Guidelines for Writing Letters and Offering
Professional Opinions
By Alain Montgomery, JD
CAMFT Staff Attorney
DISCLAIMER
The information presented in this
workshop is for educational
purposes only and is not
intended to serve as a substitute
for independent legal advice.
GOALS & INTENTIONS FOR TODAY
To give you the information you need to:
Make well-informed and legally and ethically sound decisions, and
Provide a framework that will help you formulate strategies so that you know what legal & ethical
precepts to rely on when a client requests that you write a letter on their behalf. Ultimately, the goal is
to give you information that will help you arrive at the decision to either write a letter or decline the
client’s request for a letter with as much equanimity as possible.
To explain the boundaries around rendering professional opinions in legal proceedings.
We are going to:
Review the legal, regulatory and ethical standards that apply to letter writing and rendering
professional opinions.
Identify relevant sections of the CAMFT Code of Ethics that address issues related to writing letters and
offering professional opinions.
Discuss the considerations that will help you Identify whether or not it is within your scope of practice
and competence to write various types of letters.
Identify the types of letters that therapists are most commonly asked to write.
Review best practices.
I. Introduction
As a therapist you may be asked by a client to write a letter on the
client’s behalf that the client intends to use to support the client’s
request to obtain a benefit, to avail themselves of a specific opportunity
or to achieve a goal in their life.
However, the client’s request may be unrelated to the therapeutic work
you do with the client. BUT, because you are a licensed mental health
care provider who is qualified to make certain determinations, the client
– and/or the individual or entity responsible for making a decision based
on the client’s request – may want your professional insight, opinion or
recommendation.
Thus, it is important to understand the distinct legal, regulatory, ethical
standards and rules that pertain to writing letters and offering opinions
while acting in your professional capacity.
II. Applicable Legal, Regulatory,
Ethical Standards and Rules for MFT’s
The reason it is important to understand the applicable legal, regulatory and ethical standards
that are relevant to your profession is so you remain in compliance with the standards when
you write a letter or render a professional opinion. These standards include:
The Standard of Care
MFT Scope of Practice & Scope of Competence
CAMFT Ethical Standards
The Standard of Care
The “Standard of Care“ (SOC) is a legal
term not a health care term. The SOC
refers to the level of attentiveness and
care that one person owes to another
person under certain circumstances.
As a licensed professional you are
subject to a professional (or higher)
standard of care. A professional
standard of care applies to a
professional who offers services to a
client or patient. As a MFT you must
exercise the reasonable degree of skill,
knowledge and care that is ordinarily
exercised by other members in your
same professional community when
practicing under similar circumstances.
[Black's Law Dictionary 2nd Ed. & Cal
Jury Instruction 501]
Critical Reminder: The
standard of care
applies to everything
you do in your
professional capacity
not just letter writing
What Happens when a MFT’s
Conduct Falls Below the Standard of
Care?
Under Cal. Bus. and Prof. Code, Section 4982(d):
A Board registrant or licensee whose conduct
falls below the standard of care is liable for “gross
negligence or incompetence in the
performance of marriage and family therapy.”
An allegation or finding of professional negligence
could result in a host of legal, ethical or
disciplinary consequences.
MFT Scope of Practice &
Scope of Competence
The professional standard
of care for a MFT
registrant or licensee can
be understood through
how the “Scope of
Practice” and “Scope of
Competence” for MFTs
are defined by BBS
statutes and regulations.
MFT Scope of Practice
Scope of Practice
Cal. Bus. and Prof. Code, Section
4980.02 in part states: “. . . The
application of marriage and family
therapy principles and methods
includes, but is not limited to, the use of
applied psychotherapeutic
techniques. . . And the provision of
explanations and interpretations of the
psychosexual and psychosocial
aspects of relationships. . .”
Scope of Practice
The scope of practice (SOP) defines the
clinical functions a MFT may lawfully
perform as prescribed by legislative and
regulatory authority.
