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Ethical Practice in Forensic| Psychology

Ethical Practice in Forensic| Psychology

The profession of psychology has much to offer the legal system and those with possible or clearly identified psychological difficulties who find themselves negotiating the legal system. As a result, forensic psychology has emerged as a distinct specialty area within the broader field of psychology. Forensic psychology includes both scholarly and applied activities and repre- sents the intersection of clinical and experimental psychology and the law (Heilbrun, 2001). The clinical and experimental forensic arenas are them- selves composed of diverse psychological specialties, such as counseling, developmental, and social psychology. Thus, forensic psychologists may have multiple professional identities representing both their primary areas of training and experience and their subsequent application of their knowledge and skills to forensic matters.

In addition to psychologists who pursue professional involvement in the legal system, some clinicians inadvertently find themselves involved in the legal matters of their patients. Involvement of the clinician may be either requested or required. For example, a neuropsychologist may be subpoenaed to testify about the evaluation findings of a patient who sustained a traumatic brain injury in a motor vehicle accident. Understanding the professional, ethical, and legal issues involved in such situations is necessary for successful performance of one’s responsibilities.

http://dx.doi.org/10.1037/11469-001 Ethical Practice in Forensic Psychology: A Systematic Model for Decision Making, by S. S. Bush, M. A. Connell, and R. L. Denney Copyright © 2006 – Write a paper; Professional research paper writing service – Best essay writers American Psychological Association. All rights reserved.

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Because of the varied contexts in which forensic psychologists practice, there will likely be exceptions to many of the topics examined in this text. Nevertheless, an increased understanding of the ethical issues that pertain to forensic psychology in general will assist psychologists in all forensic contexts to better serve those with whom they interact professionally. For the purposes of this text, the term forensic psychologist is used broadly to refer to those psychologists who perform forensic activities or work in forensic settings; it is not used solely to denote those with specialized training or board certification in forensic psychology.

FORENSIC PSYCHOLOGY IN CIVIL AND CRIMINAL CONTEXTS

Psychologists serve the justice system in a variety of contexts (Blau, 1998; Heilbrun, 2001; Koocher & Keith-Spiegel, 1998; Melton, Petrila, Poythress, & Slobogin, 1997; Walker & Shapiro, 2003). They can be found practicing and conducting research in both civil and criminal legal arenas. Civil law includes matters of family law; administrative proceedings, such as Worker’s Compensation; and tort law, such as personal injury litigation. Typically, the purpose of civil law is to assign responsibility for harm and to provide a remedy. However, family law, a type of civil law, differs from other civil matters in several important ways. In family law matters, the court is generally called on to resolve disputes having to do with the following: (a) marital dissolution, where there may or may not be a finding of fault; (b) determinations regarding parenting relationships, such as parenting agreements following divorce, adoption proceedings, or proceedings to termi- nate parental rights; and (c) matters of juvenile justice that do not fall within the purview of criminal law, owing to the status of the actor as a minor.

In contrast to civil law, criminal law is based on the concept of “moral blameworthiness” (Behnke, Perlin, & Bernstein, 2003). When an individual has been found guilty of a crime, a moral sanction applies, including removal from society if deemed necessary by the court. Criminal law addresses a number of steps in determining the guilt or innocence of a defendant and providing a consequence if the accused is found guilty. Psychological expertise and services can be found across the continuum of criminal law.

In both civil and criminal contexts, psychologists engage in professional activities relevant to a wide range of legal and psychological issues. According to Standard 7-11 of the Criminal Justice Mental Health Standards (Ameri- can Bar Association [ABA], 1989),

Mental health and mental retardation professionals serve the adminis- tration of criminal justice by offering expert opinions and testimony

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within their respective areas of expertise concerning present scientific or clinical knowledge; by evaluating and offering expert opinions and testimony on the mental condition of defendants and witnesses; by providing consultation to the prosecution or defense concerning the conduct of individual cases; and by providing treatment and habilitation for persons charged with or convicted of crimes. Because these roles involve differing and sometimes conflicting obligations and functions, these professionals as well as courts, attorneys, and criminal justice agencies should clarify the nature and limitations of these respective roles.

