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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
AN AUTHORITATIVE GUIDE TO THE CURRENT SPECIALTY GUIDELINES FOR FORENSIC PSYCHOLOGY
Ethics in Forensic Psychology Practice is a comprehensive and authoritative resource that addresses major concerns of professionals who conduct evaluations, provide treatment, carry out research, as well as a guide for those who teach and train in diverse legal contexts. Including on the American Psychological Association's current Specialty Guidelines for Forensic Psychology, the standard measure for ethical and legal conduct, this important volume is organized around substantive practice issues that cut across various functions and roles. The authors include a range of topics such as training, business practices, roles, privacy, confidentiality, report writing, testifying, and more.
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Veröffentlichungsjahr: 2017
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Table of Contents
Cover
Title Page
Copyright
Dedication
About the Authors
Preface
Chapter 1: Introduction
Overview and Context
Some Preliminary Matters
Challenges in Organizing This Volume
Structure and Layout of This Volume
A Model for Ethical Decision Making
Summary
Chapter 2: Sources of Authority
The Law as a Source of Authority
The American Psychological Association's Ethical Principles of Psychologists and Code of Conduct as a Source of Authority
The American Psychological Association Practice Guidelines as Sources of Authority
Other Publications of the American Psychological Association as Sources of Authority
Guidelines Published by Other Organizations as Sources of Authority
Summary
Chapter 3: Competence
What Does Competence in a Particular Area Entail?
Acquiring, Maintaining, and Increasing Competence
Certification as an Indicator of Competence
Competence in Forensic Assessment, State of the Science Testimony, Litigation Consultation, and Forensic Treatment
Awareness of How One's Beliefs, Attitudes, and Biases Can Affect One's Competence
Incompetent Practice
Addressing Incompetent Practice of Colleagues
Summary
Chapter 4: Roles
Who Is the Client?
Overview
Ethical Obligations to Various Parties in Litigation, by Role
Assuming a Role: Efficacy Considerations
Assuming a Role: Considering the Perceptions of Others
Summary
Chapter 5: Working with Attorneys and Other Referral Sources
Accepting a Referral and Working With Referral Sources
Clarifying the Scope and Nature of the Referral
Considering One's Competence
Providing Information to the Referral Source So It Can Make an Informed Decision About Retention
Considering Matters of Available Time and Resources
Determining Fees and Other Financial Considerations
Managing Conflicts of Interest
Considering Compatibility of the Psychologist's and Referral Source's Work Styles
Managing Expectations of the Referral Source
Terminating Services
Summary
Chapter 6: Informed Consent, Assent, and Notification
Ethical Principles of Psychologists and Code of Conduct
Specialty Guidelines for Forensic Psychology
Practical Applications
Documenting Informed Consent, Assent, and Notification
Summary
Chapter 7: Privacy, Confidentiality, Privilege, and Access to Records
Confidentiality and Clinical-Forensic Data
Privilege and Clinical-Forensic Data
Access to Clinical Forensic Data
Use of Materials for Instructional and Other Purposes
Offering Public Statements About Litigation in Which the Psychologist Has Been Involved
Summary
Chapter 8: Assessment
Emphasis on Psycholegal Capacities and Functional Abilities
Need for Sufficient Data
Explicit Consideration of Response Style
Use of Multiple Data Sources
Use of a Valid Assessment Protocol
Considering Issues of Ethnicity, Culture, and Language
Avoiding Use of Obsolete Assessment Tools
Ensuring an Appropriate Assessment Setting
Informed Consent, Assent, and Notification
Using Psychometrists
Using Interpreters
Interpreting Test Results
Informing Examinees About Assessment Results
Ensuring Test Security and Providing Access to Test Data
Summary
Chapter 9: Collateral Sources of Information
Value of Collateral Information
Collateral Information as a Form of Hearsay
Acquiring Collateral Information
Using Collateral Information
Communicating Collateral Information
Summary
Chapter 10: Documentation
Written Documentation
Third-Party Observers
Summary
Chapter 11: Communication
Communicating with the Referral Source
Avoiding Bias and Partisan Distortion
Affirmatively Disclosing Data Sources and Opinions
Respecting Privacy
Commenting on Litigation and Related Matters in Which One Has Not Been Involved
Summary
Appendix: Specialty Guidelines for Forensic Psychology
Responsibilities
Competence
Diligence
Relationships
Fees
Informed Consent, Notification, and Assent
Conflicts in Practice
Privacy, Confidentiality, and Privilege
Methods and Procedures
Assessment
Professional and Other Public Communications
References
Appendix A Revision Process of the Guidelines
Appendix B Definitions and Terminology
References
Author Index
Subject Index
End User License Agreement
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Guide
Table of Contents
Begin Reading
List of Tables
Chapter 1
Table 1.1 Therapeutic, Forensic Examination, and Forensic Treatment Roles in Professional Psychology: Comparing Relevant Dimensions
Chapter 2
Table 2.1 Practice Guidelines of the American Psychological Association
Table 2.2 Non-APA Practice Guidelines
Chapter 3
Table 3.1 ASPPB Data Regarding Licensing Actions against Psychologists in the United States and Canada
Chapter 4
Table 4.1 Ethical Obligations owed Parties Involved in Legal Proceedings, by Role
Chapter 6
Table 6.1 Advantages and Disadvantages of Different Forms of Consent/Assent/Notification Presentation
Chapter 9
Table 9.1 Sources of Third-Party Information in Forensic Assessment
Table 9.2 Problems Limiting Collateral Interview Accuracy and Suggested Strategies for Problem Management
Chapter 10
Table 10.1 Types of Information for Consideration for Inclusion of the Clinical Record
Ethics in Forensic Psychology Practice
RANDY K. OTTO
ALAN M. GOLDSTEIN
KIRK HEILBRUN
Copyright © 2017 by John Wiley & Sons, Inc. All rights reserved.