The SOP identifies the clinical skill-set
possessed by members of the MFT
profession as a whole and describes how
marriage and family therapy principles
are applied.
Every practitioner has a duty to act within
the scope of practice of their profession.
MFT Scope of Competence
Scope of Competence
Cal. Bus. and Prof. Code, Section
4982(s): in part states that
unprofessional conduct is: “. . .
Performing or holding oneself out
as being able to perform mental
health services beyond the scope
of one’s competence, as
established by one’s education,
training, or experience; and,
CCR, Section 1845.
UNPROFESSIONAL CONDUCT in part
states: “. . . unprofessional conduct
includes, but is not limited to: (a)
Performing or holding himself or
herself out as able to perform
professional services beyond his or
her field or fields of competence
as established by his or her
education, training and/or
experience.”
Scope of Competence
The scope of competence (SOC)
defines the different therapeutic
techniques an individual within the
MFT profession may perform as
determined by one's education,
training and experience.
The SOC refers to the professional’s
individually honed knowledge, skills
and abilities.
Like the duty practice within your
scope of practice, every professional
is required to practice within their
scope of competence.
Relevant CAMFT Ethical Standard(s) that Provide
Guidance on How to Stay Within the Scope of
Competence
CAMFT Code of Ethics §5.11 Scope of Competence:
Marriage and family therapists take care to provide proper
diagnoses of psychological disorders or conditions and do
not assess, test, diagnose, treat, or advise on issues beyond
the level of their competence as determined by their
education, training, and experience. While developing new
areas of practice, marriage and family therapists take steps
to ensure the competence of their work through education,
training, consultation, and/or supervision.
What Happens when a MFT acts
outside their SOP or SOC?
Acting outside one’s SOP and SOC could
subject a practitioner to allegations of
professional negligence and a host of legal
and or disciplinary consequences.
Recap and Questions:
We have reviewed:
1) The legal, regulatory and ethical considerations around writing
letters including the Std. of Care, SOP and SOC
QUESTIONS?
III. Rules that Pertain to Letter
Writing
So, as derived from the applicable legal, regulatory and ethical
standards that we have reviewed, the basic rules when it comes to
letter writing are simple:
Rule #1
•Therapists are not legally
or ethically required to
write letters on behalf of
clients.
Rule #2
•Generally, therapists are
not legally or ethically
prohibited from writing
letters for clients unless a
statutory provision
excludes the MFT
provider/license type from
being eligible to do so.
Because you are not legally or
ethically required to write letters
on behalf of clients who ask for
one. . .
This means you can have – and enforce
– a policy that states you do not write
letters on behalf of clients without
fearing that you are violating a legal or
ethical standard.
So, you can reserve for yourself the right
not to involve yourself in matters that
arise in your client’s life that are
unrelated to the therapeutic work you
do with your client or take on the
burden of that knowledge or
responsibility through letter writing.
And, because you are not legally or ethically
prohibited from writing letters on behalf of clients
unless prohibited by law . . .
This means you can choose to write a
letter on behalf of a client as long as you
make statements, attestations or
certifications that are 1) within your scope
of practice and 2) scope of competence
AND when it is clinically and ethically
appropriate.
So, Letter Writing for a MFT is a Balancing
Act That Requires Many Considerations
If you choose to write a letter, you have to
balance your desire to advocate and
support your client in whatever endeavor
they are pursuing
with any and all applicable legal, regulatory
and ethical standards that are related to
letter writing so you don’t speak or act
outside your MFT SOP or SOC
As a Marriage and Family
Therapist you are
mandated by law to write
letters for clients and can
be subject to disciplinary
action if you refuse to do
so, true or false?
A. True
B. False
Answer:
B. FALSE!!!
Therapists are not legally or ethically required to write letters on
behalf of clients.