Forensic Evaluation Services

The forensic psychology evaluation differs considerably from the clini- cal psychology evaluation. Differences begin with the language used to describe the evaluation. Psychological evaluations performed by practitioners who are hired as independent contractors by third parties, such as disability insurers, attorneys, or the courts, are often referred to as independent psycholog’ ical examinations or independent medical examinations. Differences between forensic and clinical evaluations also include the nature of the requested evaluation, which has theoretical and practical implications for the manner in which the task is approached (Denney & Wynkoop, 2000). With forensic evaluation services, context affects (a) the goals of the evaluation, (b) the psychologist’s role, (c) the assumptions the psychologist makes about the accuracy of information received from the examinee, (d) alliances formed, and (e) methodology used by the psychologist.

The purpose of a forensic evaluation is to assist the legal decision maker (Melton et al., 1997), who may be a judge, juror, mediator, or other hearing officer. This forensic purpose stands in contrast to the clinician’s goal of assisting the patient. Accepting that the psychologist’s primary obligation is to the legal decision maker rather than to the examinee may be a difficult transition to make for psychologists who have been clinically trained. However, it is necessary for examining psychologists to understand that the retaining party is the client and that the examinee is neither a patient nor the client of the examining psychologist. Exceptions may exist in forensic treatment settings in which evaluations may be performed to facilitate clinical services rather than to inform legal decisions.

The goal of the psychologist retained to serve as an expert witness is to provide information useful to the trier of fact in its effort to answer a specific legal question, such as the presence or absence of psychological “damages” or competency to stand trial. To achieve this goal, the psycholo- gist assumes the role of seeker of truth and judicial educator (Denney & Wynkoop, 2000; Saks, 1990). The opinions provided are not designed to

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help the examinee; in some instances, the opinions offered may conflict with the litigant’s wishes.

The psychologist retained to serve as an expert witness cannot assume that the information received from the litigant is accurate. Litigants may not even be voluntary participants in the evaluation. The possible outcomes of litigation can create tremendous motivation for the litigant to manipulate the evaluator. It is counterproductive to trust the presentation of such highly invested examinees without verification.

The alliances that a psychologist maintains may differ depending on the context of the service provided. Although a psychologist providing treatment typically forms a therapeutic alliance with the patient, such an alliance with a forensic examinee may not be necessary or appropriate (S. Greenberg & Shuman, 1997). The psychologist retained as an expert witness forms an alliance with the truth. The investment in determining and reporting the truth may make problematic the establishment of rapport between examiner and examinee. Rapport may be misconstrued as an offer of advocacy and may lure the examinee into a level of disclosure that is not in the examinee’s best legal interest. A posture of respectful receptivity with an arms-length, or dispassionate, mien may be the most appropriate posture to assume during the examination.

The context in which the evaluation is performed also affects the methodology used by the psychologist. Forensic psychological evaluations require a broader base of information sources than is typical of clinical practice, a base that extends well beyond the self-report of the examinee (Denney & Wynkoop, 2000). In contrast to the urgency that is often required in the provision of clinical evaluation services, psychologists practicing in forensic contexts must take the time necessary to ensure that the broad base of information that is needed (e.g., interviews, observations, records, test data) can be obtained and thoroughly reviewed before conclusions are offered.

The Distinction Between the Roles of Expert Witness and Treating Doctor

The distinction between the roles of treating doctor and forensic psychological expert has been the focus of some discussion in forensic psychology ethics (e.g., J. M. Fisher, Johnson-Greene, & Earth, 2002; S. Greenberg & Shuman, 1997; Iverson, 2000). Both of these roles are subsumed under the first ABA role definition cited earlier, that of “offering expert opinions and testimony concerning present scientific or clinical knowledge” (ABA, 1989, Standard 7-1.1, <f 6). In the treatment role, the psychologist may be required to provide records to, or testify before, the

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court on a legal matter in which the psychological functioning or treatment of a patient may be relevant to the court. In such instances, the psychologist is considered a fact witness,1 testifying about diagnostic impressions and the facts of the treatment.

