As previously stated, the APA Ethics Code comprises 10 specific standards intended to serve as enforceable rules of conduct that psychologists are obliged to follow. Unlike the general principles to which psychologists should aspire, these standards constitute requirements they are expected to meet in order to remain in compliance with the Ethics Code. The standards deal broadly with considerations in practice, teaching, and research, and they vary in their specific implications for practicing principled forensic psychology. However, forensic psychologists are psychologists first and forensic specialists second, and they are accordingly responsible for ensuring that all of their professional actions are consistent with the Ethics Code.
Standard 1: Resolving Ethical Issues
The first standard in the Ethics Code provides instructions for resolving conflicts between ethical considerations and the expectations or demands of legal, governmental, or organizational entities. A key provision in the 2002 Ethics Code concerning such expectations and demands was amended in 2010. This provision had specified that, when faced with ethical conflicts that could not be resolved, “psychologists may adhere to the requirements of the law.” Many psychologists viewed this provision as appearing to endorse the so-called Nuremberg plea that commission of evil acts was acceptable “because I was following orders.” To protect psychologists from feeling obliged to comply with demands to engage in inhumane conduct and to prevent psychologists from appealing to “orders from above” to justify such conduct, this provision was replaced with “Under no circumstances may this standard be used to justify or defend violating human rights.”
Other parts of the standard on ethical issues address procedures to follow should psychologists suspect ethical violations by another psychologist. Ordinarily in such instances, an informal contact with the suspected violator should precede filing any formal complaint, and filing such complaints should be considered when informal resolution seems inappropriate or would violate confidentiality rights or after collegial discussion has failed to resolve the matter of concern. Even with such clear directives to follow, however, ethical issues arising in forensic psychology practice may evoke respectable differences of opinion that call for some exercise of judgment, as in the next case.
A psychologist was asked by the attorney representing a father in a child custody dispute to review a report summarizing an evaluation of him that was prepared by a psychologist retained by the mother’s attorney. The reviewing psychologist was initially impressed with the quality of the examining psychologist s report, which included sufficient language to justify casting numerous aspersions on the quality of this father s character. On closer inspection, however, the reviewer became concerned by how much of the examiner s language appeared to be taken directly from a computer-generated test report. The reviewer was aware that narrative statements in computerized test reports warrant forming hypotheses but not drawing definite conclusions, because they describe characteristics of people in general who have certain scores on a test and do not necessarily describe the person who was examined (see Butcher, 2013). Upon printing his own computer-based narrative from the examining psychologist s test data, the reviewer confirmed that this examiner had indeed cribbed long sections of his report from the computer narrative without acknowledging their source. Moreover, he discovered that a not in the computer narrative had been omitted from the examining psychologist s written report at a critical point in the text where it would have reversed negative conclusions in the report about the father s suitability as a parent. The reviewing psychologist testified to this effect in court, with the computer-generated report and the examining psychologist s written report in evidence. The court concluded that the examining psychologist had misrepresented his findings and altered his report to please the attorney who had retained him. News of this outcome subsequently circulated among the local community of attorneys and psychologists working in family law cases.
Although the ethical transgression was clear in the preceding case, the sequence of events raises some procedural questions. To begin with, an informal collegial discussion of the matters of concern, prescribed in the Ethics Code as the first step in dealing with a suspected or potential ethical violation, was not an option in this instance, because the violation had already been written into a signed and discoverable document. Nevertheless, before reporting his discovery to the attorney who had retained him and appearing on the witness stand, should the reviewing psychologist have informed the examining psychologist about finding the missing not in his report? This consultation would have given the examining psychologist an opportunity, prior to being confronted in the courtroom, to apologize for an unintended oversight (even if this explanation would have rung hollow) or to prepare some defense of his actions (if he could think of one). As another possibility, should the reviewing psychologist, instead of or in addition to giving testimony, have brought the matter to the attention of the state board of psychology or the ethics committees of any professional organizations of which the examining psychologist was a member? Did the damage to the examining psychologist s future credibility as an expert witness constitute a sufficient penalty for his misrepresentation, or should the involved parties have pressed for further sanctions, such as prosecution for perjury or actions against his license? Such matters of judgment commonly arise in forensic cases, despite the guidance of unambiguous principles, and equally principled psychologists might for various reasons answer the preceding questions in different ways.
Standard 2: Competence
The standard on competence addresses psychologists obligations to provide services only within the boundaries of their abilities as gleaned from their education, training, study, relevant supervision, and professional experience. They can serve populations or employ methods unfamiliar to them only after sufficient preparation, consultation, and/or supervision to ensure professional competence. Only in emergency situations, when other qualified help is not available, should they act beyond the boundaries of their competence. Psychologists are further instructed by the competence standard to maintain their competence, which speaks to the importance of continuing education; to base their work on established scientific and professional knowledge in their discipline; and to prevent personal problems and conflicts from interfering with adequate performance of their work-related duties.
