Ethics in Forensic
Practice
Eschewing the
Ultracrepidarian Expert
Gerald P. Koocher, PhD, ABPP
DePaul University
www.ethicsresearch.com
Topical seminar plan
1.
Applying the Ethical Principles of
Psychologists and Code of Conduct in the
Context of the Specialty Guidelines for
Forensic Psychology.
2.
Most frequently encountered bases for
ethical and liability complaints against
psychologists, along with strategies for
avoiding risky situations and clients.
Topical seminar plan
3.
Understanding key ethical challenges in forensic
psychology that arise from differences in
professional training and orientation for
psychologists and attorneys.
4.
Participants will understand the role of evidentiary
standards as a function of psychological ethics
and recognize ways to conform their work to align
with those standards.
5.
Assuring compliance with forensic notification
standards, fee practices, and role conflicts
participants.
APA Council of Representatives
approved the new forensic
guidelines in August, 2011

http://www.apa.org/ethics/code/index.aspx

http://www.apls.org/aboutpsychlaw/SpecialtyGuidelines.
php
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 (such as
lawyers)…focus on

Remaining impartial
Avoiding conflicts of interest

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.
Forensic Guidelines Heading
COMPETENCE
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

Key Competence Issues in
Forensic Practice
Gaining and maintaining competence
 Understanding the legal system
 Having a firm scientific foundation
 Having the necessary personal
attributes
 Recognizing and taking account of
interpersonal differences

Ultracrepidarian “Experts”
Sadly, not an oxymoron…
 Definition:
giving opinions on
something beyond one’s
knowledge.
 Benefits: ultracrepidarians don’t
worry about this because they
remain blind to their own
limitations!
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.
Fundamental content domains
in forensic psychology
Culture
 Terminology
 Case law
 Evidence
based
practice in
forensics

Current Professional
Liability Claim
Trends
Severe Claims

Categories:
1.
2.
3.
4.
Boundary or Multiple Role
Violations
Suicide
Homicide by patient
Billing/Medicare
investigations
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.
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.
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.
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?

Forensic Guidelines Heading
CONSENT, NOTIFICATION,
AND ASSENT
Timing of notice and
documentation are everything

People have the right to know what
you’re doing and why.

Understand what you’re asking:
consent, permission, assent.

Keep careful documentation.
What are you really asking for when
you say, “Is that okay with you?”

Consent


Competent, Knowing, Voluntary
Assent
Veto Power
 Therapeutic versus non-therapeutic
context


Permission
Proxy Consent
 Substituted Judgment

26
Special issues…
Do you need consent when evaluation
or treatment are mandated?
 What happens when the person lacks
capacity?
 What happens when the person lacks
representation?

Forensic Guidelines Heading
FEES
When determining fees

Forensic practitioners may consider salient factors such
as:










their experience providing the service
the time and labor required
the novelty and difficulty of the questions involved,
the skill required to perform the service
the fee customarily charged for similar forensic services
the likelihood that the acceptance of the particular employment will
preclude other employment
the time limitations imposed by the client or circumstances,
the nature and length of the professional relationship with the client
the client’s ability to pay for the service, and
any legal requirements.
5.02 Fee Arrangements

Clarify to the client the likely cost of services whenever feasible,
and make appropriate provisions in those cases in which the
costs of services is greater than anticipated or the client’s ability
to pay for services changes.

Forensic practitioners seek to avoid undue influence that might
result from financial compensation or other gains. Because of
the threat to impartiality presented by the acceptance of
contingent fees and associated legal prohibitions, forensic
practitioners strive to avoid providing professional services on
the basis of contingent fees.

Letters of protection, financial guarantees, and other security for
payment of fees in the future are not considered contingent fees
unless payment is dependent on the outcome of the matter.
Letters of Protection



Attorneys may request that mental health
practitioners accept a “letter of protection,” which
delays payment for professional services until the
legal case has been completed.
Beware of the potential for violation of ethics, such
as conflict of interest and loss of objectivity.
See: Woody, R. H. (2011). Letters of Protection:
Ethical and Legal Financial Considerations for
Forensic Psychologists. Journal of Forensic
psychology Practice, 11, 1-7.
Participant question….

Bob Woody in his book "Legally Safe Mental Health Practice" (1997;
page 40) discussed fact vs. expert testimony. He recommended that
when a fact witness subpoena and fee are received, that the
psychologist send a letter indicating that they will appear as a fact
witness, but that "...there will be no expert opinions rendered unless
there is a clear-cut written agreement that establishes the payment of a
professional fee." He also recommended that if a the psychologist stand
firm and refuse to answer any opinion question, unless payment of a
professional fee is received.

Does this advice still hold true? I practice primarily forensic
neuropsychology, and agreed to offer an expert opinion in a clinical
neuropsychology case (e.g. patient diagnosed in my report with a major
neurocognitive disorder (due to brain trauma, or other etiology as noted
in my clinical report) during deposition when a payment was made.
What are the hazards of doing so? Does Dr. Woody's advice still hold
true today? Is my diagnosis in a clinical case an expert opinion?
Forensic Guidelines Heading
CONFLICTS IN PRACTICE
Multiple roles
aren’t always sweet
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?

Forensic Specialty Guidelines
 Providing
Forensic Therapeutic
Services

Although some therapeutic services
can be considered forensic in nature,
the fact 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 obligations of any added role.

