Ethics in Forensic
Practice
Eschewing the
Ultracrepidarian Expert
Gerald P. Koocher, PhD, ABPP
Simmons College
www.ethicsresaerch.com
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!
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.
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.
Dealing with novel circumstanceswhen you recognize you don’t have a roadmap

Cases of first impression or novel
circumstances
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?

Examples of first impression
cases: 1979-2009
Juvenile organ donorship
 Requests for “sub-optimal” medical
treatment
 Surrogate mother changes her mind
 Lesbian “mothers” dispute custody
 Lesbian partners and reciprocal adoption.
 Regulation of reproductive technology


Identical twins separated in vitro
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

Current Professional
Liability Claim
Trends
APAIT Settled Claims Statistics
by Category for 2005/2006

Allegations made on settled claims:
9 suicides (wrongful death torts)
 5 non-sexual boundary violations or
multiple role complaints
 5 sexual abuse
 4 alleged credit/billing improprieties
 1 patient committed homicide (wrongful
death torts)

APAIT Claims Statistics by
Category for 2005/2006

407 Files created (221 remained opened, 186 closed)

251 Board Investigations
• 148 opened – 103 closed
• A total of $563,400 paid to defend, with average claim of
$2,244
• Largest claims paid
• PA: $43,369
• MA: $25,000
• NV: $23,455

156 Civil Cases (incidents, claims, law suits)
•
•
•
•
73 open – 83 closed
Damages paid = $0
Paid to defend $746,740
Open reserves $1,852,825
Severe Claims filed in 2008

453 complaints (59% board complaints).
1.
2.
3.
4.
5.
6.
Suicide: 17 (wrongful death torts)
Sexual abuse: 12
Employment practices: 5
Non sexual boundary violations/multiple
relationships: 4
Billing Impropriety: 2
Homicide by patient: 1 (wrongful death torts)
Common Trends:
Boundaries & Competence
Sex
 Suicide
 Child Custody



Release of records
Role confusion and
potential conflicts of
interest
Confidentiality
 Record Keeping

Risky Career
Periods
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.
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.

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.
Risky Career Periods
 Another
elevated risk period can
occur at the far end of the career
cycle.

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.
Some
aspects of
human
nature
remain
constant.
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.

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.”

http://www.desmoinesregister.com/app
s/pbcs.dll/article?AID=/20080720/NEW
S05/807200337/-1/BUSINESS04
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
suicide…

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."

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
said.
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.

http://seattletimes.nwsource.com/html/lo
calnews/2003808201_greenberg27m.ht
ml
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.
“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
behavior…”
Forensic Practice as a
Paradigm for Risky
Clients & Situations
High Risk Clients

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
Higher Risk Patients

Potentially suicidal patients

Conduct frequent risk assessment utilizing
current, evidence based methods
essential
Potentially violent patients
 Any forensic assessment
 Patients involved in unrelated lawsuits
 Patients with recovered (or seeking to
recover) memories of abuse

Forensic Traps for the Typical
(Non-Forensic) Clinician
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
Collaterals
 Clients for limited purpose

Competence in
Forensic Practice
Dealing with the
Legal System
What competencies should
one reasonably expect of
forensic practitioners?
Fundamental content domains
in forensic psychology
Culture
 Terminology
 Case law
 Evidence
based
practice in
forensics

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

The Culture Gap
Between Psychologists and Lawyers

Psychologists train as
behavioral scientists.

Lawyers train as
advocates.

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
facts.
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
differences.

Lawyers learn to “try”
or weigh facts.

Lawyers expect clear,
precise, unambiguous
decisions, They seek
to establish bright
lines and clear
dichotomies.
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
regard.
detest.
Little progress will occur in
our work with clients, if we
 Attorneys may
do not like/respect each
choose not to ask
other.
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
vigorously.
questions.
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
Dow
Pharmaceuticals,
Inc. 509 U.S. 579,
113 S. Ct. 2786
(1993).
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.
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.

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).
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.
The Standard Governing Expert
Testimony
Three key provisions:
First, scientific knowledge, the testimony
must be scientific in nature, and grounded in
knowledge.
 Second, the scientific knowledge must
assist the trier of fact in understanding the
evidence or determining a fact at issue in
the case.


