Ethics in Forensic
Eschewing the
Ultracrepidarian Expert
Gerald P. Koocher, PhD, ABPP
Ultracrepidarian “Experts”
Sadly, not an oxymoron…
 Giving
opinions on something
beyond one’s knowledge.
 The great part of being
ultracrepidarian is the blindness
to one’s own limitations
accompanying that trait!
© Gerald P. Koocher, 2013 all rights reserved
Cluelessness Documented!
“People tend to hold overly favorable views of their
abilities in many social and intellectual domains. This
overestimation occurs, in part, because people unskilled
in such domains suffer a dual burden: Not only do they
reach erroneous conclusions and make unfortunate
choices, but their incompetence robs them of the ability
to realize it. Paradoxically, improving their skills, thus
helping them recognize the limitations of their abilities
causes loss of self-esteem.
Kruger, J. & Dunning, D. (1999). Unskilled and Unaware of It
How Difficulties in Recognizing One's Own Incompetence Lead to
Inflated Self-Assessments. Journal of Personality and Social
Psychology, 77, 1121-1134.
© Gerald P. Koocher, 2013 all rights reserved
Key References
Jarela, J. & Conroy, M.A. (2012) Professional Competiencies in
Forensic Psychology. Professional Psychology: Research and
Practice, 43 (5), 410-421.
LaDuke, C., DeMatteo, D., Heilbrun, K., & Swirsky-Sacchetti, T.
(2012). Clinical Neuropsychology in Forensic Contexts:
Practitioners' Experience, Training, and Practice Professional
Psychology: Research and Practice, 43 (5), 503-509.
© Gerald P. Koocher, 2013 all rights reserved
Topical seminar plan
Current Liability Claim Trends
 Competence in forensic practice
Basic Skills
Role(s) of the expert
Who is the client
Confidentiality and Record Keeping
 Assessment issues
 Ultimate opinion testimony
 Interesting cases
© Gerald P. Koocher, 2013 all rights reserved
Fundamentals of
Professional Liability
and malpractice
Where does competence
enter the mix?
The 4 D’s of Legal Liability
 The
4 D’s: Dereliction of Duty
leading Directly to Damages
 When
does a professional duty
 What constitutes dereliction?
 How can one demonstrate direct
 How can we measure damages?
© Gerald P. Koocher, 2013 all rights reserved
Standards of care:
the “good enough clinician”
Mistake or “judgment call” error
People cannot avoid mistakes
(but a mistake ≠ negligence)
Departure from standard of care
Many practitioners would not do it
Gross negligence
Extreme departure from usual professional
conduct most practitioners would not do it
© Gerald P. Koocher, 2013 all rights reserved
Among APAIT Policy
Holders in Treaty Year 2011
Estimated odds of a licensing board
  0.58% (.0058) up from 0.2% in 2004
 Estimated odds of a civil law suit
  0.35% (.0035) up from 0.1% in 2004
© Gerald P. Koocher, 2013 all rights reserved
Most Common
Complaint Triggers
Improper care/evaluation
 Credit/billing impropriety
 Non-sexual dual relationship/boundary
 Suicides
 Sexual abuses - dual
relationship/boundary violations
 Employment practices
© Gerald P. Koocher, 2013 all rights reserved
Common Trends:
Boundaries & Competence
 Suicide
 Child Custody
Release of records
Role confusion and
potential conflicts of
 Record Keeping
© Gerald P. Koocher, 2013 all rights reserved
Significant Claims and
New Trends
Boundary Violations
 Suicide
 Homicide
 Dual Relationship
 Billing – Medicare Investigations
 Copyright/Trademark Infringement (e.g.,
website images and music)
© Gerald P. Koocher, 2013 all rights reserved
Psychologist accused of
sexual assault on a client
© Gerald P. Koocher, 2013 all rights reserved
COLORADO SPRINGS, COLO. -- A licensed psychologist has
been arrested on the charge of Sexual Assault on a Client by
a Psychotherapist, according to Colorado Springs Police.
Dr. Janice Husted was arrested on the charge after a police
investigation. A young man told police that a sexual
relationship developed between him and Husted, his
Police said the man was assigned to receive counseling related
to his combat deployments during the summer of 2010. The
sexual relationship, according to what the victim told police,
started in Aug. 2011 and continued until Oct. or Nov. 2011.
The man said the psychologist told him on several occasions
that they had to be careful to not appear that they were on
dates, police said.
Police said the man told the psychologist he did not want to have
a secret relationship but she said they couldn't have an open
relationship until two years passed. After saying he did not
want to wait two years, the psychologist ended the
relationship, police said.
Sexual Assault on a Client by a Psychotherapist is a Class 4
© Gerald P. Koocher, 2013 all rights reserved
Some things don’t
Want to cut your risk of an “adverse
incident” by 95%?
Don’t engage in sexual with current or former
clients or their relatives.
 Don’t do anything that someone might mistake
for a “forensic assessment,” without adequate
training, informed consent, and thorough data
 Don’t switch roles in a professional
relationship without well documented consent
by all parties.
© Gerald P. Koocher, 2013 all rights reserved
Personal Risk
 Patient
Risk Characteristics
 Situation or Contextual Risk
 Potential Disciplinary
Modified by:
 Therapist’s
of Skills”
© Gerald P. Koocher, 2013 all rights reserved
“Personal Toolbox
The Case of the
Incompetent Colleague
A father alleged that he was falsely accused of
sexually abusing his daughter by the maternal
grandmother who sought sole custody.
He attributed the motive as continuing to receive
child support payments from him.
His attorney provided me a copy of an evaluation
conducted by a family court examiner, licensed as a
mental health counselor and certified sex therapist.
This report raised issues of professional standards
for competently interpreting assessment results.
© Gerald P. Koocher, 2013 all rights reserved
For example, the report included statements such as
"the test results indicate with 100% confidence that the
father had sexually abused his daughter."
Research on the three instruments used indicated
poor reliability and validity as well as cautions for using
these test instruments to examine sexual offenders.
After getting written consent from the father to review
the report with the evaluator, I called her and shared
my concerns. She disagreed with my concerns
regarding her report and expressed an opinion that I
was not qualified to evaluate alleged sex offenders
since I did not have the sex therapist certification and
training needed to understand the assessment
techniques she used.
© Gerald P. Koocher, 2013 all rights reserved
The psychologist filed a complaint with the counselor's
license board alleging lack of competence in conducting
assessments, and later received a response that the
counselor was not found to be incompetent.
The counselor had a Ph.D. from a program that was
take this action?
allegedly for not meeting standards for its
could you use, given the defendant’s
 The case to be heard at a small county court the
never worked
at previously
and the
behavior inhad
rather than
attorney forafter
the defendant
that the
on the
counselor's husband was an influential politician who had
a close relationship with the judge on the case.
 Based on that information, I did not follow through with an
examination of the father since my having filed a
complaint about the counselor may have resulted in the
judge being biased about my reports for the case.
© Gerald P. Koocher, 2013 all rights reserved
Patient Risk Characteristics
Nature of Problem
 History
 Diagnosis and Level of Function
 Expectations
 Therapeutic readiness
 Financial Resources Including
Insurance Coverage
 Litigiousness/court involvement
 Social Support Network
© Gerald P. Koocher, 2013 all rights reserved
Situational Risk Factors
Nature of relationship
 Therapeutic alliance
Real world consequences of your work
 Rural versus urban
 Solo practice versus institutional practice
Type of service requested
 Solo CBT
 Family therapy
 Forensic Evaluation
• Court appointed or privately retained?
© Gerald P. Koocher, 2013 all rights reserved
Clinician’s personal toolbox
of skills
Psychological makeup/personal
Personal and professional stress levels
Training background/qualifications
 Experience
 Resources
Access to other providers
Involvement with professional groups
© Gerald P. Koocher, 2013 all rights reserved
So what should I do?
Know the ethical and legal standards that apply.
Pay attention to practice guidelines.
Provide comprehensive informed consent.
Conduct a conservative evaluation of your
competence with clinical populations and
Intellectual competence
Technical competence
Emotional competence
© Gerald P. Koocher, 2013 all rights reserved
Get and Understand Professional
Liability Insurance
Claims Made
Pay once, covered
Must keep
coverage current
Tail coverage
(trailing claims)
Nose coverage
(prior acts)
© Gerald P. Koocher, 2013 all rights reserved
High Risk Patients &
Hey, everybody, we’re are invited to a cookout.
© Gerald P. Koocher, 2013 all rights reserved
Assisting in a Parasomnia
Parasomnias: sleep disorders that involve unusual
movements, behaviors, emotions, perceptions,
and dreams that occur while falling asleep,
between sleep stages, or during arousal from
A psychologist specializing in sleep disorders and
have been asked on several occasions to serve as
an expert witness for cases involving suspected
Should the psychologist take the case?
