Ethical Decision Making in
Clinical Neuropsychology
Shane S. Bush, Ph.D.
Long Island Neuropsychology, P.C.
Lake Ronkonkoma, NY
1
“Principles have no real force except when
one is well-fed.”
Mark Twain
(1835 - 1910)
“Grub first, then ethics.”
Bertolt Brecht
(1898 - 1956)
(German Playwright)
2
Disclosure
3
Learning Objectives
1.
Be able to describe ethical challenges
encountered in clinical neuropsychology.
2.
Be able to identify ethical issues in
clinical vignettes.
3.
Become familiar with an ethical decisionmaking model and be able to apply the
model in a manner consistent with
positive ethics.
4
Common Ethical Challenges in
Psychology
Pope and Vetter (1992) - random sample of
APA members regarding major ethical
dilemmas encountered in daily work:
1. confidentiality
2. blurred, dual, or conflictual relationships
3. payment issues
4. forensic issues
5. assessment issues
6. competence
5
Common Ethical Challenges in
Neuropsychology
Brittain, Frances, & Barth (1995) collected
ethically challenging vignettes from ABCN
diplomates. Most dilemmas involved:
► Boundaries
of competence
► Appropriate use of assessments
► Interpretation of assessment results
6
Common Ethical Challenges in
Neuropsychology continued
Primary ethical challenges identified by a panel of
neuropsychologists with considerable experience
addressing ethical issues.
► Professional
competence
► Increasing involvement of neuropsychologists in
forensic activities
► Apparent misconduct of colleagues
(Bush, Grote, Johnson-Greene, & Macartney-Filgate, in press, TCN)
7
Common Sources of Ethical Conflict
in Clinical Neuropsychology
(Bush, Grote, Johnson-Greene, & Macartney-Filgate, in
press, TCN)
Based on my professional experiences and
familiarity with the literature, I provided a list
of 12 common sources of ethical conflict in
clinical neuropsychology.
8
Common Ethical Challenges cont
1.
2.
3.
4.
5.
6.
Professional competence
Roles & relationships – dual/multiple
Test security / release of raw test data
3rd party observers
Confidentiality
Assessment
9
Common Ethical Challenges cont7.
8.
9.
10.
11.
12.
Conflicts between ethics & laws
False or deceptive statements
Objectivity
Cooperation with other professionals
Informed consent / 3rd party requests
for services
Record-keeping & fees
Consider practice context/jurisdiction
10
1. Professional Competence
► Transitioning
practice
from clinical to forensic
► Establishing
and maintaining competence
- current scientific and professional
literature, supervision/consultation
► Peer
review
► Recognize
boundaries of competence
11
2. Roles & Relationships – dual/
multiple
► Avoid
conflicts of interests, such as serving as the
treating doctor and forensic expert
Performing a forensic evaluation of a patient with
whom one has a current or preexisting therapeutic
relationship would constitute a dual role and is
considered unethical (Barsky & Gould, 2002; LeesHaley & Cohen, 1999; Melton et al., 1997).
► Clarify
expectations with the patient/retaining
party at the outset
12
3. Test Security/Release of Raw
Test Data
► Balancing
discovery requirements with
ethical and legal obligations to maintain test
security
► Steps
should be taken to maximize test
security while complying with discovery
requirements.
 See NAN position papers (nanonline.org)
13
4. 3rd Party Observers
► Threatens
validity of test data – affects
performance
► Threatens
test security
► WAIS-III
Manual: “As a rule, no one other
than you & the examinee should be in the
room during the testing” (p. 29).
► An
examinee’s right in some jurisdictions
14
5. Confidentiality
► Expectations
& limits must be clarified
with all parties at the outset.
15
6. Assessment
► Methods
must be sufficient to
substantiate conclusions/opinions
► Conclusions
must be based upon
established scientific evidence
► Significant
limitations of interpretations/
opinions must be described (in detail)
 Explain what is meant by “interpreted with
caution.”
16
7. Conflicts Between Ethics & Laws
► E.g.,
3rd party observers, raw test data
► Make
known commitment to ethics,
attempt to resolve/compromise, follow
the law
► Caution
is recommended in seeking legal
advice from attorneys who have a stake
in the case
17
8. False or Deceptive Statements
► Avoid
misleading conclusions and reporting
of credentials (e.g., “board eligible”)
► Having
an inaccurate belief is not
necessarily unethical
► Forensic
contexts allow for unsupportable
beliefs to be challenged and negated;
however, knowingly making statements that
are without support may warrant formal
review
18
9. Objectivity
► “To
suggest that remaining unbiased amidst
various powerful forces can be difficult is an
understatement.” (Sweet, Grote, & van Gorp, 2002)
► “Regardless
of amount of prior forensic
experience, debiasing strategies…can also
be useful.” (Sweet, Grote, & van Gorp, 2002)
► Base
rates
19
Objectivity continued
Proactive Self-Examination
► Passive reliance on the belief that one is
“ethical” and doing quality work is not
sufficient to avoid ethical misconduct.
