Guidelines for Child Custody Evaluations in Divorce Proceedings
Testing and Assessment from APA
Specialty Guidelines for Forensic Psychologists
From IPT, a selection of well-written and helpful articles
- Psychologists Who Make Unqualified Public Statements About Litigants Whom they Have Not Examined by Jack S. Annon
- Guidelines for Psychologists Who Receive a Subpoena for their Records by Jack S. Annon
- Misuse of Psychological Tests in Forensic Settings: Some Horrible Examples by Ralph Underwager and Hollida Wakefield
- Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline
- FAQ/Finding Information About Psychological Tests from APA
- Or read other articles from the IPT Library
Changes in Standard 8
This section contains many significant changes. It allows that psychologists may have to make evaluative statements about people they have not been able to thoroughly evaluate. It also allows that informed consent can be waived, and requires that interpreters be seen as extensions of the psychologist’s staff. Most significant is the change that psychologists may now release test data to anyone authorized by the client. This can include attorneys now. Test materials, however, are still withheld. The possibility for release of test data, but not test materials is new, in an effort to bring psychologist’s ethical codes in line with HIPAA and federal law.
Finally, thoughtfulness about cultural, language, and other kinds of issues that could effect the results of testing is more explicitly stated as a requirement.
Purpose of Standard 9
Psychological assessment is the one thing that our field, and our field alone, can do. Thus, setting some standards for quality in our work, making sure those who employ us understand fully what they can expect, and making sure that what we conclude from testing is scientifically sound are basic requirements for scientist practitioners.
Other Testing Issues
Koocher and Kieth-Spiegel highlight several relevant court cases:
- Griggs v. Duke Power Company (1971)
In this case, the courts ruled that using tests that are biased against minority groups, whether discrimination is intentional or not, constitutes discrimination. Read about APA’s role in a similar case Detroit Edison Co. v. National Labor Relations Board
- Larry P. v. Riles (1979)
This case related to the inappropriate use of IQ tests in diagnosing MR
- Pase v. Hannon (1980)
This case indicated that the use of IQ tests was acceptable in Illinois. It also entailed putting the items and answers on the court’s record. This would be another reason not to release test manuals or questions to a court under any reason if at all possible
Taken together, these three cases indicate several caveats:
- be aware of the appropriate uses of the test, and what they are not appropriate for; the authors argue that test bias is really an issue of validity of the test, and thus a test may not be biased in one setting but may be in another
- do not allow the test to make a decision for you. You could argue that the tests were not biased, but the psychologists using them were; the test does not make decisions about placement and policy, but people do. I once saw the manual for the High School Personality Inventory. The manual had no norms for the ethnic break up of the sample, or even when the sample was collected. I had to contact the publisher and wait a few weeks for someone to get back to me to tell me that the data was 30 years old, and they didn’t bother to collect data on the ethnic breakup of the sample. The test may be biased when used with inner city African American teens, but you are the one who chose to use it.
- know the data about flaws or shortcomings in the test
Out of Date Tests
This one can be a catch 22 as well. When the MMPI2 came out, not everyone was rushing to use it. There were a number of differences that made some argue that it was more than just a revision of a previously established test, but was a whole new test needing new data to back it up. Remember from your personality class that the way TScores were computed, the number of old items dropped and new items added, the additions of two new validity scales, and the changes in the norming sample made for many differences in the test. They waited to see new data published that demonstrated its reliability and validity, as well as the reliability and validity of the two and three point code-types before deciding to use it.
Others waited to see how it would compare to the MMPI in use with African Americans. Some studies had shown that African Americans from the “normal” population showed as much as a 10 point elevation in their TScores. Some clinicians became used to “adjusting” their interpretations based on this. Whether or not they would need to adjust their interpretations in this way for the MMPI2 would require a study of the test with African American populations. See what I mean? New does not always mean better, and sometimes improved does not mean familiar either.
Access to obsolete test data is also included in the text. A disclaimer noting how long test data are valid is likely a good idea. I offer this in my IQ and personality section at times, but take it on a case by case basis. Further, information on how long records should be kept before being destroyed is useful, but hard to enforce.
This means you can’t put tests on the web for people to take and email their answers to you. You can’t send the MMPI2 home with a client for them to complete at their leisure either. You can’t agree to be hired by an attorney to “coach” his clients to help them perform better on psychological evaluations by telling them the questions on the test they’ll take. You can’t use Card II of the Rorschach in your advertisement for your psychological testing practice (“Do you see two lambs kissing? If not, call me immediately for a complete psychological assessment at (312) 555-1212”)
This has also changed with the new ethics code. Clients now can gain access to test data which I think means their answers to WAIS prompts, their scores which I think means all of them, and any observations you wrote of them. They are not entitled test materials which I think means the actual questions or stimuli, correct answers, and manuals.
Accepting Forensic Case Referrals: Ethical and Professional Considerations
Hess, PPRP April 1998 Vol. 29, No. 2, 109-114
Psychologists are involved in explaining why crime happens, whether people are competent to stand trial (and if they require medication to be so Sell vs US, a North Dakota case) or engage in other activities (like making their will), whether they have been neurologically or emotionally injured in some way, in dissolution of marriages and families, and defining “normal” behavior (Lawrence vs Texas), and when people are “healed” of mental illness and no longer a danger to the public (Stogner vs California). Hess offers 15 questions to make forensic referrals clearer.
