Ethics in Forensic Practice

Transcription

Course Materials for
Ethics in Forensic Practice
Gerald P. Koocher, Ph.D., ABPP
Sarasota, FL – September 24, 2009
Contents:
1.
2.
3.
4.
PowerPoint Notes File
Casebook
In re: Squabbles
Supplemental material
a. Draft Specialty Guidelines for Forensic Psychology
b. HIPAA and Forensic Practice
c. Mock Trial Materials
Instructions:
Please read the Casebook and In re: Squabbles before the course. As you read the
Casebook consider which cases you would most like to have discussed. As you
read In re: Squabbles try to identify as many ethical problems or issues as you can.
The supplemental materials are intended for your potential interest, but need not
be reviewed in advance.
If you have special issues or cases you would like to have addressed in the
workshop, please send an e-mail message the instructor directly:
[email protected]
9/8/2009
Ethics in Forensic
Practice
Eschewing the
Ultracrepidarian Expert
Gerald P. Koocher, PhD, ABPP
Simmons College
www.ethicsresaerch.com
Ultracrepidarian “Experts”
Sadly, not an oxymoron…
| Giving
opinions on something
beyond one’s knowledge.
| The
Th great part off being
b i
ultracrepidarian is the blindness
to one’s own limitations
accompanying that trait!
Cluelessness Documented!
|
People tend to hold overly favorable views of their
abilities in many social and intellectual domains. This
overestimation occurs, in part, because people
unskilled in such domains suffer a dual burden: Not
only do they reach erroneous conclusions and make
unfortunate choices
choices, but their incompetence robs
them of the ability to realize it. Paradoxically,
improving their skills, thus helping them recognize the
limitations of their abilities causes loss of self-esteem.
z
Kruger, J. & Dunning, D. (1999). Unskilled and Unaware of It
How Difficulties in Recognizing One's Own Incompetence Lead to
Inflated Self-Assessments. Journal of Personality and Social
Psychology, 77, 1121-1134.
© Gerald P. Koocher, 2009,
all rights reserved
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The Integrity Challenge
"Lead us not into temptation, but deliver us from evil"
(Matthew 6:13, KJV)
|
Maintaining personal, professional, and
scientific integrity…
z
z
When your ethical code differs from
those you
o m
must
st work
ork with.
ith
Seduction and temptation abound…
•
•
•
•
To become caught up in the “expert” role.
To feel too much like an ally.
To stray from the rigorous path.
To forget about what you really do not know.
Topical seminar plan
|
|
Current Liability Claim Trends
Competence in forensic practice
z
z
z
Basic Skills
Role(s) of the expert
Who is the client
Confidentiality and Record Keeping
| Assessment issues
| Other interesting cases
|
Current Professional
Liability Claim
Trends
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APAIT Settled Claims Statistics
by Category for 2005/2006
|
Allegations made on settled claims:
9 suicides (wrongful death torts)
5 non-sexual boundary violations or
multiple
lti l role
l complaints
l i t
z 5 sexual abuse
z 4 alleged credit/billing improprieties
z 1 patient committed homicide (wrongful
death torts)
z
z
APAIT Claims Statistics by
Category for 2005/2006
|
|
407 Files created (221 opened, 186 closed)
251 Board Investigations
z
z
z
148 opened – 103 closed
A total of $563,400 paid to defend, with average claim of $2,244
Largest claims paid
• PA: $43,369
• MA: $25,000
• NV: $23,455
|
156 Civil Cases (incidents, claims, law suits)
z
z
z
z
73 open – 83 closed
Damages paid = $0
Paid to defend $746,740
Open reserves $1,852,825
Severe Claims filed in 2008
|
453 complaints (59% board complaints).
1.
2.
3.
4.
5.
6.
Suicide: 17 (wrongful death torts)
Sexual abuse: 12
Employment practices: 5
Non sexual boundary violations/multiple
relationships: 4
Billing Impropriety: 2
Homicide by patient: 1 (wrongful death torts)
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Common Trends:
Boundaries & Competence
Sex
Suicide
| Child Custody
y
|
|
z
z
|
|
Release of records
Role confusion and
potential conflicts of
interest
Confidentiality
Record Keeping
Risky Career
Periods
When/where/how Does One
Prepare for Forensic Practice and
Expert Testimony?
Risky Career Periods
|
Psychologists who make technical errors or engage
in inappropriate role blending often do so as the
result of relative inexperienced.
z
z
z
Many have come from graduate programs where students
developed complex role blended relationships with their
educators and supervisors.
Similarly, the internship or residency period often involves
role blending, including social, evaluative, and
business-related activities .
Some new therapists may have had insufficient opportunity
to observe professionals with appropriate boundaries in
place or experienced appalling supervisory models,
involving sexual advances and other improper behavior as
students.
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Risky Career Periods
|
The mid-career period can prove risky for those
practitioners whose profession or life in general has not
panned out according to their own expectations.
z
|
Divorce or other family-based stresses involving their teenage or young adult
children,
hild
onsett off a chronic
h i ill
illness, and
d apprehension
h
i about
b t aging
i illustrate
ill t t midid
career difficulties that can impair professional judgment. The majority of
psychotherapists who engage in sexual relationships with their clients are
middle-aged.
Another elevated risk period can occur at the far end of
the career cycle.
z
Sometimes older therapists have, perhaps without full awareness, come to see
themselves as having evolved beyond questioning or having earned some sort of
“senior pass” bequeathing the freedom to do whatever they please.
Some
aspects of
human
nature
remain
constant.
Feet of Clay in Forensic
Practice (part 1)
|
|
Two Iowa sex offenders locked up for a possible
lifetime of mental-health treatment will get new
trials because the chief witness against them
has admitted an addiction to child pornography
pornography.
Dr. Joseph Belanger, a North Dakota
psychologist, has not been criminally charged,
but he was forced to leave his hospital job after
he notified bosses that federal authorities had
seized his home computer.
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9/8/2009
Belanger, in a Nov. 27 letter to a
North Dakota licensing board,
blamed childhood sexual abuse and
the fact that he has "been so
frightened of the world and of
women that I mostly used
pornography as an outlet.
| http://www.desmoinesregister.com/a
pps/pbcs.dll/article?AID=/20080720/
NEWS05/807200337/1/BUSINESS04
|
Feet of Clay (part 2)
|
Prominent Seattle psychologist who often
served as an expert witness in sexual-abuse
and child-custody cases arrested and commits
suicide…
suicide
|
On July 25, 2007, employees at a local hotel
found Stuart Greenberg's body with a note
reading, "medical personnel, do not resuscitate.
Let me die."
|
Greenberg, 59, was well-known as an expert witness in
sexual-abuse cases, was frequently appointed as a
parenting evaluator in child-custody cases.
|
He was arrested on July 3rd then suspended from
practice earlier in the month after allegations surfaced
that he had secretly videotaped a woman in his office
bathroom.
|
An acquaintance had found the videotape in the
psychologist's
h l i t' VCR and
d alerted
l t d th
the person who
h
appeared on the tape, police said.
|
While in jail, Greenberg had been placed on suicide
watch, according to the Renton police report. He was
conditionally released two days after his arrest.
|
http://seattletimes.nwsource.com/html/localnews/2003808201
_greenberg27m.html
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Forensic Practice as a
Paradigm for Risky
Clients & Situations
High Risk Clients
z
Patients who organize their internal object
world into hated and adored objects
z Borderline Personality Disorder
z Narcissistic Personality Disorder
z Dissociative Identity Disorder (MPD)
z PTSD (complex)
z Patients who were abused as children
or are in abusive relationships
Higher Risk Patients
|
Potentially suicidal patients
z
Conduct frequent risk assessment utilizing
current, evidence based methods
essential
Potentially violent patients
| Any forensic assessment
| Patients involved in unrelated lawsuits
| Patients with recovered (or seeking to
recover) memories of abuse
|
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Forensic Traps for the Typical
(Non-Forensic) Clinician
Just trying to help a friend, client, etc.
The “vacation time referral”
| Anticipating
p
g litigation
g
|
|
z
|
(I didn’t see that coming!)
To whom do I owe what duties
z
z
Collaterals
Clients for limited purpose
Competence in
Forensic Practice
Dealing with the
Legal System
What competencies should
one reasonably expect of
forensic practitioners?
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Fundamental content domains
in forensic psychology
Culture
Terminology
| Case law
| Evidence
based
practice in
forensics
|
|
Competence Issues Noted in the
Specialty Guidelines for Forensic Psychology
Acquisition of skills
Representation of competencies
| Knowledge
g of the legal
g system
y
and rights
g
of individuals
| Scientific foundations
| Appreciation of Individual differences
| Appropriate use of services and products
|
|
The Culture Gap
Between Psychologists and Lawyers
|
Psychologists train as
behavioral scientists.
|
Lawyers train as
advocates.
|
We believe that an
individual applying
rigorous experimental
methods can discover
significant truths
within ranges of
statistical certainty.
|
Lawyers believe that
the search for truth
depends on a vigorous
adversarial crossexamination of the
facts.
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The Culture Gap
|
|
Behavioral scientists
seldom give simple
dichotomous answers
to questions.
We prefer to use
probabilities, ranges,
norms, and continua
that reflect the
complexity of human
differences.
|
Lawyers learn to “try”
or weigh facts.
|
Lawyers expect clear,
precise, unambiguous
decisions, They seek
to establish bright
lines and clear
dichotomies.
The Culture Gap
|
|
|
We strive to empathize with | Attorneys believe
that they can (and
our clients and show them
must) at times
unconditional positive
defend people they
regard.
detest.
Little progress will occur in
our workk with
ith clients,
li t if we
| Attorneys may
do not like/respect each
choose not to ask
other.
their clients certain
We constantly collect data
questions (e.g., “Did
and try to ask all the
you do it?”) in order
to defend them
important and sensitive
vigorously.
questions.
How much justice do you want?
Levels of Proof in the Legal System
Preponderance of
Evidence (51%)
Clear and Convincing
Evidence (75%)
Beyond a Reasonable
Doubt (95%)
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Who the hell is Daubert!
|
Daubert v. Merrell
Dow Pharmaceuticals
Pharmaceuticals,
Inc. 509 U.S. 579, 113
S. Ct. 2786 (1993).
Evidentiary standards
|
Daubert overthrew the 1923 Frye “general
acceptance” standard of acceptable
expert testimony in admissibility decisions
regarding novel scientific evidence.
evidence
|
Daubert also simultaneously affirmed the
judge's role as “gatekeeper” under the
Federal Rules of Evidence to ensure that
the evidence is both relevant and reliable.
Case Details:
Jason Daubert and Eric Schuller were
born with serious birth defects. They and
their parents sued Merrell Dow
Pharmaceuticals claiming that the drug
Pharmaceuticals,
Bendectin caused the birth defects.
| Merrell Dow’s expert submitted
documents showing that no published
scientific study demonstrated a link
between Bendectin and birth defects.
|
all rights reserved
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Case Details:
|
Daubert and Schuller submitted expert
evidence of their own suggesting that
Bendectin could cause birth defects.
z
That evidence,
evidence however
however, came from in
vitro and in vivo animal studies,
pharmacological studies, and reanalysis
of other published studies (methodologies
that had not yet gained acceptance within
the general scientific community for valid
prediction of human outcomes).
Court Decisions:
|
The district court granted summary judgment for Merrell
Dow, and the plaintiffs appealed.
|
The Ninth Circuit found the district court correctly
granted summary judgment because the plaintiffs'
proffered
ff d evidence
id
h
had
d nott yett won acceptance
t
as a
reliable technique by scientists who had had an
opportunity to scrutinize and verify the methods used.
|
Furthermore, the court expressed skepticism because
the plaintiffs' evidence appeared generated solely for
the purpose of litigation. Without it, the Ninth Circuit
doubted that the plaintiffs could prove at a trial that
Bendectin had caused the birth defects.
The Standard Governing Expert
Testimony
Three key provisions:
First, scientific knowledge, the testimony
must be scientific in nature, and grounded in
knowledge.
| Second, the scientific knowledge must
assist the trier of fact in understanding the
evidence or determining a fact at issue in
the case.
|
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|
Third, the judge decides whether certain
scientific knowledge would indeed assist by
making a preliminary assessment of whether the
reasoning or methodology underlying the
testimony is scientifically valid and of whether
that reasoning or methodology properly applies
to the facts in issue.
z
This preliminary assessment can focus on:
• whether something has been tested
• whether an idea has been subjected to scientific
peer review or published in scientific journals
• the rate of error involved in the technique or
• even “general acceptance,” in the right case. It
focuses on methodology and principles, not the
ultimate conclusions generated.
Bendectin Trivia
|
Bendectin, a mixture of pyridoxine (Vitamin B-6),
and doxylamine, is a drug prescribed to treat
nausea/vomiting associated with morning
sickness. It was voluntarily removed from the
market in 1983 by its manufacturer,
manufacturer Merrell Dow
Pharmaceuticals, following numerous lawsuits
alleging that it caused birth defects.
|
The drug has recently resurfaced currently
marketed under the same name. It can be made
at home using Vitamin B-6 and one-half of a
Unisom, both of which are available over-thecounter.
Kumho Tire Co. v. Patrick Carmichael
526 U.S. 137, 119 S. Ct. 1167 (1999)
|
The principle in Daubert expanded in Kumho Tire Co. v.
Carmichael, when evidence in question came from a
technician, not a scientist.
|
The technician planned to testify that the only possible
cause of a tire blowout must have been a manufacturing
defect, as he could not determine any other possible cause.
|
The Court of Appeals had admitted the evidence assuming
that Daubert did not apply to technical evidence, only
scientific evidence.
|
The Supreme Court reversed, saying the standard in
Daubert applied to technical evidence, and the evidence of
the proposed expert in Kumho was insufficiently reliable.
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Vetting the Expert?
The case of the missing voir dire…
|
Purported expert on sex offenders charged with perjury
(Chao Xiong, Minneapolis Star Tribune , March 2, 2005)
|
|
|
A Woodbury man lied about being licensed to practice
psychology in Minnesota and testified that a convicted
sex offender did not meet the threshold for civil
committed - perjury charges filed.
Michael J. Nilan, 55, testified last summer that Edward
V. Martin was not a "sexually dangerous person" or
"sexual psychopathic person.”
The court's first expert, however, had found that Martin
was a "sexually dangerous person," but the court ruled
against civilly committing Martin.
|
|
Nilan's testimony was rescinded in September
after a Hennepin County lawyer raised doubts
about his credibility. The case was retried, and
the court is deciding whether to commit Martin,
who tried to rape a woman in 1989 and has
been convicted of multiple counts of first-degree
criminal sexual conduct.
"The most significant repercussion is that
everyone will be more careful in checking the
credentials of people," said Hennepin County
Chief District Judge Lucy Wieland. Hennepin
County Attorney Amy Klobuchar called the case
"disturbing for the justice system.“
|
Nilan, who was paid $6,120 by the state for
testifying, also lied about having a Ph.D. in clinical
psychology from a correspondence school,
Madison University, and a master of arts in clinical
psychology from the University of St. Thomas. He
actually has a doctorate in psychology from
Madison University and a master of arts degree in
counseling psychology from St. Thomas.
|
Wieland said Nilan's background was not
thoroughly screened because defense
attorneys selected him as a second expert
witness. The county contracts with private
psychologists who are thoroughly checked and
testify as "first examiners," but defense attorneys
can request a second expert, who acts as a courtappointed witness paid by the state.
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9/8/2009
|
"Traditionally the court isn't
involved in second-guessing the
defense attorney's choice,"
Wieland said. "This is a veryy
unusual situation." Nilan was hired
when the court was inundated with
a "tremendous" amount of cases
involving sexual predators, making
second examiners difficult to find.
Fundamentals of
Professional Liability
p
and malpractice
Where does competence
enter the mix?
44
The 4 D’s of Legal Liability
| The
4 D’s: Dereliction of Duty
leading Directly to Damages
z When
does a professional duty
apply?
z What constitutes dereliction?
z How can one demonstrate direct
causation?
z How can we measure damages?
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Standards of care:
the “good enough clinician”
|
Mistake or “judgment call” error
z
People cannot avoid mistakes
(but a mistake ≠ negligence)
|
Departure from standard of care
|
Gross negligence
z
z
Many practitioners would not do it
Extreme departure from usual professional
conduct most practitioners would not do it
Ethical
Fundamentals
of Multiple Role
R l ti
Relationships
hi
and Boundary Traps
Multiple roles
aren’t always sweet
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Key Elements of a Potential
Multiple Role Relationship Violation
| Inadequate
consent
| Loss of objectivity
j
y
| Patient exploitation
| Disruption of treatment
relationship or quality
Multiple Relationships in the APA
Code of Conduct
|
A multiple relationship occurs when a
psychologist is in a professional role with a
person and
z
z
z
(1) simultaneously occupies another role with
the same person
person,
(2) at the same time is in a relationship with a
person closely associated with or related to the
psychologist’s client, or
(3) promises to enter into another relationship in
the future with the person or a person closely
associated with or related to the client.
Forensic contexts create
mutually exclusive choices
|
|
|
|
The decision to offer therapeutic services and forensic
services requires mutually exclusive professional
choices.
Providing each service requires the expert to make a
mutuallyy exclusive choice of p
priorities: between p
patient
welfare and assisting to the court.
Providing each service requires a mutually exclusive
choice: a relationship with the patient–litigant based on
trust and empathy or one based on doubt and distance.
Providing each service also requires a mutually
exclusive level of involvement in the fabric of the
patient–litigant's mental health: trying to better it or
dispassionately evaluating it for the court.
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Code of Conduct
|
Psychologists refrain from entering into a
multiple relationship if that relationship
could reasonably be expected to impair
their objectivity, competence, or
effectiveness in performing his or her
professional functions, or otherwise risks
exploitation or harm to the client with
whom the professional relationship
exists.
Low-Risk
Multiple Role
Relationships
|
Not all multiple
relationships are
risky.
z
Relationships not
reasonably
expected to cause
impairment or risk
exploitation or harm
are not unethical.
Code of Conduct
|
If a psychologist finds that, due to
unforeseen factors, a potentially harmful
multiple relationship has arisen, the
psychologist takes reasonable steps to
resolve it with due regard for the best
interests of the affected person and
maximal compliance with the Ethics
Code.
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Code of Conduct
| When
psychologists are required by law,
institutional policy, or extraordinary
circumstances to serve in more than one
role in judicial or administrative
proceedings, at the outset they clarify role
expectations and the extent of
confidentiality and thereafter as changes
occur.
Draft
Forensic Specialty Guidelines
Providing expert testimony about a
patient who is a participant in a legal
matter does not necessarily involve the
practice of forensic psychology even
when that testimony explicitly embraces a
psycholegal issue that is before the
decisionmaker.
| But will it help the client, or compromise
treatment?
|
Draft
Forensic Specialty Guidelines
|
Providing Forensic Therapeutic Services
z
z
Although some therapeutic services can be
considered forensic in nature, that therapeutic
services are ordered by the court or are delivered to
someone involved in litigation does not necessarily
make them forensic.
Therapeutic services can have an important effect
on current or future legal proceedings. Forensic
practitioners are encouraged to consider these
effects and minimize any unintended or negative
effects on such proceedings or therapy when they
provide therapeutic services in forensic contexts.
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General considerations when
contemplating a blending of roles:
|
Role conflicts between client and therapist.
|
Involvement of third parties.
|
Degree of the compatibility of expectations for the relationship.
|
Divergent obligations of any added role.
|
The existence of a power differential between therapist and client.
|
Intensity of the personal relationship already formed.
|
Expected duration of the professional relationship.
|
Level of clarity of the termination.
|
Presence of any objectification of the client.
|
Impulsivity level of the therapist.
Who is the client?
To whom do you believe you owe a
professional duty?
| Who may believe that you owe them a
professional duty?
| What have you done to clarify the nature,
extent, and duration of such obligations?
| What documentation have you retained
to document any of these points?
|
To whom do I owe a duty of care and
in what hierarchical sequence?
The person in
the room?
The family,
guardian,, or
g
attorney?
The agency or
institution?
Society at large?
All of the above?
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Confidentiality
Forensic Perspectives on Privacy, Confidentiality, Privilege, & Mental Health Records
Privacy, Confidentiality &
Privilege Domain Breadth
•Privacy
•A
constitutional right
•Confidentiality
•A
professional standard
•Privilege
•A
narrow legal protection
Excellent confidentiality
source:
http://jaffee-redmond.org/
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Privacy
The Constitutional right of individuals to
choose for themselves whether, when, and
how private information will be revealed.
| The
Th word
d privacy
i
d
does nott appear iin th
the
Constitution, but we can infer the concept in:
|
z
z
z
z
Amendment 3 – quartering of soldiers
Amendment 4 – search and seizure
Amendment 5 – trial and punishment
Amendment 15 – right to vote regardless of race,
color, or previous servitude
Confidentiality and Privilege
|
Confidentiality: The duty imposed on
professionals to keep information
disclosed in professional relationship in
confidence.
fid
|
Privilege: The patient’s right to keep
confidential communications from being
disclosed in a legal proceeding.
Principles underpinning
exceptions to privacy protections
|
When there are competing social policies
Parens patriae doctrine (i.e., the parentalistic state
as the guardian or protector of the incompetent)
◦ Police powers and confinement may be used to
protect (e.g., Joyce Brown, AKA: Billie Boggs v. Mayor Koch, 1987).
◦ Legislatures have enacted protective mandates.
|
When a patient’s behavior becomes
inconsistent with social policies supporting
privacy.
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United States v. Chase, 340 F 3d
978 (9th Cir. 8/22/03)
|
|
Gene Chase received treatment at Kaiser Permanente from
psychiatrist Kay Dieter in 1997. He suffered from irritability,
depression, and symptoms of anger including episodes of rage
and obsessive rumination against certain people, including those
participated
p
in various legal
g p
proceedings
g in which Defendant
who p
was involved.
Eventually Chase was diagnosed with bipolar type II disorder,
received disability benefits due to his psychiatric condition. and
met with Dr. Dieter every few months for therapy and for
management of his medication. Chase met more often (ranging
from bi-weekly to monthly) with psychologist Robert Schiff for
psychotherapy.
United States v. Chase
|
|
In August,1999, Chase showed Dieter his day planner,
containing a list of names, addresses, and social security
numbers. The list included 2 FBI agents who had
investigated him. Chase confided that he had thoughts
j
g or killing
g them and had threatened some of
about injuring
the people listed several times during the prior 5 years.
Dieter worried that Chase might act on his homicidal
threats. He told Dr. Dieter he had no intention of acting
immediately on these thoughts. Nonetheless, she
warned Chase that if he told her specifics about plans to
kill, she would have a duty to disclose the threats to the
intended victims so that they could protect themselves.
|
|
|
|
In October, 1999, Chase called Dr. Dieter to tell her that he
had argued with his wife and felt extremely upset. Fearing
Chase was losing his support system. Dieter met with a
supervisor and with Kaiser's legal counsel to discuss again
whether to disclose his threats. Legal counsel advised Dr.
Dieter to contact the local police department in Corvallis,
Oregon, Chase's home town. Dieter spoke with the FBI
and disclosed the threatening statements Chase had made
during his therapeutic sessions, identifying the people
Chase had threatened
threatened.
Chase also made threats to switchboard operators at
Kaiser.
Ultimately he was convicted on a variety of charges after
barricading himself in his home with a weapon.
He appealed in part on allegations that Dieter had been
allowed to testify at trial about threats made in therapy.
And the court ruled…
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|
Chase's communication to Dr. Dieter of threats to third
parties was a confidential communication, ordinarily,
subject to a federal testimonial privilege.
|
Dr. Dieter properly disclosed the threats to law enforcement
personnel.
|
Dr. Dieter's disclosure did not destroy the federal
testimonial privilege. The court held, “…there is no
dangerous-patient exception to the federal psychotherapistpatient testimonial privilege
privilege.
|
However, the court did not reverse the conviction based on
the district court's error allowing Dr. Dieter to testify about
what occurred in therapy, “…because the jury acquitted
Chase of the threats to which Dr. Dieter testified and
because, on this record, the outcome on the count of
conviction would have been the same without her
testimony, we hold the error was harmless.”
APA’s fundamental statement
on confidentiality
|
Psychologists have a primary obligation
and take reasonable precautions to
protect confidential information obtained
through or stored in any medium,
recognizing that the extent and limits of
confidentiality may be regulated by law or
established by institutional rules or
professional or scientific relationship.