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.
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 evidence.

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.
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.
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.“
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.
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
state.
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
find.
Fundamentals of
Professional Liability
and malpractice
Where does competence
enter the mix?
52
The 4 D’s of Legal Liability
 The
4 D’s: Dereliction of Duty
leading Directly to Damages
 When
does a professional duty
apply?
 What constitutes dereliction?
 How can one demonstrate direct
causation?
 How can we measure damages?
The Goal: Don’t do stupid stuff by acts
of omission or commission
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
Ethical
Fundamentals
of Multiple Role
Relationships
and Boundary Traps
Key Elements of a Potential
Multiple Role Relationship Violation
 Inadequate
consent
 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.
Forensic contexts create
mutually exclusive choices




The decision to offer therapeutic services and forensic
services requires mutually exclusive professional
choices.
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.
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
exists.
Low-Risk
Multiple Role
Relationships

Not all multiple
relationships are
risky.

Relationships not
reasonably
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
Code.
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
occur.
Draft
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
treatment?

Draft
Forensic Specialty Guidelines
 Providing
Forensic Therapeutic
Services
 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.
Draft
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.
General considerations when
contemplating a blending of roles:
 Role
conflicts between client and
therapist.
 Involvement
of third parties.
 Degree
of the compatibility of
expectations for the relationship.
 Divergent
 The
obligations of any added role.
existence of a power differential
between therapist and client.
General considerations when
contemplating a blending of roles:

Intensity of the personal relationship
already formed.

Expected duration of the professional
relationship.

Level of clarity of the termination.

Presence of any objectification of the client.

Impulsivity level of the therapist.
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?

To whom do I owe a duty of care and
in what hierarchical sequence?
The person in
the room?
The family,
guardian, or
attorney?
The agency or
institution?
Society at large?
All of the above?
Confidentiality
Forensic Perspectives on Privacy,
Confidentiality, Privilege,
& Mental Health Records
Privacy, Confidentiality &
Privilege Domain Breadth
•Privacy
•A
constitutional right
•Confidentiality
•A
professional standard
•Privilege
•A
narrow legal protection
Excellent confidentiality
source:
http://jaffee-redmond.org/
Privacy
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
Confidentiality and Privilege

Confidentiality: The duty imposed on
professionals to keep information
disclosed in professional relationship in
confidence.

Privilege: The patient’s right to keep
confidential communications from being
disclosed in a legal proceeding.
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
privacy.
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.
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.




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
Kaiser.
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…

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
personnel.

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
privilege.”

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
harmless.”
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.
Limits on Confidentiality per
2002 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
activities.
Limits on Confidentiality
per 2002 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.
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
reporting.
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
sought.

Intermingling of family or marital records may present
problems.
“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
More “Category 5 Divorce” Events

“Stealth” Custody or Change of Circumstance
Evaluations can occur so consider:

Elements for consent to evaluation of parties and
children.

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
Still More
“Category 5 Divorce” Events

Who has access to court mandated
reports?


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
Confidentiality: Hot Issues

Variations state
mandates

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
authority.
Mandated reporting variations
Children
 Elders
 Dependent
persons

Physically
Disabled
 Mentally
Disabled


Unsafe drivers
Still more exceptions to
confidentiality
Professional responsibility to protect
others
 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

Still more exceptions to
confidentiality

Health oversight or managed care


TPO: treatment and payment operations
under HIPAA
Bill collection

Client status disclosures
Complaints/lawsuits and threats by
patients
 Law enforcement personnel (very few
states)

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)
Still more exceptions to
confidentiality per HIPAA

Deceased Patient
Legal representative of estate unless
specifically prohibited by state law (Privacy
Rule)
 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)

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
consent?
Dealing with intimidation or other strategies used by some
attorneys to gain information
Subpoena vs. court order
Potentially harmful information in client record
Records? What records?
o
6.
o
RECORD KEEPING AND FEES
6.01 Documentation of Professional and
Scientific Work and Maintenance of
Records
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.)
“The Compleat Record Keeper”
with forensic annotations
from the Psychologists’ Desk Reference



Identifying
information
First contact
Legal notifications


Relevant history and
risk factors




Clarification of client
status, court orders,
billing/payment, etc.
Documents reviewed
Medical or health
status
Medication profile
Why is the client in
your office?

