Ethics in Forensic Practice

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Transcript Ethics in Forensic Practice

Ethics in Forensic Practice

Eschewing the Ultracrepidarian Expert

Gerald P. Koocher, PhD, ABPP

www.ethicsresearch.com

Ultracrepidarian “Experts”

Sadly, not an oxymoron …



Giving opinions on something beyond one’s knowledge.



The great part of being 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, 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.  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.

Key References

     http://www.apa.org/ethics/code/index.aspx

http://www.apa.org/practice/guidelines/forensic-psychology.pdf

http://www.apa.org/practice/guidelines/child-custody.pdf

Jarela, J. & Conroy, M.A. (2012) Professional Competiencies in Forensic Psychology.

Professional Psychology: Research and Practice, 43

(5), 410-421.

LaDuke, C., DeMatteo, D., Heilbrun, K., & Swirsky-Sacchetti, T. (2012). Clinical Neuropsychology in Forensic Contexts: Practitioners' Experience, Training, and Practice

Professional Psychology: Research and Practice, 43

(5), 503-509.

Topical seminar plan

 Current Liability Claim Trends  Competence in forensic practice  Basic Skills  Role(s) of the expert  Who is the client  Confidentiality and Record Keeping  Assessment issues  Ultimate opinion testimony  Interesting cases © Gerald P. Koocher, 2013 all rights reserved

WHO GETS IN TROUBLE AND WHY?

Fundamentals of Professional Liability and malpractice

Where does competence enter the mix?

The 4 D’s of Legal Liability



The 4

’s:

ereliction of

uty leading

irectly to

amages

 When does a professional duty apply?

 What constitutes dereliction?

 How can one demonstrate direct causation?

 How can we measure damages?

Standards of care:

the “good enough clinician”



Mistake or “judgment call” error



People cannot avoid mistakes (but a mistake ≠ negligence)



Departure from standard of care



Many practitioners would not do it



Gross negligence



Extreme departure from usual professional conduct most practitioners would not do it

Among APAIT Policy Holders in Treaty Year 2011

 Estimated odds of a licensing board complaint   0.58% (.0058) up from 0.2% in 2004  Estimated odds of a civil law suit   0.35% (.0035) up from 0.1% in 2004 © Gerald P. Koocher, 2013 all rights reserved

Most Common Complaint Triggers

 Improper care/evaluation  Credit/billing impropriety  Non-sexual dual relationship/boundary violations  Suicides  Sexual abuses - dual relationship/boundary violations  Employment practices © Gerald P. Koocher, 2013 all rights reserved

Common Trends: Boundaries & Competence

Significant Claims and New Trends



Boundary Violations



Suicide



Homicide Wrongful death Improper treatment



Dual Relationship

Psychologist accused of sexual assault on a client

 http://www.coloradoconnection.com/n ews/story.aspx?id=844852#.UO2f0Hd

COLORADO SPRINGS, COLO. -- A licensed psychologist has been arrested on the charge of Sexual Assault on a Client by a Psychotherapist, according to Colorado Springs Police.

Dr. Janice Husted was arrested on the charge after a police investigation. A young man told police that a sexual relationship developed between him and Husted, his psychologist.

Police said the man was assigned to receive counseling related to his combat deployments during the summer of 2010. The sexual relationship, according to what the victim told police, started in Aug. 2011 and continued until Oct. or Nov. 2011. The man said the psychologist told him on several occasions that they had to be careful to not appear that they were on dates, police said. Police said the man told the psychologist he did not want to have a secret relationship but she said they couldn't have an open relationship until two years passed. After saying he did not want to wait two years, the psychologist ended the relationship, police said.

Sexual Assault on a Client by a Psychotherapist is a Class 4 Felony.

Some things don’t change



Want to cut your risk of an “adverse incident” by 95%?

 Don’t engage in sexual with current or former clients or their relatives.

  Don’t do anything that someone might mistake for a “

forensic assessment

,” without adequate training, informed consent, and thorough data collection.

Don’t switch roles in a professional relationship without well documented consent by all parties.

Personal Risk Assessment

Consider:



Patient Risk Characteristics



Situation or Contextual Risk



Potential Disciplinary Consequences Modified by:



Therapist’s “Personal Toolbox of Skills”

The Case of the Incompetent Colleague

 A father alleged that he was falsely accused of sexually abusing his daughter by the maternal grandmother who sought sole custody.  He attributed the motive as continuing to receive child support payments from him.  His attorney provided me a copy of an evaluation conducted by a family court examiner, licensed as a mental health counselor and certified sex therapist. This report raised issues of professional standards for competently interpreting assessment results. © Gerald P. Koocher, 2013 all rights reserved

 For example, the report included statements such as "the test results indicate with 100% confidence that the father had sexually abused his daughter."  Research on the three instruments used indicated poor reliability and validity as well as cautions for using these test instruments to examine sexual offenders.