Professionals must be assertive in seeking
knowledge, skills, and feedback related to
ethical forensic practice
► Seek
feedback from colleagues doing work
different from yours (e.g., plaintiff v.
defense)
20
10. Cooperation with Other
Professionals
► “Respect
the rights of others to hold values,
attitudes, and opinions that differ from their
own.” (APA, 1992, ES 1.09, Respecting Others)
► A psychologist acting as an expert is not
entitled to decide unilaterally whether a
particular licensed clinical psychologist is
competent to review test materials and
results (Sweet, 1990)
21
Cooperation with Other Professionals
continued
Addressing A Colleague’s Apparent Ethical
Misconduct
► Exercise
caution to ensure that perceptions of
incompetence or nonobjectivity are not overly
reflective of professional or ideological differences.
► Initiating
ethical complaints during a trial could
represent or appear to represent opportunism and
could produce unfair advantage
22
Cooperation with Other Professionals
continued
Addressing A Colleague’s Apparent Ethical
Misconduct continued
 “If ethical concerns that arise within a
forensic context remain salient after the
case has concluded, then it is appropriate
to consider whether any action is
necessary.” (Sweet, 2005)
23
11. Informed Consent / 3rd party
Requests for Services
►Clarify
at the outset of the service the
nature of the relationship, including:
 role
 identification of client
 anticipated uses of services provided
 limits to confidentiality
 payor
24
Informed Consent / 3rd party Requests
for Services continued
► Decision
to participate must be made in a
“knowing, intelligent, & voluntary way”
(Heilbrun, 2001)
 Partial consent (except when court
ordered)
 Assent / surrogate (when examinee
lacks capacity)
►Notification
of purpose
25
12. Record-Keeping & Fees
► Do
APA guidelines and legal requirements
regarding records, established for clinical
services, apply to forensic services?
► Reimbursement
is for time, not opinions
► Fees
should not be contingent upon the
outcome of the case
26
How do you know if you’re facing an
ethical problem?
► Obvious
problems (e.g., sex w/ clients)
► Less obvious problems (defining the
client)
► Unique variations
► Combinations
27
Resources
► Ethics
► ASPPB
codes
Code of Conduct
► General
bioethical principles
► Position
papers & specialty guidelines
► Articles,
chapters, books
28
Resources continued
► Courses,
► Ethics
workshops
committees
► Liability
insurance carrier
► Experienced
& knowledgeable colleagues
► Laws
29
Addressing Ethical Challenges or
Uncertainty
► Consulting
problem
colleagues & the “I think”
30
Ethical Decision-Making Models
vs.
“Bottom-Line Ethics”
31
Ethical Decision-Making Models
► Canadian
Psychological Association, 2000
► Haas & Malouf, 2002
► Hanson, Kerkhoff, & Bush, 2004
► Kitchener, 2000
► Knapp & VandeCreek, 2003
► Koocher & Keith-Spiegel, 1998
32
5 Common Steps
(Knapp & VandeCreek, 2003)
1.
2.
3.
4.
5.
Identification of the problem
Development of alternatives
Evaluation of alternatives
Implementation of the best option
Evaluation of the results
These models did not adequately consider
emotional and situational factors or the need
for an immediate response in some situations
33
8-Step Model
(Bush, Connell, & Denney, 2006)
1)
Identify the problem
2)
Consider the significance of the context
and setting
3)
Identify and utilize resources
4)
Consider personal beliefs and values
34
Bush et al. Model continued
5)
Develop possible solutions to the
problem
6)
Consider the potential consequences of
various solutions
7)
Choose and implement a course of
action
8)
Assess the outcome and implement
changes as needed
35
DOCUMENT
DOCUMENT
DOCUMENT
36
When To Utilize Resources & Apply
the Model
Preparation
Reaction
37
Remedial Ethics
In the tradition of remedial ethics,
“disciplinary codes represent only the
ethical ‘floor’ or minimum standards to
which psychologists should adhere”
(Knapp & VandeCreek, 2006; p. 9).
38
Positive Ethics
(Handelsman, Knapp, & Gottlieb, 2002)
►A
shift in emphasis from misconduct
and disciplinary action to the active
promotion of exemplary behavior
► Pursuit
of ethical ideals – aspirational
principles
39
Positive Ethics continued
(Handelsman, Knapp, & Gottlieb, 2002)
► Proactive,
not reactive
► Selecting the optimal ethical option
often requires more than simply
avoiding ethical misconduct (risk
management); it requires a
commitment to pursuing the highest
ethical principles.
40
Positive Ethics continued
► Why
not?
“It is easier to fight for one’s principles
than to live up to them.”
Alfred Adler
(1870-1937)
41
Case 1: Raw Test Data
► Request
for records from an attorney /
non-neuropsychologist
► What
to do?