Limits on Confidentiality per
2002 APA Ethics Code
y
Psychologists discuss with persons
(including, to the extent feasible, persons
who are legally incapable of giving
informed consent and their legal
g
representatives) and organizations with
whom they establish a scientific or
professional relationship
◦
◦
(1) the relevant limits of confidentiality and
(2) the foreseeable uses of the information
generated through their psychological
activities.
all rights reserved
24
9/8/2009
Limits on Confidentiality
per 2002 APA Ethics Code
|
Unless it is not feasible or is
contraindicated, the discussion of
confidentiality occurs at the outset of
the
h relationship
l i
hi and
d thereafter
h
f as new
circumstances may warrant.
Straightforward exceptions or
waivers of confidentiality
|
Patient consents or authorizes release
|
Consultations with other professionals
to advance patient care
|
Abuse reporting (statutory)
|
Abuse proceedings triggered by
reporting.
But wait…
|
Use caution when asked for records by anyone other
than the client, and make certain that the client
understands the potential consequences of a release.
|
Releases seeking information must conform to HIPAA
and state law with respect to all components, including
specific approval for release of psychotherapy notes, if
sought.
|
Intermingling of family or marital records may present
problems.
all rights reserved
25
9/8/2009
“Category 5 Divorce”
SampleEvents
|
Real or manipulative Duty to Warn Triggers
z
|
Patient tells psychologist about his desire for
revenge against his ex/spouse.
Who has the legal authority to initiate
evaluation or treatment for a child?
z
z
z
z
z
Parents who are separated
Parent with sole custody
Parent with joint or shared custody
Parent with visitation
Parents who suspect sexual abuse
More “Category 5 Divorce” Events
|
“Stealth” Custody or Change of Circumstance
Evaluations can occur so consider:
z
Elements for consent to evaluation of parties and
children
children.
z
Elements for consent to needed for collaterals.
z
All parties must consent to release of joint records.
z
Can a clinician refuse to share records based on
specific factors even with a valid release?
• Unpaid Bills
• Chilling Effect on Treatment
Still More
“Category 5 Divorce” Events
|
Who has access to court mandated
reports?
z
|
Judge, counsel, parties?
Release
R
l
off raw psychological
h l i l ttestt d
data
t
and test materials (more on this later)
z
Current ethics code
z
Copyright violations
z
Contract with testing companies
z
Destroy usefulness of test
all rights reserved
26
9/8/2009
Confidentiality: Hot Issues
|
Variations state
mandates
|
Access to
records in the
post-HIPAA era
|
Patients (living
and deceased),
families, others,
and "the Feds."
APA’s position regarding
mandated reporting statutes
|
If psychologists' ethical responsibilities
conflict with law, regulations, or other
governing legal authority, psychologists
make known their commitment to the
Ethics Code and take steps to resolve
the conflict. If the conflict is unresolvable
via such means, psychologists may
adhere to the requirements of the law,
regulations, or other governing legal
authority.
Mandated reporting variations
Children
| Elders
| Dependent
persons
|
Physically
Disabled
z Mentally
Disabled
z
|
Unsafe drivers
all rights reserved
27
9/8/2009
Still more exceptions to
confidentiality
Professional responsibility to protect
others
| Professional responsibility to protect
clients from life-threatening self harm
|
Tarasoff v. Regents
MacIntosch v. Milano
z Thompson v. County of Alameda
z Other progeny of Tarasoff
z
z
confidentiality
|
Health oversight or managed care
z
|
TPO: treatment and payment operations
under HIPAA
Bill collection
z
Client status disclosures
Complaints/lawsuits and threats by
patients
| Law enforcement personnel (very few
states)
|
Still more twists on the
confidentiality rights of dead people
|
Middlebrook, D. W. (1991). Anne Sexton: A
biography. New York: Vintage Books.
z
|
Martin Orne, MD, PhD
Swidler & Berlin and James Hamilton v.
United States U.S. 97-1192.
z
Opinion by Rehnquist, joined by Stevens, Kennedy, Souter,
Ginsburg, and Breyer, held that notes were protected by attorneyclient privilege because both a great body of case law and
weighty reasons support the position that attorney-client privilege
survives a client's death, even in connection with criminal cases.
• Opinion cited: Jaffee v. Redmond, 518 U.S. 1, 17-18, 135 L.
Ed. 2d 337, 116 S. Ct. 1923 (1996)
all rights reserved
28
9/8/2009
confidentiality per HIPAA
|
Deceased Patient
Legal representative of estate unless
specifically prohibited by state law (Privacy
R l )
Rule)
z Not required if psychologist decides, in the
exercise of reasonable professional
judgment, that treating an individual as
personal representative (under HIPAA) is
not in patient’s best interest (Privacy Rule)
z
When the Subpoena arrives
|
A subpoena duces tecum arrives demanding the
clinician appear in court or for deposition bringing along
“any and all, files, documents, reports, papers,
photographs, recordings, and notes in whatever form
they exist
exist.”
z
z
z
z
What is the appropriate response to a subpoena sans client
consent?
Dealing with intimidation or other strategies used by some
attorneys to gain information
Subpoena vs. court order
Potentially harmful information in client record
Records? What records?
o
6.
o
RECORD KEEPING AND FEES
6.01 Documentation of Professional and
Scientific Work and Maintenance of
Records
o Psychologists create, and to the extent the records
are under their control, maintain, disseminate, store,
retain, and dispose of records and data relating to
their professional and scientific work in order to (1)
facilitate provision of services later by them or by
other professionals, (2) allow for replication of
research design and analyses, (3) meet institutional
requirements, (4) ensure accuracy of billing and
payments, and (5) ensure compliance with law. (See
also Standard 4.01, Maintaining Confidentiality.)
all rights reserved
29
9/8/2009
“The Compleat Record Keeper”
with forensic annotations
from the Psychologists’ Desk Reference
y
y
y
Identifying
information
First contact
Legal notifications
y
Clarification of client
status, court orders,
billing/payment, etc.
y
Relevant history and
risk factors
y
Medical or health
status
Medication profile
Why is the client in
your office?
y
y
y
y
Documents reviewed
Referral questions
y
y
Current status
Itemized list of data
collected
y
y
y
y
y
y
y
y
y
Interview, test, collateral
Diagnostic impression
Treatment plan
Progress notes
Service documentation
Document follow-up
Contacts and releases of
reports
Obtain and document
consent for treatment and
release of information
Termination
Health Insurance
Portability and
Accountability Act (HIPAA)
Kennedy-Kassenbaum Act of 1996
AKA: 45 C.F.R.160
Do HIPAA rules govern forensic
evaluations?
y
y
No!
y
Yes!
y Some such
Forensic
evaluations may
evaluations ≠
i di
diagnoses.
health services. assign
It’s a moot point!
Consent standards in forensic evaluations generally far exceed
health related confidentiality consent disclosures.
Connell, M. & Koocher, G. P. (2003). Expert Opinion: HIPPA and Forensic
Practice. American Psychology Law Society News, 13, 2, 16-19.
all rights reserved
30
9/8/2009
Privacy Rule Basics
|
|
Original purpose was to protect Americans from
losing their health insurance.
Congress encouraged electronic transmission of
party
yp
payors
y
to increase
health information to third p
efficiency, protect privacy and create uniform
standards.
|
December 28, 2000, HHS (Clinton administration)
issued administrative rules to implement HIPAA.
|
Bush Administration accepted rules with proposed
changes which have become part of rules.
HIPAA
Privacy Rule Terminology
|
Protected Health Information (PHI)
z
|
Personally identifiable information that is created or
received by a health care provider that relates to
physical or mental health of an individual
Health Care
z
Care or services related to the health of an
individual…including but not limited to
…preventative, diagnostic, therapeutic …care and
counseling, service, assessment or procedure with
respect to the physical or mental condition, or
functional status, of an individual…”
Privacy Rule Requirements
|
Privacy Rule allows disclosure of protected
information for treatment, payment and
health care operations (TPO) with notice
and good faith attempt to gain patient
consent.
consent
|
State law requirements to obtain informed
consent before releasing such information
remain in effect.
|
All other uses or disclosures require an
Authorization
all rights reserved
31
9/8/2009
More Privacy Rule Basics
|
Psychotherapist-Patient Privacy
Protected in 3 ways:
z
z
z
Minimum Necessary Disclosure
St t Law
State
L
Pre-emption
P
ti
Special Protection given to mental health
information by dividing into two
categories:
• Protected Health Information (PHI) or the
“Clinical Record”
• “Psychotherapy Notes”
What goes in the “clinical record”
The following information, if kept, must remain in
the clinical record
◦
◦
◦
◦
◦
1. Medication prescription and monitoring
2. Counseling session start and stop times
3 Modalities
3.
M d liti and
d ffrequencies
i off ttreatment
t
t
4. Results of clinical tests (including raw test data)
5. Summaries of:
x
x
x
x
x
x
a.
b.
c.
d.
e.
f.
diagnosis
functional status
treatment plan
symptoms
prognosis
progress to date
What are “psychotherapy notes?”
|
Actual language of rule on psychotherapy
records or notes :
z
“Notes recorded (in any medium) by a
health care provider who is a mental
health professional documenting or
analyzing the contents of conversation
during a private counseling session or a
group, joint or family counseling session
and that are separated from the rest of the
individuals medical record.”
all rights reserved
32
9/8/2009
Psychotherapy notes: the HHS narrative
|
“The rationale for providing special protection
for psychotherapy notes…not only that they
contain particularly sensitive information, but
also that they are the personal notes of the
therapist, intended to help him or her recall the
therapy discussion and are of little use or no use
to others not involved in the therapy.
Information…not intended to communicate to, or
even be seen by, persons other than the
therapist…we have limited the definition of
psychotherapy notes to only that
information…kept separate by the provider for
his or her own purposes…not…the medical
record and other sources of
information…normally disclosed for [TPO].”
Must practitioners keep
“psychotherapy notes?”
y
y
y
y
Psychologists are not legally or ethically
required to keep psychotherapy notes; they
remain completely optional
The decision can vary from patient to
patient and from session to session
patient,
session,
depending on the facts and circumstances of
the case.
Many psychologists will elect to keep one
set of records to minimize complexity
Forensic psychologists should not (IMHO)
keep such notes.
More on psychotherapy notes
|
Privacy rule is unclear about content
z
z
|
Actual language of rule is broad
Language in HHS commentary narrow
Clinical record must provide adequate
documentation of treatment
z
Seeing psychotherapy notes as method
of “hiding” essential treatment
information is bad strategy.
all rights reserved
33
9/8/2009
Assessment Issues
Draft Forensic Guideline:
13.02 Differentiating Observations,
Inferences, and Conclusions
|
In their communications forensic
practitioners clearly distinguish
observations inferences,
observations,
inferences and
conclusions. Forensic practitioners are
prepared to explain the relationship
between their expert opinions and the
legal issues and facts of the case at hand.
Consider a three phase plan
|
Before
z
Plan the evaluation careful
• Referral questions, tool selection, consent
|
During
z
Collect and analyze the data appropriately
• Administration, recording, observation
|
After
z
Anticipate use of reports and requests for access
all rights reserved
34
9/8/2009
Assessment issues
|
|
|
|
What questions do I want to answer?
How can I use psychological data to address a legal
issue?
Which of the data have the least validityy for the
matter at hand?
z Correlate data and seek to explain outlier data
(concurrent validity and exceptions).
Special problems
z Multiple evals by opposing experts within a few
days
z Syndromal evidence?
Preparation Phase
|
Clarifying the engagement
z
Evaluative authority
• Private, court ordered, institutional contract
Who is
Wh
i th
the client?
li t?
z What services/roles are requested?
z What products are expected?
z
|
Appropriate Consent (including permission
and assent where relevant)
z
Levels of cooperation highly variable
The self-awareness problem
|
Eliminating actual and perceived bias
all rights reserved
35
9/8/2009
Impartiality and Trust
|
Preconceived biases run high in the some
areas of litigation.
z
A lot of what some clinicians believe they
“know”
know has no firm scientific foundation
foundation.
Appearance of bias can prove as
damaging as actual bias.
| We must recognize our own attitudes,
values, and biases and seek continuous
feedback.
|
Assessment Tools
|
Selection and adequacy of
instruments
z
Understanding validity and
reliability
•
•
•
•
Face validity (?)
Content
Co
te t validity
a d ty
Predictive validity
Construct validity
• Problem of the invalid
construct (syndrome of the
week)
|
Controversial Tools
z
(e.g., the dolls)
Language and Culture
|
Appropriate Assessment in a Multi-Cultural
Society
z
z
|
Language + Culture
T
Translator
l t v. Interpreter
I t
t
What’s in a Norm?
z
z
Are the norms up to date or based on people
compatible to the client?
If the normative data do not match the client, the
psychologist must discuss such limitations when
making interpretations.
all rights reserved
36
9/8/2009
Data Collection and Validity Issues
Conducive climate and context
Avoiding re-traumatization
| Detecting coaching
|
|
Some data
collection
involves
special
challenges.
Syndromal “Evidence” --Correlation ≠ Causation
|
The term syndrome refers to the
association of several clinically
recognizable features
signs (observed by a practitioner),
z symptoms (reported by the patient),
z phenomena or characteristics that often
occur together, so that the presence of one
feature signals the likely presence of the
others.
z
Syndrome versus Disease
and “syndromal evidence”
|
A syndrome = a cluster or pattern of symptoms that
appear together in a manner considered clinically
meaningful.
|
In contrast to diseases, syndromes
y
have no specified
p
temporal course or clear pathological nature.
|
Diseases, on the other hand, have a cluster of signs
and symptoms as well as a known pathological quality
and temporal course.
|
A syndrome typically links a set of characteristics to
some antecedent event or trauma (e.g., battered
woman syndrome or rape trauma syndrome).
all rights reserved
37
9/8/2009
Examples of “syndromes”
|
|
Down Syndrome
z trisomy 21
ROHHAD Syndrome
z
|
|
|
|
Rapid-Onset
Rapid
Onset Obesity with Hypoventilation, Hypothalamic,
Autonomic Dysregulation, and Neural Tumor Syndrome
Stockholm syndrome
Parental alienation syndrome
Child sexual abuse accommodation syndrome
Damocles Syndrome
Gardner, RA (2001). "Parental Alienation Syndrome (PAS): Sixteen Years
Later". Academy Forum 45 (1): 10-12.
http://www.fact.on.ca/Info/pas/gard01b.htm. Retrieved on 2009-03-31
http://www.fact.on.ca/Info/pas/gard01b.htm
|
Parental alienation syndrome (abbreviated as
PAS) is term coined by Richard A. Gardner in
the early 1980s to refer to what he describes
as a disorder in which a child
child, on an ongoing
basis, belittles and insults one parent without
justification, due to a combination of factors,
including indoctrination by the other parent
(almost exclusively as part of a child custody
dispute) and the child's own attempts to
denigrate the target parent.
After the Evaluation
|
Anticipating the request for data
Nature and production of the report
|
Who gets the report?
|
z
z
|
|
Focus, details, payment…
Planned uses
(e.g., civil, criminal, custody)
Requests for Modification of Reports
Critiquing the reports of other professionals
all rights reserved
38
9/8/2009
Release of Test Data
Standard 9.04
|
Test data refers to raw and scaled scores,
patient responses to test questions or stimuli,
g concerning
g
and our notes and recordings
patient statements and behavior during an
examination. Portions of test materials
including patient responses are considered
test data.
z Pursuant to a patient release, we provide test
data to the client/patient or other persons
identified in the release.
z
Release of Test Data
|
Standard 9.04 (continued)
z Psychologists
may refrain from
releasing test data to protect a patient or
others from substantial harm, misuse or
misrepresentation of the data or the test,
recognizing that release of information is
also regulated by law.
z In the absence of a release,
psychologists provide data only as
required by law or court order.
Maintaining Test Security
|
Standard 9.11
Test materials refers to manuals,
instruments, protocols, and test questions or
stimuli but does not include test data as
defined in 9.04.
z Psychologists make reasonable efforts to
maintain the integrity and security of test
materials and other assessment techniques
consistent with law and contractual
obligations, and in a manner that permits
adherence to the ethics code
z
all rights reserved
39
9/8/2009
Custody Disputes
Where Those Without
Forensic Training Stumble
Most Often.
Child Custody Cases:
Key Advice
|
|
|
|
Don’t treat the system
casually!
Get formal training and
mentored experience.
Seek judicial
appointment, if possible
(quasi judicial immunity
may attach
Clarify roles and
expectations with all
parties at the outset.
Eight Common criticisms of
psychologists in custody disputes
1.
Deficiencies and abuses in professional
practice.
2.
Inadequate
q
familiarity
y with the legal
g
system and applicable legal standards.
3.
Inappropriate application of psychological
assessment techniques.
4.
Presentation of opinions based on partial
or irrelevant data.
all rights reserved
40
9/8/2009
Eight Common criticisms of
psychologists in custody disputes
5.
Overreaching by exceeding the limits of
psychological knowledge of expert
testimony.
6.
Offering opinions on matters of law.
7.
Loss of objectivity through inappropriate
engagement in the adversary process.
8.
Failure to recognize the boundaries and
parameters of confidentiality in the
custody context.
Elements of Notification in a
Custody Evaluation
|
Provide a statement of adult parties’ legal rights
with respect to the anticipated assessment
z
Give a clear statement regarding the purpose of
the evaluation.
Identify the requesting entity
entity.
z
Describe the nature of anticipated services.
z
Explain the methods to be utilized.
z
Specify whether or not the services are court
ordered.
z
• (Who asked for the evaluation?)
• (What procedures will you follow?)
• (What instruments and techniques will you use?)
Elements of Notification in a
Custody Evaluation
|
Delineate the parameters of confidentiality.
|
Provide information regarding:
z
z
z
z
z
z
z
z
z
|
Will anything be confidential from the court, the parties, or the public?
Who will have access to the data and report? How will access be provided?
The evaluator’s credentials;
The responsibilities of evaluator and the parties;
The potential disposition of data
The evaluator’s fees and related policies;
What information provided to the child, and by whom?
Any prior relationships between evaluator and parties;
Any potential examiner biases (For example: presumptions regarding joint
custody).
Consent documentation
z
z
z
Obtain consent to disclose material learned during evaluation in litigation.
Obtain waiver of confidentiality from adult litigants or there legal
representatives.
Provide written documentation of consent.
all rights reserved
41
9/8/2009
Selected Interesting
Cases
Public Law 107-56
| “Uniting
and Strengthening
America by Providing Appropriate
Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001”
z Sec.
215. Access to Records and
Other Items Under the Foreign
Intelligence Surveillance Act (FISA).
Public Law 107-56
|
Sec. 501. Access to Certain Business Records for Foreign
Intelligence and International Terrorism Investigations.
z
z
z
z
(a)(1) The Director of the Federal Bureau of Investigation or a designee
… may make an application for an order requiring the production of any
tangible things (including books, records, papers, documents, and other
items) for an investigation to protect against international terrorism or
clandestine
l d ti iintelligence
t lli
activities….
ti iti
(c)(1) Upon an application made pursuant to this section, the judge shall
enter an ex parte order as requested, or as modified…
(2) (d) No person shall disclose to any other person (other than those …
necessary to produce the tangible things…) that the FBI has
sought/obtained … things…
(e) A person who…produces … things under an order … section shall
not be liable to any other person...
all rights reserved
42
9/8/2009
United States of America v.
Theresa Marie Squillacote (2000).
221 F.3d 542.
|
|
Theresa Marie Squillacote (AKA: Tina, Mary
Teresa Miller, The Swan, Margaret, Margit, Lisa
Martin, and her husband, Kurt Stand; convicted
of espionage.
espionage
For 550 days the FBI maintained secret
electronic surveillance of the couple's bedroom,
and intercepted telephone calls with her
psychotherapist (Jose Apud, MD), and attempted
to lure the woman into damaging disclosures.
Theresa Squillacote &
Kurt Stand

Theresa - born in Chicago in November 1957,
earned a master's degree at the University of
Wisconsin, and a law degree from Catholic
University in Washington, DC.
Kurt fled from Germany during Hitler's reign,
but maintained contacts with friends in East
Germany. In the 1970s, he began working for
the East German intelligence agency. His work
focused on recruiting agents in the USA. In
1981 he recruited Theresa. The married in
1983.
United States of America v.
Theresa Marie Squillacote (2000).
221 F.3d 542.
|
|
Theresa Marie Squillacote served as a senior
staff attorney in the office of the Deputy
Undersecretary of Defense for Acquisition
Reform until January 1997. Prior to her
P t
Pentagon
assignment,
i
t she
h worked
k d ffor th
the H
House
Armed Services Committee.
Kurt Alan Stand worked as a regional
representative of the International Union of
Food, Agricultural, Hotel, Restaurant, Catering,
Tobacco and Allied Workers Association
all rights reserved
43
9/8/2009
FBI BAP Advice…

An FBI Behavioral Analysis Program team (BAP)
drafted a personality report for use in the investigation
based on her conversations with her psychotherapists.
The BAP noted that she had depression, took
medication,, and had "a cluster of p
personalityy
characteristics often loosely referred to as 'emotional
and dramatic.”
The BAP team recommended taking advantage of
Squillacote's "emotional vulnerability," and described
the type of person to whom she might pass on
classified materials.
FBI BAP Advice…
|
|
|
“LS ignores and neglects her children; her
clandestine activities take precedence in her
life. She suffers from cramps and is taking
the antidepressants Zoloft and [sic] Diserel.
LS has wide mood swings. She has
dependent childish relationships with men.
She is totally self-centered and impulsive. “
The type of UCA (undercover agent) who
approaches her will be very important.
BAP Advice…
|
Because of the above traits—
z
z
z
z
It is most likely that LS will be easily persuaded if an
approach is made to her that plays more to her
emotions.
He might be depicted as the son of comm
communists
nists who
ho
left for South Africa in the late 1940s or early 1950s.
The UCA should make a friendly overture by bringing
her a personal gift such as a biography, which is her
favorite type of book.
The UCA would act professional and somewhat aloof
yet responsive to her moods.
all rights reserved
44
9/8/2009
Sell v. United States, 539 U.S.
166 (2003)
|
Charles Sell, a dentist charged with committing
63 counts of Medicaid fraud, was determined by
psychiatric evaluation as incompetent to stand
trial. The government psychiatrists
recommended
d d psychoactive
h
ti d
drugs tto restore
t
competency. Having experienced negative
reactions to such drugs in the past, Sell refused.
As a result, he was incarcerated in a forensic
mental institution for 7 years, a longer period of
time than the maximum sentence for the crime
with which he was charged.
Sell v. United States, 539
U.S. 166 (2003)
|
|
On June 16, 2003, Justice Breyer delivered the 6-3
Supreme Court decision: “We conclude that the
Constitution allows the Government to administer
those drugs, even against the defendant’s will, in
limited circumstances, that is, upon satisfaction of
conditions that we shall describe. Because the Court
of Appeals did not find that the requisite
circumstances existed in this case, we vacate its
judgment.”
Sell won his right to refuse to take psychoactive
drugs, but his victory seemed a hollow one at
substantial cost.
all rights reserved
45
Casebook for ABPP Sarasota Workshop
September - 2009
Case 1:
Wellin Tentioned, M.D., is recruited to serve as an expert witness by Prima Facie,
attorney-at-law. Ms. Facie is representing a client injured in an automobile accident. She hopes
that Dr. Tentioned's research on the effects of alcohol ingestion on reaction time will bolster
her client's lawsuit. Facie will portray her injured client in the most sympathetic light possible,
pay Dr. Tentioned an hourly rate far in excess of his usual hourly psychotherapy rate, and press
him hard to state his findings in the way that most strongly supports her case.
Case 2:
Carl Cathexis, Psy.D., treated Phineas Bluster in psychoanalysis five times per week for nearly 2
years. Dr. Cathexis offered Mr. Bluster a clinical interpretation and was taken aback by the
rageful transference reaction it precipitated. Bluster stormed out of the office saying, “You'll
hear from my lawyer, I'm going to sue.” Bluster did not return for further sessions. A few weeks
later, Dr. Cathexis receives a letter from an attorney representing Mr. Bluster, accompanied by
a release form asking for copies of all case records. Dr. Cathexis jots a note to himself,
“Telephone Bluster and suggest he stop this acting out and return to treatment so that we can
work through the transference.”
