Posted: December 20th, 2021

Discuss logical Assessment vs treatment services

Discuss logical Assessment vs treatment services

The fundamental human value underlying the retaining-party/ examiner relationship is that all parties are entitled to a clear understanding of the expectations of the others involved to make an informed decision about whether to engage in the relationship. The court is entitled to expect from its experts the clarity of purpose on which reliable testimony is based and can best derive benefit from expert testimony borne out of clearly defined roles. The principle of autonomy reflects this informed decision- making process.

When agreeing to accept a case that involves or may involve litigation, psychologists should perform each step of their work in a manner defensible

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http://dx.doi.org/10.1037/11469-002 Ethical Practice in Forensic Psychology: A Systematic Model for Decision Making, by S. S. Bush, M. A. Connell, and R. L. Denney Copyright © 2006 American Psychological Association. All rights reserved.

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within the legal forum (Hartlage, 2003). The relationship between the retaining party and the examiner is the foundation on which all psychological services are based: “Clarifying issues will tend to ensure that later conflict does not develop about the conduct of the Assessment or testimony” (Melton, Petrila, Poythress, & Slobogin, 1997, p. 82). A lack of clarity among involved parties regarding roles and responsibilities renders the working relationship vulnerable to subsequent misunderstanding and conflict and in itself repre- sents ethical misconduct (Standard 3.07, Third-Party Requests for Services, of the American Psychological Association’s [APA’s] Ethics Code, 2002).

As Barsky and Gould (2002) noted, “A vital first step in becoming an intentional witness is to identify your roles” (p. 27). Identifying one’s role is not always as straightforward as might be anticipated. Clarifying the questions to be answered or forensic issues to be addressed in the context of a matter is essential to understanding one’s role. The forensic issues may involve a plaintiffs or criminal defendant’s cognitive or psychological functioning or the relationships among individuals. Increasing the decision maker’s understanding of such functioning serves the larger legal question on which the case is based, such as the plaintiffs right to compensation, the innocence or guilt of the accused, or the allocation of parental responsi- bilities in a way that serves the best interests of the child. Therefore, when identifying one’s role, “an important first step is to identify the forensic issues contained in the legal questions that have triggered the need for the Assessment” (Heilbrun, 2001, p. 22).

Established through discussions between the psychologist and the re- taining party and at least partially deriving from statutory or case law is an understanding about the nature of the information the psychologist gives the examinee and the extent to which information obtained during the Assessment process will be kept confidential or, conversely, will be discover- able (Melton et al., 1997). Thus, the psychologist and the retaining party must be clear about their mutual expectations from the outset: “Clarifications such as these at the early stages of consultation will result in a smoother relationship as the case proceeds” (Melton et al., 1997, p. 83).

Objectivity in the Role of Forensic Expert

When retained as forensic experts, psychologists should anticipate attempts by attorneys or clients to elicit opinions for which adequate support does not exist (Barsky & Gould, 2002). This may occur at trial, when tensions are high and there is little opportunity to re-examine and discuss expectations and resolve conflicting interpretations of the data:

Despite efforts to achieve objectivity, a good psychologist is highly motivated to help the patient. The expert who agrees to serve as both

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treating health care provider and forensic expert is on thin ice ethically because of the potential conflict in these dual roles. (Lees-Haley & Cohen, 1999, p. 445)

By anticipating this possibility at the outset, the psychologist may be better prepared to maintain previously agreed-on boundaries. The success of a patient’s litigation should not be the direct concern of the testifying expert. Rather, the expert’s carefully developed opinion, and the sound data underly- ing it, remains the focus. The task is to Help the court by providing reliable information relevant to the matter to be decided.

Psychologists retained as forensic experts should also consider whether they were retained because their opinions tend to be predictable; that is, their opinions consistently reflect advocacy for a particular belief or they consistently favor the retaining party, rather than being based on the facts of a given case. Psychologists are encouraged to assess their practices and take steps to maximize their potential for arriving at impartial conclusions. Such steps include ensuring professional competence (discussed later in this chapter) and engaging in self-examination.

