There are few things that stress out therapists as much as dealing with a subpoena or a request for records. Most of us prefer to avoid anything court-related at all costs.
However, many counselors unknowingly get involved with court cases through one simple step: Writing a letter that is used in a court case.
While a letter is often preferable to releasing all the psychotherapy records, it’s important to remember that letters can also have significance and we should be careful about what we write. We also need to make sure we review the potential consequences of letters with our clients.
You might be thinking, “What can be so harmful about writing a simple letter?”
Well, it is not so much the letter itself, but the potential for blurring lines of competence that can get therapists into trouble.
Let’s review a common scenario for writing a court letter…
We'll call our imaginary therapist in this scenario "Mary Muggle, LMFT." Mary has been seeing children and adolescents in a private practice setting for about 10 years and has been licensed for about 12 years.
>> It's important to note here that experienced clinicians appear to be more at risk in these areas. During extensive research into common board violations among various practitioners, I found very few examples of newer therapists making a violation.
Mary begins seeing a 10-year-old boy we'll call Dudley. Dudley's parents are going through a divorce and over the last two months his grades have been dropping and he started getting in fights at school. His mother brings him to treatment and explains that Dudley's father travels frequently for work and is aware that Dudley will be getting counseling but doesn't want to be involved.
Mary asks for custody paperwork and Dudley's mother brings in a form that isn't very clear but it appears that the parents have equal custody for now. Mary files this with her records and begins seeing Dudley for weekly therapy. She does leave a voicemail for Dudley's father to see if he can come in for an appointment but she never hears back.
During his sessions Dudley often reports missing his father because he sees him very irregularly now that his parents are no longer living together. He reports visits with his father being sporadic and including lots of take-out or junk food and very little discipline or structure. His father also does not seem to approve of Dudley being in therapy and says things like, "Fighting isn't a problem. Not sticking up for yourself is a problem. Don't let them turn you into a pansy."
After about three months of weekly sessions Dudley has made some improvement in school and seems to enjoy his weekly sessions but admits to Mary that he feels embarrassed to talk about them with his father.
It is around this time that Dudley's mother asks Mary to write a letter for an upcoming court date.
She is worried that Dudley's father will ask for therapy to be discontinued. She also confides that she is concerned his father will request more time with Dudley now that he is done with the work project that required so much travel.
Mary writes a letter summarizing Dudley's reason for referral, his goals and progress to date, as well as Dudley’s concerns about his father not supporting the therapy process. She highlights in the letter that this can be detrimental to therapeutic rapport, Dudley's ongoing progress in school, and she reports that Dudley's father has been uninvolved and may be a negative influence. She also recommends Dudley's mother remain the primary caregiver.
Writing a letter about Dudley's treatment is perfectly acceptable, but Mary makes two critical mistakes in this scenario:
She provides an opinion about Dudley's father without ever talking to Dudley's father.
She provides a recommendation related to custody without being appointed (or even trained) to do so.
These mistakes are critical errors because Mary is practicing outside her scope of practice and has a potentially harmful dual relationship.
Let’s dig into each of these issues…
The Ethics of Dual Relationships and Scope of Practice
As mental health professionals, we often see into the very vulnerable parts of individuals and families. We also form a connection with our clients. We like to use the term “therapeutic rapport” to sound more academic but it is often a basic, human connection we have with our clients.
This connection is important for counseling to provide a healing environment where clients can be vulnerable. However, this connection impairs our ability to be objective.
That is why, for example, it is usually unethical for me as a psychologist to do psychological testing with someone who is also a therapy client. Or to test someone whom I already know well.
No matter how objective psychological tests are, my interpretation or evaluation report is very likely to be influenced by my prior knowledge of the person’s abilities, history, etc.
Likewise, our relationship with our clients can impair our ability to objectively look at other situations, such as custody agreements. This applies when your client is the child, as well as when your client is one of the parents.
Custody situations are often very emotionally charged for all involved and this makes objectivity that much harder.
So it is generally considered unethical to provide an opinion about custody unless you are specifically trained in providing such assessments (which often have very specific legal guidelines and ramifications) and have no prior relationship with members of the family involved.
Are there exceptions to these guidelines? Always!
For example, if you live in a rural area and there are very few providers, you might be the only person available to provide such an assessment, despite some type of prior relationship with the family involved.
This is where we must consult our ethical guidelines, consult with colleagues who can offer guidance, and disclose all the potential things that might be impacting our objectivity.
So what do we do about writing court letters?
Keep writing them!
(Or don’t… more on that in a minute)
Yes, keep writing them but always keep in mind that letters can have a significant impact and…
It is not your role as the therapist to make legal determinations for your clients.
>> Should your client be excused from work because of the significant stress it is causing? Your role is to assist the client through this process and potentially, provide a letter explaining their current symptoms and stressors.
>> Should your client receive social security disability because of their diagnosis? Your role is (usually) to report the symptoms, history of these symptoms, impact of the diagnosis, and the prognosis based on your ongoing professional assessment.
>> Should your client who loves his children have custody of them because their mother (his ex-wife) is an alcoholic and currently in jail? Your role is to simply report your client’s progress in treatment, regardless of the circumstances.
Most counselors are well-meaning and genuinely think the recommendations they include in letters will benefit their clients, and the others involved.
We became mental health professionals because we want to help people! And it often seems unfair when we can’t help our clients the way we want.
However, you can help your clients when they are experiencing any of the above scenarios.
Here are some general guidelines for writing letters that might be requested by an attorney, sent to an evaluator, or used to determine a client’s role or benefits in some way:
Discuss with your client the limitations and potential ramifications of writing such a letter and that you cannot guarantee any type of result, positive or negative.
Stick to the facts. All of your statements should be backed by data (whether that’s your own clinical assessment, reports by others, observation, etc.).
Report on what is observable and provide examples or quotes, if needed. Keep in mind that your client’s statements about the situation or anything you have observed might be relevant here.
Keep your opinions about anyone or anything that is not your client out of the letter. For example, Mary could certainly write that Dudley’s father has been unresponsive to her attempts to reach out and therefore uninvolved in treatment. Those are facts based on her experience, not an opinion.
Keep it simple. Stick with symptoms and/or reason for referral, progress to date, and perhaps, prognosis for treatment.
Don’t be afraid to say no or to charge for your time. Writing letters is stressful and it does take time, but it’s also not required, unless you have a subpoena or some other type of court order. You have every right to say no or to charge a reasonable fee for your time. Just make sure this is outlined in your policies!
Keep in mind these guidelines are generalized and you must always consult your own state laws and professional ethics!
Using these guidelines should help you stay ethical, provide excellent care for your clients, and create a less stressful experience for you as the treating therapist.