42
Case 1 Analysis
1)
Identify the problem
 Test Security
- invalidate future test results
- redevelopment
 Nonmaleficence / General beneficence
 Laws
- client access to records
- discovery
- copyright / proprietary rights
43
2)
Consider the significance of the
context and setting
 Forensic
 Attorney or court is client
 Discovery
44
3)
►
Identify and utilize resources
APA Ethics Code
 Release of raw data (ES 9.04)
 Maintaining Test Security (ES 9.11)
45
RELEASE OF RAW DATA
(ES 9.04)
► Test
data: scores, responses, notes
► With
pt. release, psychologists provide
data to the pt. or others identified in the
release
► May refrain from releasing data to protect
from pt./others from substantial harm,
misuse, or misrepresentation of data or
the test
46
MAINTAINING TEST SECURITY
(ES 9.11)
► Test Materials = manuals, instruments,
protocols, & test questions or stimuli
► Does not = test data
► Psychologists make reasonable efforts to
maintain the integrity & security of test
materials & other assessment techniques
consistent w/ law & contractual
obligations, & in a manner that permits
adherence to this ethics code
47
Problems with ES 9.04 & 9.11
► The
distinction between test data
(examinee responses) & test materials
(stimuli) is artificial. E.g., with verbal
learning or visual reproduction measures,
the responses/data are the stimuli/
materials.
► Providing test responses w/o the context
of the test questions will have a high
probability of misinterpretation/misuse/
harm.
48
Clarification from APA
Ethics Office: once test materials
have responses written on them, they
“convert” to test data (Behnke, APA
Monitor, 2003, 34,7).
► APA
► By
writing responses on test materials,
the test materials are no longer test
materials and no longer fall under the
protection of ES 9.11.
49
► 2002
Code: it is important to safeguard
test materials (e.g., protocols) when they
are blank but not when they have
answers written on them.
► This position:
 facilitates release of records
 does not facilitate the safeguarding of
psychological tests
 is inconsistent with other ethics
resources
 is inconsistent with copyright laws
50
Standards for Educational &
Psychological Testing
► 11.7:
Test users have the responsibility
to protect the security of tests…
…in litigation, inspection of the
instruments should be restricted - to
the extent permitted by law - to those
who are legally or ethically obligated
to safeguard test security
► 11.8: Responsibility to respect test
copyrights
51
► 11.9:
Remind test takers & others who
have access to test materials of the legal
rights of test publishers
► 11.15:
Be alert to potential
misinterpretations of test scores &…take
steps to minimize or avoid foreseeable
misinterpretations & unintended negative
consequences
52
Specialty Guidelines for Forensic Psychologists
(1991)
VI. B. Forensic psychologists have an
obligation to document and be prepared to
make available, subject to court order or
the rules of evidence, all data that form the
basis for their evidence or services.
53
Specialty Guidelines for Forensic Psychology
Draft (2/13/05)
► 10.
Privacy, Confidentiality, & Privilege
 10.03 Release of Information:
During the initial consultation with each
participant…make known who is authorized
to release or access the information.
…the forensic psychologist complies with a
properly noticed & served subpoena or court
order, or other legally proper consent from
duly authorized persons, unless there is
compelling reason not to do so. (examples
provided)
54
Specialty Guidelines for Forensic Psychology
Draft (2/13/05)
► 10. Privacy, Confidentiality, & Privilege
 10.05 Access to Information:
Forensic psychologists provide their clients
access to, and a meaningful explanation of,
all information that is in the psychologist’s
records for the matter at hand, consistent
with existing federal & state statutes,
applicable codes of ethics & professional
standards, & institutional rules & regulations.
Unless the party is the client, the party is not
to be provided access to the psychologist’s
records w/o the consent of the client.
55
Specialty Guidelines for Forensic Psychology
Draft (2/13/05)
► 13.
Documentation
 13.01 Documentation, Compilation &
Provision of Data Reviewed
Make available all data reviewed during the
course of providing professional services
subject to & consistent with court order,
relevant rules of evidence, & professional
standards
56
THE COLLEGE OF
PSYCHOLOGISTS OF ONTARIO
Principle 7.5(2)
Standards of Professional Conduct
57
Usually psychologists are reluctant to
release raw data other than to another
member of the College due to a concern
for the potential misinterpretation or
misuse of such test scores. When such
concerns exist, it would be prudent to
send an accompanying letter outlining the
member’s concerns regarding improper
use of the information and the dangers of
misinterpretation by unqualified personnel
(emphasis added).
58
NAN Policy & Planning Committee
► NAN
fully endorses the need to maintain
test security
► Views the duty to so as a basic
professional & ethical obligation
► Strongly discourages release of materials
when requests do not contain appropriate
safeguards
► Urges taking reasonable steps to ensure
adequate safeguards when releasing test
materials
59
NAN 10-Step Guidelines
1.
2.
3.
4.
5.
6.
7.