Self-examination should assess past objectivity and maximize current and future objectivity. To assess past objectivity, practitioners may calculate an objectivity quotient, determined by dividing the number of cases in which there was agreement with the referring attorney by the total number of cases (Brodsky, 1991). Agreement with referring parties in greater than 80% of cases is considered consistent with excessive favorability and pre- existing bias. This formulation is to be contrasted with the illogical concept focusing on percent of opinions that favor one side or the other in forensic proceedings (e.g., 50% prosecution and 50% defense, or whatever percentage plaintiff vs. defense). Although Brodsky’s formulation reasonably addresses the concern of bias, the second concept may actually reflect bias when the expert changes an opinion to favor the retaining side. Take, for example, the clinical researcher whose published research demonstrates repressed memories are false. The examiner will rarely be called as an expert by the side of a plaintiff alleging childhood sexual abuse on the basis of repressed memory evidence; if this were to occur, and the expert disregarded or “explained away” the research to support the plaintiffs claim, one might suspect bias in favor of retaining parties.

Self-examination questions, such as those offered by Sweet and Moul- throp (1999b), offer practitioners a possible means of maximizing current and future objectivity. Such debiasing procedures have been criticized for their lack of empirical support (see, e.g., Lees-Haley, 1999; response by Sweet & Moulthrop, 1999a). However, given the current absence of empirically supported debiasing procedures, psychologists practicing in forensic contexts

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will be well served by ensuring professional competence (e.g., through appro- priate education, training, experience, and peer review of one’s work) and using self-examination techniques.

Advocacy in the Role of Trial Consultant

In assuming the role of trial consultant, the psychologist enters a relationship with an attorney that is different from that of an attorney and a testifying expert, in that advocacy may more reasonably be expected in the former. Nevertheless, the nature of the psychologist’s role requires clarification at the outset. In this context, the psychologist essentially joins the retaining attorney’s team to bring psychological expertise to the partisan adversarial process. Impartiality is not required of the trial consultant, but the psychologist trial consultant who holds a place on the “trial team” is cautioned against agreeing to transition into or concurrently participate in the case as an examining or testifying expert (Brodsky, 1999). Although some authors have maintained that a consultant can assume a partisan role in Helping an attorney’s case and serve as an impartial evaluator until the time of trial, at which point only the role of impartial evaluator is maintained (e.g., Halleck, 1980), separating the acceptable bias of the consultant from the necessary objectivity of the evaluator is an extremely difficult endeavor to undertake, if possible at all. Heilbrun (2001) identified as an emerging principle the “single-role” maxim that should be familiar to the practicing forensic psychologist and advised declining a referral when impartiality would likely be jeopardized.

Not uncommonly, psychologists may find this distinction between testifying expert and consultant difficult to maintain. For example, an attorney may ask a psychologist that she has retained as a testifying expert for feedback regarding the opposing expert’s report and invoke discussion about a point of disagreement between the experts. The testifying expert, in explaining the source of the difference, essentially offers the attorney a roadmap for cross-examining the opposing expert. Although there is no clear line distinguishing the appropriate contribution of a testifying ex- pert from that of a nontestifying, consulting expert, practitioners may help clarify the appropriate course of action by examining their motiva- tions. Being motivated to clarify genuine professional disagreement and its genesis, to Help an attorney in making appropriate use of one’s opinion, the testifying expert is on solid ground. When the motivation is to contribute as a member of the trial team, sharing its goal to win the case, the psychologist has become an advocate whose opinions should not be offered as objec- tive expertise.

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COMPETENCE

Psychological services, to be effective and useful to consumers, must be performed competently. Such professional competence is typically obtained through a combination of education, formal practical training, and experi- ence (Melton et al., 1997). Competence is not universal; that is, competence in one area of psychology does not imply competence in another area. This is true across and within specialty areas of practice. Within specialty areas, competence does not necessarily transfer across patient populations or clini- cal settings. This specificity of competence is particularly significant in forensic settings or contexts, in which specialized knowledge of the rules or laws governing the activity is essential. Further, competence in a particular psychology specialty area does not necessarily translate into competence in performing that specialty in a forensic context or setting (Heilbrun, 2001; Nagy, 2000). Psychologists who provide expert testimony without having had proper specialty training, including training specific to forensic practice, are practicing beyond the scope of their competence (Slick & Iverson, 2003).

The concept of professional competence is based on the fundamental human value that people have the right to psychological services that are not harmful and that provide the Helpance that they purport to provide. The bioethical principles of nonmaleficence and beneficence reflect this underlying value. Psychologists who lack the necessary competence to pro- vide their services in forensic contexts may not be able to provide an acceptable level of accuracy and reliability, and risk harming those with whom they interact professionally.