In addition to the numerous implications of these requirements for forensic practice, the competence standard specifies that psychologists serving in forensic roles should be reasonably familiar with judicial and administrative rules governing these roles. No psychologist can be adequately educated for every exigency, however, and determining whether competent service is being provided may at times involve some degree of judgment. The next case illustrates effective preparation for a forensic consultation and appropriate candor about professional competencies.
A psychologist was asked to analyze some insurance policies for their readability levels. He was experienced in assessing intellectual functioning, but his familiarity with readability analysis and insurance policies was limited. He related his background and skills to the lawyer who wanted to retain him and clarified the nature of the services he was being asked to provide. He then consulted with two colleagues who regularly assessed readability level and reviewed some publications recommended by them. He was then able to describe to the lawyer the procedures he would follow in the analysis and to indicate that he had expert consultation available to assist him as needed. On this basis, having initially been candid about his capabilities and then taken steps to become adequately prepared for his task, he was able to provide a helpful analysis of the readability level in the insurance policies.
The competence standard also bears directly on forensic psychology in requiring practitioners to establish firm ties between their practices and the scientific bases for these practices. Tensions nevertheless arise between what forensic psychologists know for sure and about what they are asked to opine, and discrete decisions must often be made in the absence of absolute certainty. When told only that there is a 70% chance of rain, we must make a yes-or-no decision whether to take an umbrella, and forensic psychologists are regularly asked for similarly discrete opinions (e.g., insane or not, competent or not, suitable parent or not) in the absence of 100% conclusive evidence one way or the other. Ordinarily the most principled course of action in such instances is offering a reasonable estimate, as in reporting a slight, moderate, or considerable chance of reoffending by a person being considered for probation or parole and letting the court or administrative body address the dichotomous decision that is properly its to make. In this vein, Monahan and Stead-man (1996) advised mental health law specialists to model the way meteorologists announce a 70% change of rain, as by responding to a question about violence risk with a percentage estimate of its likelihood in a particular case.
Because competence is a critical consideration for forensic psychologists and one that often undergirds an ethics complaint or a lawsuit, the forensic specialty, child custody, parenting coordination, and child protection guidelines all pay considerable attention to it. In addition to paralleling many of the Ethics Code specifications concerning competence, the forensic specialty guidelines stress acquiring and maintaining not only knowledge but relevant skills as well and becoming knowledgeable not only about the legal system but also about the legal rights of individuals. These guidelines further admonish forensic psychologists to:
- Give full and accurate accounts of both their skills and their knowledge when presenting themselves to clients.
- Base their opinions and testimony as much as possible on scientific foundations.
- Clarify the limits of their conclusions and recommendations as well as the factual basis for them.
- Keep abreast of developments in the law as well as in psychology.
- Ensure that their own values do not compromise the services they are rendering. (Standards 2.01-2.07)
The child custody, parenting coordination, and child protection guidelines supplement the Ethics Code by defining competence in these areas of endeavor to include having a thorough understanding of child and family development and psychopathology, being familiar with what is known about the impact of divorce on children, and keeping current with the child custody literature.
As attested by this specification in the child custody guidelines, the competence of forensic psychologists is unlikely to be uniform across criminal, civil, and family law proceedings. A forensic practitioner who is expert in conducting competency and insanity evaluations in criminal cases may not be familiar with the literature, techniques, and considerations relevant to a fitness-for-duty evaluation, such as confidentiality issues specific to the workplace and prediction questions central to personnel evaluations. Likewise, a psychologist with expertise in criminal cases may not know enough about the technicalities of probate and estate management to provide useful psychological consultation in a civil case involving alleged malfeasance by an estate administrator or executor.
As a stark example of expert testimony that was incompetent by virtue of inadequate foundation, Golding (1990) described the testimony of Dr. James Grigson, a psychiatrist, whose work formed the basis for the U.S. Supreme Court’s analysis in Barefoot v. Estelle (1983). Without having evaluated Barefoot, Grigson claimed that he could “predict future dangerousness of an individual within reasonable medical certainty,” that Barefoot was in the “most severe category of sociopaths,” and that he (Grigson) was “one hundred % [sic] and absolutely [certain that] Barefoot would commit future acts of violence that would constitute a continuing threat to society” (Golding, 1990, p. 291). Cross-examination has been the mechanism traditionally used by the courts to challenge or dismiss such outlandish claims. However, cross-examination is often inadequate in this regard, because it relies on attorneys, judges, and jurors to make determinations concerning technical matters that are known only by other experts in the area. As a partial solution to this problem, Golding suggested placing an affirmative duty on potential experts to clarify the basis of their testimony, to show the evidence of the specific bases of their conclusions, and to describe the limits of their testimony, all of which would be consistent with the Ethics Code and forensic specialty guidelines. Unfortunately, this suggestion would still leave it in the hands of attorneys to conduct telling cross-examinations on technicalities of psychology, which they may not be equipped to do.
