Therapists and Court
As you probably suspect, the mental health profession is subject to some heavy regulation, therefore, all practitioners (including yours truly) need some understanding of the law as it pertains to titles, confidentiality, scope of practice, and other, well, regulatory issues. However, most of us chose to be therapists because we did not want to be attorneys or anyone else who deals with legal issues all day. It’s complicated! It’s also probably not too surprising that confidentiality and mental health records are not as straightforward as you might be led to believe from watching a procedural like Law and Order. (Admittedly, some of those episodes hint at the complexity of confidentiality.) What we think we know is everything between a therapist and their client is confidential unless that confidentiality is waived by the client. In general, this is true most of the time. However, therapists have to disclose imminent harm to self or others, and child or elder abuse to appropriate authorities. (This is in Colorado. Other states may have different laws.)
Some clients (and their attorneys) believe that it’s helpful to bring the therapist to court to testify on their client’s behalf especially if the case involves substance abuse, custody, or some other issue where the client’s state of mind or compliance with treatment could be worth considering. This isn’t always the case. First, witnesses in court are either witnesses of fact or expert witnesses. For many reasons, I will never act as both in a case, regardless of how much pressure an attorney tries to put on me. A witness of fact cannot give an opinion and that is what your therapist is in court. All a witness of fact can do is report their observations. They cannot make guesses about future behavior or anything that has not been directly observed.
Another thing to keep in mind is nobody goes to see their therapist on the best day of their life, and that’s fine, but even though certain things aren’t reportable, as a witness under oath, if, for example, you have a problem with substance abuse or truancy and as your therapist, I know you showed up high or skipped school, if asked, I can’t lie about those things; that’s perjury. Is there a chance none of that will come up? Sure. It’s important to know though that if records of any kind are entered into “discovery” or the evidence related to a case, both the defense and the prosecution have access to that information and they can cross-examine witnesses.
Also, and this has come up in examples from other therapists, anything that happens in the therapy room once the door is closed is confidential, but that confidentiality doesn’t extend to the parking lot or the waiting room, and we can’t spontaneously unsee or unhear something because it’s problematic.
For all of these reasons, I have a clear court policy that all clients are required to review and sign prior to treatment, and I am explicit about the reality that if I am subpoenaed, I will ask my attorney to help me quash the subpoena and if that doesn’t work, I won’t be happy about going to court and it will be very expensive. (The time is not prorated, insurance doesn’t cover it and it’s three times my hourly rate.)
