Ethics in Forensic Practice Eschewing the Ultracrepidarian Expert Gerald P. Koocher, PhD, ABPP...

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.ap-ls.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 interestSeduction 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.

COMPETENCEForensic Guidelines Heading

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. Boundary or Multiple Role

Violations

2. Suicide

3. Homicide by patient

4. Billing/Medicare investigations

The Culture Gap Between Psychologists and Lawyers

Psychologists train as behavioral scientists.

We believe that an individual applying rigorous experimental methods can discover significant truths within ranges of statistical certainty.

Lawyers train as advocates.

Lawyers believe that the search for truth depends on a vigorous adversarial cross-examination 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 our clients and show them unconditional positive regard.

Little progress will occur in our work with clients, if we do not like/respect each other.

We constantly collect data and try to ask all the important and sensitive questions.

Attorneys believe that they can (and must) at times defend people they detest.

Attorneys may choose not to ask their clients certain questions (e.g., “Did you do it?”) in order to defend them vigorously.

Preponderance of Evidence (51%)

Clear and Convincing Evidence (75%)

Beyond a Reasonable Doubt (95%)

How much justice do you want?Levels of Proof in the Legal System

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 TestimonyThree 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 circumstances- when you recognize you don’t have a roadmap

Cases of first impression or novel circumstancesWhat 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?

CONSENT, NOTIFICATION, AND ASSENT

Forensic Guidelines Heading

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?”

ConsentCompetent, Knowing, Voluntary

AssentVeto PowerTherapeutic versus non-therapeutic

context Permission

Proxy ConsentSubstituted 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?

FEES Forensic Guidelines Heading

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?

CONFLICTS IN PRACTICE Forensic Guidelines Heading

Multiple roles aren’t always sweet

Key Elements of a Potential Multiple Role Relationship Violation

Inadequate consentLoss of objectivityPatient exploitationDisruption 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.

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.

Multiple Relationships in the APA Code of Conduct

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.

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.

Multiple Relationships in the APA Code of Conduct

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?

Providing Forensic Therapeutic ServicesAlthough 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.

Forensic Specialty Guidelines

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?

Society at large?All of the above?

PRIVACY CONFIDENTIALITY AND PRIVILEGE

Forensic Guidelines Heading

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.

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

“Category 5 Divorce” Sample Events

“Can you believe it! That idiot took the kids to see topless dancers at a bar!”

“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

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 codeCopyright violationsContract with testing companiesDestroy usefulness of test

Still More “Category 5 Divorce” Events

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. 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?

Provide information regarding: 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 harmTarasoff v. RegentsMacIntosch v. MilanoThompson v. County of AlamedaOther progeny of Tarasoff

Still more exceptions to confidentiality

Health oversight or managed careTPO: 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 attorney-client 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 PatientLegal 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)

METHODS AND PROCEDURES Forensic Guidelines Heading

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 DamagesWhen 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” errorPeople cannot avoid mistakes

(but a mistake ≠ negligence)

Departure from standard of careMany practitioners would not do it

Gross negligenceExtreme departure from usual professional

conduct most practitioners would not do it

ASSESSMENTS Forensic Guidelines Heading

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 engagementEvaluative 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 featuressigns (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 Diseaseand “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 Syndrometrisomy 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 2009-03-31http://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

Focus, details, payment… Who gets the report?

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 9.11Test 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 CasesTexas 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 objectsBorderline Personality DisorderNarcissistic Personality DisorderDissociative Identity Disorder (MPD)PTSD (complex)Patients who were abused as children

or are in abusive relationships

Higher Risk Patients

Potentially suicidal patientsConduct 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

CollateralsClients for limited purpose

TREATMENT RECOMMENDATION OR FORENSIC EVALUATION?

Treatment Recommendation or Forensic Evaluation?

Neuropsychological evaluation recommended by school:Private neuropsychologist agreesChild does not cooperateMother asks father to helpChild complies18 recommendations followOne catches fire

UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTSCIVIL ACTION NO. 08-11491-RGS

JOSEPH COGGESHALL andL. 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/

apps/pbcs.dll/article?AID=/20080720/NEWS05/807200337/-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/localnews/2003808201_greenberg27m.html

APA’s Feet of ClayLegal 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…”