Transcript Document

Challenges in Forensic Ethics
L I N D S AY C H I L D R E S S - B E AT T Y, J . D . P H . D .
D I R E C T O R O F A D J U D I C AT I O N A N D
D E P U T Y D I R E C T O R , A PA E T H I C S O F F I C E
G E R A L D P. K O O C H E R , P H . D . , A B P P
D E A N , C O L L E G E O F S C I E N C E A N D H E A LT H , D E PA U L U N I V E R S I T Y
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/SpecialtyGuidelines.php
Relationship of APA Ethics Code to
Guidelines
APA Ethics Code contains aspirational principles and
enforceable standards
Guidelines are aspirational and not enforceable
Along with other sources, guidelines can inform the Ethics
Committee but are not dispositive
The Most Common Ethical Problems in
Forensic Practice
Competence (Do you have the education and training necessary?)
Consent (Have you provided relevant consent across layers of clients?)
Role Complications (Have you clarified and held fast to your role obligations?)
Exceeding the Limits of the Data (Are the bases for your assessments well-founded?)
Consulting and Coaching (When does the cheating start?)
Dueling Experts (Fight fair, and don’t whine.)
Sectarian/Partisan experts (Hired by one side in public or behind the scenes.)
Neuropsych, 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…
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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)
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
Fundamental content domains in forensic practice
Culture
What differs from normal psychcological practive in
forensic work?
Terminology
Inter alia, sua sponte, ipsi dixit, what?
Case law
How do I generalize the findings?
Evidence based practice in forensics
What’s the standard?
How do we…
Gain and maintain competence
Assure that we understanding the legal system
Have a firm scientific foundation
Have the necessary personal (and personality) attributes
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
People have the right to know what you’re doing and why.
Understand what you’re asking: consent, permission,
assent.
Keep careful documentation.
(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
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Special issues…
Do you need consent when evaluation or treatment are
mandated?
What happens when the person lacks capacity?
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
Inadequate consent
Loss of objectivity
Patient exploitation
Disruption of treatment relationship or quality
Appearances are Important!
Remember: “Reasonable Expectations”
 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
simultaneously occupies another role with the same person,
at the same time is in a relationship with a person closely associated
with or related to the psychologist’s client, or
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.
Choice of relationship with the patient–litigant: based on trust and
empathy or one based on doubt and distance.
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:
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
even “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 9.01c, 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
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)
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
Conducive climate and context
Avoiding re-traumatization
Detecting coaching
Some data
collection
involves
special
challenges.
Syndromal “Evidence” --Correlation ≠ Causation
The term syndrome refers to the association of several
clinically recognizable features
signs (observed by a practitioner),
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.
“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”
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
Parental Alienation Syndrome
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.
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
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
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.
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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.
She reviewed the procedures often utilized in child custody evaluations.
She helped him complete the forms for the evaluation, noting he wanted to stay positive and
child focused.
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.
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
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?
◦ 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
Case Example: Patient tells psychologist about his desire for
revenge against his ex/spouse.
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?
Parents who are separated
Parent with sole custody
Parent with joint or shared custody
Parent with visitation
Parents who suspect sexual abuse
More “Category 5 Divorce” Events
“Stealth” Custody or Change of Circumstance Evaluations
can occur so consider:
◦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?
Unpaid Bills
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:
their experience providing the service
the time and labor required
the novelty and difficulty of the questions involved,
the skill required to perform the service
the fee customarily charged for similar forensic services
the likelihood that the acceptance of the particular employment will preclude other
employment
the time limitations imposed by the client or circumstances,
the nature and length of the professional relationship with the client
the client’s ability to pay for the service, and
any legal requirements.
o SGFP 5.01 Determining Fees
Standard 5.02 Fee Arrangements
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.
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.
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