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Library of Congress Cataloging-in-Publication Data
Names: Otto, Randy K., author. | Goldstein, Alan M., author. | Heilbrun, Kirk., author.
Title: Ethics in forensic psychology practice / Randy K. Otto, Alan M. Goldstein, Kirk Heilbrun.
Description: Hoboken, New Jersey : John Wiley & Sons Inc., 2017 | Includes index.
Identifiers: LCCN 2016053407| ISBN 9781118712047 (hardback) | ISBN 9781118712030 (epub) | ISBN 9781118712153 (Adobe PDF)
Subjects: LCSH: Forensic psychology–Moral and ethical aspects. | Forensic psychology–Practice. | BISAC: PSYCHOLOGY / Forensic Psychology.
Classification: LCC RA1148 .O86 2017 | DDC 614/.15–dc23 LC record available at https://lccn.loc.gov/2016053407
Cover Design: Wiley
Cover Image: © franckreporter | Thinkstock
FIRST EDITION
Alan Goldstein dedicates this book to his wife, Paula, and to his grandchildren: Hillary, Maia, Caleb, and Elliot and to their parents, Naomi & Josh and Marion & Jon, who have raised such giving, sensitive, honest, and ethical children.
Kirk Heilbrun and Randy Otto dedicate this book to the community of scholars and practitioners who have built forensic psychology into a vibrant, meaningful specialty over the last 40 years.
About the Authors
Randy K. Otto, PhD, ABPP, is a faculty member in the Department of Mental Health Law & Policy at the University of South Florida, with adjunct appointments in the Departments of Psychology and Criminology. His work focuses on the intersection between the legal and mental health systems. Dr. Otto is board certified in clinical psychology and forensic psychology by the American Board of Professional Psychology. He chaired the American Psychological Association's Committee on Legal Issues, he chaired the committee that revised the Specialty Guidelines for Forensic Psychology, and he served on the American Bar Association task force that revised the Criminal Justice Mental Health Standards. Dr. Otto has served as president of the American Psychology-Law Society, the American Board of Forensic Psychology, and the American Board of Professional Psychology Board of Trustees.
Alan M. Goldstein, PhD, ABPP, completed his doctoral training in clinical psychology at Fordham University and is board certified in forensic psychology by the American Board of Professional Psychology. He chaired the Continuing Professional Education Committee of the American Psychological Association and the Continuing Education Program of the American Academy of Forensic Psychology, and he also served on the Ethics Committee of the American Board of Professional Psychology. Dr. Goldstein has presented workshops internationally on a range of topics. He has edited and coauthored numerous books, chapters, and journal articles and is on the editorial boards of two journals. With Kirk Heilbrun and Tom Grisso, he is coeditor of the 19-book series Best Practices in Forensic Mental Health Assessment (Oxford University Press). Dr. Goldstein has an independent forensic psychology practice.
Kirk Heilbrun, PhD, ABPP, is a professor in the Department of Psychology at Drexel University. His current research focuses on juvenile and adult offenders, legal decision making, forensic evaluation associated with legal decision making, and offender diversion. He is the author of a number of books, articles, and chapters on forensic assessment, violence risk assessment and risk communication, and the treatment of mentally disordered offenders. His practice interests focus on forensic assessment, and he directs a clinic within the Drexel University Department of Psychology in this area. He is board certified in clinical psychology and forensic psychology by the American Board of Professional Psychology and has previously served as president of both the American Psychology-Law Society and the American Board of Forensic Psychology. He received the 2004 Distinguished Contributions to Forensic Psychology Award and the 2008 Beth Clark Distinguished Service Contribution Award from the American Academy of Forensic Psychology, and an award for Distinguished Contributions to Psychology and Law from the American Psychology-Law Society.
Preface
The three of us contemplated writing this book for many years. Although there are a number of other books devoted to a discussion of psychology ethics more generally, few volumes are devoted to the ethical challenges associated with forensic practice. Yet our collective experience working as forensic psychologists, and the many differences between forensic and therapeutic activities, made apparent to us the need for a focused and integrated discussion of these concerns.
The Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association (APA; 2010; hereinafter Ethics Code) and the licensing laws of most states are largely devoted to ethical and legal concerns encountered by psychologists when providing therapeutic services—and rightly so. In some cases, the Ethics Code appears to address forensic practice concerns almost as an afterthought. This void was filled in part by publication of the Specialty Guidelines for Forensic Psychologists (Committee on Specialty Guidelines, 1991). Consistent with policy adopted by the APA after their publication, the Specialty Guidelines were subsequently revised, retitled the Specialty Guidelines for Forensic Psychology, and approved by the Council of Representatives of the American Psychological Association in 2012 (APA, 2013b). It was the revision and publication of the Specialty Guidelines that served as the impetus for this book, which represents our attempt to make sense of the various ethical, practice, and legal sources of authority that impose obligations upon psychologists when engaged in forensic pursuits.
In some cases, professional ethics require a psychologist to take a certain course of action. In other cases, professional ethics prohibit certain actions. However, our experience leads us to conclude that often, there is no such clarity. On these occasions, the psychologist must determine what is permissible and do that which is advisable. It is these challenges to which we devote most of the pages that follow. We recognize that reasonable people sometimes disagree about what course of action is the best to take, just as we did as we put this book together. For that reason, we look forward to the debate and discussion we hope this book facilitates.
RKOAMGKH
CHAPTER 1Introduction
Psychologists' early contact with the legal system can be traced back to the early 20th century when Hugo Munsterberg, in On the Witness Stand: Essays on Psychology and Crime (1908), made many proposals about what psychology had to offer the law. Around this same time, other psychologists began evaluating wayward youth and testifying about their specific needs in the newly developed juvenile courts (Otto & Heilbrun, 2002; Travis, 1908). But it has only been within the past half century that forensic psychology has come into its own as a specialty. In 1969, the American Psychology-Law Society—an interdisciplinary group of professionals who shared an interest in the intersection of psychology and law—was formed (Crocker & Kovera, 2010). In 1978, with a $1000 grant from that society, the American Board of Forensic Psychology was established (Kaslow, 1989). The mission of the American Board of Forensic Psychology was and remains to certify psychologists who are competent to provide forensic services. In 1991, the Specialty Guidelines for Forensic Psychologists were published by the American Psychology-Law Society (Committee on Ethical Guidelines for Forensic Psychology, 1991); they were revised and approved by the Council of Representatives of the American Psychological Association (APA) in 2012 (APA, 2013b). In 2001, the APA recognized forensic psychology as an applied specialty.
Overview and Context
Forensic psychology has long been dominated by the evaluation of litigants in civil and criminal proceedings. Considerably less attention has been paid to specialized treatment of forensic populations. Nonetheless, the primary activities of forensic psychologists involve assessment and treatment — much like their counterparts in more traditional therapeutic settings, such as hospitals, clinics, community mental health centers, and private offices. But the differences between practicing in forensic and therapeutic settings are considerable and have been documented by many (see, e.g., Appelbaum & Gutheil, 2007; Greenberg & Shuman, 1997; Heilbrun, Grisso, & Goldstein, 2009; Heilbrun, DeMatteo, Marczyk, & Goldstein, 2008; Lipsitt, 2007; Martindale & Gould, 2013; Melton, Petrila, Poythress, Slobogin, Lyons, & Otto, 2007; Weissman & DeBow, 2003). As summarized in Table 1.1, there are a number of dimensions on which therapeutic, forensic examination, and forensic treatment roles can be compared. These include the identified client and service recipient, the decision maker on aspects of service provision, the goals of service, the psychologist's role as it affects interactions with the service recipient, the nature of privacy matters such as confidentiality and privilege, the kinds of information that are typically accessed and relied on, and the value of diagnosis and psychological testing.1
TABLE 1.1Therapeutic, Forensic Examination, and Forensic Treatment Roles in Professional Psychology: Comparing Relevant Dimensions
Therapeutic Role
Forensic Examination Role
Forensic Treatment Role
Client
Service recipient
Referral source
Service recipient (and sometimes referral source)
Decision maker
Service recipient
Examiner and referral source
Service recipient (and sometimes referral source)
Goals of service
Improve client's functioning
Provide information to referral source about examinee's functioning as it relates to a legal issue
Improve service recipient's functioning as it relates to a legally relevant capacity, issue or mandate
Psychologist's role
Aligned as advocate
Neutral
Aligned as advocate
Psychologist's obligation
Assist therapy client
Provide information to referral source about examinee's functioning as it relates to a legal issue
Assist service recipient and provide information to referral source
Confidentiality
Traditional psychologist–client confidentiality
None if court ordered; Limited under some circumstances in a retained case
More limited than traditional psychologist–client confidentiality
Privilege
Traditional psychotherapist–patient privilege
Attorney-client privilege in some retained cases
More limited than traditional psychotherapist–patient privilege
Sources of information
Client (with perhaps limited reliance on collateral data and informants)
Examinee (with considerable reliance on collateral data and informants)
Service recipient (with considerable reliance on collateral data and informants)
Importance of diagnosis
Significant insofar as it directs treatment decision making
Limited (depending on legal question)
Significant insofar as it directs treatment decision making
Utility of traditional psychological assessment tools
Significant insofar as it informs diagnostic formulation
Limited, with greater reliance on assessment tools designed for forensic assessment contexts
Significant insofar as it informs diagnostic formulation
Most sources of authority that impact the work of psychologists focus on the provision of services in therapeutic settings. There are a few exceptions (e.g., the Specialty Guidelines for Forensic Psychology, APA, 2013b; the Guidelines for Psychological Evaluation in Child Protection Matters, APA, 2013c), but most of the influences on psychological practice (e.g., state practice acts, federal laws such as the 1996 Health Insurance Portability and Accountability Act [HIPAA], and ethical principles and practice guidelines promulgated by professional organizations) focus on the activities of psychologists when providing therapeutic services. This emphasis and the resulting neglect of the differences between forensic and therapeutic activities in these documents pose a challenge for psychologists practicing in forensic settings. This challenge is the basis for this book.
