Guidelines for the Role of Therapist for Court-Involved Families

(It is important to note that most mental health practitioners are as yet unaware of the existence of this document. It is easily attainable at AFCC.org and can therefore be accessed and shared with practitioners by legal advocates/courts in an effort to improve the standard of care for the families they serve.)

Guideline 1: Assessing Levels of Court Involvement

Court-Involved Therapists (CITs) are admonished in the AFCC Guidelines to carefully analyze the nature of the legal dimensions in the referral for treatment. The analysis should include such matters as how the legal process may impact on the effectiveness of the intervention; what outcomes are expected or hoped-for by the court or attorneys; and the degree to which the unique, legally tinged working alliance with the clients may impact on objectivity. CITs are warned, for example, to remain cognizant of the fact that their role is to promote positive psychological functioning in the client, not to necessarily align with or promote the client's legal goals. An emphasis is placed on remaining aware that available data may be limited concerning what is really happening in a family, that maintaining multiple hypotheses about the reality of a family is critical, and that caution must be used when interpreting child statements or play/drawing behavior. Finally, the Guidelines remind CITs of how children's statements in therapy can be influenced by outside forces and of the importance of trying to include both parents' perspectives when assessing treatment needs.

Guideline 2: Professional Responsibilities

Because CITs can be affected by a host of external pressures, personal biases, and naivet' about the unique nature of work with litigating families, AFCC's Guidelines wisely emphasize the importance of clear, written informed consent about the limits/scope of treatment and about the parameters of confidentiality. They emphasize the importance of actively seeking information to gain a full understanding of the client's circumstances, of entertaining other perspectives in addition to those presented by the person in the therapeutic room, and of remembering the critical importance of objectivity when offering opinions and observations relevant to legal issues.

Guideline 3: Competence

AFCC emphasizes how important it is for CITs to develop and maintain competence in areas including, but not limited to, the understanding of: 1) the characteristics of divorcing/separated families and children; 2) family systems; 3) the impact of high conflict; 4) literature on effective interventions; 5) adjustments in traditional therapy techniques necessary with court-involved families; 6) the characteristics and needs of special populations; and 7) ethical and local legal standards.

In this Guideline section, AFCC is essentially tipping its hat to the notion that therapists who only have traditional therapeutic training must engage in more self-education to ready themselves for this challenging work. In addition, the document emphasizes that knowledge of the research literature in a long list of areas should be central to this work (e.g., child abuse, suggestibility, domestic violence, sexual orientation issues, etc). In an interesting section, the document points out the importance of the CIT recognizing the limits of the mental health discipline's scientific certainty about a variety of matters and the potentially distorting effects of personal biases, values, and beliefs held by the therapist.

Guideline 4: Multiple Relationships

Here, AFCC cautions against an unfortunate error made by CITs on occasion: the willingness to engage with a family, either simultaneously or sequentially, in the dual roles of therapist and evaluator for the court. Multiple relationships (including therapist/friend), especially when they cause conflicts of interest, are to be avoided ' and disclosed when they arise unexpectedly.

Guideline 5: Fee Arrangements

There is an emphasis in the AFCC Guidelines on the importance of clearly stated, written fee documents that cover such matters as cost, collection methods, fees incurred by one parent over and above those by the other parent, and procedures for handling fee disputes, among others. Procedures for handling insurance issues are to be spelled out, given the vagaries of this source of funding and the fact that a single person in the family may have to be labeled as the identified patient (and given a diagnosis). The Guidelines recommend that CITs regularly seek a court order that specifies who is responsible for payment, payment apportionment, etc. It is this area of challenges with fees, given the complexities of court-involved families and the increased chance of one parent walking out of treatment, that causes many practitioners to avoid this area of work.

Guideline 6: Informed Consent

In Guideline 6, AFCC articulates the fact that, in addition to the basics of usual informed consent in therapy circumstances, CITs have special issues they need to clarify with clients.

The contours of court orders may mean clients have to be reminded of information that will flow out of the usually confidential therapy room to other interested parties. Therapists are cautioned against accepting children into treatment without the participation by, or notification of, both parents. Children are to receive their own kind of developmentally appropriate informed consent. Treatment should be deferred if one of the adult parties refuses to sign consent documents until further clarification/action by the court can be achieved.

