Therapists in Court
Tim Bond and Amanpreet Sandhu
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,
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
within 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has changed from a happy outward-going girl to someone who is withdrawn at home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
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
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.
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
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 Bluff, 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
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! Let’s hope that the rest of the series is as
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
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