Challenges in Forensic Ethics LINDSAY CHILDRESS-BEATTY, J. D. PH. D. DIRECTOR OF ADJUDICATION AND DEPUTY DIRECTOR, APA ETHICS OFFICE GERALD P. KOOCHER, PH. D. , ABPP DEAN, COLLEGE OF SCIENCE AND HEALTH, DEPAUL UNIVERSITY www. researchethics. com
APA Council of Representatives Approved New Forensic Guidelines in August, 2011 http: //www. apa. org/ethics/code/index. aspx http: //www. ap-ls. org/aboutpsychlaw/Specialty. Guidelines. php
Relationship of APA Ethics Code to Guidelines v. APA Ethics Code contains aspirational principles and enforceable standards v. Guidelines are aspirational and not enforceable v. Along with other sources, guidelines can inform the Ethics Committee but are not dispositive
The Most Common Ethical Problems in Forensic Practice v. Competence (Do you have the education and training necessary? ) v. Consent (Have you provided relevant consent across layers of clients? ) v. Role Complications (Have you clarified and held fast to your role obligations? ) v. Exceeding the Limits of the Data (Are the bases for your assessments well-founded? ) v. Consulting and Coaching (When does the cheating start? ) v. Dueling Experts (Fight fair, and don’t whine. ) v. Sectarian/Partisan experts (Hired by one side in public or behind the scenes. ) ØNeuropsych, IME, Custody
The Integrity Challenge "Lead us not into temptation, but deliver us from evil" (Matthew 6: 13, KJV) Maintaining personal, professional, and scientific integrity when our ethical code differs from those we work with (such as attorneys); focus on: ◦ Remaining impartial ◦ Avoiding conflicts of interest ◦ Resisting seduction and temptation… ◦ ◦ ◦ 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. To answer every question.
Competence DO YOU HAVE THE NECESSARY EDUCATION AND TRAINING?
Competence Issues Noted in the Specialty Guidelines for Forensic Psychology (SGFP) v. Acquisition of skills v. Representation of competencies v. Knowledge of the legal system and rights of individuals v. Scientific foundations v. Appreciation of Individual differences v. Appropriate use of services and products
Fundamental content domains in forensic practice v. Culture üWhat differs from normal psychcological practive in forensic work? v. Terminology üInter alia, sua sponte, ipsi dixit, what? v. Case law üHow do I generalize the findings? v. Evidence based practice in forensics v. What’s the standard?
How do we… v. Gain and maintain competence v. Assure that we understanding the legal system v. Have a firm scientific foundation v. Have the necessary personal (and personality) attributes v. Recognize and take account of interpersonal differences
Ultracrepidarian “Experts” Sadly, not an oxymoron… Definition: giving opinions on something beyond one’s knowledge. Sad Benefit: ultracrepidarians do not worry about this because they remain blind to their own limitations!
Consent HAVE YOU PROVIDED RELEVANT CONSENT ACROSS LAYERS OF CLIENTS?
Timing and documentation of notice are everything v. People have the right to know what you’re doing and why. v. Understand what you’re asking: consent, permission, assent. v. Keep careful documentation. ü(Lawyers: “If its not on paper, it didn’t happen. ”)
What will you ask and when will you ask it? What are you really asking for when you say, “Is that okay with you? ” Consent ◦ Competent, Knowing, Voluntary Assent ◦ Veto Power ◦ Therapeutic versus non-therapeutic context Permission ◦ Proxy Consent ◦ Substituted Judgment 13
Special issues… v. Do you need consent when evaluation or treatment are mandated? v. What happens when the person lacks capacity? v. What happens when the person lacks representation?
Standard 3. 10 (Informed Consent) b) For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual's assent, (3) consider such persons' preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual's rights and welfare.
Role Complications HAVE YOU CLARIFIED AND HELD FAST TO YOUR ROLE OBLIGATIONS?
Multiple Relationships in the APA Code of Conduct – the TEST 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.
Key Elements of a Potential Multiple Role Relationship Violation v. Inadequate consent v. Loss of objectivity v. Patient exploitation v. Disruption of treatment relationship or quality
Appearances are Important! v. Remember: “Reasonable Expectations” v Not, “I think I can be impartial”
To whom do I owe a duty of care and in what hierarchical sequence? The person in the room? The family, guardian, or attorney? The agency or institution? Society at large? All of the above?