As another potential solution to instances of incompetent expert testimony, Shuman and Greenberg (1998) commented that many such problems could be resolved from the bench if judges would take professional ethics codes more seriously than they apparently do. In Barefoot, for example, Grigson s testimony passed judicial review but not psychiatric peer review. An American Psychiatric Association amicus brief asserted that Grigson should not have been permitted to testify in Barefoot v. Estelle (1983) because it is “unethical for a psychologist [sic; Grigson was a psychiatrist] to offer a professional opinion unless he or she has conducted an examination” (Shuman & Greenberg, 1998, p. 7).
Shuman and Greenberg (1998) also decry instances in which courts accept expert testimony in custody cases from a psychologist who has examined only one parent and offers an opinion about which of two parents would better serve the needs of the child. Aside from being patently unsound—how can a comparative opinion be formed when only one parent has been seen?—this type of practice, like testifying about the psychological characteristics of a person who has not been examined, violates the Ethics Code except in special circumstances, such as providing a record review concerning someone who is not available to be examined (APA, 2002, Standard 9.01 (b) (c); see also APA, 2012a, 9.03).
As a further example of questionable procedure, consider the courtroom performance of the two psychologists testifying in the next case.
In a murder trial involving an insanity defense, a psychologist retained by the defense attorney testified that impairments associated with borderline personality disorder had caused the defendant lifelong adjustment problems, including mood fluctuations, excessive anger, and poor emotional control. This disorder, the defense psychologist said, had prevented the defendant from conforming his conduct to the law and distinguishing right from wrong when he stabbed to death a 74-year-old woman and her 4-year-old granddaughter. The psychologist offered this testimony despite the existence of a letter found in the purse of the defendant s ex-wife outlining the steps she was to take in helping him construct a convincing insanity defense. Could the defendant have been legally insane at the time of the stabbings but subsequently been able to become involved in the planning of his defense? This interesting question became moot, however, because the judge ruled the letter inadmissible due to the marital privilege—even though the couple had divorced a year before the murders. (Note: The judge’s questionable ruling in this regard aside, borderline personality disorder has no recognized implications for impairing a person s ability to distinguish right from wrong.) The psychologist retained by the prosecutor testified that the defendant knew the nature and quality of the charges against him (Note: This is a competency criterion, not a sanity criterion.) and was able to distinguish right from wrong because voices he claimed to hear were coming from inside and not outside his head. (Note: This may have implications for whether the defendant was hallucinating, but it has no direct relevance to his knowing right from wrong at the time of committing the offense.)
Some questions about the competence of the two expert witnesses in this case come quickly to mind. Were they familiar with the applicable legal criteria for insanity? Did these criteria, like the laws in most states, disallow personality disorders from consideration as a valid insanity defense? Did these psychologists employ adequate methods to assist them in reaching their conclusions? (Both based their testimony solely on a clinical interview with the defendant, without reviewing historical documents, talking with collateral informants, or conducting psychological testing.) Did the defendant’s claim of hearing voices raise some doubt about the accuracy of a borderline personality disorder diagnosis? Did one or both of the psychologists have an adequate foundation for their testimony, and did they articulate their findings in a manner consistent with the standard set forth in the Ethics Code? The probable answers to these questions bring into sharp relief the kind of inept courtroom display that can foster public cynicism and mistrust of mental health experts. Such incompetence is by definition unethical (see Weiner, 1989), and it is unethical conduct in the courtroom, not proper forensic practice, that provides critics of forensic mental health practice with grist for their mill.
Finally, with respect to competent practice, forensic psychologists should recognize and express clearly the certainty of their opinions and conclusions. In the insanity case just discussed, the two experts could have drawn on definite and well-established criteria to guide their evaluation of the defendant, these being the two “prongs” of insanity as defined in statutory law. The first of these prongs, which is universally applicable in U.S. jurisdictions, invokes a cognitive incapacity that prevented the accused from recognizing the criminality of his or her actions at the time of the alleged offense or that prevented the defendant from appreciating the legal or moral wrongfulness of this conduct. The second prong, which is an alternative statutory criterion for insanity in some but not all jurisdictions, is volitional in nature and speaks to a loss of behavioral control such that the accused was unable to alter or refrain from his or her criminal conduct at the time.