© Gerald P. Koocher, 2013 all rights reserved
One such case involved a father accused of sexual
misconduct with a minor. The defendant was co-sleeping
with his 9-year old daughter.
The daughter informed her mother that he had put his
hand down her pants during the night.
The father/defendant professes having no awareness of
this incident. Defense counsel sought expert testimony to
determine if the father's account of lack of awareness is
Such parasomnias are present in the literature and the
prevalence of parasomnias in the adult population is
strikingly high (2-4%). Interesting clinical reports include
quite complex behaviors (i.e. sleep driving, eating raw
chicken etc).
© Gerald P. Koocher, 2013 all rights reserved
High Risk Patients
Patients who organize their internal object
world into hated and adored objects
 Borderline Personality Disorder
 Narcissistic Personality Disorder
 Dissociative Identity Disorder (MPD)
 PTSD (complex)
 Patients who were abused as children
or are in abusive relationships
© Gerald P. Koocher, 2013 all rights reserved
Higher Risk Patients
Potentially suicidal patients
Conduct frequent risk assessment
utilizing current, evidence based
methods essential
Potentially violent patients
 Patients involved in unrelated lawsuits
 Patients with recovered
memories of abuse
© Gerald P. Koocher, 2013 all rights reserved
Forensic Traps
Just trying to help a friend, client, etc.
 The “vacation time referral”
 Anticipating litigation
(I didn’t see that coming!)
To whom do I owe what duties
 Clients for limited purpose
© Gerald P. Koocher, 2013 all rights reserved
The Integrity Challenge
"Lead us not into temptation, but deliver us from evil"
(Matthew 6:13, KJV)
Maintaining personal, professional, and
scientific integrity…
When your ethical code differs from those
you must work with.
Seduction and temptation abound…
To become caught up in the “expert” role.
To feel too much like an ally.
To stray from the rigorous path.
To forget about what you really do not know.
© Gerald P. Koocher, 2013 all rights reserved
Dealing with novel circumstanceswhen you recognize you don’t have a roadmap
Cases of first impression or novel
What legal questions apply?
 What psychological data might help
answer those questions?
 How can I apply my scientific and
professional knowledge to assist the
court in making its decision?
© Gerald P. Koocher, 2013 all rights reserved
Examples of first impression
cases: 1979-2013
Juvenile organ donorship
 Requests for “sub-optimal” medical
 Surrogate mother changes her mind
 Lesbian “mothers” dispute custody
 Lesbian partners and reciprocal adoption.
 Regulation of reproductive technology
Identical twins separated in vitro
© Gerald P. Koocher, 2013 all rights reserved
Risky Career
When/where/how Does One
Prepare for Forensic Practice and
Expert Testimony?
Risky Career Periods
 Psychologists
who make technical
errors or engage in inappropriate
role blending often do so as the
result of relative inexperienced.
 Many
have come from graduate
programs where students developed
complex role blended relationships
with their educators and supervisors.
© Gerald P. Koocher, 2013 all rights reserved
Risky Career Periods
Similarly, the internship or residency period
often involves role blending, including social,
evaluative, and business related activities .
 Some new therapists may have had
insufficient opportunity to observe
professionals with appropriate boundaries in
place or experienced appalling supervisory
models, involving sexual advances and other
improper behavior as students.
© Gerald P. Koocher, 2013 all rights reserved
Risky Career Periods
 The
mid-career period can prove risky
for those practitioners whose profession
or life in general has not panned out
according to their own expectations.
Divorce or other family based stresses involving teenage or
young adult children, onset of a chronic illness, and
apprehension about aging illustrate mid-career difficulties
that can impair professional judgment. The majority of
psychotherapists who engage in sexual relationships with
their clients are middle-aged.
© Gerald P. Koocher, 2013 all rights reserved
Risky Career Periods
 Another
elevated risk period can
occur at the far end of the career
Sometimes older therapists have, perhaps
without full awareness, come to see themselves
as having evolved beyond questioning or having
earned some sort of “senior pass” bequeathing
the freedom to do whatever they please.
© Gerald P. Koocher, 2013 all rights reserved
What do I put on my CV?
I have consulted on a nationally high-profile
case which is now complete. I have not
listed the specific case on my CV. I only list
it as a "high profile case," and I have not told
potential employers or Whose
about my
privacy/confidentiality do
to protect?for
involvement in the case outyouofwant
privacy/confidentiality. Is this the best way
to handle a situation
Strategic uselike this, or is it okay to
of the
name the case
job hunting.
© Gerald P. Koocher, 2013 all rights reserved
aspects of
© Gerald P. Koocher, 2013 all rights reserved
Feet of Clay in Forensic
Practice (part 1)
Two Iowa sex offenders locked up for a possible
lifetime of mental-health treatment will get new
trials because the chief witness against them
has admitted an addiction to child pornography.
Dr. Joseph Belanger, a North Dakota
psychologist, has not been criminally charged,
but he was forced to leave his hospital job after
he notified bosses that federal authorities had
seized his home computer.
© Gerald P. Koocher, 2013 all rights reserved
Belanger, in a Nov. 27 letter to a
North Dakota licensing board,
blamed childhood sexual abuse and
the fact that he has, "been so
frightened of the world and of
women that I mostly used
pornography as an outlet.”
© Gerald P. Koocher, 2013 all rights reserved
Feet of Clay (part 2)
Prominent Seattle psychologist who often
served as an expert witness in sexual-abuse
and child-custody cases arrested and commits
On July 25, 2007, employees at a local hotel
found Stuart Greenberg's body with a note
reading, "medical personnel, do not resuscitate.
Let me die."
© Gerald P. Koocher, 2013 all rights reserved
Greenberg, 59, was well-known as an
expert witness in sexual-abuse cases,
was frequently appointed as a parenting
evaluator in child-custody cases.
He was arrested on July 3rd then
suspended from practice earlier in the
month after allegations surfaced that he
had secretly videotaped a woman in his
office bathroom.
An acquaintance had found the videotape
in the psychologist's VCR and alerted the
person who appeared on the tape, police
© Gerald P. Koocher, 2013 all rights reserved
Feet of Clay (part 2)
While in jail, Greenberg had been
placed on suicide watch, according
to the Renton police report. He was
conditionally released two days
after his arrest.
© Gerald P. Koocher, 2013 all rights reserved
APA’s Feet of Clay
Legal Advocacy and Scientific
Inconsistency Problems (?)
Roper v. Simmons and Hodgson v. Minnesota
ithrough the lens of Justice Scalia
“We need not look far to find studies contradicting the
Court’s conclusions. As petitioner points out, …
(APA)… claims in this case that scientific evidence
shows persons under 18 lack the ability to take moral
responsibility for their decisions, has previously taken
precisely the opposite position before this very Court.
In its brief in Hodgson v. Minnesota … the APA found a
“rich body of research” showing that juveniles are
mature enough to decide whether to obtain an abortion
without parental involvement.
© Gerald P. Koocher, 2013 all rights reserved
“The APA (now cites) psychology treatises
and studies too numerous to list here…”
Given the nuances of scientific methodology and
conflicting views, courts–which can only consider
the limited evidence on the record before them–
are ill equipped to determine which view of
science is the right one.
Moreover, the cited studies describe only
adolescents who engage in risky or antisocial
behavior, as many young people do. Murder,
however, is more than just risky or antisocial
© Gerald P. Koocher, 2013 all rights reserved
Competence in
Forensic Practice
Forensic Practice as a
Paradigm for Risky
Clients & Situations
Dealing with the
Legal System
What competencies should
one reasonably expect of
forensic practitioners?
Fundamental content domains
in forensic psychology
 Terminology
 Case law
 Evidence
practice in
© Gerald P. Koocher, 2013 all rights reserved
Competence Issues Noted in the
Specialty Guidelines for Forensic Psychology
Acquisition of skills
 Representation of competencies
 Knowledge of the legal system and rights
of individuals
 Scientific foundations
 Appreciation of Individual differences
 Appropriate use of services and products
© Gerald P. Koocher, 2013 all rights reserved
The Culture Gap
Between Psychologists and Lawyers
Psychologists train as
behavioral scientists.
Lawyers train as
We believe that an
individual applying
rigorous experimental
methods can discover
significant truths
within ranges of
statistical certainty.
Lawyers believe that
the search for truth
depends on a vigorous
adversarial crossexamination of the
The Culture Gap
Behavioral scientists
seldom give simple
dichotomous answers
to questions.
We prefer to use
probabilities, ranges,
norms, and continua
that reflect the
complexity of human
Lawyers learn to “try”
or weigh facts.