“And Others With Whom They Work” Standard 3. 04 Avoiding Harm Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients and others with whom they work, and to minimize harm where it is foreseeable and unavoidable.
Multiple Relationships in the APA Code of Conduct A multiple relationship occurs when a psychologist is in a professional role with a person and vsimultaneously occupies another role with the same person, vat the same time is in a relationship with a person closely associated with or related to the psychologist’s client, or vpromises 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 mutually exclusive: vchoice of priorities: between patient welfare and assisting to the court. v. Choice of relationship with the patient–litigant: based on trust and empathy or one based on doubt and distance. v. Choice regarding level of involvement in the fabric of the patient–litigant's mental health: trying to better it or dispassionately evaluating it for the court.
Case example: What do you think? Dr. Doe was a psychology expert in a personal injury case. Her testimony helped Ms. Smith secure a large settlement. Mrs. Smith was very impressed with Dr. Doe and later saw her for therapy over three months. Two years later, Mr. and Mrs. Smith have a contentious divorce that requires a child custody evaluation. During a Family Court hearing, possible child custody evaluators were discussed, and Mrs. Smith’s attorney recommended Dr. Doe. The judge liked the idea, noting Dr. Doe’s expertise. Mr. Smith’s attorney objected, stating that Dr. Doe was previously involved with Mrs. Smith. The judge stated, “Well, that should make her job easier, ” and appointed Dr. Doe.
SGFP 4. 02. 01 Therapeutic-Forensic Role Conflicts Providing forensic and therapeutic psychological services to the same individual or closely related individuals involves multiple relationships that may impair objectivity and/or cause exploitation or other harm. Therefore, when requested or ordered to provide either concurrent or sequential forensic and therapeutic services, forensic practitioners are encouraged to disclose the potential risk and make reasonable efforts to refer the request to another qualified provider. If referral is not possible, the forensic practitioner is encouraged to consider 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 seek to minimize the potential negative effects of this circumstance (EPPCC Standard 3. 05).
Multiple Relationships in the APA Code of Conduct – If a Multiple Relationship Occurs 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.
Multiple Relationships in the APA Code of Conduct – Multiple Roles in Forensic Matters 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.
Exceeding the Limits of the Data ARE THE BASES FOR YOUR ASSESSMENTS WELL-FOUNDED?
Who the hell is Daubert! Daubert v. Merrell Dow 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. 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.
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.
Standard For Expert Testimony – Key Provisions Continued: 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.
Judge’s preliminary assessment Can focus on: vwhether something has been tested vwhether an idea has been subjected to scientific peer review or published in scientific journals vthe rate of error involved in the technique veven “general acceptance, ” in the right case It focuses on methodology and principles, not the ultimate conclusions generated.
Case Example: What do you think? Mr. and Mrs. Gin are involved in a high conflict custody case and the Family Court has appointed a Child Custody Evaluator. However, Mrs. Gin’s attorney is worried that much will be made of her fairly recent DUI. In order to get ahead of the issue, Mrs. Gin’s attorney hires Dr. Hire to conduct a substance abuse evaluation of Mrs. Gin. Dr. Hire is a thorough psychologist. He utilizes interviews and psychological testing of Mrs. Gin and collateral contacts with the nanny, the past two couples therapists, and Mrs. Gin’s past and current therapists. He also reviews Mrs. Gin’s medical and mental health records, as well as, the legal documents related to the custody case to date. Dr. Hire’s report notes that Mrs. Gin has a history of substance abuse and mood instability but is not currently drinking. Dr. Hire notes that much of her difficulties can be attributed to an unhealthy reaction to Mr. Gin. He notes that Mr. Gin is narcissistic, critical, and controlling and that Mrs. Gin is afraid of his anger. Dr. Hire recommends that Mr. Gin receive anger management training and notes the negative impact of critical and controlling behaviors on their children.
