Month: September 2019

Research v. Clinical Judgment

Posted on by Shawn Wygant

The recent case of People v. Banks[1] in New York demonstrates that reliance on “clinical judgment” is like “shooting from the hip”. Banks found trial judge Barbara Zambelli working her way through a complicated explication of clinical judgment and research based opinions. Banks is instructive because it involved a pitched battle over expert testimony regarding eyewitness identification and 1) the low correlation between a witness’s confidence and the accuracy of the witness’s identification; 2) the effect of post event information on accuracy of identification; and 3) research concerning the eyewitness identification phenomena of stress, partial disguise, own-race bias, and weapons focus. Here, we at PsychLaw.net find that  expert Steven Penrod and his examiners made it clear that although there was a great deal of anecdotal information on these phenomena, Penrod was relying on research, not “clinical judgment”.

In addition to making a record, U.S. v. Daniels[2] from the Ninth Federal Circuit illustrates the importance of the cross examiner knowing precedent in matters involving clinical judgment. In U.S. v Birdsbill[3] and U.S. v White Horse,[4] two federal district courts and an appellate panel of the Eighth Federal Circuit undertook a detailed analysis of the “Abel testing” process used by some state sex offender programs.  In both Birdsbill and Whitehorse the courts found the process developed by Dr. Gene G. Abel of Abel Screening Inc., of Atlanta, Georgia, to be unreliable.  In Daniels, however, the clinical judgment which directed that the Abel process should be coupled with the polygraph and forced on California inmates was not seriously challenged. Without a cogent record to rely upon, the Ninth Circuit simply ruled that, “Abel testing does not implicate a particularly significant liberty interest…”.[5]

Another recent case of the use of “clinical judgment” involves a defendant’s expert testifying about his clinical judgment, which was manifestly different than the published research – even the research he alluded to! In Rush v. Jostock,[6] a defendant’s expert cited the DSM-IV for a sense that the Plaintiff was malingering.  We at PsychLaw.net note that this expert also cited the research on spinal injury incorrectly and the case is an excellent example of the cross examiner asleep at the switch.

In this case, Sherry Rush was rear-ended by Tasha Jostock.  Unfortunately for Sherry Rush, it happened in Minnesota.[7] Prior to trial, respondent admitted liability, so the sole issue before the jury was damages. Plaintiff sought to exclude testimony of the defendant’s expert, one Dr. Kazi, regarding “Waddell’s signs” and the DSM-IV concerning malingering. Plaintiff argued that Waddell’s signs were clinically insignificant in cases involving cervical pain; that in order for Waddell’s signs to be of significance, three of five must be present, which was not the case here; that defendants had never identified the DSM-IV as a treatise which was to be used in the proceeding; and that defendants had failed to qualify Dr. Kazi to testify about the contents of the DSM-IV. The trial court, in denying her motion in limine, declared that the issue was not one of admissibility but one of the weight to be given by the jury to Dr. Kazi’s opinions.[8]

The appellate panel instructed that the competency of a witness to provide expert medical, and in this case, psychiatric testimony, depended upon both the degree of the witness’ scientific knowledge and the extent of the witness’ clinical judgment from practical experience.[9] At trial the expert testified that he had examined the Plaintiff on two occasions. After the first examination, the expert noted that Sherry Rush displayed “two of five Waddell’s signs, which indicated probable presence of symptom magnification and functional overlay.”[10] Dr. Kazi conducted a second examination, after which he concluded that Sherry Rush displayed “one of five Waddell’s signs.” Kazi testified that Waddell’s signs are five in number and are considered signifiers of non-organic source of low back pain when three or more of the signs are present. This is incorrect, but the cross examiner missed it.[11] Consequently, Kazi testified that she was malingering with DSM IV language – Sherry Rush received zero damages for her pain & suffering.

At PsychLaw.net we find that another recent example of “clinical judgment” involves the psychology of perception. In Kilgore v. Carson Pirie Holdings, Inc.[12] the “wallpaper illusion”[13] was litigated in a slip and fall case. In Kilgore, a customer brought a negligence action against a department store to recover for injuries sustained when she fell while descending a stationary escalator. The United States District Court for the Eastern District of Tennessee entered summary judgment in favor of the store, and the customer appealed. The Sixth Circuit panel affirmed the exclusion of the plaintiffs’ expert witness. The expert, who the defendants’ cross examiner was able to strike, attempted to explain that a stationary escalator should not be used as a stairway because the appearance of the risers creates an “optical illusion” that causes a state of disorientation dangerous to persons standing at the top of the escalator looking down. The expert relied on two sources for this position: (1) an article entitled, “Wallpaper Illusion Causes Disorientation and Falls on Escalators;”[14] and (2) his own personal experience riding escalators. When the cross examiner demonstrated that Plaintiff’s proposed expert did not know or understand what research or methodology the article was based upon and that he did not conduct any independent research on this subject, he was suspect at best.  When pressed by the cross examiner, the proposed expert did state that he did “a lot” of research on the optical illusion created by the appearance of an escalator, but he could not refer to anything in specific. In fact, when pressed closely, he only offered the Consumer Protection Agency website, despite the fact that no information from that website was offered as an exhibit. Exposing the basis for the expert’s sense of the issue as his own “personal experience” found the appellate court ruling that the trial court was within its discretion in concluding that the expert’s testimony would not assist the trier of fact in determining the dangers of riding a stationary escalator, because the expert’s position was not supported by sufficient data or reliable methodology.[15]