The 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?
Forensic Guidelines Heading
PRIVACY CONFIDENTIALITY
AND PRIVILEGE
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.
Current takes on confidentiality
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.
Custody Disputes
Assessment Activities Where
Those Without Forensic
Training Stumble Most Often.
“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
“Can you believe it! That
idiot took the kids to see
topless dancers at a bar!”
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
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.
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
Firearm access
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)

Forensic Guidelines Heading
METHODS AND PROCEDURES
General Guidance

Use appropriate methods

Use multiple data sources

Describe limitations, particularly when
offering comments on persons not
examined
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?
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
Forensic Guidelines Heading
ASSESSMENTS
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
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.
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

Texas Psychologist Punished in
Death Penalty Cases
Texas Tribune by Brandi Grissom, 4/15/

Psychologist George Denkowski who examined 14
inmates now on Texas’ death row — and two others
who were subsequently executed — and found them
intellectually competent to face the death penalty.

As part of settling with the Texas licensing board, he
agreed never to perform such evaluations again.

Attorneys for the 14 inmates hope the agreement will
help their clients, who argue are mentally handicapped,
to escape lethal injection.
No wrongdoing admitted…

Denkowksi whose testing methods
have been criticized as unscientific,
agreed not to conduct intellectual
disability evaluations in future criminal
cases and to pay a fine of $5,500. In
return, the board dismissed the
complaints against him.
Testing innovation?

Denkowski had published a 2008 paper in the
American Journal of Forensic Psychology
describing his unique scoring technique for
defendants, asserting that traditional tests did
not compensate for social and cultural factors.

For example, he wrote, those who come from
impoverished backgrounds may not have learned
basic skills like using a thermometer or maintaining
hygiene simply because those skills were not valued
in their community. But that did not necessarily
indicate a lack of intellectual function, he said.
Are state specific rules
necessary?


Other psychologists have rejected
Denkowski’s methods, arguing that they have
no scientific basis.
Denkowski’s attorney vigorously denies that
he violated any psychology board rules. Part
of the problem, she said, is that the board has
not promulgated specific rules for conducting
forensic evaluations involving mentally
handicapped individuals.
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

TREATMENT RECOMMENDATION
OR FORENSIC EVALUATION?
Treatment Recommendation
or Forensic Evaluation?

Neuropsychological evaluation
recommended by school:
Private neuropsychologist agrees
 Child does not cooperate
 Mother asks father to help
 Child complies
 18 recommendations follow
 One catches fire

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 08-11491-RGS
JOSEPH COGGESHALL and
L. LYNN LESUEUR,
v.
MASSACHUSETTS BOARD OF
REGISTRATION OF PSYCHOLOGISTS, et al.,
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
Plaintiffs L. Lynn LeSueur, a psychologist licensed to
practice by the Commonwealth of Massachusetts, and
Joseph Coggeshall, the father of one of LeSueur’s
patients, brought this lawsuit challenging the decision of
the Massachusetts Board of Registration of Psychologists
(Board) to place LeSueur on probation for two years.
WHO IS MY CLIENT AND WHAT’S A
CLIENTS FOR LIMITED PURPOSE?
Rotell v. Kuehnle
ESTATE OF MATHEW ROTELL, by and through the
personal representative, STEPHEN L. ROTELL,
STEPHEN L. ROTELL, individually, and ADAM
ROTELL, a minor, by and through his natural
guardian, STEPHEN L. ROTELL, Appellants,
v.
KATHRYN KUEHNLE, KRISTINA GAIME,
LIFEPATH, INC. d/b/a/ LIFEPATH HOSPICE, a
Florida corporation, and DEPARTMENT OF
CHILDREN AND FAMILY SERVICES, Appellees.
Case No. 2D09-501.
District Court of Appeal of Florida, Second
District.
Quote from Kuehnle’s
Attorney
•
“In this case, . . . it would be a quantum
leap to say that a psychotherapist or a
psychologist, in Dr. Kuehnle's position,
can be held responsible to try to predict
and warn of the behavior of someone
they are not even providing treatment to.
That would be a ridiculous leap under
the case law and the state of the law in
Florida to hold Dr. Kuehnle to that
standard, and frankly, to do so would be
creating law that does not exist.
Summary Judgment granted at
Circuit Court
and reversed by Court of Appeals
•
•
…an issue of fact with respect to whether Dr. Kuehnle
knew or should have known that the children were subject
to ongoing abuse by their mother such that the professional
standard of care required Dr. Kuehnle to warn Stephen
Rotell or appropriate authorities of such abuse. Thus the
circuit court erred in granting summary judgment in favor of
Dr. Kuehnle at this stage of the proceedings.
Based upon the foregoing discussion, we reverse the
summary judgment in favor of Dr. Kuehnle and remand for
further proceedings. In so doing, we express no opinion
with respect to whether Dr. Kuehnle breached the duty of
care or whether any such breach proximately caused the
Rotells' injuries.
The Internal Case Review
Medical patient applies for disability.
 Psychologist working for insurance
company reviews claim – offers no
opinion on medical diagnosis, but
recommends disability payments for
depression.
 Insurance company pays disability for
depression.
 Angry client complains.

•
The claimant asserts - psychologist
should have known about my
medical diagnosis and acted as a
tool of the employing insurance
company.
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
through 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…”