Opinions about the clinical interpretation of data are relevant contribu- tions, but the treating therapist rarely has accomplished an arms-length, comprehensive assessment that would lead to defensible opinion on the psycholegal issue. Although there is controversy about whether the treating clinician should offer opinion on the ultimate issue before the court, the treating psychologist must limit opinion to that for which adequate data has been gathered. For example, a therapist might opine about the likely impact of the child patient’s visitation with a parent the therapist has never met, if the therapist makes clear the limitations of that opinion (i.e., that it is based only on the child’s and possibly other parent’s presentation; that the therapist is an advocate for the patient and has not “heard the other side of the story”; that the interpretation of data collected in therapy is more subjective and potentially less reliable than data gathered from a range of sources including objective measures, careful records review, collateral consultation, and so on). Even with such careful statement of these limita- tions, the therapist testifying about matters before the court must be aware of the potential for the court to misconstrue or misuse the opinion data. The therapist who has risked this misuse of data may find little support in the professional community for offering opinion derived through provision of psychotherapy as an expert evaluation of the forensic issue (S. Greenberg & Shuman, 1997; Heilbrun, 1995, 2001; Melton et al, 1997). The distinc- tion, then, is between being an expert clinician and being a forensic examiner for the purpose of developing an opinion, to be offered in court, on a psycholegal matter. Both may function as experts in the court, and the clinician may be able to provide expert opinion on the clinical data, but generally the clinician has insufficient data to offer an opinion on the matter before the court.

To facilitate clinical treatment, the treating doctor may provide diag- nostic impressions prior to performing a complete review of relevant records, interviewing collateral sources of information, conducting thorough psycho- diagnostic testing, or otherwise performing an evaluation adequate to answer questions before the court “with a reasonable degree of certainty.” In contrast

‘The distinction between fact witness and expert witness, although common in psychological writings, is not found in the Federal Rules of Evidence (FRE; 1975). The FRE (Article VII, Opinions and Expert Testimony) distinguishes only between expert and lay witnesses, and it is the court that makes the determination for any given case. The term fact witness is not found in the FRE.

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to the clinical role, the forensic psychological expert role requires (a) a review of all materials and completion of all procedures upon which to base an opinion sufficient to withstand judicial scrutiny and (b) an objective and judgmental position that may be impossible for the typically accepting and nonjudgmental clinician to achieve (Shuman & Greenberg, 1998).

The term treating doctor has at times been used inappropriately to describe all clinical activities, such as clinical diagnostic evaluations that do not involve remedial intervention or advocacy (Bush, 2004b). Although clinical evaluations are typically performed to facilitate therapy, they are not intended to be therapeutic in and of themselves. Thus, the goals, assumptions, and alliances of the clinical examiner may more closely parallel those of the forensic examiner than those of the treating therapist.

The distinction between treating doctor and expert witness is limited and is insufficient to understand the forensic roles of psychologists (Bush, 2004b). Heilbrun (2001) described five possible roles for mental health professionals in forensic assessment contexts: clinical or court-appointed evaluator; defense, prosecution, or plaintiffs expert; scientific advisor to the court; consultant; and fact witness. This broad description of roles better reflects the breadth of psychologists’ potential professional forensic involvement.

Blurring of Professional, Clinical, and Forensic Roles

The role held by the psychologist has implications for objectivity and accuracy in the presentation of information to the court and, by extension, the accuracy of judicial determinations (Shuman & Greenberg, 1998). Blur- ring of professional, clinical, and forensic roles has the strong potential to invoke conflicts of interest that negatively affect one or more of the roles (Shuman & Greenberg, 1998). Psychologists have a responsibility to recog- nize the potential for conflicts of interest in dual or multiple relationships with parties to a legal proceeding and to seek to minimize their effects (Standards 3.05, Multiple Relationships, and 3.06, Conflict of Interest, of the American Psychological Association’s [APA’s] Ethics Code, 2002; Specialty Guidelines for Forensic Psychologists [SGFP] IV, Relationships, subsection D, from the Committee on Ethical Guidelines for Forensic Psy- chologists, 1991). In general, to maximize objectivity, these roles should not be combined in a single case (Denney, 2005; Heilbrun, 2001).