Given all of these examples of experts spouting their clinical judgment in the courtrooms,  we at PsychLaw.net feel that cross examiners should be gladdened that clinical judgment may indeed be the basis for striking proposed expertise. In numerous recent cases, courts have been reiterating that when a decent foundation has been laid, the trier of fact does not need to credit an expert at all.[16]

_____________________________________________________________________________________________________________________________

[1] 16 Misc.3d 929 (County Court, Westchester County, New York, 2007).

[2] 541 F.3d 915 (9th Cir. App. 2008).

[3] 243 F.Supp.2d 1128; 2003 WL 256914 (D. Montana) January 24th, 2003.

[4] 316 F. 3d 769 (8th Cir. January 15th, 2003).

[5] Daniels, 541 F.3d 915, 926.

[6] 710 N.W.2d 570 (Minnesota App. 2006).

[7] Minnesota remains a Frye State.  That means that foundational reliability goes to the weight that should be accorded to expert testimony, not whether it should be admitted in the first place. State v. MacLennan, 702 N.W.2d 219, 230 (Minn., 2005).

[8] 710 N.W.2d 570, 574 (Minnesota App. 2006).

[9] Id.

[10] Id. 710 N.W.2d 570, 573.

[11] See, also: Spine. 2004 Jul 1;29(13):1392. Nonorganic physical signs in low-back pain are described and standardized in 350 North American and British patients. These nonorganic signs are distinguishable from the standard clinical signs of physical pathology and correlate with other psychological data. By helping to separate the physical from the nonorganic they clarify the assessment of purely physical pathologic conditions. It is suggested also that the nonorganic signs can be used as a simple clinical screen to help identify patients who require more detailed psychological assessment.

[12] 2006 WL 3253490 (6th Cir. (Tenn.)) (Not Recommended for Publication).

[13] Shifts in the apparent depth of a repetitive pattern or texture occur when the eyes are fixed at a position in front of the pattern. Observations on this phenomenon, known as the Wallpaper illusion, have been made by sensation/perception research psychologists for almost three centuries.  See, McKee, S. P., Verghese, P., Ma-Wyatt, A., & Petrov, Y. (2004). The wallpaper illusion revisited. 4 (8) Journal of Vision, 592;  Kohly, Radha P. and Ono, Hiroshi (2002) Fixating on the wallpaper illusion: a commentary on ‘The role of vergence in the perception of distance: a fair test of Bishop Berkeley’s claim’ by Logvinenko et al. 15 Spatial Vision 377; Foley, J. M. and Richards, M. (1972). Effects voluntary eye movement and convergence on the binocular appreciation of depth, 11 Perception and Psychophysics  423.

[14] Cohn TE, Lasley DJ. (1990) Wallpaper illusion: cause of disorientation and falls on escalators. 19(5) Perception 573. The wallpaper illusion, can occur when a person with normal binocular vision views a pattern that is periodic in the horizontal meridian of the visual field. Escalator trends present such a pattern. Evidence is presented favoring the view that disorientation experienced by escalator riders is caused by this illusion. Possibly some of the estimated 60,000 escalator falls occurring in the United States each year are linked to it.

[15] 2006 WL 3253490 page 4-(6th Cir. (Tenn.)) (Not Recommended for Publication).

