The treating therapist asked to become the forensic expert
Ashwin P. is a clinical psychologist in Durban. For nine months he has treated Sipho K. for post-traumatic stress disorder after a hijacking. Sipho has now been charged with murdering the hijacker. The prosecutor asks Ashwin to compile a report for the court on whether Sipho could appreciate the wrongfulness of his conduct and whether he is fit to stand trial, and offers R14 000 for the report. Sipho's attorney writes objecting that this would breach confidentiality and destroy the therapy. Sipho says he will consent to the report "only if you write that I was not responsible for what I did". Ashwin has never conducted a forensic assessment and has no training in criminal responsibility evaluations, though he has read the sections of the Criminal Procedure Act dealing with enquiries into an accused's mental condition. The court has indicated that it may order such an enquiry and may ask Ashwin to serve on the panel.
1. May Ashwin accept the prosecutor's brief? Analyse the role conflict, the competence question and the validity of Sipho's consent.
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The role conflict. Treating therapist and forensic evaluator are different roles with different duties and different epistemologies. Therapy requires belief, support and a bias toward the patient's wellbeing. A forensic opinion on criminal responsibility requires detachment and a willingness to conclude something the patient will not like. Combining them for the same person, on the same facts, is a dual role that the ethical rules and the courts treat with suspicion - and once he writes a report that may go against Sipho, the therapy is over anyway.
Competence. The rules require practice within the boundaries of one's competence and training. Ashwin has never done a criminal responsibility evaluation and has no forensic training. Reading the Criminal Procedure Act is not training. Fitness to stand trial and criminal responsibility engage specific legal tests - capacity to appreciate wrongfulness, capacity to act in accordance with that appreciation, and practical capacity to follow proceedings and instruct counsel - and require structured forensic methods, collateral information and normed instruments. Holding himself out as expert in that field risks a finding of professional misconduct and a wasted costs order against him.
Consent. Sipho's consent is neither informed nor voluntary. A conditional consent - "write that I was not responsible" - is an instruction about the conclusion, which no independent expert can accept. Consent also cannot cure the competence deficit or the role conflict.
The fee. R14 000 from the prosecutor is not improper in itself, but it sharpens the perception of dependence on the instructing party and must be managed by explicit independence.
Conclusion. He should decline the brief as treating therapist. He should explain his reasons to the prosecutor, to Sipho and to the attorney; recommend an independent practitioner with forensic expertise; and, if he wishes, offer to continue therapy and to provide factual observations only if compelled.
2. Suppose the court does order an enquiry and Ashwin is instructed to report. What standards would bind him?
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Duty to the court. The expert's primary duty runs to the court, not to the prosecutor who pays for the report. That means balanced reporting, inclusion of material that undermines his own conclusion, stated limits of certainty, and no advocacy.
Method. Multiple sources: interviews with Sipho, collateral interviews, medical and custodial records, psychological testing with instruments valid for the population and the question, and explicit mapping of findings onto the statutory tests. Facts must be separated from inferences, and the basis for each opinion stated so the court can test it.
The legal tests, correctly stated. Criminal responsibility is about capacity at the time of the act, not about diagnosis. Fitness to stand trial is about present capacity to understand the proceedings, follow evidence and instruct counsel - it is not a measure of guilt or of how distressed he is.
Informed consent for disclosure. Written consent from Sipho, with the attorney's involvement, that therapy material may be disclosed for this purpose. He must be told, plainly, that the report is not confidential to him and may be used against him, and that the therapeutic relationship may end.
Boundaries of the report. The report answers the questions asked. It does not opine on guilt, credibility or sentencing in the absence of an instruction. It identifies the source of every factual statement.
Record keeping and availability. Full contemporaneous notes, kept separately from the therapy file, and availability for cross-examination. If the opinion changes after further information, he says so and explains why.
The pre-existing therapy relationship. If he is nonetheless ordered to report, he must disclose the relationship in the report itself so the court can weigh it - and he should not continue as Sipho's therapist while doing so.
3. If Ashwin is subpoenaed to testify about what was said in therapy, what is he obliged to do and what should he protect?
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Attend and answer. A subpoena must be obeyed. A court is entitled to the evidence and confidentiality is a duty that yields to a lawful order of the court. Refusal on the basis of confidentiality alone risks contempt and does not assist the patient.
Distinguish the roles. As a fact witness he may be asked what Sipho said and what he observed. As an expert he would be asked for opinion. He should not drift between the two without saying which he is doing, and he should not offer opinions he has not been qualified to give.
Do not volunteer. Answer the question asked, precisely. Where a question calls for third-party information, information about other patients, or material irrelevant to the issue, he should raise the objection rather than answer first and regret it later.
Protect the patient within the process. Tell Sipho what is happening and why; warn him that the therapy material may emerge; suggest he raise the issue with his own attorney; consider whether the court should be asked to receive sensitive evidence in camera or to limit the scope of questioning.
Public interest limits. If the material discloses a risk of serious harm to an identifiable person, the duty of confidentiality is not absolute, and he should raise it with the court rather than decide unilaterally.
Practicalities. Notify his indemnity insurer before the hearing; take advice on the breadth of the subpoena; bring the file and a copy of what he produces; keep an accurate note of what was asked and answered. Compliance with a court order is not professional misconduct - but volunteering a patient's therapy to a court that has not asked for it may be.