Victims of Crime Research Digest No. 9

Vulnerable Clients and the Importance of Collaborative Treatment Planning

By James K. Hill, PhD.

Dr. James Hill is a clinical psychologist and an adjunct professor at the University of Victoria. He has been registered in British Columbia for over 15 years but has worked with vulnerable clients for his entire career. He currently works in healthcare with clients facing challenges related to developmental delay and mental health. He also has a private consulting practice.

Children and vulnerable adults who have been criminally victimized, or who witness victimization, can face various challenges. Those who are resilient or who have strong supports are often able to incorporate the experience into their lives and move forward. These witnessesFootnote 14 are usually able to testify in court and feel no more anxious than any other person who takes the stand. Yet experiencing or witnessing a crime is typically traumatizing to some degree and often evokes feelings of helplessness, hopelessness or other negative reactions. Criminal-justice procedures, which can last months or even years, can inspire similar feelings (Hayes and Bunting 2013). Furthermore, seeking support or help to manage this stress may jeopardize the integrity of subsequent testimony. Much of the literature and guidelines ignore the witness’ role in making decisions about therapy and testimony, potentially compounding feelings of powerlessness and evoking other negative feelings.

By requesting and receiving support, vulnerable witnesses can regain a sense of control over their lives. While therapy can directly benefit a vulnerable witness, working with a therapist to select and direct the course of therapy can also help witnesses develop confidence, which can be inherently healing. For this reason, witnesses should be a full partner in the therapeutic relationship, actively participate in decisions about therapy and be informed about the potential impacts that therapy can have on their future testimony. Once witnesses understand the risks, they can make better decisions about how to reduce their suffering and face the stress of court appearances.

In making decisions about testifying and entering therapy, child witnesses deserve extra care. As noted in the preamble to the United Nations’ model law regarding child victims and witnesses: “Considering also that every child victim or witness of crime has the right to have his or her best interests given primary consideration, while safeguarding the rights of accused persons and convicted offenders” (United Nations Office on Drugs and Crime 2009, p. 3). Therapeutic processes that fail to consider pending court cases can jeopardize both the impact and credibility of witness testimony. Given that a common goal of trauma-focused therapy is to face and emotionally process the traumatic event, it is no surprise that therapy often affects the future witness’ memory.

The accessibility of services for vulnerable witnesses can also be a challenge, especially in parts of Canada where resources are scarce or nonexistent, or where witnesses may experience greater social pressures due to the community’s small population (Hurley 2013). Guidelines developed in the United Kingdom prioritize the clinical needs of child, vulnerable, and intimidated witnesses over any need to provide testimony in court (Crown Prosecution Service and Department of Health, with the Home Office 2001a; Crown Prosecution Service and Department of Health, with the Home Office 2001b; Crown Prosecution Service, Department of Education, Department of Health and Welsh Assembly Government 2011). These guidelines encourage witnesses to consider the potential risks and benefits of both therapy and court testimony. This paper focuses on engaging vulnerable witnesses, along with their friends and families, in discussions about the risks associated with entering treatment before giving testimony in court.

Risk 1: Confidentiality

In traditional therapy, therapists focus on the risks and benefits of treatment. Risks might include changes in interpersonal relationships and the discovery of new problems, while the benefits might include the lessening of symptoms or development of new resources. For child and vulnerable witnesses, an additional potential risk is that what occurs during therapy will be introduced as evidence during a criminal case and become part of the public record. Although this risk exists for all clients receiving therapeutic services, it is a much greater risk for clients who testify in court and vulnerable witnesses should be advised of this possibility. Therapists are generally reluctant to breach patient confidentiality, but they are obligated to maintain accurate and complete records. In fact, therapists are advised to keep even more detailed notes about discussions of alleged crimes precisely because these are much more likely to be subpoenaed (Branaman and Gottlieb 2013). Defence attorneys will often search these notes for evidence to support accusations of undue influence. As a result, clients may want to avoid discussing events or issues they wish to remain confidential. Clients should be made aware of this risk.

A full and open discussion about the goals and course of therapy will help clients decide whether to wait until after the trial to discuss certain traumatic events or other personal information. In the meantime, therapy can focus on issues such as skills development or self-care. To avoid overwhelming clients with decisions about the goals and course of therapy, therapists must consider each client’s strengths and vulnerabilities in collaborative treatment planning (Miller, Drotar and Kodish 2004). The important issue is that the client be a fully collaborative partner in directing care, regardless of age, and that therapists engage the client in a transparent manner when securing informed consent or assent.

Some clients may decide to avoid therapy because of the potential impact on their future testimony. Respecting this choice is a defining characteristic of informed consent. Therapists should recognize that symptoms of trauma are often hidden. Child and adolescent victims often show signs of self-harm, suicide ideation, and problems with mental and emotional health (post-traumatic stress disorder, anxiety, depression, intrusive memories, nightmares, reliving a traumatic event, distress when faced with reminders, avoiding reminders, less interest in activities, concentration difficulties, hypervigilance, and exaggerated startle response, etc.), problematic social behaviour (e.g. aggression, non-compliance, conduct disorder, criminal activity, sexualized behaviours), and lower levels of intellectual functioning and academic achievement (Crown Prosecution Service, Department of Education, Department of Health and Welsh Assembly Government 2011; Salmon and Bryant 2002). Thus, it may be important to interview people who know the client well, such as family members and friends, even if the client refuses treatment. One must not underestimate the stigma associated with mental-health issues (Wang et al. 2005) and therapists will want to ensure that appropriate supports are in place, even if therapy is not an option.

