There are two parallel and co-equal systems – healthcare and legal. They are built around identical structures to serve different roles and functions.
Healthcare: clinical interviews
Legal: laws & statutes
Healthcare: diagnostic criteria
Legal: ruling by judge
Healthcare: diagnosis by doctor
Legal: court orders
Healthcare: doctor’s orders
Pathology in the family is a treatment issue and is within the scope of the Healthcare system to resolve. When the courts are also involved, the two systems must exchange the child and family back-and-forth to resolve the pathology in the family.
Professionally, we must first diagnose what the pathology is before we know how to treat it, i.e., we must first identify what the problem is before we know how to fix it.
Diagnose = identify
Pathology = problem
Treatment = fix it
When mental health pathology (a family problem) enters the courts, it needs to be turned back into the mental healthcare system to receive a proper assessment, that leads to an accurate diagnosis, that will guide the development of an effective treatment plan.
Once this diagnosis and written treatment plan is returned from the doctors in the healthcare system, then this becomes evidence within the legal system. The legal system then applies its rules and procedures to its evidence to make its decisions based on the law and circumstance.
The two systems must work back-and-forth together, each performing its role within the limits and scope of its role. Clinical psychology offers no recommendations on child custody, that is the court’s role and decision. It is not the role of doctors to determine who “deserves” to be a parent. Doctors can identify (diagnose) the problem (pathology) and tell you how to fix it (treatment).
Treatment vs Custody Approaches
The position of clinical psychology regarding child custody is that, in the absence of child abuse, each parent should have as much time and involvement with the child as possible.
In the absence of child abuse, parents have the right to parent according to their cultural values, their personal values, and their religious values. In the absence of child abuse, professional psychology should not intrude onto these fundamental parental rights to be parents. If there are problems, we fix them through a written treatment plan with specified Goals, Interventions, Timeframes, and Outcome Measures.
Google “mental health treatment plans” and read the top two returns for a description of a written treatment plan with Goals, Interventions, Timeframes, and Outcome Measures, so standard of practice that the description returns on a simple Google search.
Is there child abuse? DSM-5 V995.51 Child Psychological Abuse. That is the question of concern. That is the question clinical psychology can answer.
It is the obligation of clinical psychology to accurately diagnose child abuse when it is present, and it is the obligation of clinical psychology to protect the child 100% of the time.
When possible child abuse is a considered diagnosis, the diagnosis from healthcare must be accurate 100% of the time. The consequences for the child of misdiagnosing child abuse are too severe and destructive.
In healthcare, the appellate system for a disputed diagnosis is second opinion, or even third. Throughout all of healthcare, diagnosis guides treatment, if we treat cancer with insulin the patient dies from the misdiagnosed and mistreated cancer. In healthcare, our diagnosis must be accurate 100% of the time because when we misdiagnose and mistreatment pathology people get hurt – badly hurt.
Misdiagnosis is unacceptable. Diagnosis guides treatment. Always. An accurate diagnosis is needed to guide effective treatment for the pathology (for the problem).
When possible child abuse is a considered diagnosis, as it often is in the family courts, the diagnosis from the mental healthcare system must be accurate 100% of the time, and since it is anticipated to be a disputed diagnosis, a second opinion consultation should be common and frequent in court-involved clinical psychology.
The Application of Knowledge
All psychologists should be applying the same knowledge and information (the best) to reach exactly the same diagnostic conclusions (accurate), with the same recommendations (effective). Second opinion consultation improves decision-making and the quality of healthcare received by the patient.
Standard 2.04 Bases for Scientific and Professional Judgments
Psychologists’ work is based upon established scientific and professional knowledge of the discipline. (APA Ethics Code)
The established scientific and professional knowledge of the discipline is:
Attachment – Bowlby and others
Family systems therapy – Minuchin and others
Personality disorders – Beck and others
Complex trauma – van der Kolk and others
Child development – Tronick and others
Self Psychology – Kohut and others
ICD-10 & DSM-5 diagnostic systems
In the legal system, the appellate process is applied in sequence, first the ruling by the judge and then the appeal. In the healthcare system, on the other hand, the appellate process begins early and is used often, doctors consult with each other before reaching a diagnostic decision, and will often reach a consensus diagnostic opinion through consultation.
The healthcare and legal systems are different systems built on the same underlying structures. In healthcare, the doctors are the “judges” and there are no attorney-level roles, the doctors conduct the clinical interviews personally (“try the case”), and doctors then consult in second, or even third, opinions frequently and easily (the appellate system for diagnosis).
For example, when a patient goes to their primary care physician with a pain, if the pathology is unusual the primary care physician may refer to a specialist doctor for a specialized assessment. This specialist may then also seek consultation from a third doctor specialist if the case has complex features. Referrals for second opinion is common practice in healthcare.
Consultation among doctors (the “judges” in the healthcare system) happens early, often, and easily. This improves the accuracy of diagnosis and the quality of decision making and patient care.
In court-involved family conflict, the diagnosis is anticipated to be disputed, so the diagnosis and treatment plans for court-involved family conflict should almost always be supported by second opinion for clarity and certainty in the court’s subsequent decisions.
The consulting second opinion should concur with the diagnosis given by the primary involved doctor. If a significant dissent occurs regarding the diagnosis, then a consulting third opinion should be sought from another doctor specialized in the field, forming a three-doctor appellate panel for the diagnosis and recommended treatment plan. That’s how the healthcare system works to reach its decisions. The appellate system for a disputed diagnosis is second opinion, and it is activated early and often.
Custody & Child Abuse
In the absence of child abuse, each parent should have as much time and involvement with the child as possible.
The question is, is there child abuse?
When child abuse is a considered diagnosis, our diagnosis must be accurate 100% of the time. The consequences of misdiagnosing child abuse for the child are too severe.
Tele-medicine and tele-psychology allows doctors to consult easily through secure Internet videoconferencing platforms. Remote testimony is also easily handled now by the courts following their adjustments for Covid. We live in an emerging age of the Internet. This provides substantial advantages for both the healthcare and legal systems in successfully resolving court-involved family conflict.
To achieve solutions for the child’s healthy development, the two systems must work in cooperation toward achieving an effective treatment plan to successfully resolve the family conflict, with each system performing their role in parallel structures, that will allow us to return to the child a healthy and normal-range childhood.
Craig Childress, Psy.D.
Clinical Psychologist, CA PSY 18857