What accounts for astounding frequency with which mental health professionals betray our courts with misinformation premised on ill-conceived theories? At PsychLaw.net we consider, for example, the direction taken by practicing psychologists over the past 20 years. Beginning in the late 1970’s, the number of independently practicing psychologists belonging to the American Psychological Association (APA) grew at an exponential rate. These practitioners demanded that APA respond to issues such as insurance reimbursement, hospital privileges, and the wholesale promotion of psychological services.
In other words, business considerations displaced the attention previously paid to the scientific considerations of practice. Dr. Scott Henggeler, of the Medical College of South Carolina, commented rather bluntly on this shift. He observed:
“… sometimes I feel that the name of the game in clinical psychology isn’t really positive client outcome, it’s acquiring and keeping clients.” [1]
As you likely expect, research oriented psychologists dismiss the business considerations of practitioners as irrelevant to their interests. In turn, a deep schism has developed between these two camps. Not surprisingly, former Chairperson of the Psychology Department at Harvard, Brendan Maher, observed:
“… it seems clear that the scientific interests of the clinical psychologist are likely to be focused in organizations outside the APA.” [2]
At PsychLaw.net we are aware that as more and more research psychologists abandon the American Psychological Association, its scientific credibility suffers. Because of the diminishing influence of research psychologists, professional psychology finds itself dominated by marketing gurus promoting seminars on boosting market share. Scientific progress can only suffer as a result of such developments; and in turn, the quality of professional education and training inevitably deteriorates.
The Gap Between Science and Practice
At PsychLaw.net we know that the increasing disregard for the scientific foundations of applied practice are not limited to psychology. The profound gap between science and practice undermines the work of all mental health professionals. These are the professionals who have betrayed the public’s welfare with such ill-informed quackery as recovered memory therapy,[3] facilitated communication,[4] and past-life regression treatment.[5]
Because mental health professionals characteristically neglect legitimate scientific data, diligent attorneys can obtain an advantage in dealing with them. Putting forth persistent efforts in reviewing the research outlined in this blog can assist attorneys enormously. Such efforts afford an attorney greater familiarity with the relevant literature compared to the average mental health professional they are cross-examining.
Consider, for example, a psychologist who testified regarding her opinions that a 3-year-old child she interviewed had been sexually abused. Despite the unqualified confidence with which this psychologist expressed her opinions, she could not support them with any data from a peer-reviewed journal or generally recognized text.
Attny: You are responsible, because of your license, to have specialized knowledge; correct?
Psych: Correct.
Attny: I’m asking you about your specialized knowledge and the sources of your specialized knowledge. Do you understand me?
Psych: Yes.
Attny: I’m trying to determine what the sources of your specialized knowledge are. And I’d like you to try to answer my questions as best you can. You can’t remember the name of any article and you can’t remember the name of any book; correct?
Psych: Correct.
Attny: And you can’t remember the title of any book; correct?
Psych: I could remember various titles — well, no, not titles; actually authors — of books that don’t necessarily pertain to sexual abuse. Are you asking specifically about sexual abuse or about my knowledge in general?
Attny: Yes I am. That’s the entire line of questioning.
Psych: “Yes” about sexual abuse?
Attny: I’m asking about sexual abuse. And as you will remember, the questioning has to do with the appropriate, reliable assessment of child sexual abuse. That’s what this case is primarily about.
Psych: Then my response is the same; that I’ve read these things, that I’ve incorporated the information. But names and dates I don’t recall.
[As this cross-examination proceeded, attorney then asked.]
Attny: Let’s assume that you’re trying to assess the knowledge base of a psychologist — okay? — about the subject of child sexual abuse. And as you asked that psychologist what their knowledge base is, they cannot remember any source from the peer-reviewed literature, none. Do you feel that that would document or demonstrate an adequate familiarity with the literature?
Psych: I don’t know if I could answer that. I don’t — because I can’t remember the things that I’ve — the names and dates of books, titles, journals, peer-review articles that I’ve read doesn’t necessarily mean that I don’t have information. I’ve incorporated information into my clinical working.
The attorney might have asked this psychologist one more question:
Attny: In other words, you want this proceeding to understand that you know what you cannot remember — Correct?
In his 1997 book – A Good Lawyer – Stephen Comiskey perceptively discusses differences between attorneys and physicians. These distinctions are also equally applicable to the differences between attorneys and mental health professionals.
“Whether the schooling influences the practice, or the practice drives the schooling is academic, but for each of these professions, legal and medical, the end results, as seen by the lawyers’ clients and the physicians’ patients are quite different. Lawyers spend seemingly endless hours researching, writing, theorizing, strategizing, rewriting, and thinking. Physicians, on the other hand, even the most otherwise sensible and cerebral ones, often prescribe from the hip and diagnose on the run, as if each patient were an emergency room situation. A medical second opinion is usually only another physician’s memorized recollection superimposed on the apparent facts at hand. Hard research and long hours spent thinking about and deliberating over what should or shouldn’t be done is virtually non-existent in the practicing medical profession.” [6]
At PsychLaw.net we know that hard research and careful deliberation are also rare commodities within the ranks of mental health professionals. Though these professionals commonly endorse the following practices, for example, attorneys can vigorously cross-examine:
(1) Mental health professionals who appear as expert witnesses on behalf of litigants they are treating, or have previously treated
(2) Psychologists who claim to have acquired generally recognized competencies in graduate school
(3) Psychiatrists who claim their medical school training is directly related to psychiatric interviewing and assessment, and
(4) Mental health professionals who claim expertise premised on their “accumulated clinical experience.”
The four examples cited above are but a few of the many instances of mental health professionals threatening to misinform and mislead legal proceedings. Now however, evidentiary rules are changing significantly. As a result, this book has been written to aid attorneys, and mental health professionals, in understanding and coping with the new parameters of reliability and admissibility.
Footnotes
[1]. Follette, V. (1993). An ecological approach to treatment: An interview with Scott Henggeler. The Scientist Practitioner, 3 (1), 10-17 (p.13).
[2]. Maher, B.A. (1991). A personal history of clinical psychology. In M. Hersen, A. Kazdin & A.S. Bellack (Eds.), The clinical psychology handbook, Second Edition. New York: Pergamon (p. 24).
[3]. Campbell, T.W. (1998). Smoke and Mirrors: The devastating effect of false sexual abuse claims. New York: Insight Books.
[4]. Burgess, C.A., Kirsch, I., Shane, H., Niederauer, K.I., Graham, S.M. & Bacon, A. (1998). Facilitated communication as an ideomotor response. Psychological Science, 9, 71-74.
[5]. Spanos, N.P. (1996). Multiple identities and false memories: A sociocognitive perspective. Washington, D.C. American Psychological Association Press.
[6]. Comiskey, S.W. (1997). A good lawyer: Secrets good lawyers [and their best clients] already know. Comiskey: McLean, VA; Author.