Assignment 2: RA: Case Analysis

5 DOCUMENTATION OF FINDINGS

AND OPINIONS

Consumers of forensic psychological services have a right to expect and receive competent services. For services to be considered competent, the opinions offered must be based on "information and techniques sufficient to substantiate their findings" (Standard 9.Ola, Bases for Assessments, of the American Psychological Association's [APA's] Ethics Code, 2002). The law requires that expert opinions provided, and the methods of data collec- tion and reasoning on which they are based, be generally acceptable within the professional community (Frye v. United States, 1923) and be able to withstand scientific scrutiny (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993). It is generally the documentation of one's work that allows a reviewer to determine whether the evaluation performed was relevant, reliable, and valid.

To enable review, psychologists have an ethical obligation to appropri- ately document and maintain records of their work (Standard 6.01, Docu- mentation of Professional and Scientific Work and Maintenance of Records), and the documentation must be accurate (Standard S.Olb, Avoidance of False or Deceptive Statements). The Specialty Guidelines for Forensic Psy- chologists (SGFP; Committee on Ethical Guidelines for Forensic Psycholo- gists, 1991) state,

When forensic psychologists conduct an examination or engage in the treatment of a party to a legal proceeding, with foreknowledge that

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http://dx.doi.org/10.1037/11469-005 Ethical Practice in Forensic Psychology: A Systematic Model for Decision Making, by S. S. Bush, M. A. Connell, and R. L. Denney Copyright © 2006 American Psychological Association. All rights reserved.

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their professional services will be used in an adjindicative forum, they incur a special responsibility to provide the best documentation possible under the circumstances. (VI, B, Methods and Procedures)

Determining the nature of documentation that is "sufficient to withstand scrutiny in an adjudicative forum" and "the best documentation possible" may be a difficult task. However, documentation that is linked to a competent evaluation and is of sufficient detail to allow an independent peer reviewer to arrive at similar conclusions or clearly identify how the conclusions in a report or testimony were reached would most likely withstand adjudica- tive scrutiny.

Documentation throughout the process of forensic evaluation or treat- ment is necessary to ensure that competent services are provided and to assist the legal decision maker. Following the provision of services, the availability of the documentation for reviewers helps to determine that competent services were provided. In addition, such documentation protects clients, the public, and the psychologist (APA, 1993; Barsky & Gould, 2002). The foreknowledge by the forensic psychologist that his or her records may be reviewed provides considerable incentive to ensure that all facets of the evaluation or treatment process are performed at the highest possible level of competence. Thus, maintaining appropriate records is consistent with the APA Ethics Code's General Principles A (Beneficence and Nonma- leficence) and D (Justice) and is an underpinning of competent forensic psychological services to which consumers have a fundamental right.

SCOPE OF INTERPRETATION

The integration of scientific data and reasoning is important for rele- vant and reliable psychological decision making (Heilbrun, 2001). Psycho- logical conclusions of value to the trier of fact tend to be based on a combination of individualized (ideographic) and group-referenced (nomo- thetic) approaches to data interpretation. Information specific to the exami- nee is collected and compared with the performance of one or more groups of interest. Cognitive, psychopathologic, or behavioral data that differ from the comparison groups must be understood in terms of the individual's unique life circumstances, with an emphasis on variables that are known to affect such performances. Opinion based on reasoning that lacks either the ideographic or nomothetic approach is weakened. The APA Ethics Code states, "Psychologists' work is based on established scientific and professional knowledge of the discipline" (Standard 2.04, Bases for Scientific and Profes- sional Judgments). An opinion that is not grounded in objective data and scientific principles may be insufficient to meet the requirements of this standard.

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Legal decision making tends to be dichotomous in nature, with referral sources and triers of fact preferring definitive statements regarding diagnosis, proximal cause, and other determinations relevant to the forensic issues at hand. Requests or demands for definitive statements tend to be at odds with the more probabilistic statements that are generally acceptable to clinicians and to clinical referral sources (Koocher & Keith-Spiegel, 1998). There is risk in offering definitive statements in forensic contexts that would traditionally have been offered as statements of possibility in clinical con- texts. Such statements may be seen as inaccurate or misleading, in violation of the APA Ethics Code (Standard 5.01, Avoidance of False or Deceptive Statements) and counter to professional specialty guidelines (SGFP VII, A and B, Public and Professional Communications). It is important for the psychologist, having conducted a thorough evaluation, to assert opinions as strongly as the data merits but also to describe the limitations of those opinions.

Psychological capacities are a component of many legal questions, and psychologists are often retained to evaluate and comment on such capacities. However, there may be occasions when the psychologist's opinion regarding the legal question itself is requested. Offering an opinion on the ultimate legal question threatens to invade the province of the court, because it is specifically the task of the trier of fact to make this determination. Psycholo- gists who attempt to answer the legal question directly are vulnerable to overstepping the bounds of their expertise and to inducing their data to support opinion about moral, political, and community-value components not actually within the expertise of psychology (Heilbrun, 2001).

Although there is no prohibition against answering the legal question, FRE 704 (FRE, 1984) explicitly permitting it, with some specific exceptions, and ethical guidelines cautioning that opinions offered be supportable, Heil- brun (2001) did identify as an emerging principle of mental health assessment that the ultimate legal opinion is generally not the appropriate focus for the evaluation. Similarly, Melton, Petrila, Poythress, and Slobogin (1997) noted that when forensic practitioners venture to opine on the ultimate issue before the court, they risk overstepping the bounds of competency, even egregiously, by opining about issues outside their areas of expertise or unsupportable by the data. Although there is vigorous debate on this issue within the forensic community, and there is some support for going to the ultimate issue if the data do, indeed, support the opinion, psychologists must give careful consideration to the full range of implications of doing so. Grisso (2003) said, "An expert opinion that answers the ultimate legal question is not an 'expert' opinion, but a personal value judgment" (p. 477).