The 2002 APA Ethics Code requires professional competence (Stan- dards 2.01, Boundaries of Competence, and 2.04, Bases for Scientific and Professional Judgments) but allows an exception for services provided in emergency situations when services would otherwise be unavailable (Stan- dard 2.02, Providing Services in Emergencies). When provided in this con- text, services are discontinued when the emergency has ended or more appropriate services are available. The Specialty Guidelines for Forensic Psychologists (SGFP; Committee on Ethical Guidelines for Forensic Psy- chologists, 1991) stipulate that the SGFP, including those related to profes- sional competence, apply to psychologists who regularly engage in forensic activities. Thus, psychologists whose professional activities regularly involve interaction with the legal system are responsible for demonstrating compe- tence to perform their activities in that context.

Just as competence is not universal, it is not static (Standard 2.03, Maintaining Competence). Competence must be maintained through con- tinuing education and relevant professional activities (Blau, 1998). However,

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difficulty may lie in determining what represents competence in forensic psychology. Psychologists who engage in forensic activities represent a range of specializations. Such diversity is important for Helping the court with the range of questions that emerge; however, ambiguity regarding qualifica- tions may emerge in individual cases. In fact, despite the existence of a division of the APA devoted to psychological and legal issues (i.e., Division 41 [American Psychology-Law Society]) and the creation of the American Board of Forensic Psychology, there remains debate within the field regarding the definition of forensic psychology (Brigham, 1999; Heilbrun, 2001). In the individual case, however, this difficulty is reduced somewhat in that it is the court that determines who qualifies as an expert for the matter at hand. Rule 702 of the Federal Ruks of Evidence for the United States Courts and Magistrates (FRE; 1975) and state laws define who is qualified to testify as an expert. The psychologist is responsible for accurate representation of the knowledge, skill, experience, training, and education that compose the relevant credentials (Standard S.Ola, Avoidance of False or Deceptive State- ments; Barsky & Gould, 2002; FRE 702). The court then weighs the probable relevance and reliability of the testimony to be offered in determining whether to qualify the proffered witness as an expert whose opinion testi- mony will Help the trier of fact (FRE 702). Nevertheless, that psychologists must only provide services within their areas of competence is considered an established principle (Heilbrun, 2001).

FINANCIAL ARRANGEMENTS

The strength of the judicial system derives from society’s expectation that the decisions rendered by the court are just. To that end, society anticipates that expert witnesses involved in serving the court will perform their duties objectively. Practices that have the potential to negatively affect objectivity, and by extension justice, must be carefully considered by psychologists. The manner in which the psychologist’s fees are arranged is one factor that has the potential to significantly interfere with, or appear to interfere with, objectivity. When a psychologist’s fees are contingent on the outcome of a legal case, the psychologist is vulnerable to intentionally or unintentionally producing a report or testimony that favors the retaining party. As a result, the SGFP state as follows:

Forensic psychologists do not provide professional services to parties to a legal proceeding on the basis of “contingent fees,” when those services involve the offering of expert testimony to a court or administrative body, or when they call upon the psychologist to make affirmations or

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representations intended to be relied upon by third parties. (SGFP IV, B, Relationships)

It can be argued that contingency fees pose no greater threat to objectiv- ity than does retention by any party with a stake in the outcome of an adversarial proceeding. Although some attorneys appreciate an objective expert opinion even when it does not support their position—and attorneys may articulate just that position—the expert is well aware that sometimes attorneys are seeking an opinion that does support their case. If the psycholo- gist’s opinion does not support the retaining attorney’s case, the attorney may attempt to massage the opinion into shape. The psychologist who holds firm to the data is sharply aware that the attorney may be lost as a referral source. Thus, it could be argued that psychologists who are retained by one side in a legal case, regardless of how they choose to bill for their services, are subject to the same threats to objectivity. Although it is true that the potential for biased reporting exists for all forensic experts, those whose fees are directly related to litigation outcome face a greater threat to objectivity and a clearer appearance of compromised objectivity. The provision of an opinion for which payment is contingent on the outcome of the case is both unethical and strongly discouraged in the professional literature (Heilbrun, 2001). Thus, contingency fees should not be accepted (American Academy of Psychiatry and the Law, 1995; Committee on Ethical Guidelines for Forensic Psychologists, 1991) except when one is working as a nontestifying expert in trial consultation.

The nature of trial consultation, in which a psychologist is retained by an attorney to Help in preparing the case against the other side, raises an exception to the proscription against contingency fees. In this role, the psychologist, like the retaining attorney, assumes a position for one party. The role is not to inform the trier of fact. Given that the objective review and presentation of information to the retaining attorney is expected to clarify the mental health issues in a way that will Help the attorney in case presentation and therefore strengthen the attorney’s case, the role is not one of neutrality (Heilbrun, 2001). In this context, the manner in which the psychologist is paid does not alter the service provided. Because impartiality is not a requirement of the consultant role, it cannot be affected by contingency fees. Thus, it would be ethical for the nontestifying consulting psychologist, like the attorney, to choose to accept payment for services contingent on the outcome of the case.