Guideline 7: Privacy, Confidentiality, and Privilege

Court-involved clients (and therapists) often feel conflicted about the competing values of privacy, caution concerning the disclosure of information gleaned in the therapy room, and public-interest or child-related concerns. These factors often clash because of the levels of openness and disclosure when dealing with courts and attorneys that are uncharacteristic of most therapeutic relationships. The AFCC Guidelines make clear that the CIT must be educated about applicable laws and standards relevant to deciding who in the family is the identified client, the specifics about the assertion and waiver of privilege, and the circumstances under which the CIT can or must disclose confidential information.

Sensitivity to the potential legal ramifications of a client's choice or refusal to release information must be maintained (with referral of the client for legal guidance when appropriate). Guideline 7 outlines special considerations relevant to children in this regard, including the necessity of the CIT's understanding of the statutory requirements regarding who holds the privilege about a child's therapy information, and at what age those requirements change. Having a plan concerning how to handle disclosing information that may place a child at further risk is essential. AFCC also offers guidance about navigating the difficult circumstances connected to requests by attorneys or courts for information about a client and to the arrival of a subpoena.

Guideline 8: Methods and Procedures

In addition to reminding practitioners to adhere to the accepted standards and procedures of their discipline, this section also amplifies the fact that CITs have a special obligation to consider multiple possible interpretations of information gained in treatment, and to recall the importance of objectivity. These considerations are particularly important here, given the legal context in which the therapy is occurring and the motives litigants may have to distort and skew what they present to clinicians under such circumstances. CITs should be able to justify the choices they have made about therapeutic plan and method, based on what is generally accepted in their discipline and supported by the empirical literature.

Guideline 9: Documentation

In addition to the usual recommendations for thorough and comprehensive record-keeping, AFCC makes clear that the unique legally related circumstance of the CIT requires documentation thoroughness and clarity that anticipates the need of the court for reliable, understandable information about the treatment.

Guideline 10: Professional Communication

With respect to written communications about treatment, CITs are implored to recall the profound implications their statements may have for the litigants and/or child. It is critical to make clear the limitations of the data that any observations or conclusions are based on. The foundational data for any inferences are made clear and kept separate in any document from the inferences themselves, to allow for scrutiny. CITs should be cautious about including everyone appropriate as consumers of any released reports. For example, should the court and attorneys be copied in on the transmission? It is important to exclude those who do not have a right to the information. In testimony, CITs are to be clear with the court about the limitations in their data and knowledge, and should be prepared to respectfully decline to respond to pressure during examination in court for opinions that go beyond the CITs scope or competence.

In a clear assertion, the AFCC document also warns CITs not to offer opinions about psycho-legal issues (best custody placement, the validity of a sexual abuse allegation, etc.) that are most appropriately left to the court or forensic professionals in neutral, evaluative roles.

Conclusion

The Guidelines for Court-Involved Therapy promulgated by AFCC, while aspirational rather than controlling, are a welcome first step toward adding some order, consistency, and predictability to the difficult yet honorable work of assisting court-involved parents and their children. Lawyers and judges will find very helpful details in the Guidelines that may assist, among other things, with crafting treatment-related orders and accessing treatment records to aid in difficult decision-making regarding children. The Guidelines also may help CITs to avoid requests that place them in untenable ethical dilemmas.

Jeffrey P. Wittmann, Ph.D., a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant at the Center for Forensic Psychology in Albany. He conducts peer work-product reviews and is the author of Custody Chaos, Personal Peace (Penguin, 2001). He can be reached at: [email protected].

At the dispositional phase of Family and Supreme Court matters, a question often looms over the legal advocates for parents and their children: Is there any way to help these people? Judges, parent advocates and attorneys for the children have to then reach into the toolbox available in their locality for therapists or programs that match the family's needs.

Unfortunately, in addition to being confronted with a paucity of services tailored for court-involved parents and children, advocates are left to choose among practitioners who often have no, or minimal, training specific to intervening with this unique population of clients. This state of affairs is quite worrisome, given the complex, multi-system, and ethically perilous nature of such work.