One potential exception to the principle of avoiding dual relationships may be seen in the psychologist who transitions from the role of examiner to that of trial consultant after all evaluation-related responsibilities have been completed. For example, a psychologist who is retained by a criminal defense attorney to conduct an evaluation and provide verbal feedback,

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who is asked to not write a report, and who will not later testify might appropriately transition to the role of consultant. The psychologist in this scenario will have completed the role of examiner and will no longer be required to maintain impartiality.

Some forensic mental health professionals want to have it both ways, to be healers and to serve the adversary system (Stone, 1984). L. R. Green- berg and Gould (2001) took the position that, in some situations, psycholo- gists may ethically have it both ways. They described a “hybrid role” in which the treating psychologist whose patients have impending or ongoing litigation should be sensitive to the unique experiences and needs of such patients, should be aware that the litigation will likely impact the therapy, and should possess many of the practice-related traits of the forensic exam- iner, while maintaining firm limits regarding the nature of the opinion testimony provided (L. R. Greenberg & Gould, 2001). As these researchers described, although the treating psychologist may provide opinions regarding diagnosis, treatment, and prognosis, “the treating expert generally declines to express opinions on psycholegal issues (e.g., custody recommendations and parental capacity)” (p. 477). When overlapping or multiple roles are adopted, it is how the overlap is managed that distinguishes ethical conduct from misconduct.

Although psychologists may define the factors that compose a forensic psychological evaluation and the factors that characterize a competent expert witness, it is ultimately the court that determines what evidence will be allowed and who will be considered an expert in a particular case. The adversarial system is designed to provide the checks and balances for deter- mining the adequacy (relevance and reliability) of the psychologist’s work product. It is the psychological sophistication of the attorneys, trial consul- tants, and trier of fact involved in the case that will determine the effective- ness of the adversarial system for cases in which psychological functioning is at issue. It is the responsibility of the psychologist to provide education to those who do not appreciate the threats to impartiality and to attempt to maintain clear distinctions in professional roles.

THE ADVERSARIAL ENVIRONMENT

Expert witnesses play a prominent role in the U.S. litigation process (Crown, Fingerhut, & Lowenthal, 2003); however, the adversarial nature of the U.S. legal system presents unique challenges for psychologists. A primary issue that is unique to many forensic situations is that the prac- titioner’s opinions may be challenged or questioned. The “opponent” mount- ing this challenge is an individual or team of individuals who question the

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practitioner’s methods, opinions, and qualifications. A psychologist retained by the defense attorney in a civil case or by the prosecution in a criminal case to provide an “independent” opinion will be seen by some examinees as an opponent, a perception that may alter the examinee’s behavior during the exam. The perception of the psychologist as an opponent leads to many of the ethical dilemmas that are faced by forensic psychologists.

The adversarial environment may also pit psychologists against those who have retained their services. The attorney who has retained a psycholo- gist to perform an evaluation has an allegiance to the client and must diligently advocate for the client. In contrast, the examining psychologist has a responsibility to remain objective. Although retained by the attorney, the psychologist has an allegiance to the court. This inherent clash between the attorney as advocate and the expert witness, whose single most important obligation is to approach each question with independence and objectivity (Crown et al., 2003; Lubet, 1999), is also a source of ethical conflict for psychologists.

Psychologists are not always adequately prepared by their education and predoctoral training for these challenges. Thus, for many psychologists, the transition from the classroom or clinical setting to a forensic environment may involve a substantial paradigm shift and a corresponding struggle with the ethical, moral, and legal issues involved (Martelli, Bush, & Zasler, 2003). The most logical approach to both advancing ethical practice and availing the legal system of one’s expertise may be to develop an increased sensitivity to the disparities between conflicting interests and ethics.