Another potential financial arrangement that may provide the psychol- ogist with incentive to deviate from ethical practice is charging higher fees for testimony (Heilbrun, 2001). Although the added stress and inconve- nience that can be associated with testimony may seem to justify increased

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payment, the availability of higher fees may provide motivation to engage in inappropriate activities to increase the likelihood that one may be asked to testify. One such example would be omitting an important piece of information from a report and then informing the attorney of the omission and the need to elicit the information during testimony. The psychologist wishing to avoid the appearance of ethically questionable practice is advised to avoid charging higher fees for testimony.

Ethically preferable financial arrangements include setting fixed rates for a given service, which may be required in some states, and when billing an hourly rate, doing so in a manner that is consistent across various forensic services provided. In considering billing options, the goal is not only to be adequately and fairly compensated for one’s services but also to limit the potential to have one’s opinions or work product swayed by the possibility of increased revenue. Psychologists and their clients should establish com- pensation and billing arrangements as early as possible in the professional relationship (Standard 6.04, Fees and Financial Arrangements).

CASE 1: HANDLING REFERRALS IN PERSONAL INJURY LITIGATION

A personal injury attorney contacts a psychologist who has experience working with people who have been involved in car accidents. The attorney explains that her 63-year-old client was involved in a motor vehicle accident a month ago and, in her opinion, has posttraumatic stress disorder (PTSD). She is making the referral for psychological treatment because her client lives alone, has no close relatives, and does not know how to access the services he needs. The attorney explains that the patient’s no-fault car insurance will be the payment source. She offers to fax the police report and ambulance and emergency room records, and she requests an appointment for her client. The psychologist, feeling a little uncomfortable about the pro- posed fee arrangement, nevertheless accepts the referral and provides an appointment time for the litigant to be seen. After hanging up, the psycholo- gist reflects on the nature of the referral.

Analysis

Identify the Problem

The psychologist accepted a referral from an attorney without exploring his possible role in the litigation. The psychologist asked no questions about the attorney’s expectations and conveyed no information regarding his practices with respect to patients who are involved in litigation.

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Consider the Significance of the Context and Setting

This apparent clinical referral occurred within the context of civil litigation. The attorney, although possibly interested in the psychological welfare of her client, likely had additional motivation for initiating psycho- logical treatment. The attorney seemed to have made the diagnosis of PTSD and was sending records that the psychologist had not requested and may or may not have found necessary. The psychologist, in musing about this referral, considered that the attorney would likely be making requests of him once his initial assessment was performed and treatment was underway. He wondered whether he should have addressed these expectations proac- tively, before accepting the referral.

Identify and Use Ethical and Legal Resources

A fundamental societal value is the right of its members, whether involved in litigation or not, to access appropriate psychological services. An additional value is that society at large, through increases in insurance premiums, should not be expected to pay for health care services that are undertaken to strengthen one’s lawsuit. These values are consistent with bioethical principles: beneficence, nonmalefkence, and justice. The psychol- ogist has a responsibility to Help an appropriate patient (beneficence). At the same time, he also must avoid harming the patient (nonmaleficence), which may occur through entering into multiple, potentially conflicting, roles without thoroughly clarifying expectations with the referring attorney and the examinee or treatment recipient (General Principle A; Standards 3.05, Multiple Relationships; 3.07, Third-Party Requests for Services; and 3.10, Informed Consent). The psychologist has ethical and legal obligations to bill the appropriate party for services provided (General Principles C, Integrity, and D, Justice; Standards 6.04a, Fees and Financial Arrangements, and 6.04b). If the symptoms experienced by the patient predate or are otherwise not related to the accident, it would be illegal to bill the no-fault carrier. The psychologist had a responsibility to discuss with the attorney during the initial consultation any factors that may affect the attorney’s decision to use the psychologist’s services or the psychologist’s decision to accept the referral (SGFP IV, A and D2, Relationships).

