Episode 20: Screening to Subpoena: Preparing for Therapist Testimony in Court with Brittany Bate

Kayla: Welcome back to Your Clinical Supervisor’s Couch podcast, and I’m your host, Kayla Das.

Have you ever wondered what the process might be for therapist testimonials in court?

In today’s episode, Dr. Brittany Bate, licensed psychologist and owner of Be Bold Psychology and Consulting, will share how to prepare for therapist testimony in court from the screening process to how to respond to a subpoena.

Hi, Dr. Bate Welcome to the show. I’m so glad to have you here today.

Brittany: I’m really glad to be here. Thanks for having me, Kayla.

Kayla: Before we dive into today’s episode, please introduce yourself and tell us a little bit about your practice and your professional journey.

Brittany: Yeah, thanks. So, my name is Dr. Brittany Bate I use she/her pronouns. I have my doctorate in clinical psychology with a forensic emphasis. That was kind of how I started, I guess, my clinical journey. My graduate school program was very heavily forensically oriented and it included doing a lot of evaluations, mostly for state at that time, court related clients.

I also did practicums in jails, in forensic mental health hospitals, and federal prisons. And I completed my postdoctoral work doing mostly court related stuff as well as my predoctoral internship.

So, a lot of opportunities to potentially be in court and to have to work with court-involved clients. And now in my private practice, we primarily do clinical and forensic evaluations and treatment.

Kayla: So, I guess the next question is, have you been in court and how has that been for you?

Brittany: So, I will say I have done a lot of mock trial work and I’ve actually done a lot of observing court, but I am grateful to say I actually have not had to be in court. And a lot of that is, I think, attributed to strategies that I employ so that we don’t have to necessarily be in court. That might be screening referrals, staying in our lane or writing reports in a way that assist a trier of fact so that I don’t actually have to show up.

I’ve been subpoenaed many, many, many times and I’ve responded to those subpoenas many times, but ultimately, they’ve either settled the day before I have to show up, or they’ve ended up finding a different way for me to be able to be involved. So, I have not actually physically had to be, but I’ve been prepared and I prepared others to be in court.

Kayla: That’s why we’re here today is to have steps that one prevents you from having to go, but if you do go or get subpoena, you actually know what to do.

So first of all, what are the steps for preparing for therapist testimony in court? For instance, like I know many therapists know that they might receive a subpoena at some point in their practice journey, but what steps come before, during, and after receiving that subpoena?

Brittany: So, I like to say that offense is the best defense, and I think that starts right from screening referrals. So, when you are hearing from a new client, keeping an eye out for or an ear out, if you will, for indicators that there might be court involvement, most likely. This might mean that they’re maybe in a high conflict divorce situation or pursuing separation or divorce. Maybe there is some sort of workplace trauma or a motor vehicle accident and they’re seeking services related to that, and that could be become court involved later. Those are, I would say the most common. Or they might be on probation or parole and in need of court ordered therapy or evaluation services. So, screening referrals and making sure it’s something or someone that you feel confident and want to work with.

The second part is having your informed consent set up in a way that’s protective for you. So that includes having a scope of practice in your informed consent that talks about what your role and job is as a therapist. And generally speaking, your role and job if you’re offering therapy, is going to be to diagnose, assess, and treat a mental health disorder. It is not going to be to offer parental capacity recommendations or to offer custody suggestions or to offer thoughts or opinions on how a motor vehicle accident has impaired a person’s pre and post morbid functioning of that accident. It is going to be to diagnose, assess, and treat mental health disorders. So, keeping that in mind.

Also having a fee agreement from the jump is going to be so important. This is one of the most common things that I get from a therapist asking questions is, can I charge if I have to go to court? And if so, what? And the answer is yes, of course. You should absolutely charge for that time on your calendar. And it’s best if you already have this in your informed consent from the beginning, so you don’t have to circle back around to get a fee agreement in the midst of also navigating and responding to subpoenas or making time on your calendar. So that’s the first part of it.

The next part would be responding to the subpoena and figuring out what exactly it’s asking and what your responsibilities are. And we can talk about that in a lot more detail in a second.

And then the third part is going to be preparing for court and making sure that you’re able and ready to testify competently, confidently, and ethically.

Kayla: I love that. So, what steps or strategies should therapists take to protect themselves and their clients, of course, from being court involved?

Brittany: So first and foremost, just making sure that you’re sticking to the job that you have, and if things start to look like they’re going in a different direction. So, if a client starts to talk about a separation or divorce, or if they’re talking about an ex-partner, bringing them to court for custody related stuff, taking that opportunity to remind and offer psychoeducation about what your role is. More often than not, our clients don’t know what our role really is, and they believe because they have this rapport with us and they feel supported with us as they should, they may believe that we can jump in and help and talk about who they are and their character and essentially be a witness to support them. And maybe even make a judgment about custody or custody related items. But that’s not our role unless we’ve performed a custody evaluation. That is absolutely not our role.