Lawyers expect clear,
precise, unambiguous
decisions, They seek
to establish bright
lines and clear
The Culture Gap
We strive to empathize with  Attorneys believe
that they can (and
our clients and show them
must) at times
unconditional positive
defend people they
Little progress will occur in
our work with clients, if we
 Attorneys may
do not like/respect each
choose not to ask
their clients certain
We constantly collect data
questions (e.g., “Did
and try to ask all the
you do it?”) in order
to defend them
important and sensitive
How much justice do you want?
Levels of Proof in the Legal System
Preponderance of
Evidence (51%)
Clear and Convincing
Evidence (75%)
Beyond a Reasonable
Doubt (95%)
Who the hell is Daubert!
Daubert v. Merrell
Inc. 509 U.S. 579,
113 S. Ct. 2786
© Gerald P. Koocher, 2013 all rights reserved
Evidentiary standards
Daubert overthrew the 1923 Frye “general
acceptance” standard of acceptable
expert testimony in admissibility decisions
regarding novel scientific evidence.
Daubert also simultaneously affirmed the
judge's role as “gatekeeper” under the
Federal Rules of Evidence to ensure that
the evidence is both relevant and reliable.
© Gerald P. Koocher, 2013 all rights reserved
Case Details:
Jason Daubert and Eric Schuller were
born with serious birth defects. They and
their parents sued Merrell Dow
Pharmaceuticals, claiming that the drug
Bendectin caused the birth defects.
 Merrell Dow’s expert submitted
documents showing that no published
scientific study demonstrated a link
between Bendectin and birth defects.
© Gerald P. Koocher, 2013 all rights reserved
Case Details:
Daubert and Schuller submitted expert
evidence of their own suggesting that
Bendectin could cause birth defects.
That evidence, however, came from in
vitro and in vivo animal studies,
pharmacological studies, and reanalysis
of other published studies (methodologies
that had not yet gained acceptance within
the general scientific community for valid
prediction of human outcomes).
© Gerald P. Koocher, 2013 all rights reserved
Court Decisions:
The district court granted summary judgment for Merrell
Dow, and the plaintiffs appealed.
The Ninth Circuit found the district court correctly
granted summary judgment because the plaintiffs'
proffered evidence had not yet won acceptance as a
reliable technique by scientists who had had an
opportunity to scrutinize and verify the methods used.
Furthermore, the court expressed skepticism because
the plaintiffs' evidence appeared generated solely for
the purpose of litigation. Without it, the Ninth Circuit
doubted that the plaintiffs could prove at a trial that
Bendectin had caused the birth defects.
© Gerald P. Koocher, 2013 all rights reserved
The Standard Governing Expert
Three key provisions:
First, scientific knowledge, the testimony
must be scientific in nature, and grounded in
 Second, the scientific knowledge must
assist the trier of fact in understanding the
evidence or determining a fact at issue in
the case.
© Gerald P. Koocher, 2013 all rights reserved
Third, the judge decides whether certain
scientific knowledge would indeed assist by
making a preliminary assessment of whether the
reasoning or methodology underlying the
testimony is scientifically valid and of whether
that reasoning or methodology properly applies
to the facts in issue.
This preliminary assessment can focus on:
• whether something has been tested
• whether an idea has been subjected to scientific
peer review or published in scientific journals
• the rate of error involved in the technique or
• even “general acceptance,” in the right case. It
focuses on methodology and principles, not the
ultimate conclusions generated.
Bendectin Trivia
Bendectin, a mixture of pyridoxine (Vitamin B-6),
and doxylamine, is a drug prescribed to treat
nausea/vomiting associated with morning
sickness. It was voluntarily removed from the
market in 1983 by its manufacturer, Merrell Dow
Pharmaceuticals, following numerous lawsuits
alleging that it caused birth defects.
The drug has recently resurfaced currently
marketed under the same name. It can be made
at home using Vitamin B-6 and one-half of a
Unisom, both of which are available over-thecounter.
© Gerald P. Koocher, 2013 all rights reserved
Kumho Tire Co. v. Patrick Carmichael
526 U.S. 137, 119 S. Ct. 1167 (1999)
The principle in Daubert expanded in Kumho Tire Co. v.
Carmichael, when evidence in question came from a
technician, not a scientist.
The technician planned to testify that the only possible cause of
a tire blowout must have been a manufacturing defect, as he
could not determine any other possible cause.
The Court of Appeals had admitted the evidence assuming that
Daubert did not apply to technical evidence, only scientific
The Supreme Court reversed, saying the standard in Daubert
applied to technical evidence, and the evidence of the proposed
expert in Kumho was insufficiently reliable.
© Gerald P. Koocher, 2013 all rights reserved
Vetting the Expert?
The case of the missing voir dire…
Purported expert on sex offenders charged with perjury
(Chao Xiong, Minneapolis Star Tribune , March 2, 2005)
A Woodbury man lied about being licensed to practice
psychology in Minnesota and testified that a convicted
sex offender did not meet the threshold for civil
committed - perjury charges filed.
Michael J. Nilan, 55, testified last summer that Edward
V. Martin was not a "sexually dangerous person" or
"sexual psychopathic person.”
The court's first expert, however, had found that Martin
was a "sexually dangerous person," but the court ruled
against civilly committing Martin.
© Gerald P. Koocher, 2013 all rights reserved
Vetting the Expert?
The case of the missing voir dire…
Nilan's testimony was rescinded in September after a
Hennepin County lawyer raised doubts about his
credibility. The case was retried, and the court is
deciding whether to commit Martin, who tried to rape a
woman in 1989 and has been convicted of multiple
counts of first-degree criminal sexual conduct.
"The most significant repercussion is that everyone will
be more careful in checking the credentials of people,"
said Hennepin County Chief District Judge Lucy
Wieland. Hennepin County Attorney Amy Klobuchar
called the case "disturbing for the justice system.“
© Gerald P. Koocher, 2013 all rights reserved
Vetting the Expert?
The case of the missing voir dire…
Nilan, who was paid $6,120 by the state for
testifying, also lied about having a Ph.D. in
clinical psychology from a correspondence
school, Madison University, and a master of
arts in clinical psychology from the University
of St. Thomas. He actually has a doctorate in
psychology from Madison University and a
master of arts degree in counseling
psychology from St. Thomas.
© Gerald P. Koocher, 2013 all rights reserved
Vetting the Expert?
The case of the missing voir dire…
Wieland said Nilan's background was not
thoroughly screened because defense
attorneys selected him as a second expert
witness. The county contracts with private
psychologists who are thoroughly checked and
testify as "first examiners," but defense
attorneys can request a second expert, who
acts as a court-appointed witness paid by the
© Gerald P. Koocher, 2013 all rights reserved
Vetting the Expert?
The case of the missing voir dire…
"Traditionally the court isn't
involved in second-guessing the
defense attorney's choice," Wieland
said. "This is a very unusual situation."
Nilan was hired when the court was
inundated with a "tremendous" amount
of cases involving sexual predators,
making second examiners difficult to
© Gerald P. Koocher, 2013 all rights reserved
Are you ready to consult as an expert?
The culture of litigation:
Lawyers’ view
Attorneys function as advocates for their
The attorney’s income may link directly to the
outcome of the case.
Goal: achieving a best possible outcome.
Example: contingent fee arrangements.
Two rules for success in litigation:
1) Don’t disclose everything you know unless
legally required to do so.
© Gerald P. Koocher, 2013 all rights reserved
Can they do that?
The principle of advocacy allows
lawyers to shop for experts.
Discovery rules vary by jurisdiction and
Implicit ethical conflict for psychologists:
No attorney will hire an expert whose
views do not advance their client’s
© Gerald P. Koocher, 2013 all rights reserved
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.
© Gerald P. Koocher, 2013 all rights reserved
Serving as a disclosed expert
Everything you have to
say will be on the record
and open to scrutiny.
You will be crossexamined.
Those who disagree
with you will seek to
discredit you with
multiple strategies,
hoping you’ll screw up.
The Seduction Paradigm
Only the psychologist’s own integrity stands in the
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
© Gerald P. Koocher, 2013 all rights reserved
How can I provide valid expertise and
Risk continuity of employment?
 Avoid becoming a “partisan expert?”
© Gerald P. Koocher, 2013 all rights reserved
Invisible psychologist or
stealth expert
The consultant who will never testify and will
remain invisible to legal discovery.
 Roles:
Review case materials
 Consult to counsel on strategies for additional
data requests, cross examination, jury
selection, etc.
The slope becomes more slippery for some
who compromise principle while invisible.
© Gerald P. Koocher, 2013 all rights reserved
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.