Psychologists who practice in contexts in which it is expected or re- quired that they answer the legal question may make special effort to temper their opinions, by including cautionary language and caveats regarding the

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limitations of, and potential influences on, their opinions. The following example may be useful to consider when responding to an ultimate legal question, for example, "How do you think the court should apportion paren- tal responsibility for caregiving for this child?" One might first briefly hesitate to allow time for objection to be offered. Then one might preface the response by making an explicit statement about that being the ultimate issue and therefore the province of the trier of fact, and then couch one's opinion within that limitation, saying something to the effect of,

Although that question is, of course, a matter for the court to determine, and the court may have a great deal more information than do I to arrive at that determination, I can offer the following observations and opinions, based on the data that I have collected. It is my opinion that . . .

Psychologists may be retained by attorneys or others to answer specific, rather than general, questions. In such instances, psychologists may wonder to what extent they should document potentially related issues that fall outside the question posed. For example, a psychologist may be asked to determine whether a plaintiff has objective memory deficits subsequent to a motor vehicle accident. If the results of the evaluation reveal no cognitive deficits but are consistent with adjustment-related depression, would it be appropriate for the psychologist to simply state that memory was within normal limits, or is the psychologist also responsible for reporting emotional disturbance? The SGFP state, "A full explanation of the results of tests and bases for conclusions should be given" (VII, A2, Public and Professional Communications). The SGFP further state, "Forensic psychologists do not, by either commission or omission, participate in a misrepresentation of their evidence, nor do they participate in partisan attempts to avoid, deny, or subvert the presentation of evidence contrary to their own position" (VII, D). However, the forensic practitioner is also cautioned to report data relevant to the legal question but not to include data extraneous to the question at hand.

Although the psycholegal questions investigated by psychologists and documented in reports may be specifically defined by the client, the psycholo- gist's responsibility in many instances extends beyond the narrow scope of the referral question. For example, some referral sources may not fully ap- preciate the potential psychological issues involved and thus may not know how to pose the question that they want answered. In addition, the concept of "due diligence" underscores the psychologist's ethical and professional responsibility to address and document substantial medical or psychological problems that were not considered in the referral question (Bush & National Academy of Neuropsychology [NAN] Policy & Planning Committee, 2005):

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If failure to document another condition can result in harm to the examinee, the option of nondisclosure may not be ethically viable. If this becomes a point of concern, the neuropsychologist should seek clarification from the retaining party regarding the reason for the limita- tion posed, present his/her reasoning regarding the presence of a different condition, and consider the judiciousness of accepting cases in which limitations are placed on independence, (p. 1001)

Similarly, even though the court may have narrowly defined a custody evaluation referral—asking the psychologist to evaluate the potential impact of one of the parents' alleged alcohol abuse on the child, for example— the psychologist would nevertheless need to include in reports any other psychopathology or parenting behavior that would likely impact on the child's well-being. This does not mean, however, that the evaluator must report extraneous data that, however interesting or outrageous, has nothing to do with the child's best interest. An example might be the admission, on the part of the litigant, of a transgression that occurred one time, many years before. If the litigant has since demonstrated a clear pattern of acting more appropriately with respect to that behavior or issue, and there is no apparent impact of the earlier behavior on current functioning, it maybe inappropriate to include it in the report. It is, nevertheless, in the evaluator's notes and records, and is discoverable.

Likewise, psychological evaluations conducted in criminal settings of- ten have quite specific referral questions, such as whether the defendant was insane at the time of the alleged offense or competent to waive the Miranda warning and confess at a particular time in the past. Ordinarily, it is prudent to limit the scope of documented opinions regarding such matters to the referral question, as well as the underlying clinical basis for the opinion. However, when referral questions do not address current competency to proceed, and the evaluator has concern about the defendant's ability to understand the nature and consequences of the proceedings and to assist properly in his or her defense, the evaluator has an ethical responsi- bility to raise the question of the defendant's competency (General Prin- ciple A, Beneficence and Nonmaleficence). As this example illustrates, evaluators in the criminal setting have an ethical obligation to safeguard defendants' U.S. Constitutional rights. In this case, the 5th and 14th Amend- ment rights to due process necessitate a defendant's competency to proceed. Because prosecuting an incompetent defendant violates due-process rights, evaluators must be cognizant of examinee competency and raise the issue when it previously has not been addressed.

The range of issues to be explored and potentially addressed in the report should be anticipated so that the entire range of possibilities can be included when gaining informed consent. The litigant needs to know and

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have time to consider, for example, that questions may be asked about acting out in adolescence. When there is a sealed record of juvenile adjudica- tion, the litigant may need to have time to consult with counsel regarding rights and responsibilities in responding to the examiner's question. When an issue is irrelevant, because it has no impact on the question before the court, it legitimately can be, and should be, omitted from the report. How- ever, in global assessment of psychological functioning, such as might be requested in a parenting assessment, virtually no issue can be automatically assumed to be irrelevant, and caution is in order when considering whether to omit a finding.