In other situations, forensic psychologists may have to form their opinions with less certain criteria to draw on than are available when insanity is the issue. In jury selection, for example, a consulting psychologist who can assess a potential juror s opinions regarding the issue at trial may have little way of knowing how this person might be influenced by the leadership style of the jury foreperson and the group dynamics among the jurors when they assemble in the jury room. In practice, this circumstance means that forensic consultants are likely to be more helpful in juror selection than they can be in jury selection.
Because of the uncertainty inherent in many of the conclusions they form, forensic psychologists are well advised to work with a graded system of levels of confidence in their conclusions. These levels of certainty should cover a broad range of possibilities that can be expressed in such terms as “reasonably certain,” “strongly suggestive,” “some indications but not compelling,” and “the available data do not warrant an expert opinion on this matter.” The level of certainty chosen should be based on the state of knowledge in the areas, the degree to which the particular case touches on definite provisions in the law, and the amount and clarity of available information pertaining to the legal considerations in the case. In the instance of an insanity defense, for example, the law provides clear criteria that can readily be translated into well-researched psychological characteristics for which clinical research and assessment methods are abundant. In custody cases, by contrast, statutory law provides little in the way of specified criteria for being a suitable parent.
Forensic psychologists are further well advised to discuss with attorneys who retain them not only the certainty of the knowledge base relevant to their case but also the certainty of the findings they obtain in the particular case and can testify to. Even the most sensitive measurement methods may not reveal relevant information in a particular instance, and psychologists should say as much in such cases. Competent forensic practitioners take responsibility for describing the weight of the evidence on which their testimony is based, and, even in the absence of a compelling level of certainty, the court may ask for expert guidance, as in the next statement from the bench.
It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system… What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. (Jurek v. Texas, 1976, 274-276)
Standard 3: Human Relations
The Ethics Code standard on human relations speaks to practicing, teaching, and researching psychology in ways that are considerate of others and avoid causing them harm to the degree possible. Included in the several sections of the standard are proscriptions against discriminating against, harassing, or exploiting others and guidelines for not becoming involved in multiple relationships and conflicts of interest. Forensic activities often put psychologists in situations fraught with risk for being drawn into multiple relationships and conflicts of interest, and the forensic specialty guidelines spell out numerous precautions that practitioners should take in this regard. The guidelines have in turn been supplemented by substantial attention in the literature to the boundaries of and exceptions to multiple relationships (Greenberg & Shuman, 2007; see Knapp & VandeCreek, 2012, chap. 6).
As an important aspect of protecting the well-being of persons they evaluate in forensic cases, psychologists should take care to prevent their findings from becoming available to persons who should not receive and do not need to have this information. The next case illustrates one examiner s consideration in minimizing harm that might have resulted from his providing necessary information in open court.
A psychologist conducting a defendant’s competence to stand trial evaluation found reasonably clear evidence that the defendant was intellectually disabled. He informed the defendant that he would be saying some things about him in court that might be upsetting to him and make him look bad in the eyes of friends and relatives who were present but that he should not take these comments as a personal criticism. He then told the defendant what the result of intellectual testing indicated, but he added that there were many different ways of defining and measuring intelligence and that these test results did not say anything about whether he was a good or bad person. This sensitivity on the psychologist s part fostered mutual respect between him and the defendant and gave the defendant a frame of reference that eased the distress of hearing his limited tested intelligence reported in the courtroom.
Standard 4: Privacy and Confidentiality
Standard 4 concerns the responsibility of psychologists to respect and protect the privacy of the people to whom or for whom they provide professional services. The forensic specialty guidelines clarify that this requirement pertains both to clients being evaluated and to retaining parties who request a forensic psychological consultation (APA, 2013, Standard 8). Because of the extent to which forensic psychologists are charged with unearthing and reporting sensitive findings, issues of privacy and confidentiality can become particularly complex and challenging in their practice.
The key questions for forensic psychologists in this regard concern the kinds of information they should release (e.g., summary impressions, full reports, case notes, test results, computer printouts), in what form this information should be released (written documents, electronic transmission, oral communication), to whom the information should be released (the court, a retaining or opposing counsel, the person evaluated, the media), and the circumstances under which information should be released (a court order, a subpoena, an informal request). The answers to these questions vary, as prescribed by the applicable regulations in a state. The overarching consideration established by the Ethics Code is that psychologists should release information only to an individual or entity identified in a written consent form signed by the person evaluated, except when the law requires or permits proceeding otherwise. In the absence of such a signed release or legal requirement or permission, any disclosure of information is a violation of privacy rights (APA, 2002, Section 4).