© Gerald P. Koocher, 2013 all rights reserved
The Key Ethical Challenges
Avoid the trap of confirmatory bias
Looking only for the evidence that supports
“our side.”
 Providing the “whole truth,” to the extent we
know it.
© Gerald P. Koocher, 2013 all rights reserved
Costs of invisibility
The invisible
psychologist may
lose control over
how counsel uses
(or misuses) the
expert advice you
Your invisibility
may not last
What about my colleagues’
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
Small Potatoes or
Hills of Beans:
When Seemingly Minor Ethical
Issues Explode
Treatment Recommendation
or Forensic Evaluation?
Neuropsychological evaluation
recommended by school:
Private neuropsychologist agrees
 Child does not cooperate
 Mother asks father to help
 Child complies
 18 recommendations follow
 One catches fire
© Gerald P. Koocher, 2013 all rights reserved
Plaintiffs L. Lynn LeSueur, a psychologist licensed to practice by the
Commonwealth of Massachusetts, and Joseph Coggeshall, the father
of one of LeSueur’s patients, brought this lawsuit challenging the
decision of the Massachusetts Board of Registration of Psychologists
(Board) to place LeSueur on probation for two years.
Rotell v. Kuehnle
ESTATE OF MATHEW ROTELL, by and through the
personal representative, STEPHEN L. ROTELL, STEPHEN
L. ROTELL, individually, and ADAM ROTELL, a minor, by
and through his natural guardian, STEPHEN L. ROTELL,
d/b/a/ LIFEPATH HOSPICE, a Florida corporation, and
Case No. 2D09-501.
District Court of Appeal of Florida, Second District.
© Gerald P. Koocher, 2013 all rights reserved
Quote from Kuehnle’s
“In this case, . . . it would be a quantum leap
to say that a psychotherapist or a
psychologist, in Dr. Kuehnle's position, can
be held responsible to try to predict and warn
of the behavior of someone they are not even
providing treatment to. That would be a
ridiculous leap under the case law and the
state of the law in Florida to hold Dr. Kuehnle
to that standard, and frankly, to do so would
be creating law that does not exist.
© Gerald P. Koocher, 2013 all rights reserved
Summary Judgment granted at
Circuit Court
and reversed by Court of Appeals
…an issue of fact with respect to whether Dr. Kuehnle
knew or should have known that the children were subject
to ongoing abuse by their mother such that the professional
standard of care required Dr. Kuehnle to warn Stephen
Rotell or appropriate authorities of such abuse. Thus the
circuit court erred in granting summary judgment in favor of
Dr. Kuehnle at this stage of the proceedings.
Based upon the foregoing discussion, we reverse the
summary judgment in favor of Dr. Kuehnle and remand for
further proceedings. In so doing, we express no opinion
with respect to whether Dr. Kuehnle breached the duty of
care or whether any such breach proximately caused the
Rotells' injuries.
© Gerald P. Koocher, 2013 all rights reserved
The Troubled College
College professor has anxiety attack
and seeks treatment.
 Therapist uses CBT to treat the
anxiety and uncovers fantasy life that
troubles the professor (quest for the
perfect woman).
 They agree to explore this together.
 Professor drives by therapists house
and “confesses.”
© Gerald P. Koocher, 2013 all rights reserved
The confession triggers more anxiety.
 The helpful sister-in-law arranges
 The professor complains of therapist
 The therapist’s records don’t help.
 The state’s expert misses the point and helps
the defendant’s expert close the case.
© Gerald P. Koocher, 2013 all rights reserved
The Internal Case Review
Medical patient applies for disability.
 Psychologist working for insurance
company reviews claim – offers no
opinion on medical diagnosis, but
recommends disability payments for
 Insurance company pays disability for
 Angry client complains.
© Gerald P. Koocher, 2013 all rights reserved
The claimant asserts - psychologist should
have known about my medical diagnosis and
acted as a tool of the employing insurance
© Gerald P. Koocher, 2013 all rights reserved
The “Removal” Case
Court orders evaluation for “Removal
Petition” post divorce.
 Psychologist conducts evaluation, but
refused to read “extraneous material”
angering one party.
 Judge(s) adopt/uphold
 Angry parent sues (acting pro se)
© Gerald P. Koocher, 2013 all rights reserved
Federal Civil Rights Law Suit
7 defendants including psychologist, 3
judges, police officer, and court social
 Allegations against psychologist:
Double billing
 Ex parte communications (using eye
© Gerald P. Koocher, 2013 all rights reserved
Sue’s own lawyer - loses
Stephen Joseph McIsaac v. Anna
16 Mass. L. Rep. 738; 2003 Mass.
Super. LEXIS 260
August 25, 2003, Decided
© Gerald P. Koocher, 2013 all rights reserved
of Multiple Role
and Boundary Traps
Key Elements of a Potential
Multiple Role Relationship Violation
 Inadequate
 Loss of objectivity
 Patient exploitation
 Disruption of treatment
relationship or quality
Multiple Relationships in the APA
Code of Conduct
A multiple relationship occurs when a
psychologist is in a professional role with a
person and
(1) simultaneously occupies another role with
the same person,
(2) at the same time is in a relationship with a
person closely associated with or related to the
psychologist’s client, or
(3) promises to enter into another relationship in
the future with the person or a person closely
associated with or related to the client.
© Gerald P. Koocher, 2013 all rights reserved
Forensic contexts create
mutually exclusive choices
The decision to offer therapeutic services and forensic
services requires mutually exclusive professional
Providing each service requires the expert to make a
mutually exclusive choice of priorities: between patient
welfare and assisting to the court.
Providing each service requires a mutually exclusive
choice: a relationship with the patient–litigant based on
trust and empathy or one based on doubt and distance.
Providing each service also requires a mutually
exclusive level of involvement in the fabric of the
patient–litigant's mental health: trying to better it or
dispassionately evaluating it for the court.
© Gerald P. Koocher, 2013 all rights reserved
Multiple Relationships in the APA
Code of Conduct
Psychologists refrain from entering into a
multiple relationship if that relationship
could reasonably be expected to impair
their objectivity, competence, or
effectiveness in performing his or her
professional functions, or otherwise risks
exploitation or harm to the client with
whom the professional relationship
© Gerald P. Koocher, 2013 all rights reserved
Multiple Role
Not all multiple
relationships are
Relationships not
expected to cause
impairment or risk
exploitation or harm
are not unethical.
Multiple Relationships in the APA
Code of Conduct
If a psychologist finds that, due to
unforeseen factors, a potentially harmful
multiple relationship has arisen, the
psychologist takes reasonable steps to
resolve it with due regard for the best
interests of the affected person and
maximal compliance with the Ethics
© Gerald P. Koocher, 2013 all rights reserved
Multiple Relationships in the APA
Code of Conduct
 When
psychologists are required by law,
institutional policy, or extraordinary
circumstances to serve in more than one
role in judicial or administrative
proceedings, at the outset they clarify role
expectations and the extent of
confidentiality and thereafter as changes
© Gerald P. Koocher, 2013 all rights reserved
Forensic Specialty Guidelines
Providing expert testimony about a
patient who is a participant in a legal
matter does not necessarily involve the
practice of forensic psychology even
when that testimony explicitly embraces a
psycholegal issue that is before the
decision- maker.
 But will it help the client, or compromise
© Gerald P. Koocher, 2013 all rights reserved
Forensic Specialty Guidelines
 Providing
Forensic Therapeutic
 Although
some therapeutic
services can be considered
forensic in nature, that therapeutic
services are ordered by the court
or are delivered to someone
involved in litigation does not
necessarily make them forensic.
© Gerald P. Koocher, 2013 all rights reserved
Forensic Specialty Guidelines
Therapeutic services can have an
important effect on current or future legal
proceedings. Forensic practitioners are
encouraged to consider these effects
and minimize any unintended or
negative effects on such proceedings or
therapy when they provide therapeutic
services in forensic contexts.
© Gerald P. Koocher, 2013 all rights reserved
General considerations when
contemplating a blending of roles:
 Role
conflicts between client and
 Involvement
of third parties.
 Degree
of the compatibility of
expectations for the relationship.
 Divergent
obligations of any added role.
 The
existence of a power differential
between therapist and client.
© Gerald P. Koocher, 2013 all rights reserved
General considerations when
contemplating a blending of roles:
Intensity of the personal relationship
already formed.
Expected duration of the professional
Level of clarity of the termination.
Presence of any objectification of the client.
Impulsivity level of the therapist.
© Gerald P. Koocher, 2013 all rights reserved
Who is the client?
To whom do you believe you owe a
professional duty?
 Who may believe that you owe them a
professional duty?
 What have you done to clarify the nature,
extent, and duration of such obligations?
 What documentation have you retained
to document any of these points?