The Association of Family and Conciliation Courts (AFCC) has recently promulgated aspirational guidelines for therapists working in this critically important area of service. Guidelines for Court-Involved Therapy, AFCC, October 2010. Toward the end of assisting advocates and the judiciary to make informed choices from the menu of service providers available in their communities, following is summary of selected principles from the new guidelines.

(It is important to note that most mental health practitioners are as yet unaware of the existence of this document. It is easily attainable at AFCC.org and can therefore be accessed and shared with practitioners by legal advocates/courts in an effort to improve the standard of care for the families they serve.)

Guideline 1: Assessing Levels of Court Involvement

Court-Involved Therapists (CITs) are admonished in the AFCC Guidelines to carefully analyze the nature of the legal dimensions in the referral for treatment. The analysis should include such matters as how the legal process may impact on the effectiveness of the intervention; what outcomes are expected or hoped-for by the court or attorneys; and the degree to which the unique, legally tinged working alliance with the clients may impact on objectivity. CITs are warned, for example, to remain cognizant of the fact that their role is to promote positive psychological functioning in the client, not to necessarily align with or promote the client's legal goals. An emphasis is placed on remaining aware that available data may be limited concerning what is really happening in a family, that maintaining multiple hypotheses about the reality of a family is critical, and that caution must be used when interpreting child statements or play/drawing behavior. Finally, the Guidelines remind CITs of how children's statements in therapy can be influenced by outside forces and of the importance of trying to include both parents' perspectives when assessing treatment needs.

Guideline 2: Professional Responsibilities

Because CITs can be affected by a host of external pressures, personal biases, and naivet' about the unique nature of work with litigating families, AFCC's Guidelines wisely emphasize the importance of clear, written informed consent about the limits/scope of treatment and about the parameters of confidentiality. They emphasize the importance of actively seeking information to gain a full understanding of the client's circumstances, of entertaining other perspectives in addition to those presented by the person in the therapeutic room, and of remembering the critical importance of objectivity when offering opinions and observations relevant to legal issues.

Guideline 3: Competence

AFCC emphasizes how important it is for CITs to develop and maintain competence in areas including, but not limited to, the understanding of: 1) the characteristics of divorcing/separated families and children; 2) family systems; 3) the impact of high conflict; 4) literature on effective interventions; 5) adjustments in traditional therapy techniques necessary with court-involved families; 6) the characteristics and needs of special populations; and 7) ethical and local legal standards.

In this Guideline section, AFCC is essentially tipping its hat to the notion that therapists who only have traditional therapeutic training must engage in more self-education to ready themselves for this challenging work. In addition, the document emphasizes that knowledge of the research literature in a long list of areas should be central to this work (e.g., child abuse, suggestibility, domestic violence, sexual orientation issues, etc). In an interesting section, the document points out the importance of the CIT recognizing the limits of the mental health discipline's scientific certainty about a variety of matters and the potentially distorting effects of personal biases, values, and beliefs held by the therapist.

Guideline 4: Multiple Relationships

Here, AFCC cautions against an unfortunate error made by CITs on occasion: the willingness to engage with a family, either simultaneously or sequentially, in the dual roles of therapist and evaluator for the court. Multiple relationships (including therapist/friend), especially when they cause conflicts of interest, are to be avoided ' and disclosed when they arise unexpectedly.

Guideline 5: Fee Arrangements

There is an emphasis in the AFCC Guidelines on the importance of clearly stated, written fee documents that cover such matters as cost, collection methods, fees incurred by one parent over and above those by the other parent, and procedures for handling fee disputes, among others. Procedures for handling insurance issues are to be spelled out, given the vagaries of this source of funding and the fact that a single person in the family may have to be labeled as the identified patient (and given a diagnosis). The Guidelines recommend that CITs regularly seek a court order that specifies who is responsible for payment, payment apportionment, etc. It is this area of challenges with fees, given the complexities of court-involved families and the increased chance of one parent walking out of treatment, that causes many practitioners to avoid this area of work.