8.
Written request
From competent pt.
To a qualified professional
Assurance that test security is
maintained
Is the request a subpoena?
Is the request a court order?
Does it include provisions for test
security?
Is release to an unqualified person
required?
60
If a court order, & test security is not
specified, obey but request that
safeguards be put in place
 no broad circulation
 no unauthorized copies
 minimize presentation in court
 protect/seal exhibits & court records
 destroy or return test materials
10. If court order, & test security is
adequate, obey in a timely fashion.
9.
61
D40/APPCN/AACN Position Paper
Alternatives to releasing test data that are
also test materials:
1) Release data summary sheet alone
2) Release data w/ protocol stimuli blacked
out
3) Release data to another NP
4) Release data set into a sealed record, or
request a protective order of the test
materials which would limit their release to
the case.
62
In most situations, conflicts can be reconciled
with such alternatives. In addition:
► Discuss conflicting obligations w/ the
persons who requested the data.
► Appeal to the court directly (if court is
involved) to negotiate a suitable
arrangement:
 Determine through in camera proceedings
whether the test data is relevant
 File a motion to quash subpoenas
 File protective orders
63
► Specify
through informed consent
procedures:
 Data recorded on test protocol sheets will not
be released
 Requests for information will be limited to
provision of a report & data summary sheet
64
Jurisdictional Laws
► Laws
“place restrictions on the
psychologist’s discretion, so psychologists
would need to carefully consider
withholding any test data information”
(Celia B. Fisher, Ph.D., chair of the Ethics
Code Task Force; APA Monitor, 11/02, p.
56).
65
FRE (1993) 705
“The expert may testify in terms of
opinions or inference & give reasons
therefore w/o first testifying to the
underlying facts or data, unless the court
requires otherwise. The expert may in
any event be required to disclose the
underlying facts or data on crossexamination.”
66
FRE 402
(Jan. 2, 1975, P.L. 93-595, § 1, 88 Stat. 1931.)
► All
relevant evidence is admissible
 Exceptions: e.g., “privileges”
67
HIPAA - Briefly
► Increased
pt. access to medical records.
► Information compiled in anticipation of use
in civil, criminal, & administrative
proceedings is not subject to the same
right of review and amendment as is
health care information in general.
► The most stringent legal requirement
applies.
68
Clarification from DHHS
► Richard
Campanelli, Director of the Office
for Civil Rights:
…it would not be a violation of the Privacy
rule for a covered entity to refrain from
providing access to an individual’s
protected health information, to the
extent that doing so would result in a
disclosure of trade secrets.
69
Federal Copyright Laws
► Harcourt: Terms & Conditions of Purchase
 Test materials are copyrighted trade
secrets
 Purchaser agrees to protect the trade
secrets by maintaining test security,
including only copying test forms for
the purpose of conveying the info to
another qualified professional.
 Purchaser agrees to seek a protective
court order if required to produce
copies in court or administrative
proceedings.
70
U.S. Supreme Court
► Detroit
Edison Co. v. National Labor
Relations Board (NLRB) 440 U.S. 301 (1979).
 Psychologists should not release raw data and
psychological test materials to nonpsychologists
 The legal presumption is that psychologists
should take reasonable steps to protect test
security
 Psychologists may assert the privilege not to
disclose raw data or psychological test materials
in federal court
71
New York State Mental Health Law
► It
is unprofessional conduct to fail to
make available to a pt./client copies of
documents in the possession or under the
control of the licensee that have been
prepared for & paid for by the pt/client.
► May
deny access if the info could
reasonably be expected to cause
substantial & identifiable harm.
72
►If
denying, must state in writing the
grounds for refusal & inform that the
pt. may appeal to a review
committee
► Does
not specifically address test data
73
Resolving Conflicts Between Ethics & Law
APA Ethics Code
► Intro
 If this Ethics Code establishes a higher standard
of conduct than is required by law,
psychologists must meet the higher ethical
standard
► ES
1.02
 If ethics conflict w/ law…psychologists make
known their commitment to the Ethics Code &
take steps to resolve the conflict. If the conflict
is unresolvable via such means, psychologists
may adhere to the requirements of the law
74
4)
Consider personal beliefs and
values
►
Conflicts between ethics & law:
In cases in which no solution
adequately satisfies both demands,
neuropsychologists “ultimately must let
their own personal conscience guide
them” (Slick & Iverson, 2003, p. 2032).