And in fact, if we end up coming into court, then everything is free game. Anything that has been disclosed or talked about in their private therapeutic space is up for examination or cross examination, and they don’t always know that. Sometimes they think that we can come and talk only to this one piece. But really, we’re going to be coming and talking to anything, including what the other side is going to ask. So, making sure that our clients really understand our role, what we will and will not document, and what we can and cannot say.

Documentation is also incredibly important and I am a huge fan of this one guiding principle, which is when we are documenting, document as though what you say is going to be read aloud in court in front of your client because it just may be one day. So that is always the undertones of all the documentation at my practice.

Then secondly, document in a least intrusive way. So, documenting only what is most necessary for ethical, legal, and insurance related obligations and no more.

And thirdly, making sure that you’re keeping your documentation objective. Clinical documentation is never a place for opinions. It is only a place for objective observations, which is how the person objectively showed up today. It is a place for your clinical interventions, and then objectively how they responded to those clinical interventions. Nothing more, nothing less.

Kayla: That’s amazing because even though most therapists know that your therapist notes could always land in front of the client, whether it’s in a courtroom or whether it’s your clients ask to be able to see them. Sometimes we think there our notes, so we’re able to create those notes whatever way we want to. But then there’s so many risks connected to that. And it’s a medical note. You wouldn’t see a doctor, include things that didn’t directly connect with the ailment that somebody came in. So as therapists, we would also want to only include those topics as well.

Brittany: Absolutely. We can include it in generalities and in ways that are protective of the client. So, if a client is talking about this really awful interaction that they had with the parent, the other parent of their child. I don’t think it’s necessarily helpful to document that in detail. Instead, what it might look like in my note is clinician assisted client in processing, challenging interpersonal conflict during a co-parenting discussion. And that is sort of where I leave it, and that is, I think, what is most protective and helpful.

Kayla: I think that’s beautiful. What strategies should therapists implement in their practice to protect them and their clients if they do receive a subpoena, and now are asked for a testimony in court?

Brittany: Yeah, so I think first and foremost, it’s important to just kind of understand subpoenas and what they might be for, and then having a process for how your practice receives a subpoena. So, subpoenas can be for your records, which is called a subpoenas duces tecum. I might have pronounced that wrong, but that’s generally what it’s called. Or it can be for your appearance or testimony or both. It could be for both as well.

Subpoenas can be issued by your client’s attorney, another attorney, or it can be issued by a judge, usually through the clerk of their court, and they can be delivered by a sheriff’s deputy, a process server by hand, by mail, by telephone, by email.

Every state and jurisdiction is a little different, so it’s really important to check with your own jurisdiction about what qualifies for the appropriate delivery of a subpoena. Usually, it has to be in person, though usually email or phone is not considered a appropriate or formal delivery of a subpoena, and it does lead to easier grounds for objection if you have to object. It can also potentially be delivered by certified mail, so that’s another thing to consider.

Then having a process for your practice, so technically, but likely unhelpful to your employees and clients. You don’t have to accept a subpoena on the behalf of an employee in most places. Again, check with your own local jurisdiction, but generally speaking, that is something to note. You also don’t have to provide them with personal contact information for your employees if you have other people who are working at your practice.

You do want to think about how you want to handle it though, and have a point person or a process in place for receiving and then responding to a subpoena. So probably, maybe what a lot of people are tuning in for is thinking about how to respond to a subpoena. So, I’m going to do the, explain it to me like I’m younger, step by step, responding to a subpoena.

The first thing is breathe. This is one, is so, so, so important. Do not respond immediately. Get your nervous system a bit more regulated and there’s no need to panic without additional information. So, when you receive it, take a breath, and then make your decision about your next step.

The next step is just remembering right off the bat, you are not required to speak to anyone’s attorney if you’re not comfortable doing so. This is something that potentially your liability insurance can handle for you, if needed, or eventually, if there’s a court order, then you might have to respond in court, but you don’t necessarily have to speak to anyone’s attorney, and that’s important to think about.

The next thing I always recommend, as soon as you receive, well, not as soon after you breathe and regulate. After you receive the subpoena is to contact your professional liability insurance and inform them about the subpoena and see if they offer a free risk management consult with anyone on their staff or even an attorney. Some professional liability insurances do offer you an attorney to help you go through this process and respond to a subpoena.