IV. Considerations to Evaluate Before
Writing a Letter
The list of questions that you can ask yourself to
determine whether or not writing a letter serves
the client’s best therapeutic interest and aligns
with the applicable legal, regulatory and
ethical standards is not exhaustive.
Considerations to Evaluate Before
Writing a Letter
Am I legally
prohibited from
writing the letter,
making the
attestation or
certification
based on my
provider type?
Even if I am not
legally
prohibited, are
there reasons I
should not
provide the
information
requested?
Will the letter or
information I
provide facilitate
the client’s
aims/goals?
Would writing the
letter for the client
either distort for
me and/or the
client the role I
play in the client’s
life?
If I am prohibited
from making a
specific
certification or
attestation can I
provide
corroborating
information?
Considerations to Evaluate Before
Writing a Letter
Will the client be
better served by
having a different
provider write the
letter or provide
the information?
Is the information
I provide
supported by
information
documented in
the client’s
clinical record?
How do I feel
about
supporting the
client in this
matter and in
this manner?
Whether I write
the letter or not,
what are the
potential
implications for
the therapeutic
alliance?
Is the client’s
request made
in good faith?
V. Practical Writing Guidelines for
Crafting Language When Writing
Letters:
The language, words and phrases in a
letter could be impactful not only for
the client but could also have
implications for the provider who
writes the letter.
Practical Writing Guidelines (cont.)
Language and phrases that – if not used
appropriately – could increase the
probability the information contained in
the letter and the capacity of the writer
to make such statements could be
questioned or subject to scrutiny.
“It is my opinion that ___________.”
“I recommend that ____________.”
“I suggest that _________________.”
“You should/should not ________.”
When is it appropriate to use such
language?
It is appropriate to use such language if it is aligned
with your SOP and SOC. For example, if you
assessed a client and formed the opinion that the
client needed a higher level of care made that
recommendation in a letter, such language would
be appropriate because it is within your SOP & SOC
to assess your client, render such an opinion and
make such a recommendation based on a client’s
diagnosis or prognosis.
Also, if you were asked by a client to submit a letter
to an insurance company for the purpose of
recommending that additional treatment sessions
be authorized based on the client’s current
diagnosis & prognosis, such language would be
appropriate because it is within your SOP & SOC to
make such a recommendation.
Practical Writing Guidelines (cont.)
Language and phrases that are more
neutral, objective, matter of fact and
written in a more ‘report like’ style
manner are more likely to be supported
by information that is documented in the
clinical record and less likely to be
subject to unwanted scrutiny
“[Client] stated that ______________.”
“[Client reported that ____________.”
“[Client] said that ________________.”
“I observed ______________________.”
“I assert my support for [Client’s]
request to/for ____________________.”
When is it appropriate to use such
language?
It is appropriate to use such
language to write varied types
of letters on behalf of clients.
Final Thoughts on the Use
of Language, Words and
Phrases:
When you write a letter you
are not prohibited from using
certain words, language or
phrases. But, consider what is
necessary for you state in a
letter. Because the purpose of
a letter from you is to support
the client’s request for
something from someone and
to support the client’s personal
advocacy efforts not to make
the request for, or on behalf
of, the client.
VI. Types of Letters Therapists are
Asked to Write
Request to write a letter to support the client’s request for an Emotional
Support Animal
Request to write a referral letter to an insurance company or surgical group
to support the client’s request for gender affirming surgery
Request to fill out a client’s claim for Social Security Disability, Family Medical
Leave (FMLA) or to provide information to the client’s employer to support
the client’s leave or time off of work request
Request from a client’s parent (if client is a minor) to write a letter to the Court
to recommend that a parent’s custody rights should be restored, removed or
modified
Request to write a letter to the Jury Commissioner to support the client’s
request to be excused from Jury duty
Request to write a character reference or recommendation to support the
client’s request to enter an educational institution, fraternity or sorority or
participate in an extracurricular scholastic program
The “Can You Write Me an
Emotional Support Animal
Letter?” Request
To ensure you remain
within your SOP and SOC
when you write an
Emotional Support Animal
(“ESA”) letter, it is
important to understand
the distinction between a
service animal and an
emotional support animal.