►
Pursuit of highest ethical ideals takes
more time, effort, & resources
75
5)
Develop possible solutions to the
problem
►
Release raw test data as requested
►
Take steps to maximize test security
(e.g., follow NAN’s guidelines)
76
6)
Consider the potential
consequences of various solutions
►
Releasing test data to
nonpsychologists threatens test
security & may have harmful
consequences
►
Taking steps to maximize test security
may be irritating to those involved &
will require additional time/effort
77
7)
Choose and implement a course of
action
►
Consistent with highest ethical ideals,
follow NAN’s 10-step guidelines
78
8)
Assess the outcome and
implement changes as needed
►
Raw test data is released in a manner
consistent with discovery
requirements, & test security is
maximized
All steps are documented
79
Case 1 Discussion
80
Case 2
Dr. A, a neuropsychologist in independent
practice, receives a referral to evaluate a 68 y.o.
woman who sustained a left MCA infarct 6 months
ago. The referral is from the pt.’s neurologist to
“rule out dementia & depression” so that
appropriate medications can be prescribed.
During the initial interview, Dr. A finds that the
patient’s receptive language is adequate for the
clinical interview, based on her ability to follow
multi-step instructions and respond appropriately
to yes/no questions.
81
However, Dr. A also found the pt to have
severe expressive language deficits and a
dense right hemiparesis. He wonders
whether empirical evidence exists to support
his use of traditional neuropsychological
tests with patients who have such impaired
expressive language skills & are unable to
use their dominant hand. He considers the
professional & ethical implications of
accepting this referral & wonders what he
should do.
82
Identify the Problem or Dilemma
Dr. A is asked to evaluate a pt. & address
referral questions for which little empirical
evidence exists to support the use of his usual
tests. In addition, although Dr. A frequently
performs evaluations for the purpose of diagnosing
dementias & mood disorders, he has not evaluated
patients w/ severe strokes for many years. Most of
the tests that Dr. A typically uses were not normed
with individuals who have severe expressive aphasia
or hemiparesis involving the dominant hand.
83
Because of the pt.’s aphasia & HP,
administration of the tests will need to be
modified. The extent to which the test
results obtained from this patient will
accurately represent her neurocognitive
functioning and psychological state, given
the necessary modifications to test
administrations & lack of appropriate norms,
is extremely limited. As a result,
recommendations to the neurologist may
result in inappropriate tx decisions.
84
In contrast to these drawbacks, Dr. A may
be better able than the neurologist to
assess this pt.’s neurocognitive functioning
& emotional state, even with the limitations
imposed on standardized testing, thereby
resulting in more accurate diagnoses &
better medication choices.
85
Consider the Context & Setting
Compared to some institutional practice
settings, Dr. A does not have ready access to
other healthcare professionals who may be
able to provide helpful consultation. Also,
compared to inpatient settings, the ability to
provide ongoing monitoring of the pt. to
further clarify diagnostic impressions & the
effects of medical trials is limited.
86
Ethical & Legal Resources
Dr. A identifies the following primary resources:
►
►
►
►
►
APA Ethics Code (esp. ES 9.02, Use of
Assessments)
Standards for Educational & Psychological Testing
(esp. 10.1)
Americans with Disabilities Act
Chapter on test accommodations in geriatric
neuropsychology by Caplan & Shechter, (2005)
Colleagues, D40 ethics subcommittee
87
The pt. has a moral, ethical, & legal right to receive
an appropriate evaluation (ADA, 1990; GP D, Justice),
yet determining the methods that constitute an
“appropriate” evaluation can be challenging.
“A major issue when testing individuals with
disabilities concerns the use of accommodations,
modifications, or adaptations. The purpose of
these accommodations or modifications is to
minimize the impact of test-taker attributes that
are not relevant to the construct that is the
primary focus of the assessment” (SEPT, 1999, p.
101).
Dr. A must consider the empirical support for any
adaptations he may make to test administration,
tempering his conclusions as needed.
88
Having given due attention to the needed test
accommodations and the potential limits to
interpretations, Dr. A must consider whether he is
sufficiently familiar with the relevant literature &
has the requisite experience to competently
perform the needed modifications & arrive at
appropriate conclusions (ES 2.01, Boundaries of
Competence; SEPT Standard 12.1).
“Knowing our limitations is sometimes as or more
important than knowing what our science can
offer” (van Gorp, 2005, p. 212).
89
Dr. A must also keep in mind that “In testing
individuals with disabilities for diagnostic and
intervention purposes, the test should not be used
as the sole indicator of the test taker’s functioning.
Instead, multiple sources of information should be
used” (SEPT 10.12).
If Dr. A determines that it is appropriate for him to
proceed with the evaluation, he must present the
foreseeable benefits & risks to the pt. & her legal
representative, if someone other than the pt. has
medical decision making authority (ES 3.10, Informed
Consent, & ES 9.03, Informed Consent in Assessments;
Johnson-Green, D. & the NAN Policy & Planning
Committee, 2005; SEPT Standard 8.4).
90
Personal Beliefs & Values
Dr. A’s beliefs & values are consistent with those
represented in the resources reviewed. He
embraces the right of the pt. to receive an
appropriate neuropsychological evaluation, as well
as her right to decide whether to pursue an
evaluation given the inherent limitations. He
questions whether he can competently perform an
evaluation with the required accommodations &
derive accurate conclusions based on the
information obtained.