Standard 9. 01 Bases for Assessments a) Psychologists base the opinions contained in their recommendations, reports, and diagnostic or evaluative statements, including forensic testimony, on information and techniques sufficient to substantiate their findings. (See also Standard 2. 04, Bases for Scientific and Professional Judgments. ) (
Opinions of Psychological Characteristics (b) Except as noted in 9. 01 c, psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions. When, despite reasonable efforts, such an examination is not practical, psychologists document the efforts they made and the result of those efforts, clarify the probable impact of their limited information on the reliability and validity of their opinions, and appropriately limit the nature and extent of their conclusions or recommendations. (See also Standards 2. 01, Boundaries of Competence, and 9. 06, Interpreting Assessment Results. ) Standard 9. 01(b)
Records Review (c) When psychologists conduct a record review or provide consultation or supervision and an individual examination is not warranted or necessary for the opinion, psychologists explain this and the sources of information on which they based their conclusions and recommendations. Standard 9. 01(c)
Assessment Tools Selection and adequacy of instruments v. Understanding validity and reliability Face validity (? ) ◦ Content validity ◦ Predictive validity ◦ Construct validity ◦ Problem of the invalid construct (syndrome of the week) v. Controversial Tools (e. g. , the dolls)
Case Example: What do you think? Attorney Money: Dr. Hire, you were given a set of emails from Mrs. Johnson to Mr. Johnson, were you not? Dr. Hire: Yes, I was. Attorney Money: And did you read these emails as a part of your review? Dr. Hire: Yes, I did. Attorney Money: And what did you identify as issues regarding those emails? Dr. Hire: Well, these emails fit within the findings of the CCE that Mrs. Johnson has difficulties related to anger. They also show that she is narcissistic and has difficulty looking past her own needs. Her tone throughout the emails was disdainful. Mrs. Johnson’s focus was on making the time spent with the daughter equal between the parties and rehashing past issues in the marriage rather than the needs of the daughter. In the 5 emails, there were 7 instances where Mrs. Johnson completely ignored a reasonable suggestion of Mr. Johnson regarding their daughter’s distress when visiting with her and only 1 suggestion by Mrs. Johnson related to ameliorating her daughter’s distress. Mr. Johnson continued throughout the emails to try to get Mrs. Johnson to acknowledge the distress the little girl feels.
SGFP 9. 02 Use of Multiple Sources of Information (vs. bogus quantification) Forensic practitioners ordinarily avoid relying solely on one source of data, and corroborate important data whenever feasible (American Educational Research Association, American Psychological Association, & National Council on Measurement in Education, in press). When relying upon data that have not been corroborated, forensic practitioners seek to make known the uncorroborated status of the data, any associated strengths and limitations, and the reasons for relying upon the data.
Language and Culture Appropriate Assessment in a Multi-Cultural Society ◦ Language + Culture ◦ Translator v. Interpreter What’s in a Norm? ◦ 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.
Data Collection and Validity Issues v. Conducive climate and context v. Avoiding re-traumatization v. Detecting coaching Some data collection involves special challenges.
Syndromal “Evidence” --Correlation ≠ Causation The term syndrome refers to the association of several clinically recognizable features vsigns (observed by a practitioner), vsymptoms (reported by the patient), vphenomena or characteristics that often occur together, so that the presence of one feature signals the likely presence of the others.
“The Starbucks Effect” “Living Near a Starbucks Might Double Your Home’s Value”
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 have no specified 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).
Examples of “syndromes” v. Down Syndrome ◦ trisomy 21 v. ROHHAD Syndrome ◦ Rapid-Onset Obesity with Hypoventilation, Hypothalamic, Autonomic Dysregulation, and Neural Tumor Syndrome v. Stockholm syndrome v. Parental alienation syndrome v. Child sexual abuse accommodation syndrome v. Damocles Syndrome
Parental Alienation Syndrome Parental alienation syndrome (abbreviated as PAS) is term coined by Richard A. Gardner in the early 1980 s to refer to what he describes as a disorder in which a 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. Gardner, RA (2001). "Parental Alienation Syndrome (PAS): Sixteen Years Later". Academy Forum 45 (1): 10 -12. http: //www. fact. on. ca/Info/pas/gard 01 b. htm. Retrieved on 2009 -03 -31 http: //www. fact. on. ca/Info/pas/gard 01 b. htm
Conducting the Evaluation: Scientific foundations are critical
After the Evaluation v. Anticipating the request for data v. Nature and production of the report ◦ Focus, details, payment… v. Who gets the report? ◦ Planned uses (e. g. , civil, criminal, custody) v. Requests for Modification of Reports v. Critiquing the reports of other professionals
Consulting and Coaching WHEN DOES THE CHEATING START?