 After getting written consent from the father to review the report with the evaluator, I called her and shared my concerns. She disagreed with my concerns regarding her report and expressed an opinion that I was not qualified to evaluate alleged sex offenders since I did not have the sex therapist certification and training needed to understand the assessment techniques she used. © Gerald P. Koocher, 2013 all rights reserved

 The psychologist filed a complaint with the counselor's license board alleging lack of competence in conducting assessments, and later received a response that the counselor was not found to be incompetent.  The counselor had a Ph.D. from a program that was Why take this action?

What evidence could you use, given the defendant’s The case to be heard at a small county court the a close relationship with the judge on the case.

 Based on that information, I did not follow through with an examination of the father since my having filed a complaint about the counselor may have resulted in the judge being biased about my reports for the case.

Patient Risk Characteristics



Nature of Problem



History



Diagnosis and Level of Function



Expectations



Therapeutic readiness



Financial Resources Including Insurance Coverage



Litigiousness/court involvement



Social Support Network

Situational Risk Factors

   

Nature of relationship



Therapeutic alliance Real world consequences of your work Setting

 

Rural versus urban Solo practice versus institutional practice Type of service requested



Solo CBT



Family therapy



Forensic Evaluation

•

Court appointed or privately retained?

Clinician’s personal toolbox of skills



Psychological makeup/personal issues



Personal and professional stress levels



Training background/qualifications



Experience



Resources



Consultation



Access to other providers



Involvement with professional groups

So what should I do?

 Know the ethical and legal standards that apply.

 Pay attention to practice guidelines.

 Provide comprehensive informed consent.

 Conduct a conservative evaluation of your competence with clinical populations and activities:  Intellectual competence  Technical competence  Emotional competence © Gerald P. Koocher, 2013 all rights reserved

Get and Understand Professional Liability Insurance

 Occurrence Policies  Pay once, covered “forever”  Claims Made Policies  Must keep coverage current  Tail coverage (trailing claims)  Nose coverage (prior acts) © Gerald P. Koocher, 2013 all rights reserved 2011 2012 2013 2014 2014 2015 2015 2016 2017

High Risk Patients & Situations

Assisting in a Parasomnia Defense?

 Parasomnias: sleep disorders that involve unusual movements, behaviors, emotions, perceptions, and dreams that occur while falling asleep, between sleep stages, or during arousal from sleep.  A psychologist specializing in sleep disorders and have been asked on several occasions to serve as an expert witness for cases involving suspected parasomnia.

 Should the psychologist take the case?

 One such case involved a father accused of sexual misconduct with a minor. The defendant was co-sleeping with his 9-year old daughter.

 The daughter informed her mother that he had put his hand down her pants during the night.

 The father/defendant professes having no awareness of this incident. Defense counsel sought expert testimony to determine if the father's account of lack of awareness is possible.

 Such parasomnias are present in the literature and the prevalence of parasomnias in the adult population is strikingly high (2-4%). Interesting clinical reports include quite complex behaviors (i.e. sleep driving, eating raw chicken etc).

High Risk Patients

 Patients who organize their internal object world into hated and adored objects  Borderline Personality Disorder  Narcissistic Personality Disorder  Dissociative Identity Disorder (MPD)  PTSD (complex)  Patients who were abused as children or are in abusive relationships © Gerald P. Koocher, 2013 all rights reserved

Higher Risk Patients

 Potentially suicidal patients  Conduct frequent risk assessment utilizing current, evidence based methods essential  Potentially violent patients  Patients involved in unrelated lawsuits  Patients with recovered memories of abuse © Gerald P. Koocher, 2013 all rights reserved

Forensic Traps

 Just trying to help a friend, client, etc.

 The “vacation time referral”  Anticipating litigation  (I didn’t see that coming!)  To whom do I owe what duties  Collaterals  Clients for limited purpose © Gerald P. Koocher, 2013 all rights reserved

The Integrity Challenge

"Lead us not into temptation, but deliver us from evil" (Matthew 6:13, KJV)  Maintaining personal, professional, and scientific integrity…  When your ethical code differs from those you must work with.

 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.

Dealing with novel circumstances-

when you recognize you don’t have a roadmap  Cases of first impression or novel circumstances  What legal questions apply?