91
Possible Solutions
1.
2.
3.
4.
Conduct the evaluation to the best of his ability,
explaining to all parties the limitations associated
with the conclusions.
Conduct the evaluation after arranging for
consultation with a colleague who commonly
evaluates pts. who have sustained severe CVAs.
Do not perform the evaluation. Inform the
neurologist & the pt. that NP evaluation is of
little value with such pts.
Refer the pt to a neuropsychologist who has
more experience w/ this population.
92
Potential Consequences
1.
2.
Performing the evaluation may provide helpful
info regarding the pt.’s NP functioning & dx;
however, the potential for misinterpretation of
the findings, given Dr. A’s limited experience with
this population, may be harmful to the pt.
Conducting the evaluation w/ appropriate
consultation may allow for appropriate
conclusions to be drawn about the constructs of
interest & provide an opportunity for Dr. A to
improve his ability to work with stroke pts.
However, the likelihood of generating accurate
inferences exists with more experienced
practitioners.
93
3.
Deciding to not perform the evaluation &
informing the pt. & the neurologist that NP
evaluations are not beneficial in such cases may
deprive the pt., & future pts, of potentially
valuable services.
4.
Referring the pt. to a colleague w/ more recent
experience with stroke pts. & more familiarity w/
the relevant literature would allow the pt. to get
services that she needs & provide the
neurologist w/ the info he needs to make an
appropriate decision regarding medications. Dr. A
determines that a qualified neuropsychologist is
available through a local hospital-based
outpatient rehabilitation program.
94
Choose & Implement a Course of Action
Dr. A chooses the 4th option & refers the pt. to his
colleague in the outpt. rehab program. Had there
not been a qualified colleague nearby, he would
have chosen the 2nd option. He explains to the pt
and the neurologist that it is in the pt.’s interest to
have the evaluation performed by a NP who
specializes in working with individuals who have
sustained severe strokes. Dr. A contacts the other
NP & facilitates the referral.
95
Assess the Outcome & Implement
Changes as Needed
The pt. received the most appropriate
evaluation possible, although the confidence
placed in some of the conclusions remained
limited by the needed test accommodations.
96
Case 2 Discussion
97
Case 3
Dr. A, psychologist on an adult inpatient BI
rehabilitation unit, is told to provide coverage for
Dr. B., the neuropsychologist on the pediatric unit
who is out sick. Dr. A agrees and goes to the unit
with his usual tests because he does not have
access to Dr. B’s office where the pediatric tests
are stored. However, because his tests were not
normed with children, he is determined to score
them qualitatively and interpret them with caution.
98
The 1st pt. to be evaluated is a 12 y.o. bilingual
(Spanish-English) boy w/ a TBI who had
progressed from coma to RLAS VII (AutomaticAppropriate) in the past 4 wks. Dr. A performs the
evaluation, including testing, with the pt’s mother
present in the pt.’s room to help encourage &
reassure the pt & interpret instructions &
responses if needed.
During administration of the TMT, the pt. states,
“This one is fun. I like doing it in OT.” The pt.’s
roommate adds that he likes it too. The
roommate then agrees to remain quiet for the rest
of the evaluation, but his physical therapist soon
arrives & takes him for therapy anyway. Dr. A
completes the evaluation & writes his brief report
in the pt.’s chart.
99
The Problems/Dilemmas
1.
Dr. A allowed himself to be put in a
situation that he was not qualified to
handle, to the detriment of the pt. He is a
psychologist but not a neuropsychologist.
He should not perform NP services without
the necessary education, training, &
experience to competently do so. Also, he
usually works w/ adults & is not qualified
to work with pediatric populations.
100
2.
Dr. A performed an inappropriate
evaluation. He used adult tests w/ a child
& did not appear to consider the potential
impact of the patient’s ethnicity, cultural
background, or English language fluency
on the tests selected or the validity of
results obtained. There was a complete
lack of scientific evidence to support any
conclusions Dr. A may have drawn.
101
3.
Dr. A failed to adequately manage aspects of
practice that he would have been expected to
manage in any context.
 He did not take steps to maximize privacy &
confidentiality, & he performed the evaluation
with others in the room.
 He used the pt.’s mother as an interpreter,
although her ability to provide accurate
interpretation & to do so objectively with her
child was unknown but unlikely.
 Any consent that he obtained from the pt. & his
mother could not have been based on an
informed decision because Dr. A was apparently
unaware of at least some of the risks himself &
dismissed the rest as not sufficiently important
to prohibit the evaluation.
102
Dr. A learned that other healthcare professionals
were misusing NP instruments, possibly with the
knowledge of Dr. B. The OT apparently used the
TMT as a therapeutic exercise on a regular basis.
Dr. B, who regularly worked on the unit must
have been aware of the OT’s practice & either
supported, or did not adequately oppose, the
practice.