[16] See, e.g.: McWreath v. Ross, 2008 WL 4876872 (Ohio App. 11 Dist. unpublished): “We recognize that a trier of fact is not required to believe an expert giving the testimony.” citing to McCall v. Mareino 138 Ohio App.3d 794, 799, 742 N.E.2d 668 (2000) 2008 WL 4876872 *8.  Smith v. Andrews, 289 Conn. 61 (Conn. S.C. 2008) “the jury is under no obligation to credit the evidence offered by any witnesses, including experts; even if that evidence is uncontroverted.” citing to Johnson v. Healy, 183 Conn. 514, 516-17, 440 A.2d 765 (1981). Harris v. Delta Devolpment Partnership, 994 So.2d 69 (La.App.1 Cir. 2008): “It is well settled in Louisiana that the trier of fact is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence.” citing to Williams v. Rubicon, Inc., 808 So.2d 852, 858 (La.App. 1st. Cir. 2002). 994 So.2d 69, 77.  and  Pisel v. Stamford Hospital, 180 Conn. 314, 344, 430 A.2d 1 (1980). 289 Conn. 61, 72.  And see Grainger v. Wald, 982 So.2d 42 (Fla.App. 2008“A jury is free to weigh the credibility of expert wit-nesses as it does any other witness, and reject even uncontradicted testimony.”citing to  Republic Servs. of Fla. v. Poucher, 851 So.2d 866, 871 (Fla. 1st DCA 2003); 982 So.2d 42, 43.

Psychological Testing

Posted on by Shawn Wygant

Most of the data cited in this section address how divorce influences what occurs between parents, between parents and children, and between parents, children, and their life situations.  In view of this “between” emphasis, the extensive use of psychological testing in custody evaluations creates a curious dilemma. At PsychLaw.net we believe that rather than assess what occurs between people, most psychological tests assess what transpires within people.  Unfortunately, attempting to infer some psychological state within people encourages psychologists to indulge in the speculative judgments that jeopardize their status as expert witnesses.  Even greater cause for concern is the fact that these psychological states (ego‑strength, intra‑psychic conflicts, personality organization, etc.) are so ill‑defined that they rarely predict parental effectiveness.

Authoritative Opinion

Recognized authorities in the area of custody evaluations have repeatedly emphasized that an habitual reliance on psychological tests is grossly inappropriate[1].  Thomas Grisso observed that psychological tests cannot assess parental effectiveness.[2]  Lois Weithorn, a former member of the American Psychological Association’s Ethics Committee, deplored the use of tests such as the Rorschach, Thematic Apperception Test, and projective drawings in custody evaluations.[3]  Benjamin Schutz and his colleagues, authors of a comprehensive guide for custody evaluations, also dismissed psychological tests as typically irrelevant when evaluating parental competence.[4]  David Brodzinsky challenges psychological testing for custody evaluations in particularly blunt terms:

          “… many lawyers and judges have an unrealistic view of what psychological testing can accomplish.  There is an often an assumption, sometimes expressed overtly, that testing provides a scientific foundation for the forensic evaluation.  In other words, it allows the evaluator to go beyond the subjective nature of ‘clinical impression’ or ‘clinical judgment’ that is inherent in interviews and observations.  There is a view that psychological tests allow the evaluator to be truly objective and therefore unbiased.  This assumption is, of course, naive.”[5]

Melton, Petrilla, Poythress, and Slobogin, authors of what is generally recognized as the definitive reference in forensic psychology, Psychological Evaluations for the Courts, also challenge the excessive reliance on psychological tests in custody evaluations.

“It is our contention that such tests are often used inappropriately.  Tests of intellectual capacity, achievement, personality style, and psychopathology are linked only indirectly, at best, to the key issues concerning custody and visitation.”

Melton and his colleagues continued to emphasize:

“Thus, apparent practices notwithstanding, we recommend the use of traditional psychological tests only when specific problems or issues that these tests were designed to measure appear salient in the case.”[6]

Given the kinds of assessment problems which custody evaluations pose, it becomes clear to us at PsychLaw.net that psychological tests alone will not suffice.  Rather than assess the situational circumstances which potential custodians would contend with as single parents, psychological testing confines itself to assessing the characteristics of individuals.  Thus, psychological testing in custody evaluations assumes a degree of consistency between pre‑divorce and post‑divorce situations that is unwarranted.

Cross‑Examining Psychological Testing for Custody Evaluations

[USE THE 22 FOUNDATIONAL QUESTIONS FROM PREVIOUS POSTS

IF YOU HAVE NOT YET DONE SO]

  1. The American Psychologist is a generally recognized and accepted peer‑reviewed journal ‑‑ Correct?
  2. And a 1987 article by Grisso published in the American Psychologist ‑ titled “The Economic and Scientific Future of Forensic Psychological Assessment” ‑ might be relevant to your opinions in this case ‑‑ Correct?
  3. Please consider Grisso’s comments from his 1987 article:

– [ read ] –

“… there is almost no empirical information concerning how to use parents’ Wechsler or MMPI results to make inferences about their abilities to perform specific parenting functions”

Now my question: If there is almost no empirical information concerning how to use parents’ Wechsler or MMPI results for assessing specific parental functions, then your relying on these instruments could misinform and mislead this proceeding ‑‑ Correct?