MONITORING SELF-BIAS

The potential for psychologists to sacrifice objectivity in the collection and documentation of information may be particularly prevalent in forensic practice. Failure to consider the possibility of self-bias in forensic practice may represent compromised professional integrity. The SGFP state, "As an expert conducting an evaluation, treatment, consultation, or scholarly- empirical investigation, the forensic psychologist maintains professional in- tegrity by examining the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses" (VI, A2, Methods and Procedures). Psychologists involved in forensic practice must be sensitive to potential sources of bias and guard against the impact of such biases on their work. Although biases may impact data collection and interpretation, their influence tends to become evident in the practitioner's documentation and testimony.

Financial Incentive

The potential for immediate or future financial gain provides consider- able incentive for professionals to obtain and present findings that support the position of the retaining party. Although it may be that some attorneys are interested in objective psychological conclusions whether or not their positions are supported, it is certain that a substantial number of attorneys only want to receive psychological reports that unequivocally support their position. Psychologists must guard against threats, however subtle, to their objectivity resulting from financial considerations or from the social pressure to be a part of the "defense team."

Inferential Bias

Coexisting with the potential for financially motivated bias is the susceptibility of psychologists to inferential bias (Deidan & Bush, 2002).

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The use of general rules (e.g., heuristics) in the inferential process can result in biases (Faust, 1986) and lead to ethical misconduct. Inferential biases include (a) the availability and representative heuristics, (b) fundamental attribution error, (c) anchoring, (d) confirmatory hypothesis testing, and (e) reconstructive memory. Adverse effects of inferential bias for psycholo- gists include misdiagnosis, inappropriate treatments, exacerbation of symp- toms, and inaccurate expert opinions (Darley & Gross, 1983; Sweet & Moulthrop, 1999b). Although these biases may occur in nonforensic psychol- ogy practices, the potential for referral sources to repeatedly select prac- titioners with biases that support their positions may reinforce the bias for the practitioner. Brief descriptions of these five inferential biases follow.

Availability and Representative Heuristics

The availability heuristic (Kahneman & Tversky, 1973) occurs when the psychologist attempts to determine the frequency of occurrence of a particular situation, such as a certain diagnosis. Situations stemming from information that is readily available in the psychologist's memory (e.g., frequently encountered diagnoses) are perceived as being more likely to occur, and the psychologist is unlikely to search for less accessible alterna- tive explanations.

The representative heuristic (Kahneman & Tversky, 1973) involves cate- gorizing information according to how closely it approximates the character- istics of certain groups. For example, psychologists may classify examinees as "probable malingerers" or "unlikely malingerers" on the basis of their experience with prior examinees with similar symptoms, injuries, or other characteristics.

Fundamental Attribution Error

Fundamental attribution error is the tendency for individuals involved in a situation to overattribute their behaviors to situational requirements and for observers of the same situation to overattribute the individual's behaviors to stable personal characteristics (Ross, 1977). This dynamic makes it more likely for psychologists to attribute patient or examinee symptoms to character traits, whereas patients or examinees will be more likely to attribute their symptoms to external factors.

Susceptibility to this type of error may result from education and training paradigms and from philosophical positions that psychologists may adopt as a result of their experiences. Psychologists make judgments about diagnostic conditions on the basis of their professional experiences and their interpretation of the psychological literature. For example, an expert with considerable experience with traumatic brain injuries may diagnose brain injury when symptoms have psychiatric etiology, whereas a psychologist

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experienced in evaluating and treating psychotic conditions may infer psy- chiatric psychogenic etiologies for brain injury sequelae. Some examiners hold extreme positions with regard to certain diagnoses, to the extent that the specific details related to a certain case may have little impact on the opinions rendered. Applying predetermined or formulaic conclusions to individual cases is clearly unethical (Standards 9.06, Interpreting Assessment Results, and 3.01, Unfair Discrimination).

Anchoring

Anchoring involves failure to revise initial impressions, beliefs, or pre- conceptions despite being faced with new, often contradictory, information. In psychological practice, anchoring may be seen (a) in the formation of preconceptions or opinions from information attained prior to meeting, interviewing, or evaluating a patient or examinee (i.e., prior knowledge) or (b) in the formation of preconceptions or opinions from previous condi- tions or diagnoses associated with a patient or examinee (i.e., labeling; Cantor & Mischel, 1979).

Psychologists' opinions may also be biased by the timing of receipt of information about a patient or examinee, with information obtained first carrying greater weight than information obtained later. Preconceived im- pressions tend to be durable; once formed, they are difficult to change.

Confirmatory Hypothesis Testing

Pursuing information in such a manner as to influence the information obtained from the person providing the information is known as confirmatory hypothesis testing (Snyder & Campbell, 1980). Psychologists that use a hypothesis-testing approach when gathering background information or ad- ministering tests are particularly prone to this type of bias. Although a hypothesis-testing approach allows practitioners to pursue information that they consider to be most relevant to specific referral questions and the unique circumstances of each case, confirmatory hypothesis testing bias may result in psychologists eliciting incomplete or inaccurate information.

Reconstructive Memory

Filling in gaps in memory or altering memory to make it consistent with current experience is known as reconstructive memory (Wells, 1982). Although reconstructive memory decreases the likelihood that information will be recalled accurately, people nevertheless tend to be overconfident in their memories and their ability to reconstruct events, conversations, or other important events and information after a period of time has lapsed. This type of bias may be particularly relevant for practice activities that involve evaluation or other psychological services provided for a number

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of hours across multiple sessions. Delays in completing notes or reports increase the likelihood that some information will be forgotten and later replaced by information that confirms current opinions.