Service Animal
Service Animal
The Law: Service animals are protected
under the Americans with Disabilities Act
(“ADA”) and apply to a any dog or
miniature horse that is individually and
specially trained to do work or perform tasks
for the benefit of an individual with a
disability.
The Individual: Under the ADA, an individual
who is limited in their ability to perform
major life tasks due to a qualified physical,
sensory, intellectual or psychiatric disability
is eligible to have a service dog.
The Role: Service dogs perform such tasks as
guiding those who are blind (Guide Dog),
alerting people who are deaf (Hearing or
Signal Dog), alerting a person who is having
a seizure (Seizure Response Dog), reminding
a person with mental illness to take
prescribed medications, (Psychiatric Service
Dog) or, pulling a wheelchair.
Service Animal
The Access: Service animals can
accompany an individual with a disability in
all areas where members of the public are
allowed. Under Air Carrier Access Act,
airlines are required to recognize dogs as
service animals and accept them for
transport on flights to, within and from the
United States.
The Take Away: A service dog is not
required to be registered, certified, or
identified as a service dog. However, a
health care provider who provides
documentation must be able to attest to
the existence of the individual‘s underlying
physical, sensory, or intellectual disability
and the individual’s need for a reasonable
accommodation.
[28 C.F.R. § 36.104]
Emotional Support Animal (ESA)
Emotional Support Animal (ESA)
The Law: Emotional Support Animals
are protected under the Federal Fair
Housing Act (FHA).
The Individual: Under the FHA, an
individual with a mental health
condition or disorder qualifies to have
an ESA.
The Role: An ESA is any animal provides
companionship and support to
alleviate the symptoms or effects of
an individual’s mental or emotional
distress (i.e., anxiety, depression, panic
attacks, or other psychological and
emotional conditions)
Emotional Support Animal
The Access: Under the FHA, housing
providers are required to allow individuals to
have an ESA in their home & the U.S.
Department of Housing and Urban
Development (HUD) requires housing
providers to make exceptions to "no pets"
policies. However, the DOT announced in
2020 that ESA’s will no longer be considered
service animals and will treat ESA’s as pets
which gives the airline discretion.
The Take Away There is no requirement that
an ESA be individually certified, However, a
health care provider who provides
documentation must be able to attest to
the individual’s underlying condition and
that the ESA alleviates the symptoms of the
individual’s condition.
[HUD Handbook 4350.3: Occupancy Requirements of Subsidized
Multifamily Housing Programs, 2-44, Revised 2013; 24 CFR § 5.303]
New CA Emotional Support Dog Letter Law
California Assembly Bill 468 – Emotional
Support Animals was approved by the
Governor on September 16, 2021 and will
take effect on January 1, 2022 and be
codified in the Health and Safety Code.
The bill prohibits a health care
practitioner from providing
documentation relating to an individual’s
need for an emotional support dog
unless the health care practitioner
complies with specified requirements.
Under the law, an emotional support dog
is defined as a dog that provides
emotional, cognitive, or other similar
support to an individual with a disability,
and that does not need to be trained or
certified.
The law requires health care practitioners
to comply with all of the following:
(1) Possesses a valid active license
(2) Is licensed to provide professional
services license in the jurisdiction in which
the documentation is provided
(3) Establishes a client-provider relationship
with the individual for at least 30 days prior
to providing the documentation requested
regarding the individual’s need for an
emotional support dog.
(4) Completes a clinical evaluation of the
individual regarding the need for an
emotional support dog.
(5) Provides verbal or written notice to the
individual that knowingly and fraudulently
representing oneself to be the owner or
trainer of any canine licensed as or
identified as, a guide, signal, or service dog
is a misdemeanor.