5. Problematic institutional or departmental
practices emerged, such as not providing
appropriate coverage during Dr. B’s vacation &
pressuring Dr. A into providing services that he
was not qualified to perform.
4.
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APA Ethical Standards
► 2.01
Boundaries of Competence
 ? 2.02, Providing Services in Emergencies
► 9.01
► 9.02
► 9.06
► 2.04
► 4.01
► 4.04
Bases for Assessments
Use of Assessments
Interpreting Assessment Results
Bases for Scientific & Professional
Judgments
Maintaining Confidentiality
Minimizing Intrusions on Privacy
104
► 9.11
► 3.10
► 9.03
► 4.02
► 9.07
► 1.04
► 1.03
Maintaining Test Security
Informed Consent
Informed Consent in Assessments
Discussing the Limits of Confidentiality
Assessment by Unqualified Persons
Informal Resolution of Ethical
Violations
Conflicts Between Ethics &
Organizational Demands
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The Competence Continuum
Case 4.1: A board certified neuropsychologist with
years of experience evaluating and treating adults
with traumatic brain injuries in rehabilitation and
forensic settings finds the potential marketing
value of work with regional teen sports programs
appealing. He arranges with local junior high
school and high school football programs to
provide comprehensive neuropsychological
evaluations of concussed athletes for the purpose
of making return-to-play decisions.
106
► ES
2.01 (Boundaries of Competence): by
transitioning into a related but new area of
practice, he is practicing outside of his areas
of competence.
► In
addition to lacking familiarity with the
state-of-the-art methods and procedures
employed in sports neuropsychology, this
neuropsychologist lacks experience with
adolescents.
107
Case 4.2: A neuropsychologist graduated
from clinical psychology doctoral program
with a specialization in neuropsychology.
After completing a 2-year postdoc in NP, she
accepted a staff position in a prestigious
teaching hospital. She gradually
transitioned to part-time private practice
over the following 5 years. She became
very busy in her private practice & personal
life & did not have time to attend
conferences or maintain an affiliation with
the teaching hospital.
108
Now, 10 years after completing her postdoc,
the families of some of her patients are
questioning her conclusions based on
information that they “found on the
Internet,” & her forensic work is being
strongly criticized by opposing experts, with
frequent comments that her results cannot
be considered valid.
► ES 2.03 Maintaining Competence
109
Bases for Scientific and
Professional Judgments
► Case
4.3: A very experienced & highly
credentialed neuropsychologist evaluates
and treats litigants with MTBIs sustained in
MVAs or work-related accidents. He
commonly concludes that severe
neurocognitive deficits & total & permanent
disability more than 6 months post injury
are causally related to neurological trauma
sustained in the accidents.
110
He frequently states that he can determine deficits
& disability better than independent examiners
because he has interacted with the patients for a
much greater period of time.
► The
neuropsychologist has a mistaken belief that
his impressions & observations over time carry
more weight than objective, actuarially based
neuropsychological evidence interpreted based
upon generally established scientific & professional
knowledge of the discipline (see, e.g., Larrabee,
2005).
111
► Failure
to meet the requirements of this
ethical standard may reflect a failure to
remain abreast of scientific advances.
► For competent clinicians who remain
abreast of scientific & professional advances
& still fail to meet the requirements of this
ethical standard, especially in forensic
contexts, the possibility of intentional bias
must be considered.
► In either case, consumers of NP services &
the reputation of the profession suffer.
112
Cooperation with Other
Professionals (ES 3.09)
► Case
5.3: A new adult patient is seen for an
initial clinical interview. She reports that she
recently underwent a neuropsychological
evaluation and began treatment with a clinician
across town but did not want to continue with him
because she did not like his abrasive interpersonal
style. The second neuropsychologist was very
familiar with the prior neuropsychologist through
opposing forensic activities, and longstanding
animosity existed between them.
113
The patient stated that she would have the
prior neuropsychologist send her test report
and other records to the second
neuropsychologist. After multiple verbal
and written requests for the records from
both the patient and the second
neuropsychologist over the course of six
weeks, the second neuropsychologist sent a
certified letter to the first neuropsychologist
stating that if the records were not received
within two weeks, a complaint would be
filed with the state board for psychology.
114
Advertising & Other Public Statements
► Case
5.1: A neuropsychologist in
independent practice hires an ITT
consultant to develop a website for his
practice. His website describes him as a
specialist in numerous psychological
specialties and aspects of practice and lists
his credentials, including his doctorate,
licensure, memberships in professional
organizations, and board eligibility.
115
In addition, his website states that he has lectured
internationally (he does not reveal that he based
that statement on his presentation of one poster
at an INS conference – in the U.S.) and is a faculty
member of a local prestigious medical school
(based on having once supervised a
neuropsychology intern at the medical school).
His website further indicates that he has testified
more than 300 times, and it provides a testimonial
from an attorney stating the neuropsychologist is
well-respected as an expert witness.