Case 3:
Slimy Grubber, Ph.D., was approached by an attorney representing Eben Fired in an
employment discrimination case against Large Multinational Corporation (LMC). LMC has
alleged that Mr. Fired had serious personality problems that compromised his work and led to
his termination. The attorney believes Mr. Fired's assertion that he was inappropriately fired
from his job at LMC for discriminatory reasons and tells Dr. Grubber that he anticipates a good
chance of winning triple punitive damages to yield a financial award of $1.5 million or more.
Mr. Fired's attorney would like Grubber to evaluate his client with an eye toward rebutting
LMC's assertions. Unfortunately, Fired is unemployed and has no money to pay for evaluation
service. The attorney offers Grubber 2% of the ultimate financial settlement in exchange for his
services.
Case 4:
Dahlia Discord, M.S.W. has been treating Melissa Malfunction for anxiety and mild depression
in the aftermath of an automobile accident. Ms. Malfunction has been out of work for 3 months
and receives disability insurance payments. The insurer has scheduled her for a disability case
review, and she has asked Ms. Discord to complete a disability evaluation form and possibly
1
© Gerald P. Koocher, 2009 – all rights reserved
testify as an expert in support of her claim before an administrative law judge. Ms. Discord
would like to support her psychotherapy client, but is not certain that she can objectively
support Ms. Malfunction's claim that she is totally unable to work at any job for emotional
reasons.
Case 5:
Ben and Betty Bombast felt so angry toward each other about their impending divorce that
they could not seem to agree about anything. They certainly could not imagine agreeing on
custody plans for their children, Barney and Bella. When Hugh Kidder, Psy.D., a private
practitioner with extensive experience in child custody matters, was appointed to provide
family mediation services through the court clinic, they reluctantly agreed to try. The Bombast's
were amazed by Dr. Kidder’s ability to establish rapport with each of them and with the
children. He refocused the parents on the children's needs, and they ultimately agreed on a
joint custody plan without judicial intervention. Dr. Kidder issued a report to the court in
support of their jointly arrived at decision. A few weeks after the divorce became final, the
Bombasts both contacted Dr. Kidder at his private office. Barney was having some school
adjustment problems, and both parents agreed that they would like Dr. Kidder to evaluate and
counsel him. They expressed considerable mutual confidence in Dr. Kidder because of their
previous experience with him.
Case 6:
Hasty Injuria, Ph.D., was approached by an attorney to do a pretrial evaluation of his client who
had been charged with assault and battery. Injuria administered the WAIS-IV (Wechsler Adult
Intelligence Scale - IV), Thematic Apperception Test, Rorschach Inkblots, Minnesota Multiphasic
Personality Inventory-2 (MMPI-2), and the House-Tree-Person (HTP) drawing. When testifying
on the witness stand, Dr. Injuria was asked about the defendant's propensity to commit violent
acts against others and about his criminal responsibility at the time of the alleged assault.
Although Injuria had no information regarding the defendant's history (which was devoid of
violent acts) and was unfamiliar with the concept of criminal responsibility, he testified that the
defendant had a diagnosis of schizophrenia and was therefore clearly both dangerous and not
responsible.
Case 7:
Barney Bezerk was to stand trial for the axe murder of his family of four. His attorney was
planning to use an insanity defense and hired Cruddy O'Pinion, Psy.D., to conduct an expert
psychological evaluation. The evaluation revealed that Mr. Bezerk had a major thought
disorder, poor impulse control, considerable unmodulated anger, and frequently expressed
paranoid ideation. In particular, Mr. Bezerk's auditory hallucinations had repeatedly warned
him that alien beings had taken over the bodies of his family and were about to embark on the
conquest of Earth. Dr. O'Pinion cited all these findings and concluded his report with the
statement that Mr. Bezerk was clearly insane at the time of the offense.
2
Case 8:
Andrea Yates confessed to the police in 2001 that she had drowned her five children, ages 6
months to 7 years. A Houston jury subsequently convicted her of murder the next year for
three of the deaths, rejecting her insanity defense. The case reignited national debate about
mental illness, postpartum depression and the legal definition of insanity. The court overturned
the initial conviction because of false testimony Park Dietz, M.D., a psychiatrist who testified as
the prosecution's only mental health expert. Dr. Dietz, who charged $500 per hour, testified
that Ms. Yates was psychotic at the time of the murders but knew right from wrong, meaning
that she did not qualify as insane under Texas' narrow legal definition. On cross-examination,
Dr. Dietz was asked about his work as a consultant on Law & Order, a television program Ms.
Yates was known to watch. Asked whether any of the episodes he had worked on concerned
"postpartum depression or women's mental health," Dietz replied, "As a matter of fact," he
answered, "there was a show of a woman with postpartum depression who drowned her
children in the bathtub and was found insane, and it was aired shortly before the crime
occurred" (Powell, 2005).
Case 9:
Helena Scruples, PhD., has considerable knowledge regarding eyewitness identification. Her
own research shows the frequent unreliability of such identifications. When asked to serve as
an expert witness by the defense in a rape case. Dr. Scruples feels sympathetic to the female
victim and knows that prosecution of alleged perpetrators is difficult. If she agrees to help the
defense, she may reduce a guilty defendant's chance of conviction.
Case 10:
Herman Beastly is accused of raping and murdering an adolescent babysitter. Evidence strongly
indicates that he is guilty and may meet criteria for a death sentence based on a state law that
permits capital punishment for criminals likely to commit repeated violent crimes of this sort.
John Qualm, MD, considered an expert on the prediction of dangerousness, has published
reports that highlight the difficulty in making such predictions reliably. He is asked to testify by
the defense in the hope that his opinions may save Beastly from execution.
Case 11:
Theodore Trance, L.M.H.C., consulted with the police investigating a double homicide. He
hypnotized and interrogated a woman who claimed to be an eyewitness to the murders, but
recalled little of what happened. During the hypnotic sessions, the woman emotionally recalled
being forced by two male companions to shoot the two victims. Her testimony resulted in
conviction of the two for murder. Subsequently, it became clear that the two were innocent,
and that the woman had substantial motivation to wish them punished for reasons of her own.
3
Case 12:
Helen Tester, PhD, agreed to undertake a child custody evaluation. During the course of her
assessment, she administered psychological tests, including the MMPI-2 and the Rorschach
Inkblots, to both parents. The mother, who was a foreign national, had an elevated L-scale
score on the MMPI-2 and was “evasive” on the Rorschach inquiry. As a result, Dr. Tester
concluded that she was a “highly defended pathological liar” and recommended against
awarding her custody.
Case 13:
Jack Balance, MD, undertook a child custody evaluation at the request of the attorney
representing the child's father. The attorney advised Dr. Balance that both parents were
interested in cooperating with the evaluation. Balance met with the father and the child for
assessment purposes, but the mother subsequently declined to participate. At the trial, Dr.
Balance testified only with respect to the child-father relationship, but the mother's attorney
attempted to discredit him as an expert because he had not interviewed the child's mother.
Case 14:
Sam and Sylvia Splitter found themselves in the midst of a bitter divorce and child custody
dispute. Each sought and identified a mental health professional willing to advocate on their
behalf at the custody hearing. Both professionals testified in support of “their client” based on
interviews with the one parent and children. Neither professional had sought contact with the
other parent or the other professional prior to the hearing, and each testimony dramatically
contradicted the other.
Case 15:
Cynthia Oops, M.S.W., conducted a careful evaluation of both parents and two children
involved in a custody dispute. One parent had recruited her, but the other had seemingly
agreed to her participation. When Ms. Oops completed her report prior to the hearing, the
parent who was not favored asserted her right of confidentiality and demanded that the report
be kept out of court. Ms. Oops had not obtained a signed waiver from the parties.
Case 16:
Mr. Smith was indicted for murder, and the prosecutor for the state of Texas announced that
he would seek the death penalty. James P. Grigson, M.D., a psychiatrist who somelater
nicknamed “Dr. Death”, was assigned to evaluate Smith's competence to stand trial. After a
single 90-minute interview, Dr. Grigson determined that Smith was competent and so testified.
Smith was tried and convicted. A separate penalty-phase proceeding was held for the jury to
determine whether to impose the death penalty. One factor the jury had to consider was any
propensity for Smith to commit similar acts again. Dr. Grigson was again called by the state to
4
testify about any proclivity of Mr. Smith toward future violence. Based on the same 90-minute
interview, Dr. Grigson opined that Smith would be a continuing danger to society. The jury
sentenced Smith to death ( Estelle v. Smith, 1981),.
Case 17:
Bob and Harriet Splinter have decided to divorce and want to do what is best for their three
young children. They seek therapeutic consultation with Connie Sensus, L.M.F.C., a family
counselor in the community, about joint custody and visitation options. During their sessions
together, Bob acknowledges that Harriet would be better as the custodial parent because he
has a drinking problem and was involved in some unsavory delinquent conduct as a youth. They
agree that the children will live with Harriet and that Bob will have frequent visitation. Just
before finalizing the full divorce agreement, Bob and Harriet have a falling out over financial
issues, and Bob states his intent to seek sole custody of the children. Harriet wants to call Ms.
Sensus as a witness and plans to use her testimony to get Bob's admitted character flaws on the
record. Bob demands that Sensus keep confidential all that he told her.
Case 18:
Melba Meticulous, Ed.D., undertook a court-ordered child custody investigation for the
Fragmento family. She conducted nearly 20 hours of interviews with the parties, the children,
and collateral sources. Much of the information she gathered was relevant to the matters
before the court, but some was extraneous (e.g., Mr. Fragmento wore a poor quality hairpiece;
Mrs. Fragmento's great aunt Tillie died 6 years ago, and her husband had the temerity to tell
jokes at the wake; Mrs. Fragmento is at least 30 pounds overweight; and the maternal
grandmother recently underwent a facelift). The extraneous data made their way into Dr.
Meticulous' files as she did not know which bits would be relevant as she heard them. She will
now complete her report, citing all relevant factors, and will not cite or discard all extraneous
material.
Case 19:
Windy Fluffball, J.D., Ph.D., agreed to serve as an expert witness in a civil lawsuit that involved
alleged wrongful termination of a clinical psychology graduate student from a doctoral
program. Dr. Fluffball expounded on his years of teaching and membership on the National
Psychological Society's Education and Training Oversight Committee. On cross-examination
Fluffball was forced to admit that) his doctorate was in physiological psychology, that he never
had clinical training, that) he never worked or taught in a clinical psychology program, that he
was not licensed as a psychologist, and ) although he had recently won appointed to the
Education and Training Oversight Committee of his professional association, he had yet to
attend a single meeting.
5
Case 20:
Ima Hurtin sought the services of Anna Sthesia, PsyD, in response to her newspaper
announcement of a pain clinic Dr Sthesia had opened. Ms. Hurtin gave a history of low back
pain that began several years earlier, and she expressed interest in the application of
biofeedback techniques. Ms. Hurtin told Dr. Sthesia that she had “been to everyone,
chiropractors, orthopedists, hypnotists, and even tried acupuncture and a herbalist.” The
psychologist initiated biofeedback training. Several weeks later, Ms. Hurtin collapsed at work
and was taken to a hospital, where she was discovered to have a malignant tumor of the spine.
The disease had metasticized widely and was too advanced for all but palliative care.
Case 21:
Regina Yahoo met Sonia Specula, M.S.W., at a cocktail party. On learning that Specula was a
psychotherapist who specialized in work with children, Ms. Yahoo began telling her about
threats that her 15-year-old daughter was making to run away from home. Ms. Specula casually
mentioned that “lots of teenagers say things like that to annoy their parents, but they never do
it.” Two days later, Ms. Yahoo's daughter ran away from home and was hit by a truck and killed
while attempting to hitchhike out of town.
Case 22:
Manual Kant felt very angry that, after 9 months in psychotherapy with Seymour Suregood,
M.D., he still could not get women to date him again after the first date. Several of the women
had told Mr. Kant: “You need a lot of help!” Dr. Suregood had agreed to work with Kant on this
problem, but as far as Kant could tell, things had not changed much.
Case 23:
Frederica Saunders sought psychological treatment from Dr. Carmichael. During the course of
counseling, Carmichael and Saunders engaged in sexual relations, and Dr. Carmichael convinced
Saunders to divorce her husband. Carmichael and Saunders then married. Saunders later
brought a malpractice action against her new husband after he sued for divorce. The trial court
found Carmichael liable for malpractice and also granted the divorce. Carmichael appealed,
claiming his wife did not prove harm. The appeals court found that Saunders did not present
any expert testimony that showed a causal relationship between the malpractice and her
injury. Her expert testified about the nature of transference and stated that initiating a sexual
relationship during the course of a professional relationship was a fundamental betrayal of a
patient's trust. This testimony could establish that Carmichael breached the applicable standard
of care, and that Saunders' symptoms, which included depression, distress, and suicidal
feelings, were consistent with the effects of a doctor betraying a patient's trust. The witness did
not testify “to a reasonable degree of medical certainty” that Carmichael's behavior played a
substantial part in causing his wife's injuries. Moreover, the expert admitted under
6
cross-examination that all of Saunders's symptoms could have existed when she first sought
treatment from Carmichael (Carmichael v. Carmichael, 1991).
Case 24:
I. B. Leaveder, L.M.H.C. had seen Kenya Trustme foronly four psychotherapy sessions, when Ms.
Trustme asked him to write a letter on her behalf. She told Mr. Leavder that her sessions with
him had given her new resolve. She told Leavder that her spouse had abused her for many
years and that she had finally decided to take action to protect herself and her children. She
planned to move to a friend’s house and go into court the next day with an ex parte request for
a restraining order. She asked whether Mr. Leavder would write a supportive letter, and he did
so, repeating all of the acts of abuse she had recounted to him.
Case 25:
A woman known as Jane Doe sued the Samaritan Counseling Center as respondeat superior for
the acts of one of its pastoral counselors; the counselor had sexual intercourse with her when
she came to seek “emotional and spiritual therapy.” During two of Doe's sessions at the agency,
the counselor allegedly kissed and fondled her. Sexual intercourse followed outside the center
after she had canceled her counseling sessions. A trial court initially dismissed the case, finding
that the agency was not responsible for its employee's acts; however, the state supreme court
disagreed. The court ruled that the fact that sexual intercourse occurred after Doe canceled
therapy did not bar employer liability because the counselor's conduct during the sessions
constituted the initiation of a sexual relationship and negligence in handling transference issues
(Doe v. Samaritan Counseling Center, 1990).
Case 26:
Roberta Reason, Ph.D., often participates in the evaluation of criminal defendants as part of
court-ordered determinations of their competence to stand trial. Defendants must usually meet
with her unaccompanied by their lawyers. When she begins to interview a woman charged with
the beating death of an infant, the defendant complains, “If I don't talk to you, they'll say I'm
not cooperating, and I'll be in trouble. If I do talk to you, I'll be losing my fifth Amendment
rights.”
Case 27:
Andrew Penal, M.A., works at the Stateville Prison Colony as a correctional counselor. During an
individual treatment session, a new inmate reports that an escape attempt involving taking
hostages will soon take place. Following this revelation, the client begs, “Please don't tell
anyone about this. If the other cons find out I snitched, they'll kill me.”
Case 28:
Carla Carcerated, Ph.D. works as a psychologist in a correctional medical center and
occasionally encounters situations (e.g., an emergency situation), in which she might have to
take on a non-psychologist role (e.g., supervising a housing unit, searching an inmate’s
7
quarters, or even pat-searching an inmate). If required to take on such a role with a person
she must treat or evaluating for the court, how might the altered role of acting as a correctional
officer affect the way in which the defendant responds to her? Are there any steps she might
take to minimize ethical problems?
Case 29:
Fred Faithful, Ph.D., a psychologist assigned to a criminal forensic facility is often asked to
evaluate people for competency to stand trial, criminal responsibility, or dangerousness to
self/others. At times institutional authorities or federal prosecutors may have clear
preferences about what they hope he will find in the process of your assessment. How can he
balance his obligation to conduct a fair and scientifically rigorous evaluation without risking
complaints that he is not perceived as a “team player.”
Case 30:
Attorney Arnold Advocate has retained you to serve as an expert witness in a civil damages
trial. As you review records and collect data, it becomes clear that his client, Hy Perbole
actually suffered some harm, but seems to exaggerate the extent of his damages. You describe
your concerns to the attorney, who requests that you focus your report only on those data that
support his Mr. Perbole’s claims. How can you handle this request ethically?
Case 31:
Fred Faithful, Ph.D., still works in a criminal forensic facility. The a jurisdiction that provides for
civil commitment of sexually violent predators whose criminal sentences has ended. You have
been asked to evaluate Peter Pervert, a 55 year old serial child molester prisoner near the end
of his 30 year sentences, to determine whether or not civil commitment should be
pursued. However, no actual legal proceeding has been initiated against Peter, and he does
not have legal representation. What are your ethical obligations?
8
In re: Squabbles
1
In re: Squabbles
[Instructions: As you read the case, note any ethical problems or questions you
encounter. See how many you can find.]
Susan and Seymour Squabble went to see Dr. Charles Clueless for marital therapy
after years of marital discord. They have two children, Steve, age 16 and Sofie, age 4.
Susan Squabble has a history of bipolar disorder with multiple hospitalizations and one
serious suicide attempt two years ago. However, when she consistently takes her
medication, the bipolar disorder remains in remission. Seymour Squabble has a history of
domestic violence from a prior marriage and a history of substance abuse although he
denies that he has any problems whatsoever.
During the course of treatment, Mrs. Squabble privately and confidentially
disclosed to Dr. Clueless that she was secretly having a long term affair with Seymour’s
brother, Stanley and that Stanley was the biological father of their daughter, Sofie. Mrs.
Squabble felt terrified of what might happen should Seymour learn of Sofie’s true
parentage. She stated, he might “do something violent” to either her, Stanley or even
Sofie.
After 8 months of treatment, Mrs. Squabble decided that she did not want to stay
in their marriage any longer, that she no longer loved Seymour, and she abruptly ended
treatment. Mr. Squabble felt devastated, potentially suicidal and enraged. As a result, Dr.
Clueless referred him to Dr. Emmanuel Empathy for individual psychotherapy where Mr.
Squabble openly discussed his desires for revenge against his wife.
Mrs. Squabble promptly obtained a lawyer, Ms. Gloria Gotcha and proceeded to
file for divorce. After being served with papers, Mr. Squabble also retained a lawyer, Mr.
Andrew Adversary. They are assigned a judge, The Honorable Judith Justice. Both Mr.
and Mrs. Squabble want sole custody of their children although Steve has voiced a
preference to live with his father who is far more permissive than his mother. Sofie
became so upset with the hostility between her parents that she began to have temper
tantrums, increased nightly bedwetting and became withdrawn. Mrs. Squabble became so
alarmed at her daughter’s behaviors that she took her to a child psychiatrist, Dr. Bonnie
Baby, against Mr. Squabble’s wishes and unbeknownst to him.
Attorney Adversary proceeds to call Dr. Clueless to discuss Mrs. Squabble’s
psychiatric history and current mental status. When Dr. Clueless answers his phone, Mr.
Adversary tells the doctor that he is representing Mr. Squabble in their divorce
proceedings and wants to speak with the doctor about the Squabbles’ marital therapy and
Mrs. Squabble’s psychiatric disorder. After speaking at length with Dr. Clueless, Mr.
Adversary decides that he needs to see the complete file and subpoenas Dr. Clueless for
the complete marital record. Dr. Clueless promptly calls Dr. Adversary and tells him that
he doesn’t know if he can send out the record, particularly because he doesn’t have
© Lisa Grossman & Gerald P. Koocher, 2009
All rights reserved
In re: Squabbles
2
releases of information from the Squabbles and that there is only one record that
combines both individual’s information. Mr. Adversary faxes Dr. Clueless a sheet of
paper that states that Mr. Squabble agrees to let Dr. Clueless release his marital therapy
records and there is a signature with Mr. Squabbles’ name. When Dr. Clueless tells Mr.
Adversary that Mrs. Squabble refused to sign a release, Mr. Adversary sharply tells Dr.
Clueless that if he does not comply with the subpoena and send the complete record
within 7 days, he will be found in contempt of court. Very frightened that he will go to
jail, Dr. Clueless immediately sends off the file to Mr. Adversary, including his personal
psychotherapy notes.
In the meantime, the custody battle is heating up with accusations flying on both
sides, with each parent alleging that the other is an unfit parent. As a result of this
acrimony, Judge Justice orders a custody evaluation to be performed by Dr. Mary Moon.
Before the evaluation begins, Dr. Moon asks both parents to sign releases of information
so that she may forward her report to the judge and lawyers involved in the divorce case.
Mr. Squabble refuses to sign the release and Dr. Moon documents this in her notes and
proceeds with her evaluation. As part of the evaluation, Dr. Moon wants to contact
collaterals and calls Dr. Clueless, Dr. Empathy and the Dr. Baby. Dr. Clueless happily
talked to Dr. Moon about his marital treatment with the Squabbles. Dr. Empathy told Dr.
Moon that he refused to send Dr. Moon his treatment summary because Mr. Squabble has
not paid his bill for the last 6 months and Dr. Baby refused to speak to Dr. Moon,
regardless of whether there was a release of information or not. Dr. Moon was frustrated
with Dr. Baby and wrote a letter to Judge Justice asking her to order Dr. Baby to speak to
Dr. Moon about Sofie’s treatment.
After Dr. Moon finished her evaluation, she sent her report to Judge Justice and
Attorneys Gotcha and Adversary. As soon as Ms. Gotcha read the report, she
immediately sent off a subpoena to Dr. Moon requesting all of her records in the case,
including all the raw test data and test materials from her psychological testing of both
litigants. Dr. Moon refused to release the raw data and test materials to Ms. Gotcha who
subsequently asked the judge for a court order for production of the complete file.
At the end of trial, Judge Justice awarded Mr. Squabble sole custody of both
children, primarily because Mrs. Squabble refused to take her medications and she began
suffering frequent manic episodes. Mrs. Squabble was quite incensed that she did not
obtain custody of her children. During one visitation, Sofie told Mrs. Squabble that her
father bathed her at home. Mrs. Squabble became alarmed that Sofie was being sexually
molested by her father and took her back to Dr. Baby, who had stopped treatment a year
prior when Sofie was doing better. Mrs. Squabble told Dr. Baby about her concerns and
Dr. Baby did a sexual evaluation with Sofie and then restarted treatment. When Mr.
Squabble found out about the treatment, he filed a licensing board complaint against Dr.
Baby who was subsequently placed on 3 years probation.
All rights reserved
In re: Squabbles
3
All rights reserved
7. FEES
SPECIALTY GUIDELINES FOR
FORENSIC PSYCHOLOGY
7.01 Determining Fees
7.02 Fee Arrangements
Prepared by Committee on the Revision of the Specialty
Guidelines for Forensic Psychology
8. NOTIFICATION, ASSENT, CONSENT, AND INFORMED
CONSENT
PROPOSED THIRD DRAFT 2/27/08
8.01 Timing and Substance
8.02 Communication with Those Seeking to Retain a Forensic
Practitioner
8.03 Communication with Forensic Examinees
8.03.01 Persons Not Ordered or Mandated to Undergo
Examination
8.03.02 Persons Ordered or Mandated to Undergo Examination
8.03.03 Persons Lacking Capacity to Provide Informed Consent
8.04 Communication with Collateral Sources of Information es
8.05 Communication in Research Contexts
1. INTRODUCTION
1.01 History of the Specialty Guidelines for Forensic Psychology
1.02 Definitions and Terminology
1.03 Nature of Forensic Psychology
1.04 Services and Functions
2. NATURE AND SCOPE OF THE GUIDELINES
2.01 Intended Users
2.02 Aspirational Model
2.03 Goals
2.04 Professional Discretion and Judgment
9. CONFLICTS IN PRACTICE
9.01 Conflicts with Legal Authority
9.02 Conflicts with Organizational Demands
9.03 Conflicts with Fellow Professionals
3. RESPONSIBILITIES
10. PRIVACY, CONFIDENTIALITY, AND PRIVILEGE
3.01 Integrity
3.02 Impartiality and Fairness
3.03 Avoidance of Conflicts of Interest
10.01 Knowledge of Legal Standards
10.02 Release of Information
10.03 Access to Information
10.04 Acquiring Third Party Information
10.05 Use of Case Materials in Teaching, Continuing
Education, and Other Scholarly Activities
4. COMPETENCE
4.01 Scope of Competence
4.02 Gaining and Maintaining Competence
4.03 Representation of Competencies
4.04 Knowledge of the Legal System and the Legal Rights of
Individuals
4.05 Knowledge of the Scientific Foundation for Testimony and
Sworn Statements
4.06 Knowledge of the Scientific Foundation for Teaching and
Research
4.07 Considering the Impact of Personal Beliefs and Experience
4.08 Appreciation of Individual Differences
4.09 Appropriate Use of Services and Products
11. METHODS AND PROCEDURES
11.01 Use of Appropriate Methods
11.02 Use of Multiple Sources of Information
11.03 Opinions Regarding Persons Not Examined
12. ASSESSMENT
12.01 Focus on Legally Relevant Factors
12.01.01 Assessment of Functional Abilities
12.01.02 Use of Diagnostic Classification Procedures
12.02 Appropriate Use of Assessment Procedures
12.04 Providing Assessment Feedback
12.05 Documentation and Compilation of Data Considered
12.06 Provision of Documentation
12.07 Record Keeping
5. DILIGENCE
5.01 Provision of Services
5.02 Responsiveness
5.03 Communication
5.04 Availability
6. RELATIONSHIPS
13. PROFESSIONAL AND OTHER PUBLIC
COMMUNICATIONS
6.01 Responsibilities to Retaining Parties
6.02 Multiple Relationships
6.02.01 Therapeutic-Forensic Role Conflicts
6.02.02 Expert Testimony by Practitioners Providing
Therapeutic Services
6.02.03 Provision of Forensic Therapeutic Services
6.03 Provision of Emergency Mental Health Services
13.01 Accuracy, Fairness, and Avoidance of Deception
13.02 Differentiating Observations, Inferences, and
Conclusions
13.03 Disclosing Sources of Information and Bases of Opinions
13.04 Comprehensive and Accurate Presentation of Opinions in
Reports and Testimony
13.05 Commenting Upon Other Professionals and Participants
in Legal Proceedings
13.06 Out of Court Statements
13.07 Commenting Upon Legal Proceedings
1
APPENDIX I: BACKGROUND OF THE GUIDELINES AND
THE REVISION PROCESS
A.