Fact Pattern:
J. Smith, LMFT specializes in grief and has been treating their client Clint West to help
Clint process the death of his spouse. Clint told J. Smith, LMFT that he experiences
waves of sadness and depression which interferes with his ability to concentrate. J.
Smith, LMFT diagnosed Clint with adjustment disorder with mixed disturbance of
emotions and conduct. Clint told J. Smith, LMFT that the one thing in his life that
alleviates his symptoms of depression is his faithful canine companion, Lily, a 3 year old
yellow Labrador Retriever. Clint explained that having Lily in his life gives him a sense of
purpose, a sense of companionship, makes him feel happy and helps him stay
connected to the world and other people as Lily is quite the character and focus of
conversation with other dog owners at the dog park each morning. Clint told J. Smith,
LMFT that at this point he could not imagine going through life without Lily. Clint
explained that he was going to move out of the family home and move into an
apartment. However, the lease contains a no pets policy but allows tenants to have
emotional support animals. Clint asked J. Smith, LMFT to write a letter attesting that Lily
is Clint’s emotional support animal. Can and should J. Smith, LMFT write the letter?
Explanatory Answer:
Can J. Smith, LMFT write the letter?
Yes. As a licensed mental health care provider it is within J. Smith’s, LMFT
scope of practice to diagnose their client with a mental health condition
based on criteria in the Diagnostic and Statistical Manual of Mental
Disorders (DSM-5). Also, since J. Smith’s, LMFT specialty is bereavement, it
is within their scope of competence to assess how their client’s symptoms
due to grief can be alleviated.
What should J. Smith Consider?
Here, J. Smith’s, LMFT should consider how, the information they provide is
supported and documented in the clinical record based on what Clint
said, stated or reported in session.
The “I Need Time off Work,
Can You Fill Out this Form
for Me?” Request
To know whether or not it is
within your SOP and SOC to
complete forms to support a
client’s request for leave or
time off work it is important to
have a general understanding
of the programs under which
the client may be eligible as a
basis to qualify for time off
work.
Social Security Disability SSDI
Social Security Disability Insurance is a federal assistance program
that provides benefits to eligible individuals whose disability or
illness prevents them from working. Medical evidence of the
claimant’s medically determinable impairment is the cornerstone
of the disability as determined by a physician, psychologist,
optometrist, podiatrist, audiologist, speech pathologist or licensed
advance nurse practitioner or physician assistant. [20 CFR
§ 416.902. (a)(1)-(8)]
Family Medical Leave (FMLA)
The Family Medical Leave (FMLA) allows eligible employees to take
12 weeks of unpaid leave for a serious health condition that makes
them unable to perform essential job functions as determined by a
doctor of medicine or osteopathy, podiatrists, dentists, clinical
psychologists, optometrists, and chiropractors, nurse practitioners,
nurse-midwives, clinical social workers and physician assistants who
are performing within the scope of their practice. [29 CFR § 825.125
(a)-(c)]
Fact Pattern:
J. Smith, LMFT has been treating Rhonda North for depression. Rhonda was in a car accident
1 year ago in which she sustained multiple broken bones in her feet, legs and a herniated
disk in her back. Her injuries have caused her chronic pain. As a result of her injuries, Rhonda
is not able to maintain her active lifestyle which includes participating in triathlons and
coaching her kid’s soccer team. This has left Rhonda burdened with an unshakable feeling
of worthlessness. Rhonda told J. Smith, LMFT that she is currently seeing an osteopathic
physician and a podiatrist for continued treatment of her injuries. Rhonda told J. Smith, LMFT
that her physical pain has impacted her ability to perform her job as skilled forklift operator.