THE NEED FOR INFORMATION ON ETHICS IN FORENSIC PSYCHOLOGY

The pulls to sacrifice objectivity, the differences between clinical and forensic activities, and the enticement to step beyond the boundaries of one’s competence all provide opportunities for ethical misconduct. Particularly in today’s health care environment, in which shrinking reimbursement for services is often coupled with increased time-consuming clerical require- ments, the lure of higher fees for one’s services may draw inadequately prepared clinicians into professionally dangerous waters. Similarly, financial incentives may lead even the most qualified forensic psychologist into uneth- ical behaviors that are harmful to the retaining party, examinee, legal system, and profession of psychology. An awareness of the common ethical chal- lenges in forensic psychology can help psychologists examine their own practices and the practices of their colleagues.

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APPLYING GENERAL BIOETHICAL PRINCIPLES IN FORENSIC ARENAS

All ethical principles are based on fundamental human values. Values that a society deems important, such as the right to self-determination and the right to quality health care, are applied to specific industries and professions. Beauchamp and Childress (2001) offered a model of biomedical ethics that has been widely adopted by writers in a variety of health care specialties, including psychology. The model is composed of four basic principles: autonomy, nonmaleficence, beneficence, and justice. Psycholo- gists may recognize the last three principles from the APA Ethics Code. The first principle, autonomy, is also present in the Ethics Code, embedded in General Principle E (Respect for People’s Rights and Dignity).

Autonomy refers to self-determination, the ability to make decisions regarding one’s life. Nonmaleficence is closely related to the Hippocratic Oath: First, do no harm. Beneficence takes clinician responsibility a step further by requiring an attempt to promote that which is beneficial to the patient. In health care settings, justice typically refers to the equitable distribution of the burdens and benefits of care (Hanson, Guenther, Kerkhoff, & Liss, 2000). Stone (1984) noted that “to many moral philosophers, justice is itself a beneficence” (p. 71). He elaborated as follows:

Justice is a beneficence to a society of unidentified persons—that is, to the general good. In contrast, the doctor’s practical ethical duty is to ease the suffering of particular identified patients. Medicine has not yet solved the problem of how to balance the particular good of the identi- fied patient against the general good of the unidentified masses. We lose our practical ethical guidelines when we try to serve such greater good in the courtroom, (p. 71)

Biomedical ethical principles can be readily applied to most ethical challenges in clinical psychology where the clinician’s goal is to help patients, to avoid harm, to respect the wishes of patients regarding their treatment, and to practice in a just and fair manner. However, in an adversarial judicial system, the application of these principles may initially appear to be far more challenging.

In forensic practice, psychologists have a responsibility to respect the rights of examinees and other clients to determine their involvement in psychological services. Examinees participate in independent psychological evaluations more or less of their own accord, albeit at times under the threat of negative consequences should they choose not to participate. In legal contexts, the concepts of “nonmaleficence” and “justice” are closely tied (Martelli et al., 2003). Forensic psychologists have a responsibility to treat

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examinees with courtesy, dignity, and fairness. Beyond the possibility of invoking emotional reactions to evaluation questions or tasks, practitioners must not bring direct harm to examinees during evaluations. Nevertheless, the results of forensic psychological evaluations and subsequent testimony have the potential to result in considerable negative effects on the lives of examinees. It is the psychologist’s responsibility to perform a fair evalua- tion and to present the findings objectively and dispassionately. The legal decision maker then has the task of ensuring a just outcome. An examinee who believes he or she has been treated fairly and respectfully is less likely to perceive the examiner as being maleficent, even given an unfavorable determination.

For forensic examinations, helping the examinee is not a primary goal of the examiner. Helping the trier of fact to make an appropriate determination taking into account the examinee’s cognitive or psychological functioning is a goal. The examinee may or may not benefit from the examination findings. Thus, the principle of beneficence as it relates to forensic psychological services may generally fall within the ambit of the justice system rather than the individual examinee.

Although helping the examinee may not be a primary goal of the examiner, there are nevertheless situations in which the examiner is ethically obligated to assist the examinee. When evidence of maleficence is observed in the course of professional duties, forensic psychologists have a responsibil- ity to report or ameliorate it, with strongest advocacy taken on behalf of the most vulnerable individuals.