B.
C.
D.
E.
F.
History of the Guidelines
Revision Process
Need for the Guidelines
Developers and Support
Background Literature
Current Status
APPENDIX II: DEFINITIONS AND TERMINOLOGY
SUBMIT COMMENTS REGARDIND THIS DRAFT TO:
[email protected]
OR
Randy Otto, PhD
FMHI
13301 N. 30th St.
Tampa, FL 33612
(F): 813-974-6411
When submitting comments please identify the specific section
you are referencing (e.g., 7.01, 8.03.03) and provide
recommended alternative language when appropriate.
2
disability determination proceedings; offering
expert opinion about psychological issues in the
form of amicus briefs or testimony to judicial,
legislative or administrative bodies; acting in an
adjudicative capacity; serving as a trial consultant
or otherwise offering expertise to attorneys, the
courts, or others; conducting research in
connection with, or in the anticipation of,
litigation; or involvement in educational activities
of a forensic nature.
SPECIALTY GUIDELINES FOR
FORENSIC PSYCHOLOGY
THIRD DRAFT
RELEASED FEBRUARY 27, 2008
1. INTRODUCTION
1.01 History of the Specialty Guidelines for
Forensic Psychology
This document replaces the 1991 Specialty
Guidelines for Forensic Psychologists which was
approved by the American Psychology-Law
Society, Division 41 of the American
Psychological Association (APA) and the
American Board of Forensic Psychology. The
current revision has also been approved by the
Council of Representatives of the American
Psychological Association. Appendix I includes a
discussion of the revision process, enactment, and
current status of these Guidelines.
Psychological practice is not considered forensic
solely because the conduct takes place in, or the
product is presented in, a tribunal or other judicial,
legislative, or administrative forum. Similarly,
when a party (such as a civilly or criminally
detained individual) or another individual (such as
a child whose parents are involved in divorce
proceedings) is ordered into treatment with a
practitioner, that treatment is not necessarily the
practice of forensic psychology. Psychological
testimony that is solely based on the provision of
psychotherapy and does not include opinions on
psycholegal matters is not ordinarily considered
forensic practice.
1.02 Definitions and Terminology
Appendix II includes definitions and terminology
as used for the purposes of these Guidelines.
For the purposes of these Guidelines, “forensic
practitioner” refers to a psychologist when
engaged in the practice of forensic psychology as
described above. Such professional conduct is
considered forensic from the time the practitioner
reasonably anticipates or agrees to, or is legally
mandated to, provide expertise on an explicitly
psycholegal issue.
1.03 Nature of Forensic Psychology
For the purposes of these Guidelines, forensic
psychology refers to all professional practice by
any psychologist working within any subdiscipline of psychology (e.g., clinical,
developmental, social, cognitive) when the
intended purpose of the service is to apply the
scientific, technical, or specialized knowledge of
psychology to the law and to use that knowledge
to assist in solving legal, contractual, and
administrative problems. Application of the
Guidelines does not depend on the practitioner’s
typical areas of practice or expertise, but rather on
the service provided in the case at hand. These
Guidelines apply in all matters in which
practitioners provide forensic psychological
expertise to judicial, administrative, and
educational systems including, but not limited to
examining or treating persons in anticipation of or
subsequent to legal, contractual, administrative, or
1.04 Services and Functions
Forensic practitioners recognize that the nature of
forensic services and functions may be unfamiliar
to many service recipients of their services;
substantial rights, liberties, and properties may be
at risk in forensic matters, and some may
incorrectly believe that forensic practitioners are
retained to provide partisan advocacy.
The provision of forensic services and functions
may include a wide variety of psycholegal roles
and functions. As researchers, forensic
practitioners may participate in the collection and
3
dissemination of data that are relevant to various
legal issues. As advisors, forensic practitioners
may provide an attorney with an informed
understanding of the role that psychology can
play in the attorney’s case. As consultants,
forensic practitioners may explain the practical
implications of relevant research, examination
findings, and the opinions of other psycholegal
experts. As examiners, forensic practitioners may
assess an individual’s functioning and report
findings to the attorney, a legal tribunal, an
employer, an insurer, or others. As treatment
providers, forensic practitioners may provide
therapeutic services tailored to the issues and
context of a legal proceeding, or based on a court
order that explicitly defines treatment goals. As
mediators or negotiators, forensic practitioners
may serve in a third-party neutral role and assist
parties in resolving disputes. As arbiters, special
masters, or case managers with decision-making
authority, forensic practitioners may serve parties,
attorneys, and the courts.
2.03 Goals
The goals of the Guidelines are to improve the
quality of forensic psychological services;
enhance the practice and facilitate the systematic
development of forensic psychology; encourage a
high level of quality in professional practice; and
encourage forensic practitioners to acknowledge
and respect the rights of those whom they serve.
2.04 Professional Discretion and Judgment
Guidelines differ from practice standards and
other required codes of conduct. Standards are
mandatory and may be accompanied by an
enforcement mechanism; guidelines reflect
aspirations for accomplishment and are not
accompanied by an enforcement mechanism.
For forensic practitioners who are members of the
APA, the Ethical Principles of Psychologists and
Code of Conduct (EPPCC), and not the
Guidelines, contain rules of conduct enforceable
by the APA. Such rules of the EPPCC define the
proper conduct of psychologists, including
forensic practitioners, for purposes of professional
discipline. In contrast to the EPPCC, the
Guidelines are advisory and are to be understood
only as providing further guidance for forensic
practitioners and others.
2. NATURE AND SCOPE OF THE
GUIDELINES
2.01 Intended Users
These Guidelines are intended for use by
psychologists when engaged in the practice of
forensic psychology as described above (1.02,
1.03, and 1.04), and may also provide guidance on
professional conduct to the legal system, other
organizations, and professions.
The Guidelines are not mandatory or exhaustive
and may not be applicable to every forensic
situation or jurisdiction. As such, the Guidelines
are advisory in areas in which the forensic
practitioner has discretion to exercise professional
judgment that is not prohibited or mandated by the
EPPCC or by applicable law, rules, or regulations.
The Guidelines neither add obligations to nor
eliminate obligations from the EPPCC, but
provide additional guidance for psychologists.
2.02 Aspirational Model
The Guidelines are aspirational in nature and
recommend professional behavior and conduct for
forensic practitioners. They are intended to
inform the judgment of forensic psychologists and
not replace it. Forensic practitioners adhere to
applicable codes of ethics and laws, rules and
regulations; and consider all appropriate sources
of professional authority to inform their behavior
in forensic settings.
The modifiers used in the Guidelines (e.g.,
reasonably, appropriate, potentially) are included
in order to allow professional judgment on the part
of forensic practitioners; ensure applicability
across the broad range of activities conducted by
forensic practitioners; and reduce the likelihood of
enacting an inflexible set of Guidelines that would
4
be unable to evolve as conceptualizations of
generally accepted and desirable practices evolve.
competent” and “best possible” are usually
different points along that continuum.
The use of these modifiers, and the recognition of
the role of professional discretion and judgment,
also reflects that forensic practitioners are likely to
encounter facts and circumstances not anticipated
by the Guidelines and they may have to act upon
uncertain or incomplete evidence. The Guidelines
may provide general or conceptual guidance in
such circumstances. The Guidelines do not,
however, exhaust the legal, professional, moral,
and ethical considerations that inform forensic
practitioners, for no complex activity can be
completely defined by legal rules, codes of
conduct, and aspirational guidelines.
The Guidelines are designed to be national in
scope and are intended to be consistent with state
and federal law. Although their scope may be
more limited outside of the United States, they
nonetheless may provide some direction that
informs forensic practitioners in other countries
and jurisdictions.
3. RESPONSIBILITIES
3.01 Integrity
Forensic practitioners seek to promote accuracy,
honesty, and truthfulness in the science, teaching,
and practice of forensic psychology and they resist
partisan pressures to provide services in any ways
that might tend to be misleading or inaccurate.
2.05 Limitations
The Guidelines are not intended to serve as a basis
for disciplinary action or civil liability. The
standard of care is established by a competent
authority not by the Guidelines. The Guidelines
may assist in establishing standards of care in their
attempt to identify the best possible practice, but
they do not, in and of themselves, identify what
other conduct may also be competent practice and
what may be the standard of care in a particular
case. No ethical, licensure, or other administrative
action or remedy, nor any other cause of action,
should be taken solely on the basis of a forensic
practitioner acting in a manner consistent or
inconsistent with these Guidelines. Whether a
forensic practitioner has acted in a manner
contrary to that advised in these Guidelines should
not, in and of itself, determine whether the
forensic practitioner is liable in a legal action or
acted unethically.
3.02 Impartiality and Fairness
When offering expert opinion to be relied upon by
a decision maker, when providing forensic
therapeutic services, or when teaching or
conducting research, forensic practitioners
demonstrate commitment to the goals of accuracy,
objectivity, fairness, and independence. Forensic
practitioners recognize the adversarial nature of
the legal system and strive to treat all participants
and weigh all data, opinions, and rival hypotheses
objectively.
When conducting forensic examinations, forensic
practitioners are unbiased and nonpartisan, and
they eschew partisan presentation of
unrepresentative, incomplete, or inaccurate
evidence that might mislead finders of fact. This
guideline does not preclude forceful representation
of the data and reasoning upon which a conclusion
or professional product is based.
In cases in which a competent authority references
the Guidelines when formulating standards, the
Guidelines advise that the authority consider that
the Guidelines attempt to identify a high level of
quality in practice in common forensic contexts;
competent practice is defined as the conduct of a
reasonably prudent forensic practitioner engaged
in similar activities in similar circumstances;
professional conduct evolves and may be viewed
along a continuum of adequacy, and “minimally
When providing educational services, forensic
practitioners represent alternative perspectives,
including data, studies, or evidence on both sides
of the question, in an accurate, fair and
5
When conducting research, forensic practitioners
represent results in a fair and objective manner.
Forensic practitioners utilize research designs and
scientific methods that adequately and fairly test
the questions at hand, and they resist partisan
pressures to develop designs or report results in
ways that might be misleading or unfairly bias the
results of a test, study, or evaluation.
a particular matter, forensic practitioners consider
factors including the relative complexity and
specialized nature of the service required, their
relevant training and experience, the preparation
and study they are able to devote to the matter,
and the opportunities for consultation with a
professional of established competence in the
subject matter in question. Even with regard to
subjects in which they are competent, forensic
practitioners may choose to consult with other
experts in particularly complex or contentious
matters.
3.03 Avoidance of Conflicts of Interest
4.02 Gaining and Maintaining Competence
Forensic practitioners refrain from taking on a
professional role when personal, scientific,
professional, legal, financial, or other interests or
relationships could reasonably be expected to
impair their objectivity, competence, or
effectiveness in providing forensic services.
Competence can be acquired through various
combinations of education, training, supervised
experience, consultation, study, and professional
experience. Forensic practitioners planning to
provide services, teach, or conduct research
involving populations, areas, techniques, or
technologies that are new to them undertake
relevant education, training, supervised
experience, consultation, or study.
professional manner, and demonstrate a
willingness to weigh and present all views, facts,
or opinions impartially.
Forensic practitioners identify, make known, and
address real or apparent conflicts of interest in an
attempt to maintain the public confidence and
trust, discharge professional obligations, and
maintain responsibility, objectivity, and
accountability. Whenever possible, such conflicts
are revealed to all parties as soon as they become
known to the psychologist. Forensic practitioners
consider whether a prudent and competent
forensic practitioner engaged in similar
circumstances would determine that the ability to
make a proper decision is likely to become
impaired under the immediate circumstances.
Forensic practitioners make ongoing efforts to
develop and maintain their competencies. To
maintain the requisite knowledge and skill,
forensic practitioners keep abreast of
developments in the fields of psychology and the
law and engage in continuing study and education.
4.03 Representation of Competencies
Consistent with the EPPCC, forensic practitioners
adequately and accurately inform all recipients of
their services (e.g., attorneys, tribunals) about
relevant aspects of the nature and extent of their
experience, training, credentials, and
qualifications, and how they were obtained.
When a conflict of interest is determined to be
manageable, continuing services are provided and
documented in a way to manage the conflict,
maintain accountability, and preserve the trust of
relevant others (also see Section 6.02).
4.04 Knowledge of the Legal System and the
Legal Rights of Individuals
4. COMPETENCE
Forensic practitioners are responsible for a
fundamental and reasonable level of knowledge
and understanding of the legal and professional
standards, laws, rules, and precedents that govern
their participation in legal proceedings and that
4.01 Scope of Competence
Forensic practitioners seek to provide services in a
manner consistent with the standards of their
profession. In determining whether to proceed in
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guide the impact of their services on service
recipients.
4.07 Considering the Impact of Personal Beliefs
and Experience
Forensic practitioners manage their professional
conduct in a manner that does not threaten or
impair the rights of affected individuals. They
consult with, and refer others to legal counsel on
matters of law. Although, they do not provide
formal legal advice or opinions, forensic
practitioners may provide legal information to
examinees or others based on their knowledge and
experience. They distinguish this advice from
legal opinions, however, and encourage
consultation with attorneys as appropriate.
Forensic practitioners recognize that their own
attitudes, values, beliefs, opinions, or biases may
have the effect of diminishing their ability to
practice in a competent and impartial manner.
Under such circumstances, forensic practitioners
take steps to correct or limit such effects, decline
participation in the matter, or limit their
participation in a manner that is consistent with
professional obligations.
4.05 Knowledge of the Scientific Foundation for
Testimony and Other Sworn Statements
When scientific or professional knowledge in the
discipline of psychology establishes that an
understanding of factors associated with age,
gender, gender identity, race, ethnicity, culture,
national origin, religion, sexual orientation,
disability, language, socioeconomic status, or
other relevant individual differences affects
implementation or use of their services or
research, forensic practitioners gain the training,
experience, consultation, or supervision necessary.
They do not engage in unfair discrimination based
on such factors or on any basis proscribed by law.
They take steps to correct or limit the effects of
such factors on their work, decline participation in
the matter, or limit their participation in a manner
that is consistent with professional obligations.
Forensic practitioners offer opinions to the court
in those areas for which they are competent to do
so, based on adequate knowledge, skill,
experience, and education. When providing
opinions and testimony that are based on novel or
emerging principles and methods forensic
practitioners, when possible, make known the
limitations of these principles and methods.
Forensic practitioners typically provide opinions
and testimony that are sufficiently based upon
facts or data and on adequate scientific foundation,
the product of reliable principles and methods, and
based on principles and methods that have been
applied reliably to the facts of the case.
4.9 Appropriate Use of Services and Products
4.06 Knowledge of the Scientific Foundation for
Teaching and Research
Forensic practitioners make a reasonable effort to
guard against misuse of their services and exercise
professional discretion in determining the extent
and means by which such misuses are addressed.
Consistent with the EPPCC (7.03), forensic
practitioners engage in teaching and research
activities in which they have adequate knowledge,
experience, and education. They adhere to
recognized and accepted principles of research
design and scientific method, and acknowledge
substantial relevant limitations and caveats
inherent in their procedures and conclusions.
5. DILIGENCE
5.01 Provision of Services
Forensic practitioners make explicit agreements
which define the scope of, timeframe of, and
compensation for their services. In the event that
a client breaches the contract or behaves in a
manner that would compromise the ethical
obligations of the forensic practitioner, the
7
terminates when the matter has been resolved,
when anticipated services have been provided, or
when the retainer agreement has been violated.
Doubts about whether a valid and binding
relationship still exists are clarified by the forensic
practitioner so that the client will not mistakenly
assume that the previously existing agreement
remains in effect.
forensic practitioner may terminate the
relationship. Forensic practitioners act with
reasonable diligence and promptness in providing
agreed-upon and reasonably anticipated services.
Forensic practitioners are not bound, however, to
provide services not reasonably anticipated when
retained, nor to provide every possible aspect or
variation of service. Instead, forensic practitioners
exercise professional discretion in determining the
extent and means by which services are provided
and agreements are fulfilled.
6. RELATIONSHIPS
Whether a forensic practitioner-client relationship
exists for any specific purpose depends on the
circumstances and is determined by a number of
factors which may include the information
exchanged between the potential client by the
forensic practitioner prior to, or at the initiation of
any contact or service, the nature of the
interaction, and the purpose of the interaction.
5.02 Responsiveness
Forensic practitioners manage their workload so
that services can be provided thoroughly,
competently, and promptly. Acting with
reasonable promptness, however, does not require
the forensic practitioner to acquiesce to service
demands that could not have been reasonably
anticipated at the time the service was requested,
nor does it require the forensic practitioner to
provider services if the client has not acted in a
manner consistent with existing agreements,
including payment of fees.
In their work, forensic practitioners establish
relationships with those who retain their services
(e.g., retaining parties, employers, insurers, the
court) and those with whom they interact (e.g.,
examinees, collateral contacts, research
participants, students). Forensic practitioners
recognize that associated obligations and duties
vary as a function of the nature of the relationship.
5.03 Communication
Forensic practitioners keep their clients reasonably
informed about the status of their services, comply
with their clients’ reasonable requests for
information, and consult with their clients about
any substantial limitation on their conduct or
performance that may arise when they reasonably
believe that their clients anticipate a service that
may not be consistent with the Guidelines.
Forensic practitioners attempt to keep their clients
reasonably informed regarding new facts,
opinions, or other potential evidence that may be
salient.
6.01 Responsibilities to Retaining Parties
Most responsibilities to the retaining party attach
only after the retaining party has requested and the
forensic practitioner has agreed to render
professional services, and an agreement regarding
compensation has been reached. Forensic
practitioners are aware that there are some
responsibilities, such as privacy, confidentiality,
and privilege that may attach when the forensic
practitioner agrees to consider whether a forensic
practitioner-retaining party relationship shall be
established. Forensic practitioners, prior to
entering into a contract, may direct the potential
retaining party not to reveal any confidential or
privileged information as a way of protecting the
retaining party’s interest in case a conflict exists as
a result of pre-existing relationships.
5.04 Availability
Unless the forensic practitioner-client relationship
is terminated pursuant to the retainer agreement,
the forensic practitioner carries through to
conclusion all matters undertaken for a client.
When a forensic practitioner’s employment is
limited to a specific matter, the relationship
8
forensic practitioners disclose the potential risk and
make every effort to refer the request to another
qualified provider. If referral is not possible, the
forensic practitioner proceeds with great caution and
considers the risks and benefits to all parties and
to the legal system or entity likely to be impacted,
the possibility of separating each service widely in
time, seeking judicial review and direction, and
consulting with knowledgeable colleagues. When
providing both forensic and therapeutic services
forensic practitioners act to minimize the potential
negative effects of these circumstances on the
rights of the party; on privacy, confidentiality, and
privilege; and on the processes of treatment and
evaluation.
At the initiation of any request for service,
forensic practitioners clarify the nature of the
relationship and the services to be provided
including the role of the forensic practitioner (e.g.,
trial consultant, forensic examiner, treatment
provider, expert witness, research consultant);
which person or entity is the client; the probable
uses of the services provided or information
obtained; and any limitations to privacy,
confidentiality, or privilege.
6.02 Multiple Relationships
A multiple relationship occurs when a forensic
practitioner is in a professional role with a person
and, at the same time or at a subsequent time, is in
a different role with the same person; is involved
in a personal, fiscal, or other relationship with an
adverse party; at the same time is in a relationship
with a person closely associated with or related to
the person with whom the forensic practitioner has
the professional relationship; or offers or agrees to
enter into another relationship in the future with
the person or a person closely associated with or
related to the person.
6.02.02 Expert Testimony by Practitioners
Providing Therapeutic Services
Providing expert testimony about a patient who is
a participant in a legal matter does not necessarily
involve the practice of forensic psychology even
when that testimony explicitly embraces a
psycholegal issue that is before the decisionmaker. For example, providing testimony on
matters such as a patient’s reported history or
other statements, mental status, diagnosis, and
treatment provided, as well as expert opinion
regarding the patient’s response to treatment,
prognosis, and likelihood of relapse or remission
would not ordinarily be considered forensic
practice even when the testimony is related to a
psycholegal issue before the decision-maker.
Rendering opinions and providing testimony about
a person on psycholegal issues (e.g., criminal
responsibility, legal causation, proximate cause,
trial competence, testamentary capacity, the
relative merits of parenting arrangements) would
ordinarily be considered the practice of forensic
psychology.
Forensic practitioners recognize the potential
conflicts of interest and threats to objectivity
inherent in multiple relationships with attorneys,
judges, parties, examinees, patients, and other
participants to a legal proceeding. Forensic
practitioners recognize that some personal and
professional relationships may interfere with their
ability to practice in a competent and objective
manner and they seek to minimize any detrimental
effects by avoiding involvement in such matters
whenever feasible or limiting their assistance in a
manner that is consistent with professional
obligations.
6.02.01 Therapeutic-Forensic Role Conflicts
Forensic practitioners provide testimony only on
those issues for which they have adequate
foundation and only when a reasonable forensic
practitioner engaged in similar circumstances
would determine that the ability to make a proper
decision is unlikely to be impaired. As with
testimony regarding forensic examinees, the
testimony identifies any substantial lack of
Providing forensic and therapeutic psychological
services to the same individual or closely related
individuals is considered a multiple relationship
which risks impairing objectivity, or causing
exploitation or other harm. Therefore, when
requested or ordered to provide either concurrent or
sequential forensic and therapeutic services,
9
their objectivity, competence, or effectiveness, or
otherwise risk exploitation or harm to the
individual or the legal system.
corroboration or other substantive limitation that
may affect the reliability and validity of the fact or
opinion offered and communicates these to the
decision maker.
7. FEES
6.02.03 Provision of Forensic Therapeutic
Services
7.01 Determining Fees
Although some therapeutic services can be
considered forensic in nature, that therapeutic
services are ordered by the court or are delivered
to someone involved in litigation does not
necessarily make them forensic.
When determining fees forensic practitioners may
consider salient factors such as the experience of
the forensic practitioner performing the service,
the time and labor required, the novelty and
difficulty of the questions involved, the skill
required to perform the service, the fee
customarily charged for similar forensic services,
the likelihood that the acceptance of the particular
employment will preclude other employment, the
time limitations imposed by the client or
circumstances, and the nature and length of the
professional relationship with the client.
In determining whether a therapeutic service
should be considered the practice of forensic
psychology, it may be helpful for psychologists
to consider the potential impact of the legal
context on treatment, the potential for treatment
to impact the psycholegal issues involved in the
case, and whether another reasonable
psychologist in a similar position would
consider the service to be forensic and these
Guidelines to be applicable.
