Who's My Client?

When mental health professionals (MHPs) serve in their clinical roles as therapists or counselors, their primary ethical responsibilities are to their clients (ACA, 2014; APA, 2017; NASW, 2021). For instance, they respect their clients’ right to self-determination and confidentiality, and they prioritize their clients' needs and wishes. When MHPs act as witnesses, however, their primary duty is to the court. This means that MHPs have a duty to provide testimony in a truthful manner. Their role is not to advocate for their clients, but to provide information with transparency and honesty.

Balancing Court and Client Interests

Although the nature of MHPs’ primary legal and ethical duties changes when they provide testimony on the witness stand, MHPs’ duties to the court do not completely nullify their duties to clients. MHPs should continue to treat their clients with respect (ACA, 2014; APA, 2017; NASW, 2021). When they share information with clients in court, they should do so in respectful terms (e.g., focusing on client behaviors rather than describing them with negative labels such as felon, criminal, or liar). They should also respect client confidentiality as much as possible (Barsky, 2023). While providing honest answers to questions asked by attorneys, MHPs can limit infringements on confidentiality by answering questions with relevant information, but not divulging details or information that is not requested. When asked for information that may be irrelevant or prejudicial to a client, MHPs may pause for a moment to allow the client’s attorney an opportunity to object to the question.

MHPs should stay within the scope of their expertise and knowledge (Barsky, 2024). An attorney might ask a question about the client’s state of mind at the time of an alleged offence, or whether their client may have been suffering from a particular mental health disorder. If the MHP has not assessed for this information or if the professional opinion goes beyond the scope of the MHP's expertise, the MHP should inform that court that it would be unethical to provide such an opinion.

Acting as a Forensic Witness

Whereas MHPs acting in a clinical role have a primary duty to their clients, MHPs hired by the court or by an attorney may owe a primary duty to the court or attorney (Barsky, 2024). Assume that a court hires you to provide a parenting plan evaluation for a divorcing couple: Your role is to gather information, develop evidence-based opinions, and share your opinions and evidence with the court. Your role is not to provide the couple with therapy or to intervene on behalf of a child in need of assistance.

Consider another situation, in which you have been hired by an attorney to evaluate the mental capacity of an older adult in an adult guardianship case: Note that your duty in this case is to the attorney who hires you. Your obligations to the attorney should be identified in your retainer contract with the attorney. For instance, you may be authorized to assess the client and report back to the attorney. The attorney may or may not want to call you as a witness or ask you to prepare an evaluation for the court. If the client needs mental health treatment or assistance, stay within your role as a forensic expert. Do not engage in a dual relationship as a treating professional and a forensic expert. If necessary, you could speak with the attorney about the possibility of a referral for the client to another MHP for treatment or support.

Conclusion

When participating in court proceedings as a witness, it is important to clarify the nature of your role, as well as your ethical and legal obligations when acting in this capacity (Barsky, 2024). When in doubt, consult with an attorney or with co-professionals who are more familiar with the type of case that brought you to court (e.g., criminal, civil, or family law). It may be helpful to ensure that your clients know your role prior to testifying—ensuring that they are not surprised by your testimony in court and fostering trust though openness and honesty. Ideally, the client’s attorney should prepare them for court, including the prospects of your testimony. You may provide clients with information about your role, but avoid providing them with legal advice.

When in court, be honest, concise, and respectful. Do not be afraid to let the court know when you do not know a particular answer or when an attorney’s questions go beyond the scope of your expertise.