Art on Trial

Confessions of a serial art therapist

Ethics in Forensic Art Therapy: Defined and Conquered

Ethical considerations for an art therapist testifying for a murder trial

An art piece used to assess the defendant
An art piece used to assess the defendant
In my first blog post last August, "Trials of Art Therapy: An Introduction," I introduced a case where I provided expert witness testimony for a murder trial. In it, I indicated that future posts would focus on ethical and moral issues. Given the direction this blog has taken, these topics got put on hold.

However, last week, at the American Art Therapy Association’s national conference, I presented “Professional Incongruities: Legal, Ethical and Moral Paradoxes of A Forensic Art Therapist.” [i] I was gratified and mystified by its reception. This subject was examined in chapter 6 in Art on Trial and briefly in previous lectures, but I was not sure how an entire presentation would be received.

Turns out, people were interested about the topic.

Who knew? 

The art therapist’s role continues to evolve and interface with other professionals, including those in forensics. Yet the standards used to guide the professional and protect the public may not necessarily apply to these situations.

Even art therapists not involved in forensics were intrigued by the topic, recognizing that ethics developed for art therapists do not always fit all circumstances.

Ethics are the standards of right and wrong developed for a particular field, profession, or culture to guide its members into making sound and proper decisions. In essence, they encompass a (sometimes) documented system of "morally" correct conduct. Morals, simply put, are the personal characteristics and principles that define right and wrong conduct. A moral person will more likely follow ethical guidelines...but not necessarily.

To address these two sides of the same coin, I have divided this topic into two separate posts–this one will address ethical considerations and the next post will examine moral conundrums.

Mind Cage
Mind Cage

Ethical Ramifications

In 2006-2009, I worked for a defense team to provide expert witness testimony on the art of a man on trial for murder. The prosecution was seeking the death penalty. The defense wanted to demonstrate that the defendant had a mental illness. This is where I came in [see The Trials of Art Therapy for description]. This became the impetus for the 2013 book Art on Trial: Art Therapy in Capital Murder Cases.

I followed the then ethical guidelines as set forth by the Art Therapy Credentials Board's Code of Professional Practice.

Tanay (2010) stressed the need to be ethically vigilant throughout the experience:

[U]nethical professionals would be ill-advised to go into forensic work, as it is much easier to be unethical outside the scrutiny of adversary proceedings. Success in forensic work depends upon rigorous adherence to ethical standards” (p. 37)

Ethics is so essential that throughout the deposition and the trial, the prosecuting attorney, during cross-examination, continuously asked about my familiarity with the ethics of the field.

This makes sense. If the prosecutor’s job is to make me look inept or unprofessional, the first way to do it is to call into question my ethics. I had to continuously assert my familiarity and adherence to these principles.

Yet my field’s ethical standards do not spell out how to conduct oneself in such a case.

Or did they? I needed to constantly be mindful of our field's ethical principles and constantly examine my own actions, measuring them up to these standards. If there was no direct relationship between my responsibilities and the standards set forth by these ethics, I had to do my best to reconcile these discrepancies and act accordingly.

Ethics and the Professional

There are a number of ethical guidelines that focus on the preparation and competency of the professional. (Given space constraints, only a few will be examined.)

These are:

  • Art therapists do not engage in therapy practices or procedures that are beyond their scope of practice, experience, training, and education
  • Art therapists are bound to understand limitations/abilities
  • Art therapists assess, treat, or advise on problems only in those cases in which they are competent.

These remained prevalent throughout the trial. But–as explained in the post “Who the Hell Are You?” –the court, through a Daubert hearing, already scrutinized my competency and training. Of course, such a hearing will not prevent the prosecutor from calling into question my abilities. That was his job. Therefore, it is imperative that the art therapist only testifies on what he or she is able to, on what he or she is capable of.

For example, I am not a licensed art therapist. I have never been required to have a license, nor did my field have a stand-alone license in any of the states I ever lived in. I do, however, maintain the highest national credential. Thus, I cannot offer a diagnosis.

I was diligent with this…

...Umm...mostly.