The next part after you’ve done that is to contact the client directly to notify them of this subpoena. Do they even know that this has happened? Maybe they know exactly that this has happened. It is their attorney who has reached out, and so they want you to do the thing and they’re going to give you the full release of information and all of that, which makes things usually a little easier. What’s the purpose of this from their perspective, as far as you know? Or do they even know that the subpoena was issued?

During that time, it’s important to review your scope of practice. Your court related fees that are ideally were in your informed consent and talk about different options for them and the pros and cons of releasing their record. Is there an option for a treatment summary maybe? Or after talking with you about potential pros and cons, maybe they actually don’t want you to release their records and they can let their attorney know and their attorney can then write and say like, you are relieved from the subpoena.

If you don’t have a fee agreement in your informed consent, this is also a time to have them sign a fee agreement so that they understand what your costs are going to be for responding to the subpoena for preparing the file, and potentially for testimony.

The next part is discussing obtaining a release of information for the attorney who is issuing the subpoena. So, if it’s not already attached to the subpoena, so you want to ask your client, can I talk to this attorney and get a better understanding of what they may want? If it’s their attorney, they’re probably going to say, yes, of course, here’s a release. If it’s not their attorney, they might be more hesitant to do so. But remember that you can limit the scope of the release of information to only communicating with this attorney about what they’re looking for, what they might need. You don’t have to talk at all about case information or client information beyond, hey, I received this. I’m acknowledging they were my client. If they give you the release to do so, and I want to know more about what it is that you might be looking for. And just gathering information at that time.

If the client says no to a release of information, and this is an attorney issued subpoena, not one from the court or from the judge. Then you do in most jurisdictions have to reply. You can’t just pretend you never got the subpoena and ignore it in most jurisdictions and that reply, you can cite your essential motion to object to the subpoena, which are normally listed on the back of most subpoenas, the different reasons why you can say, hey, I’m not going to do this thing. And privilege would be the one that is most likely used in our circumstances. At that time, the attorney then has the decision to go to the judge and see if they can then get a court order for your records or for your appearance for testimony. And it really just depends on the judge and the case and a lot of different things.

But at that point, after you’ve replied or had your liability insurance attorney reply on your behalf, which is also really helpful. You can wait to kind of hear what is next, but if there is one thing I want everybody listening to take from today is do not just ignore a subpoena. I see this advice more often than I care to acknowledge in different therapists, Facebook platforms, on Listservs, et cetera, and it’s really, really, really bad advice because in a lot of jurisdictions you can be held in contempt of court for ignoring an attorney issued subpoena, so you don’t ever want to just ignore it.

After that, if you do end up being able to talk with them, perhaps you can figure out more about what your next step is. If you end up not being able to, you say, hey, I am objecting to the subpoena on the grounds of privilege, you wait to hear. If they come back with a court order, then you have to comply. And that would take us into the next part of how do we prepare for that.

Kayla: Amazing. So, are there specific considerations when working with, say, specific types of client populations? For instance, are there differences between preparing for therapist testimony in courts that involve minors versus adults? Any particular advice with respect to that?

Brittany: I think when we’re talking about working with minors, this goes back to our informed consent and making sure that everybody is on the same page, and everyone has an understanding of your role and your practice policies in working with minor children. Your jurisdiction or state laws are always a great starting point to figure out what you have to ethically and legally do when it comes to working with minor children.

But there’s other nuances to think about. So, at our practice, we require any parent with legal custody to complete paperwork. We also offer an intake to any parent with legal custody. They don’t have to take it, but we do need to have an intake with one parent. But we do need any parent with legal custody to complete paperwork if they’re separated or divorced or unmarried.

If the parent says that they have sole or full legal custody, then we require the most recent court order or custody agreement on file before beginning with the child. And we generally ask that we are able to notify the other parent or guardian that we are meeting with the minor client. Again, there’s a couple loopholes here where maybe that wouldn’t necessarily be the case if the other parent has sole or full legal custody, but it’s been our experience that when parents are notified, there tends to be a lot less issues down the road with maybe attempt at revoking consent or wanting to pull their child out of therapy or any of those things. There’s nothing to hide here. And so having everyone on the same page tends to usually be the best piece for the minor.

We also have a policy at our practice about a communication about the child. We do not unilaterally communicate about clinical information with one parent only. We are always communicating with both parents on an email thread and we ask that generally speaking, the other parent is ccd. If the other parent is giving us clinical information in any way, if we’re talking scheduling or general billing, then you know, that’s fine. But we, generally speaking, do not communicate about clinical information unilaterally.