Addressing Self-Bias Proactively

Being aware of the potential for bias in formulating opinions is necessary but not sufficient to avoid falling victim to bias. Taking steps to minimize potential sources of bias and their impact on psychological opinions should be considered an integral component of the forensic evaluation (Brodsky, 1991; Martelli, Bush, & Zasler, 2003). Strategies designed to minimize the potential for bias may involve considering alternative explanations that may disconfirm initial hypotheses (Arkes, 1981; Arnoult & Anderson, 1988), writing explicit arguments for and against proposed opinions (Fischoff, 1982), and generating self-examination questions when formulating opin- ions (Sweet &. Moulthrop, 1999b). To reduce the potential influence of inferential biases, Deidan and Bush (2002) offered multiple recommenda- tions specific to each of the inferential biases discussed earlier.

REPORTS

The written report is the primary vehicle by which the forensic psychol- ogist communicates opinions about the forensic issues of interest that may assist the legal decision maker. Although written reports are not required for all forensic services performed, the vast majority of forensic referrals result in a written report (Melton et al., 1997). Forensic psychological reports tend to differ from clinical reports. Authors of forensic mental health texts describe the elements to be included in forensic reports (e.g., Barsky & Gould, 2002; Heilbrun, 2001; Melton et al., 1997). Minimally, a forensic report includes the purpose of the evaluation, the methods and procedures, the results, and the conclusions. The report should be sufficiently detailed and scientifically based to allow the reader to follow the genesis of the writer's conclusions or opinions (Heilbrun, 2001). Although the report may be the end product of the forensic consultation, it sometimes occurs that testimony, by deposition or in court, is required, and an organized and well- supported report can serve as the foundation for organized, well-supported testimony (Heilbrun, 2001). In contrast, a poorly written report may be used to discredit and embarrass the practitioner (Melton et al., 1997).

The SGFP state,

Forensic psychologists, by virtue of their competence and rules of discov- ery, actively disclose all sources of information obtained in the course of their professional services; they actively disclose which information

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from which source was used in formulating a particular written product or oral testimony. (VII, E, Public and Professional Communications)

In addition to listing sources of information used, full disclosure would seem to include acknowledging those resources that may have been of value but were unavailable.

Psychologists may be asked to modify reports with regard to format and content. However, any submitted report should be considered final for its purpose (Martelli et al., 2003). When factual errors are found subsequent to the release of the report, the examiner may elect to amend the correct information to the report or revise the original report and state within the revision that it is a corrected version and the rationale for the change. An amendment, rather than a rewriting, may be preferable in that there is less likely to be confusion about the opinion finally being offered, and about how it relates to any earlier opinions offered. The question, "Doctor, just how many reports of yours on this matter are floating around out there?" would be an unpleasant one to face. An amendment, clearly titled as such, is less vulnerable to such criticism.

A request to modify a report that comes from an invested party and reflects that party's self-interest in the outcome of a case represents a request for the psychologist to become a biased advocate, rather than an objective expert (Bush & NAN Policy & Planning Committee, 2005). Such requests should be considered carefully. There are very few acceptable reasons to modify reports once they have been completed, and any modification must ultimately reflect the beliefs of the psychologist rather than those of any other party.

Reproducing Examinee Statements

In criminal evaluation contexts, reproducing defendants' statements in psychological reports has the potential to violate the defendant's due- process rights. This issue arises when evaluating the sanity (mental state at the time of the alleged offense) of a defendant whose competency to proceed has not been established. Evaluating sanity generally requires, among other procedures, interviewing the defendant about the details of the alleged offense to better understand the defendant's intent, motivation, planning, organization, thought process, and general mental status at the time of the offense. Reproducing a defendant's recollected details of a crime can occasionally further the prosecutorial investigation by providing important clues and "leads" that were previously unknown. In essence, the defendant could inadvertently provide a confession that gives the prosecution addi- tional information to follow up on and use against him or her. This issue is addressed in the SGFP:

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G. Unless otherwise stipulated by the parties, forensic psychologists are aware that no statements made by a defendant, in the course of any (forensic) examination, no testimony by the expert based on such statements, nor any other fruits of the statements can be admitted into evidence against the defendant in any criminal proceeding, except on an issue respecting mental condition on which the defendant has introduced testimony. Forensic psychologists have an affirmative duty to ensure that their written products and oral testimony conform to this Federal Rule of Procedure (12.2c), or its state equivalent.

1. Because forensic psychologists are often not in a position to know what evidence, documentation, or element of a written product may be or may lend to a "fruit of the statement," they exercise extreme caution in preparing reports or offering testimony prior to the defen- dant's assertion of a mental state claim or the defendant's introduction of testimony regarding a mental condition. Consistent with the reporting requirements of state or federal law, forensic psychologists avoid includ- ing statements from the defendant relating to the time period of the alleged offense.

2. Once a defendant has proceeded to the trial stage, and all pretrial mental health issues such as competency have been resolved, forensic psychologists may include in their reports or testimony any statements made by the defendant that are directly relevant to supporting their expert evidence, providing that the defendant has "introduced" mental state evidence or testimony within the meaning of Federal Rule of Procedure 12.2(c), or its state equivalent. (VI, Gl and G2, Methods and Procedures)

When a defendant's competency to proceed is questionable, his or her competency to waive 5th Amendment rights to silence and avoidance of self-incrimination is also questionable. Ideally, a defendant's competency to proceed should be resolved before addressing sanity; however, it is not uncommon for courts to order mental health evaluations addressing both competency and sanity at the same time. It is generally less of a concern when the evaluation is requested by the defense, depending on work product rules in that particularly jurisdiction (see Melton et al., 1997).