Ok, I confess…I blew it.

Throughout the two-year process I indicated that the art possibly revealed schizophrenic-like symptoms with possible symptoms of a mood disorder.

It wasn’t until the trial where I blundered and offered during testimony that I believed the defendant had a schizoaffective disorder. The prosecutor leaped on this, and…well, you’ll just have to read chapters 5 and 6 in Art on Trial to see how I was extricated from this situation.

An art piece used to assess the defendant
An art piece used to assess the defendant

Ethics and the Art

There are, of course, standards that address the art and confidentiality and seem, on the surface, cut and dry. Two of these include:

  • Art therapists shall respect and protect confidential information obtained from clients including, but not limited to, all verbal and/or artistic expression occurring within a client-therapist relationship.

and

  • Art therapists shall obtain written informed consent from a client… before photographing the client’s art expressions, video taping, audio recording, or otherwise duplicating, or permitting third party observation of art therapy sessions.

One of the prime directives of our field is that we do our best to maintain confidentiality, including removing names on artwork. However, despite our best efforts, it is unlikely that this can be completely achieved--and perhaps it shouldn't be. As Agell pointed out:

"If we do our work well, artwork is as unique and individual as a fingerprint…if we’re not encouraging stereotyped artwork, the patient is recognizable and the art may reveal something about the patient…"(p.100). 

However, these standards do not necessarily guide nor pertain to this situation. The ethics standards are clear that we request a release form from, and maintain the confidentiality of, our client. In testifying in a trial, who is the client? In this case, it was not the defendant. I worked for the defense attorneys.

Additionally, the very act of testifying about a defendant and his art negates any claim towards confidentiality. Granted, the defendant would have to agree on this defense strategy with his or her attorneys, but once agreed, my job was to present the case. 

But what about the art? Could I present and later publish this art? This question is what separates us from other clinicians.

Nonetheless, his art was not done in therapy; I was not his art therapist.

Significantly, once the art was presented and entered into evidence, it became public–anyone could request copies of the transcripts and review all evidence, including the art. The trial itself was open to the public.

I was under no obligation to protect the client’s identity nor was I required to ask him to sign a release.

Granted, I did request, and receive from the defendant, a signed release form. That was more for my own moral consideration, to honor the defendant as a creating being. [This will be further explored in the next post on moral ramifications]. Note: I also received release forms from the defense attorneys, prosecuting attorney, the judge, and various other art therapists to allow me to use their interviews for the book.

Also, as indicated in a previous post, when I first received the contract from the attorneys for my services, it indicated I could not speak about the trial–ever. However, I requested permission from the attorneys and the court, to have a new agreement that allowed me to present and publish about the case once the case was completed. I was thus legally allowed to use this information for educational purposes.

The gist of this post was to stress that sometimes we have to work within, and around, the parameters given in order to provide the best use of our services.

To be sure, there is one standard that advises an art therapist who may offer testimony:

  • Art therapists, because of their potential to influence and alter the lives of others, exercise special care when making public their professional recommendations and opinions through testimony or other public statements

Is this enough? Perhaps, perhaps not. This covers those who testify for their own clients. However, unlike some other professional fields, our standards do not directly spell out our responsibilities when providing expert witness testimony.

But then, is this just a legal issue? Conceivably…

Of course, during this trial there were many internal, moral debates. The next post will present confessions of my own moral gymnastics.

References

Agell, G., Goodman, R., & Williams, K. (1995). The professional relationship: Ethics. American Journal of Art Therapy, 33 (4), 99-109 

Gussak, D. (2013). Art on Trial: Art Therapy in Capital Murder Cases. New York: Columbia University Press.

Tanay, E.  (2010). American legal injustice: Behind the scenes with an expert witness. Lanham, MD: Jason Aranson, Publishers.

[i] To be clear, I am not a forensic art therapist. I am an art therapist who has worked in forensic settings who happened to find himself an expert witness for a particular case.

David Gussak, PhD, ATR-BC, is professor and chairperson for the Florida State University Department of Art Education, and Clinical Coordinator of its Graduate Art Therapy Program.

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