116
► ES
5.01 Avoidance of False or Deceptive
Statements
► This
neuropsychologist exaggerated at least
some of his accomplishments & credentials.
Using designations or terms that are
understood by members of the profession
but can be misleading to the public should
be avoided. Only obtained credentials
should be used; terms such as “ABD”,
“doctoral candidate,” & “board eligible” are
not credentials.
117
► Neuropsychologists
who retain others for
marketing & publicity purposes are
responsible for the statements made &
advertisements generated by such parties
(Ethical Standard 5.02, Statements by
Others).
118
Record Keeping
► Case
8.1: A NP performs a substantial amount of
medicolegal work; that is, he provides clinical
evals & ongoing tx with pts. who are involved in
litigation following MVAs. His initial consultation
notes, which are often addressed to the no-fault
claims representatives, are typed on letterhead, as
are his NP reports; however, the notes of his tx
sessions are handwritten, do not include any
identifying information for him or the pts., & are
largely illegible.
119
► Ethical
Standard 6.01 Documentation of
Professional and Scientific Work and Maintenance
of Records
► The NP in this case generates appropriate reports
for the initial consultation & NP eval; however, his
tx notes lack essential identifying information &
the clarity needed for readers to determine the
nature & appropriateness of the tx provided & the
status of the patient. Such inappropriate
documentation impedes the provision of clinical &
forensic services by others.
► It is also peculiar that some reports are written to
the no-fault claims representative rather than the
referring doctor, a practice that raises questions
about the clinical nature of the case.
120
Research
Case 9.2: Dr. A is interested in advancing the
ability of clinical neuropsychologists to determine
adequate examinee effort from invalid effort. She
develops a new SVT that appears to assess
working memory but really assesses effort. She
informs the staff NP who works for her to
administer the test as part of the evaluations of all
TBI pts. admitted to the unit in the next 2 weeks.
She states that she has been doing so for the past
2 weeks & has obtained some very promising
data.
121
► Dr.
A’s standardization procedures are highly
suspect (ES 9.05, Test Construction).
► She
did not obtain approval from her
facility’s institutional review board (ES 8.01,
Institutional Approval).
122
► Including
simple mental tasks that appeared to
assess working memory in a more comprehensive
NP evaluation likely posed very little risk of harm
to the patients who were being used as research
participants. Nevertheless, she did not discuss the
experimental nature of test with patients, or their
proxies, and obtain their approval (ES 8.02,
Informed Consent to Research).
► Dr. A may have believed that she was justified in
foregoing the informed consent process (ES 8.05,
Dispensing With Informed Consent for Research).
123
► Symptom
validity research often requires
deception. Participants must believe that
symptom validity tests are assessing
memory or another neurocognitive construct
other than effort. Thus, Dr. A may have
been justified in not informing pts. of the
nature of the study in advance. However,
she should have debriefed the pts. after
obtaining the data (ES 8.08, Debriefing).
124
► Dr.
A attempted to use her position of
influence to coerce a junior colleague to
engage in similar ethical misconduct (ES
3.08, Exploitative Relationships).
► Whether Dr. A’s dispensing with informed
consent and her use of deception were
appropriate may be matters of debate;
however, such debate must occur with
colleagues and the institutional review
board prior to performing the research.
125
Therapy
► Case
11.1: A neuropsychologist who
recently transitioned from performing
evaluations on an epilepsy unit to consulting
in a skilled nursing facility (SNF) performs a
brief neuropsychological evaluation of a 28year-old woman who is 2 years post severe
TBI. Based on findings of severe
impairment with attention, memory, and
processing speed, the neuropsychologist
begins cognitive rehabilitation.
126
Three times per week, the neuropsychologist
brings a laptop computer into the patient’s
room, sets up a series of computer-based
mental exercises, helps the patient begin the
exercises, and then leaves the room to see
other patients.
127
► ES
2.01, Boundaries of Competence
► Evidence-based
tx - attempt to match
interventions with patient & injury
characteristics. In this case, the
neuropsychologist should have known that
this patient would be unlikely to benefit
from the intended intervention.
128
Unrealistic expectations →undue
disappointment for the pt. & family (ES
10.01, Informed Consent to Therapy; ES
3.04, Avoiding Harm).
► The
neuropsychologist may be committing
fraud by billing for individual tx without
maintaining 1:1 interaction.
129
Conclusions
► Ethical
► Adopt
challenges are many and varied.
an ethical decision-making model.
► Use
multiple ethical and legal resources,
including ethics committees and
colleagues.
► Take
a positive, proactive approach.
130
Conclusions continued
► View
ethical guidelines as a resource for
guiding optimal professional behavior, not
just as minimum requirements for
conduct.
131
“To see what is right, and not to do it, is
want of courage or of principle.”
Confucius
(551 BC - 479 BC)
132
Contact Info
►Shane
S. Bush, Ph.D.
(631) 334-7884
www.LI-Neuropsychology.com
neuropsych@shanebush.com
133