engage in multiple roles or deceptive practices.