 What psychological data might help answer those questions?

 How can I apply my scientific and professional knowledge to assist the court in making its decision?

Examples of first impression cases: 1979-2013

 Juvenile organ donorship  Requests for “sub-optimal” medical treatment  Surrogate mother changes her mind  Lesbian “mothers” dispute custody  Lesbian partners and reciprocal adoption.

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.

Risky Career Periods

 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. © Gerald P. Koocher, 2013 all rights reserved

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.

 Divorce or other family based stresses involving teenage or young adult children, onset of a chronic illness, and apprehension about aging illustrate mid-career difficulties that can impair professional judgment. The majority of psychotherapists who engage in sexual relationships with their clients are middle-aged.

Risky Career Periods



Another elevated risk period can occur at the far end of the career cycle.

 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. © Gerald P. Koocher, 2013 all rights reserved

What do I put on my CV?

 I have consulted on a nationally high-profile case which is now complete. I have not listed the specific case on my CV. I only list it as a "high profile case," and I have not told potential employers or others about my

Whose privacy/confidentiality do

involvement in the case out of concern for privacy/confidentiality. Is this the best way name the case to help build my CV?

job hunting.

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.

 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.

 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/app s/pbcs.dll/article?AID=/20080720/NEW S05/807200337/-1/BUSINESS04 © Gerald P. Koocher, 2013 all rights reserved

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…  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." © Gerald P. Koocher, 2013 all rights reserved

 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 3 rd then suspended from practice earlier in the month after allegations surfaced that he had secretly videotaped a woman in his office bathroom.

Feet of Clay (part 2)

 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/lo calnews/2003808201_greenberg27m.ht

APA’s Feet of Clay Legal Advocacy and Scientific Inconsistency Problems (?)

 Roper v. Simmons and Hodgson v. Minnesota ithrough the lens of Justice Scalia  “We need not look far to find studies contradicting the Court’s conclusions. As petitioner points out, … (APA)… claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota … the APA found a “rich body of research” showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement.

“The APA (now cites) psychology treatises and studies too numerous to list here…”  Given the nuances of scientific methodology and conflicting views, courts –which can only consider the limited evidence on the record before them – are ill equipped to determine which view of science is the right one.

 Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior…” © Gerald P. Koocher, 2013 all rights reserved

Competence in Forensic Practice

Forensic Practice as a Paradigm for Risky Clients & Situations

Dealing with the Legal System

What competencies should one reasonably expect of forensic practitioners?

Fundamental content domains in forensic psychology

Competence Issues Noted in the

Specialty Guidelines for Forensic Psychology

 Acquisition of skills  Representation of competencies  Knowledge of the legal system and rights of individuals  Scientific foundations  Appreciation of Individual differences  Appropriate use of services and products © Gerald P. Koocher, 2013 all rights reserved

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 cross examination of the facts.

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  our clients and show them unconditional positive regard.

Attorneys believe that they can (and must) at times defend people they detest.

Little progress will occur in our work with clients, if we do not like/respect each other.

We constantly collect data and try to ask all the important and sensitive questions.

 Attorneys may choose not to ask their clients certain questions (e.g

., “Did you do it?”) in order to defend them vigorously.

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%)

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. © Gerald P. Koocher, 2013 all rights reserved

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 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. © Gerald P. Koocher, 2013 all rights reserved

Case Details:

 Daubert and Schuller submitted expert evidence of their own suggesting that Bendectin could cause birth defects.  That evidence, 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 evidence had not yet won acceptance 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

 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.

 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, 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-the counter.

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 expert in

Kumho

was insufficiently reliable.

Daubert

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. © Gerald P. Koocher, 2013 all rights reserved

Vetting the Expert?

The case of the missing voir dire…

 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.“ © Gerald P. Koocher, 2013 all rights reserved

Vetting the Expert?

The case of the missing voir dire…

 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.

Vetting the Expert?

The case of the missing voir dire…

 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 court-appointed witness paid by the state.

Vetting the Expert?

The case of the missing voir dire…



"Traditionally the court isn't involved in second-guessing the defense attorney's choice,"

Wieland said. "This is a very 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.

Are you ready to consult as an expert?

EXPERT WITNESS ACTIVITY

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.

Can they do that?

 The principle of advocacy allows lawyers to shop for experts.

 Discovery rules vary by jurisdiction and context.

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.

The Seduction Paradigm

 Only the psychologist’s own integrity stands in the way.  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.  After all, experts are entitled to their own opinions.