Case example: What do you think? Danforth, Williamson, a firm specializing in family law in a large city is considered one of the premier firms and an especially good choice for a divorcing spouse in cases where a custody battle is likely. Danforth posts the following ad to its website: Wanted: State licensed psychologist for PT position as in-house trial consultant. Position will involve witness evaluation and preparation, case development, trial preparation, review of child custody evaluations, and short-term therapy. Experience in child custody, substance abuse, domestic violence, and treatment of anxiety and depression in adults preferred.
The culture of litigation: Lawyers’ view Attorneys function as advocates for their clients. ◦ Goal: achieving a best possible outcome. The attorney’s income may link directly to the outcome of the case. ◦ Example: contingent fee arrangements. Two rules for success in litigation: ◦ 1) Don’t disclose everything you know unless legally required to do so.
Lawyers and mental health professionals live in culturally different workplaces. “Look, I’m not blaming you. I’m just suing you. ”
Dueling Experts FIGHT FAIR, AND DON’T WHINE.
Can they do that? The principle of advocacy allows lawyers to shop for experts. ◦ Discovery rules vary by jurisdiction and context. Implicit ethical conflict for psychologists: ◦ No attorney will hire an expert whose views do not advance their client’s cause.
The Ethical Forensic Psychologist’s View We serve as advisors to the court on scientific principles, research data, professional standards. We should take an integrity-laden stance. ◦ You can buy my professional time, but you cannot purchase my expert opinions. I should expect any opposing counsel to have my discovered work reviewed by his/her own experts.
Serving as a disclosed expert Everything you have to say will be on the record and open to scrutiny. You will be cross-examined. Those who disagree with you will seek to discredit you with multiple strategies, hoping you’ll screw up. 57
Case Example: What do you think? Dr. Wilson was contacted by her good friend, Attorney Smith, who has a client involved in a child custody battle. Attorney Smith asked Dr. Wilson to meet with her client, Mr. Thomas, and prepare him for his upcoming child custody evaluation. Dr. Wilson met with Mr. Thomas on four occasions. v. She reviewed the procedures often utilized in child custody evaluations. v. She helped him complete the forms for the evaluation, noting he wanted to stay positive and child focused. v. She suggested he bring pictures of the children to his first interview with the evaluator, as well as the children’s report cards, activity schedules, and reward charts. v. Dr. Wilson also reviewed possible tests, such as the MMPI-2 and Rorschach Ink Blot method. She gave examples of good responses and provided tips on doing well on the tests. Attorney Smith was very happy with the preparation that her client received from Dr. Wilson. He seemed less anxious about the process and more self-confident.
The Seduction Paradigm v. Only the psychologist’s own integrity stands in the way. v. Risk of public embarrassment during cross examination does exist. (Tendencies to pre-trial settlements and protections associated with expert testimony given in court tend to minimize such hazards and embolden some entrepreneurial experts. ) v. After all, experts are entitled to their own opinions.
Temptations How can I provide valid expertise and ◦ Risk continuity of employment? ◦ Avoid becoming a “partisan expert? ” Trial prep versus inappropriate coaching
The Stealth Consultant Working “under the radar”
Invisible psychologist or stealth expert The consultant who will never testify and will remain invisible to legal discovery. Roles: ◦ Review case materials ◦ Consult to counsel on strategies for additional data requests, cross examination, jury selection, etc. The slope becomes more slippery for some who compromises principle while invisible.
The Key Ethical Challenges Is it ethically permissible to help discredit the work of a colleague, raise reasonable doubt, or shift the preponderance of evidence while remaining invisible? Yes, if one can retain professional integrity and scientific rigor. ◦ The social value of presenting valid psychological data in the justice system depends on respecting the rules of that system.
SFG 11. 05 Commenting Upon Other Professionals and Participants in Legal Proceedings When evaluating or commenting upon the work or qualifications of other professionals involved in legal proceedings, forensic practitioners seek to 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.
The Key Ethical Challenges Avoid the trap of confirmatory bias: ◦ Looking only for the evidence that supports “our side. ” VERSUS ◦ Providing the “whole truth, ” to the extent we know it. “Land!”