  1. You have not published anything in a peer‑reviewed journal necessitating that we reconsider Grisso’s opinions in this regard ‑‑ Correct?
  2. You cannot cite anything published in a peer‑reviewed journal necessitating that we reconsider Grisso’s opinions in this regard ‑‑ Correct?
  3. And the journal Professional Psychology: Research and Practice is also a generally recognized, and accepted peer‑reviewed journal in your field ‑‑ Correct?
  4. A 1993 article authored by Brodzinsky ‑ titled “On The Use and Misuse of Psychological Testing in Child Custody Evaluations” ‑ published in Professional Psychology: Research and Practice could be relevant to your opinions in this case ‑‑ Correct?
  5. Please consider the following comments from Brodzinsky’s 1993 article:

– [ read ] –

“… many lawyers and judges have an unrealistic view of what psychological testing can accomplish.”

Now my question: If lawyers and judges have an unrealistic view of what psychological testing can accomplish, your relying on psychological testing in this case could misinform and mislead this proceeding ‑‑ Correct?

  1. You have not published anything in a peer‑reviewed journal necessitating that we reconsider Brodzinsky’s position in this regard ‑‑ Correct?
  2. You cannot cite any thing published in a peer‑reviewed journal necessitating that we reconsider Brodzinsky’s position in this regard ‑‑ Correct?
  3. Please consider these additional comments from Brodzinsky’s 1993 article:

– [ read ] –

“There is an often an assumption, sometimes expressed overtly, that testing provides a scientific foundation for the forensic evaluation.  In other words, it allows the evaluator to go beyond the subjective nature of ‘clinical impression’ or ‘clinical judgment’ that is inherent in interviews and observations.”

Now my question:  “face validity” refers to a situation in which a psychological test may appear valid, but there is no empirical data supporting its validity ‑‑ Correct?

  1. And assuming that psychological testing provides a scientific foundation for forensic evaluations could increase the “face validity” of psychological tests in custody evaluations ‑‑ Correct?
  2. Please consider these further comments from Brodzinsky’s 1993 article:

– [ read ] –

“There is a view that psychological tests allow the evaluator to be truly objective and therefore unbiased.  This assumption is, of course, naive.”

Now my question: If it is naive to assume that psychological tests allow an evaluator to be objective and unbiased, you are ethically obligated to so notify this court ‑‑ Correct?

  1. Ethical Standard 7.04 (b) of your 1992 ethical code requires:

– [ read ] –

“Whenever necessary to avoid misleading, psychologists acknowledge the limits of their data or conclusions.”   ‑‑ Correct?

  1. And compliance with Standard 7.04 (b) of your ethical code could obligate you to inform this court that the value of psychological testing in custody evaluations is limited ‑‑ Correct?
  2. Again, please consider Brodzinsky’s previously quoted comments:

– [ read ] –

“There is a view that psychological tests allow the evaluator to be truly objective and therefore unbiased.  This assumption is, of course, naive.”

Now my question: You have not published anything in a peer‑reviewed journal necessitating that we reconsider Brodzinsky’s position in this regard ‑‑ Correct?

  1. You cannot cite anything published in a peer‑reviewed journal necessitating that we reconsider Brodzinsky’s position in this regard ‑‑ Correct?
  2. Now my question: If “lawyers and judges have an unrealistic view of what psychological testing can accomplish.” – you are at risk for misinforming and misleading this proceeding ‑‑ Correct?
  3. You have not published anything in a peer‑reviewed journal necessitating that we reconsider the position of Brodzinsky I just quoted ‑‑ Correct?
  4. You cannot cite any article published in a peer‑reviewed journal necessitating that we reconsider the position of Brodzinsky I just quoted ‑‑ Correct?
  5. The 1997 Second Edition of Psychological Evaluations for the Courts ‑ written by Melton, Petrilla, Poythress, and Slobogin ‑ is a generally accepted text in the area of forensic psychology ‑‑ Correct?
  6. These four authors ‑ Melton, Petrilla, Poythress, and Slobogin ‑ have also published hundreds of articles between them in peer‑reviewed journals ‑‑ Correct?
  7. And their hundreds of publications in different peer‑reviewed journals allows us to place confidence in their opinions ‑‑ Correct?
  8. And commenting on the use of psychological tests in custody evaluations, Melton, Petrila, Poythress, and Slobogin have written:

– [ read ] –

“It is our contention that such tests are often used inappropriately.  Tests of intellectual capacity, achievement, personality style, and psychopathology are linked only indirectly, at best, to the key issues concerning custody and visitation.”