7.02 Fee Arrangements
Forensic practitioners avoid undue influence that
might result from financial compensation or other
gains. Because of the threat to objectivity
presented by the acceptance of contingent fees and
associated legal prohibitions, forensic practitioners
avoid providing professional services on the basis
of contingent fees.
Therapeutic services can have an important effect
on current or future legal proceedings. Forensic
practitioners are encouraged to consider these
effects and minimize any unintended or negative
effects on such proceedings or therapy when they
provide therapeutic services in forensic contexts.
Letters of protection, financial guarantees, and
other security for payment of fees in the future are
not considered contingent fees unless payment is
promised to originate from future proceeds or
settlement benefits from the matter. Future
payment that is guaranteed in a manner not
dependent on the outcome of the matter does not
constitute a contingent fee. Such letters and other
fee agreements are to be considered part of the
forensic practitioner’s billing records.
6.03 Provision of Emergency Mental Health
Services to Persons Being Examined
When providing forensic examination services an
emergency may arise which requires the forensic
practitioner to provide therapeutic services to the
examinee in order to prevent imminent harm to the
examinee or others. In such cases, the forensic
practitioner limits disclosure of information to that
which is consistent with applicable law, code,
statute, and order of the court, and informs the
retaining attorney, legal representative, or the
court in a an appropriate manner. Upon providing
emergency treatment services to examinees,
forensic practitioners determine whether forensic
examination services can be provided after
considering whether doing so is likely to impair
8. INFORMED CONSENT, NOTIFICATION,
AND ASSENT
Because substantial rights, liberties, and properties
are often at risk in forensic matters and because
the methods and procedures of forensic
practitioners are complex and may not be
10
accurately anticipated by the recipients of forensic
services, forensic practitioners inform service
recipients about the nature and parameters of the
services to be provided.
8.03 Communication with Forensic Examinees
Forensic practitioners disclose to the examinee the
purpose, nature, and anticipated use of the
examination; who will have access to the
information; associated limitations on privacy,
confidentiality, and privilege including who is
authorized to release or access the information
contained in the forensic practitioner’s records; the
voluntary or involuntary nature of participation,
including potential consequences of nonparticipation, if known; and, if the cost of the
service is the responsibility of the examinee, the
anticipated cost.
8.01 Timing and Substance
Forensic practitioners notify clients, examinees,
and others who are the recipients of forensic
services as soon as is feasible regarding the
provision of all reasonably anticipated forensic
services and all relevant professional conduct.
In determining what information to impart,
forensic practitioners consider a variety of factors
including the person’s experience or training in
psychological and legal matters of the type
involved and whether the person is represented by
counsel. When questions or uncertainties remain
after the forensic practitioner has made the effort
to communicate the necessary information,
forensic practitioners recommend the person seek
legal advice regarding the possible consequences
of the forensic services.
8.03.01 Persons Not Ordered or Mandated to
Undergo Examination
If the examinee is not ordered by the court to
participate in a forensic examination, the forensic
practitioner obtains his or her informed consent.
If the examinee declines to proceed after being
notified of the nature and purpose of the forensic
examination, the forensic practitioner postpones
the examination, advises the examinee to contact
his or her attorney, and notifies the retaining
attorney about the examinee’s unwillingness to
proceed.
8.02 Communication with Those Seeking to
Retain a Forensic Practitioner
As part of the initial process of being retained, or
as soon thereafter as previously unknown
information becomes available, forensic
practitioners disclose to the retaining party
information that would reasonably be anticipated
to affect a decision to retain or continue the
services of the forensic practitioner. This
disclosure includes all information that the
reasonably prudent recipient of service would
desire to know and may include, but is not limited
to the fee structure for anticipated services; prior
and current personal or professional activities,
obligations and relationships that would
reasonably lead to the fact or the appearance of a
conflict of interest; the forensic practitioner’s
knowledge, skill, experience, and education
relevant to the forensic services being considered,
including any significant limitations; and the
substantial scientific bases and limitations of the
methods and procedures which are expected to be
employed.
8.03.02 Persons Ordered or Mandated to
Undergo Examination or Treatment
If the examinee is ordered by the court to
participate, the forensic practitioner can conduct
the examination over the objection, and without
the consent, of the examinee. If the examinee
declines to proceed after being notified of the
nature and purpose of the forensic examination,
the forensic practitioner may, as appropriate,
attempt to conduct the examination, postpone the
examination, advise the examinee to contact his or
her attorney, or notify the retaining party about the
examinee’s unwillingness to proceed.
When an individual is ordered to undergo
treatment but the goals of treatment are
determined by a legal authority rather than the
individual receiving services, the forensic
practitioner informs the service recipient of the
11
nature and purpose of treatment, and any
limitations on confidentiality and privilege.
the potentially competing rights and interests of
the retaining party with the inappropriateness of
suppressing data, for example, by agreeing to
report the study’s data without in any way
identifying the jurisdiction in which the study took
place.
8.03.03 Persons Lacking Capacity to Provide
Informed Consent
For examinees adjudicated or presumed by law to
lack the capacity to provide informed consent for
the anticipated forensic service, the forensic
practitioner nevertheless provides an appropriate
explanation (as indicated above), seeks the
examinee's assent, and obtains appropriate
permission from a legally authorized person, as
permitted or required by law.
9. CONFLICTS IN PRACTICE
In forensic psychology practice, conflicting
responsibilities and demands may be encountered.
When conflicts occur, forensic practitioners
maintain a disciplined, fair, and professional
attitude toward all persons involved. When
resolving conflicts, forensic practitioners act
transparently and are guided by the law, the
EPPCC, these Guidelines, and their understanding
of their relationship to the profession and to the
legal system.
For examinees whom the forensic practitioner has
concluded lack capacity to provide informed
consent to a proposed, non-court-ordered service,
but who have not been adjudicated as lacking such
capacity, the forensic practitioner takes reasonable
steps to protect their rights and welfare. This may
be accomplished by suspending the proposed
service or notifying the examinee’s attorney or
retaining party.
9.01 Conflicts with Legal Authority
When their responsibilities conflict with law,
regulations, or other governing legal authority,
forensic practitioners make known their
commitment to the EPPCC and Guidelines, and
take steps to resolve the conflict. When the
conflict cannot be resolved via such means,
forensic practitioners may adhere to the
requirements of the law, regulations, or other
governing legal authority, but only to the extent
required. In situations where the EPPCC or
Guidelines may be in conflict with the
requirements of law, attempts to resolve the
conflict are made in accordance with the
procedures set forth below.
8.04 Communication with Collateral Sources of
Information
Forensic practitioners disclose to all collateral
sources of information which includes who has
retained or employed the forensic practitioner; the
nature, purpose, and intended use of the forensic
examination or other procedure; associated limits
on privacy, confidentiality, and privilege; and
whether their participation is voluntary.
8.05 Communication in Research Contexts
9.02 Conflicts with Organizational Demands
When engaging in research or scholarly activities
conducted as a service to a client in a legal
proceeding, forensic practitioners clarify any
anticipated further use of such research or
scholarly product, disclose their role in the
resulting research or scholarly products, and
obtain whatever consent or agreement is required.
In advance of any scientific study, forensic
practitioners negotiate the circumstances under
and manner in which the results may be
promulgated. The forensic practitioner balances
When the demands of an organization with which
they are affiliated or for whom they are working
conflict with the EPPCC or Guidelines, forensic
practitioners clarify the nature of the conflict,
make known the recommendations of the EPPCC
and Guidelines, and to the extent feasible, resolve
the conflict in a way consistent with the
Guidelines.
12
limit the privacy, confidentiality, or privilege that
may attach to their services, or their
documentation of data reviewed and relied upon.
Forensic practitioners have a reasonable
understanding and awareness of these rules and
regulate their conduct in accordance with them.
9.03 Conflicts with Fellow Professionals
When an apparent or potential ethical or practice
standards violation has caused, or is likely to
cause, substantial harmed, forensic practitioners
take action appropriate to the situation and
consider a number of factors including the nature
and the immediacy of the potential harm;
applicable privacy, confidentiality, and privilege;
how the rights of the relevant parties may be
affected by a particular course of action; and any
legal or ethical obligations. Steps to resolve
perceived ethical conflicts may include, but are
not limited to, obtaining the consultation of
knowledgeable colleagues, obtaining the advice of
independent counsel, and conferring directly with
the attorneys involved.
10.02 Release of Information
Forensic practitioners comply with properly
noticed and served subpoenas or court orders
directing release of records, or other legally proper
consent from duly authorized persons, unless there
is a legally valid reason to offer an objection.
When in doubt about an appropriate response or
course of action, forensic practitioners may seek
assistance from the retaining party, retain and seek
legal advice from their own attorney, or formally
notify the drafter of the subpoena of their
uncertainty.
When forensic practitioners believe that there may
have been an ethical violation by another
professional, an attempt is made to resolve the
issue by bringing it to the attention of that
individual, if that attempt does not violate any
rights or privileges that may be involved, and if an
informal resolution appears appropriate. If this
does not result in a satisfactory resolution, the
forensic practitioner may take further action
appropriate to the situation, including
consideration of making a report to third parties of
the perceived ethical violation. In most instances,
in order to minimize unforeseen risks to the
party’s rights in the legal matter, forensic
practitioners will consult with the retaining party
before attempting to resolve a perceived ethical
violation with another professional.
10.03 Access to Information
If requested, forensic practitioners provide the
retaining party access to, and a meaningful
explanation of, all information that is in their
records for the matter at hand, consistent with the
relevant law, applicable codes of ethics and
professional standards, and institutional rules and
regulations. Forensic examinees typically are not
provided access to the forensic practitioner’s
records without the consent of the retaining party.
Access to records by anyone other than the
retaining party is governed by legal process,
usually subpoena or court order, or by explicit
consent of the retaining party. Forensic
practitioners may charge a reasonable fee for the
costs associated with the storage, reproduction,
review, and provision of records.
10. PRIVACY, CONFIDENTIALITY, AND
PRIVILEGE
Forensic practitioners keep private and in
confidence information relating to a client or
retaining party except insofar as disclosure is
consented to by the client or retaining party, or
required or permitted by law.
10.04 Acquiring Collateral and Third Party
Information
When forensic practitioners request information or
records from collateral sources they do so with the
consent of the relevant attorney, the relevant party,
or as a consequence of an order of a court to
conduct the forensic examination or to access the
information being requested.
10.01 Knowledge of Legal Standards
Forensic practitioners make reasonable efforts to
ascertain the legal standards that may affect or
13
data, and they document their efforts to obtain it.
When it is not possible or feasible to examine
individuals about whom they are offering an
opinion, forensic practitioners make clear the
impact of such limitations on the reliability and
validity of their professional products, opinions, or
testimony.
10.05 Use of Case Materials in Teaching,
Continuing Education, and Other Scholarly
Activities
Forensic practitioners using case materials for
purposes of teaching, training, or research present
such information in a fair, balanced, and respectful
manner. They attempt to protect the privacy of
persons by disguising the confidential, personally
identifiable information of all persons and entities
who would reasonably claim a privacy interest;
using only those aspects of the case available in
the public domain; or obtaining consent from the
relevant clients, parties, participants, and
organizations to use the materials for such
purposes (also see Section 13.06).
When conducting record reviews or providing
consultation or supervision, and an individual
examination is not warranted or necessary,
forensic practitioners explain this and the sources
of information on which they are basing their
opinions and recommendations, including the
substantial caveats and limitations to their
opinions and recommendations.
11. METHODS AND PROCEDURES
12. ASSESSMENT
11.01 Use of Appropriate Methods
12.01 Focus on Legally Relevant Factors
Forensic practitioners utilize appropriate methods
and procedures in their work. When providing
examinations, treatment, consultation, educational
activities or scholarly investigations, forensic
practitioners maintain integrity by examining the
issue or problem at hand from all reasonable
perspectives, and actively seeking information that
will differentially test plausible rival hypotheses.
12.01.01 Assessment of Functional Abilities
Forensic examiners assist the trier of fact to
understand evidence or determine a fact in issue,
and they provide information that is most relevant
to the psycholegal issue. In reports and testimony
forensic practitioners typically provide
information about examinees’ functional abilities,
capacities, knowledge, and beliefs, and address
their opinions and recommendations to the
identified psycholegal issues.
11.02 Use of Multiple Sources of Information
Forensic practitioners ordinarily avoid relying
solely on one source of data, and corroborate
important data when possible. When relying upon
data that have not been corroborated, forensic
practitioners acknowledge the uncorroborated
status of that data, any associated strengths and
limitations, and the reasons for relying upon it.
11.03 Opinions Regarding Persons Not
Examined
12.01.02 Use of Diagnostic Classification
Procedures
Forensic practitioners remain sensitive to the
problems posed by using a clinical diagnosis in
forensic contexts and consider and qualify their
opinions and testimony appropriately.
12.02 Appropriate Use of Assessment
Procedures
Forensic practitioners only provide written or oral
evidence about the psychological characteristics of
particular individuals when they have sufficient
information or data to form an adequate
foundation for those opinions or to substantiate
their findings. Forensic practitioners make
reasonable efforts to obtain such information or
Forensic practitioners use assessment procedures
in the manner and for the purposes that are
appropriate in light of the research on or evidence
of their usefulness and proper application. This
includes assessment techniques, interviews, tests,
14
instruments, and other procedures and their
administration, adaptation, scoring, interpreting,
and employing computerized scoring and
interpretation systems.
12.04 Providing Assessment Feedback
Forensic practitioners take reasonable steps to
explain assessment results to the examinee or a
designated representative. In those circumstances
in which communication about assessment results
is precluded, the forensic practitioner explains this
to the examinee in advance.
Assessment in forensic contexts differs from
assessment in therapeutic contexts in important
ways that forensic practitioners take into account
when conducting forensic examinations. Forensic
practitioners consider the strengths and limitations
of employing traditional assessment procedures in
forensic examinations.
Forensic practitioners provide information about
professional work in a manner consistent with
professional and legal standards for the disclosure
of test data or results, interpretation of data, and
the factual bases for conclusions. A full
explanation of the test results and the bases for
conclusions is provided in language that the
intended recipient can understand.
When the validity of an assessment technique has
not been established in the forensic context or
setting in which it is being used, the forensic
practitioner describes the strengths and limitations
of any test results and explains the extrapolation of
this data to the forensic context. Because of the
many differences between forensic and therapeutic
contexts, forensic practitioners are aware and
make known that some examination results may
warrant substantially different interpretation when
administered in forensic contexts.
12.05 Documentation and Compilation of Data
Considered
From the moment they reasonably know that the
data and potential evidence derived from their
services may be subject to discovery or relied
upon by a trier of fact or other decision maker,
forensic practitioners document all data they
consider with enough detail and quality to allow
for reasonable judicial scrutiny and adequate
discovery by all parties. This documentation
includes, but is not limited to, letters and
consultations; notes, recordings, and
transcriptions; assessment and test data, scoring
reports and interpretations; and all other records in
any form or medium that were created or
exchanged in connection with a matter.
Forensic practitioners consider and make known
that forensic examination results can be affected
by factors unique to, or differentially present in,
forensic contexts including response style,
voluntariness of participation, and situational
stress associated with involvement in forensic or
legal matters.
When interpreting assessment results forensic
practitioners consider the purpose of the
assessment as well as the various test factors, testtaking abilities, and other characteristics of the
person being assessed, such as situational,
personal, linguistic, and cultural differences that
might affect their judgments or reduce the
accuracy of their interpretations. Forensic
practitioners identify any significant strengths and
limitations of their procedures and interpretations.
When contemplating third party observation or
audio/video-recording of examinations, forensic
practitioners consider any law which may control
such matters, the need for transparency and
documentation, and the potential impact of
observation or recording on the validity of the
examination, and test security (also see Statement
on Third Party Observers in Psychological Testing
and Assessment: A Framework for Decision
Making, American Psychological Association,
2007).
15
When in their role as expert to the court or other
tribunals, the role of forensic practitioners is to
facilitate understanding of the evidence or dispute.
Forensic practitioners do not distort or withhold
relevant evidence or opinion in reports or
testimony because this is potentially misleading,
and is incompatible with their role as experts to
the court or other tribunals. When responding to
discovery requests and providing sworn testimony,
forensic practitioners have readily available for
inspection all data which they considered,
regardless of whether the data supports their
opinion, subject to and consistent with court order,
relevant rules of evidence, test security issues, and
professional standards.
12.06 Provision of Documentation
Pursuant to proper subpoenas or court orders, or
other legally proper consent from authorized
persons, forensic practitioners make available all
documentation described in 12.06, all financial
records related to the matter, and any other records
including reports (and draft reports if they have
been provided to a party, attorney, or other entity
for review), that might reasonably be related to the
opinions to be expressed.
12.07 Record Keeping
Forensic practitioners establish and maintain a
system of record-keeping and professional
communication that is consistent with law, rules,
and regulations, and that safeguards applicable
privacy, confidentiality, and privileges. Forensic
practitioners maintain all records, notes, and data
they have generated for the full length of time that
is proper for the jurisdiction in which the matter
was heard or the jurisdiction of the forensic
practitioner’s practice, whichever is longer. When
indicated by the extent of the rights, liberties, and
properties that may be at risk, the complexity of
the case, the amount and legal significance of
unique evidence in the care and control of the
forensic practitioner, and the likelihood of future
appeal, forensic practitioners inform the retaining
party of the limits of record-keeping times. If
requested to do so, forensic practitioners maintain
such records until notified that all appeals in the
matter have been exhausted or they send a copy of
any unique components/aspects of the record in
their care and control to the retaining party before
destruction of the record.
When providing reports and other sworn
statements or testimony in any form, forensic
practitioners present their conclusions, evidence,
opinions, or other professional products in a fair
manner Forensic practitioners do not, by either
commission or omission, participate in
misrepresentation of their evidence, nor do they
participate in partisan attempts to avoid, deny or
subvert the presentation of evidence contrary to
their own position or opinion. This principle does
not preclude forceful representation of the data
and reasoning upon which a conclusion or
professional product is based.
13.02 Differentiating Observations, Inferences,
and Conclusions
In their communications forensic practitioners
clearly distinguish observations, inferences, and
conclusions. Forensic practitioners are prepared
to explain the relationship between their expert
opinions and the legal issues and facts of the case
at hand.
13. PROFESSIONAL AND OTHER PUBLIC
COMMUNICATIONS
13.03 Disclosing Sources of Information and
Bases of Opinions
13.01 Accuracy, Fairness, and Avoidance of
Deception
Forensic practitioners affirmatively disclose all
sources of information obtained in the course of
their professional services. Forensic practitioners
affirmatively disclose which information from
Forensic practitioners make reasonable efforts to
ensure that the products of their services, as well
as their own public statements and professional
reports and testimony, are communicated in ways
that promote understanding and avoid deception.
16
which source was considered and relied upon in
formulating a particular conclusion, opinion or
other professional product.
report the representations, opinions, and
statements of clients, examinees, or other
participants in a fair and objective manner.
13.04 Comprehensive and Accurate
Presentation of Opinions in Reports and
Testimony
13.06 Out of Court Statements
Ordinarily, forensic practitioners avoid making
detailed public (out-of-court) statements about
legal proceedings in which they have been
involved. However, sometimes public statements
may serve important goals such as educating the
public about the role of forensic practitioners in
the legal system, the appropriate practice of
forensic psychology, and psychological and legal
issues that are relevant to the matter at hand.
When making public statements, forensic
practitioners refrain from releasing private,
confidential, or privileged information, and
attempt to protect persons from harm, misuse, or
misrepresentation as a result of their statements.
Consistent with relevant law and rules of
evidence, when providing professional reports and
other sworn statements or testimony, forensic
practitioners offer a complete statement of all
relevant opinions that they formed within the
scope of their work on the case, the basis and
reasoning underlying the opinions, the salient data
or other information that was considered in
forming the opinions, and an indication of any
additional evidence that may be used in support of
the opinions to be offered. The specific substance
of forensic reports is determined by the type of
psycholegal issue at hand as well as relevant laws
or rules in the jurisdiction in which the work is
completed.
13.07 Commenting Upon Legal Proceedings
Forensic practitioners address particular legal
proceedings in publications or communications
only to the extent that the information relied upon
is part of a public record or when consent for that
use has been properly obtained from the party
holding any privilege (also see Section 10.05).
Forensic practitioners limit discussion of
background information that does not bear directly
upon the legal purpose of the examination or
consultation. Forensic practitioners avoid offering
information that is irrelevant to the legal purpose
of the services and that does not provide a
substantial basis of support for their product,
evidence, or testimony, except where such
disclosure is required by law.
When offering public statements about specific
cases in which they have not been involved,
forensic practitioners offer opinions for which
there is sufficient information or data and make
clear the limitations of their statements and
opinions resulting from having had no direct
knowledge of or involvement with the case.
13.05 Commenting Upon Other Professionals
and Participants in Legal Proceedings
When evaluating or commenting upon the work
qualifications of other professionals involved in
legal proceedings, forensic practitioners represent
their disagreements in a professional and
respectful tone, and base them on a fair
examination of the data, theories, standards and
opinions of the other expert or party.
SUBMIT COMMENTS REGARDING THIS DRAFT TO:
[email protected]
or
Randy Otto, PhD
FMHI
13301 N. 30th St.
Tampa, FL 33612
(F): 813-974-6411
When describing or commenting upon clients,
examinees, or other participants in legal
proceedings, forensic practitioners do so in a fair
and objective manner. Forensic practitioners
17
automatically distributed to all subscribers. In
addition, [insert number] public meetings were
held throughout the revision process at
conferences sponsored by the American
Psychological Association and the American
Psychology-Law Society.
APPENDIX I: BACKGROUND OF THE
GUIDELINES AND THE REVISION
PROCESS
A. History of the Guidelines
The previous version of the Specialty Guidelines
for Forensic Psychologists (Committee on Ethical
Guidelines for Forensic Psychologists, 1991) was
approved by the American Psychology-Law
Psychological Association, and the American
Board of Forensic Psychology in 1991. The
current revision, now called the Specialty
Guidelines for Forensic Psychology (referred to as
Guidelines throughout this document), replace the
1991 Specialty Guidelines for Forensic
Psychologists.
Upon development of a draft that the Revisions
Committee deemed suitable, the revised
Guidelines were submitted for review to the
Executive Committee of the American
Psychology-Law Society and Division 41 of the
American Psychological Association, and to the
American Academy of Forensic Psychology.
Once the revised Guidelines were approved by
these two organizations, they were submitted to
the American Psychological Association for
review, commentary, and acceptance, consistent
with the American Psychological Association’s
Criteria for Practice Guideline Development and
Evaluation (Committee on Professional Practice
and Standards, 2001) and Rule 30-8. The
Guidelines were adopted by the American
Psychological Association Council of
Representatives on [insert date here].
B. Revision Process
This revision of the Guidelines was coordinated
by the Committee for the Revision of the Specialty
Guidelines for Forensic practitioners, which was
established by the American Academy of Forensic
Psychology and the American Psychology-Law
Society/Division 41 of the American
Psychological Association in 2002 and operated
through 200x. This Committee consisted of two
representatives from each organization, a
Chairperson, and a liaison from APA Division 42.
C. Need for the Guidelines
Professional standards for the ethical practice of
psychology as a discipline are addressed in the
Ethical Principles of Psychologists and Code of
Conduct (American Psychological Association,
2002, hereinafter EPPCC). As such, codes of
ethics are intended to describe standards for
competent and adequate professional conduct. In
contrast to the EPPCC, these Guidelines are
intended to describe the most desirable and
highest level professional conduct for
psychologists when engaged in the practice of
forensic psychology.
This document was revised in accordance with
American Psychological Association Rule 30.08
and the APA policy document Criteria for the
development and evaluation of practice guidelines
(APA, 2001). The Committee posted
announcements regarding the revision process to
relevant electronic discussion lists and
professional publications [insert footnote to all list
servers and publications here]. In addition, an
electronic discussion list devoted solely to issues
concerning revision of the Guidelines was
operated between December 2002 and July 2007,
followed by establishment of an e-mail address in
February 2008. Individuals were invited to
provide input and commentary on the existing
Guidelines and proposed revisions via these
means. Any messages posted to the list were
The Guidelines, although informed by the EPPCC
and meant to be consistent with them, are
designed to be educative and to provide more
specific and thorough guidance to psychologists
who are determining their professional forensic
conduct.