Temptations

 How can I provide valid expertise and  Risk continuity of employment?

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 compromise 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.

The Key Ethical Challenges

 Avoid the trap of confirmatory bias  Looking only for the evidence that supports “our side.”  Providing the “whole truth,” to the extent we know it.

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.

Small Potatoes or Hills of Beans:

When Seemingly Minor Ethical Issues Explode

TREATMENT RECOMMENDATION OR FORENSIC EVALUATION?

Treatment Recommendation or Forensic Evaluation?

 Neuropsychological evaluation recommended by school:  Private neuropsychologist agrees  Child does not cooperate  Mother asks father to help  Child complies  18 recommendations follow  One catches fire © Gerald P. Koocher, 2013 all rights reserved

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 08-11491-RGS JOSEPH COGGESHALL and L. LYNN LESUEUR, v.

MASSACHUSETTS BOARD OF REGISTRATION OF PSYCHOLOGISTS, et al., MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS Plaintiffs L. Lynn LeSueur, a psychologist licensed to practice by the Commonwealth of Massachusetts, and Joseph Coggeshall, the father of one of LeSueur’s patients, brought this lawsuit challenging the decision of the Massachusetts Board of Registration of Psychologists (Board) to place LeSueur on probation for two years.

WHO IS MY CLIENT AND WHAT’S A CLIENTS FOR LIMITED PURPOSE?

Rotell v. Kuehnle

ESTATE OF MATHEW ROTELL, by and through the personal representative, STEPHEN L. ROTELL, STEPHEN L. ROTELL, individually, and ADAM ROTELL, a minor, by and through his natural guardian, STEPHEN L. ROTELL, Appellants, v.

KATHRYN KUEHNLE, KRISTINA GAIME, LIFEPATH, INC. d/b/a/ LIFEPATH HOSPICE, a Florida corporation, and DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellees.

Case No. 2D09-501.

District Court of Appeal of Florida, Second District.

Quote from Kuehnle’s Attorney

• “In this case, . . . it would be a quantum leap to say that a psychotherapist or a psychologist, in Dr. Kuehnle's position, can be held responsible to try to predict and warn of the behavior of someone they are not even providing treatment to. That would be a ridiculous leap under the case law and the state of the law in Florida to hold Dr. Kuehnle to that standard, and frankly, to do so would be creating law that does not exist.

Summary Judgment granted at Circuit Court and reversed by Court of Appeals • • …an issue of fact with respect to whether Dr. Kuehnle knew or should have known that the children were subject to ongoing abuse by their mother such that the professional standard of care required Dr. Kuehnle to warn Stephen Rotell or appropriate authorities of such abuse. Thus the circuit court erred in granting summary judgment in favor of Dr. Kuehnle at this stage of the proceedings.

Based upon the foregoing discussion, we reverse the summary judgment in favor of Dr. Kuehnle and remand for further proceedings. In so doing, we express no opinion with respect to whether Dr. Kuehnle breached the duty of care or whether any such breach proximately caused the Rotells' injuries.

THE HAZARDS OF INFLICTED INSIGHT

The Troubled College Professor

 College professor has anxiety attack and seeks treatment.

 Therapist uses CBT to treat the anxiety and uncovers fantasy life that troubles the professor (quest for the perfect woman).

 They agree to explore this together.

 The confession triggers more anxiety.

 The helpful sister-in-law arranges consultants.

 The professor complains of therapist incompetence.

 The therapist’s records don’t help.

 The state’s expert misses the point and helps the defendant’s expert close the case.

JUST DOING MY JOB

The Internal Case Review

 Medical patient applies for disability.

 Psychologist working for insurance company reviews claim – offers no opinion on medical diagnosis, but recommends disability payments for depression.

 Insurance company pays disability for depression.

 Angry client complains.

• The claimant asserts - psychologist should have known about my medical diagnosis and acted as a tool of the employing insurance company.

The “Removal” Case

 Court orders evaluation for “Removal Petition” post divorce.

 Psychologist conducts evaluation, but refused to read “extraneous material” angering one party.

 Judge(s) adopt/uphold recommendations.

Federal Civil Rights Law Suit

 7 defendants including psychologist, 3 judges, police officer, and court social worker.

Sue’s own lawyer - loses

Stephen Joseph McIsaac v. Anna Chiccarelli 01-1169-C SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX 16 Mass. L. Rep. 738; 2003 Mass. Super. LEXIS 260 August 25, 2003, Decided © Gerald P. Koocher, 2013 all rights reserved

Ethical Fundamentals of Multiple Role Relationships and Boundary Traps

Key Elements of a Potential Multiple Role Relationship Violation



Inadequate consent



Loss of objectivity



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  (1) simultaneously occupies another role with the same 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 mutually exclusive choice of priorities: between 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.

