Family law is an area of professional practice with high levels of complaints, not only for lawyers, but also for judges and psychologists. This reflects not a lack of professional competence, but rather the fact that this is an emotionally intense area, with unsuccessful litigants who may be more inclined to unjustifiably "blame" various professionals for outcomes than accept responsibility for their own situations.

Professional bodies for lawyers and judges screen out many complaints that are frivolous or vexatious. Law societies, for example, are especially cautious in dealing with complaints by family litigants against the lawyers for their former spouses, recognizing that most such complaints are unfounded, or raise issues that could be the subject of an appeal rather than a professional discipline complaint.

However, mental health professionals who perform assessments for family proceedings may be subjected to complaints to their professional bodies without any screening. While unwarranted proceedings are eventually dismissed, unfounded complaints to regulatory bodies are a significant factor in driving mental health professionals away from acting as assessors, increasing the delay and expense involved in obtaining assessments.

Clinicians and family justice

Court-appointed mental health professionals often play a critical role in the resolution of child-related disputes, preparing reports and making recommendations about parenting plans that best meet the needs of children. Assessors play a very significant role in both disputes between parents and for child protection cases. Their recommendations frequently lead to settlement, and if the case goes to trial, the judge is likely to find the report influential.

There is a bar against civil suits against mental health professionals for alleged negligence in forming an opinion that results in testimony provided in a family proceeding, based on the principle of witness immunity, even if the expert was retained solely by the party seeking to sue (Boychyn v. Abbey, [2001] O.J. 4503.) However, regulatory bodies for mental health professionals, notably Ontario’s College of Psychologists, have an aggressive approach to complaints. Every complaint is taken through the investigative process, without any screening for clearly unfounded cases, and without cost to a complainant.

Given the vulnerability of many clients of mental health professionals, a protective approach is often appropriate. Parents referred for assessments, however, are very different from regular clients of mental health professionals. There is no therapeutic relationship or expectation of confidentiality. The primary duty of the assessor is to the court, and not the parent. An assessor’s findings, expertise and recommendations may be scrutinized through cross-examination and challenged by the presentation of critique testimony from other experts.

While having a full opportunity to challenge an assessor in family court, some disgruntled parents prefer to exploit the health discipline complaint process to harass an assessor. A complaint may be made even before a trial, as a tactic for attempting to discredit or exclude an assessor (see, for example, MacIntosh v. MacIntosh, [2007] O.J. 5695.)

In many cases, these complaints are filed by self-represented parents. The complaint may be part of a litigation "strategy" or reflective of a parent’s personality disorder, perhaps one that has been so identified in the assessment.

Any complaint can have serious consequences, including loss of reputation, a tarnished record and personal humiliation, even if the professional is ultimately vindicated. Faced with a complaint, many assessors retain counsel, often at their own expense. A growing number of mental health professionals are refusing to act as assessors after being subjected to the unjustified and expensive process of dealing with vexatious complaints. The family justice system has a shrinking pool of qualified professionals to do this important work.

Reforms

There are a number of different strategies that could address this problem. In Colorado, there is a statutory bar against complaints concerning mental health professionals for conduct related to family court ordered assessments, mirroring the civil suit immunity. Such an approach is problematic, however, as there may be cases where assessors fail to meet professional standards. For example, a report may be unfinished after a lengthy period, or a clinician may have inappropriately assumed the dual role of therapist and assessor.

In Arizona, the family court has a gate-keeping function; legislation specifies that a complaint based on concerns about a court-ordered assessment may only be made if the family court receiving the report finds a "substantial basis" to refer the matter to a regulatory body. A family court judge who understands the complexity of the family dynamics and is familiar with the assessment process can effectively screen out unwarranted complaints by disgruntled parents. This approach strikes a good balance, recognizing the family court already provides significant scrutiny and oversight of assessors, including determining who may do this work, and carefully considering its value. Family court judges are well placed to recognize assessors who may be failing to meet minimum professional standards.

While the focus here has been on unfounded complaints about mental health professionals acting as assessors, there are equal or greater concerns when these professionals act as arbitrators in family cases. Their decisions, like those of other arbitrators, should be subject to judicial scrutiny, but when psychologists are playing this quasi-judicial role, complaints to their professional body are generally inappropriate.

Absent a complaint by both parties that an assessor was unprofessional or incompetent, or a complaint endorsed by a family court judge, the regulatory colleges should not be involved in complaints brought by family law litigants. The family court can appreciate the context in which these complaints arise, and assess their impact on the administration of family justice.

Nicholas Bala is a family law professor at Queen’s University. He is member of an ad hoc committee seeking to reform the laws governing complaints against mental health professionals who perform assessments in the family court process, but the views expressed here are his own. The committee’s report can be obtained at: custodyassessorreform@sgmlaw.com

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Commentary by the Ottawa Mens Centre

Nicholas Bala, suggests that two groups have immunity and impunity, that is,  "mental health experts" and "assessors" which is who he is really looking to protect.

Assessors are generally, hired guns, assassins for hire to the highest bidder. Many are only too willing to make very expensive assessments with one predetermined out come in the fashion of  a professional assassin. The appear to be generally,  biased against men, they include "mediators" who somehow think and allude that they have, or should have "judicial like powers"  to tell judges what the evidence is which often is exactly opposite the evidence.

Some assessors run riot, they will declare a mentally ill violent woman to be a victim and that her ongoing depression is a result of abuse from the father who should be totally alienated from the father because its all his fault.

That's the general sort of hogwash that generates prolific complaints. In the same basket are complaints against lawyers and judges, again, both groups are prolific fabricators of evidence, extremely biased against men, and the virtual absence of a any complaint system or authority encourages flagrant abuses of the worst form.

What Bala really wants is for even more Sharia law, More Gender Apartheid and more authority for the greatest abusers, the worst child abusers to do their dirty deeds.

The name Nicholas Bala is probably one of the most reviled names in Canadian Family Law. that attracts a blistering almost without exception, negative comments in the commentaries of the major newspapers.

www.OttawaMensCentre.com