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Therapists in Court
Tim Bond and Amanpreet Sandhu
ISBN 1-4129-1268-7
Sage Publications & BACP
Reviewed by the Editor of 'Play for Life' April 2006 |
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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
which has been used, with additions for working with children as the
basis of the PTUK, PTIrl and PTI’s Ethical Frameworks. Amanpreet
Sandhu is Legal Resource Manager at the BACP, Rugby. |
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‘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. |
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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someone who is withdrawn at home and school.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?' |
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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. |
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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. |
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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. |
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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. |
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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.
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