THE CLINICIAN AS WITNESS*

• Date: 01 June 1984
• DOI: http://doi.org/10.1111/j.174-1617.1984.tb01004.x
• Published date: 01 June 1984
• Author: Donald S. Moir

THE

CLINICIAN AS

WITNESS*

Donald

S.

Moir'

The theme of this 21st Annual Confer-

ence of the Association of Family and Con-

c

i

I

i

a

t

i

o

n Co

u

rts

-

"

B

rea ki

n

g

B

a

r r

i

e rs"

-

is

apposite. Barriers to understanding must be

removed if we are to bring to bear on family

problems the learning, experience and in-

sights of many disciplines. The Association

is unique among professional associations

in

seeking to recognize

and

to apply

the

in-

sights that each of us has to contribute.

1.

The Dilemma

My contribution to the discussion of the

clinician* as witness is that of

a

lawyer from

the perspective of the

law,

its values and in-

sights and its implicit assumptions as to the

human condition.

The law's perspective is not,

1

suggest, a

narrow one.

It

has evolved from centuries of

experience of human affairs. The common

law's insights are gained from numberless

case histories.

It

is constantly evolving.

It

is

not the product of an "aging intelligence."

The law is concerned to resist unwar-

ranted intrusion on

an

individual and to be

fair and cautious in the determination of the

circumstances in which an intrusion is war-

ranted. The law's pessimistic assumption is

that in the absence of restraints there

will

be

unwarranted intrusion and an unfair deter-

mination of what is warranted. History and

experience may justify the law's pessimism;

but its pessimism is often at odds

with

the

liberalism of the clinician.

"Donald

S.

Moir,

J.D.,

presented this paper

at

the 21st

Annual Conference of the Association

of

Family and

Conciliation Courts, held in Toronto, Canada, May

1983.

Vice-president, AFCC.

I

am indebted to my son, D.L.

Moir, for his research assistance.

*The term "clinician" is used in

a

broad sense to in-

clude

all

those whose background is in the behavioral

sciences-social worker, psychologist, psychiatrist,

family therapist, and

so

on.

The clinician's concern is therapy. Clini-

cians may see the law's caution as

a

barrier to

their therapy.3

The dilemma to be resolved is the pre-

servation of the safeguards of the law

in

the

resolution of family problems while

at

the

same time making available to their resolu-

tion the knowledge of the clinician.

The rules

of

evidence are among the

safeguards of the law-rules which can be

a

barrier to the clinician.

This article outlines two of the exclusio-

nary rules of evidence most applicable to the

clinician and the evidence of

the

clinician as

expert. They suggest that the restrictions of

the law of evidence are

in

the interest of re-

liability; that reliability is the clinician's equal

concern;

and,

therefore, that the law and the

clinician have ground in common.

I

endeavour to outline the applicable

rules. The practice does not always follow

the rules.4

It

may be questioned that troubled

families are thereby well ~erved.~

II.

Exclusionary Rules

of

Evidence

The rules of evidence have developed as

a

practical way of eliciting the truth6 without

causing prejudice to the parties and to pro-

tect the parties against the caprice of an indi-

vidual judge.'

The

law

in its pessimism, assumes that

if

people can

go

wrong, they

will

go wrong.

It

3lt

is assumed that all alternative methods of dispute

resolution have been exhausted and

that

the clinician

is appearing as witness in and adviseor to the Court.

4R.

v. Turner (1974),

60

Crim. App.

R.

80

R.

v. Abbey (1982),

43

N.R.

30

@

48 (S.C.C.)

5The authorities referred to are principally Canadian

and English. The law in the United States would appear

to be similar. Much of the common law remains "com-

mon."

6Elkin points out that "feelings are also facts." Meyer

Elkin, M.S.W.,The Missing Links in Divorce Law

(1982)

6

Journal

of

Divorce.

Wutherford

v.

Richardson,

(1923) A.C. 1

@

5,

per

Vis-

count Birkenhead.

27

CONCILIATION

COURTS

REVIEW/VOLUME

22,

NUMBER

1/JUNE

1984