Some Preliminary Matters
As we begin, we think it important to address a number of overarching and foundational issues. These will recur in discussion throughout the remaining chapters.
Challenging Forensic Psychology's Historical Emphasis on Assessment and Neglect of Treatment
Forensic psychology's identity began with assessment in legal settings. A quick review of the table of contents of mainstream interdisciplinary journals such as Law and Human Behavior, Behavioral Sciences & the Law, and Criminal Justice and Behavior makes it clear that this is still true. But there appears to have been a general shift in thinking about this matter over the last two decades. Perhaps most reflective of this change are differences between the 1991 version of the Specialty Guidelines for Forensic Psychologists (Committee on Specialty Guidelines, 1991) and the revised Specialty Guidelines for Forensic Psychology (APA, 2013b). Whereas the 1991 forensic practice guidelines do not address treatment in any meaningful way, guideline 4.02.03 of the revised guidelines explicitly discuss “forensic treatment” and how it can be distinguished from treatment of a client whose involvement in litigation bears no relationship to the treatment itself.
Although some therapeutic services can be considered forensic in nature, the fact that therapeutic services are ordered by the court does not necessarily make them forensic.
In determining whether a therapeutic service should be considered the practice of forensic psychology, psychologists are encouraged to consider the potential impact of the legal context on treatment, the potential for treatment to impact the psycholegal issues involved in the case, and whether another reasonable psychologist in a similar position would consider the service to be forensic and these Guidelines to be applicable.
Although most of our discussion in this book addresses ethical matters encountered when conducting forensic psychological evaluations, we will, at times, consider treatment issues as well.
Distinguishing Ethics from Good Practice and from the Law
This is not a book about how to conduct forensic psychological evaluations or provide treatment to different forensic populations. There are other resources for that (e.g., Melton et al., 2007; Weiner & Otto, 2014; also see the many titles in the Oxford University Press series Best Practices in Forensic Mental Health Assessment). The focus of this book is ethics—the ethical practice of psychology when providing forensic services. Nonetheless, we sometimes incorporate good forensic practice when considering ethical issues. Ethical guidelines contribute in important ways to decisions and behavior in professional practice. Law, standards of practice, science, and one's own values also contribute. Even though these areas can overlap, we focus on ethics in this book—but with the caveat that ethics is only a part of what should shape professional behavior.
It can be particularly difficult to discuss ethical obligations without considering legal obligations. Thus, throughout this book, we discuss how the law can interact and sometimes conflict with ethical obligations. Similarly, it can be challenging to talk about ethical forensic practice without considering good forensic practice.
Importance of Knowing the Law and Rules of the Local Jurisdiction
Although ethical and other professional obligations are generally consistent across settings,2 the laws and rules that affect the practice of psychology can and often do vary. Because we cannot reference the relevant laws and rules for all jurisdictions, we emphasize that the reader must be familiar with applicable laws and rules in the states in which he or she practices. Although we sometimes cite particular state or federal statutes or rules as examples in making a point, we do not apply them beyond that specific discussion. When we incorporate rules of evidence, we typically reference the Federal Rules of Evidence, versions of which have been adopted in many states.
Distinguishing Between What Is Required, Prohibited, and Permitted
We are sometimes taken aback at how cavalierly some psychologists describe the actions of other psychologists as “unethical” or in violation of the law. Some courses of action are required by the Ethical Principles of Psychologists and Code of Conduct (APA, 2010a; hereinafter Ethics Code) and some are prohibited. It is only when doing something that is prohibited by the Ethics Code, or failing to do something that is required, that the psychologist acts unethically. In reality, most courses of action that psychologists would reasonably contemplate are permitted by the Ethics Code. The courses of action are neither prohibited nor required. However, among the universe of permissible courses of action, some are ill advised and others constitute better practice. We spend some time discussing these matters as well in the chapters that follow.
Recognizing That There Are Not Always Clear Answers and That Reasonable People Sometimes Disagree
We expected that there would be many matters about which we would agree when writing this book. This has been the case. But each of us has enough experience to know that the Ethics Code (APA, 2010a) and practice guidelines typically provide general guidance—and must be applied to the specific case at hand. Therefore, we also assumed that we would struggle to reach a consensus on certain challenging ethical dilemmas. Indeed, for some questions, we conclude that there is no clear “right answer” and that experienced, informed, well-intentioned psychologists could disagree. In these cases, we describe what we think are reasonable courses of action and our basis for drawing these conclusions. Our expectations that we would simply disagree about the appropriate course of action in other matters were realized as well. Here too we describe our various opinions and the underlying reasoning.