Guideline 6: Informed Consent

In Guideline 6, AFCC articulates the fact that, in addition to the basics of usual informed consent in therapy circumstances, CITs have special issues they need to clarify with clients.

The contours of court orders may mean clients have to be reminded of information that will flow out of the usually confidential therapy room to other interested parties. Therapists are cautioned against accepting children into treatment without the participation by, or notification of, both parents. Children are to receive their own kind of developmentally appropriate informed consent. Treatment should be deferred if one of the adult parties refuses to sign consent documents until further clarification/action by the court can be achieved.

Guideline 7: Privacy, Confidentiality, and Privilege

Court-involved clients (and therapists) often feel conflicted about the competing values of privacy, caution concerning the disclosure of information gleaned in the therapy room, and public-interest or child-related concerns. These factors often clash because of the levels of openness and disclosure when dealing with courts and attorneys that are uncharacteristic of most therapeutic relationships. The AFCC Guidelines make clear that the CIT must be educated about applicable laws and standards relevant to deciding who in the family is the identified client, the specifics about the assertion and waiver of privilege, and the circumstances under which the CIT can or must disclose confidential information.

Sensitivity to the potential legal ramifications of a client's choice or refusal to release information must be maintained (with referral of the client for legal guidance when appropriate). Guideline 7 outlines special considerations relevant to children in this regard, including the necessity of the CIT's understanding of the statutory requirements regarding who holds the privilege about a child's therapy information, and at what age those requirements change. Having a plan concerning how to handle disclosing information that may place a child at further risk is essential. AFCC also offers guidance about navigating the difficult circumstances connected to requests by attorneys or courts for information about a client and to the arrival of a subpoena.

Guideline 8: Methods and Procedures

In addition to reminding practitioners to adhere to the accepted standards and procedures of their discipline, this section also amplifies the fact that CITs have a special obligation to consider multiple possible interpretations of information gained in treatment, and to recall the importance of objectivity. These considerations are particularly important here, given the legal context in which the therapy is occurring and the motives litigants may have to distort and skew what they present to clinicians under such circumstances. CITs should be able to justify the choices they have made about therapeutic plan and method, based on what is generally accepted in their discipline and supported by the empirical literature.

Guideline 9: Documentation

In addition to the usual recommendations for thorough and comprehensive record-keeping, AFCC makes clear that the unique legally related circumstance of the CIT requires documentation thoroughness and clarity that anticipates the need of the court for reliable, understandable information about the treatment.

Guideline 10: Professional Communication

With respect to written communications about treatment, CITs are implored to recall the profound implications their statements may have for the litigants and/or child. It is critical to make clear the limitations of the data that any observations or conclusions are based on. The foundational data for any inferences are made clear and kept separate in any document from the inferences themselves, to allow for scrutiny. CITs should be cautious about including everyone appropriate as consumers of any released reports. For example, should the court and attorneys be copied in on the transmission? It is important to exclude those who do not have a right to the information. In testimony, CITs are to be clear with the court about the limitations in their data and knowledge, and should be prepared to respectfully decline to respond to pressure during examination in court for opinions that go beyond the CITs scope or competence.

In a clear assertion, the AFCC document also warns CITs not to offer opinions about psycho-legal issues (best custody placement, the validity of a sexual abuse allegation, etc.) that are most appropriately left to the court or forensic professionals in neutral, evaluative roles.

Conclusion

The Guidelines for Court-Involved Therapy promulgated by AFCC, while aspirational rather than controlling, are a welcome first step toward adding some order, consistency, and predictability to the difficult yet honorable work of assisting court-involved parents and their children. Lawyers and judges will find very helpful details in the Guidelines that may assist, among other things, with crafting treatment-related orders and accessing treatment records to aid in difficult decision-making regarding children. The Guidelines also may help CITs to avoid requests that place them in untenable ethical dilemmas.

Jeffrey P. Wittmann, Ph.D., a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant at the Center for Forensic Psychology in Albany. He conducts peer work-product reviews and is the author of Custody Chaos, Personal Peace (Penguin, 2001). He can be reached at: [email protected].