The 1991 Specialty Guidelines for Forensic
Psychologists needed revision due to
18
Professional, Ethical, and Legal Issues Concerning
Interpersonal Violence, Maltreatment, and Related
Trauma; American Psychological Association:
Record Keeping Guidelines; American
Psychological Association: Rights and
Responsibilities of Test Takers: Guidelines and
Expectations; Association for the Treatment of
Sexual Abusers: Professional Code of Ethics;
Association of State & Provincial Psychology
Boards: Supervision Guidelines; Joint Committee
on Testing Practices: Code of Fair Testing
Practices in Education; Mental Health Patient’s
Bill of Rights; National Association of Social
Workers: Code of Ethics; Guidelines for Dealing
with Faculty Conflicts of Commitment and
Conflicts of Interest in Research, the Association
of American Medical Colleges, 1990.
advancements in the field that have taken place
and the need for a broader and more thorough
document that addresses the wide variety of
professional forensic practice areas that have
developed and expanded since the adoption of the
original guidelines.
D. Developers and Support
The Specialty Guidelines for Forensic Psychology
were developed by the American Psychology-Law
Psychological Association, and the American
Academy of Forensic Psychology.
E. Background Literature
Resources reviewed in the development of the
Guidelines include:
F. Current Status
These Guidelines are scheduled to expire [insert
date here]. After this date, users are encouraged to
contact the American Psychological Association
Practice Directorate to confirm that this document
remains in effect.
American Academy of Child & Adolescent
Psychiatry: Code of Ethics; American Board of
Forensic Psychology: Specialty Guidelines for
Forensic Psychologists; American Academy of
Psychiatry & Law: Ethical Guidelines for the
Practice of Forensic Psychiatry; American Bar
Association: Model Rules of Professional
Conduct; American Board of Examiners in
Clinical Social Work: Code of Ethics; American
Psychiatric Association: The Principles of Medical
Ethics With Annotations Especially Applicable to
Psychiatry; American Psychological Association:
Statement on Third Party Observers in
Psychological Testing and Assessment: A
Framework for Decision Making Committee on
Psychological Tests and Assessment American
Psychological Association: Ethical Principles of
Psychologists and Code of Conduct; American
Psychological Association: Guidelines for Child
Custody Evaluations in Divorce Proceedings;
American Psychological Association: Guidelines
for Psychological Evaluations in Child Protection
Matters; American Psychological Association:
Guidelines for Psychotherapy with Lesbian, Gay,
& Bisexual Clients; American Psychological
Association: Guidelines on Multicultural
Education, Training, Research, Practice, and
Organizational Change for Psychologists;
American Psychological Association:
19
APPENDIX II: DEFINITIONS AND
TERMINOLOGY
professional judgment, impartiality, or decisionmaking.
For the purposes of these Guidelines:
Decision-maker refers to the person or entity with
the authority to make a judicial decision, agency
determination, arbitration award, or other
contractual determination after consideration of
the facts and the law.
Appropriate, when used in relation to conduct by
a forensic practitioner means that, according to the
prevailing professional judgment of competent
forensic practitioners, the conduct is apt and
pertinent and is considered befitting, suitable and
proper for a particular person, place, condition, or
function. “Inappropriate” means that, according to
the prevailing professional judgment of competent
forensic practitioners, the conduct is not suitable,
desirable, or properly timed for a particular
person, occasion, or purpose; and may also denote
improper conduct, improprieties, or conduct that
is discrepant for the circumstances.
Examinee refers to a person who is the subject of
a forensic examination for the purpose of
informing a decision maker or attorney regarding
the psychological condition of that examinee.
Forensic Examiner refers to a forensic
practitioner who examines the psychological
condition of a person whose psychological
condition is in controversy or at issue.
Agreement refers to the objective and mutual
understanding between the forensic and the person
or persons seeking the professional service and/or
agreeing to participate in the service. See also
Assent, Consent, and Informed Consent.
Forensic Practice refers to the application of the
scientific, technical, or specialized knowledge of
psychology to the law and the use that knowledge
to assist in resolving legal, contractual, and
administrative disputes.
Assent refers to the agreement, approval, or
permission, especially regarding verbal or
nonverbal conduct, that is reasonably intended and
interpreted as expressing willingness, even in the
absence of unmistakable consent. Forensic
practitioners attempt to secure assent when
consent and informed consent can not be obtained
or when, because of mental state, the examinee
may not be able to consent.
Forensic Practitioner refers to a psychologist
when engaged in forensic practice.
Forensic Psychology refers to all forensic practice
by any psychologist working within any subdiscipline of psychology (e.g., clinical,
developmental, social, cognitive).
Informed Consent denotes the knowledgeable,
voluntary, and competent agreement by a person
to a proposed course of conduct after the forensic
practitioner has communicated adequate
information and explanation about the material
risks and benefits of, and reasonably available
alternatives to, the proposed course of conduct.
Consent refers to agreement, approval, or
permission as to some act or purpose.
Client refers to the attorney, law firm, court,
agency, entity, party, or other person who has
retained, and who has a contractual relationship
with, the forensic practitioner to provide services.
Legal Representative refers to a person who has
the legal authority to act on behalf of another.
Conflict of Interest refers to a situation or
circumstance in which the forensic practitioner’s
objectivity, impartiality, or judgment may be
jeopardized due to a relationship, financial, or any
other interest that would reasonably be expected to
substantially affect a forensic practitioner’s
Party person or entity named in litigation, or who
is involved in, or is witness to, an activity or
relationship that may be reasonably anticipated to
result in litigation.
20
SUBMIT COMMENTS REGARDING THIS DRAFT TO:
Reasonable or Reasonably, when used in relation
to conduct by a forensic practitioner, denotes the
conduct of a prudent and competent forensic
practitioner who is engaged in similar activities in
similar circumstances.
[email protected]
or
Randy Otto, PhD
FMHI
13301 N. 30th St.
Tampa, FL 33612
(F): 813-974-6411
Record or Written Record refers to all notes,
records, documents, memorializations, and
recordings of considerations and communications,
be they in any form or on any media, tangible,
electronic, hand-written, or mechanical, that are
contained in, or are specifically related to, the
forensic matter in question or the forensic service
provided.
Retaining Party refers to the attorney, law firm,
court, agency, entity, party, or other person who
has retained, and who has a contractual
relationship with, the forensic practitioner to
provide services.
Tribunal denotes a court or an arbitrator in an
arbitration proceeding, or a legislative body,
administrative agency, or other body acting in an
adjudicative capacity. A legislative body,
administrative agency or other body acts in an
adjudicative capacity when a neutral official, after
the presentation of legal argument or evidence by
a party or parties, renders a judgment directly
affecting a party’s interests in a particular matter.
Trier of Fact refers to a court or an arbitrator in an
arbitration proceeding, or a legislative body,
administrative agency, or other body acting in an
adjudicative capacity. A legislative body,
administrative agency or other body acts in an
adjudicative capacity when a neutral official, after
the presentation of legal argument or evidence by
a party or parties, renders a judgment directly
affecting a party’s interests in a particular matter.
21
Page 1
EXPERT OPINION: HIPAA and Forensic Practice
Does the Health Insurance Portability and Accountability Act (HIPAA) apply to forensic
practice? In particular, do forensic practitioners incur the obligations of “covered entities,” as
defined in the Privacy Rules (§160.103), a subset of HIPAA? Do our files and the information
we compile constitute Protected Health Information (PHI)? If so, what steps must we take to be
compliant? Do HIPAA obligations attach to some areas of forensic practice, but not others?
Even if forensic practice does not fall under HIPAA regulation, must we still attend to some
issues raised by HIPAA?
Mary Connell is a forensic psychologist in private practice in Fort Worth, Texas. Areas of
primary interest are child custody and access, pre-employment screening, and capital sentence
mitigation. She also engages in some focused assessment of standard of care and related issues
in tort litigation.
Gerald P. Koocher trained as a pediatric psychologist and is Professor and Dean of the School
for Health Studies at Simmons College in Boston. His forensic interests include child custody,
professional liability in mental health practice, substituted judgment in medical situations, and
tort litigation involving damages to children.
Introduction
By definition, competent forensic psychologists pay close attention to rules and
procedures. As of April 14, 2003 most of us had wrestled, at least superficially, with the HIPAA
(45 CFR 160) notification issue and had attempted to determine whether we fell under the rubric
of “covered entities,” who must to comply in full with the regulations. Most of us probably at
least filed for an extension to protract the painful process of trying to become compliant, hoping
for divine guidance or at least word from some authoritative source that HIPAA does not apply
to forensic practice.
Although the following attempt to explore the issue does not represent an official position
of any forensic governing authority, we offer the product of our study in the hope that it will
illuminate some relevant aspects of the question. Our disclaimer: do not rely upon our advice as
the final word on the matter. Each practitioner must engage in a careful analysis of practice
activities that might qualify as “health care” services.
Are you a Covered Health Care Provider?
First, we must determine whether we are “covered entities” based upon whether we
provide health care as defined by HIPAA. The Act defines health care as “Care, services, or
supplies related to the health of an individual. It includes, but is not limited to…Preventive,
diagnostic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or
procedure with respect to the physical or mental condition, or functional status, of an individual
or that affects the structure or function of the body…”( See: 45 C.F.R.160.103; italics added for
emphasis) along with some other non-psychological activities.
Please cite as follows:
Connell, M. & Koocher, G. P. (2003). Expert Opinion: HIPPA and Forensic Practice. American
Psychology Law Society News, 13, 2, 16-19.
Page 2
Forensic services do not constitute health services, we argue, as they are intended to serve
a legal purpose, often in response to court order or mandate, and are not recognized for payment
purposes by third party health insurers. While forensic service may include formulation of a
diagnosis, the purpose is not to provide health care or treatment, but rather, to address a question
before the court. Thus, unless we change roles and agree to take on a treatment function, our
forensic activity does not bring us under HIPAA penumbra.
However, if one does engage in treatment, even if court-mandated, HIPAA regulations
become relevant. Under circumstances of court-mandated treatment, the Privacy Rules exclude
certain materials from the “Access” rights enjoyed by health care service recipients. That is,
information compiled in anticipation of use in civil, criminal, and administrative proceedings is
not subject to the same right of review and amendment as is health care information in general
(§164.524(a)(1)(ii)). Further, inmates do not enjoy the right to gain access and propose
amendment to their treatment files (§164.524(a)(2)(ii)), if obtaining a copy would jeopardize the
health, safety, security, custody, or rehabilitation of the inmate or of other inmates, or the safety
of any officer, employee, or other person at the correctional institution.
The Final Rule does declare information regarding an inmate’s treatment to be PHI, but
there is also recognition of the need of institutional staff to exchange such information without
the inmate’s consent. A provision (§ 164.512(k)(5)) was added to permit this disclosure, without
inmate authorization, for specified health care and other custodial purposes. Former inmates,
parolees, probationers, and supervised releasees are treated as non-inmate individuals with all
rights owed to them.
Finally, the practitioner who engages in both clinical and forensic activities must comply
with HIPAA in non-forensic areas of practice, but may think it appropriate to continue handling
forensic matters as he/she has done historically. In fact, it may mislead recipients of forensic
services to offer a privacy notice using HIPAA language, or to otherwise imply that information
gathered for forensic purposes qualifies as “protected health information.” HIPAA does not
establish a new right, beyond that heretofore enjoyed by litigants through discovery and crossexamination, to access and amend (challenge) file information. Although some forensic
practitioners customarily give litigants the opportunity to review reports for factual correctness,
and then provide addenda to reports if factual errors are brought to their attention, the breadth of
health record alteration rights afforded patients under HIPAA simply does not apply. By our
reading, even if it were to be determined that forensic services are “health care,” the access
language in the privacy rules (§164.524(a)) specifically shelters forensic data from that right of
access, and offering such access remains discretionary.
Forensic requirements have historically exceeded what the Privacy Rule requires
Forensic practitioners who practice thoughtfully and ethically have long exceeded
requirements set forth in the HIPAA privacy rules, particularly with regard to informed consent
for disclosure of information. Since at least 1992, the APA ethics code has specifically required
us to notify clients about limits on confidentiality at the outset of the professional relationship.
Competent forensic practitioners carefully explain limits on confidentiality, potential uses and
likely disclosures of findings and data, and the purpose of the services and alternatives (e.g.,
Page 3
right to remain silent) and document this notification. No competent forensic clinician releases
confidential data without a signed consent or court order, and forensic clinicians keep records of
what was released to whom and when. While HIPAA privacy rules exempt from consideration
the exchange of information for treatment purposes, psychologists, by contrast, have long
respected service recipients’ right to control the release of treatment information.
Useful Tools
The Privacy Rules and the Security Standards (45 CFR §160, 162, and 164), another part
of HIPAA, offer information useful to forensic practitioners, whether or not we are considered to
be covered entities. The Security Standards were intended for anyone “who maintains or
transmits health information” (§ 142.302) so that even if we are not defined as covered entities,
we are responsible to effect reasonable and appropriate safeguards against unnecessary
disclosure of the information we maintain, which of course includes PHI we obtain from covered
entities. These Privacy Rules and Security Standards assist the practitioner in scrutinizing office
practices to: assure that PHI is handled in a way designed to protect the privacy of recipients;
define proper deidentification of case information for research or other purposes when
deidentification is in order; and clearly define the elements required in an authorization to release
information.
Security Standards: The Standards may assist us to identify and correct practices that
inadvertently jeopardize privacy. For example, a walk-through may uncover such inappropriate
practices as having data on computer monitors visible to examinees; office staff making caserelated telephone calls audible to examinees; mailing information or billing statements to
litigants, or leaving scheduling messages, at places in which privacy is compromised; and
transporting files, with case names visible, between home and office. We recommend that
everyone review the Security Standards to avoid inadvertently jeopardizing litigants’ privacy and
to prevent the inadvertent disclosure of PHI.
Deidentification: Another gem in the Privacy Rules includes a clear definition of proper
deidentification of PHI (§164.514(a)(b)), potentially useful when submitting case material for
research or publication. Data are deidentified when stripped of identifiers for the individual and
the individual's relatives, employers or household members, including the obvious identifiers and
others that might not be so apparent. Specific examples include, removing reference to
geographic subdivisions smaller than a state (street address, city, county, precinct), including zip
code or equivalents except for the first 3 digits of the geographic unit to which the zip code
applies if the zip code area contains more than 20,000 people; removal of dates directly related to
the individual, all elements of dates, except year (date of birth, admission date, discharge date,
date of death); deletion of social security numbers; medical record numbers; health plan
numbers; vehicle identification/serial numbers, including license plate numbers; and any other
unique identifying number, characteristic or code. The reader is referred to the text for the full
listing of information to be removed in accomplishing thorough deidentification.
Authorization: Finally, the “authorization to release information” requirements in HIPAA are
quite explicit, and since forensic practitioners rely heavily on information from third party
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sources of information, we remain aware of what such covered entities require by way of
authorization. A proper authorization must include (§ 164.508(c)):
1.
A description of the information to be used or disclosed
2.
The identification of the persons or class of persons authorized to make use or disclosure of
the PHI (we understand this to mean that if you are asking the litigant to complete an
Authorization form, the form must state who is being authorized to disclose material to you.
It might be an individual or a class of individuals such as “all physicians who have provided
treatment)
3.
The identification of the persons or class of persons to whom the covered entity is
authorized to make the use or disclosure
4.
A description of each purpose of the use or disclosure
5.
An expiration date or event
6.
The individual’s signature and date
7.
If signed by a personal representative, a description of his or her authority to act for the
individual.
The authorization should be in plain language, intended to provide the individual with a
clear understanding of what information is to be released, any potential for re-disclosure to
another party or agency, and the purposes for disclosure. A covered entity generally may not
combine an authorization with any other type of document, such as a notice of privacy practices
or a written voluntary consent.
Further, psychotherapy notes are treated distinctly from all other PHI under the HIPAA
privacy rules, and as such, need to be treated uniquely within the authorization. Specifically,
authorizations for use or disclosure of psychotherapy notes may not be combined with another
authorization for the use or disclosure of other kinds of protected health information
(§164.508(b)(3)).
Given these requirements placed upon the covered entities from whom we often seek
information, it would behoove us to develop an authorization form that includes the required
elements, is specific, and is written in plain language.
Employment Evaluations
Employment evaluations, such as pre-employment evaluations, fitness for duty
evaluations, and Worker’s Compensation evaluations, deserve special consideration and are
fraught with complications.
Pre-employment evaluation: Given that the sole purpose of such assessment is to formulate an
opinion to be used by the employer in a non-treatment capacity, a sound argument can be made
that pre-employment assessment does not constitute provision of health care and the information
Page 5
garnered, while potentially relevant to the examinee for treatment purposes, will not be released
for such purposes, and is not PHI.
Fitness for Duty Evaluation: According to HIPAA, the results of a fitness for duty exam may be
considered to be PHI when the provider administers the test, but will not constitute PHI when the
results of the fitness for duty exam are turned over to the employer pursuant to the employee's
authorization (§164.501). Further, there is no right of access and amendment except that
provided by jurisdictional law. Since our only purpose in doing such evaluation is to respond to
a question posed by the employer, and we seek authorization to release the information to the
employer prior to undertaking the evaluation, and would not do the evaluation without such
release (allowable conditionality under §164.508(b)), it seems clear that the information we
gather is not PHI. The person under evaluation understands from the outset that our purpose is
not to treat, but rather to assist the employer in a determining fitness. However, HIPAA does not
specifically exclude providers of such service and does identify the results of such assessment as
PHI, so it is possible that the provider may be considered a covered entity that must comply with
HIPAA requirements. HIPAA declares that although fitness for duty statements may not reveal a
diagnosis, they do relate to a present physical or mental condition of an individual, because they
describe a capacity to perform the physical or mental requirement of a particular job. Further, if
these statements were created or received by a “covered entity,” they are individually identifiable
health information deserving of the privacy protections afforded by the Act. Thus, by HIPAA
reasoning, if we are covered entities, the product of our work is PHI, and if we create PHI,
through, among other activities, diagnosis or assessment, then we are covered entities.
Worker’s Compensation Evaluation: Evaluation for Worker’s Compensation and similar
programs do not fall under HIPAA (§164.512) regulations. Covered entities, however, must
comply with the “minimum necessary” rule regarding PHI unless the law requires disclosure of
the full record. This rule states that one should limit disclosure of PHI to only that information
minimally necessary to facilitate the acceptable purpose for the disclosure.
Summary
The assessments undertaken by forensic practitioners in response to a question before a
court of law are not intended to inform, guide, or provide treatment. Such assessments do not
qualify for most third party health insurance coverage, and thus do not qualify as health care
services. Thus, HIPAA and the privacy rules included therein do not apply, in our opinion, to
forensic assessment. Court-mandated treatment adds complications, but generally occurs under
fairly clear guidelines within the statutory law of the relevant jurisdiction. HIPAA language
repeatedly indicates that the intent of the act does not include replacing or negating existing law
or interfering with the smooth functioning of existing programs, such as the Worker’s
Compensation program, and that individual jurisdictions may have more stringent requirements
for handling information that those of the privacy rules, and that in such case, the jurisdictional
law prevails. When the jurisdictional law remains silent on a point, the relevant HIPAA statute
applies.
It appears, then, that practitioners working solely in forensics can reasonably argue that
their forensic assessments in private practice do not fall within the ambit of HIPAA for the
following reasons. First, the services provided via forensic practice are provided not for
Page 6
therapeutic purpose, but rather to respond to a psycholegal question or need. Second, the
services are provided not at the request of the person being evaluated, but instead at the request
of another party or entity outside the health care system. Third, forensic services fall outside
health insurance coverage, because they do not constitute health care. Fourth, forensic
psychologists do not ordinarily transmit data electronically except in the specific ways for which
consent has historically been obtained from the litigant. Fifth, no new protections or rights
accrue to examinees by way of HIPAA compliance, that fail to flow if we do not achieve
compliance (i.e., no new right of access and amendment of information gathered in anticipation
of litigation, no additional opportunities beyond those presently extant to control the flow of
information). Finally, it can be noted that forensic practitioners have historically handled
information amassed in forensic work with at least as much regard for the individual’s privacy as
the laws governing such transactions permit.
On the other hand, the argument that forensic practitioners do need to be HIPAA
compliant might include the following considerations. First, diagnosis and assessment with
respect to the mental condition or functional status of the individual may indeed constitute health
care, and therefore, those who provide health care may be considered by HIPAA to be covered
entities. Second, by receiving health care information about a litigant, we assume the burden of
handling PHI, and the need to provide assurance that we handle it in a secure way. Third, the
ultimate legal question of whether as to covered entity status will likely fall to case law for
settlement, so that it may prove less expensive and burdensome to become compliant than to
become the case that decides the issue.
What is involved in becoming compliant?
A number of compliance packages currently available on the market focus on psychological
practice and may be helpful. Alternatively, the highly energetic and resourceful practitioner
could achieve compliance independently of such products, by reading the Act, the Privacy Rules,
and the Security Standards and adopting the necessary changes. The steps to follow include
developing a series of forms, making some changes in the way your office runs, and keeping
records of the compliance efforts you make. Necessary forms address, but are not limited to, the
following: 1) a privacy policy that is disseminated one time to all service recipients and that
details how PHI is handled in your office, 2) rights of the examinee to control and access PHI,
how to register complaints, and a number of other necessary ingredients; 3) acknowledgement of
receiving the privacy policy; 4) authorization to release information that specifies each of certain
kinds of PHI; 5) request for limitations in contact such as telephone numbers, addresses, or email
addresses to which the examinee would not want communications sent; 6) request for accounting
of PHI release events; 7) request to access and amend PHI; and 8) response to request to access
and amend PHI.
Some additional steps to ensure that adequate security exists to prevent unauthorized or
unintended disclosure of PHI include, but are not limited to, the following: 1) identifying a
Privacy Officer; 2) training staff on handling of PHI; 3) developing a record for accounting of
release of PHI; 4) developing a method to notify the examinee of unintended disclosure; and 5)
establishing business agreements with such entities as you exchange identifiable PHI, possibly
including test scoring services, agencies that receive your reports and store them, and records
storage facilities.
This is not a complete list of the steps one would take to become compliant, but may
provide a sampling of the kinds of activities that are required, and the reader is urged to utilize a
Page 7
package or a consultant, or to research the law thoroughly, in order to achieve compliance. Most
of the packages we examined included checklists and forms to document compliance actions
taken. Compliance will not come effortlessly, but the costs will likely assure that you minimize
risk of running afoul of the latest intrusion of federal regulation into professional practice.