Challenges in Organizing This Volume
As we contemplated writing this book, we spent considerable time discussing the best approach and format. We briefly considered organization by topical areas, so chapters would concern various assessment and treatment pursuits (e.g., with specific chapters devoted to the ethics of child custody, personal injury, disability, guardianship, civil commitment, civil competence, criminal competence, criminal responsibility, and criminal sentencing evaluations and other chapters devoted to treatment in various forensic contexts). However, we quickly realized that this would result in considerable redundancy, as there are more similarities than differences in the key ethical precepts in these various forensic pursuits. We concluded that it made most sense to organize our discussion around key ethical concepts and challenges present in various forensic evaluation and treatment contexts and, when necessary, devote extra time to discussing unique challenges that may be encountered in a specific forensic evaluation or treatment context.
But this strategy has its own problems. We often struggled with where in this book to place the discussion of a particular matter. For example, does it make most sense to discuss the appropriateness of psychologists making public comments about cases in which they have been involved in the chapter devoted to privacy—or in the chapter on communicating opinions? Is it better to discuss the appropriateness of audio and video recording of forensic psychological examinations in the chapter on forensic psychological assessment or in the documentation chapter? In some cases, we agreed on the best place for the topic. In others, we address the topic, albeit in different ways and at varying levels of specificity, in more than one place.
We also deliberated about how best to demonstrate the challenges we wanted to identify and points we were trying to make. We ultimately decided to provide case examples that were loosely based on our experiences (included in “boxes” throughout the chapters).
Structure and Layout of This Volume
In Chapter 2, we begin with a general discussion of various sources of authority that impose obligations on psychologists when engaged in forensic pursuits, including law, ethics, and professional practice guidelines and standards. In Chapter 3, we address the overarching issue of competence in forensic practice, while in Chapter 4 we discuss one of the most ubiquitous challenges in forensic practice: the issue of roles. The focus of Chapter 5 is interacting with attorneys and other referral sources and navigating some of the complex matters that arise during these interactions. Chapter 6 is devoted to informed consent and related concepts, and Chapter 7 is concerned with the privacy, confidentiality, and privilege of information gathered during forensic activities. Chapter 8 is devoted to forensic psychological assessment, and Chapter 9 focuses on ethical challenges associated with accessing, relying on, documenting, and testifying about collateral data—the use of which is a hallmark of good forensic practice. Chapters 10 and 11 are concerned with two particularly important issues in forensic practice: documenting and communicating one's work and opinions.
A Model for Ethical Decision Making
In forensic psychology practice, often what is “right,” ethical, and consistent with the law and good practice is clear, and there is no conflict. However, there are occasions when these sources of authority do not provide direction, are too general, may not apply to a specific forensic case, or are in conflict. These circumstances are the most challenging. In some cases, the law might demand one course of action whereas the Ethics Code (APA, 2010a) or practice guidelines suggest an alternative approach. In other cases, a careful reading of the Ethics Code or relevant practice guidelines suggests different obligations and actions. The forensic practitioner is most challenged when there is conflict between or within these sources of authority.
Many commentators have proposed models for psychologists to employ when faced with ethical dilemmas (see, e.g., Fisher, 2003; Knapp & VandeCreek, 2012; Koocher & Keith Spiegel, 2016). Their models converge around their recommendations to:
Consider the ethical principles relevant to the case at hand
Identify persons whose interests should be considered
Search for and consider relevant sources of authority
Consult with colleagues
Develop various courses of actions and consider likely outcomes
Implement the best course of action
Evaluate the outcome.
We suggest a specific nine-step model adapted from the Canadian Code of Ethics for Psychologists (Canadian Psychological Association, 2000) that we believe ensures comprehensive consideration of relevant issues. It includes these nine steps:
Identify the individuals and groups who may be affected by any course of action (with particular attention to individuals and groups to whom one owes a duty or duties), their rights, and interests
Identify the ethical issues and principles at hand
Consider how personal biases, stresses, or self-interest might influence decision making in this matter
Seek various sources of authority that address or provide guidance with respect to the issue at hand
Consult with colleagues
Identify various courses of action and likely outcomes of each, along with associated risks and benefits to the relevant individuals and groups
Choose a course of action after careful consideration of relevant principles, values, standards, and guidelines
Evaluate and assume responsibility for the outcome, and take steps to remedy any negative outcomes that occurred
Take appropriate action, if indicated and possible, to prevent future occurrences of the dilemma (e.g., communication and problem solving with colleagues; changes in procedures and practices).
This model applies reasonably well to the ethical considerations we discuss in this book. The first step in responding to an ethical dilemma is to identify the individuals who are affected. This means considering the consequences of various alternative actions. It may also involve appraising how different individuals are affected by competent, ethical practice of forensic assessment or treatment and how they are affected by practice that is more problematic. As part of this consideration, we discuss the duty owed when conducting forensic assessments—and to whom.
The next step is to identify the ethical principles involved. This helps clarify one's thinking and ensures that the decision is driven by ethics and associated reasoning. This is particularly important in an adversarial legal context, where stress is high, competitive feelings may arise, and the adversarial process may impact the psychologist's perspective and decision making.
