Therapists in Court
Tim Bond and Amanpreet Sandhu
Sage Publications & BACP
Reviewed by the Editor of 'Play for Life' April 2006
Tim Bond is Reader in Counselling and Professional Ethics at the University of Bristol. He drafted the BACP Ethical Framework in conjunction with Alan Jamieson Amanpreet Sandhu is Legal Resource Manager at the BACP, Rugby.
‘This is the first in a series of handbooks providing legal guidance for practitioners from all the talking therapies, including counselling, psychotherapy and psychology.’ This statement on the back cover might mislead potential play therapist readers into missing this book, which would be a great pity. When will BACP stop using ‘talking therapies’ or at least include ‘creative therapies’ in their generic descriptions?
The nine chapters are divided into two parts: ‘Therapists entering the legal process’ and ‘Working with clients involved in the law.’ Only one chapter ‘Criminal Compensation’ has limited relevance to Play Therapists. Although based on English and Scottish law (there are significant differences) many of the principles of working with legal processes and the clients subject to them have international applicability.
The book jumps in with some pertinent questions that may also be some of your concerns:
'A solicitor has written to me demanding all my notes about one of my clients. Do I have to send them?'
'I have been approached to counsel a very anxious 10-year-old-girl who is waiting to appear as witness in a child abuse case. She has changed from a happy outward-going girl to someone who is withdrawn at home and school. She is just the witness, not the victim. Can I counsel her?'
'I have been ordered by court to appear as witness. I think that this will completely disrupt the therapy with my client. We have discussed her personal relationships in confidence and it seems wrong to break this understanding and discuss them in a court with her relatives and the public present. Do I have to do this?'
'I have been asked to provide a report about my work with my client for a case concerning who looks after the children following a bitter separation. I can say quite a lot in her favour but I also know things that could work against her. Do I have to reveal these?'
The chapters in part one show how you should respond to solicitors’ letters, how to deal with court orders concerning the production of documents or appearance as a witness in court, how to write reports for courts, how to present your work as a witness and the fees and expenses that you may claim.
Since a letter from a solicitor is normally the first event in a court process it is important to get off to a good, professional start. This chapter not only provides model responses but tells you about a recent development in common law which restricts the client’s right to insist on access to non electronic records, how to ‘turn the tables’ on an ‘aggressive’ solicitor who is making what you might think are unreasonable demands for information and the circumstances in which there is no obligation to respond or disclose notes.
The next stage will be a court order requiring disclosure of notes and other records such as emails (do you keep copies?) contracts and other relevant documents. There are two types: pre-action and standard disclosure. It is important to understand the different requirements and effects of disclosure if you are to do what is best for your client and their parents/carers. A method of objecting to the production of documents is given and the warning that confidentiality does not afford the privilege of protection. Knowledge of the Form N265 requirements may alter your approach to note and record keeping.
However in many cases Play Therapists will be required to disclose information. Having established the confidential nature of the therapy, it may take careful explanation and negotiation with a child to explain that he or she is reporting to the court based on what they have been told ‘in confidence.’ Even if the child wishes the therapist to do so, there may be some work required after the trial to re-establish the client’s understanding of confidentiality. In other words think and plan well ahead to cover this contingency.
The excellent guidance continues with the writing of reports including three factors that underpin the approach of the Family Courts to children’s cases and evidence in general stemming from the Children Acts 1989 and 2004. These factors are considerably different to the operation of other types of Courts. All Play Therapists need to understand these. Also the implications of being asked to be an expert witness.
‘Any request to write an expert witness report needs to be considered carefully in order to assess whether the therapist is competent and suitable to write it. The independent nature of the expert witness is an important characteristic as there have been cases where clients have asked their own therapists to write an 'expert report' for use in court. In these circumstances, therapists would need to make the following clear to their clients (and their legal guardians Ed):
- A report put to the court by an independent expert who has never treated the client, will normally carry more weight than an 'expert' report put forward by the treating therapist, especially if the purpose of the report is to provide an assessment.
- In some circumstances, an expert report from a treating therapist may be requested, especially for proceedings concerning children and families where it is considered that increasing the number of professionals involved with the family would be disruptive to the best interests of the children.
- Clients need to know that the expert's responsibility is to the court and that they have responsibility to report all relevant facts, whether or not they are advantageous to the client.’