Applying bioethical principles in forensic practice can be more complex still. For example, psychologists hired as trial consultants by defense attorneys in civil litigation cases strive to harm the plaintiffs case and, by extension, the plaintiffs financial security. One of the psychologist’s roles is to identify errors in the work of the psychologist retained by the plaintiffs attorney, errors that may lead to a decision for the defendant, even if the psychologist believes that the plaintiff actually deserves to win the case. In such a situation, determining whether justice was served may be a difficult thing to do.

The adversarial process is built on the assumption that right will prevail if the responsibilities of all participants are fully discharged. It is not the forensic psychologist’s responsibility to ensure retention by the party deserv- ing to prevail. It is the forensic psychologist’s responsibility to thoroughly and adequately perform his or her duties; if the resultant outcome favors the “unjust,” we believe that the psychologist must forgo a sense of personal responsibility for that injustice. The differences between clinical and forensic contexts notwithstanding, we believe that the Beauchamp and Childress (2001) model is useful in forensic psychology and have chosen to use their

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model in the more comprehensive decision-making model that is presented later in this chapter.

APPLYING PSYCHOLOGICAL ETHICS IN FORENSIC ARENAS

The 2002 APA Ethics Code is the 10th version of the Ethics Code, and it reflects the continuing evolution and maturation of the profession of psychology. The Ethics Code applies to all psychology specialty areas, including forensic psychology. However, sections of the Ethics Code may hold more or less relevance for various aspects of forensic practice than they do for clinical psychology or other areas of practice. For example, it may be more common to have one’s credentials called into question (Stan- dard 2.01, Boundaries of Competence) in forensic practice than it is in clinical practice.

Understanding changes between different versions of the APA Ethics Code that are relevant to forensic practice is essential when determining appropriate professional conduct.2 Because previous texts addressed the changes to the Ethics Code in some detail (e.g., C. B. Fisher, 2003a; Knapp & VandeCreek, 2003), this section provides only a brief overview, with emphasis on those changes that are most relevant to forensic psychology.

General Principles

The 2002 APA Ethics Code’s General Principles reflect increased emphasis on the model of biomedical ethics described by Beauchamp and Childress (2001). This model centers on four ethical principles: autonomy, beneficence, nonmaleficence, and justice. Autonomy, the right to self- determination, remains reflected in General Principle E (Respect for People’s Rights and Dignity). Beneficence and nonmaleficence (new General Princi- ple A) were previously reflected in the Ethics Code but now emphasize, in greater detail, the goal of assisting without harming those with whom psychologists work. Justice, a new addition to the Ethics Code, is addressed in General Principle D. The principle of justice emphasizes the right to equality in access to psychological services and in the nature of the services provided. It also emphasizes for psychologists the importance of ensuring that potential biases and limitations of professional competence do not result in unfair practices. The Ethics Code was reduced from six principles

2 For interested readers, comparisons of the two APA Ethics Codes can be found on the APA Ethics Office Web site at https://essays.homeworkacetutors.com/write-my-essay/apa.org/ethics/codecompare/html. The comparisons describe which principles and standards were added, deleted, or incorporated into other areas of the Ethics Code.

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to five. Prior principles, titled “Competence” and “Social Responsibility,” were deleted. Issues of professional competence, on the basis of the underly- ing principle of nonmaleficence, now compose Standard 2 (Competence). Previous content related to social responsibility was incorporated in the Preamble and Introduction.

Ethical Standards

The elimination of a separate group of standards on forensic activities (Standard 7) is of particular significance and interest to psychologists who are involved in forensic practice. Of the five subsections of Standard 7 in the 1992 APA Ethics Code (APA, 1992), four were deleted, and the content related to role clarification was integrated into Standard 3 (Human Rela- tions) in the 2002 Ethics Code. The purpose of deleting Standard 7 was to eliminate the focus on any one specialty area and to keep the focus of the Ethics Code on issues that are relevant to psychology in general. The Ethics Code Task Force intended to make the Ethics Code as

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