Ethics is one source of authority among several that should shape practice. Law, science, and standards of practice are others. It is sometimes difficult to separate these authorities, as there can be considerable overlap. But we attempt such separation in this book, as this yields what we consider to be a clear-headed and reasonable approach to decision making. By identifying ethical obligations, legal authorities, standards of practice, and scientific authority, it is possible to consider how well they converge—and, if they identify differing courses of action, to indicate that as part of the larger decision-making process.
Consultation with colleagues is not always necessary. But it can be particularly useful for identifying relevant substantive information (such as the sources of authority just noted). At other times, speaking with colleagues may offer a fresh perspective when considering what course of action to take. It can also be helpful in disentangling these sources and helping the practitioner weigh them, particularly when personal reactions make it hard to be impartial.
After taking these steps, one should identify different courses of action, consider each in light of relevant sources of authority and consultation, and decide which course of action is the best to take. This highlights the process of ethical decision making and behavior: identifying, considering, weighing, deciding, then taking action. At a minimum, this will guarantee a decision that is prudently considered, and quite likely a good one. Assuming responsibility for the outcome and dealing with any remaining problems, the next step in this model, becomes more straightforward when one has confidence in the decision. If there are remaining steps to be taken to reduce the likelihood of a recurring problem, then such a decision should also provide guidance in taking these steps.
Summary
This chapter distinguished between therapeutic and forensic roles. In making this distinction, we do not discuss forensic practice that is limited to assessment. Indeed, we consider forensic treatment to be an important domain for a discussion of forensic ethics. Having described the different topics we address in this book, we turned to the nine-step process that we find useful in ethical decision making—and which we will apply in the chapters that follow. The use of these concepts, drawn from the Canadian Code of Ethics for Psychologists (Canadian Psychological Association, 2000), can prove valuable to psychologists as they consider how to handle various ethical dilemmas.
1
We are aware that some commentators, when addressing this issue, distinguish between forensic pursuits and clinical pursuits. We consider this distinction to be inaccurate, however. Because all forensic activities—at least those that involve treatment or assessment of persons—are clinical activities, a more accurate distinction is between therapeutic and forensic activities, while recognizing that forensic treatment involves both.
2
We acknowledge that this is not always the case. The Pennsylvania Board of Psychology (downloaded from
www.pacode.com/secure/data/049/chapter41/s41.61.html
) and the South Carolina Board of Examiners in Psychology (downloaded from
www.llr.state.sc.us/pol/psychology/index.asp?file=PsyEthics.htm
), for example, have put in place their own ethics codes that vary from the APA's Ethics Code in some important ways.
CHAPTER 2Sources of Authority
Psychology practice is shaped by four sources of authority: (a) law; (b) science; (c) ethics; and (d) practice knowledge, standards, and consensus. In this chapter, we discuss how these different sources of authority impact forensic psychology practice and, taken together, the standard of practice in the field. We do not focus on scientific evidence or thinking scientifically, as this is not a how-to book on scientifically supported forensic psychology practice. But science makes an important contribution to practice, so we consider it indirectly as we address the other sources of authority.
The Law as a Source of Authority
Although forensic psychologists do not need formal legal training, they should be knowledgeable about the laws that affect their practice and the specific legal matters in which they are involved. The Ethical Principles of Psychologists and Code of Conduct (EPPCC; American Psychological Association [APA], 2010a; hereinafter Ethics Code) indicates: “When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing these roles” (p. 5). Similarly, according to the Specialty Guidelines for Forensic Psychology (APA, 2013b; hereinafter Specialty Guidelines) “Forensic practitioners recognize the importance of obtaining a fundamental and reasonable level of knowledge and understanding of the legal and professional standards, laws, rules, and precedents that govern their participation in legal proceedings and that guide the impact of their services on service recipients.”
Psychologists who provide forensic services without an adequate understanding of the law do so at some risk. Some have suggested that forensic psychologists and psychiatrists are at lower risk for successful malpractice and licensing actions than their colleagues who provide therapeutic services (see, e.g., Weinstock & Gerrick, 1995), but there is also evidence to the contrary. Psychologists who conduct certain types of forensic assessments, such as child custody evaluations, may be at greater risk for malpractice or licensing complaints than those who focus on treatment (see, e.g., Bow, Gottlieb, Siegel, & Noble, 2010). This increased risk typically is attributed to the adversarial nature of the contexts in which they operate and the greater scrutiny to which their work is subjected. Diligent attorneys are likely to carefully review reports summarizing forensic evaluations or treatment, the underlying records, and associated testimony, all with an eye toward determining whether the psychologist's practice was appropriate. For example, in cases involving custody disputes, one or both parents can be threatened, insulted, or angered by a report documenting some of their limitations as parents. The parents and/or their attorneys may initiate licensing actions, ethics complaints, or malpractice actions alleging incompetent practice—either in response to the genuine belief that the psychologist's practice is problematic or as a matter of legal strategy (See Case Example 2.1).
CASE EXAMPLE 2.1 The Importance of Knowing the Law
Dr. Parker had a licensing complaint filed against her by the attorney who represented the criminal defendant whose trial competence she evaluated. The complaint alleged that Dr. Parker's failure to address all facets of the defendant's trial competence as required by state statute, and her opinion that the (yet-to-be-convicted) defendant needed to receive an extended prison sentence given her high risk for reoffending reflected incompetent practice. If her attorney had not succeeded in having the complaint dismissed on procedural grounds, Dr. Parker likely would have been sanctioned by the Board of Psychology.