Issues concerning the preservation of privacy have been complicated in contemporary times by technological advances in modes of information exchange. In a recent survey, McMinn, Bearse, Heyne, Smithberger, and Erb (2011) found considerable uncertainty among several hundred psychologists regarding the ethicality of using certain communication technologies in professional practice. Over one-third of their respondents reported being uncertain about whether it is ethical to use e-mail to provide professional services, contact clients about payment or insurance issues, and send confidential information to other healthcare professionals, and more than one-third were uncertain about the ethicality of using instant messaging to provide consultation and supervision, either by computer or cell phone. These survey findings speak to the point made throughout this research paper that ethical right and wrong sometimes hinges on relative rather than absolute judgments, and indefinite circumstances can allow for respectable differences of opinion concerning proper conduct. The following case, however, illustrates a confidentiality requirement that is unequivocal with respect to what must be done—the presence of a nondisclosure agreement.
An attorney asked the psychologist to assess the extent of psychological damage in a 32-year-old woman who had been sexually assaulted by an appliance repairman. Records indicated that the employer had previously received complaints about the repairman s conduct when he was doing clerical work in their central office. As their “solution” to his being intolerably obnoxious in the central office, the company assigned him to go to people s homes by himself, without supervision, and service their malfunctioning appliances. The consulting psychologist found evidence of substantial psychological dysfunction in the plaintiff, probably attributable to the sexual assault, and also some additional psychic harm apparently resulting from harsh depositions conducted by the company s attorneys. The woman s attorney reviewed these findings with the company s ethics officer, following which the psychologist was paid for his efforts but received no further information about the outcome of the case. He inferred from this sequence of events that the company, faced with the compelling evidence of damage and its proximate causes, had made an out-of-court settlement with the victim and that the settlement included a nondisclosure agreement. The point of this case example with respect to disclosure and privacy is that, with a nondisclosure agreement in place, any use of the case that contained identifying information could void the settlement and make the psychologist vulnerable to legal action by the plaintiff, her attorney, and the company. In such circumstances, everyone working with the psychologist on a case, including secretaries and technicians with access to information about it, is similarly bound by the privilege rights of the attorney s client and civilly liable for any breach of privacy.
Standard 5: Advertising and Other Public Statements
Standard 5 in the Ethics Code indicates that psychologists are free to make public statements about their professional qualifications and to express their professional opinions on matters related to psychology. In so doing, however, they must avoid making any false or deceptive statements. Although they can advertise their credentials and availability as service providers, they must not hire media personnel to provide publicity for them, nor should they solicit public testimonials about their skills from former therapy patients. When they do advertise, forensic psychologists are likely to benefit most from presenting themselves in media to which attorneys attend, given that attorneys are commonly their major referral source. Similarly, most forensic practitioners will find it to their advantage to present a continuing education workshop for attorneys. Local and state bar associations usually welcome such offerings by psychologists, although psychologists need to be modest in what they promise to provide and not guarantee any beneficial outcomes of participating in their workshop.
The forensic specialty guidelines do not speak to advertising, but they do include a section that elaborates several forensically relevant considerations in making professional and public statements. Among these are being accurate and avoiding deception in the presentation of opinions; providing appropriate disclosure of sources of information and the bases of these opinions; and being careful to differentiate among observations, inferences, and conclusions (APA, 2013, Standard 11.01-11.04). The specialty guidelines also caution forensic practitioners to be fair, impartial, and respectful should they have occasion to comment on or criticize the conduct of other professionals or participants in a legal proceeding. Similar restraint should characterize any out-of-court statements by forensic psychologists about legal proceedings in which they are involved (APA, 2013, Standards 11.05-11.07). These particular specialty guidelines overlap somewhat with the Ethics Code requirements concerning privacy, confidentiality, and privilege.
Standard 6: Record Keeping and Fees
The text of Standard 6 in the Ethics Code obliges psychologists to facilitate the services they provide by documenting their work with adequate case records and making these records available to other professionals, as appropriate and within the constraints of confidentiality. The Ethics Code does not specify the length of time that case records should be kept, but psychologists should be aware of applicable regulations in this regard in the states in which they practice. In Florida, for example, statutory law requires licensed psychologists to retain complete psychological records for each service user for a minimum of 3 years and either the complete records or a summary of them for an additional 4 years. The APA (2007) provides some additional nonmandatory guidelines to assist practitioners in managing their records in the individual case, and the specialty guidelines provide further specific direction in this regard (APA, 2013, Standard 10.07).
