So You’ve Been Asked to Write a Declaration……

The question of what to do when asked to author or sign a declaration on behalf of a patient is a stressful dilemma for most practitioners. This usually occurs when a patient is in the midst of litigation and the patient or the patient’s attorney believes that a statement from the practitioner would be helpful.

For most practitioners one of the first questions is usually, “what is a declaration?” A declaration (a notarized declaration is sometimes known as an “affidavit”) is a written statement offered to a court, often as evidence by a party in a legal matter. For example, a witness to a crime might write an declaration that states that they witnessed X person doing Y action, that if called to testify they would state the same, and that they make the statement believing it to be true and under penalty of perjury.

In the course of a legal action, a declaration is just one more piece of evidence, along with many other documents, exhibits, live testimony, etc.. Like bricks in a wall, each one is considered to be important if it has value in advancing the case. It’s often in an attempt to build this wall that third parties, such as psychotherapists, are asked to contribute facts.

Providing evidence, by itself, is not problematic so long as we keep in mind some basic issues. The foremost of these are (1) confidentiality, (2) sticking to the data, (3) understanding the inherent conflict in being both a treater and an expert, and (4) not signing anything without a complete endorsement of its contents.

Confidentiality should be the first concern when a clinician is asked to comment on some aspects of a patient’s diagnosis or treatment. However, this is easily dealt with once the appropriate releases of information have been issued. Practitioners should have a real-world conversation with patients to impress upon them that once an intrusion is made into treatment, it is difficult to close the door: if a patient authorizes a practitioner to discuss aspects of their treatment with an attorney it is difficult for the practitioner to avoid disclosing highly personal and only tangentially-related information. In addition, opposing counsel may want to ask some difficult questions. As a technical matter, a waiver of confidentiality isn’t all-or-nothing, though in practice this often turns out to be the case. It is always a good idea to discuss with patients the unanticipated consequences of such an intrusion.

The second major issue is to stick to the data. Attorneys (and patients) often believe that treating or assessing practitioners have access to a wider variety of data than are actually available. In addition, laypersons often do not understand the bases of mental health opinions. Because of this, it is important to stick to the available data and to not go beyond. In most cases, practitioners only have the data that the patient has provided in sessions. Because of this, it is important to speak only to the facts that are known. Woe be unto the treating practitioner who offers a declaration containing a custody recommendation after only seeing one of the parents in treatment.

The third issue, which is related to the second issue, is to understand the inherent conflict between being a treating psychotherapist and an independent expert. Clients and attorneys often ask treating psychotherapists to function as experts. As a practical matter it is often easier for clients and their attorneys to ask treating psychotherapists to function as experts. After all, treating experts have access to a large amount of data; it’s a very convenient solution.

The problem for treating psychotherapists, however, is that the data to which they have access is limited and often comes solely from the patient. This isn’t usually a problem in most forms of psychotherapy, but when a practitioner is asked to provide a statement to the court that involves a statement of fact or expert opinion things can get messy. As we all know, “truth” is relative and this is no more apparent than in psychotherapy. The legal world, however, is not as comfortable with the nuances of perception and demands more exactitude. These demands can damage a therapeutic relationship. Most treaters elect to avoid offering expert opinions and to only discuss what happened in psychotherapy sessions. This may involve some efforts to educate the patient and his/her attorney, as these role conflicts don’t often present themselves with other healthcare practitioners.

In comparison to treating practitioners, independent experts are not faced with the dilemma of having to align with a patient. Evaluating experts can steer clear of the dual relationships and role conflicts that are often present when treaters adopt an objective role. Experts are obligated to seek a wider range of data than are treaters, and also to clarify the limitations of their opinions.

Finally, it is important to remember that signing a declaration is a serious matter. It is a representation of an objective truth. Attorneys often offer to write the declaration, both because they are best able to frame the legal arguments, and also because they often prefer to articulate the declaration in a light that best favors their client(s). It goes without saying that practitioners should avoid signing a declaration unless they agree with each word.

Hopefully this article provides some background and a measure of understanding into the world of declarations and affidavits. The usual admonition applies: if you are in doubt about what to do, consult with an attorney. The nuances of evidence law and procedure are complex and there are many times when it is appropriate to ask for a brief consult. The general rule in law is the same as in clinical practice: if in doubt consult.

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