In light of the controversial outcome of the Ethan Couch trial, would a trained family therapist have made a more effective expert witness than a psychologist?
With all its faults, one of the reasons that the American judicial system remains one of the fairest in the world is its treatment of culpability relative to a person’s capacity and ability to act responsibly. Criminal judges have traditionally depended on mental health professionals to determine “sanity,” or whether or not a person’s neurology or psychology at the moment of the commission of a crime equipped them to effectively choose between right and wrong. In more recent times, the impact of socio-cultural influences on individual behavior has also become a consideration in determining degree of guilt and the extent of criminal punishment. The role of the expert witness in assisting judges in considering how these factors may mitigate a person’s capacity to choose right from wrong has typically fallen to psychologists or psychiatrists and generally falls outside the scope of practice for MFTs.
With the recent verdict handed down by a Texas judge in the case of teenager Ethan Couch the immediate relational context of the boy’s behavior appears to have been the primary factor in determining the judge’s view of culpability and punishment. Rather than psychopathology, the defense claimed that a dysfunction of the family system was to blame for the boy’s criminal behavior. Couch’s lawyers labeled the dysfunction as “affluenza.”
Though a psychologist was employed as an expert witness to advise the court, some would argue that this sort of “diagnosis” falls within the scope of practice of someone trained in marriage and family therapy, not psychology. The controversial outcome of the recently concluded court proceeding would seem to support this argument.
According to news reports, 16-year-old Couch stole beer from a Wal-Mart and then drank until his blood alcohol was three times the state legal limit. He then sped down the highway in his Ford F-150 pickup until he slammed into a group of people changing a tire on the side of the road. Four were killed and two others seriously injured. Couch and his lawyers pleaded guilty to four counts of manslaughter by intoxication and two counts of assault by intoxication causing bodily injury. Texas sentencing guidelines for crimes of this nature call for fines of up to $10,000 and between 2 and 20 years in the state penitentiary.
Though the prosecution argued for the maximum penalty, the judge gave the teenager ten years probation and remanded him to an inpatient alcohol rehab facility for treatment instead of sending him to prison. The unusually lenient sentence handed down by the judge seemed the direct result of the “affluenza” defense.
Aided by the expert testimony of a psychologist, Ethan Couch’s lawyers asserted that a pattern of permissiveness in the teenager’s relationship with his parents had left the boy incapable of acting responsibly. The defense described the disorder as peculiar to the offspring of affluent families, resulting when parents chronically indulge their children with material possessions while failing to provide them with consequences for inappropriate behavior.
Family therapists would note that the disorder “diagnosed” by the consulting psychologist shifts the source of pathology from the psyche of the child to the child’s family system. In clinical terms, the presenting problem was defined as a failure of the “parental subsystem” to provide appropriate behavioral boundaries for the sibling subsystem, a frame quite familiar to structural family therapists and one that suggests a particular path of intervention designed to restore functionality to the family.
However, after convincing the judge that the problem was related to a family systems “failure,” the rehabilitative intervention recommended by Dr. Scott Brown, the expert witness in the case, leaves even novice family therapists scratching their heads. Dr. Brown recommended that the child be removed from his home and placed in residential treatment, explaining to reporters that it was best for the boy to be taken away from his family so that he can be taught to be a responsible citizen. After diagnosing the problem as systemic, this rather confusing rationale offered by Dr. Brown seems to reveal a complete lack of understanding of how to intervene systemically.
This leads one to wonder if Dr. Brown as a psychologist has any significant training or expertise in recognizing and managing problems from a family systems perspective. If not, one is then led to wonder why a psychologist—not a family therapist—was accepted by the court as an expert witness in a case in which the emotional healing and recovery of so many—not to mention the public’s perception of mental health professionals in general—depended on a thoroughly informed verdict and sentencing.
The outcome of the Ethan Couch proceeding points to a chronic problem in the way that we as mental health professionals allow ourselves to be co-opted by the judicial system. Ethically, mental health professionals must act within their scope of practice, or within the boundaries provided by their training, experience, and expertise. Practitioners and consumers now live in a world, however, in which practice boundaries for mental health professionals are determined politically and legislatively, not professionally. The codification of practice standards into law has created jurisdictional scopes of practice that often do not correspond to the mental health provider’s actual level of expertise. The jurisdictional scope of practice—a product of politics rather than ethical consideration— may unnecessarily restrict a mental health professional’s ability to practice or give permission for the mental health provider to operate outside of the scope of his or her professional training.
Either way, the consumer looses. When mental health providers are restricted from offering the full extent of their acquired expertise to consumers, the public is denied optimum access to the mental health marketplace. On the other hand, when a jurisdictional license sanctions uninformed and unskilled mental health practice, mental health practitioners are tempted for the sake of profit to practice outside the limits of their professional ability. As in the Ethan Couch case, the consumers of their services—and society—run the risk of harm.
In the long run, the answer to this problem seems to lie with our national and state professional organizations. They must work together as collaborators rather than competitors with the goal of fashioning jurisdictional scopes of practice for every mental health profession that are genuine representations of the actual professional abilities of each. In the meantime, we as mental health providers must take our ethical responsibility seriously to know the limits of our vocation and training and to operate within those boundaries. Only then can we serve with integrity the consumers of our services and enhance our collective professional image in the public’s eye.