Multiple Relationships in the APA 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.  Relationships not reasonably expected to cause impairment or risk exploitation or harm are not unethical.

Multiple Relationships in the APA 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.

Multiple Relationships in the APA 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 decision- maker.

 But will it help the client, or compromise treatment?

Draft Forensic Specialty Guidelines



Providing Forensic Therapeutic Services

 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.

Draft Forensic Specialty Guidelines

 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.

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.

General considerations when contemplating a blending of roles:

 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 attorney?

The agency or institution?

Society at large?

All of the above?

To whom do I owe what obligations?

 Precisely who made the “requests,” and A court diagnostic center routinely performs pre-trial sexual offender risk assessments requested by the court.

what level of consent and privilege been “court ordered” on a pre-trial basis.

 The evaluations are released only to the defense attorney, with the understanding that they would later be  What ethical concerns arise from need to discuss the the hesitancy on the defendant's part to disclose relevant determination raises many issues related details when they had not been convicted of an offense. to consent and Fifth Amendment rights.

Confidentiality

Forensic Perspectives on Privacy, Confidentiality, Privilege, & Mental Health Records

118

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/

Privacy

 The Constitutional right of individuals to choose for themselves whether, when, and how private information will be revealed.

 The word privacy does not appear in the Constitution, but we can infer the concept in:  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 © Gerald P. Koocher, 2013 all rights reserved

Confidentiality and Privilege

 Confidentiality: The duty imposed on professionals to keep information disclosed in professional relationship in confidence.

 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.

United States v. Chase

, 340 F 3d 978 (9

Cir. 8/22/03)

  Gene Chase received treatment at Kaiser Permanente from psychiatrist Kay Dieter in 1997. His symptoms included irritability, depression, and intense anger including episodes of rage and obsessive rumination against certain people, including participants in various legal proceedings in which he was a defendant.

Chase was diagnosed with “bipolar type II disorder,” received disability benefits due to his psychiatric condition. He met with Dieter every few months for medication management, and more often (bi-weekly to monthly) with psychologist Robert Schiff for psychotherapy. © Gerald P. Koocher, 2013 all rights reserved

United States v. Chase

 In August,1999, Chase showed Dieter his day planner, containing a list of names, addresses, and social security numbers - including 2 FBI agents who had investigated him. Chase confided that he had thoughts about injuring or killing them and had threatened other people on the list several times during the prior 5 years.  Dieter worried that Chase might act on his homicidal threats. He told her that he had no intention of acting on these thoughts immediately. 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. © Gerald P. Koocher, 2013 all rights reserved

    In October, 1999, Chase called 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 Dieter to contact the local police in Corvallis, OR, Chase's home town. Dieter spoke with the FBI and disclosed the threatening statements Chase had made during his therapy sessions, identifying the potential targets.

Chase repeated the 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…

 Chase's communication to Dieter of threats to third parties was a confidential communication, ordinarily, subject to a federal testimonial privilege.  Dieter properly disclosed the threats to law enforcement personnel.

 Dieter's disclosure did not destroy the federal testimonial privilege. The court held, “…there is no dangerous-patient exception to the federal psychotherapist-patient testimonial privilege.”  However, the court did not reverse the conviction based on the district court's error allowing 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.” © Gerald P. Koocher, 2013 all rights reserved

When it comes to confidentiality, the therapist knows best?

Ithaca therapist refuses to turn over notes, charged with contempt 6:02 PM, Jan 18, 2013 |    Dianea Kohl spent more than 25 years as a state-licensed marriage and family therapist without encountering legal troubles. But in 2012, the Ithaca resident faced court battles in two area counties involving what she considers a violation of the sanctity of the therapist-client relationship — a violation she believes could have a chilling effect on other counselors and their clients.

“There are only two exceptions to confidentiality — only if I have knowledge of child abuse, or if someone is actively suicidal or homicidal can I breech confidentiality,” Kohl said.

Kohl first ran into trouble early last year when she was called to testify in Steuben County Family Court regarding a child custody case.

   Both the father involved in the dispute and his 3-year-old child had been to court-ordered therapy sessions with Kohl. Christine Valkenburg, the law guardian who represented the child, asked that Kohl provide the case notes from those sessions. Instead, Kohl presented a summary of those notes to the court.