Rhonda told J. Smith, LMFT that she feels like she needs time off work to focus on her physical
health and participate in extensive rehab. Rhonda asked J. Smith, LMFT to fill out a form from
her employer who intends to use the information to decide if Rhonda is eligible for leave
from work. The form stated that any “health care provider” could complete the form and
asked the health care provider to state the employee’s diagnosis, to indicate the amount of
time or leave that is needed and whether the employee is unable to perform their essential
job functions and basic work related tasks due to their medical condition. J. Smith, LMFT
wants to help Rhonda but has doubts about her ability to complete the form. What should J.
Smith, LMFT do?
Explanatory Answer:
J. Smith, LMFT should consider whether or not it is within her SOP and SOC to determine
whether or not Rhonda can perform her specific job functions and her specific work
related duties based on Rhonda’s physical impairments. The facts state that Rhonda is
under the care of an osteopathic physician and a podiatrist, both of whom would be
able to determine whether or not Rhonda’s physical injuries impact her ability to perform
her job. J. Smith, LMFT should consider deferring Rhonda to another provider to
complete the form.
If J. Smith, LMFT makes the decision to refer Rhonda to her physician or podiatrist, is there
any other way that J. Smith can support her client?
Yes, J. Smith, LMFT could write a letter that corroborates what Rhonda said, stated, or
reported about wanting and/or needing time off of work due to her injuries and how – in
Rhonda’s own words – her injuries impact her ability to perform her essential job
functions.
Remember, it is not within the SOP of a MFT to assess whether or not a client is or is not
physically able to perform their specific and essential job functions – or the
accommodations that may be needed – no matter what the client’s job is whether the
client is a waiter, engineer, student or truck driver.
Writing a letter that
contains clinical
information is the
same as providing
the clinical record
and the same rules
apply, true or false?
A.True
B.False
Explanatory Answer:
B. FALSE!! Writing a letter in which clinical
information is contained IS NOT the same thing
as providing the clinical record. The rules that
pertain to letter writing are derived from various
standards. How to respond to a client’s or a third
party’s request for a client record is prescribed
by state and federal laws. So, if a client wants
you to provide them with information about their
treatment make sure the request is clear as to
how they want that information, whether it is in
the form of a letter or the actual record.
Recap and Questions:
We have reviewed:
1) The two basic rules that apply to letter writing
2) The considerations to evaluate in contemplating to either write a
letter or to refuse the client’s request
3) Practical guidelines for writing letters
4) The different types of letters that therapists are commonly asked
to write
QUESTIONS?
VII. Professional Opinions
in Legal Proceedings
It is important to understand
the different capacities in
which you may be asked or
compelled to appear as a
witness in a legal proceeding.
The type of witness you agree
to serve as, or are compelled
to testify as, determines the
scope of the opinion you can
render.
Types of Witnesses
You will either testify as a:
1. Fact Witness
2. Retained Expert Witness
3. Treating Therapist Witness
Let’s take a look at the differences
between the three types.
Fact Witness
A fact witness is one who ”. . . personally sees or perceives a thing. . .
who is called to testify to what he has seen, heard, or otherwise
observed.” [Black’s Law Dictionary, 6
th
Ed.]
“. . .the witness’ testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based
on the perception of the witness and based on what the witness
directly observed” [FRE 701]
Compensation for a fact witness is set by statute. Fees are thirty-five
dollars ($35) a day and mileage actually traveled, both ways, twenty
cents ($0.20) a mile. [Gov. Code, Section 68093]
Fact Witness (cont.)
In sum, a fact witness has personal and firsthand
knowledge of an incident, event or person (i.e., a client)
involved in the lawsuit. A fact witness only recites facts
related to that incident, event or individual based on
what they observed. A fact witness may only provide an
opinion when the opinion is based on the witness’s actual
perception.
Expert Witness
An expert witness is “One who by reason of education or specialized
experience possesses superior knowledge respecting a subject
about which persons having no particular training are incapable of
forming an accurate opinion or deducing correct conclusions…”
[Blacks Law Dictionary, 6
th
Ed.]