Costs of invisibility The invisible psychologist may lose control over how counsel uses (or misuses) the expert advice you provide. Your invisibility may not last forever.
What about my colleagues’ feelings? If you plan to step into the forensic arena, you must prepare to defend your expert qualifications and opinions with evidentiary rigor… …or face the consequences.
Eschewing the Sectarian/Partisan Expert CONDUCTING NEUROPSYCHOLOGY, IME, AND CUSTODY EVALUATIONS
“Category 5 Divorce” Sample Events Real or Manipulative Duty to Warn/Duty to Report Triggers v. Case Example: Patient tells psychologist about his desire for revenge against his ex/spouse. v. Case Example: ◦ Picture given to psychologist by one parent in a custody dispute that shows bruising on child. Picture is of child’s back and torso so psychologist is unable to verify that it is the child involved or when the bruising occurred. What additional facts would you like to know?
“Can you believe it! My idiot spouse took the kids to see topless dancers at a bar!”
Who has the legal authority to initiate evaluation or treatment for a child? v. Parents who are separated v. Parent with sole custody v. Parent with joint or shared custody v. Parent with visitation v. Parents who suspect sexual abuse
More “Category 5 Divorce” Events “Stealth” Custody or Change of Circumstance Evaluations can occur so consider: ◦ Elements for consent to evaluation of parties and children. ◦ Elements for consent to needed for collaterals. ◦ All parties must consent to release of joint records.
Can a clinician refuse to share records based on specific factors even with a valid release? v. Unpaid Bills v. Chilling Effect on Treatment
Still More “Category 5 Divorce” Events Who has access to court mandated reports? ◦ Judge, counsel, parties? Release of raw psychological test data and test materials. ◦ Current ethics code ◦ Copyright violations ◦ Contract with testing companies ◦ Destroy usefulness of test
Case Example: Reduce, Reuse, Recycle? Dr. Forensic was appointed to conduct a court-ordered child custody evaluation when Mr. and Mrs. Trouble divorced. The evaluation took over 25 hours and involved standard forensic methodology, including interviews, psychological testing, parent-child observations, review of documents, and collateral contacts. About six months later, Dr. Forensic received a subpoena from Mr. Trouble’s employer. Immediately following the completion of the child custody evaluation, Mr. Trouble was terminated by his employer, who claimed his performance was unsatisfactory and that he misused his company’s credit card. Mr. Trouble had filed a lawsuit against his employer, claiming he has suffered emotional distress and mental anguish. The subpoena requested that Dr. Forensic release all test data on Mr. Trouble. The subpoena also requested that Dr. Forensic appear at a deposition in two weeks.
Fees DOING IT CORRECTLY
When determining fees Forensic practitioners may consider salient factors such as: vtheir experience providing the service vthe time and labor required vthe novelty and difficulty of the questions involved, vthe skill required to perform the service vthe fee customarily charged for similar forensic services vthe likelihood that the acceptance of the particular employment will preclude other employment vthe time limitations imposed by the client or circumstances, vthe nature and length of the professional relationship with the client vthe client’s ability to pay for the service, and vany legal requirements. o SGFP 5. 01 Determining Fees
Standard 5. 02 Fee Arrangements v. Clarify to the client the likely cost of services whenever feasible, and make appropriate provisions in those cases in which the costs of services is greater than anticipated or the client’s ability to pay for services changes. v. Seek to avoid undue influence that might result from financial compensation or other gains. Because of the threat to impartiality presented by the acceptance of contingent fees and associated legal prohibitions, forensic practitioners strive to avoid providing professional services on the basis of contingent fees. v. Letters of protection, financial guarantees, and other security for payment of fees in the future are not considered contingent fees unless payment is dependent on the outcome of the matter.
Letters of Protection Attorneys may request that mental health practitioners accept a “letter of protection, ” which delays payment for professional services until the legal case has been completed. Beware of the potential for violation of ethics, such as conflict of interest and loss of objectivity. See: Woody, R. H. (2011). Letters of Protection: Ethical and Legal Financial Considerations for Forensic Psychologists. Journal of Forensic psychology Practice, 11, 1 -7.
Thank you. Ethics Educative Consultations: APA Ethics Office 202 -336 -5930
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