There is little concern when the defendant is clearly competent to decide how much incriminating information he or she wants to provide the evaluator. The issue is also moot when the defendant does not provide incriminating information. However, there are times when either the compe- tency of the defendant is clearly questionable or the information the defen- dant provides is not only incriminating but also an integral factor in the clinical formulation for a diagnosis or forensic opinion on sanity. In such instances, the psychologist faces a dilemma—whether to provide incriminat- ing information in the report regarding a questionably competent defendant

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or not being able to explain the rationale for the forensic opinion. Both situations are ethically untenable.

As mentioned, it is simpler to address the competency issue first and have it resolved by the court prior to addressing the sanity issue, but the realities of the criminal setting often do not allow this to occur. One option to resolve this conundrum is to provide a report addressing the defendant's competency and a report addendum addressing the defendant's sanity. The main report contains all the standard clinical information leading to a diagnosis, as well as current mental status and competency to proceed issues. The addendum contains information relating to the investigative details of the offense, the defendant's explanation and description of the offense, and the forensic opinion regarding sanity. This method of reporting works particularly well when responding to court-ordered evaluations because the report and addendum can be sent to the court with a cover letter explaining that because of 5th Amendment issues, the two topics were separated. This information provides the court with the opportunity to release competency- related material first to resolve questions of the defendant's competency. The addendum can then be released to the defense for consideration of a sanity defense and to the prosecution if the defense intends to pursue a sanity defense. In this manner, the court effectively protects the defen- dant's constitutional rights, and the forensic examiner avoids an ethical conundrum.

Preliminary Reports

It is the practice of some psychologists who perform clinical evaluations and treatment in a forensic context to write a report that is considered, and may be labeled, a preliminary report, with the expectation that a "forensic" report may later be requested and produced. Such reports may list the differences between preliminary-clinical and more conclusive-forensic re- ports in the body of the report. This practice seems to invite the establish- ment of dual and conflicting roles that occur when transitioning from a clinical examiner to a forensic examiner.

In addition to inviting role conflicts, the use of preliminary reports may be problematic because they are generally offered when not all of the data have been collected, with the caveat that the report will be supple- mented when the remaining data are available. The problem with such a practice is that it demonstrates that the evaluator has come to a conclusion of some sort without data that were considered to be important enough to have been sought.

The following sections are taken from a hypothetical "Preliminary Neuropsychological Examination Report":

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Introduction section. The purpose of this preliminary neuropsychological evaluation was to examine the patient's neurological functioning from the perspective of her self-reported symptoms, cognitive abilities, behav- ioral presentation, disability status, and causality. This evaluation is considered preliminary because (a) not all potentially relevant back- ground information has been reviewed; (b) self-reported information has not been corroborated by additional, reliable sources; and (c) alternative explanations for reported and observed difficulties have not been thor- oughly considered.

Conclusions section. The results of the evaluation are consistent with a mild traumatic brain injury. The nature and extent of neuropsychologi- cal deficits is consistent with a total disability. However, the background information reported by the patient was taken at face value and requires verification by additional sources. .. . This evaluation, despite being preliminary, is considered complete and objective.

The lines from this hypothetical report raise questions of appropriate- ness for a number of reasons. First, the report is labeled preliminary, suggesting that it is being released prematurely, before the necessary information has been obtained and considered. Nevertheless, the report goes on to address forensic issues, such as disability status, in the absence of information that the examiner acknowledges is important. Finally, the examiner makes the misleading statement that there occurred a self-examination of objectivity, despite the existence of statements that are consistent with partiality.

RELEASE OF RAW DATA

The disclosure of raw test data to nonpsychologists, as may be required in forensic practice, presents a unique problem for psychologists (Rapp & Ferber, 2003). The problem involves determining "how to balance the discovery rules, which are designed to provide full disclosure of everything a party will rely on at trial, against the scientific, ethical, and contractual obligations of the psychologist1 and the test publisher's proprietary interests in the testing instruments" (Rapp & Ferber, 2003, p. 342). For litigation purposes, there is a well-established necessity to disclose the sources of information and methods on which an expert's opinions are based. FRE 705 states that

The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless

1 The term neuropsychologist was originally used here but was changed to psychologist to reflect the broader application of the quote in this context.

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the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. (FRE, 1993)

In contrast to the benefits of disclosure in litigation, far-reaching negative consequences may flow from wide dissemination of psychological evaluation methods and procedures. As a result, psychologists working in forensic contexts may struggle with how to negotiate the competing demands of the legal system and their profession.

The 2002 APA Ethics Code represents a significant departure from the 1992 Ethics Code (APA, 1992) and from other sources of ethical authority on the matter of release of test data. In the 1992 Ethics Code, psychologists were instructed to "make reasonable efforts to maintain the integrity and security of tests and other assessment techniques consistent with law, contractual obligations, and in a manner that permits compliance with this code" (Standard 2.10, Maintaining Test Security). In contrast, the 2002 Ethics Code distinguished test materials from test data. "Test materials refers to manuals, instruments, protocols, and test questions or stimuli" (Standard 9.11, Maintaining Test Security). Test materials do not include test data: "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 this Ethics Code" (Standard 9.11). Thus, the Ethics Code speaks to the importance of safeguarding psychological tests to avoid potential damage that would result to the profession and potential clients if such measures were made available to those who were not qualified to use them.

In contrast to test materials, Standard 9.04a, Release of Test Data, defines test data as "raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists' notes and recordings concerning client/patient statements and behavior during an examination." To address the problem of physically separating the test data from the test materials, Standard 9.04a states, "Those portions of test materials that include client/ patient responses are included in the definition of test data." Clarification from the APA Ethics Office indicated that once test materials have responses written on them, they "convert" to test data (Behnke, 2003). This position suggests that test materials, which enjoy protection under Standard 9.11, Maintaining Test Security, are no longer test materials and no longer enjoy such protection once they have answers written on them. This same premise apparently applies to test materials that are reproduced by examinees as their responses, such as verbal learning tests and visual reproduction tests.