Additional Resources:
HHS HIPAA web site = http://www.hhs.gov/ocr/hipaa/
Code of Federal Regulations lookup site: http://www.access.gpo.gov/nara/cfr/
Mock Trial Case Materials in the matter of Robert Bicker v. Elizabeth Bicker1 Prepared by Gerald P. Koocher2 and Robin M. Deutsch3 For presentation at the American Bar Association and American Psychological Association Continuing Education Conference Reconceptualizing Child Custody: Past, Present, and Future Lawyers and psychologists working together Chicago, Illinois May 2, 2008 1
The case materials are fictitious. Any resemblance to real persons, living or dead, is sadly ironic. 2
Gerald P. Koocher, PhD is Professor of psychology and Dean of the School for Health Studies, Simmons College, and Lecturer on Psychology at Harvard Medical School. 3
Robin M. Deutsch, PhD is Director of Forensic Services of the Children and the Law program at the Massachusetts General Hospital and Assistant Professor of Psychology at Harvard Medical School. Contents Basic Content for Mock Trial Stipulated Fact Pattern in the matter of Robert Bicker v. Elizabeth Bicker Custody Evaluation by Dr. Hugh Jim Bissell, Ph.D., D.C.H. Curriculum Vitae ‐ Hugh Jim Bissell, Ph.D., D.C.H. Curriculum Vitae ‐ Roberta Rigor, Ph.D. Roberta Rigor, Ph.D. letter to counsel (Attorney Peece) Supplemental Readings Prototype Mental Health Records Assessing the Quality of a Psychological Testing Report Basic Elements of Release Forms Basic Elements of Consent Tips for the Expert Witness Robert Bicker v. Elizabeth Bicker Stipulated Fact Pattern Parents: Robert (“Bob”) Bicker, age 39 Elizabeth (“Betty”) Bicker, age 37 Counsel: Robert Bicker is represented by Anita Bluster, Esq. Elizabeth Bicker is represented by Warren Peece, Esq. Children of this marriage: Barry Bicker, age 7 Betsy Bicker, age 5 Robert (“Bob”) and Elizabeth Bicker (“Betty”) met while attending Harvard Law School. They married in 1994. Barry Bicker was born April 1, 2001 and is in second grade. Betsy Bicker was born April 1, 2003 and attends nursery school. She will enter kindergarten in September, 2008. Robert Bicker is a senior partner in the litigation division of the law firm of Dewey, Cheatham, and Howe. Elizabeth Bicker is a partner at the law firm of Bell, Book, & Candle, where she heads the intellectual property division. The Bickers separated in May, 2007, following Betty’s discovery that Bob was having an extramarital affair with a junior associate at his law firm. Betty filed for divorce in September, 2007 following a brief unsuccessful trial of marital therapy. Neither parent has vacated the marital home, a five bedroom single family residence in Newton, Massachusetts, where they reside with the children and a nanny/housekeeper, Ms. M. Poppins. Bob has moved his belongings into the guest bedroom and installed a lock on the door. Ms. Poppins works primarily during the day, six days per week. Betty has installed a lock on the master bedroom door. Bob and Betty cannot agree on child custody arrangements and have made allegations about psychological weaknesses against each other in support of their positions. The parties agreed on Dr. Hugh Jim Bissell, recommended by attorney Bluster, as custody evaluator. D. Bissell was then appointed pursuant to a stipulated court order. Upon receipt of his evaluation attorney Peece retained Dr. Rigor as a rebuttal expert. 1 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Confidential Child Custody Evaluation: Bicker v. Bicker Page 1 Dr. Hugh Jim Bissell, Ph.D., D.C.H. Bissell Forensic Associates, LLC 99 Marblehead Road Athol, Massachusetts Custody Evaluation Bicker v. Bicker December 3, 2007 Dates of evaluation: Ms Bicker: November 1, 2, and 7, 2007 Mr. Bicker: November 5 and 13, 2007 Children: November 15, 2007 Referral: Robert (“Bob”) Bicker, age 39 and Elizabeth (“Betty”) Bicker, age 37 were referred by the Family Court of Middlesex County for evaluation with respect to their inability to agree on a custody arrangement for their children, Barry Bicker, age 7 and Betsy Bicker, age 5. Each parent seeks sole legal custody. Mr. Bicker asserts that his spouse suffers from, “chronic anxiety and a passive aggressive personality.” He asserts, “Betty constantly tries to turn the children against me and demean me in front of them.” Ms. Bicker has accused her husband of marital infidelity, and alleges that, “He tells the children that I’m mentally ill, and that I started the divorce. He never cared about them, until I refused to agree to joint custody. He has no clue what it means to be a decent husband or parent.” Robert Bicker is represented by Anita Bluster, Esq., and Elizabeth Bicker is represented by Warren Peece, Esq. My services were recommended by attorney Bluster, who knows me well as our parents are siblings. Background Information: Robert (“Bob”) and Elizabeth Bicker (“Betty”) met while both attended Harvard Law School. They married in 1994. Barry Bicker was born April 1, 2001 and is in second grade. Betsy Bicker was born April 1, 2003 and attends nursery school. She will enter kindergarten in September, 2008. 1 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Confidential Child Custody Evaluation: Bicker v. Bicker Page 2 Robert Bicker is a senior partner in the litigation division of the law firm of Dewey, Cheatham, and Howe. Elizabeth Bicker is a partner at the law firm of Bell, Book, & Candle, where she heads the intellectual property division. The Bickers separated in May, 2007, following Betty’s discovery that Bob was having an extramarital affair with a junior associate at his law firm. Betty filed for divorce in September, 2007 following a brief unsuccessful trial of marital therapy with Selma Bubkis, M.S.W. Neither parent has vacated the marital home, a five bedroom single family residence in Newton, Massachusetts, where they reside with the children and a nanny/housekeeper, Ms. M. Poppins. Bob has moved his belongings into the guest bedroom and installed a lock on the door. Betty has installed a lock on the master bedroom door. Bob and Betty cannot agree on child custody arrangements and have made allegations about psychological weaknesses against each other in support of their positions. Tests Administered Mental Status Evaluation Minnesota Multiphasic Personality Inventory ‐2 (NCR standard scoring) Rorschach Inkblots using Klopfer scoring system (Klopfer & Davidson, 1962) Interview with Betty Bicker: Ms. Bicker is an attractive, well dressed, petite woman with blond hair and blue eyes, who appear somewhat nervous throughout our sessions, occasionally rubbing her hands together or biting her lower lip. She arrived early for her appointments and had a firm handshake for a woman. She was interviewed on November 1, 2, and 7 for a total of six hours. An extra session was necessary, as Ms. Bicker had a lot of things that she felt it necessary to get “on the record.” I administered the Rorschach inkblots at the start of our first session. At the end of our final session, she completed the MMPI‐2, while sitting in the waiting room. She reported that she is in good health, except for an allergy to dogs. When asked about medication reported that she takes 5 mg of fluoxetine (Prozac) at bedtime and Orto Tri‐Cyclen Lo (birth control medication). Ms. Bicker noted that she first met during orientation at Harvard Law School. She was a first year student, and he was in his final year. She found herself attracted, “by his rugged good looks and confident authoritative style,” adding, “It took me a decade of married life to recognize that he’s actually a self‐centered, controlling, philandering bastard.” She stated, “I should have noticed the little put‐downs early in our relationship. He was an average student, and seemed jealous when I was selected as Editor of the Harvard Law Review in my last year, even though he was out of school practicing. I used to think it was sort of cute when he 2 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Confidential Child Custody Evaluation: Bicker v. Bicker Page 3 referred to me as his ‘trophy wife.’ But, then after Betsy was born, he started with a lot of sarcastic criticism about my not getting the excess weight off fast enough. When I found out about that bimbo at the office, I’d had enough!” Mrs. Bicker reported that the couple had briefly tried counseling, before she filed for divorced, but “there was just too much anger.” Ms. Bicker believes that she is clearly the primary parent in terms of meeting the emotional needs of the children; by going to school conferences, medical appointments, taking Barry to soccer practice and Becky to creative dance classes, and generally taking care of all of the children’s day time needs. She reported taking the children to pediatric visits and tucking them in every night. She noted that she buys all the children’s clothes and supervises the nanny. When asked about comments she may have made to the children about the divorce, Ms. Bicker noted that there has been a lot of yelling between the parents around the house, despite her best efforts to calm her spouse down, and the children cannot help but overhear. She noted that after the children had asked her many times about the divorce. They repeatedly told her that their father said, “Mommy started the divorce.” As a result, “I had no choice but to tell them the truth in self‐defense, so I told them that he had an affair with a woman at his law office. She also complained that Bob constantly tries to undermine her by saying things like, “Maybe you should take your Prozac now,” in front of the kids. She also believes that Bob has attempted to bribe the children with the promise of a puppy, even though he knows she has an allergy to dogs, and a trip to Disney World. Ms. Bicker expressed special concern about Mr. Bicker’s relationship with their daughter. She walked by Betsy’s door recently and saw Mr. Bicker lying in bed next to Betsy rubbing her belly. Ms. Bicker worries that this represents inappropriate sexualized behaviors with Betsy. Test Findings on Ms. Bicker: On the MMPI‐2 Ms. Bicker displayed an elevated 2‐7 type profile (Scale 2 T score = 60; Scale 7 T score = 59). This pattern is typically indicative of people with anxiety disorders and depressed mood. The pattern is characterized by pessimism, sadness, agitation, and a tense, fearful, insecure approach to the world. Such people often have difficulty making decisions, and are highly motivated for psychotherapy because of their distress. They tend to be very cautious, non‐creative people, who present as high strung, worried, jumpy, self‐critical, and prone to rationalization. They often set high standards for themselves and others, and self do not cope well with stress or failure. Her validity scales showed a slightly elevated K‐scale (defensiveness) and an L‐scale score approximately one have standard deviation above the mean (T =56), suggesting an effort to “look good” on the test. Betty’s pessimism, insecurity, and high tension levels clearly compromise her ability to work toward enhancing the children’s well being. Her perfectionist expectations of herself and others clearly set up problems in her relationship with Bob. 3 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Confidential Child Custody Evaluation: Bicker v. Bicker Page 4 On the Rorschach Ms. Bicker gave a protocol of 23 responses. She had a good F% and integrated color percepts well, but did have a number of “m” responses (e.g., “petals falling off a flower”) indicating internal tension. In addition, she gave two response making heave use of white space on the cards, indicating negativity. Interview with Bob Bicker: Bob Bicker is a tall imposing and distinguished looking man, befitting his role as a senior partner at Dewey, Cheatham, and Howe. He was interviewed on November 5 and 13 for a total of four hours. Because of his busy trial schedule, I gave him the MMPI‐2 test booklet to complete at home on the 5th and he returned it completed at the second visit. I also completed the Rorschach inkblots with him at that visit. Bob asserts that he is in good health. When asked about medication reported that he takes 20 mg of omeprazole (Prilosec) to control stomach acid and 20 mg of Simvastatin 20 (Zocor) to lower his cholesterol daily. When asked about the extra‐marital relationship with the junior associate at his law firm, Bob acknowledged, “Yes, it happened. I’m not proud of it. Call it a mid‐life crisis, but I guess it served to teach me that the relationship with Betty is over. I wanted to try to make it work with counseling, but Betty was too angry.” Bob stressed his role as an attentive father, despite a heavy work schedule. He noted that he co‐coaches Barry’s soccer team on Saturdays. Bob reports that he also has tried very hard to comfort the children who are both quite distressed about the divorce. He noted that Betsy often has difficulty going to sleep and complains of belly‐aches, so he occasional lies in her bed and rubs her belly to comfort her until she dozes off. When asked about puppy and trip to Disney old, Bob denied any attempt to buy the children’s affection. He observed that the kids have been through so much lately that they need a diversion and a good time. With respect to his spouse’s allergy, Bob noted, “So, let her take an allergy pill,” adding,” I’ll try to get one of those hypo‐allergenic dogs.” Test Findings on Ms. Bicker: On the MMPI‐2 Bob displayed a 4‐6 (Scale 4 T score = 63; Scale 6 T score = 60) type profile. Such scores tend to be indicative of having an above average potential for lying, cheating, and acting out, as well as having stormy family relationships and an increased incidence of marital problems. May people with such profiles are selfish, ego‐centric, impulsive and show a tenancy to feign gilt or remorse when in difficulty. They can also present as angry and resentful, harbor grudges, project blame onto others, and show an argumentative style. They may rationalize 4 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Confidential Child Custody Evaluation: Bicker v. Bicker Page 5 excessively, and do not like to talk about emotional problems poor , so they dislike psychotherapy. On the positive side, such people are likeable and create very good first impressions. They often seem outgoing, spontaneous, and self‐confident to others. His K‐scale was at T =60, but his L‐scale was well below average. This personality pattern appears to serve Bob well in his litigation practice and his ability to build a strong client base at his law firm. It is also understandable how his wife’s behavior could exacerbate any tendencies toward anger and resentment. On the Rorschach Bob produced 14 responses including 7 popular responses and a good F%. He was a bit constricted, and ignored the use of color, but otherwise showed no unusual patterns or signs of significant pathology. Joint interview with Barry and Betsy Bicker: I interviewed the children together and thought that it might be interesting to get their reactions to a few Rorschach cards. I gave Barry and Becky each a few cards for free association purposes. Barry reported seeing a spider on Card 1. Becky quickly agreed with her brother. This response has great significance in advanced contentment analysis on the Rorschach which has established spider content as a “wicked mother” symbol (Phillips & Smith, 1953) particularly when viewed on Cards 1 or 2. Becky liked Card 6 best, saying that it reminded her of a fluffy doggy. Interestingly, Card 6 typically evokes feelings about one’s father, and the texture determinant coded by her “fluffy doggy” response suggest considerable warmth and affection for her father. Barry seconded her “fluffy doggy” percept. When I asked the children about their preferences for a custodial parent, Becky understandably expressed a preference for her father, and Barry for his mother. Barry added, with an ambivalent tone, “Daddy told me that, if we come to live with him, we get a puppy.” Becky chimed in, “He said we could go to Disney World too!” The children clearly see their father as a source of warmth and nurturing giving. Collateral Contacts: Ms. Mary Poppins: Mary reported that she has worked as a nanny and housekeeper for the Bicker family since Betsy was born. Her duties include house cleaning, child care, and meal preparation for the children. She reports that both parents typically leave the house about 7:30 a.m., as she is getting breakfast for the children, and usually return home about 6:00 – 7:00 p.m., as she is getting the children ready for bed. 5 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Confidential Child Custody Evaluation: Bicker v. Bicker Page 6 Mary said that about a year ago she became troubled when Bob told her, “You take such good care of the kids, and maybe you could take care of me too?” On another occasion Bob passed by the bathroom as Mary was supervising Betsy in the bathtub, and said, “Maybe you’ll give me a bath later.” Mary told me that she later shared her discomfort about the remarks with Betty, thinking they would remain private. Betty, however, immediately confronted Bob, who explained that he was, “only joking.” A few months ago Mary overheard Betty telling the children, “Your Daddy asked Mary to give him a bath. How gross is that!” Polly and Ralph Naybors: Ms. Bicker suggested that I contact Polly Naybors, who has worked with her on PTA activities and whose daughter often has play dates with Betsy, . Ms. Naybors was not at home, but I did chat with her husband, Ralph, who knows Bob Bicker. He and Bob co‐coach Barry Bicker’s youth soccer team. Mr. Naybors described Bob as, “One hell of a guy, who goes the extra mile to help the team win.” He noted that Bob’s law firm sponsored the team’s uniforms, and that Bob made it to many of the games despite his busy work schedule. Tara Tutor and Karen Kinder: Ms. Tutor is Barry Bicker’s second grade teacher. Ms. Kinder cares for Becky at nursery school. Both reported that the respective children are bright and have good peer relationships. Neither of the teachers had met Bob Bicker, but both had spoken with Ms. Bicker at parent‐teacher conferences, and described her as a concerned parent. Ms. Tutor noted that Ms. Bicker is on the PTA fund raising committee. Ms. Kinder and Ms. Tutor noted that most of their contacts on day to day issues, including after school pick‐ups are with Ms. Poppins, the nanny. Tort Feezor: At Bob’s request, I spoke with Tort Feezor, managing partner at, Dewey, Cheatham, and Howe. Attorney Feezor reported that Bob is a highly regarded member of the firm, and a fantastic litigator who brings in considerable business. He noted, “Bob consistently puts in 10‐hour days to get the job done.” When asked specifically about the junior partner with whom Bob had extramarital relations, Attorney Feezor described the woman as a person who, “…was a risky hire to begin with. She was shamelessly seductive, and may have been trying to ingratiate herself with Bob to offset the poor quality of her work. We terminated her as of October, 2007.” Nola Contenderie: At Ms. Bicker’s request, I spoke with Nola Contenderie, managing partner at Bell, Book, & Candle. Attorney Contenderie reported that Ms. Bicker is a nationally known expert on intellectual property law, and “…performs very effectively, although her concentration has 6 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Confidential Child Custody Evaluation: Bicker v. Bicker Page 7 suffered a bit during this messy divorce situation.” Asked to describe Ms Bicker’s personality, attorney Contenderie noted, “She’s a very intense and bit on the obsessive end of the continuum, but that just what you want in this business. She’s really driven to succeed and puts in long days. She really loves those kids, but is pissed as hell at Bob.” Selma Bubkis, MSW: Ms. Bubkis is a family therapist who saw the Bickers twice in late June and early July of 2007. Both parents signed an authorization for me to obtain information regarding her professional services to them. She reported that, “They seemed like caring parents, but were both very angry over what had happened. Betty wanted to process her feelings, and was having anxiety attacks. Bob wanted to get past the affair and move on. At the second session he said, “We keep rehashing the same stuff over and over, I don’t see much point in this.” Ms. Bicker continued to see Ms. Bubkis a few more times individually, and Ms. Bubkis referred her to Dr. Drugger for a psychopharmacology consult because of depression and anxiety. Hasty Drugger, MD Dr. Drugger is Ms. Bicker’s psychiatrist. He currently sees her on a monthly basis, and has prescribed Prozac (5 mg per day). Dr. Drugger reports that Ms. Bicker has symptoms of anxiety and depression. His diagnosis is: adjustment disorder with mixed emotional features, r/o dysthymia, r/o anxiety disorder. He believes that she is coping well under the circumstances. Since he does not know Bob Bicker, he provided no useful comparative data on parenting. Diagnostic Impressions and recommendations: My overall impression of Ms. Bicker is that of an angry, anxious woman, with passive aggressive tendencies, who requires psychiatric medication and treatment. It also seems fairly obvious that Ms. Bicker is exhibiting significant signs of Parental Alienation Syndrome (PAS) in attempting to win Barry and Betsy over to her side in this custody battle. Despite a general presumption of joint legal custody in our jurisdiction, that will not work with this couple. They simply cannot collaborate on c0‐parenting at this time. In the best interests of the children, they should be together in a single home with a consistent psychological parent. Keeping the children in their current home environment would offer important stability. Mr. Bicker shows less anxiety (hence greater emotional availability) and more attention to the current emotional needs of the children. Ms. Bicker shows emotional problems and signs of attempting to alienate the children from their father by criticizing and assigning blame to him in their presence. For that reason, and because Mr. Bicker seems better able to parent the children at this time, I recommend that he be granted sole legal custody and that Ms. Bicker’s contacts with the children be supervised to reduce an attempts to further alienate them from their father for at least the next several months. Tensions will decline 7 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Confidential Child Custody Evaluation: Bicker v. Bicker Page 8 significantly, if Ms. Bicker vacates the family home. I suggest a visitation schedule that allows Ms. Bicker a supervised meal with the children on Wednesday evenings and an eight hour supervised visit on alternate Sundays. Ms. Bicker should be allowed to attend all public events involving the children (e.g., soccer games, birthday parties, and school activities) unsupervised. Please contact me if you require additional details on any of these points. Sincerely, Hugh Jim Bissell
Dr. Hugh Jim Bissell, Ph.D., D.C.H. References Klopfer, B. & Daviddson, H. N. (1962). The Rorschach Technique, an Introductory Manual. New York: Harcourt, Brace & World. Phillips, L. & Smith, J. G. (1953) Rorschach interpretation: Advanced technique. New York: Grune & Stratton. 8 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Curriculum Vitae Hugh Jim Bissell, Ph.D., D.C.H. Education: Center for Continuing Education, Grand Island, Nebraska Workshop on Child Custody Evaluation (Parts 1 and 2), December 1998 American Pacific University, Honolulu, Hawaii Ph.D. (Doctor of Philosophy/Psychology), June 1996 American Institute of Hypnotherapy Doctor of Clinical Hypnotherapy, April 1994 Long Beach State, Long Beach, California; 1959‐1962 Brigham Young University, Provo, Utah; 1957‐1959 Western Business College, Salt Lake City, Utah; 1956 Licenses: Commonwealth of Massachusetts Licensed Mental Health Counselor No. 1234 Licensed marriage and Family Counselor No. 5678 Certifications: American Board of Certified Forensic Examiners (Board Certified Fellow and Diplomate, June 2000) National Guild of Hypnotists (Certified Hypnotherapy 1996) Master Neuro‐Linguistic Programming (NLP) Technician (July 1990) Professional Experience: 1996‐1999 Pioneer Valley Mental health Center, Hadley, Massachusetts Therapist/intern 1999‐2002 Mentored training in child custody assessment Practice of May Didup, Ph.D., Chelsea, Massachusetts 2002‐present Private practice, Newton, Massachusetts 1 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Dr. Bissell’s Halloween party for underprivileged youth, 2007 Memberships: Member, American Orthopsychiatric Association Member, Massachusetts Association of Guardians ad Litem Listed, Massachusetts Trial Courts List of Guardians ad Litem Member, Middlesex County Rotarians Member, Society for Clinical and Experimental Hypnosis Publications: Bissel, H. J. & Gardner, R.A. (1997). Parental Alienation Syndrome: Threat or menace? Oppressed Parents’ Guidebook. New York: Vantage Press. Bissell, H.J. (2001). Doctor Bissell’s Guide to Child Custody Evaluation. New York: Vantage Press. Selected Lectures, Interviews, and Press Credits: January 18, 2008 – National interview for Fox News – headline: Top US psychotherapist: 'Spears will be dead in six months'
A top US psychologist has declared Britney Spears will be dead in six months if she
doesn't get the treatment she needs for a chronic mood disorder cyclothymia. April 1, 2003 ‐ Middlesex County Rotarians “Neurolinguistic Programming and Thought Field Therapy – Innovations in Mental Health. Columnist for the Middlesex Tab newspaper, sample columns: “Yours, Mine, and Ours” “There’s a Better Way” “Don’t you dis’ me” Hobbies: Rotary Club Sky diving Feline husbandry 2 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Curriculum Vitae Roberta Rigor, Ph.D. Education: 1985 B.S. University of Wisconsin, Madison, WI (magna cum laude) Major: Psychology 1990 Ph.D. University of Miami, Miami Florida (APA‐approved) Clinical and clinical child psychology 1989‐1990 Clinical Fellow in Psychology, Massachusetts Mental Health Center and Harvard Medical School, Boston, MA (APA‐approved) 1990‐1992 Post‐Doctoral Fellow, Children and the Law Program, Massachusetts General Hospital and Harvard Medical School, Boston, MA License: Licensed Psychologist, Commonwealth of Massachusetts, Board of Registration in Psychology, Health Service Provider License No. 3261, November, 1991. Certifications: American Board of Professional Psychology (Diplomate in Forensic Psychology No. 2715, August 1995) Publications: Rigor, R. (2007). Parenting Coordination: an emerging role. Journal of Child Custody, 15, 222‐333. Rigor, R. (2005). Stick to your guns: Resisting hostile cross examination. Massachusetts Psychologist, 28, 12‐19. Rigor, R. and Flex, J. (2001). Misunderstanding of syndromal evidence: An alienated nation. Journal of Forensic Psychiatry, 21, 123‐321. 1 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. Professional Experience: 1992‐1997 Staff Psychologist, Franciscan Hospital 1997‐2007 Senior Psychologist. Suffolk County Court Clinic 2007‐2008 Private practice, clinical and family forensics, Brookline, MA Memberships: American Psychological Association Association of Family and Conciliation Courts Massachusetts Association of Guardians ad Litem Massachusetts Psychological Association 2 ©G. P. Koocher & R. Deutsch, 2008, all rights reserved. CONFIDENTIAL AND PRIVILEGED
Roberta Rigor, Ph.D.
Clinical and Forensic Psychology
85 Heal Street
Brookline, Massachusetts 02492
617-991-9111
Dear Mr. Peece:
You asked me to conduct a confidential review of the test data and report by Dr. Bissell
to provide you with content for rebuttal. Here I have arranged my concerns in a
numbered format. We can discuss this more at your convenience.
1. I reviewed Dr. Bissell’s CV and investigated the school from which he
received his Ph.D. the American Pacific University in Honolulu is not
accredited by any regional educational or professional accreditor
authorized by the U. S. Department of Education. Dr. Bissell never
completed an APA approved internship and is not listed as a licensed
psychologist by the Massachusetts Board of Registration. Though he
claims to have a Ph.D. and some type of doctorate in hypnosis (also for an
unaccredited institution), I question the education and training that he
received in the areas of practice necessary to conduct custody evaluations
(e.g., adult and child development – normal and abnormal, family systems
theory, ethics, inter alia). Also note that he reports that he is certified by
the American Board of Forensic Examiners. This is a vanity board,
meaning that no critical review of candidates or examination is required.
Membership is granted simply by paying an application fee and annual
dues. And finally note that he identifies a book published by Vantage
Press. Vantage Press is a so-called “subsidy publisher,” meaning that one
pays them to publish your book. This was not a book selected after peer
review by a respected commercial publisher. And by the way, that
Halloween party photo on his C.V. is enough to scare anyone.
2. Dr. Bicker’s interviews of the children included an inappropriate, nonstandard, and unethical use of “a few Rorschach cards.” The accepted
administration method for giving the Rorschach Inkblots involve a careful
individual administration procedure in standardized format. Dr. Bicker’s
use of the Rorschach with the children was non-standard in several ways.
Not the least of these was his selection of a subset of cards, his apparent
joint administration to two children, and his use of outdated interpretation
schemes. In addition, his use of two specific content responses (i.e.,
spider and dog) grossly over generalizes and represents an obscene
simplification of Rorschach interpretation, based on outdated texts. His
use of the instrument in this way is blatantly unethical.