Now my question: Melton, Petrila, Poythress, and Slobogin are therefore also indicating that psychological testing is overused in custody evaluations ‑‑ Correct?

  1. You have not published anything in a peer‑reviewed journal necessitating our reconsidering the postion of Melton, Petrila, Poythress, and Slobogin ‑‑ Correct?
  2. You cannot cite anything published in a peer‑reviewed journal necessitating our reconsidering the postion of Melton, Petrila, Poythress, and Slobogin ‑‑ Correct?
  3. Please consider Melton, Petrila, Poythress, and Slobogin further comments regarding psychological testing an custody evaluations:

– [ read ] –

“Thus, apparent practices notwithstanding, we recommend the use of traditional psychological tests only when specific problems or issues that these tests were designed to measure appear salient in the case.”

Now my question: When Melton, Petrila, Poythress, and Slobogin say, “Thus, apparent practices notwithstanding …” they are acknowledging that practicing psychologists frequently rely on psychological tests in custody evaluations ‑‑ Correct?

  1. Please consider Melton, Petrila, Poythress, and Slobogin further comments regarding psychological testing an custody evaluations:

– [ read ] –

“… we recommend the use of traditional psychological tests only when specific problems or issues that these tests were designed to measure appear salient in the case.”

Now my question: This generally recognized text in forensic psychology recommends a limited and circumscribed use of psychological tests in custody evaluations ‑‑ Correct?

  1. You have not published anything in peer‑reviewed journal necessitating that we reconsider the position of Melton, Petrila, Poythress, and Slobogin ‑‑ Correct?
  2. You cannot cite anything published in a peer‑reviewed journal necessitating that we reconsider the position of Melton, Petrila, Poythress, and Slobogin ‑‑ Correct?
  3. Therefore, Dr. X, your use of psychological testing in this custody evaluation may deviate from the standards of practice recommended by authoritative sources in your field ‑‑ Correct?
  4. And however frequently practicing psychologists use psychological tests in custody evaluations, that does not mean there are data available in peer‑reviewed journals to support those practices ‑‑ Correct?

__________________________________________________________________________________________________________________________

[1].      The frequency and nature of psychological testing used in the course of custody evaluations varies widely.  Studies that are available on this topic include: Keilin, W.G. & Bloom, L.J. (1986).  Child Custody Evaluation Practices: A Survey of Experienced Professionals, 17 Professional Psychology: Research & Practice, 338-46; P. Lees-Haley, P. (1992). Psychodiagnostic Test Usage by Forensic Psychologists, 10 American Journal of Forensic Psychology, 25-30; and  Heilbrun, K.  & Collins, S. (1995).  Evaluations of Trial Competency and Mental State at the Time of the Offense: Report Characteristics, 26 Professional Psychology: Research & Practice, 61-67.  One conundrum in this area is the automated administration, scoring, and interpretation of tests that increase the risk that psychological tests will be misused by mental health professionals who do not have the requisite expertise and knowledge.See, e.g.:Ryabik, J.E.  & Olson, K. R. (1985). Computer­ized Testing, 16 Professional Psychology: Research & Practice, 6; Skinner, H.  & Pakula, A (1986). Challenge of Computers in Psychological Assessment, 17 Professional Psychology Research and Practice pg 44; Matarazzo, J.D. (1986).  Computerized Clinical Psychological Test Interpretations: Un validated Plus All Mean and No Sigma, 41American Psychologist 14, 17; Fowler , R.D. & Butcher,J. N. (1986).  Critique of Matarazzo’s Views on Computerized Testing: All Sigma and No Meaning, 41 American Psychologist 94, 95; Eyde, L.D.  & Kowal,D.M. (1987).  Computerized Test Interpretation Services: Ethical and Professional Con­cerns Regarding U.S. Producers and Users, 36 Applied Psychol.: an Interna­tional Review, 401, 406.

[2].       Grisso, T. (1987). The economic and scientific future of forensic psychological assessment. American Psychologist, 42, 831-839.

[3].       Weithorn, L. (1987). Psychological evaluations in divorce custody: Problems, principles, and procedures. In L. Weithorn (Ed). Psychology and child custody determinations: Knowledge, roles, and expertise. Lincoln, NE: U of Nebraska Press.

[4].       Schutz, B., Dixon, E., Lindenberger, J., & Ruther, N. (1989). Op cit. See, also: Heilbrun, K (1995). Child Custody Evaluation: Critically Assessing Mental Health Experts and Psychological Tests,29  Family Law Quarterly # 1 Spring 63-78 advocating: that the chosen tests must be “commercially available and adequately documented in two sources. First, it is accompanied by a manual describing its development, psychometric properties, and procedure for administra­tion. Second, it is listed and reviewed in Mental Measurements Yearbook, or some other readily available source.” pg 73.