The blurring of roles is one of the most frequent reasons for ethics complaints against psychologists in custody cases (Heilbrun, 2001). In addi- tion to role-clarity problems in forensic matters, maintaining multiple roles can have a negative effect in a therapeutic relationship. When a clinician is asked to monitor a patient and report the findings to an outside authority, for example, the clinician may have difficulty maintaining the trust of the patient (Barsky & Gould, 2002) and the patient may be less than forthcom- ing with the therapist. In forensic contexts, role clarification is critically

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important for all parties, particularly because the assumptions generally held about psychological treatment, such as the confidential and helping nature of the relationship, generally do not apply. Professional guidelines, then, are clear on the dangers of assuming multiple roles. State psychological guidelines also generally echo the standards and guidelines on this issue.

In the present case, once the referral was accepted, the relevant issues of potential role conflict would need to be discussed not only with the referring attorney but also with the patient (litigant; SGFP V, B, Confidenti- ality and Privilege). However, no laws of that state were found that applied to clarification of roles.

Consider Personal Beliefs and Values

This psychologist believes that any individual reporting symptoms that seem to be consistent with PTSD deserves access to his services. He is generally not concerned about where the referral comes from; however, the nature of this referral was somewhat different for him in that the attorney seemed to have proposed a diagnosis and was sending records that the psychologist typically did not request. Because he had not been retained by the attorney, he preferred to be open to, and accepting of, the patient’s experiences. Based on his understanding, if the patient reported that the symptoms emerged or worsened following the automobile accident, then the no-fault carrier would be the appropriate payor.

Develop Possible Solutions to the Problem

The psychologist, feeling somewhat uneasy about the referral, consid- ered four options. First, he considered refusing the referral and possibly suggesting alternative treatment providers. Second, he considered accepting the referral and not worrying about any unexplored expectations at this time. Third, he considered calling the attorney back to obtain further clarification about the attorney’s expectations of the nature of his involve- ment in the matter. Fourth, he considered contacting a colleague to get a second opinion.

Consider the Potential Consequences of Various Solutions

The psychologist considered possible beneficial and adverse effects associated with each of the possible solutions that he had identified. First, he believed that declining the referral and suggesting alternative clinicians without further clarifying expectations would have no significant impact on the patient either way but may not be good for his practice from a business perspective. Second, the psychologist thought that accepting the referral without clarifying expectations could be harmful for all parties at some point during the course of treatment. He was most concerned about the potential

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harm to his relationship with the patient and, thus, the patient’s psychologi- cal state should different expectations about the psychologist’s role in the litigation emerge during the course of treatment. Additionally, although he would not be accepting the patient into treatment for purpose of Helping the patient’s legal case, the psychologist also did not want to interfere with the legal case and the ability of the patient to receive compensation for damages resulting from the accident. Furthermore, the psychologist did not want to unnecessarily hurt the case for the attorney. The psychologist believed that each of these potential adverse consequences, in addition to harming others, had the potential to negatively affect his reputation and professional standing in the community. Third, the psychologist believed that contacting the attorney for clarification would help to clarify expecta- tion so that all parties were in agreement from the outset; however, the thought that such a call may be perceived as offensive by some attorneys may result in the current patient and future patients being referred to another clinician. Fourth, the psychologist believed that seeking a colleague’s advice could only be of value.

Choose and Implement a Course of Action

The psychologist did not believe that declining the referral or referring to someone else was necessary. He believed that he could work out the potential conflicts and still provide the patient with appropriate treatment. However, having reflected on the relevant values and ethical guidelines, he believed that the attorney’s expectations should be addressed in some way before treating the patient. He thought that a reasonable option would be to call the attorney to clarify expectations, but he also thought that it might be more appropriate to discuss expectations with the patient, without further involving the attorney. However, he wanted to know what others would do, so he chose to call an experienced colleague.

Assess the Outcome and Implement Changes as Needed

The colleague suggested that the most ethically appropriate course of action would be to call the referring attorney prior to seeing the patient to clarify expectations. Indeed, when the psychologist called, the attorney clarified that although the patient’s mental health was the first priority, she would be asking for periodic reports on the patient’s accident-related psychiatric disability and treatment. The psychologist responded that he appreciated the referral but that he could not promise such reports, as he had not yet met with the patient and had no idea about the patient’s psychiatric status or his interest in having that information shared with anyone. The attorney, seemingly losing patience, indicated that she had a number of such clients and was looking for someone to whom she could

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refer them, hoping that it could be this psychologist, but only if he were “sensitive to litigation issues.” The psychologist stated that he would be glad to have the additional referrals, but he maintained his position—an unwillingness to commit prematurely to periodic reports. The attorney said she would send her client somewhere else, and hung up. The psychologist, frustrated by the attorney’s determination to select a clinician on the basis of the clinician’s willingness to endorse her position, was satisfied that he had made the right decision.

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