Standard 9.04a, Release of Test Data, states, "Pursuant to a client/ patient release, psychologists provide test data to the client/patient or other persons identified in the release." That is, according to the APA Ethics Code, psychologists are to provide test data to anyone whom the client or

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patient specifies. In many forensic contexts, the attorney or court may determine to whom the data are released. Standard 9.04a does offer excep- tions to the obligatory release at the behest of the client or patient:

Psychologists may refrain from releasing test data to protect a client/ patient or others from substantial harm or misuse or misinterpretation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law.

Celia B. Fisher (2003b), PhD, Chair of the APA's Ethics Code Task Force, defined substantial harm as "reasonably likely to endanger the life or physical safety of the individual or another person or cause equally substantial harm" (p. 12). Forensic psychologists working with death penalty cases may represent an exception to this standard. Psychologists in such situations would likely not be able to defend withholding test data on the grounds that releasing the data could result in the application of the substantial harm of the death penalty to the examinee.

The misinterpretation or misuse clause may pose greater challenges for psychologists. Psychologists may wonder, "How could data not be misin- terpreted or misused in the hands of those not trained to interpret them?" They may further wonder, "How could misinterpretation or misuse not be harmful?" When psychologists have undergone years of education and train- ing to be competent to interpret psychological tests, they may find it unlikely that people who lack such training could interpret those tests appropriately. Rapp and Ferber (2003) noted that "the client's test answers, with the psychologist's analysis, are meaningless to, and likely to be misinterpreted by, anyone other than a specifically trained psychologist" (p. 353). However, C. B. Fisher (2003b) cautioned, "Before refusing to release test data under this clause, psychologists should carefully review relevant law. HIPAA (Health Insurance Portability and Accountability Act; U.S. Department of Health and Human Services [U.S. DHHS], 1996) does not recognize the protection of test materials as a legitimate reason to withhold designated record sets appropriately requested by a client/patient" (p. 12).

C. B. Fisher (2003b) also indicated that "The extent to which HIPAA, state privacy rules, and Standard 9.04 of the Ethics Code will conflict with test copyright laws will be determined over time" (p. 12). Such clarification has been provided by Richard Campanelli, Director of the Office for Civil Rights at the U.S. DHHS, the office responsible for the administration of the 1996 HIPAA. Campanelli stated,

Any requirement for disclosure of protected health information pursuant to the Privacy Rule is subject to Section 1172(e) of HIPAA, "Protection of Trade Secrets." As such, we confirm that it would not be a violation of the Privacy Rule for a covered entity to refrain from providing access to an individual's protected health information, to the extent that

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doing so would result in a disclosure of trade secrets. (Multi-Health Systems, 2003)

Thus, HIPAA does not prohibit psychologists from withholding test data when the potential for misinterpretation or misuse exists, and such action may be a viable option in some situations.

In forensic evaluation contexts, some HIPAA constraints are not rele- vant (Connell & Koocher, 2003; C. B. Fisher, 2003b). HIPAA states that information compiled in anticipation of use in civil, criminal, and adminis- trative proceedings is not subject to the same right of review and amendment as is health care information in general (§164.524(a)(l)(ii); U.S. DHHS, 1996). Although HIPAA may not fully apply to forensic evaluation cases, other relevant laws do apply.

The APA Ethics Code (Standard 9.04b, Release of Test Data) permits psychologists to release data, without client—patient consent, in response to a court order or other legal authority (C. B. Fisher, 2003b). However, psychologists need not automatically release data in such situations without taking steps to safeguard test materials. C. B. Fisher (2003b) stated, "Psychol- ogists may ask the court or other legal authority for a protective order to prevent the inappropriate disclosure of confidential information or suggest that the information be submitted to another psychologist for qualified review" (p. 12). The importance of maximizing test security in the context of requests for test data or materials has been emphasized by the NAN Policy & Planning Committee (2000b, 2005), and specific steps to safeguard test materials have been outlined.

Psychologists should avail themselves of additional sources of ethical and legal authority that address this issue. The SGFP (VII, A2a and A2b, Public and Professional Communications) and the Standards for Educational and Psychological Testing (SEPT; Standards 11.7, 11.8, and 11.9; American Educational Research Association, APA, & National Council on Measure- ment in Education, 1999) acknowledge the importance of maintaining test security and ensuring that only those qualified to interpret raw test scores be afforded access to do so. Standard 11.7 of the SEPT states that

Test users have the responsibility to protect the security of tests, to the extent that developers enjoin users to do s o . . . . When tests are involved in litigation, inspection of the instruments should be restricted—to the extent permitted by law—to those who are legally or ethically obligated to safeguard test security, (p. 115)

SEPT Standard 11.8 states, "Test users have the responsibility to respect test copyrights" (p. 115). When purchasing psychological tests, psychologists agree to uphold copyright laws. In SEPT Standard 11.15, the potential for misinterpretation of test data is addressed: "Test users should be alert to potential misinterpretations of test scores and to possible unintended conse-

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quences of test use; users should take steps to minimize or avoid foreseeable misinterpretations and unintended negative consequences" (p. 116).