© Gerald P. Koocher, 2013 all rights reserved
To whom do I owe a duty of care and
in what hierarchical sequence?
The person in
the room?
The family,
guardian, or
The agency or
Society at large?
All of the above?
© Gerald P. Koocher, 2013 all rights reserved
To whom do I owe what
who made the “requests,” and
A court diagnostic centerPrecisely
performs pre-trial
what level of consent and privilege
sexual offender risk assessments
by the
obligations attach?
These could
not have
been “court ordered” on a pre-trial basis.
 The evaluations are released only to the defense
attorney, with the understanding that they would later be
shared with the prosecution
if a plea
prior towere
plea deal?
deals conditioned on the result?
agreed upon by the defendant.
 What ethical concerns arise from need to discuss the
in determining
of a pre-trial
evaluation for factors related to risk, and
other thanon
the hesitancy
the defendant's part to disclose relevant
determination raises many issues related
had not
been convicted of an offense.
consent when
and Fifththey
© Gerald P. Koocher, 2013 all rights reserved
Forensic Perspectives on Privacy,
Confidentiality, Privilege,
& Mental Health Records
Privacy, Confidentiality &
Privilege Domain Breadth
constitutional right
professional standard
narrow legal protection
Excellent confidentiality
The Constitutional right of individuals to
choose for themselves whether, when, and
how private information will be revealed.
 The word privacy does not appear in the
Constitution, but we can infer the concept in:
Amendment 3 – quartering of soldiers
Amendment 4 – search and seizure
Amendment 5 – trial and punishment
Amendment 15 – right to vote regardless of race,
color, or previous servitude
© Gerald P. Koocher, 2013 all rights reserved
Confidentiality and Privilege
Confidentiality: The duty imposed on
professionals to keep information
disclosed in professional relationship in
Privilege: The patient’s right to keep
confidential communications from being
disclosed in a legal proceeding.
© Gerald P. Koocher, 2013 all rights reserved
Principles underpinning
exceptions to privacy protections
When there are competing social policies
Parens patriae doctrine (i.e., the parentalistic state
as the guardian or protector of the incompetent)
◦ Police powers and confinement may be used to
protect (e.g., Joyce Brown, AKA: Billie Boggs v. Mayor Koch, 1987).
◦ Legislatures have enacted protective mandates.
When a patient’s behavior becomes
inconsistent with social policies supporting
© Gerald P. Koocher, 2013 all rights reserved
United States v. Chase, 340 F 3d
978 (9th Cir. 8/22/03)
Gene Chase received treatment at Kaiser Permanente
from psychiatrist Kay Dieter in 1997. His symptoms
included irritability, depression, and intense anger
including episodes of rage and obsessive rumination
against certain people, including participants in various
legal proceedings in which he was a defendant.
Chase was diagnosed with “bipolar type II disorder,”
received disability benefits due to his psychiatric condition.
He met with Dieter every few months for medication
management, and more often (bi-weekly to monthly) with
psychologist Robert Schiff for psychotherapy.
© Gerald P. Koocher, 2013 all rights reserved
United States v. Chase
In August,1999, Chase showed Dieter his day planner,
containing a list of names, addresses, and social security
numbers - including 2 FBI agents who had investigated
him. Chase confided that he had thoughts about injuring
or killing them and had threatened other people on the
list several times during the prior 5 years.
Dieter worried that Chase might act on his homicidal
threats. He told her that he had no intention of acting on
these thoughts immediately. Nonetheless, she warned
Chase that if he told her specifics about plans to kill, she
would have a duty to disclose the threats to the intended
victims so that they could protect themselves.
© Gerald P. Koocher, 2013 all rights reserved
In October, 1999, Chase called Dieter to tell her that he
had argued with his wife and felt extremely upset. Fearing
Chase was losing his support system. Dieter met with a
supervisor and with Kaiser's legal counsel to discuss again
whether to disclose his threats. Legal counsel advised
Dieter to contact the local police in Corvallis, OR, Chase's
home town. Dieter spoke with the FBI and disclosed the
threatening statements Chase had made during his
therapy sessions, identifying the potential targets.
Chase repeated the threats to switchboard operators at
Ultimately he was convicted on a variety of charges after
barricading himself in his home with a weapon.
He appealed in part on allegations that Dieter had been
allowed to testify at trial about threats made in therapy.
And the court ruled…
© Gerald P. Koocher, 2013 all rights reserved
Chase's communication to Dieter of threats to third parties
was a confidential communication, ordinarily, subject to a
federal testimonial privilege.
Dieter properly disclosed the threats to law enforcement
Dieter's disclosure did not destroy the federal testimonial
privilege. The court held, “…there is no dangerous-patient
exception to the federal psychotherapist-patient testimonial
However, the court did not reverse the conviction based on
the district court's error allowing Dieter to testify about what
occurred in therapy, “…because the jury acquitted Chase of
the threats to which Dr. Dieter testified and because, on this
record, the outcome on the count of conviction would have
been the same without her testimony, we hold the error was
© Gerald P. Koocher, 2013 all rights reserved
When it comes to
the therapist knows best?
Ithaca therapist refuses to turn over notes,
charged with contempt
6:02 PM, Jan 18, 2013 |
Dianea Kohl spent more than 25 years as a state-licensed
marriage and family therapist without encountering legal
troubles. But in 2012, the Ithaca resident faced court battles
in two area counties involving what she considers a violation
of the sanctity of the therapist-client relationship — a
violation she believes could have a chilling effect on other
counselors and their clients.
“There are only two exceptions to confidentiality — only if I
have knowledge of child abuse, or if someone is actively
suicidal or homicidal can I breech confidentiality,” Kohl said.
Kohl first ran into trouble early last year when she was
called to testify in Steuben County Family Court regarding a
child custody case.
© Gerald P. Koocher, 2013 all rights reserved
Both the father involved in the dispute and his 3-year-old
child had been to court-ordered therapy sessions with
Kohl. Christine Valkenburg, the law guardian who
represented the child, asked that Kohl provide the case
notes from those sessions. Instead, Kohl presented a
summary of those notes to the court.
“The law guardian wanted all of my therapy notes. Why
did she want my notes unless she thinks I’m hiding
something?” Kohl said. “She could not give a reason why
she wanted to see the notes. The law guardian went to
the judge, and the judge issued an order. That’s when I
got my own lawyer.
“I refused to give up my notes. My ethics say I am not to
do that,” she said. “I take lots of fragmented notes. They
would not be helpful to the lawyer.”
© Gerald P. Koocher, 2013 all rights reserved
Opposing views
Valkenburg didn’t see it that way, and neither did Family
Court Judge Joseph Latham. Latham signed a contemptof-court order against Kohl in February, and the next
thing Kohl knew, she was under arrest and in handcuffs.
“I was arrested June 2. There had been a warrant out
since February, so I thought they decided not to do
anything,” Kohl said. “I was flabbergasted when a state
trooper handcuffed me in broad daylight on Route 13. I
was shocked.”
Kohl eventually compromised and gave her notes
directly to Latham to review. Kohl had discussed the
order with her client and received the judge’s promise
that only he would see them and that some text would be
© Gerald P. Koocher, 2013 all rights reserved
APA’s fundamental statement
on confidentiality
Psychologists have a primary obligation
and take reasonable precautions to
protect confidential information obtained
through or stored in any medium,
recognizing that the extent and limits of
confidentiality may be regulated by law or
established by institutional rules or
professional or scientific relationship.
© Gerald P. Koocher, 2013 all rights reserved
Limits on Confidentiality per
20010 APA Ethics Code
Psychologists discuss with persons
(including, to the extent feasible, persons
who are legally incapable of giving
informed consent and their legal
representatives) and organizations with
whom they establish a scientific or
professional relationship
(1) the relevant limits of confidentiality and
(2) the foreseeable uses of the information
generated through their psychological
© Gerald P. Koocher, 2013 all rights reserved
Limits on Confidentiality
per 2010 APA Ethics Code
Unless it is not feasible or is
contraindicated, the discussion of
confidentiality occurs at the outset of
the relationship and thereafter as new
circumstances may warrant.
© Gerald P. Koocher, 2013 all rights reserved
Straightforward exceptions or
waivers of confidentiality
Patient consents or authorizes release
Consultations with other professionals
to advance patient care
Abuse reporting (statutory)
Abuse proceedings triggered by
© Gerald P. Koocher, 2013 all rights reserved
But wait…
Use caution when asked for records by anyone other
than the client, and make certain that the client
understands the potential consequences of a release.
Releases seeking information must conform to HIPAA
and state law with respect to all components, including
specific approval for release of psychotherapy notes, if
Intermingling of family or marital records may present
© Gerald P. Koocher, 2013 all rights reserved
“Category 5 Divorce”
Sample Events
Real or manipulative Duty to Warn Triggers
Patient tells psychologist about his desire for
revenge against his ex/spouse.
Who has the legal authority to initiate
evaluation or treatment for a child?
Parents who are separated
Parent with sole custody
Parent with joint or shared custody
Parent with visitation
Parents who suspect sexual abuse
© Gerald P. Koocher, 2013 all rights reserved
“Can you believe it! That
idiot took the kids to see
topless dancers at a bar!”
© Gerald P. Koocher, 2013 all rights reserved
More “Category 5 Divorce” Events
“Stealth” Custody or Change of Circumstance
Evaluations can occur so consider:
Elements for consent to evaluation of parties and
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
© Gerald P. Koocher, 2013 all rights reserved
Still More
“Category 5 Divorce” Events
Who has access to court mandated
Judge, counsel, parties?
Release of raw psychological test data
and test materials (more on this later)
Current ethics code
Copyright violations
Contract with testing companies
Destroy usefulness of test
© Gerald P. Koocher, 2013 all rights reserved
Confidentiality: Hot Issues
Variations state
Access to
records in the
post-HIPAA era
Patients (living
and deceased),
families, others,
and "the Feds."
APA’s position regarding
mandated reporting statutes
If psychologists' ethical responsibilities
conflict with law, regulations, or other
governing legal authority, psychologists
make known their commitment to the
Ethics Code and take steps to resolve
the conflict. If the conflict is unresolvable
via such means, psychologists may
adhere to the requirements of the law,
regulations, or other governing legal
© Gerald P. Koocher, 2013 all rights reserved
Mandated reporting variations
 Elders
 Dependent
 Mentally
Unsafe drivers
Still more exceptions to
Professional responsibility to protect
 Professional responsibility to protect
clients from life-threatening self harm
Tarasoff v. Regents
 MacIntosch v. Milano
 Thompson v. County of Alameda
 Other progeny of Tarasoff
© Gerald P. Koocher, 2013 all rights reserved
Still more exceptions to
Health oversight or managed care
TPO: treatment and payment operations
under HIPAA
Bill collection
Client status disclosures
Complaints/lawsuits and threats by
 Law enforcement personnel (very few
© Gerald P. Koocher, 2013 all rights reserved
Still more twists on the
confidentiality rights of dead people
Middlebrook, D. W. (1991). Anne Sexton: A
biography. New York: Vintage Books.
Martin Orne, MD, PhD
Swidler & Berlin and James Hamilton v.
United States U.S. 97-1192.
Opinion by Rehnquist, joined by Stevens, Kennedy, Souter,
Ginsburg, and Breyer, held that notes were protected by attorneyclient privilege because both a great body of case law and
weighty reasons support the position that attorney-client privilege
survives a client's death, even in connection with criminal cases.
• Opinion cited: Jaffee v. Redmond, 518 U.S. 1, 17-18, 135 L.
Ed. 2d 337, 116 S. Ct. 1923 (1996)
© Gerald P. Koocher, 2013 all rights reserved
Still more exceptions to
confidentiality per HIPAA
Deceased Patient
Legal representative of estate unless
specifically prohibited by state law (Privacy
 Not required if psychologist decides, in the
exercise of reasonable professional
judgment, that treating an individual as
personal representative (under HIPAA) is
not in patient’s best interest (Privacy Rule)
© Gerald P. Koocher, 2013 all rights reserved
When the Subpoena arrives
A subpoena duces tecum arrives demanding the
clinician appear in court or for deposition bringing along
“any and all, files, documents, reports, papers,
photographs, recordings, and notes in whatever form
they exist.”
What is the appropriate response to a subpoena sans client
Dealing with intimidation or other strategies used by some
attorneys to gain information
Subpoena vs. court order
Potentially harmful information in client record
© Gerald P. Koocher, 2013 all rights reserved
Records? What records?
6.01 Documentation of Professional and
Scientific Work and Maintenance of
o Psychologists create, and to the extent the records
are under their control, maintain, disseminate, store,
retain, and dispose of records and data relating to
their professional and scientific work in order to (1)
facilitate provision of services later by them or by
other professionals, (2) allow for replication of
research design and analyses, (3) meet institutional
requirements, (4) ensure accuracy of billing and
payments, and (5) ensure compliance with law. (See
also Standard 4.01, Maintaining Confidentiality.)
© Gerald P. Koocher, 2013 all rights reserved
“The Compleat Record Keeper”
with forensic annotations
from the Psychologists’ Desk Reference
First contact
Legal notifications
Relevant history and
risk factors
Clarification of client
status, court orders,
billing/payment, etc.
Documents reviewed
Medical or health
Medication profile
Why is the client in
your office?
Referral questions
Current status
Itemized list of data
Diagnostic impression
Treatment plan
Progress notes
Service documentation
Document follow-up
Interview, test, collateral
Contacts and releases of
Obtain and document
consent for treatment and
release of information
Health Insurance
Portability and
Accountability Act (HIPAA)
Kennedy-Kassenbaum Act of 1996
AKA: 45 C.F.R.160
Do HIPAA rules govern forensic
 Some such
 Forensic
evaluations may
evaluations ≠
health services. assign diagnoses.
It’s a moot point!
Consent standards in forensic evaluations generally far exceed
health related confidentiality consent disclosures.
Connell, M. & Koocher, G. P. (2003). Expert Opinion: HIPPA and Forensic
Practice. American Psychology Law Society News, 13, 2, 16-19.
© Gerald P. Koocher, 2013 all rights reserved
Privacy Rule Basics
Original purpose was to protect Americans from
losing their health insurance.
Congress encouraged electronic transmission of
health information to third party payers to increase
efficiency, protect privacy and create uniform
December 28, 2000, HHS (Clinton administration)
issued administrative rules to implement HIPAA.
Bush Administration accepted rules with proposed
changes which have become part of rules.
© Gerald P. Koocher, 2013 all rights reserved
Privacy Rule Terminology
Protected Health Information (PHI)
Personally identifiable information that is created or
received by a health care provider that relates to
physical or mental health of an individual
Health Care
Care or services related to the health of an
individual…including but not limited to
…preventative, diagnostic, therapeutic …care and
counseling, service, assessment or procedure with
respect to the physical or mental condition, or
functional status, of an individual…”
© Gerald P. Koocher, 2013 all rights reserved
Privacy Rule Requirements
Privacy Rule allows disclosure of protected
information for treatment, payment and
health care operations (TPO) with notice
and good faith attempt to gain patient
State law requirements to obtain informed
consent before releasing such information
remain in effect.
All other uses or disclosures require an
© Gerald P. Koocher, 2013 all rights reserved
More Privacy Rule Basics
Psychotherapist-Patient Privacy Protected
in 3 ways:
Minimum Necessary Disclosure
 State Law Pre-emption
Special Protection given to mental health
information by dividing into two
• Protected Health Information (PHI) or the “Clinical
• “Psychotherapy Notes”
© Gerald P. Koocher, 2013 all rights reserved
What goes in the “clinical record”
The following information, if kept, must remain in
the clinical record
1. Medication prescription and monitoring
2. Counseling session start and stop times
3. Modalities and frequencies of treatment
4. Results of clinical tests (including raw test data)
5. Summaries of:
functional status
treatment plan
progress to date
© Gerald P. Koocher, 2013 all rights reserved
What are “psychotherapy notes?”
Actual language of rule on psychotherapy
records or notes :
“Notes recorded (in any medium) by a
health care provider who is a mental
health professional documenting or
analyzing the contents of conversation
during a private counseling session or a
group, joint or family counseling session
and that are separated from the rest of the
individuals medical record.”
© Gerald P. Koocher, 2013 all rights reserved
Psychotherapy notes: the HHS narrative
“The rationale for providing special protection
for psychotherapy notes…not only that they
contain particularly sensitive information, but
also that they are the personal notes of the
therapist, intended to help him or her recall the
therapy discussion and are of little use or no use
to others not involved in the therapy.
Information…not intended to communicate to, or
even be seen by, persons other than the
therapist…we have limited the definition of
psychotherapy notes to only that
information…kept separate by the provider for
his or her own purposes…not…the medical
record and other sources of
information…normally disclosed for [TPO].”
© Gerald P. Koocher, 2013 all rights reserved
Must practitioners keep
“psychotherapy notes?”
Psychologists are not legally or ethically
required to keep psychotherapy notes; they
remain completely optional
The decision can vary from patient to
patient, and from session to session,
depending on the facts and circumstances of
the case.
Many psychologists will elect to keep one
set of records to minimize complexity
Forensic psychologists should not (IMHO)
keep such notes.
© Gerald P. Koocher, 2013 all rights reserved
More on psychotherapy notes
Privacy rule is unclear about content
Actual language of rule is broad
 Language in HHS commentary narrow
Clinical record must provide adequate
documentation of treatment
Seeing psychotherapy notes as method
of “hiding” essential treatment
information is bad strategy.
© Gerald P. Koocher, 2013 all rights reserved
Forensic Guideline:
13.02 Differentiating Observations,
Inferences, and Conclusions
In their communications forensic
practitioners clearly distinguish
observations, inferences, and
conclusions. Forensic practitioners are
prepared to explain the relationship
between their expert opinions and the
legal issues and facts of the case at hand.
© Gerald P. Koocher, 2013 all rights reserved
Consider a three phase plan
Plan the evaluation careful
• Referral questions, tool selection, consent
Collect and analyze the data appropriately
• Administration, recording, observation
Anticipate use of reports and requests for access
© Gerald P. Koocher, 2013 all rights reserved
Assessment issues
What questions do I want to answer?
How can I use psychological data to address a legal
Which of the data have the least validity for the
matter at hand?
 Correlate data and seek to explain outlier data
(concurrent validity and exceptions).
Special problems
 Multiple evals by opposing experts within a few
 Syndromal evidence?
© Gerald P. Koocher, 2013 all rights reserved
Preparation Phase
Clarifying the engagement
Evaluative authority
• Private, court ordered, institutional contract
Who is the client?
 What services/roles are requested?
 What products are expected?
Appropriate Consent (including permission
and assent where relevant)
Levels of cooperation highly variable
© Gerald P. Koocher, 2013 all rights reserved
The self-awareness problem
Eliminating actual and perceived bias
© Gerald P. Koocher, 2013 all rights reserved
Impartiality and Trust
Preconceived biases run high in the some
areas of litigation.
A lot of what some clinicians believe they
“know” has no firm scientific foundation.
Appearance of bias can prove as
damaging as actual bias.
 We must recognize our own attitudes,
values, and biases and seek continuous
© Gerald P. Koocher, 2013 all rights reserved
Assessment Tools
Selection and adequacy of
Understanding validity and
Face validity (?)
Content validity
Predictive validity
Construct validity
• Problem of the invalid
construct (syndrome of the
Controversial Tools
(e.g., the dolls)
Language and Culture
Appropriate Assessment in a Multi-Cultural
Language + Culture
Translator v. Interpreter
What’s in a Norm?
Are the norms up to date or based on people
compatible to the client?
If the normative data do not match the client, the
psychologist must discuss such limitations when
making interpretations.
© Gerald P. Koocher, 2013 all rights reserved
Language and Culture Barriers
Our clinic was often appointed by the court to conduct sexual
offender risk assessments (as well as other types of forensic
evaluations) with Spanish-speaking (among other languages)
defendants. This arrangement was challenging, as our clinic
did not have a Spanish-speaking psychologists, and the
aforementioned defendants did not have the financial resources
to obtain a private evaluation with a Spanish-speaking
Although we used a skilled interpreter, we had additional
concerns regarding the validity of psychological tests
(particularly when the defendants were illiterate and/or from
rural areas in Mexico with little formal education) and the
validity of assessing mental state through an interpreter.
© Gerald P. Koocher, 2013 all rights reserved
Data Collection and Validity Issues
Conducive climate and context
 Avoiding re-traumatization
 Detecting coaching
© Gerald P. Koocher, 2013 all rights reserved
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
© Gerald P. Koocher, 2013 all rights reserved
Syndrome versus Disease
and “syndromal evidence”
A syndrome = a cluster or pattern of symptoms that
appear together in a manner considered clinically
In contrast to diseases, syndromes have no specified
temporal course or clear pathological nature.
Diseases, on the other hand, have a cluster of signs
and symptoms as well as a known pathological quality
and temporal course.
A syndrome typically links a set of characteristics to
some antecedent event or trauma (e.g., battered
woman syndrome or rape trauma syndrome).
© Gerald P. Koocher, 2013 all rights reserved
Examples of “syndromes”
Down syndrome
 trisomy 21
ROHHAD syndrome
Rapid-Onset Obesity with Hypoventilation, Hypothalamic,
Autonomic Dysregulation, and Neural Tumor Syndrome
Stockholm syndrome
Parental alienation syndrome
Child sexual abuse accommodation syndrome
Damocles syndrome
© Gerald P. Koocher, 2013 all rights reserved
Gardner, RA (2001). "Parental Alienation Syndrome (PAS): Sixteen Years
Later". Academy Forum 45 (1): 10-12. Retrieved on 2009-03-31
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.
© Gerald P. Koocher, 2013 all rights reserved
Conducting the Evaluation:
Scientific foundations are critical
© Gerald P. Koocher, 2013 all rights reserved
After the Evaluation
Anticipating the request for data
Nature and production of the report
Who gets the report?
Focus, details, payment…
Planned uses
(e.g., civil, criminal, custody)
Requests for Modification of Reports
Critiquing the reports of other professionals
Debate on
Release of Test Data
© Gerald P. Koocher, 2013 all rights reserved
Release Test Data or Not?
A psychologist conducted a parenting
evaluation and reported ons MMPI-2 results
with no elevations on clinical scales. He
concluded that the examinee is dishonest, and
recommended psychotherapy.
The therapist via the attorney requests the
evaluator's results, at least a Welsch code
which was not in the report. The evaluator
refuses to release anything citing MMPI
copyright issues. Is there a HIPAA issue?
© Gerald P. Koocher, 2013 all rights reserved
Release of Test Data
Standard 9.04
Test data refers to raw and scaled scores,
patient responses to test questions or stimuli,
and our notes and recordings concerning
patient statements and behavior during an
examination. Portions of test materials
including patient responses are considered
test data.
 Pursuant to a patient release, we provide test
data to the client/patient or other persons
identified in the release.
© Gerald P. Koocher, 2013 all rights reserved
Release of Test Data
Standard 9.04 (continued)
 Psychologists
may refrain from
releasing test data to protect a patient or
others from substantial harm, misuse or
misrepresentation of the data or the test,
recognizing that release of information is
also regulated by law.
 In the absence of a release,
psychologists provide data only as
required by law or court order.
© Gerald P. Koocher, 2013 all rights reserved
Maintaining Test Security
Standard 9.11
Test materials refers to manuals,
instruments, protocols, and test questions or
stimuli but does not include test data as
defined in 9.04.
 Psychologists make reasonable efforts to
maintain the integrity and security of test
materials and other assessment techniques
consistent with law and contractual
obligations, and in a manner that permits
adherence to the ethics code
© Gerald P. Koocher, 2013 all rights reserved
Custody Disputes
Where Those Without
Forensic Training Stumble
Most Often.
Child Custody Cases:
Key Advice
Don’t treat the system
Get formal training and
mentored experience.
Seek judicial
appointment, if possible
(quasi judicial immunity
may attach
Clarify roles and
expectations with all
parties at the outset.
© Gerald P. Koocher, 2013 all rights reserved
Eight Common criticisms of
psychologists in custody disputes
Deficiencies and abuses in professional
Inadequate familiarity with the legal
system and applicable legal standards.
Inappropriate application of psychological
assessment techniques.
Presentation of opinions based on partial
or irrelevant data.
© Gerald P. Koocher, 2013 all rights reserved
Eight Common criticisms of
psychologists in custody disputes
Overreaching by exceeding the limits of
psychological knowledge of expert
Offering opinions on matters of law.
Loss of objectivity through inappropriate
engagement in the adversary process.
Failure to recognize the boundaries and
parameters of confidentiality in the
custody context.
© Gerald P. Koocher, 2013 all rights reserved
Elements of Notification in a
Custody Evaluation
Provide a statement of adult parties’ legal rights
with respect to the anticipated assessment
Give a clear statement regarding the purpose of
the evaluation.
Identify the requesting entity.
• (Who asked for the evaluation?)
Describe the nature of anticipated services.
• (What procedures will you follow?)
Explain the methods to be utilized.
• (What instruments and techniques will you use?)
Specify whether or not the services are court
© Gerald P. Koocher, 2013 all rights reserved
Elements of Notification in a
Custody Evaluation
Delineate the parameters of confidentiality.
Provide information regarding:
Will anything be confidential from the court, the parties, or the public?
Who will have access to the data and report? How will access be provided?
The evaluator’s credentials;
The responsibilities of evaluator and the parties;
The potential disposition of data
The evaluator’s fees and related policies;
What information provided to the child, and by whom?
Any prior relationships between evaluator and parties;
Any potential examiner biases (For example: presumptions regarding joint
Consent documentation
Obtain consent to disclose material learned during evaluation in litigation.
Obtain waiver of confidentiality from adult litigants or there legal
Provide written documentation of consent.
© Gerald P. Koocher, 2013 all rights reserved
Ultimate Issue
Ultimate opinion testimony
In criminal law thus refers to a legal issue
at stake in the prosecution of a crime for
which an expert witness is providing
 Another category in family law might
involve a judgment on parental fitness.
 The ultimate fact is, in law, the conclusion
(or conclusions) of factual evidence made
by a jury after deliberation.
© Gerald P. Koocher, 2013 all rights reserved
Ultimate issue testimony
Should an expert ever offer an opinion on a
legal question before the court?
Consider deconstruction of components and
addressing those to which the data apply.
 Consider the validity of the data in the
context of binary decisions the trier of fact
may have to make.
 Hold on to your integrity amid degrees of
© Gerald P. Koocher, 2013 all rights reserved
Ultimate issue testimony
Help the court understand the
meaning of all psychologically relevant
facts and data as they apply to the
decision at hand in a manner that
promotes understanding and avoids
© Gerald P. Koocher, 2013 all rights reserved
Selected Interesting
Public Law 107-56
 “Uniting
and Strengthening
America by Providing Appropriate
Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001”
 Sec.
215. Access to Records and
Other Items Under the Foreign
Intelligence Surveillance Act (FISA).
© Gerald P. Koocher, 2013 all rights reserved
Public Law 107-56
Sec. 501. Access to Certain Business Records for Foreign
Intelligence and International Terrorism Investigations.
(a)(1) The Director of the Federal Bureau of Investigation or a designee
… may make an application for an order requiring the production of any
tangible things (including books, records, papers, documents, and other
items) for an investigation to protect against international terrorism or
clandestine intelligence activities….
(c)(1) Upon an application made pursuant to this section, the judge shall
enter an ex parte order as requested, or as modified…
(2) (d) No person shall disclose to any other person (other than those …
necessary to produce the tangible things…) that the FBI has
sought/obtained … things…
(e) A person who…produces … things under an order … section shall
not be liable to any other person...
© Gerald P. Koocher, 2013 all rights reserved
United States of America v.
Theresa Marie Squillacote (2000).
221 F.3d 542.
Theresa Marie Squillacote (AKA: Tina, Mary
Teresa Miller, The Swan, Margaret, Margit, Lisa
Martin, and her husband, Kurt Stand; convicted
of espionage.
For 550 days the FBI maintained secret
electronic surveillance of the couple's bedroom,
and intercepted telephone calls with her
psychotherapist (Jose Apud, MD), and attempted
to lure the woman into damaging disclosures.
© Gerald P. Koocher, 2013 all rights reserved
Theresa Squillacote &
Kurt Stand
Theresa - born in Chicago in November 1957,
earned a master's degree at the University of
Wisconsin, and a law degree from Catholic
University in Washington, DC.
Kurt fled from Germany during Hitler's reign,
but maintained contacts with friends in East
Germany. In the 1970s, he began working for
the East German intelligence agency. His work
focused on recruiting agents in the USA. In
1981 he recruited Theresa. The married in
© Gerald P. Koocher, 2013 all rights reserved
United States of America v.
Theresa Marie Squillacote (2000).
221 F.3d 542.
Theresa Marie Squillacote served as a senior
staff attorney in the office of the Deputy
Undersecretary of Defense for Acquisition
Reform until January 1997. Prior to her
Pentagon assignment, she worked for the House
Armed Services Committee.
Kurt Alan Stand worked as a regional
representative of the International Union of
Food, Agricultural, Hotel, Restaurant, Catering,
Tobacco and Allied Workers Association
© Gerald P. Koocher, 2013 all rights reserved
FBI BAP Advice…
An FBI Behavioral Analysis Program team (BAP)
drafted a personality report for use in the investigation
based on her conversations with her psychotherapists.
The BAP noted that she had depression, took
medication, and had "a cluster of personality
characteristics often loosely referred to as 'emotional
and dramatic.”
The BAP team recommended taking advantage of
Squillacote's "emotional vulnerability," and described
the type of person to whom she might pass on
classified materials.
© Gerald P. Koocher, 2013 all rights reserved
FBI BAP Advice…
“LS ignores and neglects her children; her
clandestine activities take precedence in her
life. She suffers from cramps and is taking
the antidepressants Zoloft and [sic] Diserel.
LS has wide mood swings. She has
dependent childish relationships with men.
She is totally self-centered and impulsive. “
The type of UCA (undercover agent) who
approaches her will be very important.
© Gerald P. Koocher, 2013 all rights reserved
BAP Advice…
Because of the above traits—
It is most likely that LS will be easily persuaded if an
approach is made to her that plays more to her
He might be depicted as the son of communists who
left for South Africa in the late 1940s or early 1950s.
The UCA should make a friendly overture by bringing
her a personal gift such as a biography, which is her
favorite type of book.
The UCA would act professional and somewhat aloof
yet responsive to her moods.
© Gerald P. Koocher, 2013 all rights reserved
Sell v. United States, 539 U.S.
166 (2003)
Charles Sell, a dentist charged with committing
63 counts of Medicaid fraud, was determined by
psychiatric evaluation as incompetent to stand
trial. The government psychiatrists
recommended psychoactive drugs to restore
competency. Having experienced negative
reactions to such drugs in the past, Sell refused.
As a result, he was incarcerated in a forensic
mental institution for 7 years, a longer period of
time than the maximum sentence for the crime
with which he was charged.
© Gerald P. Koocher, 2013 all rights reserved
Sell v. United States, 539
U.S. 166 (2003)
On June 16, 2003, Justice Breyer delivered the 6-3
Supreme Court decision: “We conclude that the
Constitution allows the Government to administer
those drugs, even against the defendant’s will, in
limited circumstances, that is, upon satisfaction of
conditions that we shall describe. Because the Court
of Appeals did not find that the requisite
circumstances existed in this case, we vacate its
 Sell won his right to refuse to take psychoactive
drugs, but his victory seemed a hollow one at
substantial cost.
© Gerald P. Koocher, 2013 all rights reserved
Case Discussions
© Gerald P. Koocher, 2013 all rights reserved
Barter counseling for bathroom repair
(NE Grand Rapids )
Reply to: [email protected]
Date: 2008-12-07, 12:09PM EST
“My husband is a capable and effecive counselor,
licensed...but he is not good at home repairs/construction.
I will trade his expertise for your time with him as a
counselor if you can help us with tub and tile repair and
plumbing. We had a termite problem that we fixed but the
place needs a new floor and other stuff...if you are
struggling with depression or bipolar, he is your
man...maybe your spouse, child, etc. He is truly an
excellent counselor. We have our own non-profit and give
to others without charging so our financial situation is
limited, but looking to trade! thanks.”
Location: NE Grand Rapids
PostingID: 948491022
© Gerald P. Koocher, 2013 all rights reserved
Texas Psychologist Punished in
Death Penalty Cases
A psychologist who examined 14 inmates who are now on Texas’
death row — and two others who were subsequently executed —
and found them intellectually competent enough to face the death
penalty has agreed never to perform such evaluations again.
As part of a settlement, the Texas State Board of Examiners of
Psychologists issued a reprimand against Dr. George Denkowski,
whose testing methods had been sharply criticized by other
psychologists and defense attorneys as unscientific. Denkowksi
agreed not to conduct intellectual disability evaluations in future
criminal cases and to pay a fine of $5,500. In return, the board
dismissed the complaints against him.
© Gerald P. Koocher, 2013 all rights reserved
Denkowski used unscientific methods artificially
inflating intelligence scores to make defendants
eligible for the death penalty.
In 2008 he published an article in the American Journal of Forensic Psychology
describing his technique for scoring defendants’ IQ test result, asserting that traditional
tests did not compensate for social and cultural factors.
For example, he asserts that those who come from impoverished backgrounds may not have
learned basic skills like using a thermometer or maintaining hygiene simply because those skills
were not valued in their community. But that does not necessarily indicate low IQ,
Denkowski also deviated from the standard use of adaptive behavior scales, typically
administered to family and friends who know the person to ask about the person functioning.
Instead he administered the test to the inmate, claiming that people close to the individual, “tend
to understate a defendant’s actual functioning markedly” to help their friend or family member
avoid execution.
Other psychologists have rejected Denkowski’s methods, arguing that they have no
scientific basis. The American Association on Intellectual and Developmental Disabilities
strongly cautioned against using Denkowski’s methods “until firmly supported by
empirical evidence.”
“What Denkowski has been doing is a pretty radical departure,” says Marc Tasse,
director of the OSU Nisonger Center and an expert in developmental disabilities.
“There’s absolutely no scientific basis to his procedure.”
© Gerald P. Koocher, 2013 all rights reserved