With respect to fees, this section of the Ethics Code includes several restrictive provisions with which forensic practitioners must be sure to comply. Psychologists must not withhold records for nonpayment of services when these records are needed for emergency treatment of an individual who has been evaluated; they must refrain from bartering agreements in which goods or services are accepted as payment for fees, unless such nonmonetary remuneration is not clinically contraindicated and is not in any way exploitative; and they must not kick back to referral sources any portion of fees to which they are entitled on the basis of services they have provided.
The forensic specialty guidelines add to these restrictions a caution against contingency fees, which is an especially important consideration in personal injury litigations that could involve substantial settlements. Forensic psychologists should charge for their services on an hourly basis at a prearranged rate or at a prearranged amount for providing particular services. They should never charge on a contingency basis that depends on the outcome of a case. Charging on a contingency basis in a personal injury litigation when retained by the plaintiff s attorney can mean that the larger the settlement, the more the psychologist gets paid. It can also mean not getting paid at all, should the defendant prevail in the case. Operating in such contingency circumstances makes the psychologist an interested party with a clear conflict of interest who cannot be expected to provide objective and unbiased testimony.
Standard 7: Education and Training
The standard on education and training holds psychologists responsible for designing appropriate experiences and providing appropriate knowledge to accomplish the goals of any program in which they participate. These goals and the nature of the program should be described clearly and accurately to all interested parties. Teachers and supervisors must provide accurate information to their students and their supervisees, and they are additionally obliged to evaluate the performance of these students and supervisees and give them timely feedback. These and other sections of the standard address general concerns in psychology and have no direct bearing on or implications for forensic practice. Nevertheless, psychology students can become involved in court proceedings, and their involvement can at times become an ethical minefield, with life-and-death consequences, as in the next case.
A university professor offered his clinical psychology graduate students to the district attorney s office to evaluate defendants, which gave the students valuable but unpaid experience and saved the prosecutor s office thousands of dollars. In a case in which a mother was accused of killing her 4-year-old daughter, tests administered by one of these students were reported by the media as likely to help seal a first-degree murder conviction. When deposed, however, the student testified that she had been unsupervised and that the Multiphasic Personality Inventory, Second Edition (MMPI-2) she had administered was the first with which she had any experience. She also testified that she had been told by her professor to change some of the answers on the MMPI-2 based on the fact that the test had been administered in prison. The prosecutor’s office claimed ignorance of students having been sent alone to conduct evaluations on first-degree murder cases. Nevertheless, as a result of this incident, eight other first-degree murder cases came under review, with one defense attorney claiming that the psychological testing had been critical in her client s accepting a guilty plea instead of proceeding with a jury trial, and the prosecutor s office discontinued its use of student examiners. As for the professor, he said subsequently that it was all a misunderstanding and that the student had become flustered during her deposition and made some misleading statements. However, he did not dispute the production of an altered MMPI-2 answer sheet. The ethical misconduct in this case requires no further comment.
Standard 8: Research and Publication
With regard to research, Standard 8 in the Ethics Code delineates requirements for obtaining informed consent from research participants, protecting participants from any adverse consequences of participating in a study, and sparing members of a targeted research population from disciplinary or punitive action should they decline to participate. Also included in this section are considerations in determining appropriate inducements for research participants, whether and what types of deception are permissible, and the kinds of feedback that participants should be provided. With regard to publishing, the standard calls for giving appropriate credit for authorship, and it specifically proscribes plagiarism and the fabrication of data.
This standard is fully applicable to the scholarly work of forensic psychologists, whose research efforts may also present some specialty-specific ethical issues, particularly if they are collecting data within prison walls. For example, can informed consent be given by incarcerated research participants who as prisoners may not be operating under their own free will? Might some of the requested research information compromise the rights of participants by being tantamount to their testifying against themselves? Alternatively, if researchers do acquire incriminating information from a participant, whether by intent or inadvertently, can they withhold this information from the authorities without risk of becoming an accessory? Does the researcher feel sufficiently comfortable and have the necessary familiarity with a particular prison s facilities and procedures to function effectively in that setting? Likewise, have all of the participants in the research project whose assigned tasks will bring them into the prison been adequately prepared for being behind bars in the company of accused or convicted criminals? These questions call for careful consideration of the circumstances in each instance, and there is no absolute or automatic answer that will inevitably be correct in every instance.
In professional presentations as well as publications, psychologists are obliged to take reasonable steps to avoid factual errors and misleading or unwarranted statements. The following case illustrates one psychologist s public failure to do the homework for which he was ethically responsible.