“The law guardian wanted all of my therapy notes. Why did she want my notes unless she thinks I’m hiding something?” Kohl said. “She could not give a reason why she wanted to see the notes. The law guardian went to the judge, and the judge issued an order. That’s when I got my own lawyer.



Opposing views

  Valkenburg didn’t see it that way, and neither did Family Court Judge Joseph Latham. Latham signed a contempt of-court order against Kohl in February, and the next thing Kohl knew, she was under arrest and in handcuffs.

“I was arrested June 2. There had been a warrant out since February, so I thought they decided not to do anything,” Kohl said. “I was flabbergasted when a state trooper handcuffed me in broad daylight on Route 13. I was shocked.”  Kohl eventually compromised and gave her notes directly to Latham to review. Kohl had discussed the order with her client and received the judge’s promise that only he would see them and that some text would be redacted.

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. © Gerald P. Koocher, 2013 all rights reserved

Limits on Confidentiality per 20010 APA Ethics Code

 Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal 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. © Gerald P. Koocher, 2013 all rights reserved

Limits on Confidentiality per 2010 APA Ethics Code

 Unless it is not feasible or is contraindicated, the discussion of confidentiality occurs at the outset of the relationship and thereafter 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.

“Category 5 Divorce” Sample Events

 Real or manipulative Duty to Warn Triggers  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?

“Can you believe it! That idiot took the kids to see topless dancers at a bar!”

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?

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 (more on this later)  Current ethics code  Copyright violations  Contract with testing companies  Destroy usefulness of test © Gerald P. Koocher, 2013 all rights reserved

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  Mentally Disabled  Unsafe drivers

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



Thompson v. County of Alameda

 Other progeny of

Tarasoff

Still more exceptions to confidentiality

 Health oversight or managed care  TPO: treatment and payment operations under HIPAA  Bill collection  Client status disclosures  Complaints/lawsuits and threats by patients  Law enforcement personnel (very few states) © Gerald P. Koocher, 2013 all rights reserved

Still more twists on the confidentiality rights of dead people

 Middlebrook, D. W. (1991).

Anne Sexton: A

biography.

New York: Vintage Books.

 Martin Orne, MD, PhD 

Swidler & Berlin and James Hamilton v.

United States U.S. 97-1192.

 Opinion by Rehnquist, joined by Stevens, Kennedy, Souter, Ginsburg, and Breyer, held that notes were protected by attorney client 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

Redmond,

Still more exceptions to confidentiality per HIPAA

 Deceased Patient  Legal representative of estate unless specifically prohibited by state law (Privacy Rule)  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) © Gerald P. Koocher, 2013 all rights reserved

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.”     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 © Gerald P. Koocher, 2013 all rights reserved

Records? What records?

6. 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.) © Gerald P. Koocher, 2013 all rights reserved

“The Compleat Record Keeper”

with forensic annotations from the

Psychologists’ Desk Reference

      

Identifying information First contact Legal notifications



Clarification of client status, court orders, billing/payment, etc.

Relevant history and risk factors



Documents reviewed Medical or health status Medication profile Why is the client in your office?



Referral questions

        

Current status Itemized list of data collected



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?



No!



Yes!

 Forensic evaluations ≠ health services.

 Some such evaluations may assign diagnoses.

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.

Privacy Rule Basics

 Original purpose was to protect Americans from losing their health insurance.  Congress encouraged electronic transmission of health information to third party payers to increase 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)  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  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…” © Gerald P. Koocher, 2013 all rights reserved

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.

 State law requirements to obtain informed consent before releasing such information remain in effect.

More Privacy Rule Basics

 Psychotherapist-Patient Privacy Protected in 3 ways:  Minimum Necessary Disclosure  State Law Pre-emption  Special Protection given to m ental health information by dividing into two categories: • • Protected Health Information (PHI) or the “Clinical Record” “Psychotherapy Notes” © Gerald P. Koocher, 2013 all rights reserved

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 and frequencies of treatment 4. Results of clinical tests (including raw test data)      5. Summaries of:  a.

diagnosis b.

What are “psychotherapy notes?”

 Actual language of rule on psychotherapy records or notes :  “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.” © Gerald P. Koocher, 2013 all rights reserved

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?”

    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, 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  Actual language of rule is broad  Language in HHS commentary narrow  Clinical record must provide adequate documentation of treatment  Seeing psychotherapy notes as method of “hiding” essential treatment information is bad strategy.

Forensic Guideline: 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.