Jurisdictional laws regarding patients' rights to access their medical records must also be considered. Such laws may conflict with ethical de- mands. When conflicts between legal and ethical requirements exist, psy- chologists are obligated to try to find ways to meet the requirements of both (Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority). In cases in which no solution adequately satisfies both demands, psychologists "ultimately must let their own personal conscience guide them" (Slick & Iverson, 2003, p. 2032).

These two potential courses of action (releasing or safeguarding raw test data) pit fundamental ethical principles against each other. Providing data to the client is consistent with respecting the right of the client to choose what is done with the work product for which they contracted (autonomy; General Principle E, Respect for People's Rights and Dignity). In contrast, providing data to an individual who is not qualified to interpret them and is not bound by the same ethical requirement to safeguard them may result in harm to the examinee (General Principle A, Beneficence and Nonmaleficence) and may result in invalidation of future examinations of others (General Principle D, Justice). In dilemmas such as this, the greater harm must be determined. Disservice to many would likely outweigh the restricted service to one. However, as Rapp and Ferber (2003) stated, "The harm from disclosure can be avoided while still accommodating the opposing side's legitimate need to prepare its case" (p. 352). Access to raw test data and materials can be limited to psychologists, or a protective order can be obtained, to maximize test security and minimize the potential for harm, and still conform to discovery rules. In addition to conflicting ethical principles, however, relevant legal authorities may conflict, and the psychologist may be required by law to release raw test data to individuals not properly trained to interpret them. In those circumstances, the psychologist makes known the relevant concerns, in writing or "on the record," and then follows the directive of the law (APA Ethics Code, Introduction and Applicability).

The importance of maintaining test security and avoiding misuse, misinterpretation, or other potentially harmful uses of test data is clearly recognized by sources of ethical authority. However, integrating these con- cerns with the right to disclosure that is attendant to most court proceedings may be challenging in some contexts. It appears that solely on the basis of the APA Ethics Code, psychologists could, with client release if needed, justify immediately releasing test data (including test materials on which responses have been written) to anyone identified by the client, or alterna- tively, could justify taking steps to safeguard the test data and materials. Because either course of action may be supported by the Ethics Code, psychologists must decide for themselves whether they want to do what is

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simply ethically acceptable (i.e., release the data) or what may be considered ethically preferable (i.e., take steps to limit access to the data and materials; Bush, 2004a). Consultation with one's own attorney may be advisable.

Although Standard 9.04, Release of Test Data, apparently represents an effort to make the APA Ethics Code more consistent with the anticipated implications of HIPAA (C. B. Fisher, 2003b), HIPAA makes no demand that psychologists release trade secrets in the form of test materials or data. Thus, the dramatic change in Standard 9.04 does not seem to have met the goal for which it was intended. Instead, Standard 9.04 has served to conflict with the other relevant section of the Ethics Code (Standard 9.11, Maintaining Test Security), with general bioethical principles, and with other sources of ethical authority, and it has caused confusion for psycholo- gists. Psychologists releasing raw test data to those not qualified to interpret them, in the absence of a court order, should carefully consider their motiva- tions for departing from the majority of sources of ethical authority. Psycholo- gists should carefully consider the available options that might allow them to achieve conformity with their own and authoritative concepts of ethi- cal practice.

Clinicians Thwarting Disclosure

In their desire to protect their patients, some clinicians may attempt to prevent disclosure of their records (Barsky & Gould, 2002). The following strategies may be used to thwart disclosure: keeping minimal records, keeping double sets of records, coding information in their records, doctoring or disposing of records and documents, or outright lying (Barsky & Gould, 2002). Each of these actions, although motivated by a desire to protect or help the patient, represents ethical misconduct, with the exception that psychotherapy notes may indeed be maintained as a separate set of records. Psychotherapy notes, as defined by HIPAA, may be kept separate from other client records and may not be easily obtainable. HIPAA (§164.501; U.S. DHHS, 1996) defined such notes:

Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyz- ing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual's medical record. Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.

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Thus, without the explicit consent of the therapy patient, the therapist may not be able to release psychotherapy notes, and to be defined as such, those notes must have been kept separate from the rest of the patient's file. In this one regard, the maintenance of two sets of records is, of course, not unethical at all, and refusal to disclose the psychotherapy notes is not objectionable. In cases involving court-ordered treatment, there is less clarity in HIPAA regarding the protection of such notes, and arguably, given that the treatment is occurring in a litigation context, there may be little protection of the records.

Maintaining records sufficient to serve the clinical or forensic purposes of the treatment or evaluation may be the best way to avoid ethical miscon- duct. Practitioners in many contexts should anticipate that requests for the records will be made, and they should maintain documentation accordingly.

FEEDBACK

Psychologists in clinical settings should typically share test results and interpretations with the test taker; however, judicial referrals represent one exception to the ethical and professional requirement to provide feedback (Standard 9.10, Explaining Assessment Results; SEPT, Standard 12.20). In the context of examinations by psychological experts retained by opposing counsel (e.g., independent medical examinations), psychologists typically do not provide examinees with feedback regarding results, conclusions, or recommendations. Reports are released to the retaining party, not to exami- nees or their family members, doctors, lawyers, or other representatives without the permission of the retaining party (Bush & NAN Policy & Planning Committee, 2005). Similarly, in court-ordered child custody evalu- ations, the evaluator may elect to release the report to the court and the attorneys, without giving feedback directly to the parties, and in fact, it is not unusual for the court to direct the manner in which the evaluator's findings will be released. HIPAA does not seem to protect the examinee's right to access and amend psychological records in forensic contexts (Con- nell & Koocher, 2003; U.S. DHHS, 1996). The examinee should understand the extent and nature of the feedback that will be provided, if any, and to whom it will be provided, before the evaluation is begun.