[5].       Brodzinsky, D.M. (1993). On the use and misuse of psychological testing in child custody evaluations. Professional Psychology: Research and Practice, 24, 213-219 (p. 216).

[6].       Melton, G.B., Petrila, J., Poythress, N.G., & Slobogin, C. (1997). Psychological evaluations for the courts-2nd Ed. New York: Guilford Press. (p. 503).

Dual Relationships and Ethical Obligations

Posted on by Shawn Wygant

Dual relationships inevitably involve conflicts of interest. Just as an attorney cannot represent the business interests of a client in one matter, and also represent that client’s spouse in a divorce action, mental health professionals are prohibited from engaging in similar conflicts of interest.  At PsychLaw.net we take for example, Standard 1.06 (c) of the Code of Ethics for social workers states:

“Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client.  In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries.  (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business.  Dual or multiple relationships can occur simultaneously or consecutively).”[1]

Similarly, the ethical code for marriage and family therapists also prohibits dual relationships.  Standard 1.2 of the Code of Ethics of the American Association for Marriage and Family Therapy states:

“Marriage and family therapists are aware of their influential position with respect to clients, and they avoid exploiting the trust and dependency of such persons.  Therapists, therefore, make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of exploitation.  When a dual relationship cannot be avoided, therapists take appropriate professional precautions to ensure that judgment is not impaired and no exploitation occurs.  Examples of such dual relationships include, but are not limited to, business or close personal relationships with clients.”[2]

The ethical code for psychologists also prohibits dual relationships.  Standard 1.17 (a‑c) of the code of ethics for the American Psychological Association ‑ addressing “Multiple Relationships” ‑ states:

“(a) In many communities and situations, it may not be feasible or reasonable for psychologists to avoid social or other nonprofessional contacts with persons such as patients, clients, students, supervisees, or research participants.  Psychologists must always be sensitive to the potential harmful effects of other contacts on their work and on those persons with whom they deal.  A psychologist refrains from entering into or promising another personal, scientific, professional, financial, or other relationship with such persons if it appears likely that such a relationship reasonably might impair the psychologist’s objectivity or otherwise interfere with the psychologist’s effectively performing his or her functions as a psychologist, or might harm or exploit the other party.

(b) Likewise, whenever feasible, a psychologist refrains from taking on professional or scientific obligations when preexisting relationships would create a risk of such harm.

(c) If a psychologist finds that due to unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist attempts to resolve it with due regard for the best interests of the affected person and maximal compliance with the Ethics Code.”[3]

Additionally, at PsychLaw.net we look to the ethical standards regarding the “Forensic Activities” of psychologists ‑ specifically Standard 7.03 addressing “Clarification of Role” ‑ states:

“In most circumstances, psychologists avoid performing multiple and potentially conflicting roles in forensic matters.  When psychologists may be called on to serve in more than one role in a legal proceeding ‑ for example, as consultant or expert for one party or for the court and as a fact witness ‑ they clarify the role expectations and the extent of confidentiality in advance to the extent feasible, and thereafter as changes occur, in order to avoid compromising their professional judgment and objectivity and in order to avoid misleading others regarding their role.”[4]

Similarly, the Specialty Guidelines for Forensic Psychologists indicate the following:

“Forensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship.

When it is necessary to provide both evaluation and treatment services to a party in a legal proceeding (as may be the case in small forensic hospital settings or small communities), the forensic psychologist takes reasonable steps to minimize the potential negative effects of these circumstances on the rights of the party, confidentiality, and the process of treatment and evaluation.” (p. 659).[5]

The Ethical Guidelines for the Practice of Forensic Psychiatry, adopted by the American Academy of Psychiatry and the Law state:

“A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.”[6]

Quite obviously, then, the ethical obligations of mental health professionals preclude them from testifying as expert witnesses in matters involving their patients.  A 1997 article perceptively outlined these considerations in the following manner:

“Engaging in conflicting therapeutic and forensic relationships exacerbates the danger that experts will be more concerned with case outcome than the accuracy of their testimony.  Therapists are usually highly invested in the welfare of their patients and rightfully concerned that publicly offering some candid opinions about their patient’s deficits could seriously impair their patient’s trust in them.  They are often unfamiliar with the relevant law and the psycho legal issues it raises.  They are often unaware of much of the factual information in the case, and much of what they know comes solely from the patient and is often uncorroborated.  What they do know, they know primarily, if not solely, from their patient’s point of view.  They are usually sympathetic to their patient’s plight, and they usually want their patient to prevail.”[7]