Referral questions


Current status
Itemized list of data
collected






Diagnostic impression
Treatment plan
Progress notes
Service documentation
Document follow-up



Interview, test, collateral
Contacts and releases of
reports
Obtain and document
consent for treatment and
release of information
Termination
Health Insurance
Portability and
Accountability Act (HIPAA)
Kennedy-Kassenbaum Act of 1996
AKA: 45 C.F.R.160
Do HIPAA rules govern forensic
evaluations?
Yes!
 Some such
 Forensic
evaluations may
evaluations ≠
health services. assign diagnoses.

No!

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.
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
standards.

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.
HIPAA
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…”
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
consent.

State law requirements to obtain informed
consent before releasing such information
remain in effect.

All other uses or disclosures require an
Authorization
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
categories:
• Protected Health Information (PHI) or the
“Clinical Record”
• “Psychotherapy Notes”
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:






a.
b.
c.
d.
e.
f.
diagnosis
functional status
treatment plan
symptoms
prognosis
progress to date
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.”
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].”
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.
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.
Assessment Issues
Draft 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.
Consider a three phase plan

Before

Plan the evaluation careful
• Referral questions, tool selection, consent

During

Collect and analyze the data appropriately
• Administration, recording, observation

After

Anticipate use of reports and requests for access
Assessment issues




What questions do I want to answer?
How can I use psychological data to address a legal
issue?
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
days
 Syndromal evidence?
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
The self-awareness problem

Eliminating actual and perceived bias
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
feedback.

Assessment Tools

Selection and adequacy of
instruments

Understanding validity and
reliability
•
•
•
•
Face validity (?)
Content validity
Predictive validity
Construct validity
• Problem of the invalid
construct (syndrome of the
week)

Controversial Tools

(e.g., the dolls)
Language and Culture

Appropriate Assessment in a Multi-Cultural
Society



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.
Data Collection and Validity Issues
Conducive climate and context
 Avoiding re-traumatization
 Detecting coaching

Some data
collection
involves
special
challenges.
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
others.

Syndrome versus Disease
and “syndromal evidence”

A syndrome = a cluster or pattern of symptoms that
appear together in a manner considered clinically
meaningful.

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).
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
Gardner, RA (2001). "Parental Alienation Syndrome (PAS): Sixteen Years
Later". Academy Forum 45 (1): 10-12.
http://www.fact.on.ca/Info/pas/gard01b.htm. Retrieved on 2009-03-31
http://www.fact.on.ca/Info/pas/gard01b.htm

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.
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
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.

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.
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

Custody Disputes
Where Those Without
Forensic Training Stumble
Most Often.
Child Custody Cases:
Key Advice




Don’t treat the system
casually!
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.
Eight Common criticisms of
psychologists in custody disputes
1.
Deficiencies and abuses in professional
practice.
2.
Inadequate familiarity with the legal
system and applicable legal standards.
3.
Inappropriate application of psychological
assessment techniques.
4.
Presentation of opinions based on partial
or irrelevant data.
Eight Common criticisms of
psychologists in custody disputes
5.
Overreaching by exceeding the limits of
psychological knowledge of expert
testimony.
6.
Offering opinions on matters of law.
7.
Loss of objectivity through inappropriate
engagement in the adversary process.
8.
Failure to recognize the boundaries and
parameters of confidentiality in the
custody context.
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
ordered.
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
custody).
Consent documentation



Obtain consent to disclose material learned during evaluation in litigation.
Obtain waiver of confidentiality from adult litigants or there legal
representatives.
Provide written documentation of consent.
Ultimate Issue
Testimony
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
uncertainty.

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
deception.
Selected Interesting
Cases
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).
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...
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.
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
1983.
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
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.
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.
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
emotions.
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.
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.
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
judgment.”
Sell won his right to refuse to take psychoactive
drugs, but his victory seemed a hollow one at
substantial cost.