Consider a three phase plan

 Before  Plan the evaluation careful • Referral questions, tool selection, consent  During  Collect and analyze the data appropriately • Administration, recording, observation  After  Anticipate use of reports and requests for access © Gerald P. Koocher, 2013 all rights reserved

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 validity for the matter at hand?

 Correlate data and seek to explain outlier data (concurrent validity and exceptions).

 Special problems  Multiple evals by opposing experts within a few days  Syndromal evidence?

Preparation Phase

 Clarifying the engagement  Evaluative authority • Private, court ordered, institutional contract  Who is the client?

 What services/roles are requested?

 What products are expected?

The self-awareness problem

Impartiality and Trust

 Preconceived biases run high in the some areas of litigation.

 A lot of what some clinicians believe they “know” has no firm scientific 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  Understanding validity and reliability • Face validity (?) • • • Content validity Predictive validity Construct validity • Problem of the invalid construct (syndrome of the week)  Controversial Tools  (e.g., the dolls)

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. © Gerald P. Koocher, 2013 all rights reserved

Language and Culture Barriers

  Our clinic was often appointed by the court to conduct sexual offender risk assessments (as well as other types of forensic evaluations) with Spanish-speaking (among other languages) defendants. This arrangement was challenging, as our clinic did not have a Spanish-speaking psychologists, and the aforementioned defendants did not have the financial resources to obtain a private evaluation with a Spanish-speaking psychologist. Although we used a skilled interpreter, we had additional concerns regarding the validity of psychological tests (particularly when the defendants were illiterate and/or from rural areas in Mexico with little formal education) and the validity of assessing mental state through an interpreter.

Data Collection and Validity Issues

Syndromal “Evidence” -- Correlation ≠ Causation

 The term syndrome refers to the association of several clinically recognizable features  signs (observed by a practitioner),  symptoms (reported by the patient),  phenomena or characteristics that often occur together, so that the presence of one feature signals the likely presence of the others.

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). © Gerald P. Koocher, 2013 all rights reserved

Examples of “syndromes”

 Down syndrome  trisomy 21  ROHHAD syndrome  Rapid-Onset Obesity with Hypoventilation, Hypothalamic, Autonomic Dysregulation, and Neural Tumor Syndrome  Stockholm syndrome  Parental alienation syndrome  Child sexual abuse accommodation syndrome  Damocles syndrome © Gerald P. Koocher, 2013 all rights reserved

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, 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.

Conducting the Evaluation: Scientific foundations are critical

After the Evaluation

 Anticipating the request for data  Nature and production of the report  Focus, details, payment…  Who gets the report?

 Planned uses (e.g., civil, criminal, custody)  Requests for Modification of Reports  Critiquing the reports of other professionals 176

Debate on Release of Test Data

Release Test Data or Not?

 A psychologist conducted a parenting evaluation and reported ons MMPI-2 results with no elevations on clinical scales. He concluded that the examinee is dishonest, and recommended psychotherapy.  The therapist via the attorney requests the evaluator's results, at least a Welsch code which was not in the report. The evaluator refuses to release anything citing MMPI copyright issues. Is there a HIPAA issue?

Release of Test Data



Standard 9.04



Test data

refers to raw and scaled scores, patient responses to test questions or stimuli, and our notes and recordings concerning patient statements and behavior during an examination. Portions of test materials including patient responses are considered

test data

.  Pursuant to a patient release, we provide test data to the client/patient or other persons

Release of Test Data



Standard 9.04

(continued)  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.  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 defined in 9.04.

test data

as  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 © Gerald P. Koocher, 2013 all rights reserved

Custody Disputes

Where Those Without Forensic Training Stumble Most Often.

182

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

Deficiencies and abuses in professional practice.

Inadequate familiarity with the legal system and applicable legal standards.

Inappropriate application of psychological assessment techniques.

Presentation of opinions based on partial or irrelevant data.

Eight Common criticisms of psychologists in custody disputes

Overreaching by exceeding the limits of psychological knowledge of expert testimony.

Offering opinions on matters of law.

Loss of objectivity through inappropriate engagement in the adversary process.

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      Give a clear statement regarding the purpose of the evaluation.

Identify the requesting entity. • (Who asked for the evaluation?) Describe the nature of anticipated services. • (What procedures will you follow?) Explain the methods to be utilized. • (What instruments and techniques will you use?) Specify whether or not the services are court ordered.

Elements of Notification in a Custody Evaluation

  

Delineate the parameters of confidentiality.

  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?

Provide information regarding:

 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

   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.