Risk 2: Testimony Credibility

To make a fully informed choice, the client must understand that therapy could diminish the credibility and impact of their future testimony (Branaman and Gottlieb 2013). Decisions about whether to undergo trauma-focused therapy before trial must consider the concept of consent and assent: children have the capacity to make some decisions—such as which clothes to wear—but not others—whether to have surgery (Miller et al. 2004). Assessing a client’s capacity to consent is a complex issue. Assessment guidelines vary across Canada; therapists must abide by the applicable guidelines. Regardless, vulnerable witnesses have goals related to their testimony (Hayes and Bunting 2013) and these goals must be respected and considered as part of the decision to enter therapy. Therapists must fully discuss such issues with vulnerable witnesses to ensure they can make autonomous decisions (Miller et al. 2004).

Although courts want clear, accurate testimony from all witnesses, traumatized children often have developmental issues that diminish the credibility of their testimony. Testimony may be affected by memory, communication skills, social orientation, suggestibility, cognitive development, peer influence and puberty (Lamb, Malloy and La Rooy 2011; Lamb and Sim 2013). These issues can affect assessments of credibility even before the involvement of a therapist. Suggestibility is a key concern; children and vulnerable witnesses should have opportunities to discuss how suggestibility might affect their memories and the credibility of their testimony. The impact of suggestion varies from one child to another (Goodman and Melinder 2007; Karpinski and Scullin 2009; Lehman et al. 2010; Melinder et al. 2010; Roberts and Powell 2006; Scullin and Bonner 2006). As children age, they develop an understanding that there are often multiple perspectives on any given situation and that some of these perspectives can be wrong (Scullin and Bonner 2006). Children who believe their perspective might be wrong can be more suggestible (Goodman and Melinder 2007; Principe and Schindewolf 2012); those who believe another perspective is wrong may be less suggestible (Finnilä, Mahlberg, Santtila, Sandnabba, and Niemi 2003).

Furthermore, therapists should recognize that younger children are particularly suggestible. When younger children hear rumours or conversations, some come to believe that they witnessed the actual event (poor source monitoring; Principe, Kanaya, Ceci, and Singh 2006; Principe and Schindewolf 2012) and are more likely to assume that others are telling them the truth (Jaswal and Perez-Edgar 2014). This means that therapists should carefully plan how they discuss issues with child witnesses and ensure they use developmentally appropriate language. Therapists must also be cautious about their reactions when a client raises issues that might impact future testimony. For this reason, it is crucial that therapists be competent in working not only with children, but also within the criminal justice system (Benbelaïd-Cazenave 2012; Branaman and Gottlieb 2013; Greenberg and Shuman 2007; Heilbrun, DeMatteo, Marczyk, and Goldstein 2008).

Meeting client needs while mitigating risk

Children are particularly vulnerable to the negative impacts of criminal victimization because they are developing cognitively and may not have acquired the necessary coping resources (Salmon and Bryant 2002). The associated problems can last into adulthood (Katerndahl, Burge, and Kellogg 2005). Thus, the default approach should be to provide support to the child. An examination of victimization data helps promote understanding of the issues related to child witnesses in Canada. Ogrodnik (2010) analyzed Canadian police-reported crime statistics for 2008 and found a rate of 1,111 per 100,000 violent offences involved child victims. Boys and older children were much more likely than girls or younger children to be victimized; the highest incidence was among boys aged 15 to 17 years. Regardless of age or gender, however, support should be provided to all vulnerable witnesses, and the witnesses’ self-assessment of their own trauma should be a major factor in determinations of vulnerability and needs, as courts generally do a poor job of assessing vulnerability (Hurley 2013; Jones and Elliott 2005; O’Mahony, Smith, and Milne 2011). At the same time, support for the vulnerable witness must be reconciled with protecting the credibility of future testimony.

Reliance on the initial interview in court

A potential solution is to delay therapy until after the first interview has been videotaped. Evidence indicates that children provide the best accounts during initial interviews, when memories are freshest (McWilliams, Narr, Goodman, Ruiz, and Mendoza 2013) and when interviewers use standardized protocols (Cyr and Lamb 2009). This is why initial interviews are so important for investigations and criminal prosecutions. Yet, there are often problems during these first interviews. Witnesses may say what they think the interviewer wants to hear, for instance; they might invent experiences to fill memory gaps; feelings of guilt, helplessness or hopelessness might unduly influence their accounts; and some may deliberately provide false stories (Crown Prosecution Service, Department of Education, Department of Health and Welsh Assembly Government 2011). Furthermore, poor interviewing techniques and high-pressure interviews may create inaccuracies (Clemente and Padilla-Racero 2015; Cyr and Lamb 2009; Finnilä et al. 2003; Goodman and Melinder 2007; Melinder et al. 2010; Scullin and Bonner 2006).