The law shapes the practice of forensic psychology in a number of ways. Psychology practice acts and other state statutes (e.g., abuse and neglect reporting laws, rules of evidence related to privileged communications) impose general obligations on all licensed psychologists. Various substantive questions of law (e.g., competence to stand trial, sanity, child custody, civil commitment, guardianship) identify and define psycholegal matters that may be the focus of psychologists' forensic evaluations. Rules of evidence direct how and under what circumstances psychologists may become involved in the legal process and what form their contributions must take (Heilbrun & Goldstein, 2009; Heilbrun, Grisso, Goldstein, & LaDuke, 2013).
The Law Shapes the General Practice of Psychology
Whether providing therapeutic or forensic services, psychologists are obligated to comply with all laws that impact the practice of psychology. Most obvious are state psychology practice acts, associated administrative codes (typically promulgated by the state board of psychology), and other laws that impose obligations on psychologists (e.g., those concerned with abuse and neglect reporting requirements, privilege, and involuntary hospitalization). Unfortunately, such psychology practice acts and accompanying administrative codes typically are written with an emphasis on the provision of therapeutic services, leaving psychologists with a lack of guidance and clarity when providing forensic services—which differ from therapeutic services in many important ways (see Chapter 1).
Some federal laws also impact psychologists' practice. Most significant are the Health Insurance and Portability and Accountability Act (Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996; hereinafter HIPAA), which imposes obligations on health care practitioners with respect to transmission, storage, protection, and access to health care information, and 42 United States Code Section 290dd-2 and 42 Code of Federal Regulations Part 2, which establish requirements for the disclosure of clinical information by substance abuse treatment programs and providers who receive federal assistance/funding. Whether and how HIPAA is applicable to forensic psychology practitioners has been the topic of considerable debate—and is discussed in Chapter 7.
Meeting the standard of care is what the law requires of practicing psychologists, and can be distinguished from two related but different concepts: the standard of practice and best practice (Heilbrun, Grisso, & Goldstein, 2009). The standard of care is ultimately established by statutes, case law, and professional authority and opinion. It is an enforceable threshold of practice that typically refers to what a reasonable and prudent professional should do in a specific context. This standard “is the law's prerogative, typically done by the court, in a way that is informed and but not dictated by evidence regarding standards of practice” (Heilbrun et al., 2009, p. 143, emphasis in original; see also Goldstein, 2007b). In contrast, the “standard of practice” refers to what the profession considers to be the acceptable threshold of practice. “Best practice” is just that: the best available approach as judged by professional consensus and (whenever possible) strongly supported by empirical evidence. As a result, it is a level of practice that often exceeds both the standard of care and the standard of practice in quality.
Legal decision makers tasked with determining whether a psychologist's practice met the standard of care in a particular matter (e.g., in the context of a malpractice or licensing complaint) typically look to the standard of practice for guidance and direction. However, it is important to understand that the standard of practice informs, but does not ultimately determine, the standard of care. In any given malpractice or licensing matter, the legal decision maker could decide that the standard of practice differs from the standard of care—requiring either something more or something less.
The Law Shapes Expert Testimony of Psychologists
Rules of evidence distinguish expert witnesses from lay witnesses (sometimes referred to as fact witnesses or ordinary witnesses), define who qualifies as an expert witness, and identify about what and under what conditions expert witnesses can testify (Bank & Packer, 2007; Erickson & Ewing, 2013). These rules affect the practice of psychologists who enter the courtroom, whether testifying about therapeutic services they provided or forensic evaluations they conducted.
Federal Rule of Evidence 702 (2016) identifies what is required of a potential witness and the techniques he or she employed in order to be qualified as an expert:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the facts of the case
The law also provides direction on how judges should make decisions when an attorney seeks to bar proffered expert testimony on the grounds that an expert's technique was not sufficiently “reliable” (i.e., valid). For 70 years, such attempts were considered in light of the legal test established in Frye v. United States (1923). In Frye, the defense attorney had retained a psychologist who, based on the results of a precursor of the modern-day polygraph, was prepared to testify that the defendant's claim that he had not murdered the decedent was truthful. The prosecutor's argument that the psychologist should be barred from testifying given concerns about the validity of the technique he employed prevailed and the defense appealed. The appellate court, in considering the matter, crafted a rule for judges to employ when considering challenges to expert testimony based on novel techniques or procedures:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting experimental testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (p. 1014, emphasis added)
Seventy years later, the U.S. Supreme Court developed an alternative legal test to be used by federal courts in these contexts. In Daubert v. Merrill Dow Pharmaceuticals (1993), the Court ruled that the judge is the ultimate arbiter of any attempt to bar proffered expert testimony on the grounds that the underlying science or technique was lacking. The Court also identified a number of factors trial courts could consider in order to inform their judgments about this matter including, but not limited to: (a) whether the technique has been tested; (b) the technique's error rates, if known; (c) whether the technique had been subjected to peer review; and (d) whether the technique was generally accepted in the field (the Frye test). The Daubert standard is now used in federal courts and in approximately three-quarters of the states (Otto, DeMier, & Boccaccini, 2014).