Ultimate Issue Testimony

Ultimate opinion testimony

 In criminal law thus refers to a legal issue at stake in the prosecution of a crime for which an expert witness is providing testimony.

 Another category in family law might involve a judgment on parental fitness.

 The ultimate fact is, in law, the conclusion (or conclusions) of factual evidence made by a jury after deliberation.

Ultimate issue testimony

 Should an expert ever offer an opinion on a legal question before the court?

 Consider deconstruction of components and addressing those to which the data apply.

 Consider the validity of the data in the context of binary decisions the trier of fact may have to make.

 Hold on to your integrity amid degrees of uncertainty.

Ultimate issue testimony

 Help the court understand the meaning of all psychologically relevant facts and data as they apply to the decision at hand in a manner that promotes understanding and avoids deception.

Selected Interesting Cases

192

Public Law 107-56



“

U

niting and

S

trengthening

A

merica by

P

roviding

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errorism (

USA PATRIOT ACT

) Act of 2001”

 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.

 (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 intelligence activities….

   (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 necessary to produce the tangible things…) that the FBI has sought/obtained … things… (other than those … (e) A person who…produces … things under an order … section shall not be liable to any other person... © Gerald P. Koocher, 2013 all rights reserved

United States of America v. Theresa Marie Squillacote

221 F.3d 542.

(2000).   Theresa Marie Squillacote (AKA: Tina, Mary Teresa Miller, The Swan, Margaret, Margit, Lisa Martin, and her husband, Kurt Stand; convicted of 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

221 F.3d 542.

(2000).  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 Pentagon assignment, she worked for the 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 © Gerald P. Koocher, 2013 all rights reserved

  

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 and dramatic.” "a cluster of personality characteristics often loosely referred to as 'emotional The BAP team recommended taking advantage of Squillacote's "emotional vulnerability," 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—  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 communists who 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.

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 psychoactive drugs to restore 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. © Gerald P. Koocher, 2013 all rights reserved

Case Discussions

Barter counseling for bathroom repair (NE Grand Rapids )

Reply to: [email protected]

Date: 2008-12-07, 12:09PM EST • “My husband is a capable and effecive counselor, licensed...but he is not good at home repairs/construction. I will trade his expertise for your time with him as a counselor if you can help us with tub and tile repair and plumbing. We had a termite problem that we fixed but the place needs a new floor and other stuff...if you are struggling with depression or bipolar, he is your man...maybe your spouse, child, etc. He is truly an excellent counselor. We have our own non-profit and give to others without charging so our financial situation is limited, but looking to trade! thanks.” Location: NE Grand Rapids PostingID: 948491022 © Gerald P. Koocher, 2013 all rights reserved

Texas Psychologist Punished in Death Penalty Cases

A psychologist who examined 14 inmates who are now on Texas’ death row — and two others who were subsequently executed — and found them intellectually competent enough to face the death penalty has agreed never to perform such evaluations again. As part of a settlement, the Texas State Board of Examiners of Psychologists issued a reprimand against Dr. George Denkowski, whose testing methods had been sharply criticized by other psychologists and defense attorneys as unscientific. Denkowksi agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him .

file:///I:/Documents/ABPP%20Forensic%20Workshop/Texas%20Psychologist%20Pun ished%20in%20Death%20Penalty%20Cases%20%E2%80%94%20Death%20Pe nalty%20_%20The%20Texas%20Tribune.htm

Denkowski used unscientific methods artificially inflating intelligence scores to make defendants eligible for the death penalty.

   In 2008 he published an article in the

American Journal of Forensic Psychology

describing his technique for scoring defendants’ IQ test result, asserting that traditional tests did not compensate for social and cultural factors.  For example, he asserts that those who come from impoverished backgrounds may not have learned basic skills like using a thermometer or maintaining hygiene simply because those skills were not valued in their community. But that does not necessarily indicate low IQ,  Denkowski also deviated from the standard use of adaptive behavior scales, typically administered to family and friends who know the person to ask about the person functioning. Instead he administered the test to the inmate, claiming that people close to the individual, “tend to understate a defendant’s actual functioning markedly” to help their friend or family member avoid execution.

Other psychologists have rejected Denkowski’s methods, arguing that they have no scientific basis. The American Association on Intellectual and Developmental Disabilities strongly cautioned against using Denkowski’s methods “until firmly supported by empirical evidence.” “What Denkowski has been doing is a pretty radical departure,” says Marc Tasse, director of the OSU Nisonger Center and an expert in developmental disabilities. “There’s absolutely no scientific basis to his procedure.” © Gerald P. Koocher, 2013 all rights reserved