And then we actually have a agreement that we ask parents to sign that they’re not gonna request the records of their child for any reason, especially not for court use. And we talk about our reasoning for that. And it is that this space is meant to be a specific and a safe space for your child to be able to fully share. And if that information gets pulled into and used in a court of law and out loud in a court of law, that can really hinder their ability to trust the therapeutic process moving forward, including into their adult life. And I can usually get parents to get on board and agree that that could be problematic and harmful. And typically, then they understand why that policy is in place.

Now just because they’ve signed that thing, it doesn’t mean that if they ultimately request the records that I say, no, I can’t do that. But what I can do is remind them of that policy and try to have a conversation to see if they’ll change their mind. So that is part of what I do with minors.

I also really push harder for treatment summaries when it comes to minors or also consider what’s called an in-camera review. And so that would be where the judge only is able to review the treatment file and decide what, if any of it, can then be given to the attorneys or utilized out loud in court. So that is also something for clinicians to remember that you can do in any circumstance, but especially if we’re talking about minors or anything else that’s incredibly sensitive, which most stuff in therapy is sensitive, but particularly when thinking about minors.

I think the other piece is when you’re getting pulled into any court work, but especially high conflict divorce. Making sure that you are just staying in your lane. You’re not a parental capacity evaluator, you’re not a custody evaluator, you’re surely not a fortune teller or a future teller. So just making sure that you’re not getting kind of pulled into or tricked into a dynamic of offering an opinion that is not yours to offer in the role that you’re in. And that is, I think, most often pressured when we’re talking about high conflict divorce.

Kayla: That’s some really great tips. Now this is a very interesting question because sometimes we think about being asked to testify in court, but then there’s also times when someone is asked to be an expert witness. So are there differences in court preparation between being asked to testify so under a subpoena, and being asked to testify as an expert witness? And is there a subpoena when you are asked to be an expert witness?

Brittany: So, it depends in what kind of role that you’re being an expert for. So, you might be an expert that is offering like an evaluative opinion. So, this might look like someone who is doing a custody evaluation and who is coming in to discuss those results of the custody evaluation, in which case you are able to share the results of your evaluation if you are asked to do so.

Or in some criminal proceedings, it might be that you do competency or capacity to proceed to trial, and so you are meeting with the defendant and you are assessing their capacity to proceed to trial, and you may come in to talk about those findings. It might be that you are doing a risk assessment for someone and so you come in to offer that.

The most important part if you’re an evaluative expert is that your role is to be objective, even sometimes maybe challenging or more skeptical of, and utilize multiple data points to come to your opinion, and you’re indifferent to the outcome. Your job is to come in and provide the information that you have and you’re indifferent.

On the flip side, you might be hired as an educative expert. I can’t quite say that word, but basically, you’re providing education to the trier of fact on a topic more broadly. In this case, you probably have not met with either of the parties involved, but maybe you’re coming in to offer general education to the trier of fact. Maybe you are an expert in trauma and PTSD and you’re coming in to offer more education to the court about what a PTSD diagnosis looks like and how PTSD symptoms might look after a motor vehicle accident. You did not do the evaluation of anyone involved in the lawsuit, but you’re here just to give general information. And again, your role isn’t really to try to win or anything for anyone. It is just to share within your scope of competency what information could be helpful for the trier of fact more generally to understand.

Kayla: That’s really helpful. Dr. Bate, you have a course to help listeners with preparing for therapist testimony in court. Can you tell us what it is and how it can help listeners?

Brittany: Absolutely. So, myself and my colleague, Jill Williams came together to do a training. It is a three hour on demand court crash course for clinicians, and it takes us through a little bit of what we talked about here and more so. From preparing your practice to responding to a subpoena, to reading a subpoena, and like looking at one sort of in real time during this course and looking at each section. To a whole, like 45 minutes on testifying competently confidently, and ethically.

It also includes probably about 15 pages of paperwork, including templates that you can put directly into your informed consent that are mine and Jill’s from our various times, and consultations with our own liability, insurance, attorneys, judges, all of the above. So, you can find that linked in the shows information and we’d be, yeah, happy to have you.

And I’m always available for questions too. If you do check out the course and want to follow up.

Kayla: So, to sign up for Dr. Bates’s Court Crash Course for Clinicians, check out canadianclinicalsupervision.ca/brittanybatecourse

Or you can simply scroll down to the show notes and click on the link.

Dr. Bate, thank you so much for joining us on the podcast today to discuss preparing for therapist testimony in court.

Brittany: Thank you so much for having me. I hope this was helpful. And remember, breathe, regulate, and then reply.

Kayla: Thank you everyone for tuning into today’s episode, and I hope you join me again soon on Your Clinical Supervisor’s Couch podcast.

Until next time. Bye for now.