We at PsychLaw.net would also indicate there is nothing inappropriate about treating therapists testifying as fact witnesses regarding their patients.  Testifying as a fact witness, however, necessitates that treating therapists clearly recognize the limits of their testimony as a result of their therapeutic role.  When asked to express an opinion directly related to the legal matter at hand, treating therapists are obligated to acknowledge their limitations.  Surprising as it may seem, most therapists have not carefully considered the inevitable conflicts between expert witness and treating therapist.  Therefore, legions of treating therapists are more than ready to take a witness stand and testify as expert witnesses.[8]  When cross‑examination directs a treating therapist’s attention to the dual relationship problems involved, many therapists reluctantly acknowledge these problems. Consider, for example, how a psychologist responded to the following cross‑examination.

Attny:         Aren’t you obligated to acknowledge that your therapist role with Mr. Smith, and any proposed role for you as an expert witness, involves a dual relationship?

Psych:         Yes.  A dual relationship does exist at times between treating professionals who treat and also testify.

Attny:         Just a moment ago you acknowledged that if the court recognizes you as an expert, you’re obligated to testify objectively, candidly, and forthrightly; correct?

Psych:         Yes.

Attny:         However, testifying objectively, candidly, and forthrightly could threaten any past or future therapeutic alliance; correct?

Psych:         Mr. Smith is not in treatment with me.

Attny:         Isn’t it true that testifying as an expert could threaten a past or future therapeutic alliance between Mr. Smith and you?

Psych:         Mr. Smith and I have no plans to resume the treatment relationship … and there’s no way that I know of to threaten a past treatment relationship through being an expert    witness.

Quite obviously, the psychologist could not guarantee that Mr. Smith would never return to seek her services as a therapist.  Consequently, her testifying as an expert witness created a substantial risk of a dual relationship. At PsychLaw.net we feel that well informed professionals recognize such risks and avoid them.

Conversely, other mental health professionals clearly overstep the limits of their responsibilities as evaluators.  Consider, for example, how the following psychologist trapped himself into a dual relationship.  This psychologist had undertaken an evaluative role in a child custody dispute.  The psychologist had no therapeutic responsibilities whatsoever.

Attny:         Did you ever say to any third person, and by third person I mean someone other than the minor child, state that in the event this case goes to a full hearing, you are going to testify and recommend a reduction in Ms. Smith’s parenting time, lower than what she is receiving?

Psych:         I may have.

Attny:         Did you intend that as a penalty of some sort for going forward with this hearing because you view going forward as not in the minor child’s best interest?

Psych:         No sir.

Attny:         So, in other words, if this case goes to trial and you testify, you expect your testimony to be “I want her [Ms.Smith] to have less parenting time than what she currently has and less than I have recommended in my report” is that what you intended to do?

Psych:         No.  What I intended to do, and what my report was meant to do, was kind of warn the parties that this situation has to change.  I try in my reports not only to report my findings and opinions, but if I have an opportunity, to try and educate in a sense.

When this psychologist sought to “educate” one of the parties, he backed himself into a dual relationship.  His responsibilities were limited to reporting his “findings and opinions.”  Attempting to “educate” one of the parties is obviously inconsistent with confining oneself to evaluative responsibilities. At PsychLaw.net we feel the following cross‑examination outline will effectively alert judges to the inappropriateness of treating therapists testifying as experts.