- Who calls you?
“It is hard to overemphasize the importance of judging the impressions, skills, ability, understanding, and attitudes of the attorney.” This gets to using the psychologist appropriately in a case (to elucidate or serve as a “hired gun”), and using the findings appropriately (for questions that psychologist can answer). Psychologists should ask about the case, pertinent facts, and the attorney’s approach to assess how the attorney presents the case, his/her understanding of psychology, and openness to the psychologist’s questions and opinions as the case progresses. You don’t have to get too specific about the psychological aspects of the case on the first phone call, but the attorney’s willingness to engage in ongoing discussion is likely important.
- Does the psychologist have the personal skills for courtroom testimony?
Testimony is a likely result of a forensic case, and being able to competently perform the assessment is only half the picture– explaining it to the court and defending it’s scientific basis is also required. If you don’t think psychology has anything to offer to the case, if you hate conflict and rough cross-examination, or if you can’t handle a rebuttal and integrate it into your explanation, then maybe this is not the case for you.
- What services is the psychologist being asked to provide, and does the psychologist have the expertise to provide the services?
Assuming you can testify, next you have to realize that you are not an expert in everything, and there’s no shame in this. Blunt and honest discussion with the attorney about what expertise you think is needed for the case is best.
- What legal knowledge does the psychologist need?
Assuming you have the expertise for the psychological aspects of the case, you still will need to understand the legal context of the case, and the laws and rules governing how it is to be handled, not as an attorney, but well enough to know how your testimony fits in. Hess cites “best interests of the child” and “insanity” as “terms of art” with special legal meaning to an attorney, and misusing them could be problematic.
- Does the psychologist have the time to devote to the case?
Courts have impossible deadlines, that show little understanding of the time it takes to complete an evaluation or assessment and write-up the results. After that, there is preparation for court testimony, and that takes considerable time. Add to this that last minutes changes in the court progress and schedule can delay your work for weeks or months, requiring review and testimony time again. Ask about the time line for the case, from the court’s perspective, as well as from the perceptive of the attorney’s client.
- What role do the attorney and psychologist envision for the psychologist?
You could serve in any of three roles envisioned by the ABA: (a) expert providing scientific and evaluative knowledge, (b) consultant to the attorney or court, and (c) expert providing treatment. The attorney’s client may not see you in the same way, however, and setting boundaries and limits at the outset is wise. Define your role carefully, clearly, and repeatedly.
- How will a shift to the consultant role be managed?
Psychologists are asked to provide expert knowledge on one kind or another, and then to shift to the role of a consultant to help the court understand the implications of that knowledge. Your position should be “neutral,” as careless use of language like “we” or “our client” can cast you as taking sides. Hess offers, “[W]hen the psychologist as an expert witness identifies with the cause of the attorney’s client, the expert’s role is compromised and psychological science is in danger of being sold, rightfully provoking the criticism that experts are hired guns.”
- Who is the attorney?
Some attorneys are respected, while others are seen as “ambulance chasers” regardless of their specific specialty. Their reputation, as well as their ability in the case, impacts your reputation by association.
- Who are the opposing parties, the opposing parties’ attorneys, and the judge?
Hess reports a case explained by Deleray (1988) in which a psychologist discovers he has been retained by an attorney for a case, and the opposing counsel is one of his therapy clients, creating “quite a role conflict.” Be careful about these kinds of issues, and discuss openly any dual relationships with anyone on the case (e.g., conflicting interest or “relationships that may cast the psychologist’s testimony in a biased light”). While Hess acknowledges that in rural areas, this may not be avoidable, frank discussion with the attorney about whether this will harm the case early on is better.
- Who, besides the attorney, may call the psychologist?
Hess cites an example of a father who requested a psychologist assess his son, who was visiting him on vacation. He eventually revealed the boy was living with his mother in another state, and the mother had retained a psychiatrist who said the boy was bipolar. The father wanted to show the boy wasn’t bipolar, and then to obtain custody of the boy. The psychologist suggested the father speak with his attorney to see if this was needed, to see if the attorney had a psychologist s/he would prefer to refer to, and to discuss whether a psychologist living in the boy’s city might be better suited for this.
- Who referred the psychologist to the attorney?
This is important is assessing unspoken expectations for the case, assumed areas of expertise, networking, and fee-setting.
- Who pays the psychologist?
The best solution is the attorney hires the psychologist. S/He would then understand the nature of a consultant’s billing time, and their discussions would be covered by privilege. A client could retain you, but then could withdraw consent and create problems all around. You could become a fact witness and be forced to testify.
- How does the psychologist determine and bill fees?
While contingency fees are clearly unethical, a retainer, an hourly fee, a cancellation fee, a pro se clause, and a “termination clause” are possibles. Bill promptly, regularly, and clearly. No report of the services should be released with a balance on the bill.
- What records should the psychologist keep, and where should the records be kept?
Document, document, document. Telephone calls, meetings (with dates, times, and names of those present with any absences or late arrivals noted), dates of kept and missed appointments, records gathered and when, records and information provided by whom and confirmed if needed…
- Does the psychologist have a role in the courtroom?
Hess describes the expert witness as “someone who wasn’t there when it happened, but who for a fee will gladly imagine what it must have been like” (Sampson, 1993, p. 69). New and exciting interventions of psychologists are better left to the big names.