Experts should be aware of the controlling evidentiary rule before accepting a case on an “unusual” topic (i.e., truthfulness of a confession) or when employing a newly developed or controversial procedure or theory. In these cases, experts should be particularly sensitive to the prevailing evidentiary standard in the jurisdiction and to whether testimony about the topic using this method or theory is likely to be admitted by the judge if challenged by counsel.
The Law Limits Expert Testimony of Psychologists
Melton, Petrila, Poythress, Slobogin, Lyons, and Otto (2007) summarized the nature of testimony that meets the evidentiary standard:
[A]lthough the range of opinions with which mental health professionals provide the courts should be narrowed to exclude opinions of a purely moral or legal nature [ultimate opinions], the door should be left open to professional opinions that might assist the trier of fact, especially when they are likely to challenge factfinders' intuitive assumptions about human behavior and motivation. (p. 19)
Mental health professionals who offer opinions about the ultimate legal issue, according to Melton and his colleagues (2007), usurp the province of the jury (see Rogers & Ewing, 1989 2003 and Slobogin, 1989, for extended discussions of this issue). Yet courts routinely allow and sometimes invite psychologists to offer such “ultimate opinion” testimony, asking them to provide opinions about matters such as whether the defendant is competent to stand trial, whether the defendant was “sane” or “insane” at the time of the offense, or whether the alleged incapacitated person should retain the right to manage his finances. And, in some cases, psychologists are admonished if they are unwilling to offer such opinions (see, e.g., Poythress, 1982, for a discussion of the response the author received from attorneys and the judge when he refused to weigh in on the legal matter on the grounds that such an opinion was beyond his expertise). Complicating all this is that courts can be inconsistent about these matters. For example, most courts permit experts to testify about factors that can facilitate false confessions. The idea that an innocent person would take responsibility for a crime he or she did not commit is counterintuitive to the commonly held notion that if someone confesses, it is a clear indicator of guilt. Yet most courts prohibit experts from testifying about whether a particular confession is false. That is, most courts will prohibit experts from offering such an opinion on the grounds that this is a legal decision and matter, not a psychological one. As another example, Federal Rule of Evidence 704 (2016) states:
No expert testifying with respect to mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. Such ultimate issues are matters for the trier of fact alone. (p. 15)
All of these matters illustrate the problems that arise when moral and legal judgments presented by experts are combined with the information that experts should present—clinical, forensic, and scientific conclusions that are within their expertise. The trier of fact cannot necessarily separate the moral judgments from the clinical, forensic, and scientific conclusions offered by the psychologist.
The Law Shapes the Focus of Forensic Psychological Evaluations
Forensic mental health evaluations are designed to provide relevant information to the trier of fact about a legal issue that is in dispute. To be of assistance to the court, the examining psychologist must understand the relevant legal question (e.g., competence to stand trial, capacity to manage one's financial affairs, capacity to testify), identify those parts of the law that involve psychological matters, and conduct an assessment that provides to the legal decision maker information relevant to the legal issue in dispute (Grisso, 2003). For example, in order to evaluate a 7-year-old witness's capacity to testify, the psychologist must know what the law requires of someone who is to testify in court, identify how this capacity might be affected by psychological functioning, and assess and describe any capacities and limitations the proffered witness demonstrates. Once provided with this information, the legal decision maker can be better informed and presumably more accurate judgments. But the psychologist can be helpful to the court only if he or she understands the legal and psycholegal matters. A psychologist who does not know the applicable insanity standard will be hard-pressed to help the court understand the defendant's mental state at the time of the offense as it is relevant to determining his or her sanity. Similarly, a psychologist who is not familiar with the law regarding testamentary capacity will be of little help to a court trying to determine whether the decedent was capable of executing her will at the time it was signed.
The Law Imposes Other Obligations on Psychologists Who Provide Opinions to the Court
Whether experts who are expected to testify in court must first write and submit reports summarizing their evaluation varies across jurisdictions. Such matters are generally addressed by statute, case law, or custom. For example, Federal Rule of Civil Procedure 26(a)(2)(2015) requires expert witnesses who are expected to testify at trial to submit a comprehensive report summarizing their work and involvement in the case or, alternatively, a written disclosure that summarizes the matters, facts, and opinions about which they are expected to testify.
Rule 26. Duty to Disclose; General Provisions Governing Discovery
(a)(2)(B)
Witnesses Who Must Provide a Written Report
. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
a complete statement of all opinions the witness will express and the basis and reasons for them;
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support them;
the witness's qualifications, including a list of all publications authored in the previous 10 years;
a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
a statement of the compensation to be paid for the study and testimony in the case.
(C)
Witnesses Who Do Not Provide a Written Report
. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
a summary of the facts and opinions to which the witness is expected to testify.
Similarly, the Federal Rules of Criminal Procedure (2015) impose obligations on experts expected to testify in criminal proceedings in federal courts. With respect to experts the prosecution expects to call, Rule 16(a)(1)(G) directs:
