Third Party Evaluations: Ethical,
Regulatory, and Statutory Considerations
Tim F. Branaman, Ph.D., ABPP (Forensic)
Forensic Psychology Summer Conference
Argosy University, Dallas
June 11, 2001
Disclaimer
All comments and observations made by me solely
reflect my personal opinions or perspectives at a
given point in time. They should not be construed as
representative of any position or perspective of the
Texas State Board of Examiners of Psychologists or
my role with that agency.
Emergence of Forensic Specialization
ClinicalForensic
Practice
Practice
Developing prominent body of literature over past 25 years
Standards and Requirements
Ethical
Statutes
Regulatory
Ethical
Standards
–Aspirational as well as required
standards
Statutory
Standards
–Legislation establishes requirements that
are implemented by statutory code
–occupations code, family code, code of
criminal procedures, etc
–Legislation may stipulate requirements
Regulatory
Standards
–Regulatory standards have the force of
law
–Standards are established for purpose of
maintaining standards of profession and
protection of the public
Third Party Evaluations
• Distinction of treating and forensic expert
roles have been recognized for past 20 years
– Advocacy for enforcement of boundaries not only
in ethical standards but legal standards began to
emerge
• Committee on Ethical Guidelines for Forensic
Psychologists Guidelines
– 1991 Guidelines
– Multiple draft revisions , and
– March 2011 draft revision
• American Academy of Psychiatry and Law (2005)
• American Psychiatric Association (2008)
• American Psychological Association in practice
guidelines
• Defining differences continue to be refined
– Not just the distinction between “treating” versus
“evaluating” experts
– Forensic literature has begun to more clearly
distinguish roles by defining to whom duty is
owed
• 2-party evaluations: mental health professional and
patient/client
• 3rd party evaluations: mental health professional,
individual being evaluated, and third party who will
receive the information from the evaluation
Function of Third-Party Evaluation
• Third-party evaluations are the undertaking of
an assessment for the purpose of providing
information to a third-party about the
individual to be evaluated
• Primary duty is to provide third party with
information regarding an issue pertaining to
legal, administrative, or financial questions
Gold, L. & Shuman, D. (2009). Evaluating Mental Health Disability in the
Workplace: Model, Process, and Analysis.
• Not just important for forensic mental health
specialists, but practitioners in general
• Psychologists and other mental health
professionals should understand when they
are changing roles and to whom duty is owed
SGFP Proposed Revision – 6th Draft
Released March 18, 2011
• For the purposes of these Guidelines, forensic
psychology refers to professional practice by any
psychologist working within any sub-discipline
psychology (e.g.., clinical, developmental, social,
cognitive) when applying the scientific, technical,
specialized knowledge of psychology to the law
assist in addressing legal, contractual, and
administrative matters. Application of the
Guidelines does not depend on the practitioner’s
typical areas practice or expertise, but rather on
the service provided in the case at hand.
Specialty Guidelines Recognize
• Evaluation is not necessary to involve third
parties
• Matters that involve administrative bodies
may be initiated by evaluee, but are for
benefit of third party
Application in Texas
• TSBEP Rules of
Practice
TSBEP Rules of
Practice
– 465.18 Forensic
Services
– Evolving since
1999
Benefit of Rules
• Protection of consumer
– Public at large
– Professional consumers, e.g.., attorneys
• Benefit to psychologist
– Protection of psychologist by improved clarity of
role boundaries
To Whom Do Forensic Rules Apply
• TSBEP Rules of Practice are consistent with
Specialty Guidelines for Forensic Psychology
– Apply to any “licensee who knows or should
know” that the product of services being provided
will be used in a legal proceeding
• TSBEP Rules make clear involvement of a
third-party by distinguishing a “patient” from
an individual who is the subject of a forensic
evaluation
Recent Rule Changes:
Implemented and Proposed
• Implemented
– 465.18(f) Parenting Facilitators
– Effective March 2011
Parenting Facilitator: Implemented
• Authorized by 2009 legislation
– HB 1012 Amended Texas Family Code
– Changed previous definition of “Parenting
Coordinator”
– Added new role, “Parenting Facilitator”
Parenting Coordinator
• Court appointed
• A variety of functions including “settling
disputes regarding parenting issues and
reaching a proposed joint resolution or
statement of intent regarding those disputes”
Functions of Parenting Coordinator
•
•
•
•
•
•
•
•
•
•
identifying disputed issues;
reducing misunderstandings;
clarifying priorities;
exploring possibilities for problem solving;
developing methods of collaboration in parenting;
understanding parenting plans and reaching agreements about
parenting issues to be included in a parenting plan;
complying with the court's order regarding conservatorship or
possession of and access to the child;
implementing parenting plans;
obtaining training regarding problem solving, conflict management,
and parenting skills; and
settling disputes regarding parenting issues and reaching a
proposed joint resolution or statement of intent regarding those
disputes.
• A mental health or legal professional who
who
• Designated licensing boards were required to
implement rules by March 2011 for purpose
of oversight of licensees
• Intended to improve clarity of what
constitutes forensic services and third-party
referrers
• Clarifies what practitioners “should know”
involves a legal claim or may potentially result
in legal procedures pertaining to legal claims
• Proposed rule would apply to
– DARS Disability Determination evaluations
– Fitness for Duty Evaluations
– Pre-employment evaluations for high risk/security
related professions
– Human Resource Department referrals for “risk
assessment” and recommendations for return to
work following a critical incident
Effect of Other Code Changes
Implemented: Deregistration
Evaluation Specialist
Code of Criminal
Procedures
Likely: Increased CEUs to qualify
under 46B to conduct court
appointed competency and sanity
evaluations
CCP 62.401 – Deregistration of
Certain Convicted Sex Offenders
• CCP 62.401 delegated to the Texas Council on
Sex Offender Treatment (CSOT) the task of
establishing and implementing a protocol for
evaluation for risk of criminal recidivism
• Deregistration applies to Public Registry
• Eligibility for deregistration generally follows
10 years after release from supervision
CCP 62.401 – Deregistration of
Certain Convicted Sex Offenders
• While only a Licensed Sex Offender Treatment
Provider (LSOTP) may provide treatment to a
convicted sex offender sexual behavior, forensic
psychologists have evaluated for non-treatment
purposes, e.g.., risk assessment, mitigation
• Only LSOTPs who have been identified as
qualified and who have completed a required two
day training program will be licensed to conduct
the deregistration evaluations
HB275 & CCP 46.B
HB 275 was passed out of House and Senate and sent to
the Governor for signing on May 27, 2011
HB275 & CCP 46.B
Evaluator Requirements for CTST
• HB275 modifies 46B in several areas
– Clarifying qualification language
– Increasing continuing education hours
– Clarifying elements associated with diagnosis
following determination relevant to essential
element of incompetence to stand trial as
previously set forth 46.B
– Explicit prohibition of a determination of
incompetence solely on refusal to communicate
during the competency examination
HB275 & CCP 46.B
Psychologist Qualifications
• By “certification” or “training”
– Certification by ABPP in forensic psychology
or
– training consisting of “at least 24 hours of
specialized forensic training relating to
incompetency or insanity evaluations”
and
– “at least eight hours of continuing education
relating to forensic evaluations, completed in the
12 months preceding the appointment”
HB 275 & CCP 46.B
Evaluator Report Requirements
• Emphasis on linking diagnosis to symptoms
and functioning as supported by current
indications and the defendant's personal
history
• Whether identified mental condition has
lasted or is expected to last continuously for at
least one year
HB 275 & CCP 46.B
Evaluator Report Requirements
• Emphasis on linking diagnosis to symptoms
and functioning as supported by current
indications and the defendant's personal
history
• Degree of impairment and its specific impact
on defendant’s ability to engage with counsel
in a reasonable, rational manner
• Whether identified mental condition has
lasted or is expected to last continuously for at
least one year
HB 275 & CCP 46.B
Evaluator Report Requirements
• State conclusions reached based on each
element of methodology used, and
• “State the specific criteria supporting the
expert's diagnosis”
• Determination of incompetence to stand trial
may not be based on the defendant’s
unwillingness to communicate with the
examiner
HB 275 & CCP 46.B
Evaluator Report Requirements
• If defendant found to be incompetent, then
– the symptoms, exact nature, severity, and
expected duration of the deficits
– and the impact of the identified condition on the
factors listed in Article 46B.024 (legal
requirements)
– estimated length of time necessary to restore
defendant to competency and likelihood of that
occurring in the foreseeable future
In Conclusion: Don’t Forget
Ethical
Standards &
Guidelines
Statutory
Code
Administrative
Code: Board
Rules
American Academy of Psychiatry and Law. (2005). Ethics Guidelines for the Practice
of Forensic Psychiatry. http://www.aapl.org/ethics.htm
Committee on Ethical Guidelines for Forensic Psychologists Guidelines. (1991).
Specialty guidelines for forensic psychologists. https://www.ap-ls.org/
aboutpsychlaw/SpecialtyGuidelines.php
Committee on Ethical Guidelines for Forensic Psychologists Guidelines. (2011).
Fifth Pending Draft Revision of Specialty guidelines for forensic
psychologists. Downloaded from https://www.apls.org/aboutpsychlaw/
SpecialtyGuidelines.php
Gold, L. & Shuman, D. (2009). Evaluating mental health disability in the workplace:
Model, process, and analysis. New York: Springer.
Greenberg, S. & Shuman, D. (1997). Irreconcilable conflict between therapeutic and
forensic roles. Professional, Psychology, Research and Practice, 28:1,
57-59.
Greenberg, S. & Shuman, D. (2007). When worlds collide: Therapeutic and forensic
roles. Professional, Psychology, Research and Practice, 38:2, 129-132.
Helzel, T. (2007). Compatibility of therapeutic and forensic roles. Professional,
Psychology, Research and Practice, 38:2, 122-128.
Shuman, D., Greenberg, S., Heilbrun, K., & Foote, W. (1998). An immodest proposalshould treating mental health professionals be barred from testifying
about their patients. Behavioral Sciences and the Law, 16, 509-523.
Greenberg , L. & Gould, J. (2001). The treating expert: A hybrid role with firm
boundaries. Professional, Psychology, Research and Practice, 32:5.