1
© G. P. Koocher & R. Deutsch, 2008, all rights reserved.
CONFIDENTIAL AND PRIVILEGED
3. Although the Rorschach may have some use in custody evaluations to
the extent that the data reveal psychopathology relevant to the forensic
questions, Dr. Bissell used the Rorschach in an unscientific, inappropriate,
and selectively subjective way. If he had used the test in the proper way,
scored with the (so-called “Exner”) Comprehensive System with
standardized procedures for administration, scoring and interpretation, he
would have had empirically supported useful data with high levels of
reliability and validity. Together with the MMPI-2, a psychologist can get
useful information about personality functioning .
4. In addition, Dr. Bicker is not licensed as a psychologist and I am
uncertain how he was able to purchase and then use either the MMPI-2 or
the Rorschach Inkblots. These tests are intended for use by licensed
psychologists only. Clearly he has minimal and/or outdated and/or faulty
methods for using, scoring and interpreting these tests. If he had expertise
in psychological assessment there are many more relevant instruments that
he could have selected for valid application in this case.
5. Dr. Bissell also over generalized from the MMPI-2. He focuses on a
limited subset of clinical scales, and misinterprets some validity scales.
The research has shown a pattern of elevations on L (so called “LieScale”) which measures attempts to portray oneself in a favorable light
and K (so-called defensiveness) scales, can be useful for some purposes.
However, it is not unusual to see such elevations in the scores of parents in
child custody cases. The levels reported by Dr. Bissell do NOT reach
clinical significance. Dr. Bissell described these elevations, which are
normal for a sample of people under forensic scrutiny, as abnormal. These
elevations were not greater than T = 65, so do not reach clinical
significance. In addition, Dr. Bissell did not make use of the forensic
scoring option on the MMPI-2, that corrects for normal responses in such
cases. He also described elevations of two point scales on the MMPI-2 for
Ms. Bicker, reporting it as if the elevation was meaningful when again the
scales did not reach clinical significance. He goes on to interpret the
findings from the MMPI-2 as affecting her parenting and her relationships
with her husband. These conclusions are unwarranted, not consistent with
the test data, and the result of over generalizing from the data. Dr. Bissell
appears to have simply reported a string of attributes from a computergenerated score report, without attempting to integrate those data with the
real world (such as her successful career and parenting history). In doing
so he over-weights relatively insignificant data. This personality inventory
is quite useful but it is just one piece of data that provides information
about personality functioning, but not what is in the best interests of the
children.
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6. Dr Bissell’s presentation of the data appears biased and non objective.
He explains away Mr. Bicker’s MMPI-2 findings noting his wife’s
behavior may be the cause of his anger and resentment.
7. Dr. Bissell diagnoses Ms. Bicker with Parental Alienation Syndrome
(PAS). PAS is a term originated by the late Richard Gardner, M.D. to
describe a disorder of co-occurring symptoms including: 1) a parent who
brainwashes the child to reject the other parent; and 2) a child who
denigrates the alienated parent without justification. Gardner’s selfpublished tests for measuring the occurrence of this syndrome lack
reliability and validity. He asserted that PAS is a “syndrome” because the
child’s symptoms of denigration without cause are the result of the success
of the alienating parent’s indoctrinations. The well publicized and
researched criticisms of PAS as a syndrome include the problem of
causation. That is, children may reject a parent for a variety of reasons,
not just this single etiology of programming or brainwashing by the other
parent.
A particular problem with so-called “syndromal evidence.” One must
recognize that the medical concept of a “syndrome” represents a simple
clustering of symptoms that often co-occur. There are no clear consensual
guidelines to govern what one calls a “syndrome.” In addition, as noted
above, behavior can have multiple contributory causes and simply
applying the label “syndrome” does not establish either causation or
clinical validity.
Even if one were to accept “syndromal evidence” as meeting Daubert
criteria, I see the following problems with Dr. Bissell’s diagnosis of Mrs.
Bicker with Parental Alienation Syndrome.
a.
The children do not exhibit the symptoms described in
PAS; they do not vilify their father and there is no campaign of
denigration.
b.
This diagnosis can be impeached because the children do
not show the symptoms and there is no apparent cause that would
lead to this concurrence of symptoms as a syndrome.
c.
This “syndrome” has not been scientifically validated.
d.
Dr. Bissell published with Dr. Gardner and I wonder if
there is a conflict of interest in his use of PAS, particularly since
most of Dr. Gardner’s publications are selfpublished as opposed
to peer reviewed journals.
3
8. Dr. Bissell makes much of Ms. Bicker’s participation in psychotherapy
and use of medication, despite the fact that she has been prescribed a very
low dose of one of the most commonly used medications in the United
States. Her participation in treatment and use of Prozac carry no adverse
implications for her parenting ability.
9. Dr. Bissell made numerous errors in his use of collateral data and the
weights he assigned to those data.
10. Perhaps the most significant flaw in the report is Dr. Bissell’s failure
to link his recommendations to any meaningful, valid, reliable data. For
example, why should Ms. Bicker’s visitation be supervised?
These ten points barely scratch the surface of Dr. Bissell’s incompetent report, even
putting aside the fact that he appears to be related to opposing counsel. I look forward to
assisting you in rebutting this mockery of an evaluation!
Sincerely,
Roberta Rigor, Ph.D.
4
References
Butcher, J.N. (1997). Frequency of MMPI-2 scores in forensic valuations. MMPI-2
News and profiles.
Deutsch, R. (2005). Mental Health Experts, Tests and Services. Training for Children’s
Legal Representative in Private Custody Matters, VHS or DVD produced by the ABA
Child Custody and Adoption Pro Bono Project and the ABA Committee on Pro Bono and
Public Service and Family Law Section.
Erard, R.E. (2007). Picking cherries with blinders on: A comment on Erickson et al.
(2007) on the use of tests in Family Court. Family Court Review, 45, 175-184.
Erickson, S.K., Lilienfeld, S.O., Vitacco, M.J. (2007). A Critical examination of the
suitability of psychological tests in custody evaluations. The Family Court Review, 41,
157-174.
Erickson, S.K., Lilienfeld, S.O., Vitacco, M.J. (2007). Failing the burden of proof: the
Science and ethics of projective tests in custody evaluations. The Family Court Review,
41, 185-192.
Medoff, D. (1999). MMPI-2validity scales in child custody evaluations: clinical versus
statistical significance. Behavioral Sciences and the Law, 17, 409-411.
Medoff, D. (2003). The scientific basis of psychological testing: Considerations
following Daubert, Kumho, and Joiner. The Family Court Review, 41, 199-213.
Williams, R.J. (2001). Should judges close the gate on PAS and PA? Family court
Review, 39, 267-281.
5
Supplemental Readings ASSESSING THE QUALITY OF A PSYCHOLOGICAL TESTING REPORT
This summary describes key points that should be addressed in conducting any
psychological assessment for which a report is prepared. The quality of the assessment report can
be evaluated by assessing the thoroughness and accuracy with which each of these ten points is
addressed.
REFERRAL QUESTIONS AND CONTEXT
• Does the report explain the reason the client was referred for testing and state the
assessment questions to he addressed?
• Does the report note that the client or legal guardian was informed about the purpose of
and agreed to the assessment?
• Is the relevant psychological ecology of the client mentioned (e.g., recently divorced,
facing criminal charges, candidate for employment)?
• If the evaluation is being undertaken at the request of a third party (e.g., a court, an
employer, or a school), does the examiner note that the client was informed of the limits
of confidentiality and whether a release was obtained?
CURRENT STATUS/BEHAVIORAL OBSERVATIONS
• What was the client’s behavior like during the interview, especially with respect to any
aspects that might relate to the referral questions or the validity of the testing (e.g., mood,
ability to form rapport, concentration, mannerisms, medication side effects, language
problems, cooperation, phenotype, or physical handicaps)?
• Were any deviations from standard testing administration or procedures necessary?
LISTING OF INSTRUMENTS USED
• Is a complete list (without jargon or abbreviations) of the tests administered presented,
including the dates administered?
• Does the report explain the nature of any unusual instruments or test procedures used?
• If more than one set of norms or test forms exists for any given instrument, does the
psychologist indicate which forms or norms were used?
RELIABILITY AND VALIDITY
• Does the psychologist comment specifically on whether or not the test results in the
present circumstances are to be regarded as reasonably accurate (e.g., the test
administration was valid and the client fully cooperative)?
• If there are mediating factors, are these discussed in terms of reliability and validity
implications?
• Are the tests used valid for assessing the aspects of the client’s abilities in question? This
should be a special focus of attention if the instrument used is nonstandard or is being
used in a nonstandard manner.
DATA PRESENTATION
• Are scores presented and explained for each of the tests used? (If an integrated narrative
or description is presented, does this address all the aspects assessed, such as intellectual
functioning, personality structure, etc.?)
• Are the meanings of the test results explained in terms of the referral questions asked?
• Are examples or illustrations included if relevant?
1
© Gerald P. Koocher (2005) Psychologists’ Desk Reference, Oxford University Press
•
•
Are technical terms and jargon avoided?
Does the report note whether the pattern of scores (e.g., variability in measuring similar
attributes across instruments) is a consistent or heterogeneous one?
• For IQ testing, arc subtest scatter and discrepancy scores mentioned?
• For personality testing, does the psychologist discuss self-esteem, interpersonal relations,
emotional reactivity, defensive style, and areas of focal concern?
SUMMARY
• If a summary is presented, does it err by surprising the reader with material not
mentioned earlier in the report?
• Is it overly redundant?
RECOMMENDATIONS
• If recommendations are made, is it evident why or how these flow from the test results
mentioned and discussed earlier?
• Do the recommendations mention all relevant points raised as initial referral questions?
DIAGNOSIS
• If a diagnosis is requested or if differential diagnosis was a referral question, does the
report specifically address this point?
IS THE REPORT AUTHENTICATED?
• Is the report signed by the individual who conducted the evaluation?
• Arc the credentials/title of the person noted (e.g., Mary Smith, Ph.D., Staff Psychologist,
or John Doe, M.S., Psychology Intern)?
• If the examiner is unlicensed or a trainee, is the report co-signed by a qualified licensed
supervisor?
FEEDBACK
• Is a copy of the report sent to the person who made the referral?
• Is some mechanism operational for providing feedback to the client, consistent with the
context of testing and original agreement with the client?
References & Web Sites
American Psychological Association. (2007). Record keeping guidelines. Washington, DC:
American Psychological Association.
American Psychological Association Ethics Committee. (1993). Policy statement of the APA
Ethics Committee regarding “take home” tests. . Washington, DC: American
Psychological Association.
American Psychological Association, American Educational Research Association, & National
Council on Measurement in Education (1999). Standards for educational and
psychological testing. Washington, DC: American Educational Research Association.
American Psychological Association, American Educational Research Association, & National
Council on Measurement in Education (1998). Standards for educational and
psychological testing. Washington, DC: American Psychological Association.
Bersoff, D. N., & Hofer, PJ. (1995). Legal issues in computerized psychological testing. In D. N.
Bersoff (Ed.), Ethical conflicts in psychology (pp. 291—294). Washington, DC:
American Psychological Association.
2
Eyde, L. D., Robertson, G. J., Krug, S. E., Moreland, K. L., Robertson, A. G., Shewan, C.
M.,Harrison, P L., Proch, B. E., Hammer, A. L., & Primoff, E. S. (1993). Responsible test
use: Case studies for assessing human behavior. Washington, DC: American
Psychological Association.
Koocher, G. P, & Keith-Spiegel, P C. (2008). Ethics in psychology and the mental health
professions: Professional standards and cases (3rd Ed.). New York: Oxford University
Press.
Koocher, G. P. & Rey-Casserly, C. M. (2002). Ethical Issues in Psychological Assessment. In:
Graham, J. R. & Naglieri, J. A. (Eds.). Handbook of Assessment Psychology. New York:
John Wiley and Sons.
Matarazzo, J. D. (1990). Psychological assessment versus psychological testing: Validation from
Bitnet to the school, clinic, and courtroom. American Psychologist, 45, 999-1016.
Moreland, K. L., Eyde, L. D., Robertson, C. J., Primoff, E. S., et al. (1995). Assessment of test
user qualifications: A research-based measurement procedure. American Psychologist,
50, 14-23.
Wetter, M. W., & Corrigan, S. K. (1995). Providing information to clients about psychological
tests: A survey of attorneys’ and law students’ attitudes. Professional Psychology:
Research and Practice, 26, 474-477.
Web sites:
http://www.apa.org/science/standards.html#overview
http://www.unl.edu/buros/
3
BASIC ELEMENTS OF RELEASE FORMS
What is a “release” form anyway? As used by mental health professionals, this term
refers to a legally appropriate authorization that releases the clinician from some
particular duty to a client or research participant. Most often the release permits the
sharing of otherwise confidential information or records with other professionals or
agencies. Other types of releases may authorize the recording of voice or images by any
means (e.g., photographic, magnetic tape, or digital) of otherwise confidential content,
the storage of data or recorded material in databases, or the use of such material for
teaching purposes. Releases are sometimes sought prior to application of certain
treatment procedures that may have potential adverse consequences (e.g.,
electroconvulsive therapy); however, no release can legally absolve a practitioner from
the negligent infliction of damages.
Releases should be drafted for highly specific purposes, addressing each of the key
elements cited below. In addition to these basic elements, releases should be used only in
the context of informed consent. Use the following guidelines in preparing a release
form.
• Identify the person(s) to whom the release applies. Ideally this will include a name,
address, telephone number, birth date, and any known record-identifying numbers. This
will minimize risk of improper releases when names are similar, as well as permitting
confirmation that the release is valid should a question arise.
• Indicate what is being authorized (e.g., transfer of oral information, transfer of records,
audio or video recording, or other disclosure of protected data).
• Indicate the purpose of releasing the duty of confidentiality (e.g., assisting in treatment,
educational planning, teaching, research, or other purpose to be specified).
• State who is granting authority (e.g., is a competent person granting informed consent,
is a legally responsible party granting permission, or is a person who is not deemed
legally competent granting assent?). Note that at least one signer of the release form must
be legally authorized to do so.
• Explain the grantor’s relationship to the parties to whom a duty is owed (e.g., is the
grantor of the authorization the focal party himself or herself, a parent, or some other
person having legal guardianship?).
• Indicate for what duration the release is granted. Each release should have a specific
time limit. For example, the release may authorize a onetime issuance of records, an
ongoing communication between two professionals for a specified period, or open-ended
access to archival data in a research database.
• Include a valid signature. The name of the person signing the release form should be
printed as well as signed, in the event that the signature is difficult to read. Although not
strictly necessary in most situations, it is ideal to have the release signed by a third party
who witnessed the grantor’s signing.
1
SAMPLE RELEASE FORMS
Copies of the sample forms outlined below and suitable for editing with a word
processing program are included on the CD accompanying the book noted in the footer.
Authorization for Release of Information
Patient’s name:
Date of birth:
Address:
Telephone number:
Record number:
I hereby authorize the release of information/records on: [ the psychological assessment
of, or psychotherapeutic treatment of, etc. Note that if psychotherapy notes are
requested, the must be specifically named in the form.]
Name:
Address:
For the purposes of: [assisting in treatment planning, preparing an educational
plan, use in court-ordered evaluation, etc.]
This release shall be valid for [90 days] from the date signed, unless withdrawn sooner
and shall [include all professional records; be limited to the psychological testing data; be
limited to services provided between September 1996 and March 1998; etc.].
Signed: [printed name, date]
Relationship to patient: [parent, legal guardian]
Witnessed by: [printed name, date]
Sample Release for Recording and Subsequent Teaching
This release form would be similar to the record release form in terms of the client
information and signature sections. The statements of “authorization” (i.e., what type of
recording or disclosure is being allowed) and the statement of “purpose” (i.e., how the
material will be used) must be included. Some examples follow: “1 authorize Mr. Jones
to make videotape recordings of my therapy sessions at the University Counseling Center
for purposes of supervision. I understand that these will be viewed only by Mr. Jones and
his clinical supervisor, Dr. Smith. I also understand that the tapes will be destroyed
following the supervisory session.”
Suppose one of the sessions seems particularly useful or exemplary for teaching purposes
and that Dr. Smith would like to use it in the future. An additional release with the
following text might be sought: “1 authorize Dr. Smith and his successors as director of
the University Counseling Center to use previously authorized video recordings of my
psychotherapy sessions with Mr. Jones between January 1996 and May 1996 for teaching
purposes with future classes of doctoral students. I understand that although my likeness
2
will be visible, my name will not be used and all observers will have a professional
obligation to treat the material confidentially. I also understand that I may revoke this
authorization at any time in the future by notifying Dr. Smith or any subsequent director
of the clinic.”
Similar elements should be included in release forms developed for other confidential
material that may be stored and used by others in the future, such as longitudinal re
search data archives. In the case of institutional clinical records that are routinely
collected as a function of clinical care (i.e., medical records or clinic case files) or that
were collected years earlier from clients who are no longer easily located, the agency’s
official institutional review board (sometimes called a clinical investigations committee)
should be consulted and that group’s procedures followed.
Readings & Web Sites
American Psychological Association (2002). Ethical principles of psychologists and code
of conduct. Author: Washington, DC.
Keith-Spiegel, P, Wittig, A. F, Perkins, D. V., Balogh, D. W., & Whitley, B. E. (1993).
The ethics of teaching: A casebook. Muncie, IN: Ball State University Office of
Academic Research and Sponsored Projects.
professions: Professional standards and cases (3rd Ed.). New York: Oxford
University Press.
Lawson, C. (1995). Research participation as a contract. Ethics & Behavior, 5, 205 - 215.
Sieber, J. E., & Stanley, B. (1988). Sharing scientific data I: New problems for IRBs.
IRB: A Review of Human Subjects Research, 11, 4 - 7.
Stanley, B. H., Sieber, J. E., & Melton, G. B. (Eds.) (1996). Research ethics. Lincoln:
University of Nebraska Press.
Web sites
http://privacyruleandresearch.nih.gov/pr_02.asp
http://www.hhs.gov/ocr/hipaa/assist.html
http://aspe.hhs.gov/admnsimp/final/pvcfact2.htm
3
BASIC ELEMENTS OF CONSENT
COMPETENCE AND CONSENT
Competence is a prerequisite for informed consent. An offer to provide a person with
informed consent is not meaningful unless the individual in question is fully competent to
make use of it. Consent is a voluntary act by which one competent person agrees to allow
another person to do something, such as provide treatment to them, study them in re
search, or release their confidential records to another.
• Competence to grant consent is generally categorized as either de facto or de jure. De
jure refers to competence under law, while de facto competence refers to the actual or
practical capacities of the individual to render a competent decision.
• In most jurisdictions, persons over the age of 18 years are presumed to be competent
unless proved otherwise before a court. When a determination of incompetence is made
for such adults, it is usually quite precise. That is to say, under law a person’s
competence is conceptualized as a specific functional ability. In legal parlance the noun
competence is usually followed by the preposition to rather than presented as a general
attribute of the person. An adult who is deemed incompetent to stand trial for a particular
offense is still presumed competent to function as a custodial parent or man age his or her
financial affairs. For the adult, incompetence must be proved on a case- by-case basis.
• Conversely, minor children are presumed incompetent for most purposes without any
concern for whether or not the child has the cognitive and emotional capacity to make the
requisite decision(s). Children who are deemed legally competent for one purpose are
likewise still considered generally incompetent in other decision-making contexts. For
example, juvenile offenders who have been transferred to adult court for trial and found
competent to stand trial are still considered generally incompetent to consent to their own
medical treatment or enter into legal contracts.
• Assessment of specific competence (in the case of children) or incompetence (in the
case of adults) revolves around four basic elements:
1. The person’s access to and ability to understand all relevant information about the
nature and potential future consequences of the decision to be made (i.e., informed
consent)
2. The ability to manifest or express a decision
3. The manner in which the decision is made (e.g., whether it is rational or reasonably
considered)
4. The nature of the resulting decision (e.g., whether it is a lawful decision)
1
• Psychological factors in competence assessment include the following:
1. Comprehension
2. Assertiveness and autonomy
3. Rational reasoning
4. Anticipation of future events
5. Judgments in the face of uncertainty or contingencies
MAKING DECISIONS FOR OTHERS: PROXY CONSENT, PERMISSION, AND
ASSENT
Consent is defined as a decision that one can make only for oneself. Thus, the term proxy
consent is decreasingly used in favor of the term permission. Parents or guardians are
usually those from whom permission must be sought as both a legal and ethical
requirement prior to intervening in the lives of their minor children or adults adjudged
incompetent.
Assent, a relatively new concept in this context, recognizes that minors or incompetent
adults may not, as a function of their developmental level or mental state, be capable of
giving fully reasoned consent but may still be capable of reaching and expressing a
preference. Assent recognizes the involvement of the child or incompetent adult in the
decision-making process, while also indicating that the child’s level of participation is
less than fully competent. Granting assent power is essentially the same as providing a
veto.
Readings & Web Sites
Appelbaum, P. S., Lidz, C. W, & Meisel, A. (1987). Informed consent: Legal theory and
clinical practice. New York: Oxford University Press.
Koocher, G. P, & Keith-Spiegel, P C. (1990). Children, ethics, and the law. Lincoln:
University of Nebraska Press.
professions: Professional standards and cases (3rd Ed.). New York: Oxford
University Press.
Malcolm, J. G. (1988). Treatment choices and informed consent: Current controversies
in psychiatric malpractice litigation. Springfield, IL: Charles C. Thomas.
Pope, K. S., & Vasquez, M. J. T. (1991). Ethics in psychotherapy and counseling: A
practical guide for psychologists. San Francisco: Jossey-Bass.
Stanley, B. H., Sieber, J. E., & Melton, G. B. (Eds.) (1996). Research ethics: A
psychological approach. Lincoln: University of Nebraska Press.
White, B. C. (1994). Competence to consent. Washington, DC: Georgetown University
Press.
Web sites:
http://www.informedconsent.co.uk/
2
http://www.irb-irc.com/IRB/consent_elements.html
3
TIPS FOR THE EXPERT WITNESS
1. Be prepared. Know your case. Reflect on ways you might be challenged in crossexamination. Do not be afraid to acknowledge that you spoke to your client’s attorney
beforehand, if you did so.
2. Look and act the part. That is, dress for the occasion. Confidence without arrogance.
3. Listen carefully to the question asked. If you do not understand it, say so.
4. Take your time answering questions. A slow thoughtful and clear response is better
than a quick impulsive rambling response. Remember the transcript does not reflect the
time between question and answer.
5. Answer the question asked. Do not elaborate beyond the question. For example many
questions require simply a YES or NO response. A line of questioning builds a case.
Elaboration may occur on redirect examination.
6. "I do not know" or “I don’t recall” are acceptable responses. Be comfortable with
them, but recognize the distinction. Do not guess or speculate.
7. Give verbal responses. You will be asked to answer the question if you nod your head
or respond "uh-huh."
6. Nothing a witness says can be "off the record." Everything said on the stand is "in the
record."
8. If your memory is exhausted say so and ask to refresh your memory by looking at your
notes or report. Remember anything you bring up to the stand is available for all counsel
to see.
9. Objections are between counsel. Stay out of it and don't read anything into it. It's part
of the determination of what is admissible. Remember that this is a legal decision, so
stop talking when an objection is raised and await direction from the court.
10. If you are being forced to answer a yes or no question which you truly cannot, inform
the judge that it is not possible to respond "yes" or "no" to the question and wait for
further instruction.
11. Consider yourself an educator of the court, but teach without pontificating. Maintain
your neutral, objective position. Your job is to be credible.
12. Do not allow yourself to respond to provocative or hostile cross examination with
anger, arrogance, or defensiveness. Stay on task. That will neutralize the cross
examination. Remember that opposing lawyers are only doing their job.
13. When criticized remember that such a focus constitutes a legitimate aspect of cross
examination. Tell the truth and only what you know. Do not be seduced into overexplanation. Stay nondefensive.
14. Talk to the jury or the judge. Begin your response by looking at the questioning
attorney, then move your gaze to primarily the judge and jury.
15. Be prepared to rely on relevant current literature as well as clinical knowledge.
Adapted and revised by Robin Deutsch, from:
Brodsky, Stanley L. (1991). Testifying in Court: Guidelines and Maxims for the Expert
witness. Washington D.C: American Psychological Association