The authors point out that agreeing to be an expert witness should not be undertaken lightly. It is becoming commonplace for expert witnesses to have received specific training in report writing and giving evidence in court and ideally to have shadowed other expert witnesses.
The final chapter in the first part covers appearing as a witness distinguishing between the different types of courts and between being a witness of fact and an expert witness. This is supplemented by a later chapter giving an overview of the UK legal systems and a plain English glossary. Sound advice is given on how to prepare for a court appearance, the order of proceedings, how to give evidence on the witness stand, what the judge expects from therapists in their capacity as an expert witness and modes of address in different courts. A separate section covers Coroner’s Courts.
The second part starts with ‘Counselling Child Witnesses’. This is also essential reading for all Play Therapists unless you are thoroughly familiar with: secondary victimisation and the role of therapy; pre-trial/hearing therapy and the risk of contaminating evidence and involvement of therapists in the legal process.
A diagram is provided that shows the spectrum of risk of the different types of therapy in undermining evidence where work aimed at improving self-esteem/self-confidence is at the low end and hypnotherapy, psychodrama, regression techniques and unstructured groups are seen to pose high risk.
The chapter on Counselling Adult Victims and Witnesses contains a warning and wise advice:
‘It is always in the defence's interest within an adversarial criminal trial to seek to discredit any evidence against a defendant and any ill-focused or poorly disciplined pre-trial counselling sessions are easy targets for allegations of 'coaching' with the effect of partially or wholly undermining the evidence. Therapists are a relatively easy target for these allegations. As soon as the defence knows that therapy has taken place they will realise that this is a potential area of weakness in the prosecution's case. They will also be aware that therapists have a collective reputation for being poor witnesses in the box. They are viewed as a wild card who can often be tempted into making comments that the defence can exploit.
Therapists who are untrained in giving evidence and the expectations of courts blunder blindly on the false assumption that their skills in the therapy room will protect them in the box. The reality is probably the opposite. Many therapists may have made better witnesses before they trained as therapists. Most therapy trainings increase sensitivity to the client's subjective experience, whether cognitive, emotional or interpersonal, and train the therapist to use their own subjectivity strategically to advance the therapeutic process. Therapy of all kinds validates subjectivity and each therapy has its preferred concepts and language to communicate its insights about healing subjective wounds. Taking an impartial and objective view with a fixation on facts is exactly what most therapists have been trained away from. Yet, it is these very unwanted characteristics in a therapist that make a good witness. The best witnesses have an ability to communicate a fact as clearly and simply as possible, stripped of irrelevant detail and personal or professional opinion, especially when based on subjective experience. Therapeutic jargon should be avoided at all times. It may be quoted out of context later in the trial in ways that the witness had not intended. Alternatively, it may open up dangerous lines of questioning in cross-examination, firstly about the meaning of the term, and then its application to this client. The request for a few specific examples opens up endless possibilities in cross-examination. It is often the therapist who wants to use their time in the box to impress with their therapeutic competence or the brilliance of a particular approach to therapy that is easiest prey in cross-examination. They are playing the wrong game to the wrong rules, rather like someone unknowingly playing 'Blind Man's Buff, a children's party game, in the middle of a closely fought rugby match. The outcome tends to be painful for the therapist and ultimately can be very damaging to the client's respect and trust, especially if his or her case is damaged, however unwittingly.’
The authors show us what to do, offer further guidance and what to avoid to prevent us falling into this trap presented succinctly in a table.
So many therapy books contain too much padding with references to other published work that is already familiar. The reader has to work hard to ‘extract the gold from the dross’. This title is not one of these. Your reviewer read the whole book through in one sitting because of the clarity of the writing and logical sequence. I wanted to know what to do next. Bearing in mind that this is about legal matters, it may be described as ‘un-put-downable’ ….. – well almost! Lets’ hope that the rest of the series is as good.
With an increasing amount of litigation and domestic strife it is not so much a question of ‘Will I need this book?’ as ‘When will I need it?’ So buy it now, read the chapter on court orders so that your note keeping bears in mind the probability of disclosure of your records to a court and the two chapters on counselling clients as witnesses and victims. Unless you want to seek work as an expert witness you can at this stage put it on the shelf ready for that dreaded day when a letter from a solicitor arrives concerning one of your clients.