CASE 4: ANTICIPATING INVOLVEMENT IN A PERSONAL INJURY CASE

A single 35-year-old accountant sustains a severe brain injury when thrown from his horse while riding on his own property. He recovers well.

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Although he is able to live independently, persisting cognitive deficits prohibit his return to work. Emotional distress emerges. He begins treatment with a psychologist during inpatient rehabilitation and continues psycho- therapy on an outpatient basis in her private practice, paying out of pocket. Treatment covers the patient's accident-related changes as well as longstand- ing, sensitive family problems. A caring therapeutic relationship develops. The psychologist keeps detailed notes of the therapy and has test results from early in treatment. A few months into treatment, the patient mentions that his family is considering a lawsuit against the hospital, although he is unsure of the details. Within a week, the psychologist receives a request for her records, accompanied by a signed consent to release, from the attorney representing her patient. She goes back through her progress notes and finds very sensitive and personal information. She briefly considers what to do.

Analysis

Identify the Problem

The psychologist did not want to release sensitive patient information. She did not have a strong opinion about releasing raw test data and did not see this as a sensitive issue.

Consider the Significance of the Context and Setting

The psychologist was treating the patient in her independent practice, with no institutional support and little collegial support. Similar requests that came to the rehabilitation hospital were handled by the medical records and legal departments, and she was almost never involved. She was un- prepared for a situation that would inevitably arise in a rehabilitation- related practice.

Identify and Use Ethical and Legal Resources

A number of ethical, professional, and legal resources were available to the psychologist. A review of these resources, had it occurred, would have revealed the following. Her desire to protect her patient was consistent with General Principle A (Beneficence). Due primarily to a lack of experi- ence in this treatment context, she was unaware of potential courses of action that would best serve her patient, herself, the profession of psychology, and the legal system (Standard 2.01, Boundaries of Competence). Altering and destroying records would violate Standard 6.01, Documentation of Professional Work and Maintenance of Records, and producing notes with new and potentially different content would be inconsistent with Standard 5.01, Avoidance of False or Deceptive Statements, and with the law. The psychologist's state laws prohibited destruction of medical records.

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Releasing raw test data without taking steps to safeguard them would be inappropriate, according to some sources of ethical authority (NAN Policy & Planning Committee, ZOOOb, 2005; SEPT Standards 11.7, 11.8, and 11.9). The General Principle D (Justice) could be considered applicable to both sides of this issue. Releasing the data would serve the justice system, as well as help her patient's case (Beneficence). However, the potentially adverse consequences of uncontrolled dissemination could include invalida- tion of the tests, which could potentially deny future examinees their right to access and benefit from the contributions of psychology, thus potentially harming the public. Further, test developers and publishers who may have spent great effort and cost to bring the tests to market, and who have copyrights, would be damaged by uncontrolled distribution and resultant invalidation of the instruments. Such damage to test developers and publish- ers would have repercussions for psychological practice. When conflicts exist between or within principles, a determination or judgment regarding the potential for the greatest harm and the greatest benefit must be made. The psychologist's state laws were consistent with the release of all records with the patient's consent.

Failing to discuss the potential therapeutic and personal implications of releasing sensitive information with her patient would reflect a lack of appreciation of the importance of individual autonomy (General Principle E, Respect for People's Rights and Dignity).

Consider Personal Beliefs and Values

The psychologist's primary motivation was the wish to help her patient. She believed that protecting her patient would justify almost any behavior she chose, including the destruction and modification of records. She had never given much thought to the issues surrounding release of data. She was aware that, with signed consent from the patient, the APA Ethics Code allowed her to release her records, and she gave the issue no further thought.

Develop Possible Solutions to the Problem

The psychologist briefly considered releasing her current record as it was. She then considered revising her progress notes to eliminate the sensi- tive personal information that the patient had shared and to focus on accident-related content. She considered making up details to fill in notes in which session content was uncertain or scantily recorded. She briefly considered calling a colleague but could not think of anyone to call. She also considered posting her dilemma on a professional electronic discussion board and asking for advice. She did not consider contacting the ethics committee of a professional organization; taking time to weigh the potential

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advantages and consequences of various courses of action, making notes of the issues being weighed; or discussing the issues with her patient.

Choose and Implement a Course of Action

The psychologist rewrote some of her notes, shredding the originals. She then copied and sent to the court the remaining entire record, including the revised notes, test reports, and test data. The psychologist acted without giving much thought, if any, to other possible courses of action. She opted to do what she considered to be in the patient's best interest, without regard for the potential ethical and legal implication.

Assess the Outcome and Implement Changes as Needed

No one ever knew that the psychologist modified and destroyed records. The release of raw test data was supported by her state laws and the APA Ethics Code and, therefore, created no problems. The violation of copyright laws was never alleged. Treatment continued as it had before, although the psychologist anticipated that subsequent notes would be subject to review by others and thus omitted detailed sensitive information. On the basis of her experience with this patient, she modified her informed consent and note-writing procedures to avoid such problems in the future.

Comment

Although not necessarily unethical according to the APA Ethics Code, the psychologist's release of raw test data without taking steps to safeguard them, and her failure to uphold her copyright obligation, may be construed to be marginally acceptable practice. She failed to consult with a knowledgeable colleague when she found herself in an unfamiliar and uncomfortable situa- tion. She failed to discuss the potential implications of releasing the records with her patient, who may have chosen to rescind his consent. Had the psy- chologist thought through, either by herself or with a colleague, the potential ethical and legal implications of her options before acting, she would have been in a better position to serve her patient, herself, and the profession of psychology.

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