Support for managing the court appearance and for prosecuting the alleged offence

The criminal justice process is complex and can cause additional stress for victims (Hayes and Bunting 2013; Quas and Goodman 2012). Courtroom orientation and testimonial aids such as screens, closed-circuit television, etc. can help reduce witness stress, although these interventions are unlikely to reduce problems associated with the alleged crimes (Hobbs et al. 2014). Just as it is important to engage vulnerable witnesses in decisions about their care, it is also important to appreciate their preferences when it comes to the use of testimonial aids (Hall 2007; Hayes and Bunting 2013).

Providing support to parents

Non-offending parents and guardians can be a major support to children; children often look to parents to help make sense of the world (Goodman and Melinder 2007). Some research shows that enhancing parental support of children who have experienced sexual abuse increases the effectiveness of therapy (Cohen and Mannarino 2000). Parents often monitor their children and make treatment decisions on their behalf. In fact, researchers have found that parents’ lack of knowledge about mental health can lead to delays in the diagnosis and treatment of disorders, particularly those that occur in younger children (Wang et al. 2005). Parental support could include education about mental disorders and associated symptoms (Thornicroft 2011). Although there is a risk that parents might influence a child’s memory, the risk is no greater than that posed by the support of friends or other family members. It is important to recognize that courts have considerable experience with considering the testimony of witnesses of all ages whose recollections have been influenced by various factors.

Delaying treatment

An option worth considering is to delay treatment until after testimony. This option, however, requires a comprehensive assessment of the witness’ distress and must ensure that criminal-justice concerns outweigh the needs of the vulnerable client (Branaman and Gottlieb 2013; Cohen et al. 2010; Kuehnle and Connell 2011). Although some argue that no empirical studies have examined the effects of delaying treatment for child witnesses (Branaman and Gottlieb 2013), others suggest that early intervention is warranted when child witnesses also face pre-treatment issues such as mental-health problems, poor performance at school, teenage pregnancy, risky sexual behaviour, unstable employment, and marital violence and instability (Swiecicki and Hollingsworth 2015; Salmon and Bryant 2002; Wang et al. 2005). Kelly et al. (2002) investigated the impact of psychiatric-capacity reviews and the associated treatment delays at two Ontario hospitals. The research highlighted the issue of prolonged suffering and the potential for increased self-destructive behaviour and use of less-effective self-management techniques, along with poorer long-term prognosis, challenges in building a therapeutic alliance, negative impacts of the client’s symptoms on friends and family members, inefficient use of therapeutic resources and not supporting the client’s capacity to enjoy a normal life. Treatment delays have strong moral and ethical considerations, particularly when the vulnerable witness has already been traumatized by the alleged crime and may experience some of the problems listed above. All of these factors should be considered in treatment decisions.

Cohen et al. (2010) provides the best advice for professionals trying to understand the optimal treatment options for a particular client: continually assess the client to determine whether an intervention is well-timed. To determine whether a delay in treatment is appropriate absolutely requires an assessment of the specific resources available to the client. From both a court and clinical perspective, it may be most beneficial to conduct initial and ongoing assessments to identify treatment needs and goals (Kuehnle and Connell 2011).

Support focused on enhancing resilience and not on strengthening the Crown’s case

Some have argued that trauma-specific therapy should be delayed until after a court case and that children in distress may benefit more by resilience-building therapy (Kuehnle and Connell 2011). Therapy might focus on stress management, communication problems, school problems, behavioural issues, family issues, emotional-regulation skills, and so forth (depending on client needs). By building skills rather than focusing on the traumatic event, the client can better manage both their day-to-day lives and their court testimony.

Abuse-specific therapy

In situations where the client clearly needs therapeutic support, then it should be provided. Providing such support accepts the fact that testimony may be called into question, but that the vulnerable witness’ needs outstrip any requirement to provide testimony. This option recognizes that witnesses need help and society has an obligation to provide it. It is then left to the criminal justice process to sort out how to manage and consider testimony. The important consideration is to ensure that the vulnerable witness plays as active a role as possible in decision making.


Therapists are not investigators and many therapists have little understanding of criminal justice processes and rules of evidence (Branaman and Gottlieb 2013). This discussion focused on some of the issues therapists should raise with clients who may appear as witnesses regarding the risks and benefits of treatment. Clients should be encouraged to consider various options to reduce risk, such as relying on videotaped interviews, using testimonial aids in court, building their resilience, and delaying therapy focused on the alleged crime. Clients who decide to accept the risk of trauma-focused therapy should be supported in their decision. The key point is to ensure that the witness does not get lost in the machinations of the system and end up feeling powerless. Focusing on the person as an active, collaborative participant in discussions about care can help start the healing process. Empowerment can only be attained through actively and successfully taking charge. Therapists and other professionals can support and facilitate the process, but clients must take steps to meet their needs and goals.

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