“A witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify in the form of an opinion . . . based
upon sufficient facts or data, reliable principles and methods” which
the expert applies to the facts of the case.” [FRE 702]
An expert witness testifies voluntarily by agreement with one of the
parties or the Court.
An expert’s fees are set by the expert based on the experts
reasonable and customary hourly or daily fee. [Gov. Code, Section
68092.5 & Cal. Code of Civ. Pro., Section 2034.210]
Expert Witness (cont.):
In sum, the key distinction between a fact witness and an
expert witness is that an expert witness may provide an
opinion or draw conclusions based on their “scientific,
technical, or other specialized knowledge” and expertise.
Unlike a fact witness, an expert witness is not called to
testify because of their prior involvement in activities that
precipitated the litigation (i.e., having had a therapeutic
relationship the party involved in the lawsuit). An expert
witness does not have personal or firsthand knowledge of
the incidents, events, or individuals involved in the litigation
but uses their specialized knowledge and methodologies
to form opinions, explain reasoning or draw conclusions.
Treating Therapists Witness
A treating therapist witness is a treating physician or other
treating health care practitioner who is asked to express
opinion testimony or factual testimony regarding the past or
present diagnosis or prognosis of a client and the reasons for
a particular treatment decision made by the practitioner.
A party who takes the deposition of a treating health care
practitioner must pay expert witness fees. [Cal. Code of Civ.
Pro. Section 2034.430].
Relevant CAMFT Ethical Standard(s) that Provide
Guidance on Offering Professional Opinions
CAMFT Code of Ethics § 10.5
Impartiality
Marriage and family therapists,
regardless of their role in a legal
proceeding, remain impartial and do
not compromise their professional
judgment or integrity. Marriage and
family therapists understand that their
testimony and opinions are impactful
on legal outcomes. Marriage and
family therapists use particular caution
when drawing conclusions or forming
or expressing opinions from limited
observations or sources of information.
CAMFT Code of Ethics § 10.7
Professional Opinions in Court
Involved Cases
Marriage and family therapists shall
only express professional opinions
about clients/patients they have
treated or examined. Marriage and
family therapists, when expressing
professional opinions, specify the limits
of the information upon which their
professional opinions are based. Such
professional opinions include, but are
not limited to, mental conditions,
emotional conditions, or parenting
abilities.
Relevant CAMFT Ethical Standard(s) that Provide
Guidance on Offering Professional Opinions
CAMFT Code of Ethics § 10.2 Expert Witnesses
Marriage and family therapists who act as expert or who provide expert
opinions in any context, orally or in writing, clarify their expert role to their
clients/patients, fellow professionals, attorneys, and the court as
necessary. Marriage and family therapists base their opinions and
conclusions on appropriate data and are careful to acknowledge the
limits of their training, data, recommendations or conclusions, in order to
avoid providing unsubstantiated, misleading, distorted, or biased
testimony or reports. Marriage and family therapists carefully distinguish
between the roles of “treating therapist” and “forensic expert.” Treating
therapists primarily provide opinions on the assessment, diagnosis,
treatment progress and recommendations, particular area of expertise
and issues directly relevant to the treatment role. They understand that
their role is to facilitate successful psychological functioning, and not to
promote a predetermined legal outcome. Forensic experts are retained
to offer opinions and make recommendations in a variety of legal
contexts, including specific parenting and custody plans or decision-
making authority in legal proceedings.
Relevant CAMFT Ethical Standard(s) that Provide
Guidance on Offering Professional Opinions
CAMFT Code of Ethics §5.14 Limits of
Professional Opinions:
Marriage and family therapists do not
express professional opinions about an
individual’s psychological condition
unless they have treated or conducted
an examination and assessment of the
individual, or unless they reveal the
limits of the information upon which
their professional opinions are based,
with appropriate cautions as to the
effects of such limited information
upon their opinions.