A prominent forensic psychologist was presenting a paper at the annual APA convention on ethical considerations in serving as an expert witness. He emphasized the importance of practicing at the highest standards of empiricism, and he illustrated shortcomings in this regard by referring to a testing procedure developed by a well-known psychologist. He assailed the procedure s lack of reliability and validity and called its use improper. A few minutes into this harangue, a man in the audience rose and introduced himself as the psychologist being vilified. He then listed studies in several prominent journals that documented the psychometric soundness of his procedure and asked the presenter if he had read these studies. The presenter, sweating profusely, mumbled something inaudible and sat down without finishing his talk.
The lesson in this case is that public presenters should speak as if anyone about whom they will be speaking, especially if in critical fashion, were in the room. Comments that could not in good conscience be voiced in the presence of a professional colleague whose work is being criticized should not be voiced at all. Unlike the presenter in this case, moreover, a principled forensic psychologist would not impugn another psychologist s work without having conducted a thorough search of the literature concerning it.
Standard 9: Assessment
The assessment standard in the Ethics Code has substantial implications for the practice of forensic psychology, because assessment constitutes a considerable part of what forensic psychologists do. Questions of competence, criminal responsibility, and diminished capacity in criminal cases are basically assessment questions, as are questions of competence and personal injury in civil cases, questions of child custody and parental suitability in family law cases, and questions about violence risk.
The first three sections of the assessment standard define the essence of ethical assessment practice. First, psychologists should offer opinions only about persons they have examined, except when the person is not available for examination or when only a consultation or record review is necessary. Second, assessments should be conducted with reliable and valid methods that are appropriate for the purpose of the examination. Third, informed consent must be obtained from the person to be examined, unless the examination is mandated by law or is a routine part of an activity in which the person is a voluntary participant, such as pre-employment screening. Six other sections of this standard delineate considerations related to test construction, interpreting and explaining test results, releasing test data, maintaining the security of test materials, and using test scoring and interpretation services. Two further sections of the standard caution psychologists against using obsolete tests and outdated test results and against promoting the use of psychological assessment techniques by unqualified persons.
The forensic specialty guidelines echo the Ethics Code with regard to conducting assessments, and they elaborate four additional considerations that should guide forensic practice. These considerations include:
- Focusing assessments on the legally relevant factors in each individual case.
- Recognizing individual differences that could result in the same test finding having different implications for people from different ethnic or sociocultural backgrounds (see Weiner & Greene, 2008, chap. 4).
- Providing the appropriate kind and amount of feedback to examinees in legal proceedings.
- Retaining adequate documentation of assessment findings and making this documentation available as permitted or required by law (APA, 2013, Standard 10.01-10.06).
It may well be that ethical problems for the practitioner arise more frequently in conducting assessments than in any other forensic activity. A relatively recently emerging ethical problem that merits special mention concerns coaching. Most practitioners would consider it appropriate to accept an attorney s request to help coach a person in giving testimony, as in instructing a defendant to sit up straight and establish eye contact with the judge, prosecutor, and jurors. To the extent that slouching and looking down at the floor might send cues that the defendant was guilty or being untruthful, irrespective of the evidence, a psychologist coaching avoidance of these behaviors might well be serving the purposes of justice. However, what if an attorney representing a client in a personal injury or a disability determination case asks the psychologist to coach this client on how to appear impaired on measures of neuropsychological functioning? Most psychologists would deem this type of coaching unethical, and coaching a person in how to answer certain kinds of questions and perform certain kinds of tasks has in fact been demonstrated to produce misleading results in neuropsychological and competency examinations (Gorny & Merten, 2007; Springman & Vandenberg, 2009; Suhr & Gunstad, 2007; Victor & Abeles, 2004).
Standard 10: Therapy
The therapy standard deals mainly with restrictions on sexual intimacies between psychologists and their current or former psychotherapy patients and these patients significant others. Other sections of the standard concern such matters as the necessity of informed consent by persons being provided psychotherapy, considerations in offering or providing therapy for persons already receiving mental health services elsewhere, and issues related to the interruption or termination of an ongoing treatment relationship.
For forensic psychologists providing psychotherapy to litigants, there is an inherent conflict between their obligation to protect a patient s privilege and the customary expectation that they will be disclosing pertinent information to officers of the court and other appropriately designated individuals. Whereas forensic practitioners conducting assessments rarely have difficulty identifying the person or entity requesting the evaluation as their client, and not the person being evaluated, deciding who the client is may not come so easily when they are functioning as psychotherapists, particularly when they are working in correctional settings or with parents involved in a custody dispute (see Monahan, 1980). With respect to working in a correctional setting, consider the dilemma of the psychologist in the following case.