Cross‑Examination Regarding Treating Therapist and Expert Witness

  1. X, you are familiar with the ethical standards of your profession ‑‑ Correct?
  2. And of course you are familiar with ______ [hold up, and read title from Dr. X’s professional group=s ethical standards].
  3. X, your profession generally recognizes that “dual relationships” with a patient are fundamentally unethical ‑‑ Correct?
  4. Dual relationships prevail when one relates to a patient in multiple capacities ‑‑ Correct?
  5. Relating to a patient as both therapist and business partner would be an example of a dual relationship ‑‑ Correct?
  6. Your profession’s code of ethics prohibits you from involving yourself in dual relationships with your patients ‑‑ Correct?
  7. [Read selected portions of the relevant ethical code addressing dual relationships] And so Dr., you are bound by these requirements ‑‑ Correct?
  8. And ultimately, then, dual relationships are unethical because of their potential to harm patients ‑‑ Correct?
  9. If I am your patient ‑ and we also involve ourselves in some business venture ‑ I could get confused about whether you are relating to me as therapist or business partner ‑‑ Correct?
  10. And that kind of confusion could damage me because I might feel that business considerations have led you to change how you relate to me as my therapist ‑‑ Correct?
  11. Now Dr. X, I would like you to consider your obligations as a treating therapist. The relevant research clearly demonstrates that a “therapeutic alliance” is necessary for effective psychotherapy ‑‑ Correct?
  12. A therapeutic alliance means that you and your patient are aligned together pursuing the same therapeutic goals ‑‑ Correct?
  13. A therapeutic alliance allows your patient to feel confident that you ‑ as the therapist ‑ are genuinely committed to his or her welfare ‑‑ Correct?
  14. Therapeutic alliances also involve a degree of therapist empathy ‑‑ Correct?
  15. In response to an empathic therapist, patients feel that their therapist understands them, as they understand themselves ‑‑ Correct?
  16. In response to a therapeutic alliance, patients also feel that their therapist relates to them in a nonjudgmental manner ‑‑ Correct?
  17. And this nonjudgmental manner of the therapist typically involves acceptance of the patient ‑‑ Correct?
  18. When building a therapeutic alliance, therapists recognize the priority of the patient’s welfare ‑‑ Correct?
  19. In your opinion, you have established a positive therapeutic alliance with your patient, Mr. Smith ‑‑ Correct?
  20. Now, you understand that if you are recognized as an expert witness, you are obligated to testify objectively, candidly, and forthrightly ‑‑ Correct?
  21. You do understand those obligations of candor, forthrightness and objectivity ‑‑ Correct?
  22. X, aren’t you obligated to acknowledge that your previously assumed role as Mr. Smith’s treating therapist, and your proposed role as an expert witness, involves a dual relationship?
  23. Just a moment ago, you acknowledged that if this Court recognizes you as an expert witness, you are obligated to testify objectively, candidly, and forthrightly ‑‑ Correct?
  24. However, testifying objectively, candidly, and forthrightly could threaten the therapeutic alliance between you and your patient, Mr. Smith ‑‑ Correct?
  25. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that the two of you are no longer aligned together pursuing the same goals ‑‑ Correct?
  26. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling you are no longer committed to his welfare ‑‑ Correct?
  27. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that you no longer understand him and his circumstances as he does ‑‑ Correct?
  28. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that you no longer relate to him in a nonjudgmental manner ‑‑ Correct?
  29. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that you no longer regard him with acceptance ‑‑ Correct?
  30. And in this specific legal proceeding, your patient ‑ Mr. Smith ‑ prefers a particular outcome ‑‑ Correct?
  31. And to the extent you enjoy a therapeutic alliance with Mr. Smith ‑ aligned together pursuing the same therapeutic goals ‑ you would prefer the same outcome related to this legal proceeding ‑‑ Correct?
  32. And if you prefer a particular outcome from this proceeding ‑ an outcome that would benefit your patient ‑ it becomes basically impossible for you to testify objectively, candidly, and forthrightly ‑‑ Correct?
  33. Therefore, Dr. X, would you agree that in view of your treatment relationship with Mr. Smith as his treating therapist, your testifying as an expert witness in this proceeding constitutes a dual relationship? And again for clarification purposes, your profession’s ethical code specifically prohibits you from entering into a dual relationship with your patients ‑‑ Correct?

_______________________________________________________________________________________________________________________

[1].       National Association of Social Workers (1996, August 15).  Code of Ethics.  Adopted by the NASW Delegate Assembly, Washington, DC, August 15, 1996, Effective January 1, 1997 (p. 2).

[2].       American Association for Marriage and Family Therapy. (Aug/Sept 1998).  AAMFT Code of Ethics – Eff July 1, 1998.  Family Therapy News, (p. 10).

[3].       American Psychological Association (1992).  Ethical principles of psychologists and code of conduct.  American Psychologist, 47, 1597,1611 (p. 1601).

[4].       American Psychological Association (1992).  Op cit., (p. 1610).

[5].       Committee on Ethical Guidelines for Forensic Psychologists (1991).  Specialty guidelines for forensic psychologists.  Law and Human Behavior, 15, 655-665.

[6].       American Academy of Psychiatry and the Law (1998).  Ethical guidelines for the practice of forensic psychiatry.  In Membership directory of American Academy of Psychiatry and the Law (pp. x-xiii).  Bloomfield, CT: Author.

[7].       Greenburg, S.A. & Shuman, D.W. (1997).  Irreconcilable conflict between therapeutic and forensic roles.  Professional Psychology: Research and Practice, 28, 50-57 (p. 56).

[8].       Remember, “objectivity” implicates competence.  See, ie: Malbrew v. Port Barre Mills, Inc., 693 So. 2d 259 (La. Ct. App. 1997) (noting that the only witness qualified to testify as to the claimant’s mental injury or illness was a clinical psychologist.  Two treating orthopedists, claimant’s treating physician and two treating psychiatrists were not competent).