CAMFT Code of Ethics §10.1
Testimony:
Marriage and family therapists who give
testimony in legal proceedings testify
truthfully and avoid making misleading
statements. Marriage and family
therapists inform the court of any
conflicts between the expectations of
the court and their ethical obligations or
role limitations. Marriage and family
therapists should anticipate that clients,
attorneys, or the court, might ask them to
offer opinions or information beyond the
limits of their knowledge base or expert
role. In such circumstances, marriage
and family therapists safeguard their
professional objectivity by clarifying these
issues with the court and respectfully
declining to offer such testimony
A Few Questions . . .
Can I immunize myself from having to appear in Court as a witness if I
state in my Informed Consent, that I do not appear in Court or get
involved in a client’s legal issues?
ANS: No. Having such a statement in your Informed Consent may dissuade
a client from trying to involve you in their legal issues or from asking you to
appear in Court on their behalf. However, the reality is that if you are
subpoenaed to produce records or to appear at a deposition or a trial
you must be responsive and appropriately comply.
Can I dictate the capacity in which I appear as a witness in a legal
proceeding if I state in my Informed Consent that the only capacity in
which I will appear as a witness is as an “Expert Witness?”
ANS: No. Unless you are asked by a party to voluntarily appear as a
retained expert witness, you will most likely be subpoenaed to appear as a
“treating therapist witness” and entitled to your reasonable and
customary hourly or daily fee.
FACT PATTERN:
J. Smith, LMFT is treating James, a 7 year old boy to help him adjust to his parent’s divorce
and who are involved in a custody dispute. James’ parents shared that they are working
with a court mediator and an independent custody evaluator. J. Smith, LMFT is
subpoenaed to testify as a witness at the custody hearing. During the hearing, J. Smith,
LMFT is asked the following question:
Question: “What is your opinion as to whom should have full legal and physical custody of
James?”
J. Smith’s, LMFT Answer: “I do not have an opinion about that and have not formed an
opinion about that. I am not testifying in the capacity of a custody evaluator. I am
James’ therapist. As such, I can only tell you what James said about where and with
whom he wants to live.”
Did J. Smith answer the question in an appropriate manner?
Explanatory Answer:
J. Smith’s answer was appropriate. Here is why:
When J Smith, LMFT was asked a question that addressed an ultimate
issue J. Smith, LMFT properly stated that it was not within their scope of
practice or scope of competence to make a determination or
conclusive statement about custody as that was not the capacity in
which they were working with James.
Recap and Questions:
We have reviewed:
1) The distinctions between a fact witness, expert witness and
treating therapist witness
2) The CAMFT Code of Ethics standards that pertain to offering
professional opinions
QUESTIONS?
VIII. Best Practices
If you choose to write a letter on
behalf of your client, It's a good
idea to discuss in advance with
the client what information you
can provide would be shared,
and why.
Although you might sympathize
with your client, consider it it
would be outside your SOP and
SOC or unethical for you to
render any kind of professional
opinion
Don't give any more than
necessary. For example, if the
request is for a diagnosis and
documentation of dates of
treatment, there may not be a
reason to offer any additional
details.
If you refuse to write a letter, it is
possible that your client may
disappointed. Consider whether
you can apply your clinical skills
to help the client manage their
emotional reactions.
Remember, it is okay to enforce
the boundaries you create
around your letter writing
practices.
IX. Resources:
CAMFT Articles
“SOMETIMES, It’s What You DON’T SAY…” by Michael Griffin, JD, LCSW (CAMFT
Staff Attorney)
“Scope of Practice” by Mary Riemersma, MBA (Former Executive Director of
CAMFT). Reviewed October, 2019 by Ann Tran-Lien, JD (Managing Director, Legal
Affairs)
“Responding To A Subpoena” by Alain Montgomery, JD, Staff Attorney
Affirming Care: How Therapists Can Support Adult Patients Seeking Gender-
affirming Surgeries by Bradley J. Muldrow, JD, Staff Attorney