The psychologist was employed by the Department of Corrections with duties that included providing psychotherapy as part of a prison-based drug rehabilitation program for addicted inmates. During a psychotherapy session, an inmate mentioned in passing that he had “50 ccs of liquid cocaine stashed on the ward.” The psychologist was aware that he was now faced with having to choose between maintaining prison security and preserving patient confidentiality. He could report what the inmate had told him, thereby sacrificing his trustworthiness as someone in whom the inmate could confide, or he could keep the inmate s secret, thereby endangering the drug-free status of the inmate and his ward-mates and colluding with him in a violation of prison rules.
As in this case, ethical dilemmas rarely have a simple and entirely comfortable solution. Possible harm could be done by making either of the choices listed, but perhaps more harm would ensue to more people from allowing the cocaine to remain on the ward than from losing the inmate s trust in his therapist, however much the psychologist would regret having to make this choice. In most cases the best solution to a dilemma is avoiding it in the first place, whenever possible. There would have been a regrettable choice but not a difficult one in Case 8 if the psychologist had initially presented a clear statement of the roles and obligations of both parties to the treatment. Beginning psychotherapy with an explicit treatment contract is standard recommended procedure (see Weiner & Bornstein, 2009, chap. 6), but it can be overlooked when the therapy has been mandated, as in this instance. If the psychologist in this case had stated during the first treatment session that he would be obliged to report any violation of prison rules, there would have been no dilemma. Although he might have regretted having to sacrifice a confiding treatment relationship, his honesty and dependability in reporting the violation, just as he had said he would, might have sustained rather than undermined the inmate s trust in him. The next case illustrates effective implementation in a correctional setting of a pretreatment agreement intended to provide protection for the inmates as well as the institution.
A prison psychologist was assigned by the Department of Corrections to conduct sex offender group psychotherapy, the purpose of which was to facilitate the offenders successful adjustment upon returning to the community. A potential ethical dilemma lurking in this assignment concerned the group members privacy rights beyond reporting their progress toward being considered for parole. The psychologist clarified to the group members at the outset that their general progress and risk of reoffending, which would include their compliance with prison rules, would be reported to the prison authorities, but other specific information they discussed in the group would be kept confidential. Concurrently, the psychologist made it clear to the authorities that content of the group sessions unrelated to general progress and risk of reoffending would not be forwarded and that privileged communication would remain in effect except for the general progress report.
Psychologists providing treatment for parents involved in custody disputes are also likely to face choices between reporting or withholding certain information, and they may at times have difficulty reconciling the specific ethical standard concerning privacy with the general principle of avoiding doing harm. Some potentially difficult decisions are taken out of the psychologist s hands by the law, as in the case of the requirement in all 50 states for professionals to report suspected child abuse. Usually, however, the confidentiality issue for therapists treating antagonistic parents is more murky than clear, and sometimes, as in the following case, even appropriate efforts to establish protective agreements can go for naught.
A psychologist anticipated possible ethical conflict between his providing marital therapy and being called to testify in a bitter divorce and custody battle. He had been asked by an attorney whose marriage was dissolving to counsel his wife and himself, in hopes that, for the sake of their young son, they could find a way to salvage their marriage. The psychologist agreed to work with them on the condition that whatever emerged during the marital therapy would not be accessible for inclusion in any subsequent legal proceedings. He explained to both parties that this condition was necessary to avoid either or both of them striving to look good in the psychologist s eyes and make the other one look bad, which would undermine efforts to resolve their marital problems. Both parties said that they understood and agreed with this condition. Unfortunately, the marital problems proved refractory to the treatment, and two months following termination of the therapy, the attorney informed the psychologist that he was going to be subpoenaed as a witness to attest to his wife s emotional instability. The psychologist reminded him of the pretreatment agreement, to which the attorney replied that this agreement carried no legal authority and could be revoked without consequence.
The psychologist dealt with this impasse by letting the attorney s lawyer know that, if called to testify, he would report to the court the husband s violation of the pretreatment condition and appeal to the judge that the wife had not waived privilege. If the wife were to waive privilege, the psychologist continued, neither party would be happy with the testimony he would then give in describing his impressions of both of them. The attorney s lawyer decided that it would be best to forgo calling the psychologist as a witness.
Sensible practice and case law do not preclude attorneys calling a psychotherapist as a fact witness. However, attorneys usually have no difficulty appreciating that privileged communication is essential for psychological treatment to be effective and that privacy calls for separating the therapist role from the expert witness role. Nevertheless, to serve their own purposes, attorneys may press a fact witness psychotherapist for expert testimony. In so doing, they create a role conflict for the therapist, who may be required by the court to disclose information that he or she would ordinarily be ethically obliged to keep confidential. However, the Ethics Code allows disclosure of confidential information without consent of the individual “when mandated or permitted by law for valid purposes” (APA, 2002, 4.05; see also Strasburger, Gutheil, & Brodsky, 1997).
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